GA/COL/3135
7June 2006
Special Committee of Decolonization Considers Question of Gibraltar, Western Sahara
NEW YORK, 6 June (UN Headquarters) -- The proposed new constitution of Gibraltar was unacceptable, ran contrary to key General Assembly resolutions on decolonization and would lead to a continuation of colonial rule there, Joseph John Bossano, Leader of the Opposition of Gibraltar, told the Special Committee on Decolonization this morning, as it considered the question of Gibraltar and Western Sahara.
The proposal would merely endorse the Spanish position that, until Gibraltar accepted integration with Spain, its status under international law and the United Nations Charter would remain unchanged as a Chapter XI territory, Mr. Bossano.
Maintaining his constituents' position since 1999 to vote against any referendum that failed to terminate Gibraltar's colonial status, Mr. Bossano said he would hold the United Kingdom's leadership to its promise to decide, following a referendum, whether there had been sufficient constitutional reform to permit self-governance in Gibraltar. He also expected the United Kingdom to recognize a referendum in Gibraltar as an act of self-determination and to cease reporting to the United Nations under Article 73e of the Charter.
Mr. Bossano said that, to date, the United Nations, including the Special Committee, had not shown even the remotest interest in participating in Gibraltar's decolonization process.
Similarly, Peter Caruana, Chief Minister of Gibraltar, said the Special Committee had failed to shake itself free from 40 years of lethargic inactivity in relation to Gibraltar, leading most people there to regard the Organization as irrelevant to their future. Cogent arguments supporting Gibraltar's decolonization through self-determination had either been rebutted or had fallen on deaf ears.
International law established that the principle of self-determination applied to all the territories on the United Nations list, including Gibraltar, Mr. Caruana said. The 1713 Treaty of Utrecht -- which mandated that, if the United Kingdom renounced its sovereignty over Gibraltar, it must offer the Territory first to Spain -- was inconsistent with the United Nations Charter and, therefore, void, invalid and ineffective. Mr. Caruana questioned why the Special Committee had failed to support international law. Moreover, it continued to ignore his pleas to refer the question to the International Court of Justice.
Taking the matter into its own hands, Gibraltar had negotiated a new constitution, and the United Kingdom had agreed to it, he said, and invited the Committee to send an observer and play whatever role it deemed appropriate in the upcoming referendum on that Constitution. If the Constitution was accepted, he said, the Committee should recommend that Gibraltar be removed from its list of non-self governing territories.
However, Juan Antonio Yanez-Barnuevo (Spain) said unilateral changes to the status quo of Gibraltar would impede progress. Gibraltar would undoubtedly remain a non-self governing territory in practice and from a legal perspective, as deduced from the text proposed by the Gibraltar Parliament at the start of the constitutional reform. Any effect to the contrary would obviate the entire United Nations doctrine on the question, and would infringe on the historical rights of Spain over Gibraltar, as recognized in the Treaty of Utrecht. The Special Committee had acted decisively and effectively on the question of decolonization, he said, noting that Spain wished to continue working with the Special Committee on the issue. While the constitutional reform of Gibraltar was a good text for governing the Territory, such reform was irrelevant to the decolonization of Gibraltar.
On the question of Western Sahara, Ahmed Boukhari of the Frente Polisario said Morocco's continued colonial occupation of that Territory was a challenge to United Nations authority. The Secretary-General's report on the subject recommended several solutions that minimized and undermined the right to self-determination, he said, warning that such an attempt would establish a dangerous precedent of accepting a fait accompli of a colonial nature imposed by force. There was no need to renegotiate anything with Morocco. The issue at hand was to implement existing agreement. Prolonging the impasse would only deepen the gap between both parties. Mr. Boukhari said the United Nations must successfully implement its detailed peace plan and hold a referendum. To leave Western Sahara without achieving that objective because of a lack of firmness in the face of non-cooperation from Morocco would have serious implications.
Also making statements were Committee Chairman Julian Hunte (Saint Lucia) and the representative of Cuba.
