Will discuss recent developments in small island governance
The University of Guam will host Dr. Carlyle Corbin, International Advisor on Governance and Multilateral Diplomacy, who is visiting Guam from the sister territory of the Virgin Islands for a series of lectures and colloquia. He will deliver a featured address at the University of Guam CLASS Lecture Hall on November 30 at 6:00 pm. The topic of his university address is "Recent Developments in Small Island Governance: Implications for the Self-Determination Process."
The event is free and open to the public, and is sponsored by the University of Guam Division of Social Work and the Guåhan Coalition for Peace and Justice.
Corbin is the former Representative for External Affairs in the Government of the US Virgin Islands, and has lectured widely on political and constitutional advancement. He is the author of three books and numerous scholarly articles on governance and political development with specific focus on non-independent countries.
He has served as an advisor to several Caribbean territorial governments, and presently is the international advisor to the Fifth Constitutional Convention of the US Virgin Islands. He has been an expert on self-determination and decolonisation for United Nations Caribbean and Pacific regional seminars for over a decade, and has served as the independent expert to United Nations missions to several non self-governing territories.
He presently serves as the Executive Secretary of the Council of Presidents of the United Nations General Assembly.
30 November 2010
26 November 2010
Puerto Rico Tax Cuts Proposed
Governor Fortuño files balance of sweeping tax reform
By : John Marino Caribbean Business
marino@caribbeanbusinesspr.com
Gov. Luis Fortuño announced Monday that the second and final phase of his proposed tax reform aimed at providing relief to all Puerto Ricans was filed with the Legislature. The reform will provide on average $1.2 billion in taxpayer relief every year for each of the next six years, which constitutes the largest tax relief granted in Puerto Rico history, he added.
“Today we responsibly comply with the pledge we made to all Puerto Rican workers: the most sweeping, equitable and just tax reform every adopted in Puerto Rico,” the governor said. “This reform is based on our commitment to bring relief to Puerto Ricans through just tax rates and control of government spending that will be the formula for our economic development.”
The highlights of the reform, which will phase in the reduced tax rates over the six-year period, include:
— A zero tax rate for those who earn less $20,000 annually.
— A 7 percent rate for those who earn from $20,000 to $30,000.
— A 14 percent rate for those who earn from $30,000 to $70,000.
— A 25 percent rate for those who earn more than $125,000.
— A reduction in the maximum tax rate for businesses to 30 percent from 39 percent.
— An increase to $600 from $300 in the maximum earned income tax credit and an increase to $35,000 from $20,000 in the income cap to be eligible for the program. This will benefit 217,000 additional taxpayers.
— A $400 tax credit for people 65 and older with income under $15,000 annually.
— A deduction of up to 100 percent for charitable donations, up to a limit of 50 percent of adjusted gross income.
The governor also touted the reform’s simplifying of the tax code, reducing to three from five the different taxpayer classifications and eliminating all deductions, except for mortgage interest, charitable donations, medical costs, student loan interest and contributions to retirement or education funds.
The tax reform will mean an average annual savings of $1,500 per taxpayer, with average individual tax rates cut 50 percent and business tax rates 30 percent. It also provides incentives for work and is geared toward economic development and the creation of jobs, Fortuño said.
“History has taught us that a dollar in the hands of Puerto Ricans goes much further than a dollar in the hands of the government,” the governor said. “By putting more money into the pockets of our workers, we are recognizing the fact that they — and not the government — have the power to determine what is best for themselves and their loved ones.”
By : John Marino Caribbean Business
marino@caribbeanbusinesspr.com
Gov. Luis Fortuño announced Monday that the second and final phase of his proposed tax reform aimed at providing relief to all Puerto Ricans was filed with the Legislature. The reform will provide on average $1.2 billion in taxpayer relief every year for each of the next six years, which constitutes the largest tax relief granted in Puerto Rico history, he added.
“Today we responsibly comply with the pledge we made to all Puerto Rican workers: the most sweeping, equitable and just tax reform every adopted in Puerto Rico,” the governor said. “This reform is based on our commitment to bring relief to Puerto Ricans through just tax rates and control of government spending that will be the formula for our economic development.”
The highlights of the reform, which will phase in the reduced tax rates over the six-year period, include:
— A zero tax rate for those who earn less $20,000 annually.
— A 7 percent rate for those who earn from $20,000 to $30,000.
— A 14 percent rate for those who earn from $30,000 to $70,000.
— A 25 percent rate for those who earn more than $125,000.
— A reduction in the maximum tax rate for businesses to 30 percent from 39 percent.
— An increase to $600 from $300 in the maximum earned income tax credit and an increase to $35,000 from $20,000 in the income cap to be eligible for the program. This will benefit 217,000 additional taxpayers.
— A $400 tax credit for people 65 and older with income under $15,000 annually.
— A deduction of up to 100 percent for charitable donations, up to a limit of 50 percent of adjusted gross income.
The governor also touted the reform’s simplifying of the tax code, reducing to three from five the different taxpayer classifications and eliminating all deductions, except for mortgage interest, charitable donations, medical costs, student loan interest and contributions to retirement or education funds.
