Résumé
This confidential document details Morocco’s reaction to the UN briefing note on the Sahara, addressing points such as Polisario demands for MINURSO passports, the status of the territory and alleged equal treatment with a sovereign state. Morocco also raises critical questions about the role of the UN Secretariat and the actions of MINURSO, highlighting concerns about ‘neutrality and the interpretation of certain agreements. Morocco considers that the Polisario’s moves are aimed at illegally changing its status by relying on symbolic actions to obtain tacit recognition. It calls on the UN to be absolutely firm so as not to compromise the integrity of the conflict resolution process.
Confidential
To the Secretary-General
Subject: Sahara Issue / Morocco’s Reactions to the UN Legal Affairs Department’s Briefing Note
In accordance with your instructions, I have the honor to submit herewith the consolidated document prepared by the United Nations Directorate and the Directorate of Legal Affairs and Treaties, highlighting Morocco’s reaction to the Briefing Note of the United Nations Legal Affairs Department on various aspects raised by the Polisario relating to the issue of the Moroccan Sahara.
The document will be divided into two parts, the first highlighting Morocco’s responses to the ideas put forward by the Polisario, and the second presenting questions to be addressed to the UN Secretariat to ‘pin it down’ on certain aspects relating to the status of the Polisario and the treatment it receives from the Secretariat.
Morocco’s Responses to the UN Legal Affairs Department Document:
Polisario’s Request to Affix Its Stamp on the Passports of MINURSO Members on Mission East of the Wall:
Legally: The rules governing the entry and movement of MINURSO members within the Mission Area are contained in the SOFA Agreement concluded between Morocco and the United Nations on February 11, 1999, in New York. Military Agreement No. 1, concluded separately by Morocco and the Polisario with MINURSO, also contains some relevant provisions.
The examination of these Agreements leads to the conclusion that not only do none of their provisions justify or authorize the Polisario’s demand, but that the spirit and letter of these Agreements are purely and simply opposed to it.
Indeed, unlike the Military Agreements – which are concluded in a triangular manner between MINURSO on the one hand and Morocco and the Polisario on the other hand, the SOFA is concluded exclusively with Morocco. It only recognizes the authority of the Moroccan Government and makes it the sole and exclusive interlocutor of MINURSO, particularly in terms of facilitating the entry and exit of MINURSO members in the Mission Area.
Similarly, the SOFA understands the Mission Area as an indivisible whole. Its §.1 (b) defines the Mission Area as « the territory of Western Sahara and the designated locations in Morocco necessary for the conduct of MINURSO’s activities ». It follows that the part east of the wall is not a ‘separate mission area’ (as the Polisario would like), nor even a subdivision of the Mission Area. It is nothing more than an undifferentiated part of the Mission Area, where the SOFA must apply in its entirety.
It follows that the movements of MINURSO members between the West and the East of the wall constitute movements « within the mission area ». As such, they cannot be subject to a derogation from that provided for by the SOFA (§.38).
Morocco, a member state of the United Nations, exercises its prerogatives of sovereignty over its entire territory, including in the Sahara, by requiring the stamping of passports of all foreigners entering Morocco;
Politically, the UN’s acceptance of such a measure would consecrate the division of the territory and the establishment of a border between the West and the East of the security system;
Such a measure constitutes recognition by the UN of the FP, as a state in its own right.
The UN is required to purely and simply reject the Polisario’s request to impose its stamps on the passports of MINURSO members.
Status of the Territory:
The Polisario exercises no control over the territory.
The Polisario has no legal, popular, or even less democratic legitimacy to aspire to represent the Sahrawi populations;
Morocco deliberately ceded the area east of the defense system to the supervision of MINURSO, as a confidence-building measure and to avoid any clashes with the Algerian army;
The area east of the defense system is under the supervision of MINURSO. The area is free of any military presence or civilian installations. Morocco has repeatedly drawn the UN’s attention to the non-compliance with Military Agreement No. 1. The UN is responsible for ensuring strict compliance with the provisions.
The UN Cannot Decide on Equal Treatment/Equal Status with a Sovereign State Member of the United Nations:
International law emphasizes that the recognition of a new State or a new government is a sovereign act that only other States and governments can perform.
