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Report of the UN Secretary-General
on the situation concerning Western Sahara
Peace plan for self-determination
of the people of Western Sahara - Baker Plan II
S/2003/565,
Security Council
23 May 2003
I. Introduction
1. The present report is submitted pursuant to Security Council
resolution 1469 (2003) of 25 March 2003, by which the Council,
reaffirming all its previous resolutions on Western Sahara, in
particular resolution 1429 (2002) of 30 July 2002, extended the
mandate of the United Nations Mission for the Referendum in Western
Sahara (MINURSO) until 31 May 2003 and requested me to provide a
report on the situation concerning Western Sahara by 19 May,
including the views of the parties to the proposal that was
presented to them by my Personal Envoy in January 2003. The present
report covers developments since my previous report to the Council
on the situation concerning Western Sahara, dated 16 January 2003
(S/2003/59).
II. Developments on the ground
A. Activities of my Special Representative
2. During the reporting period, my Special Representative for
Western Sahara, William Lacy Swing (United States of America),
continued to maintain regular contacts with representatives of the
parties. He met regularly with officials of the Government of
Morocco and the Frente Popular para la Liberación de Saguía el-Hamra
y del Río de Oro (Frente POLISARIO) in Laayoune and the Tindouf
area, in order to keep an open channel of communication with them
and to review the situation on the ground. Mr. Swing also met
regularly with senior officials of the parties and of neighbouring
countries during his visits to Rabat in February and to Tindouf,
Algiers and Nouakchott in April. 3. From 4 to 7 March, my Special
Representative met with senior officials from the International
Committee of the Red Cross (ICRC), the Office of the United Nations
High Commissioner for Refugees (UNHCR) and the World Food Programme
(WFP) in Geneva and Rome to discuss the resolution of pending
humanitarian issues related to the conflict, including the
implementation by UNHCR, in cooperation with MINURSO, of
confidence-building measures; the continuing food shortages in the
Tindouf area refugee camps; the Moroccan prisoners of war; and the
fate of persons unaccounted for on either side since the beginning
of the conflict. He also met there with representatives of major
donor countries.
B. Activities of the Identification Commission
4. During the reporting period, the Identification Commission
continued its work on the electronic archiving of the 244,643
individual files of persons who applied to be included in the list
of voters for the referendum in Western Sahara. The Commission
finished the work in mid-May. Hence, all the files have now been
scanned, archived and safely stored on both hard disks and back-up
tapes to ensure maximum security of the database.
C. Military aspects
5. As at 10 May 2003, the military component of MINURSO stood at 229
military observers and troops, against the authorized strength of
230 (see annex I). Under the command of Major General Gyorgy Száraz
(Hungary), the component continued to monitor the ceasefire between
the Royal Moroccan Army and the Frente POLISARIO military forces,
which has been in effect since 6 September 1991. During the
reporting period, the Mission's area of responsibility remained
calm, and there has been no indication on the ground that either
side intends to resume hostilities in the near future.
6. MINURSO ground and air patrols continued to visit and inspect, on
both sides of the defensive sand wall, or berm, Royal Moroccan Army
and Frente POLISARIO ground units larger than company size, in
accordance with the ceasefire arrangements between MINURSO, on the
one hand, and the Royal Moroccan Army and the Frente POLISARIO on
the other. Both the Royal Moroccan Army and the Frente POLISARIO
military forces have continued to carry out routine maintenance and
training activities.
7. The Frente POLISARIO continues to impose some minor limitations
on the Mission's freedom of movement. While these limitations do not
significantly affect the ability of MINURSO to monitor the situation
east of the berm, their removal would increase the efficiency of the
Mission's ground and air patrolling activities.
8. MINURSO has continued to cooperate with the parties on the
marking and disposal of mines and unexploded ordnance. During the
reporting period, MINURSO discovered and marked 14 mines and pieces
of unexploded ordnance and monitored 16 disposal operations carried
out by the Royal Moroccan Army. On 19 February, the Frente POLISARIO
reported a mine accident resulting in the death of one civilian in
the area of responsibility of MINURSO team site Mijek (southern
sector). MINURSO is also assisting the Mine Action Service of the
Department of Peacekeeping Operations in preparing a regional
landmine and unexploded ordnance safety workshop for Western Sahara,
to be held in Mauritania from 25 to 28 June 2003, for United Nations
peacekeepers and civilian staff in the area.
9. Work has begun on the establishment in MINURSO of an Information
Management System Unit using the Information Management System for
Mine Action (IMSMA), which is expected to become operational in the
second half of 2003. On behalf of the Mine Action Service, the
Geneva International Centre for Humanitarian Demining has undertaken
to provide MINURSO with installation support, training, software
maintenance and upgrades, as well as general support services, as
the IMSMA project develops. With IMSMA, MINURSO will be able to
consolidate the data on mines and unexploded ordnance that it has
collected over the years for use in planning any future mine action
in the area.
D. Civilian police aspects
10. As at 10 May, the strength of the civilian police component of
MINURSO stood at 26 officers (see annex I), under the command of
Inspector General Om Prakash Rathor (India). The component continued
to carry out protection duties in relation to files and sensitive
materials at the Identification Commission centres in Laayoune and
Tindouf. Training of civilian police officers has continued,
including briefings by UNHCR on the protection aspects of voluntary
repatriation and international instruments concerning refugees.
E. Prisoners of war, other detainees and persons unaccounted for
11. My Special Representative has continued to impress upon the
Frente POLISARIO the need to release all remaining prisoners of war
and upon both parties the need to cooperate actively with ICRC in
determining the fate of persons who are unaccounted for. On 7
February he visited a detention centre in the Tindouf area in which
prisoners of war were being held.
12. On 26 February ICRC repatriated to Morocco 100 prisoners of war,
whose release the Frente POLISARIO had announced on 10 February in
response to a request by a Member State. The Frente POLISARIO
continues to hold 1,160 prisoners of war, some of whom have been in
detention for more than 20 years.
F. Western Saharan refugees
13. It will be recalled that a senior UNHCR official and my Special
Representative held discussions with the parties in November and
December 2002 on the implementation of UNHCR confidence-building
measures. The Governments of Algeria and Mauritania were also
consulted with regard to the proposed activities. Although agreeing
in principle to such measures, the Frente POLISARIO and the
Government of Morocco expressed divergent views on the selection
criteria of family visits between the Tindouf area refugees and
their communities of origin in Western Sahara. Efforts to achieve a
compromise formula have failed thus far, as neither side is willing
to reconsider its position on the use of the provisional list of
voters as the primary basis for participant selection.
14. UNHCR and my Special Representative nevertheless continued their
efforts to implement confidence-building measures, focusing on those
activities that were not contested. My Special Representative met
individually with officials of the Frente POLISARIO and the
Government of Morocco in February to discuss a reduced and
simplified UNHCR proposal on confidence-building measures to provide
limited, UNHCR-operated telephone and personal mail services between
some of the Tindouf area refugee camps and the Territory. The new
proposal did not include any activities involving the movement of
persons across the berm, although such activities could be revisited
at a later stage. Following the talks, in March the Frente POLISARIO
and the Government of Morocco formally concurred in the commencement
of those limited services. My Special Representative informed the
Governments of Algeria and Mauritania of this development in April.
15. Accordingly, on 15 April UNHCR inaugurated a free one-way,
telephone service between the "27 February" refugee camp and the
Territory. On 16 April, however, the Frente POLISARIO requested that
the service be suspended until the end of April in order to put in
place logistical arrangements enabling refugees from other, distant
camps with no telephone service to travel to the UNHCR telephone
centre to use the service. As at 14 May, the telephone service had
not yet been reactivated. Given its useful impact on
person-to-person contact, UNHCR and my Special Representative will
continue to advocate the quick resumption of the telephone service.
16. UNHCR also intended to inaugurate on 15 May a two-way personal
mail exchange between the Tindouf refugee camps and the city of
Laayoune in the Territory. The start of this service has been
postponed pursuant to a request of the Government of Morocco,
pending further technical discussions with UNHCR regarding the
modalities of its implementation.
17. UNHCR remains ready to resume the suspended telephone service,
launch the mail service and begin preparations, in close cooperation
with MINURSO, for the extension in mid-June of the UNHCR telephone
service to camp El Ayun and, later, to other refugee camps and of
the personal mail service to other Western Saharan cities. All these
activities are, of course, subject to the availability of funding,
continued interest from beneficiaries and the full cooperation of
the parties.
18. Although the overall situation of food assistance to the Western
Saharan refugees in the Tindouf area has improved slightly,
shortages remain of some critical items, such as cereals and
vegetable oil, and the overall level of donor support for the WFP
assistance programme for Western Saharan refugees continues to be
low.
G. African Union
19. On 20 February a delegation of senior African Union
representatives visited the Tindouf area refugee camps to conduct an
evaluation of the situation and deliver a symbolic $100,000 donation
for the refugees. On 22 April the interim Chairperson of the
Commission of the African Union, Amara Essy, met in the Tindouf area
with senior Frente POLISARIO leaders.
20. During the reporting period, the African Union observer
delegation to MINURSO, led by Ambassador Yilma Tadesse (Ethiopia),
continued to provide valuable support and cooperation to the
Mission.
III. Financial aspects
21. By its resolution 56/298 of 27 June 2002, the General Assembly
appropriated an amount of $43,412,900 gross to the Special Account
for MINURSO for the period from 1 July 2002 to 30 June 2003, which
comprised $41,529,500 for the maintenance of the Mission, $1,681,900
for the support account for peacekeeping operations and $201,500 for
the United Nations Logistics Base at Brindisi, Italy. From its
inception on 29 April 1991 to 30 April 2003, the total costs of
maintaining MINURSO amounted to some $495.2 million.
22. As at 30 April 2003, unpaid assessed contributions to the
Special Account for MINURSO amounted to $54,452,011. The total
outstanding assessed contributions for all peacekeeping operations
at that date amounted to $1,375,914,354.
IV. Assessment of progress and problems since the appointment of my
Personal Envoy
23. In my report to the Security Council of 20 June 2001
(S/2001/613), I described in some detail the difficulties that the
United Nations had encountered over the past 11 years in its effort
to implement the settlement plan (S/21360 and S/22464 and Corr.1).
Despite those efforts, the process of identifying voters for the
referendum broke down repeatedly. After a particularly long impasse,
from the end of 1995 to the beginning of 1997, I appointed James A.
Baker III as my Personal Envoy in March 1997, and asked him to
assess, in consultation with the parties, the implementability of
the plan in its present form and to examine whether there were
adjustments acceptable to the parties that would significantly
improve the chances of implementing it in the near future and, if
not, to advise me on other possible ways of resolving the conflict.
Following a tour of the region, during which my Personal Envoy met
with the leadership of the two parties and the neighbouring
countries, he informed me that, despite the difficulties and delays
in the process, neither side had indicated a willingness to pursue
any political solution other than the implementation of the
settlement plan.
24. My Personal Envoy believed that the only realistic way to assess
the feasibility of implementing the plan would be by arranging
direct talks between the parties. He was aware, however, that
previous efforts by the United Nations to organize such direct talks
had not succeeded, mainly because of the reluctance of the
Government of Morocco to meet face-to-face with the Frente
POLISARIO.
