The Sahara Conflict: Towards a New Capital of Legal Legitimacy based on Equity
As a research topic, the Sahara conflict is undoubtedly complex and this complexity is illustrated by the scale of factors involved (international law, geopolitics, economics, politics, anthropology), the number of players entangled (Morocco, Algeria, Polisario Front, Mauritania), and the clout of powers concerned (Spain, France, United States of America) in addition to the geopolitical dynamics of the region (Moroccan-Algerian tensions, asymmetrical Sahel-Saharan threat). In other words, an analysis of the conflict must not overlook the existing correspondence between legal and extra-legal factors on the one hand, and the interplay between concerned stakeholders on the other.
In this imbroglio, international law becomes an argumentative framework allowing all players involved to participate in the production of legal discourse on the Sahara issue. The UN stage has witnessed the emergence of a legal legitimacy capital leading successively to the cease-fire in 1991, the referendum, scheduled for 1992, yet constantly postponed, the inapplicable Baker I (2000) and Baker II (2003) settlement plans and the deadlocked informal negotiations. This legitimacy capital is faced with an efficiency crisis, if not an existential crisis, since the persistence of the dispute is quite clearly indicative of the failure of the formal ("rule-based") approach of international law, or its inadequacy due to the distinct singularity of the Sahara issue.
Meeting on April 27, 2018, the Security Council requested that the UN SG's Personal Envoy for the Sahara, Horst Köhler, continue discussions on a resumption of negotiations between the parties. Does this not mean that the United Nations runs the risk of replicating the conditions for continued conflict? At what point can the international community call for an alternative legal approach to the one deemed insufficient or ineffective?
This policy brief argues that a formal legal approach can only be effective if it incorporates the inputs of the critical school of international law, which stresses that the rule must be matched to international social reality and, in particular, to its inherent paradoxes. Therefore, any explanation of the principle of external self-determination, although universal, must not be circumscribed solely to an interpretation of formal sources, but must take particular account of the changes in context in order to explain its meaning and use.
The central theme of this article is that a lasting and equitable solution depends on the Security Council's ability to overcome challenges, through positive neutrality, which recognizes the need to redefine legal legitimacy capital within a broader framework of public international law, under the basis of the three following complementary elements:
(I) A break with the “Winner takes all rationale”;
(II) The utility of equity as a non-jurisdictional means of dispute resolution given, on the one hand, the ineffectiveness of external self-determination and, on the other hand, the weight of extra-legal factors ;
(III) The relevance of equity as a legal guiding principle for conflict resolution, through autonomy as an expression of equitable self-determination.
I. International Public Law between Legal Formalism and Social Effectiveness
Underlying any international territorial dispute is a theoretical debate, generally opposing two approaches to international law, the so-called critical approach and the formalist approach. A demarcation line is thus drawn between the arguments of parties to the conflict; certain parties fall into the dialectical and evolving logic of international law, close to the critical school, while others remain fundamentally in line with conventional legal formalism.
Conventional legal formalism
Conventional legal formalism emphasizes the normative force of the law and its formal capacity to oppose and rise above state policies. It rejects factors external to existing positive international law, be they the cognitive framework (philosophical approaches to law) or actual facts (sociological, political, economic or psychological approaches to law). In this sense, the task of the legal expert, researcher or official, should focus on the explanation of"[t]he positive legal order, in particular by interpreting existing legal rules, and by highlighting logical relationships between these rules.” The legal expert will not, however, make a value judgment on the legitimacy, role or functions of positive law in international society. From a formalist perspective, the definition of aggression or the right of peoples to self-determination is found in the interpretation of formal sources, such as the Charter of the United Nations, United Nations General Assembly resolutions and, where applicable, any other formal sources. The lawyer is therefore compelled to confine him/herself to the texts and is denied consideration of the context and correlation with extra-legal factors. It is, therefore, an approach that is more inclined to describe existing rules than to question them or develop new ones. The existing legal norm is maintained, not only to guarantee its permanence, but also to assert its superiority to the will of States. Nevertheless, some variants of formalism recognize the evolving nature of international law, by taking into account repeated practice, where custom is concerned, or a revision of the relevant convention, in the field of the international treaty regime.
