Monday, April 26, 2010

What Future for Western Sahara ?

There is no prospect of resolving the decades-old conflict between Morocco and the Sahrawi independence movement Polisario on the future of Western Sahara. The Secretary-General of the United Nations, Mr. Ban Ki-moon, came to this conclusion in a gloomy report, dated 6 April 2010, to the Security Council. Ban Ki-moon reported that "it is clear that neither side is willing to accept another proposal as the only basis for future negotiations". Informal meetings between the two parties in August 2009 and February this year led to nothing. Nonetheless, Mr. Ban says that his personal Envoy for Western Sahara, Christopher Ross, has been "laborious" in his efforts to promote a mutually acceptable political settlement that will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations. The S.-G. recommends that the Security Council extend the mandate of the United Nations Mission for the Referendum in Western Sahara (MINURSO) until 30 April next year, saying it is indispensable for the maintenance of the cease-fire in the dispute.

History of the Conflict

In the waning days of General Franco’s rule, Spain began rapidly and even chaotically divesting itself of most of its remaining colonial possessions. After initially being violently opposed to Spanish Saharan decolonization, Spain issued promises of a referendum on independence by 1974-75. The nascent Polisario Front, a national liberation movement that had begun fighting Spanish rule in 1973, had been demanding such a referendum. At the same time, neighbouring Morocco and Mauritania declared having historical claims of sovereignty over the territory of Spanish Sahara. A third neighbour, Algeria, viewed these demands with suspicion. After arguing for a process of decolonization guided by the United Nations, the Algerian government backed the Polisario Front, and opposed the Moroccan and Mauritanian claims. The UN attempted to settle these disputes through a visiting mission in late 1975, as well as by requesting the International Court of Justice (ICJ) to give an advisory opinion on the matter.

Western Sahara before the ICJ

On 13 December 1974, the UN General Assembly requested the ICJ for an advisory opinion on the question whether Western Sahara was a territory belonging to no one (terra nullius) at the time of the colonization by Spain. And if not, what legal ties existed between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity. In its advisory opinion, delivered on 16 October 1975, the Court replied to the first question in the negative. In reply to the second question, it expressed the opinion that the documentation presented to it showed the existence of legal ties of allegiance between Morocco and some of the tribes living in the territory of Western Sahara. They equally showed the existence of certain rights, which constituted legal ties between the Mauritanian entity and the territory of Western Sahara. However, the Court concluded that the documentation presented to it did not establish any tie of territorial sovereignty between Western Sahara and Morocco or the Mauritanian entity. With its opinion the Court did not find any legal issue of such nature as might affect the application of UN GA resolution 1514 (XV) – containing the Declaration on the granting of Independence to Colonial Countries and Peoples - in the decolonization process of Western Sahara, and of the principle of self-determination of the Sahrawi people.

On November 6, 1975 the so-called Green March into Western Sahara began when 350,000 unarmed Moroccans converged on the Southern Moroccan city of Tarfaya and waited for a signal from King Hassan II of Morocco to cross into Western Sahara. Meanwhile, the Spanish government secretly negociated and signed a tripartite agreement, known as the Madrid Accords, with Morocco and Mauritania as it intended to abandon the Territory on 14 November 1975. Although the accords foresaw a tripartite administration, Morocco and Mauritania each moved to annex parts of the territory, with Morocco taking control of the northern two-thirds of Western Sahara and Mauritania taking control of the remaining southern part. Spain terminated its presence within three months. Morocco and Mauritania, however, met staunch opposition from the Polisario. In 1979, Mauritania was forced to withdraw, but Morocco extended its control to the rest of the territory and gradually contained the guerrillas through setting up an extensive sand-berm in the desert. Hostilities ended with the 1991 cease-fire, overseen by the peacekeeping mission MINURSO, under the terms of a UN Settlement Plan which included a referendum on the future of Western Sahara, giving the local population the option between independence or affirming integration with Morocco. The referendum was scheduled to take place in 1992, but was never held because both parties could not agree who would be eligible to vote. In 1997, negociations under the auspices of the United Nations were held in Houston, Texas. The outcome was an agreement (Houston Agreement), which attempted to clear the path for the referendum to be held in 1998. A comprehensive electoral census was published, but as its results were rejected by Morocco, the process was frustrated again. The S.-G. consequently suspended the Settlement Plan. Other solutions were sought by the S.-G.’s Special Envoy James Baker in 2001 and 2003, but these also remained without result.