25. At the invitation of my Personal Envoy, the parties met in
Lisbon on 23 June 1997, marking the first time in many years that
they had met to discuss matters of substance. The meeting lasted
only one day, as it became apparent that both sides had difficulties
accepting the proposal submitted by my Personal Envoy to bridge
their differences in regard to the identification process, and that
both needed to consult with their principals before responding. This
was to become a pattern, repeated during three subsequent rounds of
direct talks held in 1997, reflecting the parties' great reluctance
to agree to the bridging proposals aimed at resolving their
differences on the issues hindering the implementation of the
settlement plan. Nevertheless, through the perseverance of my
Personal Envoy and his team, agreement was reached on all the issues
where problems existed in the positions of the parties during the
round of talks held at Houston, Texas (United States) from 14 to 16
September 1997. What became known as the "Houston accords"
(S/1997/742, annex III) allowed for the resumption of the
identification process and, therefore, the implementation of the
settlement plan.
26. In my report of June 2001 (S/2001/613, paras. 27-29), I
described the serious difficulties encountered in carrying out and
concluding the identification process and enumerated the remaining
key unresolved issues of the settlement plan following the
conclusion of the Houston accords. The report noted that since the
conclusion of the identification process at the end of 1999, MINURSO
had received a total of 131,038 appeals. The appeals process
promised to be even lengthier and more cumbersome and contentious
than the identification process, which itself lasted for five and a
half years.
27. In view of these developments, in early 2000 I asked my Personal
Envoy to undertake new consultations with the parties and
neighbouring countries. After a visit to the region from 8 to 11
April, my Personal Envoy informed me that another face-to-face
meeting between the parties was required in order to consider
persistent problems in the implementation of the settlement plan and
the Houston accords, as well as to explore other possible
approaches.
28. The first of three such meetings in 2000 was held in London on
14 May. Representatives of the neighbouring countries Algeria and
Mauritania also attended. The meeting proved to be inconclusive in
resolving the problems separating the parties. My Personal Envoy
therefore invited the parties to come forward at the next meeting
with concrete solutions to the multiple problems of the settlement
plan to which they could both agree, or, if that was not possible,
to be prepared to discuss other ways of achieving an early, durable
and agreed resolution of their dispute over Western Sahara.
29. During the second meeting, held in London on 28 June, each party
identified areas, mainly concerning the appeals process and the
repatriation of refugees, that in its view presented difficulties
with respect to the implementation of the plan. However, neither
party offered any specific proposals to which both could agree in
order to resolve multiple problems in the implementation of the
settlement plan. At that time, my Personal Envoy indicated that, in
his view, other issues remained unresolved, such as enforcement of
the results of the referendum, release of prisoners of war and
Western Saharan political detainees and possible problems relating
to the implementation of the code of conduct for the referendum
campaign.
30. My Personal Envoy also expressed concern that the parties had so
far failed to negotiate these problems owing to the high level of
animosity between them. In his view, neither party had shown any
disposition to depart from a winner-take-all mentality or appeared
willing to discuss any possible political solution in which each
could achieve some, but not all, of what it wanted, allowing the
other side to achieve the same. After again asking the parties for
concrete proposals to bridge their differences, and again receiving
no such proposals, my Personal Envoy expressed the view that the
meeting, instead of achieving progress, had deepened the differences
between the parties.
31. Nevertheless, my Personal Envoy considered that a political
solution was achievable through direct dialogue between the parties,
and asked them to meet again in order to try to arrive at a
political solution. At that time he stressed to the parties that,
should they agree to discuss a political solution other than the
settlement plan, they would not prejudice their final positions
since, according to the rules of the consultations, nothing would be
agreed to until everything had been agreed.
32. The third meeting of the parties held under the auspices of my
Personal Envoy was held in Berlin on 28 September 2000. During a
discussion on the status of the settlement plan, the parties
reiterated their positions; both, however, pledged their cooperation
with the United Nations. My Personal Envoy pointed out to the
parties that he had heard the same arguments and pledges of
cooperation since 1997 and was therefore sceptical about their
validity.
33. My Personal Envoy recalled that he had asked the parties whether
they had come with new positions on any issue. Neither party had
presented any new positions on any issue, so he felt that there was
no political will on either side to move forward. At the same time,
he reiterated that there were many ways to achieve
self-determination. It could be achieved through war or revolution;
it could be achieved through elections, but this required good will;
or it could be achieved through agreement, as had been done by
parties to other disputes. When asked by my Personal Envoy whether
they would be willing to try the latter route without abandoning the
settlement plan, both parties reiterated their commitment to the
plan, although they expressed fundamental differences and
perceptions as to its correct implementation.
34. My Personal Envoy then suggested that the parties explore ways
to move the appeals process forward, as the Frente POLISARIO wished,
and at the same time search for a mutually acceptable political
solution, as the Security Council had requested in its resolution
1309 (2000) of 25 July 2000. The Moroccan delegation pointed out
that the question of appeals had been extensively covered and was
exhausted. In the view of Morocco, that issue was deadlocked, not on
technicalities, but on principles.
35. My Personal Envoy then asked the parties whether, without
abandoning the settlement plan, they would be willing to pursue a
political solution that might or might not be confirmed by a later
referendum. The Frente POLISARIO responded that it was not ready to
discuss anything outside the settlement plan. For its part, the
Moroccan delegation stated that it was prepared to initiate a
sincere and frank dialogue with the Frente POLISARIO, with the
assistance of my Personal Envoy, to work out a lasting and
definitive solution that would take account of the sovereignty and
territorial integrity of Morocco, as well as the specifics of the
region, in compliance with the democratic and decentralization
principles that Morocco wished to develop and apply, beginning with
the Sahara region.
36. The Frente POLISARIO rejected the Moroccan proposal and
reiterated that it would cooperate and pursue dialogue only in the
context of the settlement plan.
37. At the conclusion of these consultations, my Personal Envoy
expressed the view, which I shared, that further meetings of the
parties to seek a political solution could not succeed, and indeed
could be counterproductive, unless the Government of Morocco, as the
administrative power in Western Sahara, was prepared to offer or
support some devolution of governmental authority for all
inhabitants and former inhabitants of the Territory that would be
genuine, substantial and in keeping with international norms.
38. In early 2001 my Personal Envoy was able to determine that
Morocco, as the administrative power in Western Sahara, was prepared
to support a draft framework agreement on the status of Western
Sahara (see S/2001/613, annex I), which envisaged a devolution of
authority to the inhabitants of the Territory with final status to
be determined by a referendum five years later. Once he ascertained
the willingness of the Government of Morocco to support the draft
framework agreement, my Personal Envoy presented it to the
Government of Algeria and to the Frente POLISARIO, which provided
their views on the agreement (ibid., annexes II and IV).
39. In view of the strong reservations expressed by the Government
of Algeria and the unwillingness of the Frente POLISARIO to consider
the draft framework agreement, the Security Council, in its
resolution 1359 (2001) of 29 June 2001, supported my proposal to
invite all the parties to meet directly or through proximity talks
under the auspices of my Personal Envoy to discuss the framework
agreement and to negotiate any specific changes that they would like
to see in it. The Council also encouraged the parties to discuss any
other proposal for a political solution that might be put forward by
them to arrive at a mutually acceptable agreement. The Council
affirmed that, while such discussions went on, the proposals
submitted by the Frente POLISARIO to overcome the obstacles
preventing implementation of the settlement plan would be
considered.
40. As recounted in my reports of 10 January (S/2002/41) and 19
February 2002 (S/2002/178), following the adoption of resolution
1359 (2001) my Personal Envoy met with high-level representatives of
the Frente POLISARIO and the Governments of Algeria and Mauritania
at Pinedale, Wyoming (United States), in August 2001. Neither the
Government of Algeria nor the Frente POLISARIO was willing to engage
in a detailed discussion of the draft framework agreement,
notwithstanding indications of flexibility by the Government of
Morocco conveyed to them by my Personal Envoy. In view of the
responses received from the Government of Algeria and the Frente
POLISARIO, in which they rejected the draft framework agreement
(S/2002/41, annexes I and II), my Personal Envoy did not see any
real likelihood that the parties would ultimately agree voluntarily
to this approach to solving their dispute over Western Sahara. He
was also of the view, which I shared, that the proposal submitted by
Algeria in lieu of the draft framework agreement, by which the
United Nations would assume sovereignty over Western Sahara in order
to implement provisions that appeared identical to those of the
settlement plan, had no more chance than the settlement plan of
bringing about an early, durable and agreed resolution of the
conflict over Western Sahara.
41. Subsequently, my Personal Envoy met with President Abdelaziz
Bouteflika and other high-level officials of the Government of
Algeria on 2 November 2001 at the James Baker Institute in Houston,
Texas (United States) and then twice with King Mohammed VI and
high-level officials of the Moroccan Government in Morocco on 24 and
25 January 2002.
42. As indicated in my reports of June 2001 (S/2001/613) and
February 2002 (S/2002/178), my Personal Envoy is of the view
&emdash; based on his assessment of United Nations efforts over the
past 11 years to implement the settlement plan, including the 6
years during which he has been involved in the process &emdash; that
it is highly unlikely that the settlement plan can be implemented in
its present form in a way that will bring about an early, durable
and agreed resolution of the dispute over Western Sahara.
43. Owing to the parties' incompatible positions with respect to the
possibility of negotiating changes in the draft framework agreement,
which was favoured by Morocco, or the proposal to divide the
Territory, which was favoured by Algeria and the Frente POLISARIO, I
presented four options, which would not have required the
concurrence of the parties, which the Security Council could
consider in addressing the conflict over Western Sahara (see
S/2002/178).
44. As a first option, the United Nations could have resumed its
efforts to implement the settlement plan without requiring the
concurrence of both parties before action could be taken. This
effort would have begun with the appeals process, but, even under
this non-consensual approach, the United Nations in the years ahead
would have faced most of the problems and obstacles that it had
faced in the preceding 10 years. In that connection, Morocco
expressed its unwillingness to go forward with the settlement plan;
the United Nations might not be able to hold a free and fair
referendum the results of which would be accepted by both sides; and
there would still be no mechanism to enforce the results of the
referendum. Under this option, the Identification Commission of
MINURSO would have been reinforced, and indeed the overall size of
the operation would have been increased.
45. As a second option, my Personal Envoy could have undertaken to
revise the draft framework agreement, taking into account the
concerns expressed by the parties and others with experience in such
documents. However, in that event, my Personal Envoy would not have
sought the concurrence of the parties, as had been done in the past
with respect to the settlement plan and the draft framework
agreement. The revised framework agreement would have been submitted
to the Security Council, which would then have presented it to the
parties on a nonnegotiable basis. If the Council had agreed to this
option, the composition of MINURSO might have been reduced.
46. As a third option, the Security Council could have asked my
Personal Envoy to explore with the parties one final time whether or
not they were willing to discuss, under his auspices, directly or
through proximity talks, a possible division of the Territory, with
the understanding that nothing would be decided until everything was
decided. Under this option, in the event that the parties had been
unwilling or unable to agree upon a division of the Territory by 1
November 2002, my Personal Envoy would have been asked to show to
the parties a proposal for division of the Territory that would also
have been submitted to the Council. The Council would then have
presented the proposal to the parties on a non-negotiable basis.