The Committee will meet again at 10 a.m. on Wednesday, 7 June, to continue its deliberations.
Background
The Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to colonial Countries and Peoples, known as the Special Committee on decolonization, met this morning to take up the questions of Western Sahara and Gibraltar.
On the question of Western Sahara, the Special Committee had before it a working paper prepared by the Secretariat (document A/AC.109/2006/2) and a hearing of petitioners (aide-memoire 07/06). The working paper outlines the contents of the Secretary-General's report on the question of Western Sahara (document A/60/116) and the use of his good offices to address the situation. It includes a review of activities of the United Nations Mission for the Referendum in Western Sahara (MINURSO). It also highlights the status of the situation in the Territory from 1 July 2004 to 30 June 2005, and relevant activities of the Security Council and the General Assembly.
On the question of Gibraltar, the Special Committee had before it a working paper prepared by the Secretariat (documents A/AC.109/2006/9 and Corr.1) and a hearing of petitioners (aide-memoire 05/06). The working paper outlines the political developments, including the general elections held on 27 November 2003; economic conditions, including public finances, trade, banking, transportation, communications, utilities and tourism; and social conditions, including labour, human rights, social security and public health in Gibraltar during the review period. The paper also discusses the role of the United Nations Special Committee on decolonization and the General Assembly's Fourth Committee (Special Political and Decolonization), as well as the General Assembly decision (60/525) of 8 December 2005 that calls for a definitive solution to the question of Gibraltar. Further, the working paper highlights the future status of the Territory, including the positions of the United Kingdom, the administering Power; the Chief Minister of Gibraltar, the territorial Government; and the Government of Spain. It also reviews the status of negotiations between those three parties.
Statements on Western Sahara
RODRIGO MALMIERCA DIAZ (Cuba) said that, for more than three decades, the people of Western Sahara had constantly had their inalienable right to self-determination denied. The United Nations had many times affirmed that the issue was one of decolonization and, therefore, fell under its direct responsibility. Any attempt to prevent the people of Western Sahara from exercising that right was a severe violation of international law and ran contrary to the spirit and letter of the Charter and many resolutions approved by the United Nations since 1965.
He said the plan approved by the Security Council was the only way to resolve the situation. The United Nations could not avoid its responsibilities because one of the parties involved chose to avoid responsibility or refused to negotiate. The United Nations could not simply turn its back on the decolonization issue, and the Special Committee had the main role to play in resolving it.
He said that, despite its limited resources, Cuba had provided assistance, especially in area of education, to the people of Western Sahara. They could always count on the continued solidarity of Cuba in pursuing their rights.
AHMED BOUKHARI, speaking on behalf of Frente POLISARIO, said continued colonial occupation of Western Sahara by Morocco was a challenge to the authority of the United Nations. The Secretary-General's report recommended several solutions that minimized and undermined the right to self-determination. It suggested that the Secretary-General's personal envoy should take "Realpolitik" into account. That was an unfortunate approach, as well as an attempt to establish a dangerous precedent -- accepting a fait accompli of a colonial nature imposed by force.
He said the report alluded to the fact that if a referendum resulted in a vote for independence, Morocco would not allow that to happen. It was, therefore, pointless to bring in other countries to negotiate the status of the Territory and then warn about the failure of those negotiations if they included the option of independence. That would mean abandoning the decolonization doctrine of the United Nations. If it had pursued that path in the past, many countries would still be under colonial occupation.
He said there was nothing to negotiate with Morocco; existing agreements must be implemented. The international community had the means to allow a simple self-determination referendum. Progress could not be sacrificed because the occupying power had decided not to cooperate in implementing the peace plan. In other decolonization processes, the United Nations had defended fundamental principles of the Charter, none of which took "Realpolitik" into account. The absence of such perseverance in the case of Western Sahara was being used by Morocco to continue its opposition to international legality.
