Search Results

By: Maribeth Hunsinger Western Sahara is a disputed territory in the Maghreb region of North Africa, bordering Morocco, Algeria, and Mauritania. It boasts phosphate and iron reserves, and is believed to have offshore oil deposits. Spain colonized the territory in 1884 and exercised control for over one hundred years, until Morocco wrested de facto control over large parts of the territory. Some, however, still see Western Sahara as “Africa’s last colony,” with the Kingdom of Morocco exercising colonial power over the native Sahrawi people. No member states of the United Nations (UN) have recognized Moroccan sovereignty. While there remains political support for Morocco’s claim in the West, many countries are increasingly recognizing the legitimacy of the independence claims by the Sahrawi Arab Democratic Republic (SADR). This piece explores the basis for these respective claims, and in particular the proposition that self-determination in Western Sahara should not serve to decide between “competing sovereignties” but to allow the Sahrawi people to decide whether to retain their sovereignty. The Roots of the Conflict Spain colonized Western Sahara, and its control over the territory lasted well into 20th Century. In 1965, the UN General Assembly passed its first resolution on the matter, calling for Spain to decolonize the territory. The General Assembly followed this with seven more resolutions between 1966 and 1973, all of which called for a referendum on self-determination. Self-determination, a core principle of customary international law, refers to the legal right of people to determine their legal status in the international system. A referendum on self-determination would call upon the people of Western Sahara to determine their own political future, whether that be independence or integration with another state (i.e., Morocco). Spain announced its plans to hold a referendum in early 1975, opening the door to potential Sahrawi independence. However, King Hassan II of Morocco countered that Morocco would not accept a referendum that included the option of independence. Morocco had expressed its claim to the territory since 1957, and proposed submitting the matter for arbitration by the International Court of Justice (ICJ) to determine the legal status of the territory. Interpreting the ICJ Opinion of 1975 The ICJ acknowledged legal ties between the territory and Morocco in a vote of fourteen to two, and legal ties between the territory and Mauritania in a vote of fifteen to one. However, with regard to these ties, the ICJ held in its Advisory Opinion that “the court has not found legal ties of such a nature as might affect…the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.” The dominant construal of the ICJ opinion is that Western Sahara is entitled to a referendum for self-determination. However, the reference to the “peoples of the Territory” could be further construed in two different ways: as either a mandate for the territory’s current occupants to determine which competing state has sovereignty over the territory, or as a mandate for the SADR to determine how it wishes to proceed with the territorial sovereignty it already possesses. Some academics, however, argue there is clear Sahrawi sovereignty based on the ICJ opinion. This interpretation rests on a less frequently cited part of the ICJ opinion: “[t]he purpose of a self-determination referendum in Western Sahara is not to decide between competing sovereigns…but to poll the Sahrawis as to whether or not they wish to retain, modify, or divest their sovereignty.” This language does seem to indicate ICJ recognition that the native Sahrawis were legal occupants of the territory prior to Spanish colonization, and that self-determination refers to the will of the Sahrawis. Pursuing a Referendum of Self-Determination However, although the ICJ opinion prompted Spain’s withdrawal from Western Sahara, the question of territorial sovereignty persisted. Morocco instigated the “Green March” in which 350,000 unarmed civilians crossed from Morocco to lay claim to the territory. Spain, Morocco, and Mauritania signed the Madrid Accords in 1975 to formally end Spanish presence in the territory. The agreement divided the territory between Morocco and Mauritania. The Polisario Front, a Sahrawi liberation movement, set up the SADR as a government-in-exile in the refugee camps of Algeria. In response to this movement, Morocco and Mauritania went to war with the Polisario over the issue of Sahrawi independence. Mauritania withdrew from the territory in 1979, leaving Morocco in de facto control over two-thirds of the territory and the SADR in de facto control over the remainder. In 1988, the UN submitted settlement proposals to Morocco and the Polisario, with the intent of finally coordinating the