The dynamic critical school of thought
The critical school, on the other hand, views international law dynamically in the context of a process of production, application and evolution of the standard. It is the very opposite of formalism, both in its conception of the idea of "international community," the weight of legal rule and the will of States, and in its approach to the finality of international law. The institutionalization of international relations has allowed the emergence of multilateral diplomacy on behalf of the international community. However, the preponderance of States and conflicts of interest prevent the emergence of a truly integrated international community. According to the critical approach, this paradox causes a divergence from the idea of a pluralist community towards a political rationale tending to legitimize the diplomatic or military action of the major powers. Behind this apparent universality lies a hegemonic unilateralist practice that is hazardous for the international community as a whole. Action, non-action and inaction are versions of this trend that has reached an unprecedented dimension with the American invasion of Afghanistan and Iraq. In the context of non-action, the lack of will on the part of the international community to manage the Israeli-Palestinian conflict is symptomatic of the absence of equitable universal initiatives capable of bringing justice to the Palestinians. The protracted duration of the Sahara conflict, on the other hand, is akin to classifying it in a pattern of indecision by the international community in the face of a conflict that needs to be understood in its entirety and multidimensionality. Status quo seems to guide the strategic choice of Security Council members, even as Morocco's proposal for autonomy introduces a new and relevant element into the conflict resolution process.
Like legal formalism, the critical school recognizes the primacy of legal rule as the basis of formal sources of international law. However, it insists on correlating this rule with international social reality and, in particular, with its inherent paradoxes. In other words, this current is concerned with the power relations that govern the creation of a legal norm, as well as those that dictate its interpretation. Consequently, the explanation of a legal principle, although universal, should not be circumscribed to the interpretation of formal sources, but must reckon with the evolution of the context to account for its meaning and its often selective utilization by States. In so doing, international law is seen in terms of its social purpose, insofar as its legality and binding force derive primarily from its ability to advance social goals. Formal normative validity is not however negated, but is subordinated, for the sake of effectiveness.
II. Social Effectiveness of the Rule or Breaking with the "The Winner Takes All" Rationale
The Sahara conflict’s longevity raises the theoretical problem of anachronism of certain rules of positive law and their practical limits. What is the point of international law , if not to free international society from risk and threats? The desire to live in peace finds an institutional response in the Charter of the United Nations, the considerable number of multilateral agreements and the dynamics of international organizations. However, this goal is not attainable as long as the effectiveness of the legal norm is dependent on the will of States and on the games played within the Security Council or other United Nations bodies. A confrontation is therefore emerging between, on the one hand, the main player of international political production, the State, and, on the other hand, the universal and autonomous legal norm. The State is the source of international law by excellence; however, paradoxically it continues to conceive international relations in terms of power struggles, which, by way of example, means that the United States of America will never allow one of its officials to be brought before an international criminal court. To this effect, should we agree with James Brierly's idea that "international law tries to create and define or delimit the different spheres within which each State dividing the world for political purposes can exercise its authority" ? Nevertheless, this does not mean that the universal legal norm is unimportant. Jus cogens rules, for example, are connected to universal consciousness and inherent to the existence of an international civilized society.
This paradox generates a de facto situation, where international law is more a "social argumentative practice" than a normative structure, independent of States. Thus, the resolution of an international crisis is not only a matter of formal dispute settlement law. It also falls within a political context that often shapes the trajectory of the final solution. A credible legal argument would necessarily take into account legitimacy and effectiveness; the rule and its rationale do so in such a way that the legal criteria and the factual context intertwine in a common-sense perspective. Richard Falk indicates, in this respect, that the role of contemporary doctrine is to adopt an "...[I]ntermediate approach, one that maintains the distinctive sign of legal order while being able to respond to the extra-legal framework of politics, history and morality."
This article’s theoretical approach revolves around a general approach to international law that relates rule of law to social reality. In this sense, it takes into account political and social phenomena to understand international public law. We approach international law and its dynamics through three integrated elements of analysis, which are (1) international law is based on the will of States; (2) the power dynamics that govern the creation of the rule of law and its subsequent interpretation; and (3) the social purpose of the law. International law appears as a contractual legal order, whereby it is excluded to invoke a rule against a State that it could not and/or would not accept. Likewise, the rule, both in the process of its creation and in its interpretation, gives rise to contradictory assessments and interpretations that persist even after its adoption. At the same time, the legality of the rule of law is affirmed through its effectiveness and its capacity to advance social goals, without denying the importance of its normative force.
Transposed to the Sahara conflict, this theoretical construct raises a certain number of heuristic questions: Is the observation of the social ineffectiveness of the classical legal approach used in the management of the Sahara conflict sufficient to justify the adoption of a new legitimate alternative approach? At what stage can the international community call for an alternative legal approach to another considered insufficient or ineffective? Insofar as the Sahara conflict is subject to the principles of the right of peoples to decide for themselves and self-determination, does the failure to organize a referendum not void these two principles of their legality?