He said Morocco continued to engage in massive human rights violations in Western Sahara. Many Sahawris had been imprisoned and tortured using medieval methods, including being sprayed with gasoline and then set on fire. Morocco continued to raise legitimate suspicions about its actions by preventing delegations from visiting and by using subterfuge to make sure delegations that did arrive did not see what was actually happening there. He said he hoped the mandate of MINURSO would be established in such a way that respected human rights. As a member of the Human Rights Council, Morocco should not oppose that.
He said a prolongation of the impasse would only deepen the gap that separated both parties. The United Nations had arrived in 1991 with a detailed peace plan to implement and with the single objective of holding a referendum. To leave without achieving that, because of a lack of firmness in the face of non-cooperation from Morocco, had serious implications. The recent signing of a fisheries agreement, with its illegal and counterproductive provisions regarding Western Sahara waters that had been included at the instigation of certain European Powers, gave Morocco great strength in its intransigence. That agreement needed to be reviewed.
He said Western Sahara's people would not renounce their basic right to self-determination. They were not asking for anything new or impossible, only for help in convincing Morocco to comply with international legality. It claimed its right to be one more nation, with a seat at the United Nations.
Statements on Gibraltar
JUAN ANTONIO YAÑEZ-BARNUEVO (Spain) highlighted Spain's actions to fulfil the General Assembly's mandate on the issue of Gibraltar, advance the agenda of the Second International Decade for the Elimination of Colonialism, and clarify issues on Gibraltar's recent constitutional reform. In the spirit of cooperation, the 16 December 2004 Joint Declaration of the Governments of Spain, the United Kingdom and Gibraltar had created the three-way Forum of Dialogue on Gibraltar. The Forum aimed to improve Gibraltar's economic and social welfare. Unilateral changes to the status quo would impede progress.
He then turned to discussions to reform the constitutional order in effect since 1969 that had ended last March between representatives of the Foreign Office and representatives of various political parties and the Government of Gibraltar. The constitutional text that had resulted from such discussions was an internal redistribution of powers between the United Kingdom and Gibraltar to improve the Government's efficiency in the Territory. Such reform could not have any kind of repercussion in the decolonization process begun in 1946.
Both the United Kingdom's White Book on "British Overseas Territories" and the 28 March 2006 letter from Jack Straw, Secretary of State from the Foreign and Commonwealth Office, addressed to the Spanish Minister of Foreign Affairs and Cooperation recognized the limits of the principles of self-determination as applied to Gibraltar, he said. Both texts stated that the principle of self-determination should be promoted in conformity with "the other principles and rights of the United Nations Charter" and to "Article X of the Treaty of Utrecht" that gave Spain the right of return in the event that the United Kingdom renounced its sovereignty.
Further, Mr. Straw's letter affirmed that such limitations would also be reflected in the dispatch letter from the Secretary of State to the British Government of Gibraltar, which supplemented the constitutional text, he continued. The constitutional reform based on the 1999 White Book did not have decolonization as a goal for Gibraltar. Mr. Straw's statement in the 28 March 2006 letter, in which he affirmed that the next text "does not diminish British sovereignty over Gibraltar", that "Gibraltar will remain a non-self governing territory of the United Kingdom", and that "the United Kingdom will withhold its entire international responsibility in regards to Gibraltar" were clear examples that the revised constitutional text could not affect the decolonization process.
Gibraltar would undoubtedly remain a Non-Self-Governing Territory in practice and from a legal perspective as deduced from the text proposed by the Gibraltar Parliament at the start of the constitutional reform, he said. In that regard, the draft established that Gibraltar remained under laws enacted by the Westminster Parliament without any participation of any elected representatives of Gibraltar; that its higher judicial authority or Privy Council would continue to be an institution of the United Kingdom comprised of judges that were not Gibraltarean; and that the Crown would reserve its right to directly legislate in Gibraltar.
