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Max Planck Encyclopedia of Public International Law [MPEPIL]

Western Sahara (Advisory Opinion)

Clemens Feinäugle

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 January 2019

Subject(s):
Sovereignty

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The Western Sahara advisory opinion of the International Court of Justice (ICJ) of 16 October 1975 deals with legal questions in the context of the decolonization of the territory of Western Sahara (Western Sahara [Advisory Opinion] [1975] ICJ Rep 12).

B.  Factual Background

In 1884 Spain seized control over Western Sahara and declared it a Spanish protectorate (Protectorates and Protected States). In the late 1950s Morocco and then also Mauritania claimed the territory (Claims, International; Spanish Zone of Morocco Claims ; Territory, Acquisition). In the course of the decolonization efforts of the United Nations (UN), Spain agreed to decolonize the territory by way of a referendum (Colonialism; Decolonization: Spanish Territories). When Morocco still claimed the territory and Spain refused to submit the dispute to the ICJ, the issue was dealt with by the UN General Assembly (‘UNGA’ ; United Nations, General Assembly).

C.  History of Proceedings

The case was brought before the Court in the procedure of an advisory opinion (see Advisory Opinions), filed in the registry on 21 December 1974, following UNGA Resolution 3292 (XXIX) of 13 December 1974. ‘Recalling its resolution 1514 (XV) of 14 December 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples’ (Preamble of UNGA Res 3292 [XXIX] [13 December 1974] para. 1) and ‘[r]eaffirming the right of the population of the Spanish Sahara to self-determination’ (ibid para. 3) the UNGA made clear that its goal was to accelerate the decolonization process and to dispose of the impeding controversy over the status of the said territory (Self-Determination). The two questions the UNGA submitted to the Court had this wording:

  1. I. ‘Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)? If the answer to the first question is in the negative,

  2. II.  What were the legal ties of this territory with the Kingdom of Morocco and the Mauritanian entity?’ (Western Sahara [Advisory Opinion] [1975] ICJ Rep at 37).

By order of 22 May 1975, the Court decided as a preliminary matter that the Kingdom of Morocco was entitled—under Arts 31 and 68 ICJ Statute and Art. 89 Rules of Court (1972)—to choose a judge ad hoc whereas these conditions in the case of the Islamic Republic of Mauritania were seen as not fulfilled (International Courts and Tribunals, Judges and Arbitrators).

Before the Court could proceed to answer the two questions submitted, it had first to consider certain procedural matters. The existence of a ‘legal question’ as a precondition for an advisory opinion—Art. 65 ICJ Statute and Art. 96 UN Charter—was doubted by arguing that the two questions posed were either factual or of a purely historical or academic character (at 19). The Court held, however, that even a mixed question of law and fact was a ‘legal question’ and rejected the argument that both questions related to a point in time in the past by citing that ‘…the Court may give an advisory opinion on any legal question, abstract or otherwise’, which it had decided in the case on the Admission of a State to membership in the United Nations (Advisory Opinions) (see [1948] ICJ Rep 57 at 61).

Spain suggested that due to its lacking consent the Court should decline to exercise its competence. The advisory jurisdiction would be used to circumvent the lacking consent which was required in any dispute settlement and especially in this case where issues of territorial sovereignty over Western Sahara were at stake. The Court stated that only ‘compelling reasons’ should lead it to refuse to give a requested advisory opinion (see also Peace Treaties with Bulgaria, Hungary and Romania, Interpretation of [Advisory Opinions]; South West Africa/Namibia [Advisory Opinions and Judgments]). The controversy had arisen during the proceedings of the UNGA and not in bilateral relations. Furthermore, advisory opinions did not have binding force and contrary to the circumstances in the case of Eastern Carelia (Request for Advisory Opinion) Spain was a member of the UN, a party to the United Nations Charter and the ICJ Statute and thus subject to the advisory jurisdiction of the Court (International Organizations or Institutions, Membership). The decision would not affect the rights of Spain but assist the UNGA in its decolonization policy. For the same reason it was not devoid of object and purpose.

D.  Findings and Reasoning of the Court

The Court answered the first question in the negative. It initially held that ‘time of colonization by Spain’ meant the period beginning in 1884 when Spain proclaimed a protectorate over the Rio de Oro. Therefore, the Court interpreted terra nullius by referring to the law in force at that time (Intertemporal Law). It held that state practice of the relevant time indicated that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. The Court found that Western Sahara was at the time of colonization by Spain inhabited by peoples which were socially and politically organized in tribes and under chiefs competent to represent them and thus was not terra nullius.

The Court then proceeded to spend much more reasoning on the second question, asking what were the legal ties of Western Sahara with the Kingdom of Morocco and the Mauritanian entity. With a view to the decolonization context of the question the Court decided that the notion ‘legal ties’ ‘may affect the policy to be followed in the decolonization of Western Sahara’ and would thus include not only ties established directly with the territory but also take reference to the people who may be found in the respective territory (at 41). In Western Sahara there had been nomadic tribes of Islamic faith with their own customary law.

