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Falklands : THE HUMAN ASPECT OF THE RIGHT TO SELF DETERMINATION -AND THE NEED FOR CONTINUED VIGILANCE
Submitted by Falkland Islands News Network (Juanita Brock) 13.02.2013 (Article Archived on 27.02.2013)

Let us start by identifying the most common manifestation of the right to self-determination It is often said in presentations to relevant international fora that colonial people enjoy the right to self-determination and that the right is an inalienable human right.

 


THE HUMAN ASPECT OF THE RIGHT TO SELF DETERMINATION -AND THE NEED FOR CONTINUED VIGILANCE


 


 


as drafted by:


 


Hon Fabian Picardo MP, Chief Minister, Gibraltar


 


Good morning to you all.


 


From the programme I know you all expected that the speaker from Gibraltar on Self Determination would be our Chief Minister, the Hon Fabian Picardo.


 


Even those of you who dont know Fabian can see that I am not him!


 


It has been impossible for the Chief Minister to travel to be with us today in this incredible South Atlantic setting.


 


I am therefore delivering Mr Picardo's paper today on his behalf.


 


He has, however, asked me to convey to you sincerely his best wishes for a successful conference.


 


The issue Fabian wanted to deal with today is the human aspect of the right to self-determination as well as the need for permanent vigilance in the defence of the absolute nature of this fundamental right.


 


Let us start by identifying the most common manifestation of the right to self-determination It is often said in presentations to relevant international fora that colonial people enjoy the right to self-determination and that the right is an inalienable human right.


 


The legal basis for such assertions is well known to those who follow the work of the UN Committee of 24 and of the Fourth Committee of the General Assembly of the UN in New York.


 


Many of these legalities were set out brilliantly yesterday by Baroness Scotland and there is no need to repeat that analysis.


 


Instead, what we need to distil is the reasoning behind those international rules and understand why they remain so important today -even though the world -and even our relationship with UK may feel much less Colonial than it might when the relevant UN resolutions were put in place by the General Assembly.


 


Importantly, we should understand the context in which the language of self-determination is forged.


 


Like most if not all of the language of rights, the right of a nation to determine its political future emerged in tangible form after the Second World War, in the United Nations treaty and its derivate. It had not been many decades since the United States had finally abolished slavery, only decades after universal suffrage.


 


The world was changing from a privilege based model to a rights based model.


 


The post war drive to establish structures to prevent further wars and atrocities had resulted in the idea of a European Economic Community and a successor to the League of Nations that was to be headquarted in New York.


 


All of these entities originated around core beliefs best exemplified in the provisions of the Charter of the United Nations and the  European Convention of Human Rights.


 


These two documents set out the "fundamental human rights and Freedoms which protect the liberty of the individual and life itself. It could only be in that context that a doctrine could emerge that sought to recognise that people could determine their political future other than through bloodshed.


 


It was also at that time that many of the pink bits on the map also begun the exercise of pursuing their independence from the until then British Empire -by peaceful and less peaceful means.


Remember that all of this is happening decades and not centuries after the abolition of slavery in the United States -the nation that emerged strongest out of the allied destruction of Nazi occupied Europe.


 


The arrival of universal suffrage, the end of the second world war, the revelation of the atrocities committed in the name of nationalism, the legacy of a continent that had lost successive generations to successive conflicts in less than 50 years, the emerging clamour for decolonisation which was also driving violent confrontation in some countries and the establishment of a planet wide supra-organisation to resolve conflicts in the context of recognising not just the rights of states and nations but also, distinctly, the individual rights of each of their citizens was the powerful cocktail that allowed the emergence then of the rights of a people to determine their political future and that of their nations (i.e. their land).


 


It is in that context also that the Special Committee of the United Nations on Decolonisation is established.


 


With it, of course, comes the important and yet, now, perhaps  infamous "list of non-self-governing nations" which is today  reduced to sixteen states for whom transition to self-government  must occur only as a result of the people declaring "their democratically and freely expressed wishes" in a referendum.


