UN correspondence with the Algerian President on the Western Sahara issue

I am very happy that you were able to keep good memories of your stay in Algiers, which allowed us, also, to appreciate your courtesy and your patience towards us, and to have the fair measure of your great abilities as a negotiator and expert in international matters.

Allow me to tell you that I took great pleasure in receiving you and in our discussions, and I would like to tell you again that it is always with joy and friendship that we will welcome you to Algeria, whether within the framework of your professional activities or, that of a personal trip which would allow us to better acquaint you with our country and its inhabitants.

Concerning your mission as the United Nations Secretary-General’s Personal Envoy for the settlement of the Western Sahara question, I must tell you that we proceeded, my collaborators and myself, with a detailed study of the paper you submitted to me before leaving Algiers.

I am conscious of the work and efforts this proposal represents, as I appreciate your concern to reach a fair solution based on the adherence of all the parties. It remains clear to us that a real solution of the conflict will have to translate itself by the establishment of a durable peace in the region, which implies the free and sincere commitment of all those who are called to ensure its implementation.

It is in this spirit that we studied your proposal, which, in our view, presents a certain number of weaknesses and imbalances that we have noted in a memorandum addressed to you. In it we have explained the reasons for which we think that the advocated solution does not totally address, in a satisfactory manner, the pursued objectives, nor the framework of the settlement adopted by the Security Council.

I hope that you will understand that the point of view thus expressed by Algeria, first translates our concern to succeed in getting out of the crisis which has lagged on for now twenty-six years, if not by giving complete satisfaction to each of the parties, by at least equitably distributing the dissatisfaction and the sacrifice imposed on each of them. We cannot, either, completely erase the progress realized these last years, which is mainly due to your sagacity and your perseverance. Some steps towards a solution have been concretized by the agreements between the parties since the acceptance of the referendum on self-determination under the aegis of the organization of the United Nations up to the Houston “accords”. We think that it is from these positive elements that a way out of the crisis can be initiated, in search of which Algeria is disposed to bring its contribution.

It is therefore to answer your friendly request that I am sending you this memorandum in which we give our opinion on the “informal” proposal that you kindly presented to us. I hope you receive it well and remain of course at your disposal, either directly or by diplomatic channel, to eventually give you all the clarifications that you may wish concerning this communication.

Having had several times the occasion to discuss this problem and your mission with my friend Kofi Annan, Secretary-General of the United Nations, I thought well to send him a copy of this memorandum, so that he would be directly informed of the Algerian positions. I hope you will not consider this an inconvenience and in awaiting our meeting again, or learning of your reactions, allow me to extend dear Mr. Baker, the assurance of my most cordial and friendly sentiments.

1. The Personal Envoy of the Secretary-General of the United Nations, Mr. James Baker III left in Algiers, on 5 May 2001, an informal document on a “Framework Agreement on the Status of Western Sahara”. Before commenting on this document, it is appropriate to briefly recall the content of the mandate of the Personal Envoy.

2. By its resolution 1084 (1996) dated 27 November 1996, the Security Council reaffirmed the need for “a free, fair and impartial referendum for the self-determination of the people of Western Sahara” in conformity with the Settlement Plan. The Council requested also that the “Secretary-General propose alternative steps, in the framework of the Settlement Plan, should there be no meaningful progress towards removing the obstacles to the implementation of the Plan”.

3. During his first trip to the region in April 1997, the Personal Envoy deemed necessary to point out to the different parties that his mission consists essentially in assessing the implementation of the Settlement Plan, in considering the means to increase the chances for the resumption of its implementation in a near future and in case of non-success, to indicate to the Secretary-General other possible ways to move the peace process forward. Faced with this choice, the two parties to the conflict, Morocco and the Frente POLISARIO, clearly expressed their refusal of any alternative solution to the Settlement Plan and their firm attachment to its implementation.

4. By its resolutions 1342 (2001) and 1349 (2001), adopted respectively on 27 February and 27 April 2001, the Security Council indicated that it expected that “the parties (...) will continue to try to resolve the multiple problems relating to the implementation of the Settlement Plan and try to agree upon a mutually acceptable political solution to their dispute over Western Sahara”.

