Negotiating Free Association between Western Sahara and Morocco: A Comparative Legal Analysis of Formulas for Self-Determination

Abstract

AbstractThe proposal of new negotiation formulae in the midst of stalemated conflicts can help to reframe the problem and restart dialogue. They can also unleash new controversy. The Moroccan Initiative for Negotiating an Autonomy Statute for the Sahara Region is a formulaic proposal advanced by Morocco to describe the broad outlines for Sahrawi autonomy under Moroccan sovereignty. It has been the subject of debate within the international community since it was first introduced in April 2007. Until now, however, discussion of its efficacy as a formulaic basis for a negotiated resolution to the Western Sahara dispute has largely outweighed serious consideration of how the proposal relates to current understandings of international law concerning self-determination and free association. Like Western Sahara, the Cook Islands, Niue, Aceh, New Caledonia, and Bougainville are cases of non-self-governing territories and other high autonomy arrangements where there has been recognition of the need to substitute, as the basis for ending the conflict, a comprehensive negotiated political status, in place of frequently unworkable or unattractive alternatives such as a contentious referendum on independence, open-ended talks, or continued armed conflict. In light of the lessons learned from actual state practice and international responses in the foregoing cases, an assessment of the present Moroccan proposal demonstrates that with some improvements, it may offer a viable new starting point for negotiations. The result of using this plan as a formula to restart negotiations can be the attainment for Western Sahara of a full measure of self-government ‐ in a manner consistent with international law ‐ by means of free association.