Such an approach to a political solution would have given each party
some, but not all, of what it wanted and would have followed the
precedent, but not necessarily the same territorial arrangements, of
the division agreed to in 1976 between Morocco and Mauritania. If
the Council had chosen this option, MINURSO could have been
maintained at its present size or its composition reduced.
47. As a fourth option, the Security Council could have decided to
terminate MINURSO, thereby recognizing and acknowledging that after
the passage of more than 11 years and the expenditure of about
one-half billion dollars, the United Nations was not going to solve
the problem of Western Sahara without requiring that one or both of
the parties did something that they did not voluntarily agree to do.
48. The Security Council was not able to agree on any of the
options. Instead, by its resolution 1429 (2002), it expressed its
continued strong support for my efforts and those of my Personal
Envoy to find a political solution to this long-standing dispute,
and invited my Personal Envoy to pursue those efforts, taking into
account the concerns expressed by the parties. The Council also
expressed its readiness to consider any approach providing for
self-determination that might be proposed by me and my Personal
Envoy, consulting, as appropriate, others with relevant experience.
The Council also called upon the parties and the States in the
region to cooperate fully with me and my Personal Envoy in that
regard.
49. Pursuant to this request, my Personal Envoy, assisted by a
constitutional expert, drafted a peace plan for self-determination
for the people of Western Sahara (see annex II), which he presented
and explained to the parties and neighbouring countries during his
visit to the region from 14 to 17 January of this year. My Personal
Envoy also shared the plan with members of the Security Council in
early March. I believe that the peace plan provides a fair and
balanced approach towards a political solution to the question of
Western Sahara, providing each side some, but perhaps not all, of
what it wants. It incorporates elements of the draft framework
agreement that had been accepted by Morocco, as well as elements of
the settlement plan and of the Houston accords, agreed to by both
sides and favoured by the Frente POLISARIO. It envisages a period of
transition during which there would be a division of
responsibilities between the parties before the holding of a
referendum for self-determination that would provide the bona fide
residents of Western Sahara with an opportunity to decide their
future. Unlike the settlement plan, the peace plan does not require
the consent of both parties at each and every step of its
implementation. The responses of the parties and neighbouring
countries to the plan are provided in annex III.
V. Observations and recommendations
50. After many years of exemplary efforts by my Personal Envoy, the
proposed peace plan offers what could be an optimum political
solution to the conflict over Western Sahara, providing the bona
fide residents of Western Sahara, following an appropriate
transitional period, the opportunity to determine their own future,
which, in turn, would promote peace and stability in the region and
would open the way to enhanced exchanges and cooperation between the
countries of the Arab Maghreb Union. By combining elements of the
framework agreement, favoured by Morocco, and the settlement plan,
favoured by the Frente POLISARIO, it represents a fair and balanced
approach, providing each side some, but perhaps not all, of what it
wants. The peace plan, therefore, represents a compromise. And,
unlike the settlement plan, it does not require the consent of both
parties at each and every stage of implementation.
51. The main objection of Morocco to the peace plan seems to be that
in the referendum to determine the final status of Western Sahara,
one of the ballot choices is independence. However, independence is
also one of the two ballot choices under the settlement plan, which
Morocco had accepted.
52. It is difficult to envision a political solution that, as
required by Security Council resolution 1429 (2002), provides for
self-determination but that nevertheless precludes the possibility
of independence as one of several ballot questions. This is
particularly difficult to envision given: (a) the stated commitment
of Morocco to the settlement plan (wherein independence is one of
two ballot choices, the other being integration with Morocco) over
so many years; and (b) the inclusion in the electorate for the
referendum foreseen under the peace plan of all those who have
resided continuously in Western Sahara since 30 December 1999, as
opposed to only those who would be included in the voter list, which
was created on the basis of the work of the Identification
Commission.
53. There is one amendment to the peace plan that might assuage the
concern of Morocco over the ballot for the referendum. This would be
to provide a third ballot choice providing for "continuation of the
division of authority set forth in article III of the peace plan",
in other words, self-government or autonomy. Morocco has for some
time supported the concept of self-government or autonomy as the
solution to the conflict over Western Sahara. My Personal Envoy and
I propose that this third ballot question be included on the ballot
for the referendum on the peace plan. If none of the three ballot
questions obtained a majority of votes, the one receiving the fewest
votes would be eliminated and a run-off referendum would be held to
allow voters to choose between the two remaining questions. If the
third option, selfgovernment or autonomy, prevailed, the electorate
for future elections of the executive and legislative bodies of the
Western Sahara Authority would be the bona fide residents of Western
Sahara over the age of 18.
54. The chief objection of the Frente POLISARIO to the peace plan
seems to be that it is not the settlement plan. The Frente POLISARIO
suggests that the parties revert to the implementation of the
settlement plan, with two new elements: (a) that the Identification
Commission would process all 130,000 appeals, with no requirement
that sheikhs participate, with the Commission's decisions to be
accepted as final; and (b) that a mechanism would be added to
provide for enforcement of the results of the referendum under
Chapter VII of the Charter of the United Nations. However, even with
these two new elements, the settlement plan would still require the
parties' consent at every stage of its implementation. It is
difficult to envision Morocco consenting to the proposal of the
Frente POLISARIO as a way of implementing the settlement plan. As
far as adding a Chapter VII mechanism to enforce the results of the
referendum, it should be recalled that, following my report of
February 2002 (S/2002/178), the Security Council would not choose
any of the four options proposed by my Personal Envoy and me because
both parties would not consent or agree to one of them. It is
therefore quite unlikely that the Council would decide to enforce
the result of the referendum under Chapter VII.
55. The responses of the parties also contain a number of ostensibly
technical objections to the peace plan. However, when taken
together, these objections suggest that the parties still lack the
genuine will required to achieve a political solution to the
conflict.
56. The Security Council should not exclude the possibility that it
may be asked by one or both parties to support a process in which
objections and/or changes to the peace plan would be negotiated
between them, perhaps under the auspices of the United Nations.
However, I do not believe that such an approach would be conducive
to moving forward. Rather, my Personal Envoy and I believe that the
parties should accept the plan as proposed. It should be recalled,
in this connection, that over the six-year period of his involvement
with this issue, my Personal Envoy has convened the parties nine
times in four years in Portugal, the United Kingdom of Great Britain
and Northern Ireland, Germany and the United States of America,
usually with discouraging results.
57. After more than 11 years and an amount of assessed contributions
close to $500 million, it should be acknowledged that the Security
Council is not going to solve the problem of Western Sahara without
asking that one or both of the parties do something they are not
otherwise prepared to do.
58. Pursuant to Security Council resolution 1429 (2002), my Personal
Envoy has now developed a fifth option, "the peace plan for
self-determination of the people of Western Sahara", in addition to
the four that were described in my report of 19 February 2002
(S/2002/178). I recommend that the Council endorse the peace plan.
It combines elements of the draft framework agreement and agreed
elements of the settlement plan. It is fair and balanced and,
following a transitional period of selfgovernment, offers the bona
fide residents of Western Sahara an opportunity to determine their
future for themselves. The four earlier options could, of course,
still be considered, but if the Council is not prepared to revisit
them with a view to making a choice, I recommend that the parties be
asked by the Council to agree to the peace plan and to work with the
United Nations to implement it.
59. I have reluctantly come to the conclusion that unless and until
the parties demonstrate their readiness to assume their own
responsibilities and make the compromises necessary to reach a
successful outcome to the conflict, a fresh initiative to find a
solution to the question of Western Sahara is likely to suffer the
same fate as the earlier ones. Accordingly, I urge the Security
Council to seize this opportunity to address effectively the
long-outstanding issue of Western Sahara by requesting the parties
to agree to the peace plan as amended and to work with the United
Nations in its implementation.
60. If the parties cannot agree on an approach for a political
solution and if the Security Council is not in a position to ask
them to take steps that they do not perceive to be in their own
interest, despite the fact that it may clearly be in the interest of
the population of Western Sahara, the Council may wish to consider
whether it wishes to remain actively seized of this political
process. 61. In order to give the Security Council sufficient time
to reflect on its decision, I propose that the mandate of MINURSO be
extended for two months, until 31 July 2003.
Annex I
Contributions to the United Nations Mission for the Referendum in
Western Sahara as at 10 May 2003
Annex II :
Peace plan for self-determination of the people of Western Sahara
I. Purpose
1. The present peace plan for self-determination of the people of
Western Sahara is an agreement by and between the Kingdom of Morocco
and the Frente POLISARIO (which are the interested parties), joined
by the People's Democratic Republic of Algeria and the Islamic
Republic of Mauritania (which are the neighbouring countries) and
the United Nations. The purpose of the plan is to achieve a
political solution to the conflict in Western Sahara that provides
for selfdetermination, as contemplated in paragraph 1 of Security
Council resolution 1429 (2002), of 30 July 2002. The effective date
of the plan is the date when all interested parties, neighbouring
countries and the United Nations have signed it. The final status of
Western Sahara shall be determined by a referendum conducted in
accordance with part II of the plan. During the period between the
effective date of the plan and the implementation of the results of
the referendum on final status, governmental authority shall be
exercised in Western Sahara in accordance with part III of the plan.
II. Self-determination referendum
2. A referendum to determine the final status of Western Sahara
shall be held no earlier than four and no later than five years
after the effective date of the plan. The options or ballot
questions to be included in the referendum will include: (a) those
previously agreed to in the settlement plan; and (b) any additional
options or ballot questions agreed to by the Kingdom of Morocco and
the Western Sahara Authority (as defined in para. 8 (a) below).
3. A referendum option or ballot question shall be deemed to have
been adopted if it receives more than 50 per cent of the votes cast
in the referendum. If more than two options or ballot questions are
presented and none receives a majority of the votes cast in the
first round, a second round shall be held in which the two options
or ballot questions that received the most votes shall be presented
to the voters.
4. The referendum shall be organized and conducted by the United
Nations and monitored by international observers accredited by the
United Nations.
5. Those eligible to vote in the referendum are those persons who
are at least 18 years of age and: (a) who have been identified as
qualified to vote by the Identification Commission of the United
Nations Mission for the Referendum in Western Sahara (MINURSO), as
reflected on the provisional voter list of 30 December 1999 (without
giving effect to any appeals or other objections); (b) whose names
appear on the repatriation list drawn up by the United Nations High
Commissioner for Refugees (UNHCR) as at 31 October 2000; or (c) who
have resided continuously in Western Sahara since 30 December 1999.
Those eligible to vote shall be determined by the United Nations,
whose decision shall be final and without appeal.
6. The addition to the list of qualified voters of any person whose
name does not appear either on the provisional voter list of 30
December 1999 or on the repatriation list drawn up by UNHCR as at 31
October 2000 can occur only if the status of that person as a
continuous resident of Western Sahara since 30 December 1999 is
supported by testimony from at least three credible persons and/or
credible documentary evidence. The United Nations shall: (a)
determine the credibility and legal sufficiency of all such
testimony and other evidence; and (b) based on that testimony and
other evidence, determine who is (and is not) entitled to be added
to the list of qualified voters under this paragraph. These
determinations by the United Nations shall be final and without
appeal.