The tax reform will mean an average annual savings of $1,500 per taxpayer, with average individual tax rates cut 50 percent and business tax rates 30 percent. It also provides incentives for work and is geared toward economic development and the creation of jobs, Fortuño said.
“History has taught us that a dollar in the hands of Puerto Ricans goes much further than a dollar in the hands of the government,” the governor said. “By putting more money into the pockets of our workers, we are recognizing the fact that they — and not the government — have the power to determine what is best for themselves and their loved ones.”
23 November 2010
'We Are Guahan' Joins lawsuit Against Military Build-up
Almost one year exactly after the release of the Draft Environmental Impact Statement, We Are Guåhan has joined the Guam Preservation Trust and National Trust for Historic Preservation in a lawsuit against DoD (U.S. Department of Defence).
http://weareguahan.com/2010/11/19/we-are-guahan-joins-lawsuit-against-dod/
. This lawsuit is about Pågat, but it is not just about Pågat. This lawsuit is also about DoD deciding that “operational efficiency” was more important than the requests of our Legislature, our Governor, our Congresswoman and our community. In the name of military convenience, DoD has broken promises and, as will be shown in this lawsuit, it has broken the law.
How can we expect DoD to voluntarily help us pay for the 9 new schools and 500 additional hospital beds that will be needed outside the fence when a lawsuit is required to force DoD to follow the law?
To be clear, this lawsuit is about protecting Pågat, a site that has great cultural and historical significance to our island. But to be equally as clear, We Are Guåhan has and will continue to oppose the buildup as proposed. We are here, and we will use every tool that is available to us to protect our home, including legal action.
See also: "Guam Preservation Trust and We Are Guahan, joined by the National Trust for Historic Preservation, Files Complaint for Injunctive and Declaratory Relief"
http://weareguahan.com/2010/11/19/we-are-guahan-joins-lawsuit-against-dod/
. This lawsuit is about Pågat, but it is not just about Pågat. This lawsuit is also about DoD deciding that “operational efficiency” was more important than the requests of our Legislature, our Governor, our Congresswoman and our community. In the name of military convenience, DoD has broken promises and, as will be shown in this lawsuit, it has broken the law.
How can we expect DoD to voluntarily help us pay for the 9 new schools and 500 additional hospital beds that will be needed outside the fence when a lawsuit is required to force DoD to follow the law?
To be clear, this lawsuit is about protecting Pågat, a site that has great cultural and historical significance to our island. But to be equally as clear, We Are Guåhan has and will continue to oppose the buildup as proposed. We are here, and we will use every tool that is available to us to protect our home, including legal action.
See also: "Guam Preservation Trust and We Are Guahan, joined by the National Trust for Historic Preservation, Files Complaint for Injunctive and Declaratory Relief"
22 November 2010
Lawsuit Calls for New Elections in Guam
*****
Written by Kevin Kerrigan
PNC Pacific News Center
Guam News
Guam - Lawyers for the Gutierrez-Aguon Gubernatorial Campaign this afternoon [Friday] filed a lawsuits in District Court seeking to overturn the results of the 2010 Gubernatorial Election that has already been certified in favor of the rival Republican team of Calvo-Tenorio.
The lawsuit was filed by Attorney David Lujan on behalf of Carl Gutierrez ... Frank Aguon Jr...The Democratic Party of Guam and 1-thousand John Doe's ...citizens of Guam, all of whom, the lawsuit alleges, were "illegally and arbitrarily deprived of their right to vote." Among the factual allegations in the lawsuit are:
* locked ballot boxes were opened at polling sites ... secret ballots were removed and exposed to the public
* ballots were removed by Guam Election Commission Executive Director John Blas who transported them to other polling sites.
* absentee ballots were destroyed or removed
* absentee ballots were not mailed to voters who requested them
* absentee ballots were mailed too late for voters to return them in time
* registered voters were turned away at numerous polling sites and not allowed to vote
* the chain of custody was compromised when ballots were secured and held by a private security company owned and/or controlled by Republican Lt. Gubernatorial candidate Ray Tenorio.
* the number of ballots issued to voters did not match the number of ballots returned at various precincts
* residents of other U.S. jurisdictions ... like Saipan, were allowed to vote in Guam's election.
* underage voters were allowed to cast ballots
*illegal ballots were counted
*voting tabulation machines malfunctioned
The lawsuit also reveals new totals in the election count:
Calvo-Tenorio: 19,879 or 50.38 %
Gutierrez-Aguon 19,296 or 48.90 %
* 484 over-votes
* 702 under-votes
On the issue of the over and under votes, the lawsuit notes that the tabulation machines rejected those votes on November 2ed election night. But the Election Commission Board Members spent much of their time during the re-count on November 6th trying to determine voter intent. But that process too comes under criticism in the lawsuit which states:
"The machine re-count ... included numerous incidents of ballots being chewed up/mutilated by the machines ... and there were problems with several machines ... several additional recounts had to be done for at least 6 precincts." But "despite the fact of the obvious failures of the tabulation machines ... the GEC (Guam Electoral Commission) accepted and certified the results of the machine recount."
The lawsuit cites violations of the 5th and 4th Amendments to the Constitution and it also cites the Guam Organic Act and the Help America Vote Act which all guarantee that a citizens right to vote may not be arbitrarily denied.
