Tag Archives: uti possidetis

The Lisbon Treaty comes home to roost in Western Sahara

by Rhodri C. Williams

What with all the current speculation over the fate of the Euro, little attention has been given to other EU matters that might make headlines under ordinary circumstances. Last week, however, the European Parliament, long derided as an ineffectual talk-shop stuffed with protest vote populists, got its human rights groove on. By a vote of 326 to 296, the Parliament exercised its right under the 2009 Lisbon Treaty to reject the proposed one year extension of a 2006 EU fishing agreement with Morocco. In doing so, it fired off a belated but significant  shot for the Sahrawis, one of the last remaining colonized peoples that has been denied the right to self-determination.

As described in a rather useful backgrounder from BBC, the Sahrawis formed a resistance movement, the Polisario Front, that succeeded in destabilizing Spanish colonial rule by the early 1970s. However, in their rush for the door, the Spaniards allowed the Sahrawi territory of Western Sahara to be partitioned between neighboring Mauretania and Morocco in 1975. While the former withdrew in 1978, Morocco has pressed its claims, fighting the Polisario Front to a standstill in 1991 while allowing settlers to move to the territory from Morocco and exploiting Western Sahara’s large reserves of phosphates. All this makes Western Sahara a distant cognate to West Papua, which also shook off overseas colonial rule only to be invaded by a more populous (and better armed) neighbor. The parallels with the fate of other North African pastoral peoples slighted by the post-independence uti possedetis lottery, such as the Bedouins and Tuareg, is also striking.

In principle, the Sahrawis enjoy the distinct advantage of having been effectively recognized as a people entitled to self-determination by the International Court of Justice (ICJ), which ruled in 1975 that they should be allowed to shape their own political fate through a referendum. However, in practice, the Sahrawis have been marginalized over the course of years of fruitless negotiations over the process of holding a referendum, during which the bulk of their population has lived in wretched refugee camps in neighboring Algeria. All the while, the Moroccan de facto authorities in Western Sahara have consolidated their position and it is now thought that more than half of the population of the territory may consist of settlers from Morocco proper.

In this context, the 2006 fishing agreement has not been a striking economic success for either side but represented something of a political coup for Morocco in its quest for de jure recognition of its authority over Western Sahara. Continue reading

Sweeter the second time around? Self-determination gets another chance

by Rhodri C. Williams

In reading Barack Obama’s now-famous May 19 speech on the Arab Spring, I was struck by his repeated use of the term ‘self-determination’ . Technically speaking, the right to self-determination was meant to be a one-off. When the two core global human rights conventions were adopted in 1966, self-determination was placed front and center in each with the goal of making good on the promise of decolonization set out in the UN Charter. As such, the right to self-determination was an unusual right – it was more overtly political than the rest, it was to be exercised collectively (by ‘peoples’) rather than individually, and it was implicitly a single-use right: if you were a people entrapped by colonialism, you exercised your right to self-determination, became an independent nation and never looked back.

So why are we talking about self-determination again? All the ‘peoples’ in the Middle East and North Africa (MENA) region punched their ticket once already right? Well, maybe not.

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What’s in a border?

by Rhodri C. Williams

The headlines these days still have me scratching my head and I can’t imagine I’m the only one. For example, this morning I learn that the Government of Syria, having solemnly declared that an armed insurgency threatens the life of the nation yesterday, duly responded  by lifting a thirty year state of emergency today.  I guess they figured there wasn’t much point closing the barn doors once the constituency had bolted.

It all seems a bit comical at times, but of course it is deadly serious and symptomatic of the way in which the ructions we are currently witnessing are straining the normal responses states would employ against civil unrest precisely because the neighborhoods involved are not inhabited by ‘normal’ states. Instead, places like Cote d’Ivoire, Libya, Nigeria and Syria tend to be recent confections, with a territory defined by borders drawn to the convenience of some other country, a population composed of whoever happened to be living within those bounds at the time and effective control now exercised by those who managed to scramble to the top of the heap or be successfully implanted and hang on. Much of the Middle-East is still a good decade short of a century of sovereignty and I’m older than a few independent states in Sub-Saharan Africa.

Its easy to forget much of this when things are going well. Somehow, describing a country as a state and giving it a little stenciled name tag at the UN General Assembly creates all of these reassuring associations that may or may not apply. Certainly, institutions might not be perfectly democratic and economies may be shaky, but statehood implies a totality that is greater than the sum of the parts, bound up in some kind of national identity that can accommodate and eventually subsume local ethnic, sectarian and tribal loyalties. As previously noted with regard to Sudan, however, the elites that inherited these foundling post-colonial states well understood their fragility and embraced the lesser risks entailed by retaining colonial borders over the greater ones that could be triggered should the question of borders be re-opened.

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Revisiting uti possidetis: Is Southern Sudan’s referendum scarier if it succeeds?

by Rhodri C. Williams

On day three, all signs indicate that the referendum on the separation of Southern Sudan from Khartoum is going shockingly well. Continued high turnout bodes well for achievement of the key threshold of 60% of registered voters and the mood appears to be nigh on festive at many polling stations. Violence has flared in the contested Abyei region, but it remains to be seen whether this dispute will join the ranks of the intractable (along with Jerusalem, Kirkuk and Nagorno Karabakh) or can eventually be arbitrated into submission (a la Bosnia’s Brcko District). So why are there still some long faces in the world of diplomacy?

In looking at land issues in conflict, it is helpful to recall that various individuals’ and groups’ asserted property rights are not the only relevant claims. States have traditionally had rather an important vote as well. Indeed, until recently states were relatively unfettered in their ability to regulate and expropriate property rights and forcibly remove people from their homes and lands when they deemed it necessary. Sovereignty-related concerns related to development, national security and territorial integrity were paramount.

Since the end of Cold War, greater attention to both regional and global human rights standards and the assertion of doctrines such as human security and responsibility to protect (R2P) have altered this balance. As a result, while states continue to enjoy  broad discretion over the use of their land resources, they have come under increasing pressure to recognize that their ‘territory’ is co-terminous with the homes, homelands, property and possessions of their citizens, and to respect the rights accruing to affected individuals and groups as a result.

The resulting situation should in theory ensure that the costs of necessary government action that infringes on private property interests are not externalized solely onto those directly affected. As I blogged on earlier here, both development and human rights standards are converging on this understanding. In situations where these rights are egregiously violated in the context of war and ethnic cleansing, legal remedies such as restitution have come to the fore, both in practice and in standards such as the Pinheiro Principles.

However, as many commentators have pointed out, the current exercise of self-determination by the people of southern Sudan hearkens back to older understandings of the primacy of state territorial control and threatens the integrity of a longstanding legal consensus of such age and fixity that it has been anointed with a Latin phrase. “Uti possidetis” or “as you possessed” is a sort of interstate rule of adverse possession that originally ratified territorial conquests in warfare and later shaped the process of liberation of former colonies.

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