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Statement on Western Sahara to the UN Special Political and Decolonization Committee

United Nations, New York, October 2004

By: International Platform of Jurists for East Timor

Petitioner: Pedro Pinto Leite

Mr. Chairman, distinguished delegates,

As this is the first time I address this Committee, I wish to thank you for the opportunity to speak on behalf of the International Platform of Jurists for East Timor, a NGO including 650 law professors and lecturers, judges, attorneys and other jurists from more than 80 countries. For many years, we stressed in many international fora (including the UN Special Committee of 24) the need for the East Timorese people to exercise their right to self-determination through a free and fair referendum. As you all know, that referendum indeed took place. It was conducted in very difficult circumstances and had a brutal aftermath. But the participation of the East Timorese voters was massive, their choice crystal clear and East Timor is today an independent State with a seat in the United Nations.

Mr. Chairman,

Equal cases should be treated equally before the law. This is a basic legal principle common to both systems of domestic and international law. Today more than ever, in these times of lawless acts of terrorism and illegal responses to those acts, it is imperative to firmly uphold this and other sound principles of international law.

Since the famous UN Resolution 1514 (XV) of 1960, the right to self-determination has been recognized as a basic right of all peoples. 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.

After the independence of East Timor in May 2002, Western Sahara became the most populous non-self-governing territory on the list of the UN Decolonization Committee. The similarities between the two cases are astonishing. Prof. François Rigaux, in IPJET's book "International Law and the Question of East Timor" (1995), lists the following analogies:

- the events are quasi-contemporary: 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 under an Iberian colonizer: Western Sahara was colonized by Spain, East Timor by Portugal;

- “in both cases the colonial power agreed with (…) decolonization, but it was prevented from or did not comply with its duty to a peaceful transmission of power to the colonized 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 delivered similar judgements condemning the occupation of Western Sahara and East Timor and the crimes against humanity committed there.

Since the publication of Rigaux’s article more analogies have come to 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 already said that it did not find anything that might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination. In the East Timor case, twenty years later, the Court reminded that the General Assembly of the United Nations and its subsidiary organs had constantly treated East Timor as non-self-governing and that the Security Council 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).

- 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, and in 1998 President Habibie came up with a similar proposal.

- 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 consultation, and in both cases the date was postponed.

But here the similarities come to an end. As I said, in East Timor the referendum did take place. The contrast with Western Sahara is enormous. True, the Sahrawi Arab Democratic Republic was proclaimed in 1976, it was recognized by more than 70 countries and became a full member of the Organization of African Unity (now African Union). But the referendum envisaged by the Peace Plan did not take place, due to the obstruction of Morocco. Using the tactics of forcing delay after delay, Rabat continues to illegally occupy Western Sahara in defiance of international law, in defiance of the international community. Rabat’s bad faith was once more demonstrated by its reaction to the latest peace plan of Mr. James Baker. Although this plan gave into several Moroccan demands, such as letting a majority of Moroccan settlers vote in the planned referendum, nevertheless Rabat rejected it. Dishonoring the commitments made in August 1988 and reiterated in the Houston Agreement of September 1997, Morocco shifted to its earlier position of opposing a referendum in Western Sahara.

In the background, we notice another analogy with East Timor. When the Australian government concluded the Timor Gap Treaty with Indonesia in 1989, to exploit 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. In October 2001 French and American companies signed contracts with Morocco to prospect for oil in the waters of Western Sahara. A few weeks later President Jacques Chirac was naming Western Sahara “the southern provinces of Morocco” and France went on campaigning for the fait accompli, undeterred by the opinion of the Legal Counsel of the United Nations, Mr. 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”.

Mr. Chairman,

All states are equal before the law. This is also a basic principle of international law, echoed by the very Charter of this Organization. The United Nations would certainly lose credibility if, after obliging Indonesia to comply with the UN law on self-determination in East Timor, it turns a blind eye to the illegal Moroccan occupation of Western Sahara. The current members of the Security Council thus share a huge responsibility. We do hope that in their forthcoming meeting on this question they come to the conclusion that the implementation of a fair referendum according to the original UN/OAU Peace Plan, which has been signed by Morocco, is the only legal option.

Mr. Chairman,

I would like to offer a few final words on the eminent roles played by Algeria and South Africa on 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 accuse Algeria forget that this country has been a pioneer in the struggle against colonialism. They also fail to notice that Algeria, since its independence, was the foremost supporter of many liberation movements in the world. One of them was the ANC, which finally took power in South Africa after a successful struggle against the brutal apartheid regime. It is also worth remembering that former President Nelson Mandela led a strong movement for the release of Xanana Gusmão and was very influential for the good outcome of the Timorese question. It is under this light that we must see the recent recognition of the Sahrawi Republic by the Government of South Africa. We are not facing an “unnatural alliance” between South Africa and Algeria, as some establishment press in Morocco rancorously commented. If we can talk of an alliance, it is then a natural alliance of two countries that hold high the peoples’ right to self-determination in international affairs.

Thank you, Mr. Chairman.