After having dealt with the evidence brought by Morocco to substantiate its legal ties of territorial sovereignty with Western Sahara on the basis of an alleged immemorial possession, the Court denied any such legal ties (International Courts and Tribunals, Evidence). Referring to the Eastern Greenland Case of the Permanent Court of International Justice (PCIJ) the Court stated that a claim to sovereignty based upon continued display of authority involved the two elements of ‘intention and will to act as sovereign’ and ‘some actual exercise or display of such authority’ (at 43). Due to the lack of evidence of actual display of authority of Morocco relating to Western Sahara the Court held these preconditions not fulfilled. As to Morocco’s specific evidence relating to the time of colonization, the Court saw the alleged acts of internal sovereignty, such as the imposition of taxes in the territory, as not proven and other acts as relating to areas situated within present-day Morocco itself. International acts such as treaties of Morocco with Spain and Great Britain invoked to display recognition of the Moroccan Sultan’s sovereignty in Western Sahara were equally rejected as merely being evidence of ties of allegiance or of personal influence regarding some of the nomadic tribes of the territory or of evidence of the acceptance of the Sultan’s interest in that area rather than recognition of existing sovereignty.

10  Since there did not exist, at the time of Western Sahara’s colonization, a Mauritanian State, the Court confined itself to examine, with regard to Mauritania, legal ties other than those of State sovereignty. The Court held that the ‘Mauritanian entity’, identical with the so-called Shinguitti country, did not enjoy any form of sovereignty since ‘it did not have the character of a personality or corporate entity distinct from the several emirates and tribes which composed it’ (at 63). However, the nomadic peoples of this region had in the relevant period possessed rights, eg concerning grazing pastures, cultivated land, and wells in Western Sahara and the ‘Mauritanian entity’ alike which constituted legal ties between these two territories.

11  The Court came to the conclusion that there were no legal ties of territorial sovereignty but only legal ties of allegiance between Western Sahara and the Kingdom of Morocco (by 14 votes to two) and between Western Sahara and Mauritania (by 15 votes to one). The legal ties of allegiance, however, were not of a nature that could affect the process of decolonization of Western Sahara and the application of UNGA Resolution 1514 (XV) of 14 December 1960 as well as the principle of self-determination.

12  Judges Gros and Ignacio-Pinto declared that the first question was not a legal question but a purely academic one, not serving any useful purpose and loaded in the sense that it led to the expected answer.

13  The separate and dissenting opinions mainly criticized the majority’s distinction between legal ties of territorial sovereignty and other legal ties. As Judge Petrén put it in his separate opinion: ‘… the request for an advisory opinion did not ask the Court for any finding on the existence of ties between the territory of Western Sahara and Morocco or the Mauritanian entity other than such legal ties as might affect the future application of resolution 1514 (XV) in the decolonization of the territory’ (Western Sahara [Separate Opinion of Judge Petrén] [1975] ICJ Rep 115), by which he meant legal ties of sovereignty.

E.  Assessment and Further Developments

14  The Western Sahara case is the first case in which the ICJ granted the appointment of an ad hoc judge in the proceedings of an advisory opinion.

15  One of the achievements of the advisory opinion is the strengthening of the principle of self-determination of peoples which supported the decolonization process. Judge Dillard made clear that ‘automatic retrocession’ (Western Sahara [Separate Opinion of Judge Dillard] [1975] ICJ Rep 120) could not take precedence over the inhabitants’ rights to self-determination. The right of peoples to self-determination was later, in the case concerning East Timor (East Timor [Portugal v Australia] [Judgment] [1995] ICJ Rep 90), even acknowledged by the ICJ as having an erga omnes character (Obligations erga omnes).

16  Many of the views of the opinion, eg as to the problems of ‘consent’, ‘legal question’, and ‘self-determination’, were later discussed and confirmed in the Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) ([2004] ICJ Rep 136).

17  In the context of the protection of indigenous rights the decision was criticized for applying the European notion of acquisition of title—with the focus on the display of the acceptance of authority—as the exclusive criterion instead of taking account also of the potential legal force of the indigenous form of political organization—in the case at hand the political ties of allegiance of various tribes to the Sultan of Morocco (Indigenous Peoples).

18  As subsequent developments would show, the advisory opinion could not solve the dispute: soon after the delivery of the decision, Morocco took action by launching the ‘Green March’ of 350,000 Moroccans into Western Sahara to avoid a referendum against her interests. Spain saw herself under constraint to withdraw from Western Sahara in 1975 leaving the territory to be divided between Morocco and Mauritania. In 1976 the Polisario, a Sahrawi rebel movement, working for the separation of Western Sahara from Morocco, claimed the administration over the whole Western Sahara territory. Mauritania concluded a peace agreement with the Polisario in 1979 waiving her claim to the southern part of Western Sahara (Peace Treaties). In 1988 a settlement proposal was presented by UN Secretary-General Pérez de Cuellar and in 1991 the UN Security Council (‘UNSC’ ; United Nations, Security Council) adopted a resolution creating the United Nations Mission for the Referendum in Western Sahara (‘MINURSO’) (UNSC Res 690 [1991] [29 April 1991]). Since then the mission has tried to identify voters for the referendum. In 2003 James Baker, the personal envoy of the Secretary-General for Western Sahara, presented to the parties the peace plan for self-determination. While the Polisario and the UNSC (UNSC Res 1495 [2003] [31 July 2003]) supported the peace plan, Morocco rejected it.

19  In February 2007, a proposal for a solution based on autonomy was tabled by Morocco. It foresees that Moroccan sovereignty is respected while the Sahrawis are provided with authority in the legislative, executive, and judicial fields. The proposal was to be submitted to the UNSC.