Since 1976, a large part of the Western Sahara has been under Moroccan control, who claim it as part of their national territory. This claim has been disputed under international law (see also this blog). Currently the territory is populated mostly by Moroccan and (indigenous) Sahrawi people. As part of our study on the development rights of children living in unrecognized states, we visited this area and studied the rights of children living here. Because we deemed this the most prominent children’s rights issue in the area, this case study focuses on the child’s right to freedom of expression. You can find the report presenting the results of this case study here. Below you find all the blogs and vlogs related to this case study.
2 December 2021 - By Emilia Klebanowski
When studying the right to freedom of expression in Western Sahara we found a lot of information which we would like to share with the United Nations Human Rights Council within their Universal Periodic Review (UPR) process. Morocco is up for review in May 2022. Below I will firstly, explain what the UPR process is, secondly, elaborate on why Moroccan law does not protect the right to freedom of expression completely and thirdly, talk about the practice by Moroccan authorities.
What is the UPR?
Every five years each member of the United Nations (UN) has to report to the UN Human Rights Council, which is the UN body responsible for the promotion and protection of human rights. States have to report on how they are doing in terms of human rights. Have they protected the rights of their people well in the past five years? What went well, what can be done better, and how are they planning to improve? This process is called the Universal Periodic Review (UPR) process. To check if the information provided by these states is complete and correct, the Human Rights Council asks civil society organizations to produce “shadow reports”, which are reports providing information on the human rights situation on the ground. So that is exactly what we did, together with our partner organizations.
Since this report is about the State (in this case Morocco), we can only report what Morocco does or does not do to protect the right to freedom of expression. So, what according to our report are the main issues?
Why Moroccan law does not protect the right to freedom of expression completely
Under Moroccan law, everyone has a right to freely express themselves. Morocco has also consented to comply with major human rights treaties which safeguard the right to freedom of expression. This means that Morocco is under an obligation to protect the right to freedom of expression, and if it does not, it can be held accountable. This may sound great at first, so what exactly is the problem with Moroccan law? During our research we found that there are some parts of Moroccan law that actually restrict the right to freedom of expression. Some of these restrictions are in line with international human rights law, others, however, are illegal. Generally, Moroccan law does not allow:
In this blog post I will focus on one of these restrictions, namely expressions undermining Islamic religion.
A prohibition on expressions that undermine Islamic religion
Why is it problematic that Moroccan law restricts expressions undermining or questioning Islam? Why is it contrary to international human rights law? The Human Rights Committee stated that prohibitions on expressions that disrespect a religion are incompatible with international human rights law. This means that if someone criticizes or questions Islamic religion, this should – in principle - be allowed by the State. However, there is an exception to this. If someone criticizes religion in a way that amounts to hate speech, then this is not allowed. The Cambridge Dictionary defines hate speech as “public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation”. The threshold for an expression to be considered “hate speech” is rather high, since limitation of speech must remain an exception. Ordinary expressions criticizing or undermining Islam do not reach that threshold.
Now some might argue that expressions that criticize Islamic religion interfere with someone else’s right to freedom of religion. According to UN experts, this is not the case. Two independent experts appointed by the Human Rights Council, the UN Special Rapporteur on freedom of religion or belief and the UN Special Rapporteur on contemporary forms of racism, xenophobia and related intolerance, said that
“[Criticism] of religions may offend people and hurt their religious feelings, but it does not necessarily or at least directly result in a violation of their rights, including their right to freedom of religion. Freedom of religion primarily confers a right to act in accordance with one’s religion, but it does not bestow a right for believers to have their religion itself protected from all adverse comment.”
In sum, the scope of this prohibition in Moroccan law is too broad, since it prohibits any expression undermining Islamic religion. Looking at international human rights law only those expressions reaching the threshold of hate speech should be prohibited – and certainly not all expressions.
12 Novemer 2021 - The Mococcan controlled Western Sahara
This vlog is about the challenges faced by the researchers, Marieke and Florentina, during their field visit to Morocco-controlled Western Sahara and the way they have managed to address the challenge.
27 October 2021 - Introducing The Western Sahara
This introductory vlog is providing an overview about a research project on the rights of children living in Western Sahara, a territory claims by Morocco and Sahrawi Arab Democratic Republic. Since very little is known about the situation of children in the Western Sahara, the subsequent vlogs will present the findings of this field research.