 


So, if listeners will indulge the fact that this analysis has not referred to the legal description of each of the well-known and relevant documents that set the international "fundamental human rights and freedoms", we have now traced in political and human terms the background and reasoning for the emergence of a doctrine fundamental to the avoidance of bloodshed in territorial conflicts where the driver is not one state's strategic or nationalistic expansionism or greed but a distinct people's desire to assert their own separate rights over land they regard as unquestionably theirs.


 


Imagine the number of wars avoided when the people of a territory listed in New York by the Committee of 24 as "non-self-governing" have recognized to them the right in international law to choose to govern themselves instead of having to win that right in battle against another "colonising" state.


 


But how was that list established in a way that was credible internationally. On this, I have drawn widely from reference works dealing with the subject. This is the accepted position, namely that by operation of Article 73e of the Charter, member States actually agreed to report to the United Nations annually on the development of non-self-governing territories under their control. That initial List of Non-Self-Governing Territories was created by compiling lists of dependent territories submitted by the administering States themselves. In several instances, administering States were allowed to remove dependent territories from the list, either unilaterally (as in the case of many French overseas departments and territories), or by vote of the General Assembly (as in the cases of Puerto Rico, Greenland, the Netherlands Antilles, and Suriname). The list therefore draws its origins clearly from the period of colonialism and the Charter's concept of trusteeship for non-self-governing territories.


 


As an increasing number of formerly colonized countries became UN members, the General Assembly increasingly asserted its authority to place additional territories on the List and repeatedly declared that only the General Assembly had the authority to authorize a territory's being removed from the list upon attainment of any status other than full independence. For example, when Portugal joined the United Nations, it contended that it controlled no non-self-governing territories (because areas such as Angola and Mozambique were purported to be an integral part of the Portuguese state), but the General Assembly rejected this position ..


 


Similarly, Western Sahara was added in 1963 when it was a Spanish colony. The same can be said about the situation of Namibia (removed upon its independence in 1990), which was seen, due to its former status as a mandate territory, as a vestige of German colonial legacy in Africa.


 


Indeed, the criteria for determining whether a territory is to be considered "non-self-governing" was established in General Assembly Resolution 1541 (XV) of 1960.


 


Also in 1960, the General Assembly adopted Resolution 1514 (XV), promulgating the "Declaration on the Granting of Independence to Colonial Countries and Peoples", which declared that all remaining non-self-governing territories and trust territories were entitled to self-determination and independence.


 


It was in the following year, the General Assembly established the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (sometimes referred to as the Special Committee on Decolonization, or the "Committee of 24" because for much of its history the committee was composed of 24 members), which reviews the situation in non-self-governing territories each year and reports to the General Assembly.


 


And so the usually painful process of decolonisation begun to take a different shape in the fifties and sixties than had been the case until then; although that is not to say that the process was always as peaceful as the rights culture identified had intended.


 


Moreover, apart from the powers that came together to kick start the concept that there should be an international "family of nations", there remained regimes throughout the globe and even in "old Europe" who did not ratify or were not welcome to ratify these conventions.


 


Dictatorships were not washed away even with the blood of millions dead in Europe and Asia in the nineteen forties.


 


Neither did dictatorships hold a monopoly in the denial of rights to some people's rights to determine their own future.


 


In fact, apart from the attitude of some tired colonial powers that seemed almost relieved to be rid of responsibility for vast, distant, swathes of the globe, many states (some of them  new states), begun to take a less than generous approach to the right of some groups of people to determine their own future.


 


Indeed, in that context, what emerges is an international "NIMBYism" where some sign up categorically to high minded principles such as the right of individuals to determine their own future and defend such concepts around the world as good democrats -but not in their back yard.


 


Well, what more apposite examples for this conference than the attitude of allegedly modern and progressive democracies such as Spain and Argentina whose approach internationally can be juxtaposed to its regional reality.


 


The fact is that the great success of the entrenchment of the principle of self-determination in international law, as so succinctly set out by the Baroness yesterday, has been the massive reduction in the numbers of states listed as non-self-governing from 105 to 16.


 


The original listed massive territories with very large populations who have been able to avail themselves of this right to become their own political masters without having to fight physically to achieve that freedom.