But what future for Western Sahara? Morocco still refuses to go beyond autonomy for the area. In his speech on the occasion of the thirty-fourth anniversary of the Green March, King Mohammed VI reaffirmed the commitment of his Kingdom to its autonomy proposal. Polisario directly reiterated its position on the "inalienable right" of the Sahrawi people to self-determination through a referendum. And by such, the impasse on Western Sahara remains.

United Nations Documents on MINURSO

General Assembly resolution 1541 which declares Western Sahara a “non-self-governing Territory”

Resolutions of the Security Council

Reports of the Secretary-General

Letters between the Secretary-General and the President of the Security Council

Recommended books

ARTS, K. and P. PINTO (eds.), International Law and the Question of Western Sahara , Leiden : IPJET, 2007, 352 p

Abstract: In follow-up to the Conference on this subject at ISS in October 2006, the book on International Law and the Question of Western Sahara was published. According to former US Ambassador and former deputy Chairman of the UN Peacekeeping Mission for Western Sahara Frank Ruddy, the volume edited by Karin Arts of the Institute of Social Studies and Pedro Pinto Leite of the International Platform of Jurists for East Timor “goes a long way to putting Western Sahara on the geo-political map for those unfamiliar with the issues, and for the rest of us, it explains why this 30 year old conflict is so important, not only to the Sahrawis but to the great powers. It also emphasizes why Western Sahara is not a sideshow to be patronized by the U.N. as it concentrates on other hot spots in the world.” The situation in Western Sahara brings up highly complex and challenging questions which among others relate to the status of the territory under international law, the implications of the right to self-determination, respect for human rights and protection against human rights violations, and the lawfulness and/or legitimacy of natural resource exploitation. These are all issues addressed in the book which apparently is the first collective work in English on the international legal aspects of the question of Western Sahara.

EL OUALI, A., Saharan Conflict : Towards Territorial Autonomy as a Right to Democratic Self-Determination, London : Stacey International, 2008, 254 p

FERRER LLORET, J., La aplicación del principio de autodeterminación de los pueblos : Sahara Occidental y Timor Oriental, Alicante : Universidad de Alicante, 2002, 253 p

FUENTE COBO, I. y F.M. MARIÑO MENÉNDEZ, El conflicto del Sahara occidental, [Madrid] : Ministerio de Defensa [etc.], 2006, 222 p

JENSEN, E., Western Sahara : Anatomy of a Stalemate, Boulder, CO [etc.] : Rienner, 180 p

POINTIER, L., Sahara occidental : la controverse devant les Nations Unies, Paris : Karthala, 2004, 226 p

SHELLEY, T., Endgame in the Western Sahara : What Future for Africa’s Last Colony?, London [etc.] : Zed Books [etc.], 2004, XI, 215 p

SOLÀ-MARTÍN, A., United Nations Mission for the Referendum in Western Sahara, Lewiston, NY [etc.] : Mellen Press, 2006, VII, 198 p

SOROETA LICERAS, J., El conflicto del Sáhara Occidental, reflejo de las contradicciones y carencias del derecho internacional, [Bilbao] : Universidad del País Vasco, 2001, 370 p

Peace Palace Library keywords

Western Sahara, Morocco, Mauritania, Algeria, United Nations, referendum, right of self-determination, decolonization, independence, liberation movements, territorial sovereignty, International Court of Justice, advisory opinions

