I am writing this tribune as former personal envoy of the Secretary-General of the United Nations for Western Sahara. I was originally appointed to this post by Secretary-General Annan in August 2005, and the fifth semiannual extension of my appointment expired on August 21th last. The reason I am writing today is that I want to avail myself of the brief interlude between the time when I had to exercise restraint in airing my personal views because I was the personal envoy, and the fast approaching time when nobody will be interested in my personal views because I am not the personal envoy any longer.
Given the 33 years that the dispute about Western Sahara has endured, I am sometimes tempted to think that I have failed to find a solution because the question is insoluble. If I resist that temptation, it is because I continue to believe that with political will the question can be solved.
My analysis has not changed since I submitted my first oral report to the Security Council in January 2006. I thought the two main ingredients of the impasse were Morocco's decision of April 2004 not to accept any referendum with independence as an option, and the Security Council's unwavering view that there must be a consensual solution to the question of Western Sahara. I focused on the latter, for - as I observed on the occasion - if the Council had been prepared to impose a solution, my analysis would have been very different. As it was, however, the need to find a consensual solution had to be the starting point of any analysis.
This led to my conclusion that there were only two options: indefinite prolongation of the current impasse, or direct negotiations between the parties. Such negotiations would need to be embarked upon without preconditions, and I admitted it was only realistic to predict that, with Morocco in the possession of most of the territory and the Security Council unwilling to put pressure on it, the outcome would fall short of an independent Western Sahara.
This conclusion was criticized by those who felt it was unethical to expect Polisario to settle for political reality simply because Morocco and the Security Council failed to respect international legality, as expressed in General Assembly resolution 1514 of 1960 (on decolonization and self-determination) and the International Court of Justice's advisory opinion of 1975 (on the absence of pre-colonial ties between Morocco and Western Sahara that might affect the application of said resolution). This was not the kind of criticism a mediator could simply brush aside, but I felt it had to be weighed against the risk of giving Polisario false hope by encouraging it to disregard the undeniable fact that from the outset in 1975 the Security Council had consistently made it clear that it could only countenance a consensual solution.
Unfortunately, Polisario's backers generously supplied it with precisely that sort of encouragement. They insisted that sooner or later the Council would recognize that international legality had to be respected and oblige Morocco to accept a referendum with independence as an option.
The reason I do not believe this will happen is that international legality is not the same as international law. The Security Council naturally has to observe international law, but it also has to take into account political reality. The General Assembly, the Security Council and the International Court of Justice are all principal organs of the United Nations. There is no hierarchy among them, but each has specific powers, which are described in the Charter of the United Nations and the Statute of the International Court of Justice. In article 24 of the Charter, member states confer on the Security Council primary responsibility for the maintenance of international peace and security. To fulfil this responsibility the Council has no choice but to take political reality into account. If it does so, it acts within the bounds of its powers under the UN Charter and is thus observing international law.
The Council rarely discusses all the political factors taken into account by individual member states, so their relative weight in the genesis of a resolution will never become known, not even to the Council members themselves. Potential political factors may be, for example, fear of the destabilising effect of coercive action, awareness that redress of an injustice 33 years after the fact may entail new injustices, or reluctance to contribute to the possible creation of another failed state.
When confronted with a dispute, the Council alone decides whether it will act under Chapter VI (pacific settlement of disputes) or Chapter VII (possible use of force in case of threats to the peace or acts of aggression), and it cannot be overruled by any other organ. There is no rule of international law that obliges the Security Council to use all the powers it has at its disposal to give effect to resolutions of the General Assembly or advisory opinions of the International Court of Justice.
This is why criticism of the Council's disregard for international legality has always had so little effect. Among the states members of the Council that most resolutely insist that there can only be a consensual solution to the question of Western Sahara, I have never come across one that thought it might thereby be violating international law. This does not mean that on the Council no one is troubled about the continuing impasse. But there is a growing awareness that Polisario's insistence on full independence for Western Sahara has the unintended effect of deepening the impasse and perpetuating the status quo.
There is a way out, but it is an arduous one that would lead through tough, genuine negotiations. If Polisario could tentatively contemplate a negotiated solution short of full independence, it would instantly be assured of overwhelming international support for its self-evident insistence on solid, internationally anchored, guarantees against a future repeal of the agreed constitutional arrangement or a gradual erosion of civil liberties - such as freedom of speech - on grounds of national security. If at some time in the future Polisario is ready to explore this avenue, I hope it will not just introduce amendments to the Moroccan proposal but submit a comprehensive autonomy proposal of its own.
I do not expect that Polisario will take this step in the foreseeable future. For the time being, nothing will change: Polisario will continue to demand a referendum with independence as an option, Morocco will continue to rule that out, and the Security Council will continue to insist on a consensual solution. Meanwhile the international community will continue to grow used to the status quo.