7. All interested parties and neighbouring countries agree to accept
and respect the results of the referendum.
III. Authority in Western Sahara
8. Governmental authority in Western Sahara between the effective
date of this plan and such time as a new government shall take
office in implementation of the result of the referendum on final
status shall be as set forth in this plan, and in particular in the
present paragraph: (a) The population of Western Sahara, acting
through the executive, legislative and judicial bodies established
under the plan - herein sometimes referred to as the Western Sahara
Authority - shall be responsible for and have exclusive competence
over local government, the territorial budget, taxation, economic
development, internal security, law enforcement, social welfare,
cultural affairs, education, commerce, transportation, agriculture,
mining, fisheries, industry, environment, housing and urban
development, water and electricity, roads and other basic
infrastructure; (b) Morocco shall be responsible for and have
exclusive competence over foreign relations (including international
agreements and conventions), national security and external defence
(including the determination of borders - maritime, aerial, and
terrestrial - and their protection by all appropriate means), all
matters relating to the production, sale, ownership and use of
weapons and explosives (except for the duly authorized use of
weapons by the law enforcement authorities of the Western Sahara
Authority) and the preservation of territorial integrity against
secessionist attempts, whether from within or outside the Territory,
provided, however, that the right to preserve territorial integrity
shall not authorize any action whatsoever that would prevent,
suppress, or stifle peaceful public debate, discourse or campaign
activity, particularly during any election or referendum period. In
addition, the flag, currency, customs, postal and telecommunication
systems of Morocco shall be the same for Western Sahara. With
respect to all functions described in this subparagraph, Morocco may
appoint representatives to serve it in Western Sahara.
9. The authority of Morocco for the foreign relations of Western
Sahara shall be exercised in consultation with the Western Sahara
Authority on matters that directly affect the interests of Western
Sahara. Morocco may authorize representatives of the Authority to
serve as members of the Kingdom's diplomatic delegations in
international meetings concerned with economic issues and other
issues of direct interest to Western Sahara.
10. The executive authority of the Western Sahara Authority shall be
exercised by a Chief Executive elected by the people of Western
Sahara in accordance with paragraphs 15 to 17 of the present plan.
The Chief Executive may appoint such administrators as may be
necessary to exercise the powers reserved to the Authority by the
plan.
11. The legislative authority of the Western Sahara Authority shall
be exercised by a Legislative Assembly elected by the people of
Western Sahara in accordance with paragraphs 15 to 17 of the present
plan. The Legislative Assembly shall be responsible for the
enactment of all laws applicable in Western Sahara, with the
exception of any relating to the authorities reserved to Morocco
under paragraph 8 (b) above.
12. The judicial authority in Western Sahara shall be vested in a
Supreme Court of Western Sahara and such other lower courts as may
be established by the Western Sahara Authority. Members of the
Supreme Court and lower courts shall be appointed by the Chief
Executive, with the consent of the Legislative Assembly. The Supreme
Court (a) shall have jurisdiction to adjudicate the compatibility of
any law of Western Sahara with this plan (except any relating to the
authorities reserved to Morocco by paragraph 8 (b) above, in which
case the highest court of Morocco shall have that jurisdiction), and
(b) shall be the final authority in interpreting the law of Western
Sahara. The Supreme Court shall have the authority to declare null
and void any law, regulation or other act of the Western Sahara
Authority that contravenes this plan or exceeds the competence of
the Authority, as provided in the plan.
13. All laws, regulations and acts of the Western Sahara Authority
shall be consistent with internationally recognized human rights
standards (including human rights standards in any treaties to which
Morocco is a party). In no event shall human rights in Western
Sahara be protected to a lesser extent than is provided for in the
constitution and laws of Morocco.
14. All laws and regulations now in force in Western Sahara shall
continue in force until they are amended or repealed by action of
the Legislative Assembly and Chief Executive of the Western Sahara
Authority, except any relating to the authorities reserved to
Morocco by paragraph 8 (b) above.
15. The election for the Legislative Assembly and Chief Executive of
the Western Sahara Authority shall be held within one year of the
effective date of this plan. Voters shall vote separately (in a
single election) for the Chief Executive and members of the
Legislative Assembly, who shall hold office for a period of four
years or until governmental authority in Western Sahara is changed
pursuant to the final status referendum. Sole and exclusive
authority over all matters relating to any and all elections and
referendums called for in this plan, including their organization
and conduct, shall be vested in the United Nations.
16. Those eligible to vote in the election for the Legislative
Assembly and Chief Executive of the Western Sahara Authority are
persons who are at least 18 years of age and whose names appear
either on the provisional voter list of 30 December 1999 (without
giving effect to any appeals or other objections) or on the
repatriation list drawn up by UNHCR as at 31 October 2000. Those
eligible to vote shall be determined by the United Nations, whose
decision shall be final and without appeal.
IV. Other matters
17. Campaigns for the election and referendum referred to in this
plan shall be conducted in a manner consistent with international
human rights standards and in keeping with the principles of the
Code of Conduct agreed to by Morocco and the Frente POLISARIO in
1997 (the Houston accords), except where to do so would be
inconsistent with this plan. In particular, the interested parties
agree not to hinder the ability of persons to campaign peacefully
for or against any person standing for election or any option or
ballot question offered to the voters in the referendum on final
status.
18. Neither Morocco nor the Western Sahara Authority may
unilaterally change or abolish the status of Western Sahara, except
for the adoption of such laws as may be necessary to conform to the
results of the referendum on final status. No change to this plan
may be made without the agreement of the King of Morocco and the
Chief Executive and the Legislative Assembly of Western Sahara.
19. Immediately after the effective date of this plan, all political
prisoners and prisoners of war shall be released, and the obligation
of each party in this regard is not dependent upon performance by
the other. The interested parties agree that they shall continue
their full cooperation with relevant international bodies until the
completion of the repatriation process.
20. Within 90 days after the effective date of this plan, the armed
forces of Morocco and the Frente POLISARIO will be reduced,
confined, contained and thereafter maintained in all respects
strictly in accordance with the provisions of the 1997 Houston
accords. This provision is without prejudice to the deployment of
Moroccan armed forces in purely defensive positions pursuant to the
responsibility of Morocco for external defence under paragraph 8 (b)
above or the creation and normal functioning of law enforcement
personnel in Western Sahara under the authority of the Western
Sahara Authority.
21. The United Nations will assist the interested parties, in
particular the Western Sahara Authority, in fulfilling their
responsibilities under this plan. The Security Council undertakes to
amend the name and mandate of MINURSO to enable it to assist in the
implementation of this plan, in particular during the period between
the plan's entry into force and the holding of the election for the
Chief Executive and the Legislative Assembly of the Western Sahara
Authority.
22. The Secretary-General will use his good offices to assist the
interested parties in the implementation of this plan. The
interested parties agree that the Secretary- General shall have the
authority to interpret this plan and that in the event of any
disagreement about the meaning of the plan, the Secretary-General's
interpretation shall be binding on the interested parties.
23. By signing the present document, the interested parties, the
neighbouring countries and the United Nations agree to the terms of
the plan, effective on the date on which all of them have signed the
document.
Kingdom of Morocco
Frente POLISARIO
Democratic Republic of Algeria
Islamic Republic of Mauritania
United Nations
Annex III
Responses of the parties and the neighbouring States to the peace
plan for self-determination of the people of Western Sahara
Note verbale dated 10 March 2003 from the Permanent Mission of
Morocco to the United Nations addressed to the Personal Envoy of the
Secretary-General for Western Sahara
Following the meeting of 14 January 2003 during which you presented
to His Majesty your new proposal on a political solution to the
issue of Western Sahara, and upon instructions of my Government, I
have the honour to forward to you the enclosed document, in English
and French, containing the observations of the Kingdom of Morocco on
the content of the above-mentioned proposal. I avail myself of this
opportunity to pay tribute, on behalf of my Government, to your
tireless and genuine efforts to assist all parties to achieve a
mutually acceptable solution to this dispute.
Observations of the Kingdom of Morocco on the new proposal of James
Baker entitled "peace plan for self-determination of the people of
Western Sahara"
[Original: English and French]
On 14 January 2003, His Majesty King Mohammed VI received the
Personal Envoy of the United Nations Secretary-General, Mr. James
Baker, who provided him with a document entitled, "Peace Plan for
Self-determination of the People of Western Sahara". Mr. Baker
placed his action within the framework of the mission conferred upon
him by the UN Security Council in its Resolution 1429 of 30 July
2002. In paragraph 1 of that resolution, the Council "continues to
support strongly the efforts of the Secretary-General and his
Personal Envoy to find a political solution to this long-standing
dispute, invites the Personal Envoy to pursue these efforts taking
into account the concerns expressed by the parties and expresses its
readiness to consider any approach which provides for
self-determination that may be proposed by the Secretary- General
and the Personal Envoy, consulting, as appropriate, others with
relevant experience".
Mr. Baker expressed his hope that the Kingdom will study this
document and convey to him its views on its content, so that he may
fully satisfy the mission conferred upon him by the Security
Council.
The Kingdom of Morocco has analysed the document provided to it in
great depth and in a constructive spirit. In consequence, it has
drawn up the following observations: It must be recalled, from the
outset, that Morocco has unceasingly sought a peaceful resolution of
the dispute relating to Western Sahara within the framework of
international legality. Accordingly, co-operation with MINURSO has
been exemplary, and it has been provided with all the facilities for
and means of accomplishing its responsibilities in the best of
conditions. Since the cease-fire came into effect on 6 September
1991, peace has been maintained in the region and its inhabitants go
about their daily business normally. Morocco recognises the value of
the considerable efforts by MINURSO to maintain peace in the Maghreb
region.
However, the other aspect of the peace plan, the referendum
proposal, such as it was originally envisaged, has proven to be
inapplicable as the years pass and has thus been rendered lapsed. As
early as the London meeting of 14 May 2000, the Secretary-General's
Personal Envoy requested the parties "to consider others ways of
achieving an early, durable and agreed resolution of their dispute"
(paragraph 28 of Report S/2000/461, 22 May 2000). He went on to
emphasise the need for the parties to "depart from the winnertake-
all mentality" and "to discuss any possible political solutions in
which each could get some, but not all, of what it wanted and allow
the other side to do the same" (paragraph 30 of Report S/2002/178,
19 February 2002).
While calling on the parties to continue their direct talks, the
Security Council also requested them "to try to agree upon a
mutually acceptable political solution to their dispute over Western
Sahara" (Resolution 1309, 26 July 2000).
During the following meeting organised between the parties in
Berlin, from 28 to 29 September 2000, the Kingdom of Morocco
responded positively to the request of the Personal Envoy and the
recommendation of the Security Council, by agreeing to commit itself
in the search for a political solution.
