May it please Your Excellencies, Ladies and Gentlemen:
The privilege of speaking before you today poses something of a grave responsibility, not because the issue here is nothing less than the fate of a people and a territory, but because we are assembled at a historical juncture, at a time unlike any other time before it internationally and in the Western Sahara.
For the first time since the signing of the United Nations Charter have the Members with the greatest responsibility in the Organization for maintaining peace and security found it possible and necessary to ensure that Power begins to pay tribute to Reason. Everywhere is there evidence of a brave new world.
The fundamental changes taking place in capital cities throughout the world can be measured in months, and in some cases even weeks. Bureaucratic and military restructuring and resposturing may yet give more credence to the notion of ministries of defence as distinct from the former ministries of war.
We know of these internal shifts from the research we are conducting at Brown University with the intention of developing a new concept of operations for peacekeeping and other United Nations forces.1 This work keeps us in continuous contact with Member governments and with Secretariat officials in this building. And it keeps us appraised of the lessons of the UN operations we visit, including MINURSO in the Western Sahara.
We know that the military changes taking place have lagged far behind the pace of political developments. Unprecedented agreements have been concluded committing the Organization to a number of tasks more complex than it has ever faced before--in Yugoslavia, Cambodia and Somalia. Tragically, these tasks are being tackled not only without adequate resources but without adequate tools, without appropriate force structures and operational concepts, and it may be that the Organization is heading towards a disaster.
It may be said that disaster has already begun in the Western Sahara.
MINURSO, itself, is a historical experiment. Never before have all of the five permanent members of the Security Council been represented in an operation in the field. Never before has a United Nations operation been mandated with the powers for the maintenance of law and order that MINURSO is supposed to have.
The policing powers of UNTAG in Namibia were restricted to reporting of incidences. The Special Representative there, Mr. Ahtisaari, exercised discretion beyond his jurisdiction to investigate the circumstances of three cases. In Cambodia, despite the extensive tasks of the operation, UN policing powers are restricted to reporting and investigation of incidences.
In operations like Namibia and Cambodia, law and order are maintained in cooperation with local security forces. But this is not the design in the Western Sahara, where the Special Representative is supposed to have exclusive responsibility over the territory and the UN is authorized with full and independent law and order powers, including the power to change the law itself.
Underwriting this authority and the operation generally is arguably one of the clearest mandates of any UN operation - a matter I will return to shortly.
However, despite the significance of the MINURSO experiment, in the offices of many Member Missions the maps of Yugoslavia or Cambodia are tacked on the walls, but the map of the Western Sahara remains folded and filed. There is a sense amongst observers in the field that they are part of a forgotten operation, that the headquarters in New York is not providing the requisite political support for the accomplishment of their tasks.
Instead of becoming a milestone in the development of UN operations, it is costing the Organization its credibility. MINURSO is becoming regarded by the permanent members as a bad experience. In the United States Pentagon, where a debate is occurring over the acceptance of UN command of its assets, MINURSO is cited as a reason against the participation of US contingents in UN-controlled operations.
I travelled through Moroccan and Polisario-held areas and found on the one hand, the UN had become the enemy of Morocco. On the other, the Polisario was losing faith in the UN, which could not prevent or respond effectively to Moroccan violations of the ceasefire or fulfil the terms of its mandate.
Optimism has turned not to realism but to pessimism, thus intensifying the potential for renewed conflict. The perception of the UN as a failed saviour has fostered bitterness and the charge that it operates according to a double standard, that it treats similar cases unequally.
UN observers are considerably restless. In places like El Ayoun and Es Semara, MINURSO officials are veritable hostages. They drive from their closely supervised hotels to their offices and back. Checkpoints and the vigilence of Moroccan security forces prevent, at times at gunpoint, any freedom of movement, a sine qua non of successful operations. There is no UN presence or evidence of its authority, no flags, signs or symbols fostering confidence in the population.
No contact is permitted with MINURSO. Despite my visit having been approved at the Under-Secretary-General level, I was arrested for trying to meet with UN officials.
