Legal opinion on the request of the Kingdom of Morocco's admission into the AU

In response to the following questions raised in a communication dated 13 November, 2016 received from the Permanent Representatives of Nigeria, Zimbabwe, South Sudan, Namibia, Uganda, Mozambique, Malawi, Lesotho, South Africa, Algeria and Kenya in regard to the expressed intention of the Kingdom of Morocco to accede to the Constitutive Act of the African Union and to be admitted as a member of the Union, The Office of Legal Counsel responds as follows:

1. Is the request of the Kingdom of Morocco to accede to the Constitutive Act of the African Union and to be admitted as a Member of the Union consistent with the Preamble, Articles 3, 4 (b, e, f, i) and 23 of the Constitutive Act, in particular Article 4(b) relating to the “respect of borders existing on achievement of independence”?
2. Is Morocco eligible to be a Member of the Union as per the African Charter on Human and people’s Rights (the Preamble, Articles 19, 20, 21, 22, 23), and any other relevant OAU/AU and UN legal instruments and decisions?
3. Can the accession request to the Union be accepted while the State concerned neither recognizes nor respects its internationally recognized borders?
4. Is the request for accession to the Union legally acceptable while the concerned State is occupying parts of the territory of a Member of the same Union?
5. Is the Commitment of the Kingdom of Morocco to accede to the Constitutive Act without any reservations or conditions legally sufficient, while at the same time it militarily occupies important parts of the territory of the SADR for more than forty (40) years?
6. Is the Kingdom of Morocco’s commitment genuine if it does not make a solemn pledge to end its occupation of the territory of SADR and accept its own internationally recognized borders?
7. Finally, and even with the deposition of the instrument of ratification, can an occupying country be admitted as a Member of the African Union, while that very same country is in flagrant violation of the principles and values that constitute the foundations of the Union?

It must be stated at the outset that in accordance with Article 29 (1) of the Constitutive Act, any African state may at any time after the entry into force of the Act, express its intention to accede to the Act and be admitted as a member of the Union.  

The Constitutive Act sets out the formal steps for such admission in Article 29 (2) as read with 9 (c).

Therefore, in answering to the questions raised by the Representatives of the member states, the OLC wishes to draw attention to the relevant provisions of the OAU/AU legal instruments, decisions of its policy organs and persuasive authorities from other international organizations.

1. Response to questions 1, 3, 4 and 7 on whether the request for admission by the Kingdom of Morocco is consistent with the objectives and principles of the African Union in light of border recognition issues with Sahrawi Arab Democratic Republic (SADR):