The UN is not authorized to recognize a State or a government, nor to grant equal treatment or equal status to any entity or separatist group;
Behind the idea of ‘equal status / equal treatment’ lies the objective of moving the Polisario from the situation of an armed group in exile to a situation where its territorial establishment would not only be a fait accompli, but also a legally recognized political reality.
However, in legal terms, this amounts to creating a « fundamental change of circumstances » within the meaning of international law (rebus sic stantibus), which is likely to justify and authorize an adjustment of the legal framework governing the multiple aspects of the regional dispute over the Sahara.
The United Nations Secretariat must assess all the consequences inherent in this change of ‘situation’ requested by the Polisario. This change is likely to create a dangerous precedent that would complicate the task of the United Nations in dealing with this issue.
The Polisario Cannot Circulate Documents:
The Polisario, in accordance with Article 32 of the UN Charter and Article 37 of the Rules of Procedure of the Security Council, cannot be invited to the Security Council, nor participate in its discussions, even if they concern the issue of the Sahara;
Polisario letters can only be distributed as official Security Council documents through a member state;
Acceptance of such a request could open the way for other non-state actors or separatist, even terrorist, groups to distribute documents to the Security Council.
The Polisario does not have the right to organize a press conference or stakeout at the United Nations on its own.
Morocco’s Questions to ‘Pin Down’ and ‘Complexify’ the Secretariat:
Why does the Secretariat have attitudes aimed at making the Polisario the representative of the Sahrawi population?
The Polisario did not exist before 1975. The only claim to the territory was that of Morocco;
UN documents refer to the Polisario sometimes as a petitioner of the 4th Committee, sometimes as a simple interlocutor, but never as a representative of a population;
No Security Council or General Assembly resolution (with the exception of resolution 3437 adopted in 1979) considers the Polisario as representative of the Sahrawi people;
In its practice vis-à-vis Liberation Movements (PLO, SWAPO, etc.), the UN has never recognized the Polisario as a MLN and grants it only a simple petitioner status, similar to that of an NGO;
The majority of the Sahrawi population lives in Morocco and exercises its social, economic and political rights;
Why do certain Secretariat services consider the East of the security system under the control of the Polisario?
The Polisario exercises no control over the territory. The briefing notes of the DPA and DPKO should cease to use the term ‘territory under the control of the Polisario’;
Morocco deliberately ceded the area east of the defense system to the supervision of MINURSO, as a confidence-building measure and to avoid any clashes with the Algerian army;
The area east of the defense system is under the supervision of MINURSO. The area is free of any military presence or civilian installations.
Morocco has repeatedly drawn the Secretary-General’s attention to the non-compliance with Military Agreement No. 1. Morocco requests that the Polisario’s incessant violations be recorded in the Secretary-General’s reports and the briefing notes of the DPA and DPKO.
How can the Secretariat explain the fact that the Secretary-General’s reports use the terms ‘authorities of the Polisario Front’ FP ‘?
The term ‘authority’ refers to structures of a State exercising powers falling to a government;
However, the Polisario is not a State. The UN Secretariat must therefore refrain from using the term ‘authorities’ of the FP, ‘officials’ of the FP, security forces or others, etc.;
The Secretariat should limit itself to using the term ‘Polisario Front’
Why does the Polisario have a permanent badge for access to the UN?
The Polisario is considered a petitioner to the 4th Committee and the Committee of 24. Any petitioner has a temporary badge for the duration of the presentation of their petition;
The UN Secretariat should clarify the circumstances of the issuance of a permanent badge to the Polisario representative;
Morocco therefore requests the Secretariat to withdraw the badge for the Polisario representative.
Why do MINURSO officials meet with representatives of so-called ‘Sahrawi’ national institutions?
Morocco requests the UN Secretariat to ensure that MINURSO complies with its neutrality status, by refraining from:
Meeting with the so-called heads of ‘Sahrawi’ national institutions;
Publishing the content of these meetings in the Secretary-General’s report.
MINURSO officials must not endorse any political activity used by the Polisario to instrumentalize its authority over the buffer zone (flags of the pseudo ‘rasd’, demonstrations near the security system, etc.).
