Saturday, April 10, 2010

Samuel J. Spector’s Egregious Malfeasance on the Western Sahara

Morocco and Western Sahara

As a consultant to James Baker in drafting what became known as the "Baker Plan" for Western Sahara, I must disagree with Ambassador Frederick Vreeland's pro-Moroccan argument for an autonomous Western Sahara in "A young king's wise proposal," (Views. March 3).

Nowhere is it mentioned that Morocco's claim to sovereignty over Western Sahara was specifically rejected by the International Court of Justice in a 1975 advisory opinion, which reaffirmed the Saharans' right to decolonization and self-determination. The 1975 Moroccan march to "reclaim" Western Sahara cited by Vreeland was government-instigated and widely condemned.

Every resolution adopted by the United Nations Security Council in recent years has reaffirmed the right of the people of Western Sahara to determine their own future, but Morocco has consistently rejected any proposal that would allow the fate of Western Sahara to be determined through a free referendum in the territory.

King Mohammed VI's proposal for autonomy may well be the most sensible solution for Western Sahara, and it should be considered seriously by the Sahwari government-in-exile and people. However, Morocco has no authority to impose a solution unilaterally, and the UN Security Council should not issue a diktat against the wishes of the people of Western Sahara.

Hurst Hannum, Hong Kong

written in response to Frederick Vreeland’s Op-ed article in the New York Times, Will Freedom Bloom in the Desert? (March 3, 2007)

In the summer of 2009, an article titled Western Sahara and the Self-Determination Debate (Middle East Quarterly (MEQ), Summer 2009, PP. 33-43) by someone I’d never heard of, a certain Samuel J. Spector, crossed my computer screen. The article is a somewhat-interesting attempt to make an international law case for implementing Morocco’s autonomy proposal, which - given international law’s clear rejection of Morocco imposing anything on the territory - is just not the normal approach taken by pro-autonomy people. While the approach might have been novel, my recollection is that I found the article’s legal case for autonomy extremely weak and promptly dragged it to the recycle bin.

Last November, I ran across Mr. Spector once again in the comments section following a pro-autonomy article by our old friend Ed Gabriel that appeared on Ambassador Gabriel’s article was his rather typical pro-Morocco nonsense, and when I chimed in to disagree with him, first Robert Holley from the Moroccan American Center for Policy (MACP) and then Samuel J. Spector added their comments in support of Gabriel. Spector’s piece was pretty much a condensed version of his MEQ article.

I am now posting a blog on Spector’s article almost a year after it came out because, as much as I would like to believe that tossing things in the recycle bin makes them and their authors disappear, Mr. Spector just won’t go away. Actually, with his recent participation in a rabidly pro-Moroccan Middle East Institute “policymakers roundtable” on the Western Sahara (March 11), he appears to be becoming a darling of the pro-autonomy set. His support of Robert Holley and Ed Gabriel noted above and the fact that MACP saw fit to issue a laudatory press release on the MEI event a day after it took place only confirm my suspicions.

At first glance, Mr. Spector’s education (Georgetown Law School), employment (the prestigious law firm Weil Gotschal and Manges), and the impressive number of heavy-duty footnotes in his article seem to indicate that he is a reasonably serious fellow. Likewise, the fact that an earlier version of his essay won second prize in the Middle East Quarterly's 2008 Albert J. Wood Student Writing Contest is further indication that there are serious people out there who also feel he is a reasonably serious fellow.

So after my quick dismissal of his article last summer, I felt that I better go back and reread it in case I had missed something. Unfortunately, several rereadings only confirm my original conclusion that this is far from being a serious paper.

Samuel Spector’s basic argument is that, with the winding down of the colonial era, “self-determination must … be reframed in the present context as a continuum of rights affording the affected populations a range of democratic entitlements and humanitarian protections within existing sovereign states.” By taking the possibility of independence out of self-determination, he argues that “an arrangement rooted in a realistic vision of autonomous self-government that would incorporate reasonable guarantees of cultural expression, political freedoms, and human rights for the inhabitants of Western Sahara might then be given a chance to take shape.” In other words, his argument is that evolving international law supports adopting autonomy as the sole basis for solving the Western Sahara debacle.