At that time, the Moroccan delegation insisted, for the sake of
clarity, on specifying the extent of its commitment to a "lasting
and definitive solution, that would take account of Morocco's
sovereignty and territorial integrity, and the specifics of the
region, in compliance with the democratic and decentralization
principles that Morocco wished to develop and apply, beginning with
the Sahara region" (paragraph 15 of Report S/2000/1029, 25 October
2000).
Morocco wishes to solemnly reaffirm its willingness to co-operate
with the Security Council, the Secretary-General and his Personal
Envoy in order to progress towards a political solution. Of course,
this requires a compromise solution which diverges from the
preceding approach set out in the Settlement Plan, which envisaged a
referendum presenting the sole options of integration or
independence, thus leaving, in the final analysis, a winner and a
loser.
Whereas the Council required the Personal Envoy to propose a
political solution providing for self-determination, international
practice clearly shows that democratic consultation concerning the
status of a territory, as negotiated between the parties, is a valid
means of allowing a population to achieve self-determination. This
practice is based on General Assembly Resolution 1541 (XV) of
December 15th, 1960 and on the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations,
annexed to General Assembly Resolution 2625 (XXV) of 24th October
1970, which, states that the options of independence, association or
integration, as well as "the emergence into any other political
status freely determined by a people constitute modes of
implementing the right of self-determination by that people".
Indeed, many disputes throughout the world, since the Aaland Island
case in 1920, under the League of Nations auspices (Report of the
International Committee of Jurists to the League of Nations Council,
LNOJ Sp.Supp. no.3 [1920], 5 September 1920, at 286), have been
resolved by the granting of autonomous status within the existing
State structure. Negotiation remains the privileged means for the
parties to adapt this autonomy to their aims and to regional
characteristics. The attainment of such self-determination would
fall squarely within the democratic, decentralised nature of the
Moroccan State as a whole. In addition, it is the best guaranty of
respect for the fundamental human rights recognised by the Moroccan
Constitution and upheld by the international commitments of the
Kingdom.
It was in this context that, according to its final provisions, the
"Framework Agreement on the Status of Western Sahara" proposed by
the Personal Envoy in June 2001 was to be submitted according to its
final provision to popular approval by referendum (Annex I to Report
S/2001/613, 20 June 2001).
In accordance with its firm commitment to a political solution of
the dispute, Morocco had accepted this agreement as the basis for
negotiations. It should be recalled, however, that even before
initiating the Framework Agreement, the Personal Envoy expressed his
belief that "substantial progress has been made towards determining
whether the Government of Morocco as the administrative power in
Western Sahara is prepared to offer or support some devolution of
authority for all inhabitants and former inhabitants of the
territory that is genuine, substantial and in keeping with
international norms" (paragraph 19 of Report S/2001/398, 24 April
2001).
It is in this spirit that the Council has taken into consideration
the Framework Agreement which "would provide for a substantial
devolution of authority, which does not foreclose
self-determination, and which indeed provides for it" (Resolution
1359, 29 June 2001).
The search for a political solution, or the so-called "third way",
was based, from the outset, on devolution by the Kingdom of Morocco
of strictly enumerated legal powers to a decentralised authority,
thus allowing it to manage its own local affairs.
The Kingdom appreciates the unceasing, and commendable efforts by
the Personal Envoy to satisfy the determination of the Security
Council "to assist the parties to achieve a just, lasting and
mutually acceptable political solution, which would be of benefit to
the Maghreb region" (Resolution 1429, 30 July 2002).
However, to ensure the success of these efforts, it would be
desirable to avoid any confusion between this political solution, or
"third way", and the Settlement Plan. Morocco made its position
perfectly clear on this subject during the discussions between the
members of the Security Council preceding the adoption of Resolution
1429 on 30 July 2002. Indeed, when an amendment was presented
requiring the political solution to be drawn from a mixture of the
Framework Agreement and the Settlement Plan, Morocco sent a letter
to the President of the Security Council pointing out that, "To the
extent that it sets out to amalgamate two irreconcilable options,
this approach is doomed to failure" (Letter S/2002/832, 25 July
2002). The Council did not include this amendment when adopting the
final formulation of Resolution 1429 of 30 July 2002. Morocco, which
fully supports the efforts of the Personal Envoy, insists however,
on reestablishing the initial architecture of the political
solution: a viable alternative to the options set out in the
Settlement Plan.
It is only on the basis of a sound and unambiguous understanding of
the political solution, as it emerges from United Nations practice,
that the success of the resolution of the dispute concerning the
Sahara may be ensured.
For these reasons, its may be premature to proceed to a detailed
analysis of the Personnel Envoy's propositions as long as no
agreement has been reached on the exact nature of the political
solution and the appropriate procedure for its implementation.
However, we deem it necessary to do so in order to further the
advent of a negotiated political solution.
In the light of these considerations concerning the global approach,
we will now review, successively, the provisions of the proposed
document.
1- The title of the document, "Peace Plan for Self-determination of
the People of Western Sahara", is limited to only one element of the
mandate set out in Resolution 1429, while overlooking the search for
the political solution which gives sense to selfdetermination in the
present case. As for the expression "peace plan", it does not seem
appropriate for the abovementioned reasons. According to the
document, its signature by Morocco, Polisario, Algeria, Mauritania
and the United Nations are the sufficient and necessary condition
for its entry into force. Nevertheless, given the nature, the scope
and the implications of this agreement, it would be preferable to
stipulate that it will only come into force after the fulfilment by
the signatories of all procedures required by their respective legal
systems. The Kingdom of Morocco, for its part, is bound to respect
Article 31 of its Constitution, under which, "Treaties likely to
affect the provisions of the Constitution shall be approved in
accordance with the procedures prescribed for its modification ".
This is clearly the case for the proposed document, which involves
substantial modifications to the status of the country's Southern
provinces.
It should also be noted that Algeria is described in the proposed
plan as a neighbouring country, although it was referred to as a
party to the dispute in the Secretary-General's Report of 20 June
2001 (S/2001/613) and the annexed Framework Agreement.
2- If the aim of this plan is to achieve "a political solution which
provides for selfdetermination", it is surprising to find that
priority is given to the self-determination referendum, when it
would have been logical to set out the underlying political solution
first.
3- At the outset, it is stated that the choices available for the
referendum will be those set out in the Settlement Plan, the parties
being free to add other options.
One may wonder about the interest of establishing a complex
political solution over some years only to find oneself, at the end
of the day (very close, 4 or 5 years), back in the setting of the
Settlement Plan that led to the current impasse. The dangers in such
a scheme are clear. Indeed, the aim of the political solution is to
favour rapprochement and conciliation at a time when the perspective
of a confrontation, in a near future, over two completely opposed
choices, risks compromising the establishment of the proposed local
authority from the very start.
If the political solution consists, as we have reiterated, of
substantial delegation of powers to a local authority, it should
have been left to the partners (local and central authorities), at
the very least, to determine, at the appropriate time, the details
of the democratic consultation of the population.
In fact, once the parties are in agreement concerning such political
solution, the agreement could be immediately submitted to the
population of the territory for approval or rejection. Such approval
would lead to direct implementation of the status of the territory,
with all the appropriate international guaranties, whereas, the
unlikely situation of rejection would mean returning to the
negotiation table.
4- It is envisaged that the referendum will be organised by the
United Nations and monitored by international observers accredited
by the Organization. Just as it has always agreed, Morocco is
prepared to co-operate closely with the United Nations for the
success of the political solution. However, the conditions for
intervention by the World body should be more clearly specified,
including the relationship it would establish with the Kingdom of
Morocco.
5- According to the document, those eligible to vote in the
referendum will be composed of three categories:
a- persons identified by MINURSO and included in the provisional
voter list of 30 December 1999, without giving effect to any appeals
or the need to update the list for persons who now satisfy the
criteria, but who were not yet 18 years old in December 1999.
b- persons included in the repatriation list drawn up by the UNHCR
as at 31 October 2000. The Kingdom of Morocco wishes to note that it
is difficult to make any pronouncement concerning the contents of a
list of which it has received no official notification from the
UNHCR.
According to unofficial sources, this list was established on the
basis of testimony by persons identified by MINURSO (provisional
list of 1999) about members of their families. If this were so, the
list would not have sufficient legal value to be used in determining
the electorate, in the absence of a census duly undertaken by the
UNHCR, which the Kingdom of Morocco has been requesting constantly
for years. Moreover, as this system would provide an updated MINURSO
identification list for the children of those identified persons who
are in Tindouf, it would discriminate against the identified persons
who are in the Sahara.
c- Persons who have resided continuously in Western Sahara since 30
December 1999. The aim of this provision is to cover persons who
were living in the Sahara on 30 December 1999 and who have continued
to do so since then. Morocco considers that it is fair, just and in
compliance with democratic practice for all residents to have the
right to participate in the proposed consultation. It may, however,
appear arbitrary to fix the list of residents at 30 December 1999.
Finally, it is proposed that the electoral list will be determined
by the United Nations finally and without appeal. While the Kingdom
has confidence in the World body, it does, however, wish to recall
that the conditions regulating the identification of voters must be
clearly specified and protected by all possible guarantees of
impartiality.
6- Whereas the document does not require any verification of the
validity of the UNHCR repatriation list, which appears to have been
established very approximately, it provides that residents as at 30
December 1999 shall only be allowed to vote if they are supported by
testimony from at least three credible persons and/or credible
documentary evidence. It would be for the United Nations to
determine the credibility and legal sufficiency of such evidence,
when finalizing the electoral list. While Morocco reiterates its
total confidence in the World body, it remains unclear how the
Organization intends to make definitive decisions concerning the
validity of official documentation relating to resident status in
the Southern provinces.
7- To the extent that the conditions for a democratic consultation
allowing the population to decide on the commonly agreed upon
autonomous status have been satisfied, Morocco will fully respect
the results in accordance with its traditions and convictions.
8- The provisions of the plan are intended to cover all government
authority in Western Sahara from the date of its entry into force
until a new "government" is formed in accordance with the results of
the referendum. From a purely technical viewpoint, one may wonder
whether this does not create a legal vacuum or lacuna, given that
the election of the institutions of the local authority must be
achieved in the year following the effective date of the plan. What
would happen to the administration of the territory and the very
complex institutions which are in charge of it between the effective
date of the plan and the election of the assembly and executive?
Furthermore, as the election of these new institutions cannot take
place in a legal vacuum, a transitional period will be needed to
ensure smooth passage from one system to the other and avoid any
discontinuation in the operation of those public services which are
essential to the daily life of the population.
The document globally follows the power-sharing between the
Kingdom's central authorities and the local authority for Western
Sahara proposed in the Framework Agreement. However, some of the
exceptions that have been introduced could raise difficulties. In
particular, as regards the prohibition of secessionist activities,
it is proposed to make an exception for speeches and declarations
during the election period. This means that Morocco could be
confronted with a propaganda campaign in favour of secession right
from the election of the territory's assembly and executive, without
being able to forbid activities susceptible to endanger State
security and the maintenance of order. The other exception, relating
to the use of arms by the local authority in law enforcement, would
have to be carefully defined in order to avoid any misuse
endangering the security of the country.