5. Considered in the light of the two above-mentioned recalls, which are as necessary as important, the informal proposal entitled “Framework Agreement on the Status of Western Sahara” moves substantively away from the approach which has so far been endorsed by the two Parties and the international community.

6. Though this proposal is within the framework of the efforts that the Secretary-General’s Personal Envoy is making to overcome the current difficulties, it nonetheless totally ignores the basic principles that have always founded the United Nations action in the field of decolonization in general and in that of Western Sahara in particular. In this regard, it is appropriate to recall that these principles are based on the self-determination and the free expression of the Sahrawi people through “a free, fair and impartial referendum for the self-determination of the people of Western Sahara”.

7. It is therefore clear that, contrary to the mandate given by the Security Council resolutions, the current proposal favours only one approach, that of the integration of Western Sahara to the Kingdom of Morocco, to the detriment of the “double track” approach, put forward to overcome the difficulties encountered by the peace process. In these conditions, there are very serious reasons to fear that the radical alignment on such an integration choice will fail to bring the two parties to the conflict together and achieve the “mutually acceptable political solution to their dispute over Western Sahara” to which the Security Council remains attached.

8. First of all, the document refers to the “population” of Western Sahara, thus avoiding mentioning the “Sahrawi people” who is yet the official and entitled holder of the right to self-determination.

9. The first Executive is designated by the voters inscribed on the list of the persons accepted by the United Nations while the Legislative is elected by residents meeting certain conditions. This means that one of the parties to the conflict, the Frente POLISARIO, would be denied any particular right or say on these two designations which would establish an obvious lack of balance regarding the prerogatives recognized to the other party to the conflict, the “administering Power”. It is therefore clearly predictable that this modality of designation would already lead, by itself, to the creation of an Executive and a Legislative which would favour only the solution of integration.

10. This solution of integration is moreover a very high probability owing to the context itself in which the Executive would be called to act. In fact, the draft under consideration does not provide, anywhere, for either the withdrawal of the administration of the “administering Power” or the cantonment of its forces. On the contrary, by envisaging that this Power will keep different high responsibilities, among them the “national” security, the determination and the defence of the frontiers, the production, possession, sale or use of armaments, the draft endorses the present situation and makes it everlasting. It is therefore clear that, assuming that the Executive would not be, straight away, a simple emanation or a reflect of the administration, the army and the police of the “administering Power”, everything would lead to the conclusion that this Executive would be, at best, a hostage-Executive, and a body deprived of proper authority, condemned either to paralysis or to dependence and inefficiency.

11. This context in which the Executive would operate during the four first years of its existence (and we wonder which motive would justify the choice of this period of time, while a shorter or longer period would serve in the same manner the objective of integration being sought), creates even more clearly an imbalance between the two parties to the conflict and might perfectly lead to the failure of the whole scheme since the political, administrative and socio-economic environment created in Western Sahara and strongly inspired by an integration of that country remains unchanged. The draft proposal indicates indeed that “the administering Power” holds all the attributes of sovereignty over the considered territory, beside obtaining prerogatives in vital fields pertaining to national sovereignty. It also gets the assurance that its Constitution and legislation will be implemented in Western Sahara. Therefore the draft proposal can be considered as “credible, substantive and authentic” only in its aim to establish, from the start, a process characterized by the logic of integration of the Sahrawi territory to “the administering Power”, a logic that the Executive would obviously not be in a position to reverse.

12. With regard to the period after the first four-year phase, the draft proposal clearly strengthens the integration vision when the Executive is designated by “a majority vote of the Assembly”, a legislative organ of which we know that, since the very beginning of the first four years of the proposed process, it will not be elected through the vote cast by the Sahrawi people duly and strictly identified as such in conformity with criteria already established, but by the vote of a population whose origin and number can be indefinitely extended. The criteria of the simple one year residency in Western Sahara would allow the realization, without any doubt, of all that the United Nations and the Personal Envoy have precisely tried to avoid up to now: the absence of any distinction between the two peoples, that would lead to highly questionable conclusions in any popular consultation. It is therefore clearly predictable that the designation of the Executive by the Assembly, for the second phase will already produce, by itself, an Executive identical to the Assembly and which by nature, would but favour the solution of integration.

