AFRICAN UNION

UNION AFRICAINE

UNIO AFRICANA
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website: www.au.int

Fax: +251-115-517844

LEGAL OPINION ON THE REQUEST OF THE KINGDOM OF

MOROCCOS FOR ADMISSION INTO THE AFRICAN UNION

BY
THE OFFICE OF THE LEGAL COUNSEL
OF THE AFRICAN UNION
JANUARY 2017

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LEGAL OPINION ON THE REQUEST OF THE KINGDOM OF

MOROCCOS FOR ADMISSION INTO THE AFRICAN UNION
BY
THE OFFICE OF THE LEGAL COUNSEL
OF THE AFRICAN UNION
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:
a) 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?
b) Is Morocco eligible to be a Member of the Union as per the African Charter on
Human and peoples Rights (the Preamble, Articles 19, 20, 21, 22, 23), and
any other relevant OAU/AU and UN legal instruments and decisions?
c) Can the accession request to the Union be accepted while the State concerned
neither recognizes nor respects its internationally recognized borders?
d) 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?
e) 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?
f) Is the Kingdom of Moroccos 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?
g) 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

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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.
A.

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

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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 selfdetermination.
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 Majestys 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 Confdration
marocaine de lagriculture et du dveloppement rural (Comader), as
interveners in the appeal, The Respondent in the proceedings was Front
populaire pour la libration 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.

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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-selfgoverning 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 7684th 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

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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.
B.

Response to question 2 on whether the Kingdom of Moroccos request is in

conformity with the African Charter on Human and peoples Rights and other
relevant OAU/AU and UN legal instruments and decisions:
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22.

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,

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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.
23. 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-SelfGoverning 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 territorys natural resources.
24. It will be recalled that in the 16th 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 Africas common future and mobilising the
African peoples towards achieving the shared vision of continental integration
and unity.
25. 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.
26. 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.
27. 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.
28. 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 19th ordinary session held in Addis Ababa on 12th June, 1983,

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the Assembly of Heads of State and Government of the OAU recalled with
appreciation his Majesty King Hassan of Moroccos 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.
29. 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 selfdetermination of the people of Western Sahara. More recently, at its 22nd
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.
30. 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.
C.

Response to questions 5 and 6 regarding the commitment of the Kingdom

of Morocco to the Union:
31. 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.
32. 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.
33. 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

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with the pre-requisites as well as to uphold their obligations under

international law.
34.

This is demonstrated in the international arena by, inter alia, the UN Charter
and the Treaty on the European Union.

35. 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.
36.

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.

37.

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.

38. 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.

39. 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.
40. 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.
41. The practice of the United Nations, particularly in the context of international
peace and security, is particularly enlightening in this respect. In the same

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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.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.