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Thu, Mar 11th 2010, 11:20AM

Ambassador Chamberlin: Well, I'd like to welcome you all here this morning on behalf of the Middle East Institute to a discussion of the Western Sahara conflict. I think this is a subject matter that is really much neglected, and I'm delighted that we're able to call such experts around the table and all of you to discuss this issue today because it is neglected, but it's still important.

The distinguished panel should be commended for their intellectual courage, frankly, and their tenacity, as the Western Sahara conflict is among one of the world's most longstanding and vexing conflicts. Indeed, the dispute of Western Sahara is a complex one. Morocco claims a territory as their own, while the Saharan independence movement, the Polisario backed by Algeria, desires self determination leading to independence.

In 2007, the UN launched talks to continue the search for a solution, and the most recent round of these talks was held just this past February in suburban New York, and this was done in accordance with the Security Council Resolution 1871. That resolution calls on the parties to continue the dialogue under the auspices of the Secretary General without preconditions to achieve and this is a quote "a just, lasting, mutually acceptable political solution which will provide for the self determination for the people of Western Sahara."

There, my old colleague and Ambassador Welch's colleague, Christopher Ross, served as the UN Secretary General's Envoy to the Western Sahara, and he sought at that meeting, as people before him have, to find a compromise and an agreement that was mutually acceptable to both sides.

The Moroccans are offering autonomy under Moroccan control. The Polisario still seek a referendum on self determination with independence as one of the options. These talks did not achieve any breakthrough, although Christopher Ross did say that, quote, "They took place in an atmosphere of serious engagement, frankness, and mutual respect," and for that, I guess we are all grateful.

Ross said, however, that both sides did reiterate their commitment to continue their negotiations as soon as possible, and he added that to that end, he planned to travel to the region for further consultations with the parties and with the other stakeholders.

In the meantime, there are too many refugees that still sit in refugee camps in Algeria. Creative thinking has been applied in the past, and we'll need a lot more in the future.

UN Special Envoy, former Secretary James Baker, mediated talks between the Polisario and Morocco in London, Lisbon, Houston in the '90s and then in London again in 2000. Agreements were reached on the release at this time of the POWs, a code of conduct for a referendum campaign, and UN authority during a transitional period but not on voter eligibility.

Further talks were held in Berlin and Geneva in 2000, but, again, they ran into trouble. In a new bid to break the deadlock, James Baker submitted a framework agreement known as the Third Way in June of 2000. The Third Way was not accepted, but perhaps now it's time to find a fourth way, and that leads us to the discussion today.

We have a distinguished group of panelists with whom we hope you all will join in, in the discussion, providing your creative ideas for a fourth way. Maybe we can break this nut even today, this morning. So we do appreciate your insight, and we look forward to the discussion.

Ambassador David Welch, my colleague, is a former Assistant Secretary of State for the Near East Asia Bureau, NEA from 2005 to 2008, where he led U.S. diplomacy in the region and supervised American relations throughout the Arab world, Israel, and Iran. Currently, he is President of Bechtel's Europe, Africa, and the Middle East region.

Dr. J. Peter Pham is a Senior Fellow and Director at the National Committee on American Foreign Policy. He's also a Professor of African Studies at the Joint Special Operations University and U.S. Air Force Special Operations School. He has authored over a hundred articles regarding the political issues across Africa and North Africa.

Sam Spector is author of the "Western Sahara and the Self Determination Debate," quite relevant to today's discussion, which ran in the Middle East Quarterly in 2009. He graduated from Georgetown University Law Center and was a corporate associate at the Weil, Gotshal & Manges law firm. He's been a Fulbright Fellow in Israel, a project associate at the Long Term Strategy Project on Political Change in the Middle East for the Office of the Secretary of Defense.

And Larry Velte is a Professor at NESA's Center for Strategic Studies at the National Defense University. Between 1992 and 2005, Larry served as the Deputy Chief of the Middle East Division in the Joint Chiefs of Staff at Strategic Plans and Policy Directorate. There, he provided analysis and policy recommendations concerning the Middle East to the Chairman of the Joint Chiefs of Staff.

So we have certainly all the expertise we need with you for a very thoughtful discussion today on the Western Sahara.

David, would you like to begin?

Secretary Welch: Thank you very much, Ambassador Chamberlin.

Ladies and gentlemen, good to be here today. I'm pleased to have this opportunity to start this conversation about North Africa and then move it toward the issue of Western Sahara and the policy options for looking at that, if that's the direction you want to take the conversation.