referendum on self-determination in Western Sahara. These proposals offered that people of contemporary Western Sahara a choice between integration with Morocco or independence. However, the parties unsurprisingly disagreed over the identification of voters for the referendum, creating an impasse. Morocco offered a solution in which the SADR could exercise autonomy under Moroccan sovereignty, but the Polisario rejected this. Even the UN Security Council was unable to agree on a path forward. In the past decade, the UN has effectively abandoned attempts to organize a referendum for West Saharan self-determination, and has instead encouraged the main parties to the contemporary conflict (Morocco, Algeria, and the Polisario Front) to engage in regional negotiations. By December 2015, Christopher Ross, the UN Secretary-General’s Personal Envoy, declared the negotiation process “stalemated.” Contemporary Recognition of Sovereign Claims Despite Morocco’s physical control over the majority of the territory, the SADR has continued to increase its recognition within the international community. The SADR achieved accession to the Organization of African Unity (OAU), which later became the African Union (AU), in 1984. Such recognition has traditionally been considered an attribute of statehood, even if it does not necessarily establish its territorial claims. That same year, Morocco withdrew from the OAU, maintaining that admission of Western Sahara into the OAU was a violation of the OAU charter because Western Sahara had neither international recognition nor sovereignty. Nevertheless, Morocco requested to rejoin the AU in 2016, and was readmitted in early 2017 after a thirty-three-year hiatus. Although Morocco has not explicitly accepted an independent Western Sahara, the AU allowed Morocco’s readmission on the basis that Western Sahara will remain a member of the AU. Some states, including Algeria and South Africa, wanted acceptance of Sahrawi independence to be a condition for Morocco’s readmission, but there is no specific provision in the AU charter that could have been leveraged to accomplish this. Moreover, following King Mohammed VI’s “charm offensive” to attain readmission to the AU, twenty-eight member states were reported to have signed a motion for the suspension of the SADR from the AU. Looking Forward Morocco’s return to the AU “threatens to create [an] unprecedented split within the membership of the Union.” However, some AU delegates think it will be easier to resolve the issues between Morocco and Western Sahara now that both are AU members. Morocco remains deeply tied to, and enjoys substantial political support for, its sovereign claim to Western Sahara. Moroccan stability is also a strategic priority for Western countries such as France and the United States, and Western Saharan nationalism can be seen as a threat to that stability. Nevertheless, the ICJ opinion of 1975, and the increasing political recognition of the SADR, weigh strongly in favor of the Sahrawi right to self-determination over the future of sovereignty in Western Sahara.

By Alfredo Diaz On February 10, 2009, the first accidental hypervelocity collision between two intact artificial satellites in low Earth orbit occurred when Iridum 33, a 1,234 pound satellite, and Kosmos-2251, a 1,984 pound satellite, collided as they passed over northern Siberia at an altitude of 490 miles, traveling at around 26,170 miles per hour, producing almost 2,000 pieces of debris larger than 4 inches in diameter, and more than 200,000 smaller pieces. A 0.5 mm paint chip traveling at 35,000 km/hr (10km/sec) could puncture a standard space suit; a one-centimeter fragment could damage a space station. According to the 1972 Liability Convention, liability for these fragments depends on the Launching State and whether damage occurred in orbit. If the object causes damage to the surface of Earth or and aircraft in flight, a strict liability standard applies—a state is considered strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside of its control. If the space object causes damage some place other than the surface of Earth, a fault standard is applied. How this all plays out, we do not truly know. The Liability Convention has also never been formally invoked—all incidents to date that could have resulted in potential claims under the Convention, including the Iridium-Cosmos collision, have been settled by the respective countries outside of the Convention. Still, someone will have to clean all of this up— international space law deems fragments and components from space objects as individual space objects in and of themselves, requiring identification to determine the owner and either individual or blanket consent to remove it from orbit, as there is no right of salvage analogous to the right in maritime law.