13. Concerning the establishment of a legislative authority, what has been said above with regard to the modalities of the election of the Assembly by all those meeting the criteria of one year’s residence, makes any other commentary unnecessary. However, it might be useful to add that the Assembly is strictly inscribed in the scheme of the integration approach, since the Assembly is required to legislate within the strict framework of the Constitution and the legislation of the “administering Power”.

14. In these conditions, it is superfluous to underline that the draft proposal is silent on the relationship between the Executive and the Assembly, during the first phase as well as the second one. If this relationship is not made more explicit, it is not totally undetermined either. Nothing in the draft proposal would, indeed, prevent the Assembly, which already holds the power to designate the Executive for the second phase, from passing all kinds of bills that would deprive the Executive of all its prerogatives.

15. It is useless to consider thoroughly the role assigned to the judicial authority by the draft proposal, because here again the draft clearly places this authority in a logic of integration. The draft remains silent on the identification of the authority entitled to determine the number of tribunals in Western Sahara. But one can through this context, unmistakably, draw the conclusion that it will be either the Assembly or “the administering Power” directly that will decide on this issue. In any case the appointment of the judges would be the prerogative of the “administering Power” which will select them “within the National Institute for Judicial Studies”. These judges will implement, because of their professional training, but also by the effect of the draft under consideration, the legislation of the present “administering Power”.

16. The referendum which will decide on the status of the territory will be monitored by an Executive which is already oriented towards the integration solution, as we have demonstrated above. The participation in the referendum of all persons who have resided at least a year in the territory opens further the way to all kinds of manipulations which, in the end, would deprive the Sahrawi people of their right to self-determination. In sum, in this draft proposal, everything converges, with a certain consistency and because of a deliberate choice made from the very beginning, towards an integration solution. It would be fundamentally contrary to the very letter and spirit of the draft proposal to consider the latter as a proposal made with the intention to try to achieve a breakthrough in the quest for a third way. This draft establishes the abandonment of what has been at the heart of the exercise of the identification of the persons entitled to participate in the self-determination referendum decided upon by the United Nations, in their verified and recognized capacity as real nationals of the territory concerning which the popular consultation is to be held.

17. The proposed solution does not seem to be in compliance with the relevant Security Council resolutions on Western Sahara. This integration solution creates a confusion between authentic Sahrawis and nationals of the de facto “administering Power”, and makes of the authentic Sahrawis a minority engulfed in the mass of the other inhabitants. In fact, it intends to eliminate the Sahrawi specificity, the concept of the Sahrawi entity and finally the very notion of Sahrawi people. This is all the more true in that the draft gives the de facto “administering Power” exorbitant prerogatives for the preservation of “the territorial integrity against any secession” and entrusts it with the power to suppress and repress any political activity in favour of independence. This could lead, in other words, to the neutralization of any action aiming at preserving the national Sahrawi identity.

18. For all these reasons, this draft confirms and legalizes the illegal occupation of the Sahrawi territory and constitutes the chronicle of a planned integration, in violation of international legality, embodied in the Charter of the United Nations, in United Nations doctrine in the field of decolonization and in all relevant resolutions and commitments regularly reaffirmed by the international community in favour of the real self-determination of the Sahrawi people.

19. The tireless efforts of the Personal Envoy deserve the warmest marks of appreciation and the deep gratitude of all countries in the region. We hope that he will persevere in his peace endeavours with, from now on, the view of exploring authentic alternative solutions based on equity and justice that will lead to the restoration of lasting peace and stability for all peoples in the region. In this renewed approach, the Personal Envoy can rely on his own authority as well as his wide experience of international relations. There is every reason to be confident that his patient search for a solution which is mutually acceptable to all parties to the conflict will finally make it possible to overcome the obstacles encountered up to now and will receive in any case, the sympathy and the assistance of Algeria.

20. The issue of Western Sahara, which determines peace in the region as well the march of Maghreb towards its unity, deserves such efforts of imagination. We want success for the Personal Envoy’s endeavours towards an alternative solution; these efforts, if they fail, would make it possible, legitimately and legally, to go back to the implementation of the Settlement Plan as designed by the international community and accepted by the parties to the conflict.

