Western Sahara

Advisory opinion of 16th October 1975 by the International Court of Justice.

Full information on the case can be found here: http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=69&case=61&code=sa&p3=0

Background:

  • The United Nations General Assembly requested the International Court of Justice (“the Court”) to give an advisory opinion on two questions concerning the attribution of territorial sovereignty over Western Sahara.
  • The submission of these two questions to the Court was authorised under United Nations General Assembly resolution 3292 adopted on the 13th December 1974.

Case:

  • The following two questions the Court were to give an advisory opinion of were:
  • 1. Was Western Sahara at the time of colonisation by Spain a territory belonging to no one?
  • 2. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

Judgment:

  • 1. The Court was unanimously of the opinion that Western Sahara at the time of colonisation by Spain was not a territory belonging to no one.
  • 2.(a) The Court by 14 votes to 2, was of the opinion that there were legal ties between this territory and the Kingdom of Morocco.
  • 2.(b) The Court by 15 votes to 1, was of the opinion that there were legal ties between this territory and the Mauritanian entity.

Further reading:

  • The information presented to the Court shows that during the time of Spanish colonisation, there were legal ties of allegiance between the Sultan of Morocco and some tribes living in Western Sahara.
  • Equally, information presented to the Court shows that there were some rights related to land that constitutes legal ties between the Mauritanian entity and Western Sahara.
  • However, the Court also concludes that with the information presented, there is no tie of territorial sovereignty between the Kingdom of Morocco or the Mauritanian entity and Western Sahara.
  • The Court further note that as there is no tie of territorial sovereignty there is no hindrance of application of the United Nations General Assembly resolution 1514 to the decolonisation of Western Sahara, in particular, the principle of self-determination through free and genuine expression of the will of the peoples of the territory.
  • Elaboration of Question 1: Was Western Sahara at the time of colonisation by Spain a territory belonging to no one?

"At the time of colonisation by Spain” the Court considers as the year 1884. A valid occupation of territory is one that is “belonging to no one” (terra nullius). Occupation means the peaceful acquisition of territorial sovereignty other than cession or succession. State practice of that time means territories inhabited by tribes or people with a social or political organisation is not regarded as terra nullius. The Court was of the opinion that at the time of colonisation, Western Sahara was inhibited by peoples organised in tribes with tribal leaders to represent them. This means it was not a territory terra nullius.

  • Elaboration of Question 2: What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

In regards to the relationship of Morocco and Western Sahara, the Court stated that the tribes in Western Sahara were of Islamic faith. Western Sahara was founded on a common religious bond of Islam with various tribes that pledged allegiance to the Sultan of Morocco, rather than the notion of territorial sovereignty by Morocco. Some areas of Western Sahara was known as Bled Makhzen (areas subject to the Sultan of Morocco), and some Bled Siba (areas in which tribes were not submissive to him). However the Court concluded to this question that internal or international acts by Morocco do not indicate international recognition of territorial sovereignty between Western Sahara and the Moroccan state.

In regards to the relationship between the Mauritanian entity and Western Sahara, the Court noted that at the time of colonisation by Spain there was no existence of any tie of sovereignty or allegiance of tribes between Western Sahara and the Islamic Republic of Mauritania. It does find however, a nomadic tribe in the Shinguitti country (Mauritania) did possess rights relating to the land through which they migrated (in Western Sahara). It is these rights which form the legal ties between the Mauritanian entity and Western Sahara, but it does not form territorial sovereignty.