I'm also happy to be back here in Washington, a sort of foreign territory for me, now that I've moved back overseas in a different way, and it's great to be in the same time zone as the Big East Conference playoffs, which my former NEA colleagues in the room know that that's going to be very important to me. So I'm determined to finish on time, so I can watch the Georgetown Syracuse tipoff.

[Laughter.]

Ambassador Chamberlin: Same old David.

Secretary Welch: I thought what I could offer here, as I think a former practitioner of diplomacy in this area, is some comment on three things basically. First, what is the American national interest that obtains in North Africa generally and in this particular conflict especially? Second, what are the policy choices that have faced previous America administrations in particular and the international community more generally? And, third, I'll make some comments on each of those policy options, some reflections based on a little bit of experience, and then conclude by talking about how the U.S. perhaps ought to think about this in the months going forward.

First, some remarks about what is our national interest, I think we have, broadly speaking, for North Africa what I call a "trinity of goals": stability, development, democracy. And, generally, when I say democracy, I hope you understand I'm talking about the concept of liberty and liberalization, not merely about the act of voting.

A big part of the first of those three pillars, stability, is security. So I think it's a sine qua non in anything we do with respect to the Western Sahara conflict in particular that we not allow the ceasefire that has held since 1991 to be shaken.

Second, we have an interest in developing throughout the region greater cooperation in counterterrorism, and, in particular, we have an interest in developing that cooperation among the countries and organizations within them themselves, not necessarily the United States doing it directly but fostering the kind of political and security atmosphere that allows them to do it together.

A third element of stability or security, I would say is a responsible military and defense role for each of the country's security establishments. Happily, this is not an area of the world that has been heavily armed, and it is, in my judgment, probably not an area of the world that needs to be heavily armed.

A second element in stability is political. The United States has, I think, a unique opportunity now, especially after 2008, because we have, generally speaking, good relations with all the countries of the Arab Maghreb. That didn't always used to be the case, and that's an important change. And having good U.S. relations gives us somewhat of a platform to exercise more political influence when we seek to do it.

But you can contrast that to the nature of regional cooperation among the North African states themselves where the picture is not as good. The Arab Maghreb Union as a sort of subregional part of the Arab League generally has never really got moving the way that its founders would have hoped, and, from time to time, you see among the countries in the area difficulty in developing a common approach, even on things that are right in their back yard. And I don't mean by the Western Sahara alone. The coup in Mauritania sometime back would be another example or Sudan.

And there is, of course, in any regional organization like the AMU always going to be some amount of national rivalry, and, unfortunately, here we see that rivalry surpasses friendship as a quantity in that organization.

But, generally speaking, all the countries of the Arab Maghreb Union are playing more responsible international roles. I mean, each has their own pace of doing that, and each has their own history of involvement with the international community, but, looking outside, it is, I think, a better picture than it was, just to pick a moment, the beginning of the Bush administration in 2001.

Finally, another element of stability is political liberalization, human rights, and economic development. I think these I'm not going to talk a lot about those, but I believe that to the degree the countries of this area devote themselves at whatever pace they seek to pushing ahead in those areas, it will serve the interest of stability throughout the area and, thus, our interest.

I think also when we look at the American national interest in this region, it always involves and Ambassador Chamberlin alluded to this some judgment about what is the level of U.S. involvement and leadership. You know, it's good for experts always to talk about the Americans need to do this or the French need to do that, but when decision makers in capitals look at these issues, typically they're weighing other priorities too, some of which are challenging in their own right, and they're weighing what they conceive to be their national interest.

So what's most difficult is when the expectation of U.S. involvement or leadership exceeds our interest or the private priority placed on the matter within the administration. So whatever we do, we shouldn't oversell and we shouldn't under invest, and we should have a very clear sense of what those priorities are. And I'm happy in the discussion period to talk about how we addressed them when I was in government because there were decisions that we had to take with respect to our diplomatic profile in North Africa, and there were some important tradeoffs that we had to consider as we did it.

It's another way of looking at this question of what is the appropriate degree of American involvement and leadership is how it relates to the efforts of others. I don't think it's automatic that our interest compels us to be "the" leaders, "the" leaders in solving this issue.

What are the policy choices with respect to Western Sahara to get to that question now? I'm going to comment on these, and behind my comment, I think you will hear an echo, at least I hope you do, of what I defined as our interest.