9- Under the terms of the document, the power of the Kingdom of
Morocco in respect of "the foreign relations of Western Sahara" will
be exercised in consultation with the Western Sahara authority, for
all questions that directly affect that territory. It is also
proposed that the Kingdom may authorise representatives of the local
authority to join diplomatic delegations participating in
international meetings relating to economic issues and other issues
of direct interest to Western Sahara. Indeed, the representatives of
a local authority may participate in such delegations, and
consultations with the local authority may be envisaged when the
latter is directly concerned by a particular area of the country's
foreign relations. Nevertheless, the Kingdom retains exclusive
responsibility for those foreign relations and, accordingly, the
expression "foreign relations of Western Sahara" appearing in the
document, does not seem appropriate.
10- While the Framework Agreement provided for a collegiate
executive body, the proposed document confers executive power on a
single person chosen directly by the population, which is likely to
raise some problems for that person's relations with the assembly,
the majority of which could be of an opposing political persuasion.
It is precisely in order to avoid this sort of conflictual,
paralysing situation that representative systems provide for the
executive to emanate from the majority in the assembly.
11- The "legislative" assembly, the number of members of and
electoral system for which are not specified, will be responsible
for the enactment of all laws applicable in Western Sahara, with the
exception of laws enacted under the powers reserved to the Kingdom
according to paragraph 8B of the plan. The document thus opts for a
subsidiarity principle in favour of the local authority (all powers
that are not attributed to the Kingdom would be exercised by this
authority).
In so doing, the document inverts the entire logic underlying the
search for a political solution by the United Nations which, as
noted above, involved the Kingdom delegating some powers to the
local authority. Consequently, the political solution was based on
the postulate that all powers which were not attributed to the local
authority remained within the competence of the central authorities.
Clearly the subsidiarity principle must take its point of departure
from the delegating entity, that is the Kingdom of Morocco, which
retains all powers that it has not conceded to a local delegated
authority. It should also be noted, in this respect, that the
document does not set out the relation between the head of the
executive power and the territory's "legislative" assembly, whether
it be a question of their powers or their responsibilities.
Unfortunately, this flaw makes it impossible to understand the exact
mode of operation of the local authority.
12- The document places the judicial power in the context of an
advanced federal model. This certainly has advantages in countries
with a federal tradition, but it is difficult to apply in Morocco, a
country whose judicial system is unified and centralised. The
document provides for a Supreme Court of Western Sahara and lower
courts, the judges of which are to be appointed by the chief
executive, with the consent of the assembly.
Yet the Moroccan legal system is under the hierarchical control of a
sole Supreme Court, which is the highest level for review of the
uniform application of the law by other courts. Furthermore, justice
is meted out in the name of His Majesty the King, as Protector of
the rights and liberties of citizens under Article 19 of the
Moroccan Constitution. He appoints judges, in consultation with the
Superior Council of Magistracy, the constitutional guarantor of
their independence.
Thus, the very existence of a Supreme Court of the local authority
is difficult to reconcile with the Moroccan judicial system.
Moreover, the document proposes that the Supreme Court be invested
with jurisdiction to adjudicate the compatibility of any "law of
Western Sahara" with the plan. Given that the judges sitting on this
Court are to be designated by the executive and legislative powers
of the territory, one may question the degree of independence the
Court will have, in practice, to sanction any attempt by the local
authority to exceed its jurisdiction.
While it is true that the Supreme Court of the Kingdom plays the
same role with regard to the powers of the central authorities, this
only concerns sovereign prerogatives with respect to which there is
not a great deal of legislative activity. In reality, the competence
to resolve conflicts concerning power-sharing should be retained by
the Supreme Court of the country, as guarantor of the unified
interpretation and application of Moroccan law. Moreover, the system
proposed in the document leaves aside the question of jointly held
powers (taxation, finance, security and the use of arms, for
example), for which one can not conceive that two Courts could have
jurisdiction to adjudicate these subjects. In sum, it is difficult
to imagine introducing such disparities into the administration of
justice within the Kingdom.
13- According to the proposed document, all laws, regulations and
acts of the local authority must be consistent with internationally
recognised human rights standards, including those set out in
treaties to which the Kingdom is a party. The plan adds that the
protection of human rights in Western Sahara should not be inferior
to the standards set out in the Constitution and laws of Morocco.
While one can only rejoice at the introduction of such a precaution
in the document, to prevent any abuses by the local authority in the
field of fundamental human rights, it would have been preferable to
include guarantees and to grant full powers to the Kingdom's
judicial system to ensure respect for these rights.
14- It is entirely reasonable to provide for the country's existing
laws and regulations to remain in force until action is taken with
respect to them by the local authority, with the exception of the
reserved powers of the Kingdom. However, it must be noted, yet
again, that such an approach places the document in a logic of
subsidiarity in favour of the local authority, which is incompatible
with both United Nations practice concerning political solutions and
the fundamental constitutional principles of the Kingdom, as
explained above.
15- The election of the assembly and the executive must take place
within one year of the effective date of the plan, which raises the
question, already discussed, of managing the transitional period and
the establishment of new institutions. Furthermore, it is proposed
that the United Nations will have sole and exclusive authority for
the conduct of the elections and referendum. Yet, of necessity, the
Organization will have to rely on the Kingdom's institutions, in
order to fulfil this responsibility.
16- The election of the local authority's chief executive and
assembly are to be entrusted to a limited group of voters: those who
are on the provisional voter list of 30 December 1999 or the
repatriation list drawn up by the UNHCR as at 31 October 2000
(subject to the questions previously raised concerning the latter
list). In any case, a minority of the population is thus to elect a
local authority which will administer the majority. This would
create an anti-democratic situation in contradiction with the same
fundamental human rights that the document requires to be fully
respected. Serious problems will result from this, perhaps even
leading to confrontation between two parts of the population: those
who have elected the executive and legislative bodies and those who
have been excluded from the electoral process.
Furthermore, the tribal structure and resulting solidarity of the
territory's population cannot be ignored. It is inconceivable,
therefore, that the chosen electoral system should result in the
domination of one tribe by the others, the exclusion of one of them,
or even a fraction of a tribe.
17- By providing that the electoral campaign must be conducted in
compliance with international human rights standards, the document
echoes the requirements of the Moroccan Constitution. It would be
desirable, however, for judicial guarantees to be established, in
particular by providing for recourse to those Moroccan courts having
jurisdiction over electoral conflicts.
18- The document provides that the status of the territory cannot be
changed unilaterally. However, it is hard to understand the proposed
procedure for change of that status, requiring an agreement between
the King of Morocco, the chief executive and the legislative
assembly, as this places the country's Sovereign on the same level
as the local institutions.
19- The document calls for the release of all prisoners of war and
political prisoners immediately after the effective date of the
plan. This provision is contrary to international humanitarian law,
which requires the release of prisoners of war immediately after the
cease-fire (i.e. since 1991). In addition, in paragraph 5 of
Resolution 1429 of the 30 July 2002, the Security Council called
upon Polisario to release without further delay all remaining
prisoners of war. International humanitarian law and United Nations
practice require the dissociation of the humanitarian aspects of a
dispute or conflict from its political solution. For all these
reasons, the document should simply recall the need to respect
scrupulously, and at all times, the peremptory norms of humanitarian
law.
20- The document provides for the cantonment of all troops 90 days
after its entry into force, with the sole exception of the
deployment of those Moroccan armed forces necessary to ensure the
external defence of the territory. We wonder if it is not more
appropriate to link such cantonment to the establishment and
operation of the local authorities so as to guarantee the
maintenance of order and security during the transitional period.
21- Morocco is prepared to co-operate with the United Nations for
the implementation of the political solution to be agreed, when the
time comes.
22- The Kingdom considers that the offer of good offices by the
Secretary-General is most welcome to assist the parties in
implementing the plan. However, the document states that the
Secretary-General would also have binding authority to interpret the
plan, finally and without appeal. The latter provision raises
difficulties both in principle and at the technical level. Indeed,
the Secretary-General, who will be a party to the agreement and
involved in its implementation, would also be called on to interpret
it, which would place him in the delicate, untenable position of
being both judge and party. It should also be noted that an
interpretative role has been granted to the local and central
supreme courts, in charge of reviewing laws with respect to the
power-sharing proposed in the plan; this seems to be in
contradiction with the functions assumed by the Secretary-General in
this matter.
In conclusion, the Kingdom of Morocco warmly appreciates the
laudable efforts by the Secretary-General and his Personal Envoy to
assist the parties in achieving a political solution, and wishes to
express its gratitude to both of them for all their efforts intended
to bring the States of the Maghreb region closer together, thus
enhancing their stability and progress towards unity.
The Kingdom reiterates its commitment to dialogue and negotiation,
as a means of finding a peaceful and lasting solution to the dispute
concerning the Sahara which fully respects the territorial integrity
of the States of the Maghreb region and complies with international
legality.
Letter dated 8 March 2003 from the Secretary-General of the Frente
POLISARIO to the Secretary-General of the United Nations
[Original: French]
I had the honour to receive, on 16 January 2003, your Personal
Envoy, Mr. James Baker III, who transmitted to me a proposal for a
solution entitled "Peace Plan for self-determination for the people
of Western Sahara", with a view to putting an end to the
decolonization conflict which, for more than 27 years, has pitted
the Saharan people against the Kingdom of Morocco.
The Frente POLISARIO, which expresses its appreciation to the United
Nations, its Secretary-General and his Personal Envoy, has
considered this proposal carefully. I have entrusted Mr. Mhamed
Khadad, the Saharan Coordinator with the United Nations Mission for
the Referendum in Western Sahara (MINURSO), with the task of
transmitting to you our reply to this proposal. I should be grateful
if you would bring the full contents of this reply to the attention
of the members of the Security Council at such time as you find
convenient.
I wish to assure you of our determination to continue to cooperate
with you and your Personal Envoy for the culmination of your efforts
to arrive at a just and final solution to the conflict over Western
Sahara.
(Signed) Mohamed Abdelaziz
Secretary-General of the Frente POLISARIO
On 16 January 2003, the Frente POLISARIO had the pleasure to receive
Mr. James Baker III, Personal Envoy of the Secretary-General of the
United Nations, who presented to it a settlement proposal entitled
"Peace Plan for selfdetermination for the people of Western Sahara",
in which he requested a reply from each of the two parties to the
conflict over Western Sahara. The present document contains the
reaction of the Frente POLISARIO to this proposal.
The Frente POLISARIO wishes first of all to thank the Personal Envoy
of the Secretary-General of the United Nations for the patience and
perseverance he has shown in investing his personal credit and
talent in the efforts to arrive at a just and final settlement of
the long and grievous conflict over Western Sahara by the only legal
and just path with regard to decolonization, namely the Saharan
people's exercise of its exclusive right to self-determination
through a free and properly conducted referendum organized and
monitored by the United Nations.
Similarly, the Frente POLISARIO wishes to give due credit to Mr.