1. The starting point is that the African Union (AU) is established in accordance with the provisions of the Constitutive Act, which is the founding and guiding document of the Union. The issue of admission of the Kingdom of Morocco to the African Union must be examined with due regard to its fundamental provisions.
2. Article 3 of the Constitutive Act sets out the objectives of the Union, while Article 4 stipulates the principles by which the Union shall function.
3. Articles 4 (b) (e) (f) and (i) specifically speak to the issue of respect of borders existing on achievement of independence, peaceful resolution of conflicts, prohibition on the use or threat to use force and peaceful co-existence and the right to live in peace and security of member states of the Union.
4. It should be recalled that the Sahrawi Arab Democratic Republic is a member state of the African Union having formally been admitted in 1983 as a member state of the OAU and subsequently as a founding member state of the Union that enjoys the same rights and is subject to similar obligations as other member states of the Union.
5. The presence of Morocco in Western Sahara territory is considered by the United Nations (UN) and the African Union as occupation (See UN General Assembly Resolution 34/37 of 1979 and various relevant OAU/AU decisions), which is against the founding principles and objectives of AU as articulated in Articles 3 and 4 of the Constitutive Act. Western Sahara remains on the UN list of Non Self-Governing Territories after the abandonment of administrative responsibilities by Spain on 26 February 1976. As a non-self-governing territory, Western Sahara retains its separate and distinct status until such time that the people of that territory will have exercised their right to self-determination.
6. It is to be recalled that Morocco had entered a reservation to Article 3 (3) of the OAU Charter which enshrines the principle of respect of sovereignty and territorial integrity of each State declaring that “His Majesty’s Government does not intend in any way to renounce its legitimate rights in the peaceful realization of the territorial integrity of the Kingdom within its authentic frontiers’’. The Kingdom of Morocco still evokes the concept of authentic frontiers in Article 42 of its 1 July 2011 Constitution, which states that “ He (The King) is the Guarantor of the Independence of the country and of the territorial integrity of the Kingdom within its authentic borders”.  
7. It is also necessary to recall that the European Court of Justice delivered its judgment on 21 December 2016, in the Appeal in Case C‑104/16 P, under Article 56 of the Statute of the Court of Justice of the European Union, filed by the Council of the European Union on 19 February 2016, supported by some EU member states and the Commission, as well as the Confédération marocaine de l’agriculture et du développement rural (Comader), as interveners in the appeal, The Respondent in the proceedings was Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario), the applicant at first instance. The Appeal was against the judgment of the first instance Court that annulled, as requested by the Polisario Front, the Agreement between the European Union and the Kingdom of Morocco concerning liberalisation measures on agricultural and fishery products from Morocco and Western Sahara.
8. In this regard, the European Court of Justice found that the Agreement between Morocco and the EU Commission in the form of an Exchange of Letters between the European Union and the Kingdom of Morocco concerning reciprocal liberalisation measures on agricultural products, processed agricultural products, fish and fishery products applies only to the internationally recognized borders of Morocco and does not apply to Western Sahara. Furthermore, .the Court also found that Western Sahara is a separate territory in North-West Africa, bordered by Morocco to the north, Algeria to the north-east, Mauritania to the east and south and the Atlantic to the west.
9. All these factors taken together with the continuing dispute between the Kingdom of Morocco and Western Sahara as well as the recognition and admission of SADR into the African Union, poses a significant challenge for the Union which functions in accordance with the principles set out in Articles 4 (b) (e) (f) and (i) of the Constitutive Act.
10. It may be recalled that in the border dispute between the Republics of Burkina Faso and Mali, the International Court of Justice (ICJ) decided on 22 December, 1986, that there was no need to show that the respect of intangibility of frontiers inherited from colonization is a firmly established principle of international law, where decolonization is concerned. The ICJ further noted that the principle is not a special rule, which pertains solely to one specific system of international law, but rather a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.
11.  Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.
12. At its 25th Ordinary Session held from 14 – 15 June 2015 in Johannesburg, South Africa, the Assembly vide Decision Assembly/AU/Dec. 583(XXV) addressed the continued impasse in the search for a solution to the conflict in Western Sahara and called on the UN General Assembly to determine a date for the holding of the self- determination referendum for the people of Western Sahara and protect the integrity of Western Sahara as a non-self-governing territory from any act, which may undermine it.
13. Further, in its most recent resolution on the Western Sahara, the UN Security Council at its 7684^th meeting, held on 29 April 2016 adopted Resolution 2285(2016) reaffirming its will to “help the parties involved to reach a fair, sustainable and mutually acceptable solution which would provide for the self-determination of the People of Western Sahara.”
14. Customary International law dictates that no reservation can be entered if it is incompatible with the objects and purpose of that treaty. This principle is codified in Article 19 of the 1969 Vienna Convention on the Law of Treaties. In that regard, Articles 3 and 4 of the Constitutive Act are fundamental provisions as they set out the principles and objectives of the African Union and as such cannot be derogated from in any way. Therefore, a state willing to accede to the African Union must fully comply with the letter and spirit of these provisions.
15. Additionally, the African Union Peace and Security Council, during its 617^th Meeting held on 12 August 2016, adopted Communique PSC/PR/COMM. (DCXVII) by which it recalled the principles and objectives stipulated in the Constitutive Act and underscored the importance of any African State intending to accede to the African Union Constitutive Act and to be admitted as a Member of the Union to fulfil all the requirements stipulated in the Constitutive Act, in particular Article 27 and Article 29 (1) and (2), as well as the overarching provisions of Article 9(c). More importantly, the Council stressed the need for such a State to commit itself fully to upholding and respecting the principles of the Union as outlined in Article 4 of the Constitutive Act.
16. Therefore, a plain reading of Articles 4 (b), (e), (f) and (i) of the Constitutive Act in relation to the request for admission into the Union juxtaposed against the unresolved situation prevailing between the Kingdom of Morocco and Western Sahara opens up the possibility of significant compliance challenges with the objects, purpose and values of the Union.