First, I think before you get into looking at the menu of choices, absolutely the minimum goal must be to maintain the ceasefire. It would be of no good to anyone for there to be a rupture of the ceasefire that's obtained since 1991. So, when you look at what you do in MINURSO, the political mission has overwhelmed the public perception of what MINURSO's overall mission was, which is also to contribute to stability and security in that area, and, in fact, this has been pretty successful, although when I was Assistant Secretary for International Organizations, I used to think of MINURSO as basically a 12 to 15 million dollar a year bill that I didn't know was really worth is, but I believe it is.

The ceasefire that it has obtained is now longer than the period of fighting, and that's no small accomplishment. Again, I would caution that we can't be complacent about that, and I hope that my colleagues who got positions of responsibility in the American government now weigh the importance of that and not lose sight of that particular objective.

There's no question that it would be best for everyone, especially the United States but, even about that, the people of the area, for this conflict to be resolved. There are basically three options that have been looked at historically and they're looked at now for what to do.

Forgive me, those who are real experts to my left and right, on this if this generalization strikes you as a little bit too elevated.

But, basically, you have the UN referendum choice, which I would call the "approach of the past." Second, you have the negotiations approach, which appears to be the current one, and, third, you have the do nothing approach, which no one seems to favor.

Let me make some observations on each of these, and I'm not trying to ascribe responsibility or cast blame in these observations. They're just meant to be thoughts looking at it from the outside.

First, on the referendum, I really never could figure this one out personally. Here's the problem, looking at it as a diplomat. It never got passed who votes, when do they vote, and what are they voting for.

Second, either side in this conflict is only going to agree to a referendum they're going to win, and neither side is going to agree to a vote that they're destined to lose. And, in all honesty, when I looked at this issue both when I was in international organizations and in NEA, I found it very difficult to cut through those realities if the object of a referendum under the early UN definition was the goal.

Personally, I think there was probably a period in history after the second world war when self determination as a goal achieved a certain status, but the latter part of that history has also taught us that there's sort of an era of unreality about self determination. It's not that it's wrong. It's just that it doesn't always happen in the same way in all places, and it needs a sort of local translation.

No one opposes self determination, and the American government shouldn't either, in my view. It's at the heart of our sense of nationhood, but I think that's a reality that we don't oppose it because we can't. It doesn't mean that that's the way to go to solve something. The road of history is, after all, particularly in this broader Middle East region, littered with righteous causes that basically have collided with reality.

The second option in negotiations also seems to me never really to have been serious but, of course, should not be discarded because it may offer the only avenue for it. I'll come back to that in a moment.

Negotiations, were they to produce a result, could embody an act of self determination. That's not hard to do if both parties want to find the way to do it, and that could be tied as an outcome to the negotiations. And it's been a feature of proposals of the past.

But, really, if the negotiations are to have any promise of success, there's one thing that has to change, and that's the Moroccan Algerian political dynamic. If that isn't different than it is now, then I'm not certain the climate is perpetuus for this to produce a near term result.

But, even if the political climate between Morocco and Algeria were not better, I still think you could have a more active regional role, and you could have stronger international leadership, or probably all three. So the ingredients, while any one of them might be deficient, you could add in the others.

Let me give you an example of what I mean but in a negative way. I haven't seen any important Arab role with respect to this conflict. Now, you would tell me that's because, of course, it divides them. Well, so do other conflicts, and there is, nonetheless, an effort to try and do something about it. I think that there could be stronger management of this issue from the Arab side with some political will to do so.

The third option, do nothing, you might wonder why I even raise that one. Certainly, in the 31 years I spent as an American diplomat, I never successfully sold the idea that America should do nothing about something. It's just not in our character, and I think that's probably true of any foreign policy establishment.

I don't believe the United States should do nothing about this problem, but the question is what lies between overselling and under investing, and that, I hope we will discuss later on.

What about the U.S. policy that we have seen? Having participated in deliberating what our course should be over two different administrations, the Clinton administration and the Bush administration, I think I can offer something of value on this, and I have certain conclusions about it.

First, if for some reason I were to be surprised and the international consensus were to go back to the referendum approach, then the United States should definitely let others take the lead because I honestly don't see how we square those two conundrums that I mentioned at the beginning. The probability of success in that event in resolving the conflict is going to be lower.