James Baker III, recalling that his input and efforts made it
possible, within the framework of negotiations conducted with the
two parties to the conflict at Lisbon, London and Houston, in 1997,
to resolve all pending issues for the implementation of the United
Nations Plan. The Houston agreements incorporated all these final
measures that were worked out and unreservedly accepted by the
Kingdom of Morocco and the Frente POLISARIO. The detailed
Implementation Plan, finalized and submitted by the
Secretary-General of the United Nations to the Security Council on
13 November 1997, envisaging the holding of the referendum on 7
December 1998, constitutes a further solemn confirmation of this,
sealed with the authority of the Security Council.
This gratitude expressed to the Personal Envoy and this
recapitulation indicate clearly the obstacles raised on the path
towards a settlement of the conflict over Western Sahara. They also
show the responsibility and duplicity of the Kingdom of Morocco. All
that brings the fore the continuing volte-face of the occupying
Power in Western Sahara, conduct which the Organization of African
Unity (OAU), and then the United Nations, have had to suffer
constantly, to the detriment of international law and to the
detriment of their own credit.
OAU and the United Nations can also testify that Frente POLISARIO,
which speaks for martyrs, exiles and Saharans faced with unspeakable
suffering inside their occupied country and for a just cause, has
unceasingly over the decades made successive compromises with the
aim of ensuring the exercise of a fundamental right, the Saharan
people's right to self-determination. These compromises began with
the acceptance of, and faithful respect for, the ceasefire that came
into force on 6 September 1991, in spite of the fact that this halt
to the fighting was an integral element of the Settlement Plan that
Morocco is constantly impeding and even challenging. What became of
it? Morocco itself gives the reply: Its invasion of Western Sahara
in 1975, with a savagery and barbarity unprecedented against an
unarmed civilian population, its obstinacy and illegality, its
expansionism and its will to gain recognition for the fait accompli
of the occupation of Western Sahara. That is not a question of
polemics but of stands that have been taken by the Kingdom of
Morocco and for which it must be held accountable. It is Morocco
that alleges that "the international community has finally
recognized its rights to the Sahara". It is Morocco that maintains
that "the referendum is null and void". It is Morocco that, in
short, states that it will not accept any solution to this
decolonization conflict "that does not respect its territorial
integrity and national sovereignty".
By recalling all this, the Frente POLISARIO is not indulging in
statements that might be perceived as inappropriate in response to a
proposal submitted to it with peace as the goal. It simply seeks to
place that proposal in its essential context: that of an illegal
occupation inasmuch as Morocco, which has never given its word on
the subject except to retract it subsequently, producing only
obstacles and complications.
The Frente POLISARIO sees clearly that, since November 1999, the
United Nations has been trying to counter Moroccan duplicity with
the search for a "political solution", the ultimate step of which is
still the referendum on selfdetermination, while confirming the
validity of the settlement plan and acknowledging the difficulties
still encompassing its implementation.
The Saharan people and the Frente POLISARIO, which speaks on its
behalf, believe that they are entitled to expect of the United
Nations that the necessary and adequate conditions and guarantees be
provided to ensure that the triumph of the right of peoples to
self-determination is safeguarded, in Western Sahara, against new
Moroccan volte-face and that the return of the Saharan people to its
Territory to exercise its right to self-determination is not a
gathering to endorse, through its own participation, the integration
of its country in the occupying Power, or, even less, a return of
its repression, massacre and suffocation.
Taking all these factors into consideration, the Frente POLISARIO
has considered carefully the proposal of Mr. James Baker III based
on Security Council resolution 1429 (2002) of 30 July 2002. In the
course of this careful consideration, Frente POLISARIO has noted
that the Personal Envoy has endeavoured to take account of some of
the "concerns expressed by the parties". However, it has also sought
to analyse the proposal in the light of the volte-face and obstacles
that the Kingdom of Morocco has already placed in the way of
previous plans and agreements after duly accepting them.
Accordingly, Frente POLISARIO wishes to make the following remarks
and comments on Mr. James Baker III's proposal entitled "Peace Plan
for selfdetermination for the people of Western Sahara".
1. It is provided (para. 15) that: "The election for the Legislative
Assembly and Chief Executive of WSA [Western Sahara Authority] shall
be held within one year of the effective date of this Plan".
However, the concept of this one-year period is encompassed with
solemn and weighty silences, except for some brief indications
regarding the issues of prisoners, the troops of the two parties and
refugees (paras. 19, 20 and 21).
Need it be recalled that this period is supposed to see the return
of the Saharan refugees to the Territory? Need it be recalled also
that the United Nations is supposed to exercise its exclusive
authority in the election of WSA? Lastly, need it be recalled that
the Settlement Plan, supplemented by the Houston agreements and
translated into detailed measures by the Secretary-General on 13
November 1997, defines clearly and precisely the body of provisions
that should govern the transition period.
Accordingly, through these solemn silences regarding the one-year
period preceding the election of WSA, there is a risk that the
proposal might &emdash; quite contrary to the will of its author
&emdash; set a real trap for Saharan refugees on return to their
illegally occupied country.
Without adequate guarantees and protection from the United Nations,
through, inter alia, the engagement of its own authority in the
occupied Territory, many previous experiences (such as Rwanda and
Timor) confirm in advance that the above-mentioned one-year period
will be the occasion of a mass repression of Saharans and a blemish
on the name of the United Nations itself. Moreover, the Moroccan
repression to which Saharans in the occupied part of the Territory
continue to be subjected, in spite of the presence of MINURSO since
1991, is a further proof of the serious dangers ahead.
2. With regard to the release of political prisoners and prisoners
of war (para. 19), the proposal omits to raise the question of the
responsibility of either party should it evade its obligations. We
are all aware that Morocco persists in refusing to provide any
information to the International Committee of the Red Cross
regarding the fate of the Saharans held in its jails. Does that mean
that the United Nations thereby intends to forget those detainees
and prisoners and to release the occupier from its serious
responsibilities in this regard?
3. With regard to the repatriation of refugees (para. 19), the
proposal restricts itself to stipulating that: "The interested
parties agree that they shall continue their full cooperation with
relevant international bodies until the completion of the
repatriation process". However, by undertaking to assume full
responsibility for the referendum, the United Nations undertakes to
assume primary responsibility for the protection and security of,
and assistance to, refugees. That was formally agreed and specified
in the Settlement Plan, with the agreement of the two parties. The
relevant provisions were set forth in paragraphs 22 to 28 of the
detailed Plan submitted by the Secretary-General to the Security
Council (report contained in document S/1997/882). Renouncing those
provisions or even ignoring them would mean exposing the refugees to
serious danger upon repatriation without protection and during
resettlement without security guaranteed by MINURSO and without the
anticipated assistance from the United Nations High Commissioner for
Refugees.
4. With regard to the provisions applicable to the troops of the two
parties (para. 20), the proposal provides that these would be the
measures to reduce, confine and contain them envisaged in the
Settlement Plan, as supplemented by the Houston agreements. This
gives rise to some major questions, including the following:
(a) Does this mean that the 65,000 Moroccan troops intended, under
the Settlement Plan, to be kept contained and monitored by MINURSO
(for a period of six months prior to the referendum) would
henceforth be scheduled to remain in Western Sahara for more than
four years? Logic and fairness would demand that almost all of these
65,000 men be withdrawn from Western Sahara in order to remove a
serious threat;
(b) Does this mean that the United Nations intends at the very least
to maintain the military unit of MINURSO in its entirety (almost
2,000 men) in Western Sahara for almost four years so that it can
ensure observance of the containment and monitoring provisions
already agreed on in the Settlement Plan and accepted by the two
parties?
In fact, the very logic of the proposal which (para. 8) provides for
the powers of WSA in the context of the exercise of "governmental
authority", must lead to the withdrawal of practically all of the
Moroccan troops still in Western Sahara upon the establishment of
WSA.
5. With regard to MINURSO, paragraph 21 of the Plan provides for
amending its name and mandate "to enable it to assist in
implementation of this Plan, in particular during the period between
the Plan's entry into force and the holding of the election of WSA".
This statement gives considerable cause for concern, because it
would appear to indicate the abdication by the United Nations of its
responsibilities in the Territory for a period of four years, thus
setting the stage for a potentially lethal confrontation between
Western Saharans and the Moroccan occupier.
It bears recalling at this point that, in accordance with its own
Charter, the United Nations remains committed to the
non-self-governing Territory of Western Sahara. Moreover, the mere
fact that the proposal itself outlines a process the final phase of
which is a referendum exclusively organized and monitored by the
United Nations to determine the final status of the Territory,
should in all logic require the presence of the Special
Representative and MINURSO under the mandates given to them by the
Settlement Plan supplemented by the Houston agreements, mandates
that provide not only for the prevention of any escalation of the
conflict and derailment of the plan, but also, and more importantly,
for the continuing protection of the population of the Western
Sahara until the implementation of the final result of the
referendum.
6. After the WSA election, the proposal provides for another period
of transition of no less than three and no longer than four years.
The evidence at hand raises a concern as to why the reasons for this
inordinately long period are not specified.
7. The arrangements envisaged for this three- or four-year period
are based on two legally inadmissible postulates. Indeed, Morocco is
an occupying Power in the Western Sahara and not an administering
power. Its sovereignty over the Territory is not recognized and the
proposal itself confirms this, since its aim is to hold elections on
the final status of the Territory. Consequently:
(a) Morocco cannot be responsible for the foreign relations of a
territory over which the international community has never
recognized its sovereignty;
(b) The occupying Power cannot conclude agreements or conventions
that are binding on the Western Sahara or involve its resources, as
confirmed by the Legal Counsel of the United Nations in his opinion
of 29 January 2002;
(c) Nor can Morocco determine the international borders of the
Western Sahara established by treaties signed between Spain, the
administering Power in the Western Sahara, and France, then
administering Power in Algeria, Mauritania and Morocco, neighbouring
countries of the Western Sahara, and deposited with the United
Nations.
8. The proposal intends to confer on WSA powers to exercise
governmental authority over the territory of the Western Sahara. It
therefore leads to the establishment, by the Western Sahara
Authority, of an appropriate administration. This therefore
presupposes the dismantling of the occupying administration in all
areas that fall under the remit of WSA. This
dismantling/establishment exercise should proceed peacefully and in
accordance with the agreement that is supposed to have been signed.
It also follows that MINURSO and the Special Representative should
supervise the transition. Lastly, the foregoing also implies the
transfer to WSA of the power to issue titles and documents such as
deeds for state ownership, residence and settlement permits,
civil-status documents and decisions.
9. The proposal also confers on WSA competence over taxation and
economic development, including mining and fisheries. This implies
halting the plunder by the Moroccan occupying Power of the natural
resources (phosphates and fisheries) of Western Sahara and ensuring
that such resources belong exclusively to the Territory and its
people, yet the proposal does not make any specific provision to
that end.
10. Similarly, since WSA is considered to have competence over
education and culture, that should imply that it has the right to
teach the languages it wants, to guarantee the freedom of worship
and to lay down principles governing society and the institutions,
including the right to do justice on behalf of the people.
11. The proposal also confers on WSA competence over internal
security and the maintenance of law and order. In some cases, such
as the fight against transnational crime, drug trafficking,
money-laundering or terrorism, competence over internal security
should lead to cooperation at the international level between the
WSA police and the police forces of other states or bodies (such as
Interpol). However, in this regard, the exclusive competence over
foreign relations that the proposal intends to confer on Morocco
would be a serious obstacle.