By Marieke Hopman - 24 August 2021
By Marieke Hopman - 17 June 2021
Today I received a phone call from a young person who lives in the area “West of the Berm”, which is the area of the Western Sahara that is under Moroccan control. This person had read our report and wanted to discuss the content. He said “I really like you research, but there are some things that you didn’t include”.
The caller wondered why we didn’t discuss the legal status of the area. Why didn’t we indicate that the territory is illegally occupied? We actually received this question a lot from the Sahrawi community. They wonder: Why don’t we mention that under international law, the authority of Morocco over this part of the Western Sahara is considered an occupation? Some may even be angry that we don’t mention this, because of their strong feelings regarding the injustice of the political situation. Their claim of the illegality of Moroccan authority over the area is mostly based on the advisory opinion on Western Sahara by the International Court of Justice (ICJ). The court found that while at the time of Spanish colonization there were ‘legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara’, these ties did not ‘establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco’ (§ 162). Morocco disagrees with this finding and feels that that the Western Sahara is legally and justly their territory since it used to be part of pre-colonial “larger Morocco”. See this Moroccan government website about the Western Sahara.
As I explained to the caller, in our report, we made a conscious choice not to get into this political and legal discussion. We made this choice, because this is not our research subject. We are not trying to decide who is the legitimate authority over the Western Sahara. There are many others who have written on the subject (e.g.: Okere (1979), Maghraoui (2003), Zunes (2015). Rather, we are trying to understand what the situation is regarding the child’s right to freedom of expression in this area, and what can be done to improve the protection of this right, by all actors involved. We want children, parents, teachers, politicians, NGOs and local community members to hear our message. If we would discuss the legal and political conflict over the territory, even if briefly, this would immediately become the centre of attention for most of our readers. Everyone would start discussing this part of the study, and very few would still pay any attention to what (else) children are not free to discuss. This would certainly not help the children living in this area at all.
In spite of these arguments, the question of whether or not to discuss the legal/political situation regarding (il)legitimate authority over the Western Sahara has lead to much discussion, with actors from both sides as well as within our research team. Does trying to stay neutral on this conflict, to be able to address a children’s rights issue, mean “siding with the oppressor”, as one of my colleagues suggested? Personally, I don’t think so. This is first, because we don’t use the preferred term of either parties (“Occupied Western Sahara” would be preferred by the Sahrawi activists, “Moroccan Sahara” or “Moroccan Southern Provinces” would be preferred by Moroccan nationalists). Instead, we use the UN term “West of the Berm”. Second, we don’t take a position, but we are critical of children’s rights violations happening within the territory, by all actors. Lastly, I don’t see how it would be necessary to first discuss whether or not Morocco’s position in the Western Sahara is legal, before we can discuss the situation of the child’s right to freedom of expression.
Report page where the area under research is discussed
SOURCE: UN Department of Peacekeeping Operations
Cartographic Section. (2014, April). UN map MINURSO-
deployment Western Sahara, April 2014 [Illustration].
It doesn’t matter which side you agree with, because in any case, everyone should be free to voice their opinions.
Instead of siding with one of the conflicting parties, I choose to side with the children. The children who are not allowed to freely express their ideas.
In our study we found that children are not allowed to:
As you can read in our report (p. 10-15) different actors play a role in the limitation of this child’s right. The Moroccan state is an important, but not the only, actor limiting this right for children.
The other day I shared this thought with a Sahrawi contact: “I just hope everyone wants to read the report and forget about the conflict for a minute and think about what is best for children...”. He immediately replied: “It is very impossible for people here to forget about politics!”. I think he is right about that. And as I told him, I probably shouldn’t say “forget, but more like, for a minute not see that as the most important and only issue.”
I may be naïve to think that this is possible. I may be naïve to think that one day, all actors could create the space for children to freely discuss their thoughts. That children would be allowed to say so if they think the Moroccan King is a bad leader, or that they have homosexual feelings, or that they are not sure whether they believe in Allah. Or that they think Morocco should get out of the Western Sahara. I understand that with all these subjects there are many emotions, beliefs and experiences of injustices that make people particularly opposed to free discussion. Still, I think this is a right that children (and researchers!) should have. At least, when I explained all this to the young Sahrawi person who called me, he understood. And so there’s at least one person who has received our message.
By Marieke Hopman - 1 June 2021