Friday, April 23, 2010

Juan Antonio Samaranch (1920-2010)

Former International Olympic Committee president Juan Antonio Samaranch has died in hospital after being taken ill at the weekend. The Spaniard was widely regarded as the most powerful man in sport when he headed the IOC from 1980 to 2001.
His successor Jacques Rogge stated: "I cannot find the words to express the distress of the Olympic family (...) Thanks to his extraordinary vision and talent, Samaranch was the architect of a strong and unified Olympic Movement. I can only pay tribute to his tremendous achievements and legacy, and praise his genuine devotion to the Olympic Movement and its values. We have lost a great man, a mentor and a friend who dedicated his long and fulfilled life to Olympism."

The website of the IOC contains a selection of remarks of Samaranch about Olympism, starting with “We must constantly expand sport’s capacity to open the minds and hearts of young people”.

During his term, Samaranch made the Olympic Games financially healthy, with big television deals and sponsorships. It became a tradition for Samaranch, when giving the President's address at the close of each Summer Olympics, to praise the organizers at each Olympiad for putting on "the best ever" Games.

Friday, April 16, 2010

“Resistance is futile” *

Drones, Predators and Robotic warfare

In his book “Wired for War: The Robotics Revolution and Conflict in the 21st Century” (ISBN 9781594201981, 2009) Peter Singer points out how (military) technology has changed almost every aspect of warfare and the perception of war. Drones (Unmanned Aerial Vehicles) have taken over military tasks in a video game-like way, war is dehumanized and only the victims are human.

In Chapter 20: Digitizing the Laws of War and Other Issues of (Un)Human Rights, Singer touches upon the legal aspects, the shortcomings of the Law of Armed Conflict, and International Humanitarian Law, referring to Hugo Grotius’ De Jure belli ac Pacis (1625) as the foundation of the “just war theory”. New battlefields, new weapons require new laws. New definitions for legal combatants, new guidelines for the designation of targets and authorization to kill are needed.

Many people have expressed their concern over this futuristic way of Predator warfare as practized by the U.S. in Afghanistan and Pakistan. Amongst others, Philip Ashton, United Nations Special Rapporteur on extrajudicial executions, presented a critical report on the secrecy of the US drone program and its legal basis, ACLU (American Civil Liberties Union) filed a Freedom of Information Act request for documentation establishing the legal basis for the drone strikes. Jane Mayer, Max Kantar published highly critical essays. Mary Ellen O’Connell University of Notre Dame Law Professor has called the drone program “unlawful killing”, violating international law.

In March this year Harold Koh, the State Department’s legal adviser, defended the legality of killing with drones in the war against terrorism, stating that in this armed conflict the US has the authority under international law, to carry out such missile attacks, leaving unanswered where the government draws the line between legitimate targets and civilians.

It is time to take action, before this technique becomes available to more countries and parties . Control will be more difficult then.

*Catchphrase of the Borg in Star Trek: The best of Both worlds” episode of The Next Generation, series , 6 April 1990.

Friday, April 9, 2010

New Institute for Counter-terrorism in the Hague

Three Hague-based organizations, T.M.C. Asser Institute, the Centre for Terrorism and Counterterrorism of the University of Leiden/Campus Den Haag and the Dutch Institute for International Relations ‘Clingendael’, announced to join forces to set up an independent institute that will contribute to the study and policy-making in the field of counter-terrorism. The institute is financed by the Dutch Ministry for Foreign Affairs and will be officially opened in May 2010 [1]. It will focus primarily on the prevention and international legal aspects of counter-terrorism.

The initiative is the result of the conclusions and recommendations of the Counter-terrorism Project (the so-called ‘Oud Poelgeest’ process, after the old estate near Leiden), made public on 1 April 2010, by Maxime Verhagen, Dutch Minister of Foreign Affairs. With regard to prevention, there is insufficient insight into the process of radicalisation and into the success and failure of preventative and de-radicalisation policies at the international level. Policy-makers have insufficient access to the available knowledge and expertise[2]. According to Minister Verhagen, the idea behind ‘Oud Poelgeest’ was simple ‘if experts could clarify the complicated legal questions terrorism posed, this would help politicians formulate a coherent and legally sound response to one of the greatest challenges of the new century’.

