What is the legal (and the moral force) of “Article 73”?
BRADES, Montserrat, July 18, 2019 – As we listened to question time during the Legislative Assembly sitting on 9th July, it became clear that many are unclear – or are even dismissive – regarding the UN Charter and the upcoming visit by a UN delegation. Some, even fear that Premier Romeo’s stirring of these waters during his June 25th speech before the UN Committee of 24 on Decolonialisation[1] may do us more harm than good, or was simply useless. Yet, Section 2 of our 2010 Constitution Order clearly begins, “Whereas the realisation of the right to self-determination must be promoted and respected in conformity with the provisions of the Charter of the United Nations.” [p. 5]
Similarly, the FCO 2012 White Paper on Overseas Territories equally clearly states that:
“The UK Government’s fundamental responsibility and objective is to ensure the security and good governance of the Territories and their peoples. This responsibility flows from international law including the Charter of the United Nations. It also flows from our shared history and political commitment to the wellbeing of all British nationals. This requires us, among other things, to promote the political, economic, social and educational advancement of the people of the Territories, to ensure their just treatment and their protection against abuses, and to develop self-government and free political institutions in the Territories. [Cf. UN Ch. Art 73.] The reasonable assistance needs of the Territories are a first call on the UK’s international development budget.” [p.13]
Clearly, the UN Charter has legal force and is foundational for our 2010 Constitutional Order . Indeed, Article 103 of that Charter is a supremacy declaration: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
This is because the October 24, 1945 UN Charter is a re-founding of International relationships on principles of peace, justice and progress[2]; making it the cornerstone of modern International Law. As the UN Ch. Art. 1 therefore summarises:
“The Purposes of the United Nations are . . . To maintain international peace and security . . . To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples . . . To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all . . .”
Article 73 speaks to the self-determination and progress of non-self- governing peoples (Montserrat being one of seventeen currently listed territories). Administering powers (such as the UK) are therefore legally bound:
“a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses . . .
b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions . . .
d. to promote constructive measures of development . . .
e. to transmit regularly to the Secretary-General [of the UN] for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories . . .”
The UN Committee of 24 on Decolonialisation is the means that the UN has set up to monitor progress under this article,[3] and it occasionally sends delegates out on visiting missions. That is what Premier Romeo has requested, and after some months, the UK has approved. So, as a previous TMR article[4] commented – based on the UN General Assembly Resolution December 7, 2018, regarding Montserrat:
“An Article 73 visit is expected, the UK must facilitate our self-determination and self-government. And, the UK has been specifically, firmly reminded of its ‘responsibility . . . under the Charter to promote the economic and social development and to preserve the cultural identity of the Territory [of Montserrat].’ ”
In his June 25 speech to the C24, the Premier requested:
“a neutral, UN-supported facilitator on island to observe and aid with required negotiations, agreements and implementation of projects that will assure social, educational, health care, youth development and resilient economic growth out of dependence and colonial rule.”
He also suggested that:
“the burning question is no longer: “Who (the British or Montserratian Government) is more responsible for twenty-two years of short sighted and ill-considered decisions, for chronic mismanagement, corruption and ignoring scientific advice?”. But rather: “Are we (Montserrat and UK governments, assisted by the UN C24 Committee) willing to work together to turn tragedy into the triumph of good will?”
This seems to set a framework for the visit. It seems that he accepts that there is blame enough to share for both GoM and HMG for the past twenty-two years, given lack of progress under UN Ch. Art. 73 a, b and d. (This of course implies that his own government has its share of blame, too.) However, in the spirit of lessons to be learned and applied to make progress, he seeks to work in partnership with HMG and the UN “to turn tragedy into the triumph of good will.” To that end, he has called for “a neutral, UN-supported facilitator on island.” He envisions that such a facilitator (with UN backing) will be able to “observe and aid with required negotiations, agreements and implementation of projects.”
Is this realistic?
While the jury is out, yes.
The UN, through the Committee of 24 and the General Assembly, provide an open, international forum for public accountability for progress under the legal force of Article 73. As he has demonstrated, through that forum Montserrat’s voice can be heard by the world. A facilitator backed by UN resources and agencies can indeed make a difference regarding our negotiations with the UK on programmes and projects. The UN, too, has long-term initiatives for capacity building for small island developing states. Similarly, there have been initiatives to address corruption. It is notorious that every year, our UK grant-supported budget process – and thanks are due to the UK’s longsuffering taxpayers! – has been an inch by inch uphill fight. Development projects and programmes have too often seen a pattern of delays, fits and starts, cutting down to questionable levels and more. A facilitator with adequate backing could make a big difference on both the GoM and HMG sides of this problem.
However, it is also fair comment to observe that the UN has its own troubles and sometimes legitimate issues and initiatives have been captured by radical activists and states with rather questionable track records.
So, again, we see a mixed bag. But it is clear that this is an opportunity to open up a way forward. If, we are willing. Maybe the time has come for a fresh conversation. E
[1]See TMR: https://www.themontserratreporter.com/statement-to-un-c24-committee-premier-donaldson-romeo/
[2]See UN Ch. Preamble: https://www.un.org/en/sections/un-charter/preamble/index.html
[3] See UN: https://www.un.org/en/decolonization/specialcommittee.shtml
[4] See TMR: https://www.themontserratreporter.com/is-mr-romeo-the-premier-who-asked-for-more/