The lawsuits suit seeks:
*declare the results of the election for governor and lt. governor certified by the GEC legally invalid
*require the GEC to schedule and conduct a new election at the earliest practicable time.
19 November 2010
Communiqué from (U.K.) Overseas Territories Consultative Council
Foreign and Commonwealth Office (FCO)
Press Centre
http://turksandcaicosislands.fco.gov.uk/en/news/?view=PressS&id=118620682
18 November 2010
Minister for the Overseas Territories Henry Bellingham met leaders from the Overseas Territories for the Overseas Territories Consultative Council on 17 November.
The UK and Overseas Territories represented at the Consultative Council discussed a number of issues of mutual interest and concern. Mr Bellingham emphasised the Coalition Government’s determination to improve and strengthen the UK’s relationship with the Overseas Territories and to represent their interests in international fora. He also made clear that other Government Departments were now more closely involved in Overseas Territories work. The Caribbean Territories welcomed the important emergency assistance provided by the Atlantic Patrol Task (North) during the recent hurricane season. The Minister noted that the Coalition Government had restarted the vital Air Access project for St Helena and had agreed to provide assistance for Tristan da Cunha’s harbour. All parties agreed on the need to work together to help the commercial and economic development of the Territories.
During the criminal justice session there were discussions about rising crime in some of the Territories; about drugs and organised crime; and about possible UK technical assistance to the Territories in these areas. In the session on transport there were discussions about maritime and aviation safety regulations; and the importance of meeting international safety standards. Territory leaders raised concerns about the cost of this and about Air Passenger Duty.
During the session on the environment, it was agreed that Territory Governments and relevant UK Departments would work together to help manage the natural environment and the impact of climate change in the Territories, including highlighting examples of good practice and successes already achieved in the Territories.
During the session on passport issues, the UK and the Overseas Territories discussed arrangements for handling the printing of passports in light of the UK Government’s decision to repatriate to the UK the printing of all British passports.
During their separate session on financial services and public finances, the UK and the Caribbean Territories and Bermuda agreed:
* the importance of complying with international financial sector standards (on tax transparency, financial regulation and anti-money laundering/counter terrorism financing) and that these standards must be applied without discrimination
* the importance of continuing to take action to return public finances to a sustainable footing to take forward work on a framework for fiscal responsibility
During their separate session the South Atlantic Territories agreed a number of areas in which they could work together more closely.
Press Centre
http://turksandcaicosislands.fco.gov.uk/en/news/?view=PressS&id=118620682
18 November 2010
Minister for the Overseas Territories Henry Bellingham met leaders from the Overseas Territories for the Overseas Territories Consultative Council on 17 November.
The UK and Overseas Territories represented at the Consultative Council discussed a number of issues of mutual interest and concern. Mr Bellingham emphasised the Coalition Government’s determination to improve and strengthen the UK’s relationship with the Overseas Territories and to represent their interests in international fora. He also made clear that other Government Departments were now more closely involved in Overseas Territories work. The Caribbean Territories welcomed the important emergency assistance provided by the Atlantic Patrol Task (North) during the recent hurricane season. The Minister noted that the Coalition Government had restarted the vital Air Access project for St Helena and had agreed to provide assistance for Tristan da Cunha’s harbour. All parties agreed on the need to work together to help the commercial and economic development of the Territories.
During the criminal justice session there were discussions about rising crime in some of the Territories; about drugs and organised crime; and about possible UK technical assistance to the Territories in these areas. In the session on transport there were discussions about maritime and aviation safety regulations; and the importance of meeting international safety standards. Territory leaders raised concerns about the cost of this and about Air Passenger Duty.
During the session on the environment, it was agreed that Territory Governments and relevant UK Departments would work together to help manage the natural environment and the impact of climate change in the Territories, including highlighting examples of good practice and successes already achieved in the Territories.
During the session on passport issues, the UK and the Overseas Territories discussed arrangements for handling the printing of passports in light of the UK Government’s decision to repatriate to the UK the printing of all British passports.
During their separate session on financial services and public finances, the UK and the Caribbean Territories and Bermuda agreed:
* the importance of complying with international financial sector standards (on tax transparency, financial regulation and anti-money laundering/counter terrorism financing) and that these standards must be applied without discrimination
* the importance of continuing to take action to return public finances to a sustainable footing to take forward work on a framework for fiscal responsibility
During their separate session the South Atlantic Territories agreed a number of areas in which they could work together more closely.
17 November 2010
Chamoru Students to Discuss Decolonisation of Guam
United Nations Guam Forum
University of California Los Angeles (UCLA)
THURSDAY NOVEMBER 18, 2010
5:30-7:30
170 DODD HALL
THURSDAY NOVEMBER 18, 2010
This forum will discuss the testimonies of the Guam Delegation who testified at the United Nations Special Political and Decolonization Committee in October 2010
SPEAKERS INCLUDE:
Josette Quinata
Michael Tuncap
Alfred Flores
Edward Browne
UCLA Graduate Coalition of the Native Pacific
UCLA Pacific Islands' Student Association
Pacific Islander Studies Initiative
NAPA
NAPA
UCLA Post Colonial Theory & Literature Colloquium
Testimony to the United Nations Special Political and Decolonization Committee
Chamoru Self-Determination in Guåhan (Guam)
October 5-6, 2010
Hafa Adai distinguished members of the Special Political and Decolonization Committee (Fourth Committee) and Chairman, H.E. Mr. Chitsaka Chipaziwa. Dankolo na si yu’us ma’ase (thank you very much) for your time in allowing me the opportunity to address this esteemed international body.