Second, I think the United States should take and this is gratuitous advice, now that I'm outside should take a look at who leads this process and what are they doing about it. It is, my view, probably best that there be a UN umbrella, if not leadership, for the Western Sahara process, but some more creative thought could be given to who leads that.

I think it's probably led to higher expectations than were merited to have an American in the leadership role on behalf of the UN process, and I wonder myself whether it should even be a member, a permanent member of the Security Council.

The choice of who does this will influence both the credibility of the process and what I think is the most important ingredient which, as the way I phrase it, is the ability to broaden the view of a reasonable outcome because you really need something that will structure political choices and political direction in such a manner that we have the prospect of a solution that can actually work as opposed to a continuous pursuit of one that is not going to be gained.

The third and real key, I think, here and this is where we also need to do more work is how to help the Moroccan Algerian relationship. Basically, European leadership on this has been, in my judgment, uneven, if not poor. As far as I can see, it's a non issue for most of the important European players, and that's notwithstanding Europe's desire over the last decade to have a soupçon of Mediterranean dialogues.

The Arabs don't seem to want to pick sides either, and I'm not suggesting that they should, but, of all the regional problems to which they could devote some attention, this one sure cries out for it. And I don't believe it's because the Arab community has not been willing to take on tough problems. After all, Qatar has been heavily engaged in Sudan and Darfur in particular. So there is political will. Even right now we see that. And, in the last couple of years, there's been a stronger regional effort on dealing with problems like the election in Lebanon. So, while the picture now may not be promising about an Arab role, I wouldn't say that that's frozen.

The United States has good relations with Algeria and with Morocco. Our history of relations with Morocco is, of course, warmer, but that's not to the exclusion of a good relationship with Algeria. And, over the longer term these are two of the most populated countries in the Arab world, and Algeria has enormous oil and gas resources one can expect their international role to continue to be substantial.

So I'll conclude with just one further observation about the future. This is, I hope, what our discussion will focus on too. I really believe that where the United States can offer significant added value is in broadening the international and regional understanding of what is a reasonable outcome.

There are reasons why American policy was put as it was over the years, and I think we can offer the kind of quiet diplomacy that's necessary to getting people to understand this, looking at different vehicles for how to build that understanding, from working with the Europeans, for example, because it's clear to me that the referendum approach is not going to produce what people had hoped it would. The negotiations approach will just chug along without more effort. And while I don't think it is likely, the security and stability questions that still plague the area would be enormously aggravated were there a decay back into conflict.

Thank you very much.

Ambassador Chamberlin: Thank you, David, for those thoughtful remarks.

Dr. Pham?

Dr. Pham: Thank you.

I'd like to pick this up where Ambassador Welch left it. I think he well articulated our U.S. national interest in stability development and democracy, and, in my contribution to this, I'd like to discuss a little bit about sort of the opposite of that, which is the question of the failed state. I think we would all be in agreement that the last thing that Africa needs is another failed state, much less one in a geopolitically sensitive space such as the Sahara Sahelian area.

And I approach this really from the bias of an academic. I like to look at things theoretically, but I think theory has a great deal of relevance, especially in laying down criteria that one can examine objectively and find the comparison and draw the logical conclusions.

In many respects, if one looks at this and looks at the Western Sahara in isolation from its historic roots in the Moroccan monarchy and the Moroccan state as it evolved historically over time, if one takes the space delimitated as the Western Sahara, and the option of the past, as Ambassador Welch mentioned, of the referendum, if they were given that option and became independent under the presumably under Polisario governance, would one have a viable state, and I think if we were to look at this honestly and objectively, one couldn't see a less promising start for a viable state.

The Western Sahara has never historically constituted a nation in any political science sense of the term, even in pre colonial times. The ethnic divisions, if one looks at the 1974 Spanish census, for example, came up with 8 major tribal divisions, 45 subfractions, and those are just the major ones that appeared on the Spanish census. If one digs deep, there are all sorts of flaws in that, so one can multiply that. What one has as a result is an ethnically diverse society but one that's not necessarily developed a sense of common nationhood, despite attempts to try to paint it.

So that underlying basis of nationhood of a name, population sharing, historical identity, common myths, and historical memory just doesn't exist. Now, that doesn't mean that one can't arise, but that's a serious handicap to begin life as a nation state.

Then one could perceive from that kind of theoretical basis and look at the self proclaimed Polisario state, if you will, of the Sahrawi Arab Democratic Republic established in or proclaimed in 1976 and look at how it has functioned as a political entity to see if one might be able to draw some conclusions as to how it would function if it were actually sovereign operating on a sovereign territory as opposed to operating in a rather dubious legal situation in the sovereign territory of Algeria.