 


But the great failure of the international community must be the fact that the territories that remain on the list of non-self-governing nations include some of the smallest land masses or populations, some of us (though not Gibraltar) in the remotest reaches of the planet.


 


Nonetheless, perhaps because of the tenacity that comes from being a small nation, a small population or the sheer determination of will needed to survive in some of these remote territories, the fact is that we, the peoples of these territories remain indefatigable in the pursuit of our rights to determine our own political future; even if that is often in a more nuanced way than the simple "in or out" choices asserted by larger nations who have chosen to become independent of prior administering powers.


 


Anyone who is reading a UK newspaper these days can fail to see that sheer determination in the way that our hosts and colleagues, the Falkland Islanders, are fighting a tremendous battle to show Argentina and the world that there is no future where these islands are anything other than the property of the people who have been established here for generations before Argentina was itself a nation.


 


The message of the people of Gibraltar to our brethren in these Islands is simple:


 


We are with you every step of the way.


 


Counting as you do with the sterling support of the Rt Hon William Hague and the whole United Kingdom, the support of Gibraltar and the Gibraltarians may seem less strategically important -but you know that there is one thing that marks Gibraltarians and Falkland Islanders out; that is that we understand each other and that we know exactly what Mr Churchill meant by the words "we shall never surrender'.


 


One of my first memories as a child was to see a UK cruiser turned into a hospital ship in 1982 as battle raged in the South Atlantic because once a again a dictator had tried to take by force land that belongs to a homogenous people.


 


Gibraltar had seen Spain bury its own dictator barely five years previously.


 


Argentina would bury its dictatorship as a result of that war.


 


But neither Spain nor Argentina were clever enough to bury their expansionist nationalism with the dictators that exemplified such causes.


 


Democratic Spain and Argentina have pursued their claims despite their patently being anti-democratic in doing so.


 


They continue to fail to see how they in effect seek to run roughshod over our rights -those fundamental human rights the origins of which we have identified originate from the spilt blood of millions -just because nationalistic causes are still peddled with equal traction by the alleged democrats who lead their governments today.


 


Well in 2002 Gibraltar pronounced itself again on whether our people wish to become a part of Spain.


 


The result was a resounding no.


 


By 98.970/0 percent the people of Gibraltar answered "NO" to the following question:


 


"On the 12th July 2002 the Foreign Secretary, Jack Straw, in a formal statement in the House of Commons, said that after twelve months of negotiation the British Government and Spain are in broad agreement on many of the principles that should underpin a lasting settlement of Spain's sovereignty claim, which included the principle that Britain and Spain should share sovereignty over Gibraltar.


 


Do you approve of the principle that Britain and Spain should share sovereignty over Gibraltar?"


 


Initially, to its eternal discredit, the UK Labour Government refused to give any legal weight to the referendum.


 


Indeed Jack Straw initially described the referendum as "eccentric.


 


But the ballot box is final and in In his evidence to the British Parliament's Foreign Affairs Committee in 2008, Jim Murphy MP, Minister of State for Europe, stated:


 


The UK Government will never-"never" is a seldom used word in politics enter into an agreement on sovereignty without the agreement of the Government of Gibraltar and their people. In fact, we will never even enter into a process without that agreement. The word "never" sends a Substantial and clear commitment and has been used for a purpose. We have delivered that message with confidence to the peoples and the Governments of Gibraltar and Spain. It is a sign of the maturity of our relationsh1: now that that is accepted as the UK's position.


 


Spain has, however, never stated that she has accepted the referendum and has actually said by the Spanish Minister of Foreign Affairs, Ana Palacio that our the referendum was "illegal" and "against all the UN resolutions".


 


I don't doubt that similar statements will emerge from Buenos Aires, although I do hope I am wrong.


The fact is, of course, that Spain does deep down know and recognise that Gibraltar will NEVER be Spanish, that our people will determine their own future and that her claim is both sterile and still born.


 


As Argentina surely must in the case of these islands.


