AFRICAN UNION UNION AFRICAINE UNIÃO AFRICANA

 Addis Ababa, ETHIOPIA P.O. Box 3243 Telephone: +251-115-517700 Fax: +251-115-517844 website: www.au.int 

LEGAL OPINION ON THE REQUEST OF THE KINGDOM OF MOROCCO

’S

 FOR ADMISSION INTO THE AFRICAN UNION BY THE OFFICE OF THE LEGAL COUNSEL OF THE AFRICAN UNION JANUARY 2017

 

 

- 2 -

LEGAL OPINION ON THE REQUEST OF THE KINGDOM OF

MOROCCO’S 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 people’s 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 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? 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

 

 

- 3 -

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