Western Sahara: the legal imperative of self-determination and lessons learnt
from East Timor

By:
Pedro Pinto Leite
Secretary of the International Platform of Jurists for East Timor,
Member of the Executive Council of the International Association of Jurists
for Western Sahara

Presented to the European-Algerian Conference of Solidarity with the Western
Sahara, Algiers, 29-30 June 2002

(updated version of a paper to a seminar on Western Sahara at the Norwegian
Parliament, 11 December 2001, see
http://groups.yahoo.com/group/Sahara-update/message/562)
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A basic principle of law, common to both internal and international law, is
the principle of non-discrimination. Rules of internal law must apply equally
to all individuals; rules of international law must apply equally to all
peoples and States. Identical situations must be treated by law in the same
way.

Since the famous UN Resolution 1514 of 1960 the right to self- determination
is recognized as a basic right of all peoples. The legally binding
International Covenants on Human Rights (one on civil and political rights,
the other on economic, social and cultural rights) are based on this
fundamental right: the right to self-determination is regulated by art. 1 of
both covenants. The right to self-determination is even considered by many
authors as a case of jus cogens, a peremptory norm of general international
law from which no derogation is permitted.

Such as every individual has the right to freedom, every people has the right
to self-determination. The fight against colonialism mirrors the earlier begun
struggle against slavery. But slavery is not entirely abolished. Similarly,
“millions of people in various parts of the world still live under alien
rule”, as the UN itself admits.

After the independence of Namibia in 1980, East Timor became the
non-self-governing territory in the list of the UN Decolonization Committee
with the largest population, Western Sahara the one with the biggest
territory. The similarities between the two cases are astonishing. Prof.
François Rigaux, in an article included in IPJET's book "International Law and
the question of East Timor" (of 1995), lists the following analogies:
- the events are quasi-contemporary: the Moroccan King Hassan II gave orders
to his army to invade Western Sahara (the infamous “Green March”) on 6
November 1975, East Timor was invaded by the Indonesian army thirty days
later;
- both peoples were earlier submitted to an Iberian coloniser: Western Sahara
was colonised by Spain, East Timor by Portugal;
- “in both cases the colonial power agreed with (…) decolonisation, but it was
prevented from or did not comply with its duty to a peaceful transmission of
power to the colonised people”;
- “a neighbouring state – Indonesia against East Timor, and Morocco against
Western Sahara – put forward a territorial claim on the former colonial
territory against which it launched an armed attack and which it occupied by
force”;
- “both peoples were prevented through the use of military coercion from
achieving their legitimate aims, the exercise of their right to
self-determination”;
- the Permanent Peoples’ Tribunal (an NGO based on the former Bertrand Russell
tribunals) delivered similar judgements condemning the occupation of Western
Sahara and East Timor and the crimes against humanity committed there;
- the role of ‘realpolitik’: “the economic and strategic importance of both
Morocco and Indonesia were such that those countries were granted the
unflinching support of the US and of other Western countries, such as France
in the case of Morocco”.

After the publication of Rigaux’s article many more analogies came to the
light:
- One was the way the International Court of Justice referred to the right to
self-determination of both peoples. In the Western Sahara advisory opinion of
1975 the Court had said:
"(...) the Court’s conclusion is that the materials and information presented
to it do not establish any tie of territorial sovereignty between the
territory of Western Sahara and the Kingdom of Morocco or the Mauritanian
entity. Thus the Court has not found legal ties of such a nature as might
affect the application of resolution 1514 (XV) in the decolonization of
Western Sahara and, in particular, of the principle of self- determination
through the free and genuine expression of the will of the peoples of the
Territory"

In the East Timor case (Portugal vs. Australia), twenty years later, the Court
declared:
"(...) the General Assembly, which reserves to itself the right to determine
the territories which have to be regarded as non- self-governing for the
purposes of the application of Chapter XI of the Charter, has treated East
Timor as such a territory. The competent subsidiary organs of the General
assembly have continued to treat East Timor as such to this day. Furthermore,
the Security Council, in its resolutions 384 (1975) and 389 (1976) has
expressly called for 'the territorial integrity of East Timor as well as the
inalienable right of its people to self-determination in accordance with
General Assembly resolution 1514 (XV)'"[paragraph 31]

- Another parallel: in both cases the occupying power tried to appease the
subjugated peoples by offering them a certain degree of autonomy. King Hassan
II had already proposed that in the eighties, President Habibie came up in
1998 with a similar proposal, included in a package deal: autonomy status for
the territory and the liberation of Xanana Gusmão and other Timorese prisoners
if Portugal and the United Nations did accept the Indonesian integration of
East Timor.