Guahu si Josette Marie Lujan Quinata and I am a proud Chamoru daughter of Guåhan. I am a graduate student in the Master of Social Work program at the University of Southern California and a member of Famoksaiyan. "Famoksaiyan" translates to either "the place or time of nurturing" or "the time to paddle forward and move ahead." We are a grassroots network of activists, scholars, students, community leaders and artists who seek to push for a political, economic, and social agenda for Chamorus on local, national and international levels.
I am here today to express to you the crucial concerns that are in dire need of your attention, advocacy, and support especially during this extremely critical time in Guåhan’s history. Currently, Guåhan is under grave attack as it has been designated by the United States, its administering power, as the stage for the largest U.S. military buildup since World War II. The overwhelmingly colossal transference from Okinawa, Japan to Guåhan includes military personnel, their families, and foreign construction workers and is scheduled to take effect by 2014. This massive influx is expected to increase Guåhan’s population by 34 percent. Resources to land, community facilities, and infrastructure capacity will undeniably be impacted by the drastic number of people utilizing these amenities and will devastatingly reinforce the economic, social, and financial dependency the U.S. has over Guåhan. Therefore, the political and decision-making process for Chamorus continues to be one of an insider-outsider perspective as Chamorus remain on the outside fences barred from making decisions that ultimately impinges on their indigenous rights and native claim to the land. This inability to include Chamorus in the very decisions that affect their land, their culture, and their lives permeates the power struggle, political dominance, colonialism, and militarization that the U.S. gravely has over the native people of Guåhan.
Furthermore, what makes this potential atrocity even more horrific is that despite the multitude of people who have advocated for their voices, their concerns, worries, fears, and questions surrounding the military buildup to be addressed, the “green light” to move forward with the continued militarization of Guåhan was recently announced in the U.S. Department of Defense’s Record of Decision. This heartrending decision to move forward with the military buildup will not only alter the lives of the Chamoru people, but it will also significantly impact the environment of Guåhan. For instance, according to the Environmental Impact Statement, the aspirations of the military buildup include excavating ancestral, native and sacred lands in exchange for live firing ranges and the expansion of hotels, resorts, and housing markets. Such a disregard for the cultural ties to our land and historical sites of our ancestors will be detrimental in preserving our Chamoru culture and learning about our history.
In addition, the U.S. government has allocated funding for the development of naval infrastructures while civilian infrastructures continue to deteriorate, posing health and environmental risks on the people of Guåhan. Both the administering power and the Government of Guåhan have stated that the island’s infrastructure is inadequate to meet the needs of the military buildup and the increased number of people it will serve. However, costs needed for the upgrades to Guåhan’s infrastructures are different from the funds that are applied to the military bases. Therefore, Guåhan will not only have to support the local community, but also the demands of the military buildup without having any control of the financial expenses or responsibility over the expansion.
Thus, vital aspects of Chamoru society are impounded by the underlying theme of militarization that affects land resources, health, financial stability, and political sovereignty. The colonization of Guåhan continues to deny Chamorus decision-making power on issues that truly affect their lives. This is evidenced in the lack of inclusion that Chamorus are faced with as our voices and ethical issues are second to militarization and colonialism. And while we have provided our input in the planning process of the buildup, ultimately, we have no real control over what happens to our island and the impacts it would have on future generations.
Therefore, as we question the effects and consequences of this proposed plan, it is overwhelmingly apparent that the security interests and national policies of the U.S. are not inclusive of the Chamoru people’s plight and concerns. Guåhan to this day remains colonized even though it was placed under the United Nations list of Non-Self Governing Territories, and after the UN passed General Assembly Resolutions 1514 (the Declaration on the Granting of Independence to Colonial Countries and Peoples) and 1541(which establishes the three options for self-determination). However, we have the chance to prevent history from repeating itself and from suffering at the hands of colonialism which will lead to ongoing detrimental effects on our land, culture, and humanity. More importantly, we have the opportunity to further the process for self-determination, sovereignty, cultural preservation, and land security by collaborating with the Fourth Committee to help facilitate the political process that enforces the United States’ obligation under the UN Charter to help the Chamoru people attain their basic right to self-determination.
At a time when our homeland is threatened by militarization and heavy dependency on the United States, I recommend that the Fourth Committee immediately enact the process of decolonization for Guåhan in lieu of the severe, irreversible impacts of U.S. militarization with a fully funded and far-reaching education campaign informing all Chamorus from Guåhan of their right to self-determination and decolonization options. I also hope you will join me in understanding the social and political impacts of Guåhan, and acknowledging the Chamoru people’s desire to inspire change and evoke action that will allow us to have a real voice in our political future.
Saina Ma’ase.