The Counter-terrorism Project commenced in 2007. The project brought together a number of leading experts from a variety of professional backgrounds, to study the challenges of the combat of international terrorism to international law [3]. Three working groups, each with a different focus, have presented their main findings[4]:

1. Use of force against non-state actors. It is now generally accepted that states have the right to use force in self-defence against armed attacks by non-state actors. Clearly the use of armed force in self-defence should be a last resort, and other methods of prevention need to be considered thoroughly first. But the exact parameters of that force are unclear. When does an attack justify the decision to invoke this right to self-defence? In what circumstances is consent required of the state on whose territory the use of force is taking place? And in what circumstances should a state be allowed to use force in pre-emptive self-defence – that is, to avert a threatened terrorist attack?
2. Applicable law and correlation between human rights and international humanitarian law when the fight against terrorism does take place in a situation of armed conflict. The applicable legislation is generally criminal law, and hence the law enforcement paradigm should apply. The majority of terrorist attacks happen outside armed conflicts and consequently questions of international humanitarian law do not arise. However, there can be no circumstances which excuse human rights violations, even in the fight against terrorism, although there may be special laws dealing with terrorist acts.
3. Improving mutual legal assistance. There should be better use of existing legal tools and cooperation mechanisms, including regional ones, to optimise criminal justice responses to terrorism. Enhancing cooperation and joint investigation might provide states with more solid evidence, making regular prosecution easier.
4. The UN sanctions regime, under which individuals and organisations that pose a threat may be ‘listed’ or ‘delisted’. The latest resolution adopted by the UN Security Council can be seen as an important step forward, particularly in light of the provision that an Ombudsman will review requests for delisting.

Further research on the results and recommendations of the 'Oud Poelgeest process', will be initiated and followed up in this new institute. The new institute will develop expertise that will be shared with (inter)national stakeholders such as academics, policy-makers and other professionals. It also will provide for an international knowledge hub. Cooperation will be sought with other existing knowledge institutions at home and abroad, for example, in Singapore, Egypt, and the United States. Minister Verhagen ‘We must continue our efforts, so that terrorists, who think they can spread fear are stopped in their tracks. Whether they strike in New York, London, Madrid, Bali, Mumbai or Moscow, we must let them know that they will not get away with it.’

1.see (in Dutch) the Letter to the Dutch Parliament of minister Verhagen, 9 November 2009
2.See website Hague justice portal
3.Report Counter-terrorism strategies, human rights and international law: meeting the challenges
4.Speech minister Verhagen at the Oud-Poelgeest conference, 1 april 2010

Peace Palace Library catalogue on counter-terrorism

Thursday, April 1, 2010

Casualties of Climate Change

The most general definition of climate change is a change in the statistical properties of the climate system when considered over periods of decades or longer, regardless of cause. The term is sometimes used to refer specifically to climate change caused by human activity; for example, the United Nations Framework Convention on Climate Change in Article 1.2 defines climate change as "a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods." In the latter sense climate change is synonymous with global warming. Global warming is defined as the increase of the average temperature on Earth. As the Earth is getting hotter, disasters like hurricanes, droughts and floods are more frequent. According to scientists the average temperature of the air near the Earth’s surface has increased about 0.6 - 0.7 C° over the last century and that the level of CO2 or the greenhouse gas carbon dioxide has increased in the atmosphere by 25-30% from preindustrial values. Although it does not seem significant, some scientists say it is responsible for the noticeable increase in storms, floods and raging forest fires in the last ten years.