 


Because the fact is that no amount of makeup (of the international legal variety) can disguise Ms Kirchener's understand of the reality  that the Falkland Islanders are masters in their own homeland; that the decolonisation resolutions of the General Assembly and the provisions of the Charter of the United Nations all illustrate the inalienable right to determine your future for yourselves and no number of trips to New York with no number of advisers and hangers on will ever change that.


 


But we do have to beware the attempts being made more perniciously to try to skew international law.


 


In recent years the latest rouse which has crept into the seminars organised by the United Nations is that Spain and Argentina (with  a small coterie of supporters) have tried to create a flaw in the  absolute nature of the right to self-determination.


 


The bright idea has been to suggest that the inalienable right of Self-determination is alienable in instances where the territory over which a people purport to exercise their right is subject to a sovereignty dispute.


 


You can see the beauty of how Spain and Argentina have attempted to frame their con.


 


By limiting the curtailment of the absolute right to self-determination to cases of sovereignty disputes, they are, in effect, trying to tell the world -agree with us with no peril, as the only  instances -or at least the most high profile -where the principle of  self-determination and sovereignty disputes collide happen to be  the cases of Gibraltar and the Falkland Islands.


 


Delegates should have no fear that this principle of going to ever  establish itself in international law -either expressly in resolutions  or by way of customary international law -as the seminars have  been regularly attended by that un-peaceable champion of the rights  of both the people of Gibraltar and the Falklands, the Hon Joe  Bossano MP of our Parliament.


 


Joe has repeatedly blocked Spanish and Argentine attempts to slowly and quietly dissolve this poison into the cocktail of the doctrine of self-determination.


 


That is not to say that, despite having defeated attempts to lay down such a doctrine within the legal structure of the United Nations, it is not perniciously gaining some ground in texts by authors who do not benefit from the level of debate that goes on at the heart of UN decision making.


 


Most notable perhaps is the work of author James Crawford in his well-known tome ''The Creation of States in International Law".


 


In Chapter 14 of that work, Mr Crawford, writing about the principle of self-determination and its application to non-self-governing territories, says this:


 


Quote


 


A persistent and troublesome aspect of United Nations practice in the context of Chapter XI (the chapter of the UN Charter on the Declaration Regarding Non-Self Governing Territories) is the problem of claims made to non-self-governing territories (or former territories) by third States on grounds such as national reunification, or because the territory concerned is considered to belong to the claiming State under the rules relating to the acquisition of territory or on some other ground. For example, it has been said that certain territories are mere "colonial enclaves" created by colonizers on the territory of a surrounding State and having no legitimate separate identity. In such cases, it is said the principle of self-determination has no application, or is relevant only so far as the modalities of transfer of the territory are concerned. In decolonization practice, various territories have been transferred to the claiming State rather than being treated as self-determination units; by far the best known case was Hong Kong, but there have been a number of others.  Of the remaining sixteen, Chapter XI territories, two, the Falkland Islands (Malvinas) and Gibraltar, arguable, fall into this category.


 


End of quote.


 


Well, lets me tell you as a Barrister that there can be no end of intellectual somersaults done by people who want to prove the impossible.


 


Hence the mental gymnastics necessary to try and establish somehow that an "inalienable right" is somehow "alienable"; or that a "fundamental human right" is somehow not so "fundamental" and can be displaced simply by a claim over the very thing that is  purportedly protected by such rights.


 


Yet the case is made for consciousness and vigilance by all of us who cherish our right to decide our political future and the future of our land for current and future generations.


We must assert our rights in referenda but we cannot stop there.


We must assert our rights also in international for a and in academia to ensure it is not perniciously stifled.


 


And we must stand togther as we assert these liberties that were born from bloodshed.


Because it cannot be right that the law of the jungle, the law of might is right, should be able to trump once again the peaceful assertion by peaceful people of how we wish to live our lives.


And so to the people of the Falklands I express, on behalf of the people of Gibraltar and no doubt on behalf of all colleagues in this Commonwealth gathering, our best wishes for the landmark referendum this March, our unqualified support and desire to see you forever the free British people of these South Atlantic islands.


ENDS

 

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