The fact is that the law and politics are two sides of the Saharan dispute. They interfere and intersect, so much so that it is impossible to envisage a purely legal solution or an exclusively political response. In the first scenario, the referendum is based on a "winner takes all" rationale, while in the second scenario; the political fait accompli would simply be devoid of any idea of equity. This reflects an inclusive interpretation of the conflict that closely links the requirements of international law to political, social and geopolitical realities. It is not, however, a question of diluting the binding force of the law in social facts, but rather of recognizing, in agreement with Martti Koskennieni, that an international system based on the rule of law conceals the fact that any social conflict must be resolved by political means.
Consequently, the Sahara conflict deserves a singular assessment based on alternatives rooted in international legal practice. As such, the principle of equity seems to be the most effective way of settling the Sahara question insofar as it is recognized by international law "as an application, for the solution of a given dispute, of the principles of justice, in order to fill gaps in positive law or to correct its application when it may be too rigorous."
III. Equity: A Relevant Alternative for Sustainable Compromise
The evolution of equity is characterized by three concurrent approaches: an anchoring in international law through the practice of States and international institutions, jurisprudence and doctrine; an identity shaped by the jurisdictional settlement of disputes, particularly in maritime delimitations; and broad perspectives in the non-jurisdictional settlement of political disputes.
International jurisprudence confers two main elements to the equity of international law. These are, on the one hand, justice as the general legal basis for equity and, on the other, the element of "relevant circumstances of a case" as the particular legal basis for equity. Any jurisdictional or non-jurisdictional resolution of a dispute based on equity should correlate these two elements. Relevant circumstances are those factors (geographic, historical, political, geopolitical...) that may render the resolution of the dispute (issue) inequitable if they are not taken into account. In other words, they are characteristics, which, if ignored, would produce an unfair outcome that would not serve the interests of any of the parties to the conflict.
Recourse to equity in no way weakens the law, it reinforces it. For, as Judge Arechaga clearly stated: "equity is... nothing other than the fact of taking into account a whole set of historical and geographical circumstances whose influence does not weaken justice, but, on the contrary, enriches it." It is therefore almost impossible to reach an equitable solution while disregarding the specific circumstances of the region.”
It should be stressed that equity is a jurisdictional principle since dispute settlement - particularly in maritime delimitation - is the major area in which it is used. The very issue raised in this article, however, is the non-jurisdictional resolution of disputes (political, diplomatic), i.e. through diplomatic channels.
Nevertheless, an examination of the case law and even the doctrine relating to the use of equity reveals elements that may be transposed to the case in question in our study. Therefore, is it worth starting by shedding light on the scope of equity in the settlement of disputes through political means: direct negotiations, settlement through the intervention of third parties? Regardless of the type of negotiation, bilateral or under the aegis of an organization, parties plead on the basis of international law. However, it is common for equity, power relations and even opportunity to arise in the process, thereby injecting a horizontal dose into the negotiation framework. As a result, the center of gravity of negotiations shifts from international law, without however breaking away from it, towards a field in which strategic, political and economic considerations are intertwined (...). In this configuration, equity has its rightful place both in terms of its rationale and persuasion. It promotes the development of an ideal of justice in a world where the general obligation to settle disputes by judicial means has not yet been imposed. Globalization has generated new disputes that pave the way for greater recourse to equity. The UN Charter adopts equity in a flexible way. Article 1 calls on its members to "maintain international peace and security" in accordance with “the principles of justice and international law." Should it be stressed, however, that Article 33 of Chapter VI of the Charter excludes from its scope disputes, which are not likely to threaten the maintenance of international peace and security? On the other hand, when a dispute is brought before the Security Council, the question of the basis on which the dispute should be resolved arises on a recurrent basis. V.D. DEGAN rightly questions whether the Security Council is obliged to base its deliberations exclusively on international law, as well as the International Court of Justice, or whether there are other factors that may be relevant to its decision, such as equity or balance of power. It would seem that practice tends to take into account all the legal and extra-legal aspects of the dispute, which could be assessed in favor of a fair way out of the crisis. Since the purpose of the negotiation is the achievement of an agreement, parties have an obligation to behave in such a way that the negotiation makes sense and that, taking into account all the circumstances, equitable principles are applied. In the Sahara case, for example, Security Council resolutions have given rise to a discourse that lies between two basic lines; on the one hand, self-determination as a rule of law and, on the other, the imperative of a fair, lasting and mutually acceptable outcome inherent to extra-legal facts.