By Ilya Akdemir On December 15th, 2016, Russia’s President Vladimir Putin will pay a visit to Japan. The discussions between President Putin and Prime Minister Abe will primarily concern trade and other issues of bilateral relations. But in recent weeks, there have been indicators from both Japanese and the Russian sources that new steps are being taken to resolve the longstanding territorial dispute between the two countries over the Kuril Islands. Situated north of Japan’s Hokkaido Prefecture, the Kuril Islands are a chain of volcanic islands that extend 1200 km from Japan’s northern Hokkaido Prefecture to Russia’s Kamchatka Region. Although a part of Russia’s Sakhalin Oblast, the four southernmost islands of Etorofu, Kunashiri, Shikotan, and Habomai off the coast of Hokkaido Prefecture – known as the four South Kuril Islands – are claimed by both Russia and Japan. Apart from being rich in resources, the islands form a strategically important gateway to Russia’s resource-rich Far Eastern regions and the Sea of Okhotsk. The origins of the territorial dispute can be traced all the way back to the end of the Second World War. Although the war ended in 1945 with the victory of the Allied forces, the USSR refused to sign the 1951 Peace Treaty of San Francisco, which meant that, legally, the Soviet Union has had no formal peace treaty with Japan. To restore relations, in 1956 USSR and Japan signed a Joint Declaration, which ended the state of war between the two states. However, it’s important to note that under international law this Joint Declaration did not necessarily constitute a formal peace treaty – indeed, Article 9 of the Joint Declaration specifically states that “the USSR and Japan agree to continue, after the restoration of normal diplomatic relations between the USSR and Japan, negotiations for the conclusion of a Peace Treaty.” Considering the Russian Federation is the legal successor to USSR under the Alma-Ata Protocol and Belavezha Accords of 1991, this lack of formal peace has remained a part of Russia-Japan relations to this day. The Kuril Islands were an important element in the Soviet Union’s decision to refuse to sign the 1951 Peace Treaty. This is best demonstrated by then Soviet Foreign Minister Gromyko’s statement, which outlined USSR’s key objections to the Peace Treaty, one of which was the issue of sovereignty over Kuril Islands and the nearby South Sakhalin. Gromyko stated that “the draft confines itself to a mere mention of the renunciation by Japan of rights, title and claims to these territories and makes no mention of the historic appurtenance of these territories and the indisputable obligation on the part of Japan to recognize the sovereignty of the Soviet Union over these parts of the territory of the USSR.” Of particular importance to the Kuril Islands territorial dispute between Japan and Russia is Article 1(b) of the 1951 San Francisco Peace Treaty which states that “The Allied Powers recognize the full sovereignty of the Japanese people over Japan and its territorial waters.” But what’s interesting about this territorial dispute is the fact that Article 2(c) of the 1951 Peace Treaty clearly states that “Japan renounces all right, title and claim to the Kurile Islands.” However, despite this rather express language of the Article 2(c) of the Treaty, Japan still claims sovereignty over Kuril Islands. The reason why Japan still has, or argues to have a legal claim over the Kuril Islands is that Japan refers to some of those islands – specifically the four islands of Etorofu, Kunashiri, Shikotan, and Habomai islands – as “Northern Territories”, which are seen as an inherent part of territory of Japan and an extension of the Hokkaido Prefecture. Japan claims that these four islands have always been Japanese territories and hence do not constitute a part of “Kuril Islands” under the 1951 Treaty. Furthermore, Prime Minister Yoshida’s statement at the 1951 Conference in San Francisco claimed that these islands had been taken unilaterally by the Soviet forces on September 20th, 1945, shortly after the surrender of Japan and the official announcement of the surrender on August 15th, 1945, which was officially signed on September 2nd, 1945. Indeed, Russian historical works on the subject also confirm that the invasion and occupation of the Kuril Islands happened after the official announcement of Japan’s Surrender, in the period between August 28th and September 5th. The fact that USSR did not sign the 1951 Peace Treaty makes it difficult to ascertain what “Kurile Islands” meant for both parties, even though USSR did participate. Nevertheless, Russia refers specifically to the wording of the 1945 Yalta Agreement signed towards the end of the war between the Allied Powers. Of