Josette Marie Lujan Quinata
MSW Graduate Student
University of Southern California
Famoksaiyan
I dedicate this testimony to all those who have inspired and motivated me in this journey, and for those who have left a legacy on our island. I am especially grateful for my Nana, Veronica Lujan and Grandmother, Rosita Quinata who have been extremely profound throughout my journey. I am moved by your compassion, encouragement, and belief in me and in the Chamoru people’s right to self-determination. I especially want to say si yu’us ma’ase to Sid Gardner, President of Children and Family Futures, a non-profit organization whose mission is to improve the lives of children and families, particularly those affected by substance use disorders. Your organization’s profound enthusiasm and outpouring support have undoubtedly been the backbone behind my 2010 United Nations testimony. I am forever grateful for your commitment and influence in this journey. Dankolo na si yu’us ma’ase.
16 November 2010
The Decolonisation Process in Western Sahara
Kamal Fadel
Representative of Polisario in Australia
The Western Sahara issue is an important and relevant issue to all those who are interested in the role of the United Nations, human rights, justice and peace. Western Sahara is situated in northwest Africa along the Atlantic coast, and was a Spanish colony for almost 100 years. In 1975, Spain signed a secret agreement with Morocco and Mauritania, dividing the territory between them. 1/ Both Morocco and Mauritania invaded and illegally occupied territory. However, in 1979, Mauritania abandoned its territorial claim over Western Sahara and signed a peace treaty with the Indigenous people. Despite this, Morocco maintains administrative control and continues to claim sovereignty over most of the Territory. The United Nations (‘the UN’) and the Organisation of African Unity (‘the OAU’) have been trying to organise a referendum on self-determination in Western Sahara. 2/
The United Nations Decolonisation Program
The Charter of the United Nations recognises the right of peoples to self determination. 3/ Furthermore, the UN passed landmark resolutions and established important decolonisation programs. 4/ In 1963 Western Sahara was included in the UN list of the non-self-governing territories, and in October 1964 the UN Decolonisation Committee adopted its first Resolution on Western Sahara, urging Spain to start the process of decolonising the territory. 5/ The UN General Assembly issued a similar Resolution on December 16, 1965. 6/
Initially, Spain was reluctant to start the process of decolonisation; but in August 1974, it informed the UN that it was prepared to organize a referendum on self-determination. In this referendum, the people of Western Sahara could choose either full independence or to remain attached to Spain. Morocco and Mauritania opposed the referendum idea as they wanted the Territory for themselves.
The Moroccan Sovereignty Claim and the International Court of Justice (ICJ)
In order to postpone the referendum, Morocco, with the support of Mauritania, asked the UN General Assembly to seek arbitration from the International Court of Justice (‘the ICJ’) and to give legal advice on this matter. On 13 December 1974, the ICJ was asked to give an advisory opinion on: (1) whether or not the Western Sahara had been terra nullius - a territory belonging to no one - at the time of Spanish colonisation; and (2) if it was not terra nullius at the time of Spanish colonisation, then what was the legal relationship between Western Sahara and Morocco, and Western Sahara and Mauritania . 7/
In international law, sovereignty has two elements: territorial and jurisdictional. 8/ Morocco claims that before Spanish colonisation, Western Sahara was Moroccan territory. To satisfy the jurisdictional test for sovereignty, it cites evidence that at the time of Spanish colonisation, some Sahrawi tribes paid allegiance to the Moroccan throne. Specifically, it relies on the Islamic concept of the bayaa, an allegiance amounting to ‘a contractual agreement whereby the Muslim community offered a conditional loyalty to its caliph (leader) in response to his recognition of his obligations under the sharia’ . 9/
On this basis, Morocco claims firstly that it, not Spain, has a legitimate claim to sovereignty over the territory of Western Sahara. It also claims that the principle of uti possidetis juris, 10/ which holds that colonial boundaries cannot be altered on independence or decolonisation, applies to that territory.
The ICJ studied all the documents presented to it by Morocco, Mauritania, Spain and Algeria; but the Sahrawis were not allowed to appear before the Court since the ICJ can only hear evidence from States. 11/ After twenty-seven sessions, the ICJ issued its opinion on October 15, 1975. 12/
The Court decided unanimously that Western Sahara was not terra nullius when Spain proclaimed a protectorate over it in 1884, since it ‘was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them’. 13/ The court then gave the conclusion of its opinion regarding the legal ties between Western Sahara, Morocco and Mauritania:
The decision of the ICJ is of great significance. As Thomas Frank put it, ‘the judges asserted the supremacy of the norm developed by UN resolutions and the practice of decolonisation: the Sahrawi population was entitled to self-determination within the perimeters of the existing colonial entity’. 15/ It is clear that the ICJ decision is a rejection of the Moroccan claim of sovereignty over Western Sahara.
The Postponed Referendum
Despite the Court’s decision, Morocco and Mauritania invaded and occupied Western Sahara in 1975 in a grave violation of international law. The UN Security Council adopted a resolution deploring the invasion and calling on Morocco to withdraw from the Territory 16/ , but the resolution was never enforced. The invasion provoked a prolonged war; causing great suffering to the Indigenous Sahrawis who have been denied their basic human rights. Yet it is a human tragedy rarely noticed by the rest of the world.