With many proponents and skeptics the dispute regarding the nature, causes, and consequences of global warming remains controversial. Currently there are two competing theories for the recent global warming trend:

- The first is based on a theory which followed the warming trend that occurred between 1975 and 1998. The first theory, which is the generally accepted one, is that the release of greenhouse gases from the burning of fossil fuels and from land use is responsible for the recent temperature increase.
- The second theory is based on highly correlated data going back thousands of years, that the sun's magnetic field and the solar wind modulate the amount of high energy cosmic radiation that the earth receives. This in turn affects low altitude cloud cover and how much water vapour there is in the atmosphere and thus regulates the climate.

This controversy poses world leaders with a dilemma. Climate change will drastically change the political, economic, and cultural landscape. According to the first theory the solution requires a restructuring of our entire economic system to eliminate carbon dioxide. If the second theory is correct, reducing the concentration of carbon dioxide will have very little impact.

The fact remains that we have to live with the practical consequences of global warming. One of the major anticipated consequences is rising sea levels. As the earth warms, glaciers and ice sheets melt, releasing water that had been locked up into the oceans. In addition as the water warms it expands which adds to the problem. Most of the world’s largest cities lie at or very close to sea level. The Greenland ice sheet contains enough freshwater to globally raise sea levels by 5 meters and is currently melting at an alarmingly rapid rate.

This graphic explains the causes of sea level change according to the Intergovernmental Panel on Climate Change (IPCC). It explains the IPCC's A1 scenario family, which consists of three scenarios on future use of fossil energy sources, including scenario A1F1, which involves the use of fossil-intensive energy sources. This resource also includes the graphic 'Components of Mean Sea Level Rise for the Scenario A1F1' which shows the projected sea level rise in metres by 2050 and by 2100 for Greenland, glaciers, expansion, the Antarctic, and the total sea level rise.

It seems likely that in the next 30 to 50 years, millions of people will become environmental refugees. Most likely the first countries to disappear due to global warming are Tuvalu and Kiribati, which lie at or barely above sea level.

But it is not all doom and gloom. Climate change can have a few positive effects too. It can “solve” territorial disputes as is demonstrated by the recent disappearance of a small uninhabited island in the Bay of Bengal at the mouth of the Hariabhanga river. The island, about 2 metres above sea level, was first detected on a remote sensing image taken by an American satellite in 1974. It probably emerged in the aftermath of the Bhola cyclone in 1970. Further remote sensing surveys showed that the island originally had an area of about 2,500 m2, which over the years gradually expanded to an area of about 10,000 m2. The island was named South Talpatti by Bangladesh and New Moore Island or Purbasha by India. Both Bangladesh and India claimed the island because there was speculation that there might be oil or natural gas reserves beneath it. In 1981 India sent a few gunboats and planted an Indian flag on the island, which soon afterwards was removed by the Bangladeshis. Since the 1990s the island began to erode gradually and was finally transformed into a shallow spot in the Bay of Bengal by the rising sea levels. The prediction is that a further rise of the sea level by approximately 1 metre will make Bangladesh 17% smaller by 2050 and displace about 20 million people.

New Moore Island in the Sunderbans has been completely submerged

Although the island has now disappeared the question of the delimitation of the maritime borders still remains. India is favouring a middle line solution.

Mary-Lou Considine: Sea-level Rise: Kiribati and Tuvalu view from Ground Zero. ECOS Magazine, 148 (2009, April/May), p.10-13.

Denis Culley:
Global warming, sea level rise and tort. In: Ocean and Coastal Law Journal, Vol. 8 (2002), pp.91-125

Kiribati Sea Level Rise : Kiribati, an island-nation in the Central Pacific, is doomed to disappear because of sea level rise caused by global warming. Footage taken during a king tide shows waves crashing over the roads, domestic gardens and farmed animals.

Engr Khondkar A Saleque
: Martime Boundary Disputes – Bay of Bengal.

Tuvalu threatened to disappear due to global warming and sea-level rise (BBC News - 22 Jan 2008)