WESTERN SAHARA CASE

Procedural considerations
− Spain's objections:
1. the advisory jurisdiction is being used to circumvent the principle that jurisdiction to settle a dispute requires the consent of parties
− ICJ: Spain is a member of the UN and has accepted its Charter and Statute; it has thereby in general given its consent to the exercise by the Court of its advisory jurisdiction. It has not
objected, anc could not, to the GA's exercise of its powers to deal with the colonization of a non-self-governing territory and to seek an opinion on questions relevant to the exercise of
its powers. Spain did not oppose the reference of the WS question to the Court's advisory jurisdiction; rather it objected to the restriction of that reference to the historical aspects of that
question.
− ICJ: the consent of states, parties to a dispute, is the basis of the court's jurisdiction in contentious cases. It is different in regard to advisroy proceedings even where the request for an
opinion relates to a legal question actually pending between states. The Court's reply is only of an advisory character; it has no binding force. No state, whether a member of the UN or
not, can prevent the gicing of an advisory opinion which the UN considers to be desirable to obtain enlightenment as to the course of action it should take. The Court's opinion is given
not to States, but to the organ which is entitled to request it. The reply of the Court, itself an organ of the UN, represents its participation in the activities of the organization and should
not be refused. However, lack of consent might constitute a ground for declining to give an opinion requested if, in the circumstances, considerations of judicial propriety should oblige
the Court to refuse to give an opinion.
− ICJ: in this case there's a legal controversy during the GA, '58, in that Spain stated that it possesses no non-self-governing territories, since their territories in Africa are their provinces.
Morocco claimed certain African territories at present under Spain as an integral part of its territory, while accepting the principle of self-determination (GA Resolution 1514). After it
became a member in '60, Mauritania claimed that the WS was part of its national territory, while also prepared to acquiesce to the will of the WS people. Thus, the request is located in a
broader frame of GAR 1514 and not confined to the settlement of a particular dispute, nor to the past but is alos directed to the present and future. The object of the request made
through GAR 3292, was for the GA to properly exercise its functions towards decolonization of WS. The origin and scope of the dispute between Spain and Morocco is not re: legal
status of WS today, but re: rights of Morocco over it at the time of colonization. The settlement of the dispute will not affect Spain's rights as AP of WS, but will assist GA in
decolonization.
2. the questions, as formulated, raise issues concerning the attribution of territorial sovereignty over WS.
- ICJ: questions do not relate to the territorial dispute between interested parties, because GAR 3292 recognizes Spain's current legal status as AP of WS
3. the Court does not possess the necessary information to pronounce judicially
- ICJ: though there's really no parties in an advisory proceeding required to furnish evidence to discharge any burden of proof, Mauritania, Morocco and Spain all furnished extensive
evidence, so did the Sec Gen submit a dossier concerning the discussion in the UN organs.
− The Court is competent to entertain the present request, by which the GA has referred to it questions embodying such concepts of law such as terra nullius and legal ties, regardless of the fact
that the GA has not requested the determination of existing rights and obligations. At the same time the opinion is sought for a practical and contemporary purpose, namely, in order that the
GA should be in a better position to decide at its next session on the policy to be followed for the decolonization of WS and to choose the process for decolonization as laid down in GAR
1514.
− by lending its assistance in the solution of a problem confronting the GA, the Court would discharge its functions as the principal judicial organ of the UN. Only “compelling reasons” should
lead it to refuse to give a requested advisory opinion.

The principle of self-determination

− a right of peoples, its application being for the purpose of bringing all colonial situations to a speedy end; GAR 1514 (Declartion of the Granting of Independence to Colonial Countries and
Peoples)
− its application requires a free and genuine expression of the will of the peoples concerned
− GAR 1514 provided the basis for the process of decolonization which resulted since 1960 in the creation of the many states which are UN members today. It contemplates for non-self-
governing territories more than one possibility, namely: (1) emergence as a sovereign independent state; (2) free association with an independent state; or (3) integration with an independent
state
− these methods should be the result of free and voluntary choice by the peoples of the territory, with full knowledge of the change in their status, through democratic and informed process,
impartially conducted and may be under UN supervision, when it deems necessary.
− But this is not affected by the fact that in some cases the GA dispensed with the requirement of consultation of the inhabitants based either on the consideration that a certain population did
not constitute a “people” entitled to self-determination or on the conviction that it was totally unnecessary under a special circumstances.
− Re: Western Sahara
− '66: in a Special Committee, Spain agreed with the decolonization of WS through a referendum, so did Morocco and Mauritania, in line with GAR 1514.
− series of GARs from '66-'73 with the UN reaffirming its responisibility to lead the free expression of wishes of the people, and Morocco and Mauritania sustaining their respective
claims alongside it
− GAR 3292: for Spain to postpone referendum, without prejudice to the right of the WS people to self-determination, and to request an advisory opinion of the ICJ.
 − Thus, the questions must be in the whole context of the decolonization process.