1. Response to question 2 on whether the Kingdom of Morocco’s request is in conformity with the African Charter on Human and peoples’ Rights and other relevant OAU/AU and UN legal instruments and decisions:

1. While peoples’ rights to equality, self-determination, access to their wealth and natural resources, development and peaceful co-existence as set out under Articles 19 to 23 of the African Charter on Human and Peoples’ Rights are inalienable human rights, the provisions of the Charter are directly applicable to the question of admission of a new member state to the Union, as enshrined in article 3(h) of the Constitutive Act.
2. Article 3 (h) stipulates that the objectives of thwe Union shall be “ to promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments”.
3. In light of this provision, and given that all the member states of the Union are states parties to the Charter, there is a need to determine whether a state intending to join the Union is capable of compliance with customary international human rights law that is codified in the Charter. One of these fundamental human rights is the right to self-determination.
4. In its preamble, the Charter reaffirms the solemn pledge made by the member states of the OAU (of which the Kingdom of Morocco was a part) to eradicate all forms of colonialism from Africa. It also takes cognisance of member states’ duty to achieve total liberation of Africa.   
5. In this regard, it is to be recalled that when making its observations on the fourth periodic report submitted by the Kingdom of Morocco to the 54^th session of the Committee on Economic, Social and Cultural Rights of the Economic and Social Council of the United Nations held on 8 October, 2015, the Committee reiterated its concern about the failure “to find a solution to the issue of the right to self-determination of the non-self-governing territory of Western Sahara”.
6.  The Committee recommended to the Kingdom of Morocco to find a solution to the issue of the right to self-determination in Western Sahara, as established in Article 1 of the International Covenant on Economic, Social, and Cultural Rights, which recognizes the right of all peoples to freely determine their political status and freely pursue their economic, social, and cultural development.
7. In addition, in its Resolution on the human rights situation in the Sahrawi Arab Democratic Republic, ACHPR/Res.340 (LVIII) adopted on 20 April 2016, the African Commission on Human and Peoples Rights (AFCHPR) reaffirmed “the relevant United Nations Resolutions recognizing the status of Non-Self-Governing Territories in Western Sahara, making them the subject of decolonization and calling for the holding of a free and fair referendum on the self-determination of Western Sahara”. The Commission further stressed the need to address the issues of the respect of human rights and the illegal exploitation of the territory’s natural resources.
8. It will be recalled that in the 16^th ordinary session of the Assembly of the Heads of State and Government of the African Union held in Addis Ababa in January 2011, the Heads of State and Government inspired by the shared Values embodied in the Constitutive Act of the African Union, which, amongst others, emphasise the significance of democratic governance, popular participation, the rule of law, human and peoples’ rights and sustainable socioeconomic development vide Assembly/AU/ Decl.1(XVI) committed themselves to enhancing efforts aimed at reinforcing a deeper understanding of Shared Values and their promotion and popularisation amongst the African peoples as a means of shaping Africa’s common future and mobilising the African peoples towards achieving the shared vision of continental integration and unity.
9. The Assembly further urged all African peoples and stakeholders to take ownership of adopted Shared Values, through amongst others, providing resources and promoting these as a basis for enhancing African unity and integration.
10. In view of the foregoing and taking into account African Union own core and fundamental values and the shared values it has committed itself to adopt and take ownership of, the observations and calls from the UN ECOSOCC and the ACHPR bring to fore the issue of eligibility of a State that is intending to join the African Union and to abide by the objects and purpose of the AU, when one of its fundamental shared values is the right to self-determination.
11. The foregoing, analysed in light of the Western Sahara situation, should be fully taken into account by Member States when making the decision on the admissibility of the request of the Kingdom of Morocco to join the Union. 
12. It is to be recalled that the OAU/AU has been calling for many years for the organisation of a referendum of self-determination in Western Sahara. For example, at its 19^th ordinary session held in Addis Ababa on 12^th June, 1983, the Assembly of Heads of State and Government of the OAU recalled with appreciation his Majesty King Hassan of Morocco’s solemn commitment to accept the holding of a referendum for self-determination of the people of Western Sahara to enable them exercise their right to self-determination.
13. Subsequently, vide Resolution 690 (1991), the United Nations Security Council, decided to establish the United Nations Mission for the Referendum in Western Sahara (MINURSO) and expressed its full support for the efforts of the UN Secretary General for the organization and the supervision by the United Nations in cooperation with the OAU, of a referendum for self-determination of the people of Western Sahara. More recently, at its 22^nd ordinary session held in Addis Ababa in January 2013, the Executive Council, vide Decision EX.CL/Dec.758 (XXII) endorsed by the Assembly, requested the Commission to take all the necessary measures for the organization of a referendum for self-determination of the people of Western Sahara in compliance with the relevant OAU/AU decisions and UN resolutions. However, the referendum has thus far not been held.
14. In view of the foregoing, considering that the Kingdom of Morocco is deemed by the African Union as occupying the territory of another Member State and preventing the people therein from exercising their right to self-determination, it would be difficult to reconcile the obligation to take necessary action towards eradicating all forms of colonialism and achieving total liberation in Africa with the admission of a member state occupying another member state of the Union.

