For the realistic approaches in International Relations, power[1] defines national interest and the powerful do as they want, and the weak must endure. This is the most noticeable illustration in the case of Western Sahara. We find on one side Morocco that dominates the majority of the territory, and on the other side the Polisario that exercises its sovereign over almost 20% of the territory, which is the weakest part. In this kind of situation, how can this type of conflictual negotiation be managed?
By introducing other influent actors
By May 1996 the Secretary General of United Nations reports the lack of progress in Western Sahara mission MINURSO to complete the process of identifying the electorate that should participate in the referendum of self-determination in Western Sahara. For that reason, the report of Secretary General Kofi Annan in 1997 will suspend the referendum process and encourage Morocco and Polisario Front to take part in direct negotiations to exploring other solutions neither defined nor determined by leaving aside the referendum. From this moment the question of Western Sahara has entered into the way of endless negotiations.
Thus was born the drama of the interminable negotiations which is fed each year according to the low and high of the intervention of the country such USA, France, Russia, United Kingdom and Spain. Broadly speaking, all these States, it seems that the situation of no war and no peace suits their interests since it is these same States which organize and write with the Secretary General of the United Nations the final provisions of the resolutions which concern that question. This situation can be described as a blockage of the decolonization system in Western Sahara. S. Calogeropoulos-Stratis, on the other hand, urges the competent organs of the United Nations, to adopt « a special procedure for the respect of the rights of peoples » so as to prevent this respect « from the legal field to the political sphere »[2].
It is in this sense that we must understand the initiative of the new special envoy for Western Sahara Kohler to unblock this situation by introducing other actors who like European Union (EU) and African Union (AU) in the orderthey can push the belligerentsto overcome their objections.
The AU since the beginning of Western Sahara conflict has maintained the same position endorsed by the last resolution of AU commission for peace and security “ (iii) decides to strengthen the mandate of Former President Joaquim Chissano of Mozambique, to be appointed as AU High Representative for Western Sahara with the mandate to facilitate the direct talks between the two Member States and to mobilize African and UN efforts required to this effect. Council requests the Chairperson of the Commission to take necessary steps to enable the AU High Representative to immediately undertake his mandate”[3].
Since the coming of Morocco to the AU as a new member seat beside SADR (Sahrawi Arab Democratic Republic) as both the full both members, the question of negotiation can take a new dimension, from the question of decolonization to the question of the border between two states.
Between reality and practice, the European Union maintains a negative position vis-à-vis Western Sahara. Indeed, the EU discourse remains committed to the international law of decolonization and in practice the EU in a very favourable position for Morocco so you can understand European ambivalence. However, the judgment of the European Court of Justice in 2016 and in February 2018 can change the game for more European influence in the quest for a final solution that respects the self-determination of the Western Sahara population.
The interest of the European Union for Western Sahara comes from three determinants factors primarily Western Sahara was Spanish and it always remains from the point of view of international law because Spain is the administering[4] state while Morocco is an occupying[5] state. Secondly, the geographical proximity and thirdly all the trade of the Maghreb countries are with the European Union. Western Sahara represents for the European Union a political and strategic burden due to the terrorist threat in the Sahara and the Sahel.
If the Franco-German couple was the instigator of all the programs and plans of the union, Germany has another diplomatic choice than the French opinion with regard to the question of Western Sahara. France maintains a position in favour of the implementation of autonomy in Western Sahara under Moroccan sovereignty, while Germany, which is very far from the Maghreb, finds in the application of international law of decolonization better choices to safeguard peace and security in the World.
With this situation where Germany is on the economic podium of the European Union, Germany will necessarily dictate its political choices while France will be faced with an unwanted situation, either confront or cooperates with Germany for a solution to Western Sahara that respect the right to self-determination, especially since the UN’s special envoy to Western Sahara is the former German president. We are now witnessing a new European policy reinforced by the arbitral of the European Court of Justice.
By endorsing the principle of good faith[6]
In all negotiations between individuals or states, negotiation must be conducted in good faith. The International Court of Justice (ICJ) has noted, one of the basic principles governing the creation and performance of legal obligations, whatever their source international law has consistently reaffirmed the centrality of good faith to the law of negotiations. By virtue of article 26 of the 1969 Vienna convention on the law of treaties enhanced the good faith as the beginning of any discussing of dispute.
According to Art. 38 (1) (c) of the ICJ Statute, the Court “shall apply the general principles of law recognised by civilised nations”. When treaties or customary law cannot yield a result, recourse is made to the general principles of law[7].
A new way forward is needed, by building new approaches and institutional arrangements. The UN must revise the threat imposed by a terrorist group in the region of Sahel and Sahara and should take a hard look at the threat, in a visible manner, that is opening a formal strategic dialogue bringing together both parties and UN to establish some kind of cooperation between military forces of Morocco, Polisario and Blue Helmet of MINURSO. The security equation urgently imposed on the day-to-day threats to peace and security in the Maghreb as a result of immigration, smuggling, drug trafficking, and the complicity of its criminal gangs with terrorist groups.