12. The proposal confers on Morocco, the occupier, jurisdiction that
is at times vague. Thus, at this stage, nothing prevents Morocco
from claiming the right to draft Saharans into the ranks of its army
of occupation, a situation whose ludicrousness is there for all to
see.
13. The proposal intends to grant to Morocco the right to conserve
the trappings of its sovereignty over the Western Sahara, including
the flag, currency and stamps. Such a situation would have been
conceivable within the framework of specific autonomy agreed under a
sovereign State. However, it is inconceivable in non-autonomous,
illegally occupied Western Sahara for which the proposal itself
suggests a solution aimed at deciding on the final status of the
Territory. Accepting the Moroccan flag, currency and stamps in the
Western Sahara is tantamount to giving in to the colonizer's claim
that it has sovereignty over the Territory.
14. By deeming it necessary to make Morocco responsible for customs
in the Western Sahara, the proposal would seriously call into
question the economic powers of WSA. Indeed, such situation would
have an advance impact in terms of restrictions on imports and
exports and the diversion of customs revenues and duties to the
detriment of the Western Saharan economy.
15. By envisaging granting to Morocco (whose police practices are
well known) the administration of posts and telecommunications, the
proposal threatens respect for the universal principle of freedom
and the privacy of communications and correspondence. This would be
tantamount to calling basic human rights into question, to the
detriment of Saharans.
16. The proposal has remained silent on the free movement of goods
and persons to and from the Western Sahara. This proposal calls into
question the universal principle of freedom of movement, which is
also contained in the Settlement Plan and the Houston agreements.
Furthermore, the powers envisaged by Morocco with regard to
combating any secessionist attempts would undoubtedly result in the
people of Western Sahara being locked up in a ghetto of oppression.
17. The proposal fails to stipulate the right of foreigners,
especially nongovernmental organizations and the media, to have free
access to the Western Sahara. Moreover, making the occupier,
Morocco, responsible for the Territory's external security would
result in granting it the right to censure the entry of foreigners
into the Western Sahara. That is why the proposal should have
granted only to the services of the United Nations the power to
issue entry visas into the Territory.
18. The proposal intends to give Morocco exclusive competence over
"all matters relating to the production, sale, ownership, or use of
weapons or explosives". That is a "legal" basis which would be
established in favour of the occupying Power, which it could use to
arm "death squads" with a view to establishing a bloody chaos in the
Western Sahara of which the designated victim in advance would be
the Saharan people. Let us also note that the proposal is silent on
a universal principle of law, namely, that any activity undertaken
by the police must necessarily be subject to monitoring by the
magistrate with jurisdiction over the Territory and therefore by the
courts that are supposed to be established in the Western Sahara.
19. It should be pointed out that the proposal's intention to confer
on Morocco the right to preserve the Territory against secessionist
attempts is a serious juridical shift and a blatant anomaly. It is
indeed a grave legal anomaly because any mention of "secession"
carries an implication of "territorial integrity". This, of course,
is Morocco's colonialist argument; however, such "territorial
integrity" is not recognized by the international community and the
Saharan people, for its part, has challenged it through its
legitimate national liberation struggle. Furthermore, the proposal
rejects Morocco's territorial integrity in the Western Sahara, since
it is supposed to lead to a referendum on the final status of the
Western Sahara.
Furthermore, it is also a blatant anomaly because the proposal in
its conception assumes that the Frente POLISARIO would have accepted
the arrangement put forward and that the Saharawi People's
Liberation Army would be reduced and contained under the supervision
of MINURSO. That being the case, where would any "secessionist
attempts" come from?
Such a provision would be tantamount to suppressing for three or
four years the right of the Saharan people to foster peacefully and
democratically, and not only during electoral campaigns, their
demand for independence, for which they are still fighting, even
while the option of independence naturally still remains one of the
options to be decided upon following a free and fair referendum.
20. The proposal intends to establish a judicial authority appointed
by WSA in the Western Sahara. At the same time, it gives the highest
court of Morocco "jurisdiction to adjudicate the compatibility of
any law reserved to the Kingdom". This constitutes unprecedented
dual judicial authority over a colonial Territory, without even the
arbitration of third party judges representing the United Nations.
Its initial effect would be to seriously weaken the powers conferred
on the WSA legislative assembly.
The second dangerous consequence of this approach in practice would
most probably be that Saharans detained for questioning by the
Moroccan security services for attempted secession would be subject
to Morocco's special courts. In a nutshell, the occupation and
repression of Saharan nationalism would continue, as under the
current occupation; such repression would probably be more savage
and ferocious, especially with its "validation" by a United Nations
sponsored peace plan.
21. Concerning the final referendum on the final status of the
Western Sahara, and despite the begging of the question concerning
its monitoring by the United Nations (paras. 4 and 15),the process
still remains, on the issue of the electorate, marked by a certain
unfairness towards the Saharan people and by contradictions in terms
of its approach; it is also a fresh source of complications.
(a) Thus, the contents of paragraphs 5 and 6, describing the three
components of the electorate (namely, the Saharans already
identified, Saharan refugees and the Moroccan settlers) takes the
entire process back to the original and ongoing complications
concerning the issue of those eligible to vote in the referendum.
Indeed, the United Nations itself admits that for 10 years the
implementation of the settlement plan was hampered by the difficulty
in resolving the identification issue. However, by providing for the
identification of a new category of voters (the "residents") the
United Nations would be heading for a new controversy and a deadlock
of the proposed process.
(b) Furthermore, the provisions concerning the counting of
"residents on the list of qualified voters" clearly contain some
contradictions. It is stated, on the one hand, that it is the United
Nations, "whose decision shall be final and without appeal", which
will be responsible for this census. On the other hand, it is
indicated that the United Nations shall base its action to that end
on "testimony from at least three credible persons and/or credible
documentary evidence".
By proceeding thus, Morocco will have the exclusive privilege of
claiming the right to vote for its nationals, also providing
witnesses and, of course, providing documents. Thus, the proposal
would embark the United Nations on yet another open-ended process of
identification with the introduction of complications by Morocco,
which is to blame for the ongoing deadlock of the settlement plan,
precisely with respect to the issue of identification.
It bears recalling at this point that the United Nations Peace Plan
accepted by the two parties and endorsed by the Security Council set
forth in 1988, when it was initially drafted, and in April 1991 in
its final version, that the 74,000 Saharans counted by Spain, the
administering Power, constituted the electorate body for the
referendum.
Let us also recall that the delaying tactics by Morocco have been as
consistent as public on the issue of identification as indicated by
the following:
&endash; Its submission to the United Nations as far back as July
1991 of two additional lists of 76,000 and 45,000 Saharans,
respectively;
&endash; Its second "Green March" of 17 September 1991 (following
the entry into force of the ceasefire of 6 September 1991) getting
170,000 Moroccans to go to the identification commission in the
Western Sahara;
&endash; Its third "Green March" of 12 January 1998 (following the
Houston agreements, which supported the eligibility criteria, and
some weeks after the adoption of the Secretary-General's detailed
plan of 13 November 1997 for the holding of the 7 December 1998
referendum) that brought an initial contingent of 50,000 Moroccans
to the Western Sahara to be "identified";
&endash; Its lodging of 131,000 appeals in February 2000 (relating
to individuals already ruled out by the Identification Commission)
to force the United Nations to accept them as voters immediately
following the publication of the provisional list of the
identification commission on 30 December 1991 and despite Security
Council resolutions 1238 (14 May 1999) and 1263 (13 September 1999)
by which the Council had appealed to the two parties not to turn the
appeals process into a second round of identification.
Lastly, let us recall that in each of the above-mentioned instances
the United Nations caved in without succeeding in stopping Morocco's
manoeuvres. Thus:
&endash; The entry of 170,000 more Moroccans into the Western Sahara
in September 1991 was followed by a revision of the identification
criteria that had already been established;
&endash; The entry of 50,000 more Moroccans into the Western Sahara
in January 1998 resulted in the calling into question of the
identification modalities agreed upon and accepted under the Houston
agreements and in the drafting by the Secretary-General of the
United Nations of five additional protocols relating to appeals in
May 1999;
&endash; Lastly, the publication by the United Nations in December
1999 of the list of identified voters (86,425 persons) was followed
by the submission by Morocco of 131,000 appeals concerning cases
that had all been already considered and rejected by the United
Nations Identification Commission. That resulted in a deadlock in
the identification process and brought the implementation of the
Settlement Plan to a standstill.
(c) Lastly, the composition of the electorate envisaged under the
proposal is both unfair and fatal to the Saharan people:
&endash; It is unfair because the fate of the colonized Saharan
Territory would be determined through a referendum in which 86,425
Saharans and (if we were to confine ourselves to the above-mentioned
facts) Moroccan settlers four to five times that number would
participate;
&endash; It is fatal because the Saharan refugees would be returning
to the Western Sahara, to a situation fraught with uncertainty, to
be trapped there by the colonizer who would then block once again
the process around the "residents" issue and would embark on as
brutal a repression as it did in 1975, when it even used napalm
against civilians fleeing from the occupation. Not even the Nazis
behaved that way when they invaded neighbouring countries of
Germany.
22. Furthermore, the proposal does not contain any provisions
banning any fresh and massive movement of Moroccans to the Western
Sahara. By failing to do so, the four to five years between the
entry into force of the proposed plan and the final referendum, will
provide ample opportunities for new "green marches", a method used
by Morocco to invade the Western Sahara and sustain its occupation
of the Territory over the years.
23. The proposal offers no guarantees as to the respect for the
results of the proposed referendum, should it lead to independence.
It is definitely not the commitment of the interested parties (para.
9) which could be mistaken for an effective guarantee. Such
undertakings were made by Morocco in 1988 and 1991 (under the
Settlement Plan), then in September 1997 at Houston and in November
1997 at the adoption of the detailed implementation Plan by the
Security Council. We all know what happened.
Moreover, it was the Secretary-General himself who stated in his
report of 19 February 2002 (para. 48) that "the United Nations might
not be able to hold a free and fair referendum whose results would
be accepted by both sides; and there would still be no mechanism to
enforce the results of the referendum". That should even have
provided grounds for including in the proposal sufficient guarantees
including through the role of MINURSO and the Special Representative
and prior commitments by the Secretary-General and the Security
Council to ensure that the results of the referendum would be
respected.
24. The agreement contained in the Special Envoy's proposal breaks
new ground by introducing a novel idea in the field of agreements.
The document states (para. 1) that the Peace Plan "is an agreement
by and between the Kingdom of Morocco and the Frente POLISARIO". In
its articles 17 and 19, it refers once again to the Frente POLISARIO
for the purposes of settling the fate of the Saharawi People's
Liberation Army and reaffirming the Code of Conduct. The proposal
makes the Frente POLISARIO one of the five signatories to the
"Agreement". However, the Frente POLISARIO does not appear anywhere
else in the other 20 pages of the document (unlike Morocco, which is
a subject or actor in all phases of the proposed process). Does the
foregoing mean that the Frente POLISARIO would be restricted to the
status of a signatory on be |