interest is Article 3 of the Yalta Agreement, which explicitly states that the Kuril Islands shall be handed over to the Soviet Union. Therefore, the takeover of islands after the official surrender of Japan is seen as having a legal basis under the 1945 Yalta Agreement. The territorial dispute surrounding the Kuril Islands has lasted for over 71 years but recently, there has been a renewed push at negotiating an agreement and signing a formal Peace Treaty between the two states. The Ministers of Foreign Affairs of both countries are claiming they are working on a deal in time for the arrival of President Putin to Japan on the 15th of December, 2016. Some argue, that there could perhaps be an agreement on a model for the joint Russo-Japanese administration of the disputed islands. On the other hand, Russia’s Foreign Minister Lavrov has stated that the process is not going to be easy. Indeed the recent military buildup on the Kuril Islands by Russia puts a big question mark on the hopes of achieving a peace deal in the near future. Furthermore, Lavrov has recently claimed that it would be a mistake to have excessively high expectations of a peace deal any time soon. The bilateral negotiations and statements we’ve heard in recent months seem to be a clear indicator of a possible change in the established status quo of this territorial dispute. A solution to the Kuril Islands question seems closer than ever and it is highly likely that we might witness a Peace Treaty between Japan and Russia in our lifetimes. It is unlikely that we will see the Peace Treaty this month – nevertheless, commentators have argued that as long as President Putin and Prime Minister Abe are in office, there exists a chance for an agreement. The Asia-Pacific region has recently seen an increase in tensions – this is especially evident through the many controversies surrounding the territorial disputes in the South China Sea. Seeing a resolution of the longstanding dispute between Japan and Russia over the Kuril Islands could perhaps lead to a decrease in tensions in this region and would undoubtedly lead to better relations between the two states.

By Maribeth Hunsinger, JD Candidate 2019 The relatively young nations of Central Asia have been slowly opening their economies to foreign investment over the past twenty years. However, infrastructure shortfalls in the region, including failing transportation and utility networks, are hampering continued economic growth and development. The World Bank estimates that over $1 trillion a year in additional infrastructure investment will be required to meet the current demand shortfall in emerging markets and developing economies. The gap in global infrastructure investment has a tangible impact on quality of life worldwide: 2.6 billion people have no access to electricity, while 800 million people have no access to clean water. Infrastructure spending differs not only across regions, but also across countries within the same region, depending on factors such as government funding, legal frameworks, and security issues. Inadequate infrastructure can reduce output, lower productivity, impede the flow of people and goods within and between countries, and impose higher transaction costs. However, the governments of most Central Asian states have relatively limited financial capacity to rehabilitate existing infrastructure or fund new infrastructure. These nations are facing declining growth projections and budgets following the 2014-15 drop in global oil prices, and they will likely need to find different methods of financing their widening infrastructure gaps. Infrastructure in Central Asia Governments have traditionally financed infrastructure and made it available as a public good. However, with the breakup of the Soviet Union, the five post-independence Central Asian states – Kazakhstan, the Kyrgyz Republic, Tajikistan, Turkmenistan, and Uzbekistan – have experienced difficulty with developing and maintaining their national infrastructure. The existing Soviet infrastructure in Central Asia is, for the most part, failing and in need of upgrades. The link between local infrastructure and Russian’s own networks exacerbates the need for new infrastructure. Central Asia has generally experienced economic growth in the period since the collapse of the Soviet Union. Unfortunately, the precipitous drop in oil prices in the last eighteen months, from over $100 per barrel to around $30 per barrel, is exposing the lack of region’s lack of economic resilience, regardless of whether a country is oil-rich or oil-poor. The Economist’s Intelligence Unit forecasts that 2016 will be the first year since 1998 that oil exporter Kazakhstan’s economy contracts. Price declines in non-oil commodities such