If a party attempted to assert that with the new constitutional text Gibraltar was no longer a Non-Self-Governing Territory, it would obviate the entire United Nations doctrine on the question and would infringe on the historical rights of Spain over Gibraltar, as recognized in the Treaty of Utrecht, he said. In resolutions 2231 (1966) and 2429 (1968), the General Assembly had established a solid doctrine of the full applicability of the principle of territorial integrity. Contrary to criticism that it was not defending the supposed rights of the people of Gibraltar, the Special Committee had acted decisively and effectively. Spain had never maintained a contradictory position. On the contrary, Spain was firmly committed to the United Nations decisions and resolutions. Spain wished to continue working with the Special Committee on the decolonization of Gibraltar and hoped that the Forum's discussions would result in a satisfactory outcome. While the constitutional reform of Gibraltar was a good text for governing the Territory, such reform was irrelevant to the decolonization of Gibraltar.
P.R. CARUANA, Chief Minister of Gibraltar, said he came back to address the Special Committee every year, with his conviction in the merit of his case undiminished by the Committee's consistent failure to respond positively to anything he said. Cogent arguments in support of a request to engage in the case of Gibraltar as one of decolonization by self-determination were not answered or rebutted, and the Committee had failed to shake itself free from 40 years of lethargic inactivity in relation to Gibraltar. As a result, most people in Gibraltar had come to regard the United Nations as irrelevant to their future.
Last year, he said he had asked the Committee whether it saw the case of Gibraltar as one of decolonization or as a sovereignty dispute. It had to be one or the other. If the Declaration on Decolonization applied to Gibraltar, then the Committee could not continue to act as if it did not, just because there was a competing sovereignty claim. The Declaration clearly did apply to Gibraltar.
Any proper interpretation of the principle of territorial integrity simply did not apply to the facts of Gibraltar because no one was attempting to disrupt the territorial integrity of Spain, since it did not include Gibraltar, he continued. General Assembly resolution 2526 made it crystal clear that the facts of the Gibraltar case fell well outside of the situations in which the principle of territorial integrity could properly apply. That resolution clearly said that for the principle of territorial integrity to exclude the right to self-determination, the country whose territorial integrity was allegedly being disrupted must be "possessed of a government representing the whole people belonging to the territory exercising self-determination". Not even Spain claimed or pretended that its Government represented the people of Gibraltar.
He said the only correct application of the principle of territorial integrity under the doctrine of the United Nations and international law was that a territory that was part of a State could not invoke the right to self-determination under the declaration or the Charter in order to secede from that State. That had no application to the decolonization of a Non-Self-Governing Territory such as Gibraltar that was not part of a Member State and, therefore, not trying to secede from it.
It was clearly established jurisprudence of the International Court of Justice that the principle of self-determination applied to all the territories on the United Nations list, including, therefore, Gibraltar, he said. As for whether the Treaty of Utrecht of 1713, which said that if Britain wanted to surrender sovereignty of Gibraltar, she must offer it first to Spain, as Spain and Britain argued, was clearly fallacious. It had been clearly established that any treaty that was inconsistent with the Charter of the United Nations was clearly void, invalid and ineffective.
He asked why the Committee did not pronounce itself in favour of the fact that international law clearly provided that self-determination applied to the decolonization of all listed territories in the case of Gibraltar. He also asked why it failed to heed General Assembly requests to fully implement the Declaration in all territories that had not yet exercised their right to self-determination, as well as its call for a "redoubling" of efforts to eradicate colonialism.
In a further example of how the principles entrusted to the Committee had been "contaminated by the territorial ambitions of certain Member States", the policy of establishing work programmes appeared to have been treated as not applicable to "cases where there is a sovereignty dispute". The Committee had also declared that it attached utmost importance to visiting missions as a means of collecting adequate and firsthand information on the conditions in the Territories and on the wishes and aspirations of the peoples concerning their future status. Yet, it had declined to send such a visiting mission to Gibraltar for 10 years, despite offers to pay for it. "Does the Committee see its role and interest in the case of Gibraltar as pushing us along into accepting Spanish sovereignty against our wishes ...?" he asked.
The clearest example of the "contamination" of the Committee's work by the undue influence of Member States was in the fact that the Committee allowed into the Recommendations & Conclusions of Regional Decolonization Seminars the statement that "in the process of decolonization, and where there are not disputes over sovereignty, there is no alternative to the principle of self-determination which is also a human right". Such language was introduced into the recommendations by the Spanish and/or the Argentine representative or the watchdogs of their positions.
