Why Morocco discards AU’s involvement in Western Sahara Issue?

By African Bulletin on April 28, 2016

By: Shoji Matsumoto, Professor of International and African Comparative Law, Japan

Morocco’s permanent representative at the UN has informed the United Nations Secretary General and members of the Security Council, that Morocco expressed its strong opposition to any implication or role of the African Union on the issue of the Sahara, and expressed consequently its “strong rejection of repeated attempts by the African Union to discuss the issue before the Security Council.”

Rabat estimates that “The African Union has already taken position in favor of one party. Thus, the African cannot be a judge and a party,”

The Letter sent to the UNSG, and the Security Council explains that “The credibility of the African Union on the issue of the Moroccan Sahara is compromised given its position, which prejudged, in a biased manner, the outcome of the political negotiations under the auspices of the United Nations, by admitting, within its membership, an entity that has no attribute of sovereignty,”

Moroccan reaction comes just after the AU’s special envoy for the Western Sahara Joaquim Chissano told some members of the Security Council during an informal meeting on Tuesday that Morocco’s eviction of United Nations peacekeeping staff sets a “very dangerous precedent” for U.N. missions.

In this informal meeting boycotted by several Council members, such as France, Spain, Senegal and Egypt, Chissano criticized Moroccan decision to expel civilian members of the mission, and considered it as « very dangerous precedent.”

Last month, Morocco has expelled over 84 civilian UN staffers as a political response to Secretary-General Ban Ki-moon’s inaccurate behaviors and statements, such us Greeting the flag of a virtual and non-member state of the UN, or his use of the term “occupation” to describe Morocco’s presence in the Western Sahara.

Two years ago, Morocco has rejected the appointment of Chissano, to the ¨faked¨ diplomatic position and called on the Security Council to “ignore” AU’s decision.

The AU at a Loss: the Requirements of International Responsibility of an International Organization ―

Normally, an international organization like the AU is established to achieve attentive objectives. If it has become apparent that the objectives cannot be achieved, the organization should be fundamentally reconstructed or dissolved. Otherwise, the organization would serve different objectives and become dysfunctional. The AU as we know it today is not an exception.

Fundamentally, one of the objectives of the AU “shall be to: (a) achieve greater unity and solidarity between the African countries,” whether they are members or not. Another objective is to “(c) accelerate the political and socio-economic integration of the continent,” not only that of the members. But the AU has not attempted to convince Morocco why and how the appointment of special envoy for Western Sahara is necessary to achieve greater unity and solidarity with Morocco, and to accelerate the political and socio-economic integration with Morocco. As Morocco has already rejected few years ago the appointment, the decision of the AU to appoint the special envoy for Western Sahara precludes any possibility to “achieve greater unity and solidarity between the African countries,” and to “accelerate the political and socio-economic integration of the continent” Consequently, the decision is in breach of the obligations under the Constitutive Act of the African Union (AU Act).

Intrinsically, the AU is not competent to deal with the Western Sahara conflict. A conflict would come under the jurisdiction of an international organization only when all the parties are its members. The AU Act itself stipulates the “peaceful resolution of conflicts among Member States of the Union” as one of its principles. The conflict is not a conflict for the AU to be resolved “through such appropriate means as may be decided upon by the Assembly” (AU Act, art.4 (e)). In fact, one of the backgrounds of the taking over the conflict by the UN from the OAU was the withdrawal of Morocco from it.

If based on the Draft Articles on the Responsibility of International Organizations, adopted by the International Law Commission in 2011 and submitted to the UN General Assembly, every internationally wrongful act of an international organization entails the international responsibility. The breach of an international obligation by such an act of an international organization having a continuing character as the appointment by the AU of special envoy for Western Sahara extends over the entire period during which the act continues and remains not in conformity with that obligation (art. 12 (2)). Thus, the AU i is under an obligation to cease the internationally wrongful act of the appointment, and to offer appropriate assurances and guarantees of non-repetition (art.30). The AU has to re-establish the situation which existed before the wrongful act was committed (art.35). Morocco may take countermeasures against the AU in order to induce it to comply with its obligations (art.51(1)). A non-injured third State is also entitled to invoke the responsibility of the AU (art.49).

It was wise if the AU had not appointed a special envoy in breach of its own objectives, at lest it might play e key role in achieving the objectives in conformity with the law of international responsibility of international organizations. The AU is recommended, as its highest priority, to do all kinds of things to tie in well with Morocco.

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