as copper, aluminum, and cotton, coupled with low import demand from China, are also dampening the export revenues of Central Asian countries. In such an environment, private sources of infrastructure investment may be necessary to meet developmental needs. Potential for Public-Private Partnerships Public Private Partnerships (PPPs) present an option to meet the funding gap in developing economies, and could be an important factor in improving the current infrastructure issues in Central Asia. PPP refers to a long-term arrangement between public and private sector parties. PPPs are often used as a funding model for public infrastructure projects, where the public partner is a government entity or public agency, and the private partner is a privately-owned company, public corporation, or consortium. PPPs are constructed using a variety of investment and incentive structures for the involved parties, but typically the private partner will make a risk-bearing equity investment and execute some combination of design, financing, construction, rehabilitation, or operation of assets on behalf of the public partner. In addition to accelerating the development of civil infrastructure in developing countries, PPPs can perpetuate local private sector capabilities (through joint ventures and sub-contracting opportunities) and gradually expose state-owned enterprises to increasing levels of private sector participation. Legal Framework for Public-Private Partnerships An increasing number of foreign governments have enacted PPP or concession laws to incentivize foreign investment, and Central Asia is no different. These laws serve a variety of purposes depending on the country, including: establishing an institutional framework to support PPPs, giving regulatory priority to PPP projects over others, and closing legal gaps pertaining to investors’ rights and procurement processes. In 2014, the Economist published its “Infrascope” for the Asia-Pacific Region, which benchmarked countries’ PPP-readiness relative to four developed countries in the region. Legal and regulatory frameworks constituted twenty-five percent of each country’s weighted score, indicating the importance that aspects such as regulatory consistency, bid fairness/transparency, contracting mechanisms, and dispute-resolution practices play in creating an environment conducive to PPP. Of the nineteen Asian countries evaluated in the Infrascope, three were in Central Asia – Kazakhstan, Kyrgyz Republic, and Tajikistan. Kazakhstan ranked highest of the three, but still came in behind countries such as Pakistan and Bangladesh. Kazakhstan had exhibited recent improvements to its investment climate and PPP policies, but was lacking in the institutional reforms required to minimize risk and improve deal flow. Despite the fact that both the Kyrgyz Republic and Tajikistan have passed PPP laws, they ranked second- and third-to-last, respectively. This was in part for their failure to deliver any PPP projects (Kyrgyz Republic) and their need to improve institutional support for PPP (Tajikistan). An Emerging Opportunity: Kazakhstan Following the publication of the Infrascope, Kazakhstan, which previously had enacted a Concessions Law pertaining specifically to the Build-Operate-Transfer type of PPP projects, enacted a PPP law in 2015 that provides for a more extensive legal framework to regulate all forms of PPP projects. This law allows government-owned companies to act as the public partners, whereas previously only government entities could fill this role. It also provides for the possibility of multiple public and private partners in a singe PPP, and for step-in rights (the right to substitute a partner) for private partners. These provisions serve not only to make foreign investment in Kazakh infrastructure projects more attractive, but also to send a signal to foreign creditors and investors that the country is an increasingly stable and welcoming environment in which to make such investments. Ideally, such actions on Kazakhstan’s part will motivate its neighboring states to make improvements to their own PPP policies in order to incentivize private parties to begin participating in projects in those countries as well. Going Forward Central Asia boasts ample natural resources and strong economic potential, but the region will need to improve its physical infrastructure networks if it is to realize this potential. PPPs present a potential means of attaining such improvement through private, likely foreign, investment. However, in the absence of strong economic growth to incentivize foreign lenders to invest in its infrastructure and markets, the region will need to demonstrate progressive, reliable legal and regulatory frameworks to promote such investment.