Questions submitted to the Court

1. Was Western Sahara (Rio de Oro and Sakiet el Hamra) at the time of the colonization by Spain a territory belonging to no one (terra nullius)? If in the negative,
2. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian Entity?

Temporal context
− Q1 relates to “the time of colonization of WS by Spain”, and by making Q2 conditional upon Q1, the time reference relates to Q2 as well
− not to establish a “critical date” as in territorial disputes, since the Court is not asked to adjudicate between conflicting legal titlesl it is concerned only to identify the historical context of the
questions
− the “time of colonization by Spain” is the period beginning 1884, when Spain proclaimed a protectorate over Rio de Oro, based upon earlier acts of alleged display of Spanish sovereignty
but only to enlighten the Court as to remote antecedents od Spanish presence.
− This does not mean that the information regarding its status at other times is wholly irrelevant; relevant only insofar as sheds light on the legal status and legal ties of WS at that period.

Question 1
− Considering the temporal context, the question must be interpreted by reference to the law in force at that period
− Terra nullius was a legal term of art employed in connection with “occupation” as one of the legal methods of acquiring sovereignty over a territory. Occupation being legally an original
means of peacably acquiring sovereignty over a territory otherwise than by cession or succession, it was a cardinal condition of a valid occupation that the territory should be terra
nullius—a territory belonging to no one—at the time of the act allege to constitute occupation.
− The state practice of the relavant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius. In the
case of such territories, the acquisition of sovereignty was not generally effected unilaterally through “occupation” by original title but through agreements concluded with local rulers.
Such agreements, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius.
− Western Sahara:
− At the time of colonization WS was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them.
− Also, in colonizing WS, Spain in its Royal Order proclaimed that the King was taking Rio de Oro under his protection on the basis of agreements with the chiefs of the local tribes in the
form of “deeds of adherence” to Spain.
− Likewise, in negotiating with France concerning the limits of Spanish territory to the north of the Rio de Oro (i.e., the Sakiet El Hamra), Spain did not rely upon any claim to the
acquisition of sovereignty over a terra nullius.

