Legality versus reality in the Sahara

Gaspar Atienza. Professor. IE School of Arts and Humanities

5 October 2009

The conflict in the Western Sahara can only be resolved when all the parties involved understand that common interests should prevail over rigid initial posturing.

The duration and complexity of the conflict in the Western Sahara mean that it requires pragmatic proposals that comply with international law. The number of players (Morocco, Algeria, the Polisario Front, Spain, France, USA and the UNO, among others) and opposing interests requires a solution which, as pointed out by Peter Van Walsum, the UNO envoy to the region in 2008, takes into account "political reality and international legality". Accordingly, the law must be interpreted in a changing social, political and economic climate and the social reality must be interpreted from the viewpoint of human rights, security and the future of the Saharan and Moroccan people.

The international community has a lot on the table in this conflict. If it uses the principle of the self-determination of nations (which means independence or the return of territorial integrity, as is the case of Gibraltar and the Falkland Islands) and the long-standing connection between Morocco and the Sahara (especially between the Saharan tribes and the Sultan) to solve a long-standing colonial conflict, it must also be able avoid the region becoming a new hiding place for terrorists and bandits. The failed states in which terrorists and outlaws grow strong because the state is weak (it loses sovereignty and, therefore, is no longer a state) are damaging for the entire international community, especially the people of Morocco located in the Sahel.

No independence and self-determination process is exempt from risk and uncertainty: the 1990s showed us that if there is no previous appropriate political and institutional framework, these processes can lead to greater instability and even civil conflict. Once again, it is the lack of sovereignty (which the Polisario Front, with or without Algeria, would not really be capable of exercising in the Sahara) that could encourage the anti-democratic forces to undermine the self-determination process and the setting-up of democracy.

The conflict of the Sahara will only be solved at a safe distance from maximalist standpoints, such as the total and unconditional independence of the Sahara or its complete integration with Morocco as another province or region. Common interest should prevail over the inflexibility of the initial standpoints, as the pragmatism of the Security Council and Barack Obama seems to suggest.

If Decision 1871 of the Security Council of April 2009 requires negotiations in good faith, without preliminary conditions to search for a solution that is "fair, lasting and acceptable for the parties", pragmatism is the key factor in the American president´s foreign policy, which seeks practical solutions and uses all the methods and instruments at its disposal without heeding the norms of any particular international school.

There is one pragmatic solution that would be in accordance with international law, since it comes from a neutral and objective process that should be related to international practice and the actions taken by politicians and states. It is the political prudence professed by Kant: "The theoretical plans for political law, people law and cosmopolitan law evaporate into empty, impractical ideals, whereas a practice that is based on the empirical principles of human nature and which does not consider itself above learning from what happens in the world could expect to find a more solid foundation for building political prudence".

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