IV. The Relevance of Equity in the Settlement of the Sahara Conflict
Equity takes on its full significance in the case of the Sahara. Its two constituent elements, justice and the equality of parties, and the relevant circumstances of the conflict, are manifest in the case of the Sahara, through two categories of fundamental aspects, which are:
(1) The practical limits of external self-determination and its social ineffectiveness in this case owing to the considerable singularity of the conflict; and
(2) The compliance of the Moroccan Autonomy Project (MAP) with the requirements and values of equity.
The practical limits of the external self-determination of the Sahara
The main stumbling block to resolving this dispute is the difficulty organizing the referendum. The United Nations Secretary-General's report of July 12th, 2000 identified difficulties inherent to:
-Identifying persons not yet heard by MINURSO;
-Conducting the appeals procedure; restoring the right to participate in the referendum of 7,000 Moroccan applicants who were declared eligible and subsequently withdrawn from the provisional list of voters;
-Implementing the results of the referendum;
-Applying the code of conduct to be observed during the referendum campaign;
-The requirement that the testimonies of the Chioukhs (Chief of the tribes) representing Morocco and the Polisario be consistent; and
-The exclusion of oral testimony as evidence even though the Settlement Plan places it on an equal footing with Spanish documents for the purposes of identification and appeals, and the repatriation of refugees.
The reason for the failure of the referendum is therefore related to disagreements between Morocco and the Polisario Front on the composition of the electoral body. The 1990 Settlement Plan established the 1974 Spanish census, which included almost 74,000 people, as the basis for drawing up electoral lists. The Polisario Front accepted the idea because it considers this census as a determining factor of Sahrawi identity. Morocco, on the other hand, refuses to accept this electoral body and requests the inclusion of the Sahrawis who, since the 1950s, had, for various reasons, emigrated to northern Morocco or Mauritania. The difficulty, even impossibility, of determining what a Sahrawi is and who the" Sahrawi people" are is the main factor blocking the voter identification process.
This situation raises a profound question as to whether certain universal norms are compatible or not with the specific case of the Sahara. The criteria set out for the referendum are incompatible with the anthropological reality of the nomadic Sahrawi population. And even in the event of a referendum, there is no indication that its outcome would pacify the region. The loser will invariably challenge the winner's results and legitimacy. All the more so, as W. Zartman clearly stated, as a referendum "indicates neither the end nor the mitigation of a conflict but simply its transfer to another mode of resolution." The "the winner takes all" rationale is therefore not suitable.
The recognition of the status of Sahrawi people is another paradox of international law. Theoretically, the notion of people is not framed by any consensual doctrinal definition or by a United Nations original normative definition. This "chameleon term," as referred to by Edmond Jouve is a type of concept that resists "any universally valid definition." The outlines delimiting it were consolidated as it was gradually applied during decolonization, making it an essentially territory-based legal concept that varies from one case to another. In the case of the Sahara, the population is organized in ancestral nomadic and autonomous tribal structures, which the Spanish colonizer tried to manage unsuccessfully. Nomadic tribes have always been resistant to a central authority and have never constituted themselves as a homogeneous pre-colonial entity. This partly explains their preference for being tied to the Sultan of Morocco by a non-binding act such as allegiance. Moreover, this anthropological specificity of the Sahrawis is forcefully expressed in the process of identifying the persons entitled to participate in the referendum. For example, the hearing of oral testimonies was very challenging due to the constant mobility of the populations. In his September 19th, 1991 report, United Nations Secretary-General Pérez de Cuellar noted:
"Because of their nomadic lifestyle, the Territory's populations easily cross borders to neighboring countries, where they are welcomed by members of their tribes or even their families. This ebb and flow of populations across the borders of the territory makes it difficult to conduct a complete census of the inhabitants of the Spanish Sahara, and also poses the thorny problem of identifying Sahrawi inhabitants of the Territory and, beyond that, a satisfactory census of refugees."