Look at the institutions. One of the indices that political scientists tend to look at when looking at failed states is the fact that only the executive functions in a failed state. Legislatures in failed states tend to become rubber stamps, if they meet at all. Democratic debate doesn't exist or is absent. The judiciary isn't independent. The bureaucracy is not professional. Look at the institutions.

The SADR operates currently under a constitution dating back, at least in its current articulation, substantively to 1999. When one examines it, what one sees is essentially the makings of a totalitarian state.

Article 51, just a few articles of its constitution, the Secretary General of the Polisario movement is the Chief of State. There's no political competition. Even within other movements that claim national liberation, Palestine Liberation Organization, there were historically competing factions and parties allowed to compete. In this case, one faction is the only faction. Its Secretary General is denominated the Chief of State.

Article 75, the National Council, the pseudo legislature of this "state," so called, is elected according to regulations which are developed by, again, according to the constitution, the Political Secretariat, the Polisario Front. So one party, again, gets to develop the regulations under which it runs as a candidate.

The National Secretariat is also responsible for holding the elections, organizing the constituencies, et cetera, Article 7, the following article of this so called "constitution."

Furthermore, Article 31, the Polisario Front shall remain the political framework that gathers the whole Sahrawi people to express their aspirations. So this is the one this is the constitution as it's articulated by this, the Polisario Front, for the state that it proclaimed for itself. It's not particularly from a political scientist point of view, not a particularly promising start for a viable state.

One might also add within that context that the question of rights are not adequately addressed, much less the rights and it's a whole separate argument, the rights of the refugees in the camps currently and the obligations not only of the Polisario Front insofar as it claims to be a state but also of the Algerian government in whose territory it finds itself, the international legal obligations on the rights of refugees, again, a not very promising start to a state.

Shifting a little bit to the practical terrain, I think and the question of a failed state, one has to look at some of the associations and networks and dynamics going on in this political space. Certainly, the al Qaeda franchise in the area, the al Qaeda and Islamic Maghreb, certainly raises concerns for all of us, especially its Southern Command which in recent years, the last couple of years, it's shown itself capable and, in fact, is engaged in essentially criminal activity to subsidize and fund itself, reports out there, involvement with narcotrafficking, certainly kidnapping for ransom as a method of fund raising, et cetera, and there are links that are there which, again, these carry over into a hypothetical state are troubling.

For example, the three Spaniards who were taken hostage last year by AQIM in November and still being held, the three Catalonians from Accio Solidaria, we know that from reports as well as conversations with, I think, informed sources that the Mauritanians are currently holding several of those responsible for them, for that attack, and they come directly out of the Polisario military wing. So there are ties there.

Involvement in contraband smuggling, there was an interesting study a few years ago by Altadis. Granted, cigarette manufacturers don't get much sympathy, but the Altadis study on cigarette smuggling are that the principal route actually goes through two areas controlled by the Polisario, Tifariti and the oasis at Bir Lahlu, so, again, an involvement there that already, without even having a state, you have the makings of a narco type of regime engage in smuggling.

So all of these indices kind of from the political science point of view point to, if you will, that stability in the region would be seriously undermined from the creation of a, if you will, state of Western Sahara, an option that's advocated by one side. Often ignored, I think, by even political scientists is the potential fallout not only of the creation of the destabilizing failed state, failed from birth, if you will, stillborn, but also the destabilizing effect on Morocco, given the long term historical connection between the Moroccan kingdom and the geographic area and the sentiments of the populous.

Historians will remember but often, I think, policy we tend to forget that actually that in the 1950s, it was the Moroccan nationalist and independence movements that asserted even when King Mohammed V was still in exile but, thanks to the French, asserted Moroccan identity and claims to this area. Allal al Fassi, for example, even had maps in this region, and it was something that was shared across the political spectrum. You had not just the nationalist and independence movements, but even the Moroccan communists shared the sentiment. So, actually, the claims advanced by the kingdom were actually claims deeply held across the spectrum of society, and I think that has to be borne in mind when we talk about state failures and stability in the region.

Obviously, a failed state, then, fails the next test that Ambassador Welch pointed out, which is the question of development. Is a state that comes to birth, should it happen, with all these handicaps and all this baggage capable of encouraging development?

