http://www.pambazuka.org/en/category/features/86404
A lawyer's testimony to the UN
Comments of Katlyn Thomas before the Special Political and
Decolonization Committee of the United Nations General Assembly,
October 2012
2013-02-27, Issue 618
cc AY 'After examining every available legal argument to support
Morocco's presence in the territory we have come to the conclusion
that Morocco cannot claim a legal right to the territory on the basis
of any historic relationship it had with the territory prior to its
colonization by Spain.'
Mr. Chairman, and Ladies and Gentlemen members of the Committee:
My name is Katlyn Thomas, and I am the former Chair of the United
Nations Committee of The Association of the Bar of the City of New
York.
The Association is an independent non-governmental organization with
more than 23,000 members in over 50 countries. Founded in 1870, the
Association has a long history of dedication to the advancement of
principles of international law and the adoption of policies to
implement the United Nations Charter, notably through its United
Nations Committee.
For the past two years the United Nations Committee has conducted an
intensive investigation of legal issues involved in the dispute over
Western Sahara. Last year we published a report on issues involving
Morocco's use of the natural resources of the territory pending a
determination of sovereignty under law.
This past May we published our second report, this one dealing with
the fundamental issue of Morocco's right to claim and occupy the
territory of Western Sahara, and the right of the indigenous
population to self determination under international law.
After examining every available legal argument to support Morocco's
presence in the territory we have come to the conclusion that Morocco
cannot claim a legal right to the territory on the basis of any
historic relationship it had with the territory prior to its
colonization by Spain. This was clearly established by a decision of
the International Court of Justice in 1975 in a case brought at the
request of Morocco. Morocco's action within weeks of that decision to
avoid the implications of that ruling by sending its army into the
territory against the wishes of its inhabitants arguably violates
Article 2, Paragraph 4 and Chapter VII, as well as Artlcle 3(a) of
General Assembly Resolution 3314 (XXIX) to refrain from acts of
aggression. The agreement Morocco reached in 1975 with Spain under
which Spain agreed to withdraw from the territory and permit Morocco
and Mauritania to occupy it does not justify any legal claim to the
territory. Despite its more than 30 years of occupation of Western
Sahara, neither the United Nations, nor the African Union, nor any
individual state has recognized Morocco's claims to the territory as
legitimate. Even the members of the Security Council who have
advocated direct talks between Morocco and the Polisario that have
taken place since 2007, as opposed to the implementation of the
Settlement Plan that would require a referendum, have maintained their
support for the right to self-determination of the people of Western
Sahara.
On the other hand, the right under well established international
legal principles of the indigenous population of the territory – the
Sahraouis – to exercise self determination in determining the
political future of Western Sahara cannot be seriously disputed, and
has not been diminished under law despite this long period of foreign
occupation. Morocco has attempted to qualify this right by comparing
it to the right of self determination of a population which inhabits a
part of an established state. Under this argument the right to self
determination of the Sahraouis should be considered subordinate to the
right of Morocco to maintain its "territorial integrity." The fallacy
of this argument is easily apparent – Western Sahara is not now and
has never been recognized under international legal principles to be a
territory belonging to Morocco.
Our Committee concluded that the right to self-determination under
international law requires that the Sahraouis have the opportunity to
freely determine their political status and that this determination
must include the option of independence. Accordingly, the exercise of
self-determination, in whatever form it may take, must include the
possibility that the final status of Western Sahara will be
independence. Turning to the question of how this right can be
exercised, the Committee noted that the following three procedures
would, in principle, be among the options consistent with the
Sahraouis' right to self-determination under international law:
First, enforcement of the original U.N.-OAU 1991 Settlement Plan.
Under this alternative, the referendum would be conducted by MINURSO
in accordance with the provisions of the Settlement Plan agreed to by
the parties to the conflict, and the list of eligible voters
established by MINURSO, under the supervision of the Security Council
and the African Union, and consistent with internationally recognized
legal norms. We believe that the United Nations would be within its
rights to demand that Morocco adhere to its agreement in 1991 to
permit this referendum to take place, if not under its powers under
Chapter 6 of the United Nations charter, then at least under its
powers under Chapter 7 of the Charter.
Second, enforcement of a version of the Peace Plan advanced by former
United States Secretary of State James Baker III when he was the
Personal Envoy of the United Nations Secretary General to Western
Sahara, or an alternative plan, which provides for an act of
self-determination with an option for independence, and which ensures
that the electorate will be those entitled to the right to
self-determination under international law. Under this alternative, a
referendum would ultimately be held which includes – among other
options – a ballot option for independence.
Third, UN-ordered negotiations on a "political solution" with
preconditions, which include (1) the requirement that all options for
self-determination be included, including independence, and (2) a
timetable for such negotiations, after which, if no agreement is
reached, a referendum will be held with all options available. We note
that the Comprehensive Peace Agreement for Sudan included such a
provision, so there is some recent precedent for such a procedure.
Each of these three options may require a mandatory order by the
Security Council under Chapter 7 of the United Nations Charter.
Whether to invoke the powers of Chapter 7 to resolve this dispute is a
political issue and we are mindful of the political problems such a
decision may entail. However, this would be a means – perhaps the only
means – of enforcing the self-determination principles that apply to
this dispute under international law. Thus far, in the face of the
parties' entrenched and irreconcilable positions on sovereignty over
the territory, there has been inconsistency between the principle of
self-determination under international law, which has been repeatedly
confirmed through General Assembly Resolutions on the matter to
include an independence option, and the actions of the Security
Council, in merely asking the parties to proceed with discussions on a
political solution with no preconditions.
The international community needs to take steps to see that this
dispute is resolved in the near future. The longer it takes to resolve
the sovereignty issue, the more complicated will be the task of
implementing any solution reached. On behalf of the United Nations
Committee of The Association of the Bar of the City of New York, I
call upon this Committee to adopt a position with regard to the
settlement of the dispute over Western Sahara that is consistent with
principles of international law.
EDITOR'S NOTE
The New York City Bar report on the Western Sahara is available here.
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