1. The Algerian memorandum makes three points: (a) that the proposed framework agreement favours the notion and, indeed, prepares the ground for eventual integration of Western Sahara with Morocco; (b) that the framework goes against the principle of self-determination; and (c) that the Personal Envoy of the Secretary-General has not followed his mandate, requiring him to work on the “double track”, but has focused instead solely on a political solution.

2. In order to show that the framework is biased towards integration, the Algerian memorandum uses the following examples: (a) the manner of electing the Executive and Assembly and the undefined nature of the relationship between the two; (b) the fact that the referendum on the final status of the Territory will be monitored by an Executive, which the memorandum considers as oriented towards integration; (c) the provisions that Morocco will retain responsibility for foreign affairs, external defence, national security, etc., without providing for Morocco’s withdrawal from the Territory; and (d) the lack of details over certain issues in the proposed framework agreement.

3. The claim that the framework agreement is biased in favour of integration is misleading for the following reasons. The framework provides for the Executive to be elected by those included in the United Nations provisional voter list (without giving effect to any appeals). The Legislature will be elected by voters who have been included in the Office of the United Nations High Commissioner for Refugees (UNHCR) repatriation list as of 31 October 2000 (the official date of completion of the UNHCR pre-registration exercise) or those who have been continuous residents in the Territory as of 31 October 1998. Since the UNHCR repatriation list has been compiled on the basis of the United Nations provisional voter list (which, both Algeria and the Frente POLISARIO, accept as “the voter list” for the referendum under the settlement plan), it is incorrect to claim that the Executive and Legislature will be elected by voters who would favour integration. Both bodies will be elected by voters that each party feels will give it some advantage.

4. By stating that the framework confers to Morocco attributes of sovereignty over the Territory (by not allowing any secessionist movements) during the first five years, the memorandum fails to see that the framework agreement is not seeking to address the question of independence for Western Sahara but rather that of an autonomous entity under Moroccan administration, for a limited period of time. The prerogatives and powers listed as belonging to the national Government are those usually held by the central government in all cases of devolution of authority, which are genuine, substantive and keeping with international norms.

5. As for the fact that some of the provisions of the framework agreement lack detail, this is not unusual, considering the nature of the document. Lack of specificity and disagreements among parties over general frameworks are usually dealt with during discussions at the negotiating table.

6. With regard to the statement that the framework agreement does not allow the “Sahrawi people” to exercise their right to self-determination, the memorandum is mistaken in claiming that this is the officially used term. The expressions used throughout the settlement plan are “Western Saharans”, or “the population of Western Sahara” or “the people of Western Sahara”. In addition, by referring to the “authentic Sahrawis as a minority to be engulfed in the mass of other inhabitants”, the memorandum appears to consider as genuine Saharans only those living in the Tindouf camps and ignores a large part of the Saharan population who chose to remain and continue to reside in the Territory under Moroccan administration. More significantly, the memorandum ignores the fact that the framework agreement provides for a referendum on the final status of Western Sahara to be held after five years, and that it gives both sides equal opportunity to compete in winning that referendum.

7. Turning to the mandate of the Personal Envoy, the memorandum misinterprets it by referring to resolution 1084 (1996) of 27 November 1996, which was adopted prior to Mr. Baker’s appointment. The Personal Envoy’s mandate originates from resolution 1108 (1997) of 22 May 1997, which refers to the statement of the President of the Security Council of 19 March 1997 (PRST/1997/16), welcoming the appointment of the Personal Envoy and expressing the Council’s strong support for the Secretary-General’s efforts to overcome the stalemate.

8. The memorandum recalls Security Council resolutions 1342 (2000) and 1349 (2001), which expect the parties to work both on resolving the multiple problems relating to the implementation of the settlement plan and on trying to agree on a mutually acceptable political solution, and finds that the proposed framework agreement moves substantively away from the approach, which has been endorsed by the two parties and the international community. As the Security Council was informed, it became clear during the three rounds of consultations under the auspices of the Personal Envoy in 2000, that the two parties could not agree on how to resolve the multiple problems related to the implementation of the settlement plan. Since they have not agreed, over a period of 10 years, on how to resolve these problems, and made it clear in the above-mentioned consultations that they were not likely to do so, it is logical that the proposed framework agreement would concentrate on an acceptable political solution.