Mr. Spector’s article is unconvincing on several levels. The historical overview and, in particular, his analysis of the referendum years, is particularly weak. In trying to illustrate how “desolate in resources” the Western Sahara is, for instance, he states, “There is no arable land and while the region boasts phosphate deposits, much of its economic potential comes from fishing off its 700-mile coastline.” Given that the Western Sahara would be one of the largest exporters in the world of phosphates -- a vital, rapidly diminishing and currently very-high-priced resource – I would say that his command of the economics of the situation is tenuous. And he chooses to not even mention the possibility of oil and potential for solar power. In addition, his admission that throughout Western Sahara’s history “various North African Islamic dynasties … exerted some control” but that “nevertheless, the region remained largely nomadic and free from central authority” punches holes in several of his later arguments for ignoring the International Court of Justice opinion and accepting Moroccan sovereignty over the territory. All told, he pontificates mightily about things he clearly knows little about.

It is, however, his legal arguments that strike me as the worst part of the article. If there is one particular aspect of Spector’s discussion of self-determination and the Western Sahara that demands comment – and indeed condemnation - it is his quoting and referencing Hurst Hannum, Professor of International Law at the Fletcher School of Tufts University and our leading self-determination guru, in support of his thesis. My copy of Professor Hannum’s Autonomy, and Self-Determination: The Accommodation of Conflicting Rights, the classic college text on self-determination, sits on my bookshelf alongside Tony Hodges’ Western Sahara: The Roots of a Desert War as the most referenced books for my work on the Western Sahara. I greatly admire Professor Hannum’s work and use him often in support of MY fervent conviction that the Western Saharans have a clear right under international law to determine their own fate, be it as an independent state or part of Morocco. Needless to say, Spector’s use of Professor Hannum to support the opposite view – namely that forcing the Western Sahara to become an autonomous part of Morooco is OK under international law – certainly caught my eye. In addition, Spector’s invocation of Hannum struck me as particularly bizarre given Professor Hannum’s 2007 letter to the editor in the New York times – quoted in its entirety at the top of this post – clearly stating his position that “Morocco has no authority to impose a solution unilaterally, and the UN Security Council should not issue a diktat against the wishes of the people of Western Sahara.”

The fatal flaw in Mr. Spector’s argument here is very much linked to his total misunderstanding and misinterpretation of Hurst Hannum. Actually the extent to which he tortures Hannum’s ideas to fit into his autonomist agenda is truly mind-boggling. Five of his footnotes refer to Hannum’s article “Self-Determination in the Twenty-First Century” in a book co-edited by Hannum, Negotiating Self-Determination (2006). Professor Hannum encapsulates his thesis in his article as follows:

It is the suggestion of this chapter that, following several years of indecision, the international community has moved toward a new definition of self-determination. This new definition continues to exclude the possibility of unilateral, nonconsensual secession, but it has become infused with broadly defined human, minority, and indigenous rights that may signal a new usefulness for the concept of self-determination in the decades to come.

The vital element of this “new definition” that totally escapes Spector is that it is specifically for situations of secession. While Hannum acknowledges that we are in “largely a post-colonial era” in which “calls for self-determination, possibly including independence, are even becoming more muted in the classic decolonization cases of Kashmir and Western Sahara,” nowhere in his article does he suggest that we or the world community should do away with the right to independence inherent in de-colonial self-determination. But that is precisely what Spector tries to do. He takes Hannum’s new definition of secessionist self-determination and applies it to the non-secessionist de-colonial situation of the Western Sahara. And then having taken Hannum out of context, he uses Hannum’s new definition to back up his legal argument for denying the possibility of independence to the Western Sahara and instead imposing autonomy within Morocco.

And for anyone who has any doubts about Spector’s thoroughly unethical abuse of Hannum, I refer you again to Professor Hannum’s letter to the editor at the top of this post which was written a year AFTER the Hannum article referenced by Spector.

In the final analysis, Samuel Spector’s attempt - in the name of redefining self-determination for the 21st century - to reframe the Western Sahara situation solely within the context of autonomy without the possibility of independence is preposterous. His understanding of both Western Saharan history and self-determination law leave a lot to be desired. And his shoddy scholarship is just plain unethical. No wonder that he is becoming the darling of the pro-Morocco lobby.

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