In August 1988, as result of war-weariness and international pressure, Morocco agreed to a UN-OAU peace process. Central to the UN-OAU peace plan (‘the plan’) is the holding of a referendum providing an opportunity for the Sahrawi people to exercise their right to self-determination in a free and fair manner. A cease-fire was declared in September 1991 and a UN mission (MINURSO) was deployed in the territory. According to the original plan, 17/ the referendum should have taken place in January 1992.
Furthermore, Morocco signed the Houston Agreements negotiated under the auspices of James Baker, the former Personal Envoy of the Secretary-General. The agreements were endorsed by the Security Council and should have lead to the organisation of the referendum.
In an attempt to break the deadlock, James Baker presented what became known as the Baker Plan that was endorsed by the Security Council in July 2003. The plan envisaged four to five years autonomy under Moroccan sovereignty, followed by a referendum on the final status of the Territory in which Moroccan settlers who resided in the territory since December 1999 would vote. As a gesture of good will and in a spirit of co-operation, Polisario, a Sahrawi movement working for Western Sahara’s independence, accepted the Plan despite the risks involved in it- but Morocco rejected it.
In August 2004, Morocco decided to abandon the peace process and the referendum idea altogether, due to fears of the verdict of the Saharawi people. In response, the UN Security Council called on Morocco and Polisario to enter into direct negotiations without preconditions, in good faith, and with a view to ensuring the respect for the right of the Saharawi people to self-determination..
Morocco and Polisario met four times at Manhasset neat New York in 2007 and 2008 for direct negotiations under UN auspices, but the talks have so far failed because Morocco refuses to consider the referendum idea and will only offer what it calls “autonomy”; which the Saharawis consider falls short of the right of self-determination.
The right of peoples to self-determination is enshrined in the declarations of the United Nations and the Organisation of African Unity. 18/ Furthermore, the ICJ verdict upheld that the Sahrawi people are entitled to exercise this right. Therefore, the invasion and occupation of Western Sahara in 1975 was an act of aggression and a violation of international law.
The UN has so far failed in its efforts in Western Sahara, because of the lack of major powers in the international community politically and publicly supporting the referendum. Unlike the referendum process in East Timor, which has benefited from the involvement of regional and international actors, the Western Sahara peace process has not yet attracted international attention. Unless there is international pressure on Morocco, the chances of the referendum proceeding in Western Sahara are very slim.
After 47 years on the UN agenda, it is tragic that Western Sahara’s decolonisation is still incomplete and that the Sahrawi people are still denied their basic and legitimate right to decide their own future. At the same time, the Saharawis have faced horrendous human rights abuses by Morocco. In addition, their natural resources continue to be illegally exploited by companies from all over the world. 165,000 Saharawis have endured life in harsh conditions in refugee camps for the past 33 years.
It is the duty of the international community to make sure that a final and lasting decolonisation process is achieved in Western Sahara. The alternative to a peaceful solution will be the resumption of hostilities and the destabilisation of the whole region, something the Saharawis wish to avoid.
See also: http://www.un.org/News/Press/docs/2010/gaspd452.doc.htm
_____________________________________
1/ Note that this deal has no status in International law.
2/ For the best historical background in English, see Tony Hodges, Western Sahara: The Roots of a Desert War (1983); and Karin Arts and Pedro Pinto Leite (eds).International Law and the Question of Western Sahara.
3/ Article 1 of the United Nations Charter1945.
4/ Declaration on the Granting of Independence to Colonial Territories and Peoples General Assembly Resolution 1514 (XV) 14 December 1960 UNDoc A/4684 (1960), GAOR 15th Session, Supp 16, p66. General Assembly Resolution 1514 (XV) 15 December 1960, Principles VI-IX, UN Doc A/4684 (1960), GAOR 15th Session, Supp 16, p29.
5/ GAOR, 19th Session, Annex No. 8 (part I), UN Document A/5800/Rev.1 (1964), pp.290-91.
6/ UNGA Resolution 2072, December 16, 1965, GAOR, 20th Session, Supplement 14, UN Document A/6014, pp.59-60
7/ General Assembly Resolution 3292, 29 UN GAOR Supp. 31, UN Document A/9631 1974, paras. 103-4.
8/ These elements of sovereignty are expressed in Article 2(4) of the UN Charter 1945, which states in part that ‘[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State...’. Cf Dixon & McCorquodale, above n 3, chs 7 & 8.
9/ George Joffe, ‘International Court of Justice and the Western Sahara’ in Richard Lawless and Laila Monahan (eds) War and Refugees: The Western Sahara Conflict (1987) 26.
10/ Paragraph 6 of the UN Resolution 15 14 (XV) of 1960. Cf Dixon & McCorquodale, above n 3, 266-7 & 301-5; George Joffe, ‘Self-determination and Uti Possidetis: The Western Sahara and the "Lost Provinces"’, (1996) 1 Morocco 10.
11/ Statute of the International Court of Justice 1945, Article 36(2)
12/ ICJ Rep 1975 12. Cf Hodges, above n 12, 368
13/ ICJ Rep 1975 12 para 81.
14/ ICJ Rep 1975 12 para 162.
15/ Thomas Frank, ‘Theory and practice of decolonisation’ in Lawless and Monahan, above n 17, 12.