No clearer challenge to the authority of the United Nations and the international community exists than the forced movements of populations into the Sahara. These are not spontaneous flows of civilians hoping to claim territory for Morocco. Military transport vehicles arrive with new occupants of tent cities erected by the army to house potential voters.
Having been arrested a second time, I saw that these tent cities are strictly controlled with miniature administrations composed of Moroccan soldiers, police, gendarmes, and secret servicemen. While food and accomodation are free, inhabitants are not free to leave. Some nine months after the proposed election date, those attempting to escape are met with arrest.
This process, including elections held recently, is an attempt to redefine the identity of the Western Sahara, to transform that population which is linked with the territory, and thus to recreate the 'self' which is to determine the future of that territory.
The redrawing of living space has never had a palatable history and has led to some of the great excesses of mankind, to mass expulsions, forced repatriations, and in the worst scenarios ethnic cleansing and genocide. To forcibly redefine the identity of an area is to dangerously resemble the catalogue of practices deemed crimes under international law.
For whatever political expediency, the issue of who is permitted to vote in a free and fair referendum to determine the future of the Western Sahara, of who are the peoples and what is the 'self' of the territory, has been relegated to diplomatic negotiation. These concluded unfruitfully last month through the Office of the Special Representative. We may well ask why the legal answer to this problem has not been emphasized.
It is generally agreed that the concept of self-determination constitutes a legal right and is no longer merely a political principle. This has been affirmed since the UN Charter in the 1960 Declaration on Colonialism, the 1966 International Covenants on Human Rights, and in the 1977 First Protocol Additional to the Geneva Conventions.
Legal debate regarding the doctrine of self-determination focused on defining the 'self.' What did the UN Charter mean by the "peoples" endowed with the right of self-determination?
The response to this essential question became the basis of the classic formulation of self-determination. "State practice as well as opinion expressed through the political organs of the United Nations suggests that the 'self' is not an ethnic or religious group, but a territorial one."2 More specifically it refers to peoples within distinct territorial boundaries under colonial occupation.
While the concept of self-determination is now expanding to include other definitions of the self, beyond the colonial context, this has not mitigated in any way the legal validity of the classic formulation.
In the case of the Western Sahara, therefore, "peoples" must refer to the inhabitants of the area delimited by Spanish colonial occupation. A list of these geographically defined inhabitants appears in the 1974 census conducted by Spanish authorities.
When one of the parties puts forward 120,000 names for registration additional to this list on the basis that they are ethnically Sahrawis and share the right to vote,3 it must be concluded that this argument has no place in the law of self-determination.
Territorial definition of the 'self' has formed the basis of the process in the Western Sahara, which is underwritten by the following documents:
* General Assembly resolutions between 1966 and 1973 referred to a framework for the inhabitants of the Sahara under Spanish domination;
* The "Report of the United Nations Visiting Mission to Spanish Sahara, 1975" concluded that "popular consultation...must be based on the participation of all Saharans belonging to the Territory";
* Emphasizing its 1971 Namibia decision, the International Court of Justice in the 1975 Advisory Opinion, paragraphs 54-65, qualified self-determination in the Western Sahara in its territorial context;
* In the current peace plan agreed to by both parties and authorized by Security Council resolutions, outlined in the Reports of the Secretary-General of 18 June 1990 and 19 April 1991, the criteria for voter registration have been based on the 1974 Spanish census of Saharan inhabitants.
This constitutes perhaps the clearest direction on an issue in a mandate of any UN operation. The customary international law and treaty commitments represented in the process bind no less the United Nations Organization and Member States than the two parties.
On what legal basis can the parameters of the voter criteria be altered beyond the territorial context in this case?
In any basic text on international law students learn to cite the Namibia and Western Sahara cases as definitions of self-determination. It would be an irony of history and a tragedy of the first order if the credibility of self-determination as a legal right was undermined in one of the very cases that defined it.
It would be an irony of history and a tragedy of the first order if at the end of the process of decolonization the last colony in Africa failed to reap the benefits of the experience of its continental neighbours.
To paraphrase Justice Jackson, Chief Prosecutor at the Nuremberg Tribunal: The refuge of the defendants can be only their hope that the political sense of mankind will lag so far behind international law that conduct which is crime in law must be regarded as innocent politically.