1. Response to questions 5 and 6 regarding the commitment of the Kingdom of Morocco to the Union:

1. The Constitutive Act of an international organisation such as that of the African Union has a dualistic character as a founding treaty of the international organization as well as an international agreement concluded in a written form and governed by international law.
2. Therefore, in processing the admission of a new member such as the Kingdom of Morocco to the African Union, it must be noted that on the one hand it goes without saying that upon admission, the member state takes on the obligations set out in the Constitutive Act. On the other hand, given that the founding treaty is an international agreement, the process of admission must involve consideration of the eligibility and suitability and wisdom of allowing a new member in light of whether the member can in essence uphold the terms of the agreement.
3. Therefore, the decision on admission of a member state of necessity involves a determination of the ability of that member state intending to join to comply with the pre-requisites as well as to uphold their obligations under international law.
4.  This is demonstrated in the international arena by, inter alia, the UN Charter and the Treaty on the European Union.
5. Article 4 of the UN Charter provides that membership in the United Nations is open to all peace-loving states which accept the obligations contained in the present Charter and, in the judgement of the Organization, are able, and willing to carry out these obligations.
6.  In this respect, it has to be recalled that in its accession request to the United Nations, in 1956, the Kingdom of Morocco had accepted the obligations enshrined in the UN Charter and committed to respecting them.
7.  In addition, the admission of any such state to membership of the United Nations will be effected by a decision of the General Assembly upon recommendation of the Security Council. Article 49 of the Treaty on the European Union provides that any European State which respects the values enshrined in Article 2 of the Treaty and commits to promote them can request to be a member of the Union. The request is followed by a stringent process before accession.
8. In the African Union, this dualistic character is demonstrated by Articles 9 (c) and Article 29 of the Constitutive Act, which provide in brief that an African State can join the AU through a request stating its will to accede to the Constitutive Act. The request will be shared with the Member States of the Union to determine its admissibility and a final decision will be made by the Assembly.
9. Nevertheless, it is trite law that an instrument is to be interpreted taking into account all relevant provisions, which in this case includes those contained in Articles 3 & 4 on the principles, objectives, values and standards of the Union, in the light of subsequent legal instruments including treaties, declarations and decisions, as well as in the OAU Charter.
10. Having said that, international jurisprudence (see ICJ Advisory opinion on the conditions of admission of a state to membership in the United Nations (Article 4) and practice of International organizations, provides that in the absence of explicit provisions on an issue on which a decision is required, the Organization, through its appropriate body, has the power of interpretation of its Constitution.
11. The practice of the United Nations, particularly in the context of international peace and security, is particularly enlightening in this respect. In the same way, in order to delineate the objective elements against which member states and the Assembly can rely on to assess the request of a state intending to join the Union, the appropriate body that has the power to interpret the Constitutive Act must be seized of the matter.
12. Under Article 26 of the Constitutive Act, the Court of Justice of the Union is seized of any matter arising from the interpretation or application of the Constitutive Act. However, until its establishment, Article 26 stipulates that the matter is submitted to the Assembly which decides by a two-thirds majority. Further, Article 4 (s) of the Rules of Procedure of the Assembly contains a similar provision. Considering that the Court of Justice of the Union has not yet been established despite the entry into force of its Protocol on 11 January 2009, it is up to the Assembly of Union to interpret the Constitutive Act.
13. In accordance with customary international law and Article 31 of the Vienna Convention on the Law of Treaties, this interpretive undertaking must be done in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in the light of its object and purpose.
14. To take account of these conditions of interpretation of the Treaty must lead the Assembly of the Union to adhere to the fundamental provisions of the Constitutive Act, which state its objects and purposes.
15. Therefore, Articles 3 and 4 of the Constitutive Act ought to guide the actions of the organs of the Union and the decisions they are required to take in the exercise of their powers. It is therefore within the powers of the Assembly to determine whether the admission of the Kingdom of Morocco would be in violation of the principles and objectives of the Union relating to decolonization, defending the sovereignty and territorial integrity of all member states and respecting its own and other member states’ internationally recognised borders.
16. In conclusion, the Office of Legal Counsel reiterates that the power to determine the admissibility of a request to join the Union and to make a final decision on such request is ultimately vested in the Assembly of the Union in conformity with Article 9(c) of the Constitutive Act and Rule 4(1)(h) of the Rules of procedure of the Assembly. The questions raised by the Honourable Representatives raise fundamental concerns that have to be taken into account in making the decision on the admission of the Kingdom of Morocco to join the Union.

I thank you.

January 2017