16/ S/RES/380 (1975) of 6 November 1975, adopted by the Security Council at its 1854th meeting.
17/ The Secretary General Report S/21360 adopted by Security Council Resolution S/RES/658 (1990), and Secretary General Report S/22464 adopted by S/RES/690 (1991).
18/ Articles 1 (2), 55 and 56 of the UN Charter ; Article III (3) of the OAU Charter 1963.
Representative of Polisario in Australia
The Western Sahara issue is an important and relevant issue to all those who are interested in the role of the United Nations, human rights, justice and peace. Western Sahara is situated in northwest Africa along the Atlantic coast, and was a Spanish colony for almost 100 years. In 1975, Spain signed a secret agreement with Morocco and Mauritania, dividing the territory between them. 1/ Both Morocco and Mauritania invaded and illegally occupied territory. However, in 1979, Mauritania abandoned its territorial claim over Western Sahara and signed a peace treaty with the Indigenous people. Despite this, Morocco maintains administrative control and continues to claim sovereignty over most of the Territory. The United Nations (‘the UN’) and the Organisation of African Unity (‘the OAU’) have been trying to organise a referendum on self-determination in Western Sahara. 2/
The United Nations Decolonisation Program
The Charter of the United Nations recognises the right of peoples to self determination. 3/ Furthermore, the UN passed landmark resolutions and established important decolonisation programs. 4/ In 1963 Western Sahara was included in the UN list of the non-self-governing territories, and in October 1964 the UN Decolonisation Committee adopted its first Resolution on Western Sahara, urging Spain to start the process of decolonising the territory. 5/ The UN General Assembly issued a similar Resolution on December 16, 1965. 6/
Initially, Spain was reluctant to start the process of decolonisation; but in August 1974, it informed the UN that it was prepared to organize a referendum on self-determination. In this referendum, the people of Western Sahara could choose either full independence or to remain attached to Spain. Morocco and Mauritania opposed the referendum idea as they wanted the Territory for themselves.
The Moroccan Sovereignty Claim and the International Court of Justice (ICJ)
In order to postpone the referendum, Morocco, with the support of Mauritania, asked the UN General Assembly to seek arbitration from the International Court of Justice (‘the ICJ’) and to give legal advice on this matter. On 13 December 1974, the ICJ was asked to give an advisory opinion on: (1) whether or not the Western Sahara had been terra nullius - a territory belonging to no one - at the time of Spanish colonisation; and (2) if it was not terra nullius at the time of Spanish colonisation, then what was the legal relationship between Western Sahara and Morocco, and Western Sahara and Mauritania . 7/
In international law, sovereignty has two elements: territorial and jurisdictional. 8/ Morocco claims that before Spanish colonisation, Western Sahara was Moroccan territory. To satisfy the jurisdictional test for sovereignty, it cites evidence that at the time of Spanish colonisation, some Sahrawi tribes paid allegiance to the Moroccan throne. Specifically, it relies on the Islamic concept of the bayaa, an allegiance amounting to ‘a contractual agreement whereby the Muslim community offered a conditional loyalty to its caliph (leader) in response to his recognition of his obligations under the sharia’ . 9/
On this basis, Morocco claims firstly that it, not Spain, has a legitimate claim to sovereignty over the territory of Western Sahara. It also claims that the principle of uti possidetis juris, 10/ which holds that colonial boundaries cannot be altered on independence or decolonisation, applies to that territory.
The ICJ studied all the documents presented to it by Morocco, Mauritania, Spain and Algeria; but the Sahrawis were not allowed to appear before the Court since the ICJ can only hear evidence from States. 11/ After twenty-seven sessions, the ICJ issued its opinion on October 15, 1975. 12/
The Court decided unanimously that Western Sahara was not terra nullius when Spain proclaimed a protectorate over it in 1884, since it ‘was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them’. 13/ The court then gave the conclusion of its opinion regarding the legal ties between Western Sahara, Morocco and Mauritania:
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 decolonisation 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. 14/
The decision of the ICJ is of great significance. As Thomas Frank put it, ‘the judges asserted the supremacy of the norm developed by UN resolutions and the practice of decolonisation: the Sahrawi population was entitled to self-determination within the perimeters of the existing colonial entity’. 15/ It is clear that the ICJ decision is a rejection of the Moroccan claim of sovereignty over Western Sahara.
The Postponed Referendum
Despite the Court’s decision, Morocco and Mauritania invaded and occupied Western Sahara in 1975 in a grave violation of international law. The UN Security Council adopted a resolution deploring the invasion and calling on Morocco to withdraw from the Territory 16/ , but the resolution was never enforced. The invasion provoked a prolonged war; causing great suffering to the Indigenous Sahrawis who have been denied their basic human rights. Yet it is a human tragedy rarely noticed by the rest of the world.
In August 1988, as result of war-weariness and international pressure, Morocco agreed to a UN-OAU peace process. Central to the UN-OAU peace plan (‘the plan’) is the holding of a referendum providing an opportunity for the Sahrawi people to exercise their right to self-determination in a free and fair manner. A cease-fire was declared in September 1991 and a UN mission (MINURSO) was deployed in the territory. According to the original plan, 17/ the referendum should have taken place in January 1992.