Question 2
− Legal ties is a term not having in itself a very precise meaning, but in the present case its meaning has to be found in the purpose of GAR 3292, which places the questions within the context
of decolonization pursuant to GAR 1514. During discussion, a legal controversy arose over the status of WS at the relevant period, concerning Morocco, on the one hand, claiming WS as
part of the Sherifian State, and Mauritania, on the other hand, claiming WS as part of the Bilad Shinguitti of the Mauritanian Entity. Thus the term legal ties refers to such as may affect the
policy to be followed in the decolonization of WS, framing the question as not merely limited to ties established with the territory but also with reference to the people found in it,
since legal ties are normally established in relation to people.
− Inasmuch as Q2 originated in the contentions between Morocco and Mauritania, it was for them to satisfy the Court that legal ties existed between WS and to Morocco or Mauritania.
− Western Sahara territory:
− part of the Great Sahara Desert
− low and spasmodic rainfall
− exploited by nomads, pasturing their animals or growing crops as and where conditions were favorable
− had a sparse population, consisted of nomadic tribes, which traversed thedesert on more or less regular routes dictated by the seasons and the wells or water-holes available
− right of pasture was enjoyed in common by the tribes
− perrenial water-holes were considered propert of the tribe which put them into commission, though their use was alos open to all, subject to certain customs as to priorities and the
amount of water taken
− have their recognized burial grounds
− inter-tribal conflict was not infrequent
− sparsity of resources ans spasmodic character of rainfall compelled these nomadic tribes to traverse very wide areas of the desert. As a result, none of them were confined to WS, some
passed to Morocco, Mauritania or Algeria.
 − All the tribes were of Islamic faith and the territory lay within the Dar Al-Islam.
− Authority in the tribe vested in the sheikh, subject to the assent of the Juma'a, an assembly of its leading members. And the tribe had its own customary law applicable in conjucntion
with the Koranic law.
− One tribe had ties with another, either of dependence or of alliance, which were essentially tribal rather than territorial, ties of allegiance or vassalage.
− In the context of such a territory and socio-political organization of the population that the Court has to examine the “legal ties” in question.
Morocco's claim to legal ties with WS
Grounds Arguments
th
1. Immemorial Arab conquest of North Africa in 7
possession century A.D. Shows not an isolated
act of occupation but on the public
display of sovereignty for centuries,
based on historical works
2. The special Founded on the common religious
structure of the bond of Islam and on the allegiance of
Sherifian state the various tribes to the Sultan,
through their caids or sheikhs, rather
than on the notion of territory
Consisted partly of the Bled Makhzen,
areas actually subject to the Sultan,
and the Bled Siba, areas in which de
facto the tribes were not submissive to
the Sultan.
- that the two expressions, merely
Bases/Proof
Legal Status of Eastern Greenland
Case
- that during a long period Morocco
was the only independent state which
existed in North-West Africa, and
- geographic contiguity of WS to
Morocco
Others say ICJ says
Greenland Case – a claim to sovereignty based
upon continued display of authority involves 2
elements each of which must be shown to exist:
the intention and the will to act as sovereignty
over areas in thinly populated or unsettled
countries might be sufficient in the absence of a
competing claim
In this case, WS, if somewhat sparsely
populated, was a territory across which socially
and politically organized tribes were in constant
movement and where armed incidents among
them were frequent.
There is paucity of evidence of actual display of
authority unambiguously relating to WS
Geographical unity is also debatable, which
militates against the concept of contiguity.
What must be decisive is not the indirect
inferences drawn from events in past history but
evidence directly relating to effective display of
authority in WS at time of colonization and the
the period immediately preceding it.
Common religious links do not signify a legal
tie of sovereignty or subordination to a ruler.
Even the Dar Al-Islamknew separate states
within the common religious bond.
Political ties to a ruler, on the other hand, is
frequently a major element in the composition
of a state. Such an allegiance must clearly be
real and manifested in acts evidencing
acceptance of his authority.
The Bled Siba
- wasn't administered by the Makhzen
- didn't contribute contingents to the Sherifian
Army
- no taxes collected by the Makhzen
- government was by the caids appointed by the
 described two types of relationship
between the Moroccan local
authorities and the central power, not
a territorial separation. Because of a
common cultural heritage, the
spiritual authority of the Sultan was
always accepted. The Bled Siba was
effecting an administrative
decentralization of authority.
3. Alleged acts of Allegiance to the Sultan shown by the Dahirs and other documents concerning
internal display of Saharan caids the appointment of caids
Moroccan
authority
Allegiance shown by the
confederation of Tekna tribes with its
allies, one part established in the
Noun and another nomadic in the
Sahara
After the Marabout Ma Ul-'Aineen
established himself at Smara in late
1890s, much of the territory came
under this sheikh
- that he himself was the personal
representative of the Sultan