The resources in the area are relatively poor. The phosphates are thrown around often as part of the argument when, in actually, if one examines the actual data, the Western Sahara territory contains less than 3 percent of the total phosphate reserves of the Moroccan or Morocco in its entirety. So there's not that much, and for what I'm told, it's also relatively inferior quality phosphates compared to others, so, again, the development issue and within, if you look at the SADR constitution, serious questions over whether this would be favorable to development.

For example, Article 34, the market economy and freedom of enterprise will be recognized but only after its predicate only after the achievement of national sovereignty. So it's currently not recognized and other articles on property rights, which raise troublesome questions, and, obviously, the democracy questions are raised.

So we bring all of these elements kind of together realistically looking at it strictly from that optic and we can discuss other optics during the dialogue whether a state would be viable here, and I think the fair conclusion would be it would not be viable, and it would actually be destabilizing for the entire region and, thus, not certainly in the U.S. interest of stability, development, and democracy. And what we need to look for is a mechanism, a solution that would not create a vacuum in a sensitive geopolitical space.

And I think if I may conclude with just it was interesting, the reference to MINURSO. In his memoirs, the UN Secretary General who launched that process, Javier Perez de Cuellar, had an interesting conclusion in his own memoirs after investing considerable time on this, and if I can conclude just by quoting him, Secretary General Perez de Cuellar, "I was never convinced that independence promised the best future for the inhabitants of the Western Sahara. The land is poor, offering meager prospects of viability as a separate country. Such political leadership as exists is not impressive and, in some cases, is not Sahrawi in origin. A simple solution under which the Western Sahara would be integrated as an autonomous region in the Moroccan state would have spared many lives and a great deal of money. The Maghreb countries were in the best position to pressure the Polisario to accept such a solution since the Polisario was largely dependent upon them, especially Algeria, for support. They chose not to do so," and that was his conclusions well over a decade ago.

So I think it's time now to listen to the reasonableness of that and move to a realistic and durable solution.

Thank you.

Ambassador Chamberlin: Thank you very much.

Sam Spector?

Mr. Spector: Thank you for having me here today.

Just two weeks ago on February 25th, UN Secretary General Ban Ki moon remarked that if the UN is to fulfill its obligations in supporting the legitimate aspirations of the peoples of the remaining 16 non self governing territories in the world, a pragmatic and realistic approach, taking into account the specific circumstances of each, is most likely to lead to concrete results.

That very week, Professor Pham and myself had an opportunity to speak with a range of individuals who had significant personal stakes in the resolution of this longstanding dispute. Our discussions ultimately focused in on the 2007 Moroccan initiative for negotiating an autonomy statute for the Sahara region, an initiative termed by the UN Security Council Resolution 1754 as, quote, "a serious and credible effort to move the process forward towards resolution."

As a result of what I saw and heard during my recent visit to Morocco and Western Sahara, as well as my earlier study of the ongoing legal debate surrounding self determination, it's my judgment that the Moroccan autonomy plan is at the present time not only the best practical way forward but also provides a valid legal framework for the attainment of self determination by the people of Western Sahara.

The following are what I consider to be some of the most pressing, practical, legal questions or concerns raised by the Moroccan autonomy plan. First, does the plan provide the basis for meaningful self government by the people of Western Sahara? Second, does the plan provide for legally sound mechanisms for the freely expressed consent of the territory's population to be realized? Third, is there any requirement that this mechanism take the form of a popular referendum? Fourth, does a final referendum that does not expressly allow for the outcome of independence run directly counter to international law? Finally, did the International Court of Justice's 1975 Advisory Opinion achieve its purpose, which was to clarify the legal issues involved in the dispute?

Before answering these questions, I find it helpful to provide a brief interview of what international law has to say about self determination.

Although widely considered to be a part of customary international law, there's no consensus among legal scholars as to whether self determination rises to the level of a jus cogens or peremptory norm, meaning a fundamental principle of international law accepted by the international community of states as a norm from which no derogation is ever permitted.

Even self determination's strongest advocates must concede that it has from the very start been an ambiguous, imprecise concept.

The 1960 UN General Assembly Resolution 1514 broadly defined "self determination" as an immediate and imperative goal for all peoples under alien and colonial domination. While notably short on detail, Resolution 1514 was followed shortly thereafter by Resolution 1541, which did, in fact, set out three acceptable political outcomes for territories not currently enjoying self government, including, one, emergence as a sovereign independent state; two, free association with an independent state; or, three, integration with an independent state.