- Finally, the similarity between the UN-OAU Peace Plan for Western Sahara of
June 1990 and the New York agreements between Portugal, Indonesia and the UN
of 5 May 1999. Due to international pressure Morocco and Indonesia were
obliged to accept the holding of a referendum in the occupied territories. The
UN established the instruments for the implementation of both agreements:
MINURSO in the Western Sahara, UNAMET in East Timor. In both cases a date was
fixed for the popular consultations, and in both cases the date was postponed.
It is curious to see how similar the reaction of jurists to both agreements
was. Prof. Claude Bontems, speaking in name of the International Committee of
Jurists for Western Sahara before a Parliamentary Conference in May 1991 in
Stockholm, criticized the Peace Plan for giving no guarantee to the security
of the Sahrawis if 65,000 Moroccan military were allowed to remain in the
territory. The International Platform of Jurists for East Timor expressed the
same concerns about the stipulation of the New York agreements, which gave to
the Indonesian the responsibility for security during the referendum.

But here the similarities come to an end. In East Timor the referendum did
take place. As we expected, instead of guaranteeing security, the Indonesian
forces and their militias killed hundreds of people and destroyed much of the
infrastructure of East Timor. The international community was obliged to
rectify the mistakes of the New York agreements by sending military to the
territory, the INTERFET forces. But in the end the Indonesian withdrew, a UN
Administration (UNTAET) took their place, free and fair elections for a
Constitutive Assembly were held and on the 20th of May East Timor became the
first new State of this Millennium.

The contrast with Western Sahara is enormous. As you all know the Sahrawi Arab
Democratic Republic, proclaimed in 1976, was meanwhile recognised by more than
70 countries and became a full member of the OAU. But the referendum envisaged
by the Peace Plan did not take place, due to the obstruction of Morocco: Rabat
insisted that MINURSO should register many thousands of Moroccan migrants as
voters and obviously the Sahrawis could not accept that. For some time the
1997 Houston Agreement seemed a breakthrough, but in reality Morocco’s
obstruction persisted and the referendum scheduled for December 1998 was
postponed once more. In January 2000 a strengthened MINURSO was able to
publish the results of the voters’ identification, accepting as Sahrawis
86,381 candidates of a total of 198,469, but meanwhile the number of appeals
presented by Morocco grew to 130,000. The result of this manoeuvre is well-
known: pessimistic about the chances to bring the process to a good end, the
UN-Secretary General endorsed the proposal of his envoy James Baker of a
so-called "Framework Agreement" in which the Moroccan offer of autonomy was
resuscitated. The Security Council accepted the proposal to open conversations
on the base of the “Framework Agreement”, but did not abandon the Peace Plan,
keeping the referendum as an option.

In the background, another analogy with East Timor. When the Australian
government concluded the Timor Gap Treaty with Indonesia for the exploitation
of oil in the waters of East Timor it granted de jure recognition to the
annexation of the territory: the very title of the treaty named East Timor an
Indonesian province. Last year in October French and American companies signed
contracts with Morocco to prospect for oil in the waters of Western Sahara. A
few weeks later France’s president was naming Western Sahara “the southern
provinces of Morocco”. The US government joined France in its campaign for the
fait accompli, undeterred by the opinion of the Under-Secretary for Legal
Affairs and Legal Counsel of the United Nations, Hans Corell, who clearly
rejected Moroccan claims of sovereignty over Western Sahara and stated that
“further exploration and exploitation activities (…) in disregard of the
interests and wishes of the people of Western Sahara (…) would be in violation
of the international law”.

I would like to make some comments to the four options proposed by the UN
Secretary-General to the Security Council last February. In the reverse order:
the termination of MINURSO’s mandate, the partition of the territory, the
“Framework Agreement” and the implementation of the referendum.