The Committee continued to ignore his pleas to refer the question to the International Court of Justice, he said. In the face of all those positions and inactivity by the Special Committee in the case, the people of Gibraltar had come to believe that it lacked either the inclination or the will to assist them and were moving on to seek to decolonize by the only means apparently available. That was to exercise the right to self-determination by means of a referendum to accept and approve a new constitutional relationship with the United Kingdom, and which was not colonial in nature and provided the maximum degree of self-government beyond which there was only independence. A new constitution had been negotiated and agreed with the United Kingdom and would soon be put to the people of Gibraltar in a referendum. The Committee was very welcome to send an observer, or play whatever other role it wished in the conduct of the Referendum, and he invited it to do so.
He said the United Kingdom's position was that Gibraltar did enjoy the right to self-determination, but it was constrained by the Treaty of Utrecht to the effect that it could not opt for independence. Gibraltar roundly rejected that view and hoped the Committee would do the same. The new trilateral forum involving the Spanish, Gibraltar and United Kingdom Governments had met several times in the past year. The parties were hopeful of important agreements soon in those areas, possibly even during the summer.
If the people of Gibraltar accepted the Constitution, the Committee should cease to consider the case of Gibraltar and should recommend to the General Assembly that it be delisted, he stated. That was a matter for the Committee, and its unilaterally established delisting criteria. Delisting at the United Nations remained Gibraltar's objective.
The CHAIRMAN said he wished to point out that the Special Committee did not have a "unilaterally established delisting criteria", as Mr. Caruana had said. Establishing delisting criteria was a matter for the General Assembly, and those criteria were what guided the Committee.
JOSEPH JOHN BOSSANO, Leader of the Opposition of Gibraltar, said that, when the Opposition had joined the Select Committee established in 1999, it made clear that it would not support and that it would vote against a referendum on a modern constitution that failed to terminate Gibraltar's status as a Chapter XI territory. The Opposition had maintained that position ever since and made it clear during the start of negotiations with the United Kingdom in 2004. Gibraltar was told that the United Kingdom would exercise a judgement at the end of the process, and that its ministers would then decide whether the Constitution was sufficient to declare self-government for Gibraltar. The United Kingdom position remained unchanged during the negotiations.
However, in February, he continued, the Spanish press reported that Spain was pushing to scrap the self-determination Preamble to the Constitution. After the United Kingdom said its minister would not agree to the reference in the Preamble approved by the House of Assembly in 2002, Mr. Bossano had proposed and submitted on 17 March 2006 an alternative text which did not specifically mention self-determination. After that, Spain welcomed the outcome of the negotiations on constitutional reform. In a joint statement issued on 27 March 2006, the Territorial Government and the United Kingdom agreed to and welcomed the new Constitution.
He said that, in a letter sent the next day to his Spanish counterpart, the Foreign Minister of the United Kingdom, Jack Straw, spelled out the effect of the new Constitution in terms which suggested that it brought about modernization only on the basis of the United Kingdom's 1999 White Paper to develop local autonomy and good governance. The letter stated that neither the referendum nor the text had any effect on the decolonization question, that the consultative poll was a mere expression of a democratic exercise to provide more efficient government and that the general consensus of the Fourth Committee and the General Assembly's position as of December 2005 would remain unchanged.
Mr. Straw's 31 May letter to Miguel Moratinos further clarified the United Kingdom's position, saying that "the original letter had not said anything about changing Gibraltar's international status, nor linked it the New Constitution, nor to the referendum, nor to decolonization". Peter Caruana, the Chief Minister of Gibraltar, supported the United Kingdom's text while the Opposition criticized it, thus parting ways. The United Kingdom's response claimed that the United Kingdom was not inclined to produce a preamble to the new Constitution until after the referendum vote had taken place. That was not true, Mr. Bossano said, noting that in the recent case of St. Helena, the preamble had been written prior to the referendum and included a reference to the right of self-determination. Also false was Mr. Straw's claim that the United Kingdom did not engage the Special Committee in removing from its list the United Kingdom's 10 Territories under consideration, he said. On the contrary, in 2003 the United Kingdom had welcomed the Special Committee's review of the process to remove Anguilla from its list and in 2004 it urged the Special Committee not to make the removal of Papua New Guinea from its list too costly. Furthermore, Lord Triesman said the United Kingdom was not bound by resolution 1541 (1960) on decolonization since the United Kingdom had not voted on the resolution. However, it had in fact abstained during the voting.