While the resolution mandates that any of these outcomes must reflect the freely expressed choice of the people living in the territory, as you will see, it fails to prescribe the precise methods for getting to those outcomes.

A healthy debate persists concerning whether and how self determination is to be applied in an era when most disputes over contested sovereignty are no longer colonial in nature but often involve ethno national conflict. In short, self determination is increasingly being refrained by legal scholars as a flexible continuum of rights, minority protections, and negotiated political arrangements conducive to achieving real world outcomes within existing nation states.

Gregory Fox, Professor of Law at Wayne State University, writes that in the post cold war era, the right to self determination as a vehicle for independent statehood has, quote, "been rendered essentially meaningless."

Hurst Hannum, Professor of International Law and Diplomacy at Tufts, believes that self determination is best viewed as a right to autonomy, recognizing the right of minority and indigenous communities to exercise meaningful self determination and control over their own affairs and a manner that is not inconsistent with the ultimate sovereignty of the state.

Professor Gerry Simpson of LSE suggests that it's incumbent upon supporters of international law to push for the adoption of a more liberal and expansive interpretation of self determination, incorporating autonomy, constitutional recognition, evolution, and cultural self expression and thereby rescue it from, quote, "the theoretical confusion and political misuse that have plagued it in recent decades."

Despite having its origins in the period of widespread decolonization of the 1960s and '70s, the wisdom of applying the dispute over Western Sahara, an outdated and arguably misconceived understanding of self determination, which I believe on the contrary to be in its essence a dynamic flexible concept under international law, has encountered criticism.

Robin White, Professor of Law at the University of Leicester, suggests that deadlock in revolving the Western Sahara dispute is to be blamed at least in part on an exclusive focus on independence as the only solution to colonial status, essentially an all or nothing proposition.

A June 2007 report on Western Sahara by the International Crisis Group wonders whether self determination should even remain a primary aim, let alone a legal framework, for resolving the dispute. In this report, the International Crisis Group reasons that the parties are presently inhibited from exploring possibilities of resolving the conflict based on a different principle or a different set of principles.

In my assessment of the Moroccan autonomy plan of 2007, which follows next, I don't go so far as the International Crisis Group. I believe that self determination can remain the legal framework for dealing with a Western Sahara dispute, and I believe that the Moroccan autonomy plan provides just the opening we need.

Now I plan to turn back to some of the legal questions and concerns that I raised earlier regarding the legality of the autonomy plan put forward by Morocco in 2007.

First, does the plan provide the basis for a meaningful self government by the people of Western Sahara? I think it's important to be reminded that the Moroccan autonomy plan is intended as a starting point for negotiations between the parties, not as a comprehensive detailed plan or fait accomplis.

The final answer to this question must, therefore, await the completion of the negotiating process between the parties. For now, it should suffice to note that the plan as its starting point, quote, "guarantees to all Sahrawis inside as well as outside the territory that they will hold the privilege position and play a leading role in the bodies and institutions of the region, without discrimination or exclusion. The Sahara populations will themselves run their affairs democratically through legislative, executive, and judicial bodies enjoying exclusive powers."

Second, does the Moroccan plan provide for an open and impartial consultation to the people of Western Sahara concerning their own desires for the future of the territory? Article 3 of the Moroccan autonomy plan expressly provides for submitting a mutually acceptable, fully negotiated autonomy statute to the populations concerned in a free referendum. Thus, the plan provides not only a legally valid mechanism for obtaining the consent of the people of Western Sahara but settles for the method that has been favored by the international community up until this point.

Third, does international law require that a referendum be held or that it be held at a specific point in time? I believe the short answer to be no. Although a referendum, as I said before, has been the UN General Assembly's favorite method for many years for ensuring a free and genuine expression of the will of the people of Western Sahara, the 1975 International Court of Justice Advisory Opinion reminds us that a referendum is not the only method by which self determination can be achieved. In fact, the Advisory Opinion says that much is left to the discretion of the General Assembly in consultation with the interested parties in setting out the procedures and guarantees for ensuring a free and genuine expression of the will of the people.

The overarching aim of the law as set out in Chapter 11 of the UN Charter which deals with non self governing territories is to set them down the path to achieving a full measure of self government and in that way remove them from the scope of Chapter 11 altogether. UN General Assembly Resolution 1541, as discussed earlier, contemplates a number of acceptable pathways by which a non self governing territory may achieve a full measure of self government. For an outcome such as free association or autonomy within an independent state, the resolution simply demands that it be the result of a free and voluntary choice by the peoples of the territory concerned, expressed through informed and democratic processes.