Furthermore, Morocco signed the Houston Agreements negotiated under the auspices of James Baker, the former Personal Envoy of the Secretary-General. The agreements were endorsed by the Security Council and should have lead to the organisation of the referendum.
In an attempt to break the deadlock, James Baker presented what became known as the Baker Plan that was endorsed by the Security Council in July 2003. The plan envisaged four to five years autonomy under Moroccan sovereignty, followed by a referendum on the final status of the Territory in which Moroccan settlers who resided in the territory since December 1999 would vote. As a gesture of good will and in a spirit of co-operation, Polisario, a Sahrawi movement working for Western Sahara’s independence, accepted the Plan despite the risks involved in it- but Morocco rejected it.
In August 2004, Morocco decided to abandon the peace process and the referendum idea altogether, due to fears of the verdict of the Saharawi people. In response, the UN Security Council called on Morocco and Polisario to enter into direct negotiations without preconditions, in good faith, and with a view to ensuring the respect for the right of the Saharawi people to self-determination..
Morocco and Polisario met four times at Manhasset neat New York in 2007 and 2008 for direct negotiations under UN auspices, but the talks have so far failed because Morocco refuses to consider the referendum idea and will only offer what it calls “autonomy”; which the Saharawis consider falls short of the right of self-determination.
The right of peoples to self-determination is enshrined in the declarations of the United Nations and the Organisation of African Unity. 18/ Furthermore, the ICJ verdict upheld that the Sahrawi people are entitled to exercise this right. Therefore, the invasion and occupation of Western Sahara in 1975 was an act of aggression and a violation of international law.
The UN has so far failed in its efforts in Western Sahara, because of the lack of major powers in the international community politically and publicly supporting the referendum. Unlike the referendum process in East Timor, which has benefited from the involvement of regional and international actors, the Western Sahara peace process has not yet attracted international attention. Unless there is international pressure on Morocco, the chances of the referendum proceeding in Western Sahara are very slim.
After 47 years on the UN agenda, it is tragic that Western Sahara’s decolonisation is still incomplete and that the Sahrawi people are still denied their basic and legitimate right to decide their own future. At the same time, the Saharawis have faced horrendous human rights abuses by Morocco. In addition, their natural resources continue to be illegally exploited by companies from all over the world. 165,000 Saharawis have endured life in harsh conditions in refugee camps for the past 33 years.
It is the duty of the international community to make sure that a final and lasting decolonisation process is achieved in Western Sahara. The alternative to a peaceful solution will be the resumption of hostilities and the destabilisation of the whole region, something the Saharawis wish to avoid.
See also: http://www.un.org/News/Press/docs/2010/gaspd452.doc.htm
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1/ Note that this deal has no status in International law.
2/ For the best historical background in English, see Tony Hodges, Western Sahara: The Roots of a Desert War (1983); and Karin Arts and Pedro Pinto Leite (eds).International Law and the Question of Western Sahara.
3/ Article 1 of the United Nations Charter1945.
4/ Declaration on the Granting of Independence to Colonial Territories and Peoples General Assembly Resolution 1514 (XV) 14 December 1960 UNDoc A/4684 (1960), GAOR 15th Session, Supp 16, p66. General Assembly Resolution 1514 (XV) 15 December 1960, Principles VI-IX, UN Doc A/4684 (1960), GAOR 15th Session, Supp 16, p29.
5/ GAOR, 19th Session, Annex No. 8 (part I), UN Document A/5800/Rev.1 (1964), pp.290-91.
6/ UNGA Resolution 2072, December 16, 1965, GAOR, 20th Session, Supplement 14, UN Document A/6014, pp.59-60
7/ General Assembly Resolution 3292, 29 UN GAOR Supp. 31, UN Document A/9631 1974, paras. 103-4.
8/ These elements of sovereignty are expressed in Article 2(4) of the UN Charter 1945, which states in part that ‘[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State...’. Cf Dixon & McCorquodale, above n 3, chs 7 & 8.
9/ George Joffe, ‘International Court of Justice and the Western Sahara’ in Richard Lawless and Laila Monahan (eds) War and Refugees: The Western Sahara Conflict (1987) 26.
10/ Paragraph 6 of the UN Resolution 15 14 (XV) of 1960. Cf Dixon & McCorquodale, above n 3, 266-7 & 301-5; George Joffe, ‘Self-determination and Uti Possidetis: The Western Sahara and the "Lost Provinces"’, (1996) 1 Morocco 10.
11/ Statute of the International Court of Justice 1945, Article 36(2)
12/ ICJ Rep 1975 12. Cf Hodges, above n 12, 368
13/ ICJ Rep 1975 12 para 81.
14/ ICJ Rep 1975 12 para 162.
15/ Thomas Frank, ‘Theory and practice of decolonisation’ in Lawless and Monahan, above n 17, 12.
16/ S/RES/380 (1975) of 6 November 1975, adopted by the Security Council at its 1854th meeting.
17/ The Secretary General Report S/21360 adopted by Security Council Resolution S/RES/658 (1990), and Secretary General Report S/22464 adopted by S/RES/690 (1991).
18/ Articles 1 (2), 55 and 56 of the UN Charter ; Article III (3) of the OAU Charter 1963.
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