Why does MINURSO remain silent about the restrictions imposed by the Polisario on the freedom of movement of military observers and their escort during the night?
Such actions by the Polisario amount to imposing an undue and unjustified restriction on the movement of MINURSO members, and thus to compromising their freedom of movement. In addition to being blackmail to which the United Nations has no interest in giving in, the Polisario’s attitude carries the risk of compromising the SOFA and, beyond that, endangering the integrity of MINURSO’s mandate.
Article 4 of Military Agreement No. 1 states that « military observers have full freedom of movement/action to carry out their tasks […] in the area of responsibility of MINURSO, and any restriction on this freedom of movement and action constitutes a violation. […] Any attitude or action aimed at intimidating military observers constitutes a violation ».
Any attempt by the Polisario to prevent or restrict the movement of MINURSO members in any part of the Mission Area, or even to intimidate them to dissuade them from going there, constitutes a violation of Military Agreement No. 1.
Morocco asks the UN Secretariat to denounce such restrictions, recording them clearly in the next SG report.
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To the Secretary-General – Maec –
Subject: National Issue / Polisario’s Actions with the United Nations Department of Legal Affairs.
You have requested the opinion of this Directorate regarding the information transmitted by the Permanent Mission of Morocco to the United Nations in New York, concerning discussions initiated by the Polisario with the United Nations Department of Legal Affairs, about certain legal aspects related to the National Issue.
These discussions appear to have started some time ago and have led to concrete actions by the Secretariat on certain matters, and the opening of discussions (still ongoing) on others. Morocco cannot remain passive in the face of these developments. Below are the preliminary observations of this Directorate on the matter:
1. The 6 issues addressed by the Polisario’s actions raise 3 themes, interconnected politically but legally distinguishable.
The theme of the territory’s status. This theme is directly challenged through the issues of natural resource exploitation, geographic designation, and cartographic representation of the territory. More dangerously, the status of the territory is indirectly challenged through the false issue of the Polisario affixing stamps on the travel documents of visitors to the east of the wall (including MINURSO); a measure that – if recognized by the UN – would establish a de jure partition of the territory into two parts on each side of the wall, where the current distinction is only political and based solely on the de facto (non-definitive) presence of the Polisario east of the wall.
The theme of the « parties' » status with regard to the territory. In this regard, it is clear that the Polisario – by demonstrating its « exclusive effectiveness » to the east of the wall – is seeking to give itself a territorial status, where it currently only has a political (and military) status. Ipso facto, it tends to restrict the legally recognized powers of Morocco over the territory, particularly those stemming from the 1999 SOFA concerning the entry, stay, and departure of MINURSO members from the territory. Thus, the issue – of which the United Nations Secretariat only seems to retain the technical and symbolic aspects – is in reality capable of fundamentally altering the very political and legal terms of the conflict. Behind the idea of « equal status / equal treatment » lies the objective inherent in the theory of « liberated territories, » which is none other than to move the Polisario from the situation of a floating movement in exile to a situation where its territorial presence would not only be a fait accompli but also a legally recognized political reality. However, in legal terms, this amounts to creating a « fundamental change of circumstances » within the meaning of international law (rebus sic stantibus), which is likely to justify and authorize an adjustment of the legal framework governing the multiple aspects of the dispute.
The theme of the Polisario’s status with the United Nations. In this regard, the Polisario’s clear aim is to take advantage of the « new situation on the ground » to claim a status that would allow it greater legitimacy and freedom of action within the UN. This is reminiscent of the interest the Polisario showed in 2007-2008 for an Observer status at the UN. In the same vein, we recall the attempt by the former Special Representative of the SG, the Italian Francesco Bastagli (whose pro-Polisario affinities have since come to light), to have the Department of Peacekeeping Operations accept the idea of concluding a Memorandum of Understanding with the Polisario, under the pretext of managing MINURSO’s activities east of the wall.
2. The Polisario’s request to affix its stamp on the passports of MINURSO members on mission east of the wall has no legal basis.
The rules governing the entry and movement of MINURSO members in the Mission Area are contained in the SOFA Agreement concluded between Morocco and the United Nations on February 11, 1999, in New York. Military Agreement No. 1, concluded separately by Morocco and the Polisario with MINURSO, also contains certain relevant provisions.