The lack of credibility on both sides bad perception marked by stereotypes and prejudices, see each other as an enemy and not as a partner, Morocco sees the Polisario as separatists while the latter sees Morocco as an occupying state. This factual finding cannot help to restart negotiations on a solid and reliable basis only if the United Nations unilaterally applies the right of coercion as it is granted under Chapter VII of the UN Charter.
Solution to deal with the status quo of negotiation can return back to the initial peace process but must be made more transparent and anew with more justice that means respect on the ground for the Declaration of December 16, 1966, of the United Nations General Assembly which had adopted two covenants in its resolution 2200 A (XXI): the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on economic, social and cultural rights (ICESCR).
The peace process must move from negotiation to implementation. The waste of time creates more misunderstanding and trust is lost between the two parties and the UN.
The SADR is attestedfull members of AU so can put dialogue in such way with Morocco.
If Polisario associated the equality of gender by introducing a woman to the negotiating table representing the Saharawi woman, however, Morocco still does not yet associate any woman at the negotiating table. The marginalization of women in decision-making during the negotiation between both sides can be problematic and can generate vicious exclusion of the final solution.
Unless both sides are willing to forget certain claims and both sides must respect the international law of decolonization in order to choose the democratic way far from any discrimination with the intention to negotiate with one another without preconditions and according to the exacting international law of negotiation. The only solution for the respect of decolonization in Western Sahara as is affirmed in the ICJ judgment of April 1975 towardself-determinationby referendum. Only peace through justice can guarantee perpetual peace, in opposition any peace forced by realpolitik is a peace that will be ephemeral and will open the way to other absolutist states to occupy other weak states according to the law of the strongest.
We can conclude that only, one way to reach a successful negotiation in Western Sahara, by strengthening international justice as a prerequisite to any form of peace. “No state, big or small – it does not matter – must be conquered by another”. Kant explained this principle as follows: The State is a community of citizens, whose destiny must be decided only by that State itself and no one else. Its absorption in another State would mean its liquidation as a moral subject and its transformation into a mere object. In other words, Kant forbade wars of conquest, the power of one person over another.
It can be said that as soon as the ICJ had given its opinion and the Security Council had planned its plan for the settlement contained in the initial peace agreement the council had to bend both parties to apply the original plan because it is the only way that represents the democratic choice and contrasts with the solutions of circumstances.
We believe in democratic choice of people to choose our destiny, in our opinionthe solution suggested since 1972 by the former Secretary General of the United Nations at the time the Austrian Kurt Waldheim[8] who proposes a UN mandate on Western Sahara until the holding of a referendum is the best current solution to unblock this situation of negotiations without issue.
The role of the United Nations, the European Union and the African Union must promote democracy in Western Sahara by the respect of self-determination as the best democratic choice in order to resolve this protracted conflict.
— Notes de bas de page —
[1] In my opinion the form of power referring to an actor controlling another to do what that other would not otherwise do. To deepen more about the concept of power see Joseph S. Nye Jr, the future of power, New York, Public Affairs, 2011
[2] S. CALOGEROPOULOS-STRATIS, Le droit des peuples à disposer d’eux-mêmes, Avant-propos, p. 14
[3] http://www.peaceau.org/uploads/psc-comm-western-sahara-en.pdf
[4] Regarding international law, Spain administers the territory of Western Sahara until the hold of self-determination in order the habitant of the territory can choose the political destiny. the Hague Conventions (IV) of 1907 respecting the Laws and Customs of War on Land and its annexed Regulation, the Fourth Geneva Conventions of 1949, the Second Geneva Conventions of 1949 and the Protocol II Additional to the Geneva Conventions of 1977 represent the most important juridical arsenal of international law of occupation.
[5] GA Resolution 34/37 of 21 November 1979 and qualified the presence of Morocco in Western Sahara as occupation. Indeed the GA was deeply deploring “the aggravation of the situation resulting from the continued occupation of Western Sahara by Morocco and the extension of that occupation to the territory recently evacuated by Mauritania” and urged Morocco “to join in the peace process and to terminate the occupation of the Territory of Western Sahara”( GA Res. 34/37 of 21 November 1979)
[6] Good faith observes Cicero, requires that a man should consider as well as what he intends, as what he says. It is a right, which natural reason dictates, that everyone who receives a promise, should have the power to compel the promiser to do what a fair interpretation of his words suggests. . . . Isocrates, treating of agreements, maintains that the laws enacted on this subject are the common laws of all mankind, not only Greeks, but barbarians also (Hugo Grotius, The Rights of War and Peace1)
[7] Hersch Lauterpacht, International Law Vol. 1, (ed Elihu Lau terpacht, CUP 1970) 68; Malcolm N Shaw, International Law, (6th edn, CUP 2008) 98; James Crawford, Brownlie’s Principles of Public International Law, (8th edn, OUP 2012) 134