Fourth, must express allowance be made for the independence of the territory if put to a final referendum? As for this question, I haven't found anywhere in the UN resolutions that really weigh in on this matter and say anything about an allowance for independence needing to be expressly present on the ballot.

In fact, as I said before, a self determination would be satisfied, so long as consent to the alternative of free association or autonomy within Morocco is the result of an informed and democratic process involving the peoples of the territory. The aim of the law of self determination, in my understanding and as set out in the UN Charter, is not independence per se but rather the achievement of a full measure of self government.

As Judge Dillard says in his separate opinion to the International Court of Justice's Advisory Opinion from 1975, quote, "Self determination is satisfied by a free choice, not by a particular consequence of that choice or a particular method of exercising it."

Fifth, I think it's important looking back at the International Court of Justice's 1975 Advisory Opinion to ask whether it actually achieved its purpose, does it provide helpful guidelines for moving forward in resolving this dispute, did it help to clarify the legal issues involved in the dispute in a manner that could help the UN General Assembly in mediating the controversy going forward.

Now, the Advisory Opinion, in my view, offers some guidance, but I believe it raises more questions than it answers. Looking at the reasoning of the Court in the Advisory Opinion, without much substantiation, the Court finds that prior to colonization by the Spanish, the Tribes of Western Sahara had been socially and politically organized, albeit in constant movement. Interjecting Morocco's claim to territorial sovereignty over Western Sahara on the grounds that it lacked either, one, the intention and will to act as a sovereign and, two, some actual exercise or display of such authority, the Court stressed the absence of such acts of sovereignty as it had relied on in a case from 1953, such as property tax assessments, custom taxes, establishment of criminal proceedings, and boat registries. I think that reasonable people may disagree as to whether the Court's decision to apply this strict legal test to circumstances like those that existed in the Western Sahara was the correct judgment and whether the Court placed too much weight on pre colonial political and social organization within Western Sahara.

In a separate opinion, Judge Ammoun objects to the Court's minimization of Morocco's legal ties with the territory. Indeed, some social scientists have written about the need to take into account Morocco's culturally particularized structure of social and political organization, which they argued differs considerably from the European model.

In conclusion, however broadly self determination is understood, in whatever the methods ultimately chosen to enable the people of Western Sahara to exercise this right, I believe it's important not to lose focus of what I feel is one of the paramount aims of international law. That's not the achievement of abstract justice but conflict avoidance or at least reduction among the community of states.

I'm afraid that failure to concern one's self with real world outcomes, such as in this case, will inflict potentially irreversible damage to the credibility and potency of international law.

[Audio break.]

Ambassador Chamberlin: Let me just thank the speakers.

Dr. Pham, I think you've made some excellent points, the dangers of letting of the do nothing option with interest of terrorism. I'd like to add to that just the humanitarian concerns of people who, even if they are not quite 90,000 but maybe even less than 50,000, but they're still stewing in refugee camps, and that's unacceptable.
Sam Spector, thank you very much with your Georgetown degree, law school degree. You've given us a very excellent legal framework for this, and it's been very helpful; Larry Velte, who's had years experience at the Defense Department looking at this issue.

And I'd like to point out that Ambassador Welch has spent many years wrestling with some of the more intractable conflicts out there; the Arab Israeli conflict, of course. He began his career in Pakistan wrestling with Kashmir, and this one is also vexing. There are many good reasons why the do nothing option is not an option, but maybe what's and I appreciate Ambassador Welch's conclusion that what we need is not just to look at the United States to take the leadership on this but to look at other players to come together to provide sort of a multi party impetus for resolving this longstanding conflict.

I don't see it. I don't see the drive. I don't see the push. I do see other party apathy to this issue, and I think that it is incumbent upon anybody who's interested in this issue and I think everyone here is or you wouldn't be here to think further about the fourth option, about what would it take to galvanize a multi party effort to seek to put pressure on the parties involved in this conflict to come to a resolution.

Thank you very much for coming. We appreciate your attendance.

About this Transcript:
Assertions and opinions in this Transcript are solely those of the above-mentioned author(s) and do not necessarily reflect the views of the Middle East Institute, which expressly does not take positions on Middle East policy.