The principle of equity has the merit of granting importance to extra-legal factors in the assessment of the disputed subject-matter. In the case of the Sahara, it has been made clear that the issue is covered by legal principles, but extra-legal elements - geopolitical, security and anthropological - interfere to such an extent that they must be taken as central to any process of resolving this conflict on an equal footing with international legal rule. While the former two are visible and present in the international community's diplomatic discourse, the third seems to be ignored and unexplored despite the fact that it reflects deep-rooted trends within the Saharan population. The complexity of the situations generated by 41 years of conflict in the Sahara is measured in terms of the pivotal importance of anthropological factors. Nowadays, Sahrawi social structures have permeated by the effects of conflict, leading to a complex sociological configuration. First, the divisions are now infra-tribal and pit separatists against unionists. Since the Moroccan Autonomy Project, a third autonomous path has emerged. Divisions also arise between members of the same family as a result of opposing political positions. These inter-family rifts contrast with the consolidation of social ties between Sahrawis living in the Sahara and the rest of the Moroccan population. In his study on "social bonds and geostrategic issues," Mohamed Cherkaoui states that these bonds stimulate and form homogeneous and dense social fabric notably thanks to the institution of marriage. This prompts us to recall the introductory questions of this study: are certain universal norms compatible or not with the specific case of the Sahara? Are the criteria set for the referendum in the early 1990s compatible with the sociological reality of the Sahrawis today?
Autonomy as an expression of equitable self-determination
In our view, extended autonomy is the reasonable and equitable way forward for a lasting solution guaranteeing the stability of the Maghreb. The question is whether the content of Morocco's initiative complies with the requirements and values of equity. This compatibility is analyzed through three key concepts, namely, legitimacy, justice and equality.
From the point of view of legitimacy, the initiative reconciles two fundamental principles of international law, namely the principle of self-determination and the principle of the territorial integrity of States. In this respect, point 27 of the initiative provides that “the region's autonomy status shall be the subject of negotiations and shall be submitted to the populations concerned in a free referendum. In accordance with international legality, the UN Charter and the resolutions of the GA and SC, the referendum constitutes the free exercise by its peoples of their right to self-determination.”
As for the concept of justice, it is here to be understood in the sense that autonomy, particularly point 12 of the initiative, will enable the Saharawi people to manage their own local affairs both in administrative terms (including local police and local jurisdiction) and in economic, fiscal, social, infrastructure and environmental terms. To this end, the region will have a Regional Parliament, a Government presided over by a Head who will be elected by the Regional Parliament, and a Higher Regional Court. In the sense of rendering justice, point 31 of the draft provides for a general amnesty.
As far as equality is concerned, these are in fact provisions that guarantee an equitable distribution of wealth between the regions and establish bridges between the exclusive powers of the State and those of the region. Point 13 of the proposal lists the financial resources of the future autonomous region, including the share of natural resource revenues located in the Region and collected by the State.
In this sense, the expanded autonomy of the Sahara region is in keeping with the principle of equity both in terms of its democratic content and its political and geopolitical purpose. Autonomy will contribute to putting an end to a conflict that has plagued the Maghreb, through the inclusion of diverse Sahrawi currents (Polisario, unionists, Martyr line, etc.) in a regional political process (Sahara) guaranteeing the rights and obligations granted by the Statute of Autonomy and within the framework of Moroccan sovereignty.
What good is international law if not to free international society from risks and threats? The yearning for peace is reflected in the production of norms and in the institutionalization of the international system. The lasting and equitable resolution of the Sahara conflict continues to be contingent on the ability of parties to overcome difficulties, through a political mindset that integrates the unity and stability of the Maghreb as a central issue in the conflict.
A legal solution does make sense, because it is legitimate. However, a redefinition of the legal approach to the conflict outside of the traditional normative and formalist approaches of international law seems inevitable as such an approach is necessary to advance the conflict resolution process: legal legitimacy and functional necessity are therefore the two pillars of conflict resolution. Thus, the fundamental feature of a negotiated solution for an extended autonomy in the Sahara is that it does not disregard international law but rather reinforces it, as it is based on the legal principle of equity, a supplementary principle of international law.
Autonomy is the right political framework to uphold such a peaceful settlement of the Sahara conflict. The opposite scenario is also likely should Polisario and Algeria refuse any concession. No one can therefore predict exactly the path that will be taken by the antagonists or what repercussions this will have on the stability of the Maghreb. The hardening of political positions construed from a primary selfish view of the national interest and false perceptions have led to unreasonable geopolitical situations such as the closure of land borders between Algeria and Morocco. The arms race, in which the two countries are engaged, should call upon and mobilize all international goodwill in the spirit of Moroccan-Algerian rapprochement, which alone can break the deadlock and achieve a negotiated, just and equitable solution that guarantees the dignity of the Sahrawi peoples and the territorial integrity of Morocco.