An examination of these agreements leads to the conclusion that not only do none of their provisions justify or authorize the Polisario’s demand, but that the spirit and letter of the said agreements are purely and simply opposed to it.
Indeed, unlike the military agreements – which are concluded in a triangular manner between MINURSO on one side and Morocco and the Polisario on the other, the SOFA is concluded exclusively with Morocco. It recognizes only the authority of the Moroccan Government and makes it the sole and exclusive interlocutor of MINURSO, particularly with regard to facilitating the entry and exit of MINURSO members in the Mission Area.
Similarly, the SOFA views the Mission Area as an indivisible whole. Its §.1 (b) defines the Mission Area as « the territory of Western Sahara and the locations designated in Morocco necessary for the conduct of MINURSO’s activities. » It follows that the part to the east of the wall is not a « distinct mission area » (as the Polisario would like), nor even a subdivision of the Mission Area. It is simply an undifferentiated part of the Mission Area, where the SOFA must apply in its entirety.
Regarding the mobility of MINURSO members, §.38 of the SOFA distinguishes two situations:
Movements within the Mission Area only require identity documents issued by MINURSO;
Exits from and entries into the Mission Area require that MINURSO members have valid individual or collective passports, accompanied by a mission order issued by the United Nations.
It follows that the movements of MINURSO members between the west and east of the wall constitute movements « within the mission area ». As such, they cannot be subject to a regime that deviates from that provided for by the SOFA (§.38).
3. The UN is entitled and equipped to show firmness towards the Polisario’s blackmail.
The passive, hesitant, and excessively conciliatory attitude of the UN towards the Polisario’s request is difficult to understand. Given the clarity of the provisions of the SOFA, the UN is perfectly entitled – and even required – to reject purely and simply the Polisario’s demand to impose its stamps on the passports of MINURSO members.
This is all the more so because the Polisario has no valid legal argument to support its request. At best, it can restrict the activities and movements of MINURSO members in the part east of the wall, as a form of retaliation.
Such action by the Polisario amounts to imposing an undue and unjustified restriction on the movement of MINURSO members, and thus compromising their freedom of movement. In addition to being blackmail that the United Nations has no interest in giving in to, the Polisario’s attitude carries a risk of compromising the SOFA and, beyond that, of endangering the integrity of MINURSO’s mandate. The Polisario would then be guilty of a clear violation of Military Agreement No. 1.
Indeed, Article 4 of Military Agreement No. 1 states that « military observers have complete freedom of movement/action to carry out their tasks […] in the area of responsibility of MINURSO, and any restriction on this freedom of movement and action constitutes a violation. […] Any attitude or action aimed at intimidating military observers constitutes a violation ».
4. Conclusion and Recommendations
It is clear that the Polisario’s desire to affix its stamp on the travel documents of MINURSO members has no legal basis.
The Polisario cannot impose its will in defiance of the applicable legal instruments concluded between Morocco and the UN.
The United Nations cannot give in to the Polisario’s blackmail without compromising these legal instruments and, through them, the integrity of their mandate.
Morocco would do well to show firmness towards the United Nations, as it is their responsibility to preserve the integrity of these legal instruments, and they are legally equipped to do so.
Any attempt by the Polisario to prevent or restrict the movement of MINURSO members in any part of the Mission Area, or even to intimidate them to dissuade them from going there, constitutes a violation of Military Agreement No. 1.
MINURSO can demand that the Polisario renounce any intention of restricting its activities, under penalty of activating the « procedure in case of violation », as provided for in Article 5 of Military Agreement No. 1. This procedure provides, in the first stage, a written warning, and in the second stage, diplomatic action undertaken by the United Nations. This diplomatic action may take the form of an intervention by the SG or the Security Council. It should be recalled that the practice of the Security Council reveals particular firmness towards any party responsible for serious restrictions on the activities of Peacekeeping Operations or endangering the safety of their members.
Morocco would do well to take, with diligence, the appropriate steps with the Secretariat to push them in this direction, and to prevent an arrangement that would be detrimental to its interests.
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