On 25 May, the Chief Minister of Gibraltar had stated publicly that he agreed with the United Kingdom that the United Nations criteria were inadequate and outdated, Mr. Bossano continued. The Chief Minister also had stated that Gibraltar should proceed as if it were exercising its right to self-determination and implement the New Constitution, asserting that such de factor decolonization was safe and realistic. That would happen even if the United Kingdom failed to recognize a Gibraltar referendum as an act of self-determination and continued to report to the United Nations on Gibraltar under Article 73 e as if Gibraltar were not a self-governing Territory. Mr. Bossano said he had never heard of such a de-facto method of decolonization and that to his knowledge the criteria for decolonization were spelled out in resolutions 1541 and 2625 (1970) -- the cornerstone of the decolonization process which had seen 80 million people emerge from colonial rule in the last 45 years.
Mr. Bossano said he regretted that to date the United Nations, including the Special Committee, had not shown the remotest interest in participating in Gibraltar's decolonization process. Upon completion of negotiations and the decolonization Referendum, he would hold the United Kingdom to its word and expect it to cease reporting to the United Nations under Article 73 e. The vote for the new Constitution, in its current form, would not terminate Gibraltar's status as a Non-Self-Governing Territory. On the contrary, it would perpetuate that status. It would result not in de facto decolonization, but a de facto endorsement to continue colonial rule. It would endorse the Spanish position that there was only one option for Gibraltar: to accept integration with Spain and that until then Gibraltar's status under international law and the United Nations Charter would remain unchanged. Mr. Bossano said he would not accept that nor remain silent.
Committee Chairman JULIAN R.L HUNTE (Saint Lucia) said that resolution 742 emphasized that self-government could be achieved by association with another State or group of States if done so freely and under conditions of absolute equality. The procedure for transmitting new political developments in territories for review by the General Assembly had been established in the 1950s, and there was nothing unilateral about the work of the Special Committee. The administering Power was required to advise the Committee of territorial changes, and the Committee would then weigh whether those constituted self-government.
He said the prerequisite of absolute political equality continued to be the current standard for determining the full measure of self-government. That had been continuously reaffirmed by the General Assembly. The review of new political arrangements had been refined by the Special Committee when it adopted its 10-point work programme to engage administering Powers, territorial Governments and the United Nations in the process of engagement. The work programme was to be carried out on case by case basis, to facilitate tripartite discussion and assess individual territories' process of self-determination. The work programme was designed to facilitate the transfer of power to territories and to confirm that the full measurement of self-government had been achieved. Delisting was not the goal, but rather the result of attainment of a full measure of self-government.
He said if new constitutional arrangements resulted in colonial reform, not decolonisation, those procedures would be noted. For example, Tokelau's political status indicated that the arrangement contained all attributes for the full measure of self-government. It worked with the Committee, as did New Zealand, until the referendum was arrived at. By contrast, other administering Powers failed to show up at meetings and had nothing to do with the Committee.
He said he wished to clarify that visiting missions could only take place if the administering Power agreed. That was simply a fact of life. The Special Committee would review any proposed political status against established criteria and report to the Assembly, which alone had the responsibility to determine when the cessation of the provision of information by the administering Power was appropriate.
If an administering Power felt the criteria by which the Committee was guided were inadequate or out of date, it had the means and authority to take new criteria to the General Assembly, he said. The Committee could only be guided by the legislative authority before it. As far as delisting, it could make recommendations but only the General Assembly could make final determinations.
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