If the Security Council decides to terminate the UN mission and abandon the
process is in fact abdicating from its “primary responsibility for the
maintenance of international peace and security” conferred to it by art. 24 of
the UN Charter. That could even be seen as a violation of the Charter. In the
first round of discussions, last April, apparently no country seemed to be
inclined to choose that option.

The division of the territory is no legal solution either. If integration of
the whole Western Sahara in Morocco (with or without autonomy) could be
legally achieved without a referendum, partition would be unnecessary. If, on
the contrary, integration of the whole territory without a referendum is
illegal, the partition is illegal as well.

What is thus the value of Baker’s “Framework Agreement” under contemporary
international law? As said, President Habibie had already proposed autonomy as
a way to solve the conflict of East Timor. The Timorese, Portugal and the UN
rejected it, keeping firm on the application of the principle of
self-determination. Therefore, the question put to the voters in the
referendum was:
“Do you ACCEPT the proposed special autonomy for East Timor within the Unitary
State of the Republic of Indonesia?
OR
Do you REJECT the proposed special autonomy for East Timor, leading to East
Timor’s separation from Indonesia?”
The proposed autonomy was there, but as a conclusion of a process of free
choice by the East Timorese, together with the other option, the independence.
Contrarily, in the “Framework Agreement” for Western Sahara, autonomy is
determined from the beginning; it is thus imposed on the Sahrawi people,
before they have the chance to freely choose their status. This clearly
contravenes Principle IX of Resolution 1541 (XV), which provides:
“The integration should be the result of the freely expressed wishes of the
Territory’s peoples acting with full knowledge of the change in their status,
their wishes having been expressed through informed and democratic processes
impartially conducted and based on universal adult suffrage”.


The implementation of a fair referendum is thus the only legal option for the
Security Council to choose. The current members of the Council share a huge
responsibility. Their civil societies should bring a strong pressure to bear
on the respective governments, urging them to take the right decision. The
decision of the Government of Aznar to support the implementation of the
referendum is certainly motivated by the strong Spanish movement of solidarity
with the Saharawi People. A few words now on the eminent role of Algeria in
this question. Algeria has been unfairly accused of pursuing its own
particular interests when defending the right to self-determination of Western
Sahara. Those who are accusing Algeria forget that this country has been a
pioneer in the struggle against colonialism. As they also fail to notice that
Algeria, since its independence, was the foremost supporter of many liberation
movements in this world.

In December 1991 I wrote an article on Western Sahara, published by a NGO in
Coimbra, which ended with a message to the Portuguese Government: “In order to
be coherent, Portugal cannot keep running away from the question of Western
Sahara.(…) The constitutive conference of the International Platform of
Jurists for East Timor underlined in its conclusions ‘the need for the
Portuguese State to assume before other international questions, and in
particular the problem of the Western Sahara, a coherent position which takes
into account the similarity of the situations’. The appeal of the Platform was
not only made in name of legal principles or logical coherence.(…) the
Portuguese support to the Sahrawi cause, besides being morally desirable, may
have much influence in the development of the question of East Timor.” Five
years later Portugal lost its case against Australia in the ICJ. The
Australian defence team had successfully pointed out before the Court that
Portugal was dealing with Morocco in relation to the natural resources of
Western Sahara exactly in the same way as it was accusing Australia of dealing
with Indonesia in relation to the natural resources of East Timor.

If the UN decides to follow the path of the “Framework Agreement”, violating
thus the principle of non-discrimination and its own norms on
self-determination, will certainly lose much more than a legal case. It will
lose credibility and weaken its ability to solve other conflicts through
peaceful means. If the UN allows a state to illegally occupy another territory
and get away with it, it will undermine the cornerstone of world peace,
article 2, number 4, of its own Charter:
“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United
Nations”.

In the end, we would all lose.

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IPJET - International Platform of Jurists for East Timor Secretariat:
Gruttohoek 13 2317 WK Leiden Netherlands
Tel/Fax: +31-71-522 10 65
Email: ipjet@...
Homepage: http://www.antenna.nl/~ipjet/
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Forwarded by:
_______________________________________________
Norwegian Support Committee for Western Sahara
wsahara@...

*** Referendum now! ***
http://groups.yahoo.com/group/Sahara-update
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