Two visits of Sultan Hassan I to the
southern area of Sous in 1882 and
1886
4. International Series of Moroccan treaties with
acts showing Spain (1767), US (1836), Great
Imposition of Koranic and other taxes
“Military decisions” constitute acts of
resistance to foreign penetration
Art. 18, Treaty of Marrakesh (1767)
- that the Arabic text says that the
tribes, and their powers were derived more from
acquiescence of the tribes than from any
delegation of authority by the Sultan
- even if didn't totally reject connections with
the Sherifian state, in reality they're de facto
independent powers.
This implies there was no effective and
continuous display of state functions.
Spain: Taken as a whole, this doesn't convince that
- these don't relate to WS but to areas within these activities are considered as having
southern Morocco (Noun and Dra'a) constituted a display of the Sultan's authority.
- no document of acceptance by the However, it shows the display of some authority
receipients by the Sultan over some, but only some, of the
- appointments as caid were conferred on nomadic peoples in WS.
sheikhs already elected by theirown tribes and
were only titles of honor on existing and de
facto independent local rulers
Spain: characteristic even of the Bled Siba that
the tribes refused to be taxed
Spain: these were nothing more than
occasional raids to obtain booty or hostages
for ransom
Spain: the other nomadic part were “free”
Tekna
Spain: he exercised authority to the south of
Dra'a in complete independence of the Sultan;
his relations to the Sulan were based on
mutual respect and common interest in
resisting French expansion, based on equality,
not allegiance
Mauritania:
- the Regheibat were a tribe of Marabout
warriors wholly independent of both the Tekna
caids and the Sultan, and were rather linked
with the Bilad Shinguitti (the Mauritanian
Entity)
- Ma Ul-'Aineen was a Shinguitti personality
Spain: these didn't reach WS or even the
Dra'a, but only to the Souss and the Noun, and
their purpose was to prevent commerce
between the tribes of the Souss and the Noun
Spain: the Spanish text refers to establishing a Not reliable proof due to the Moroccan text
trading post in “the south of the River Noun” diverging materially from an authentic text of
recognition of the Britain (1956) and Spain (1861) re:
Sultan's rescue and safety of marienrs
sovereignty shipwrecked on the coast of Wad
Noun or its vicinity
Treaty with Great Britain (1895)
recognizing lands as part of Morocco
Diplomatic correspondence re:
implementation of Treaty of Tetuan
(1860) and agreement with Spain
(1900) re: cession of Ifni, showing
Spanish recognition of Moroccan
authority
Franco-German exchange of letters
(1911) understanding that Morocco
comprises all of French West Africa,
and the Spanish colony of Rio de Oro
Mauritania's claim to legal ties with WS
Mauritania: that geographically the Mauritanian Entity covered a vast region bounded by Timbuktu (east), the Atlantic (west), Senegal River (south), and Wad Skeit el Hamra (north), which in the
eyes of its own inhabitants and of the Arabo-Islamic communities, constituted a distinct community, called the Bilad Shinguitti (BS).
Arguments,
- that there are 2 types of political authority in the BS: (1)
the emirates and (2) the tribal groups, and that both types
were independent of the Sultan of Morocco, as each was
autonomously administered by its ruler, whose
appointment and acts were subject to the assembly of
Sultan was recognized to take decisions and no further
with respect to inhabitants of “Wad
Noun and beyond”
Hispano-Moroccan Treaty of
Commerce and Navigation (1861)
- that these recognize Moroccan
authorities through governors under the
Sultan
- that Art. 38 says the Spanish
authorities received permission from
the Sultan to enquire into the fate of
shipwrecked mariners, proven by
Spanish diplomatic documents re:
recovery of 9 sailors of Esmeralda, who
were captured while fishing by the
Moors of the frontier coast
The Anglo-Moroccan Agreement re:
Sultan's purchase of the trading station
at Cape Juby from NorthWest African
Company
- that if Morocco bought it, no one will
have any claims to the lands because
they belong to Morocco
- that the Sultan agreed to concede to
Spain the territory sufficient for the
construction of a fisheries establishment proof shown
- that the Spanish Ambassador in
Brussels wrote to the Belgian foreign
minister referring to instructions to the
Spanish rep, which resulted in a
Protocol
- that Germany would not interfere in
agreements between France and Spain
re: Morocco, which comprises the area
between Algeria, French West Africa,
and Spanish colony of Rio de Oro
Bases/Proof
Recognition by France and Spain, which in
1934, concluded and administrative
agreement to prevent any obstacles to the
nomadic existence of the tribes
Spain:
- 2 systems of rescue and protection: (1)
general system, Sultan exercises authority to
afford protection; (2) special regime for the
Wad Noun, where if a vessel is shipwrecked
there or beyond, the Sultan doesn't “order” or
“protect”, but rather would use his influence
and negotiate the ransoming with local
authorities.
- it was the intervention of the Beyrouk
family, the sheikhs of the Wad Noun, that
liberated thet captives and negotiated directly
with Spanish Consuls.
Great Britain:
- that Cape Juby was outside Morocco, which
did not extend beyond the Dra'a
- it shows only acceptance not of the Sultan's
sovereignty but of his interest in that area
Spain:
- no such Protocol was concluded; no material
Spain: Art. 6 of Franco-Spanish Convention
(1904)
- that French recognizes Spanish sovereignty
over the area, which is actually recognized as
outside Morocco
Others say
Spain:
- BS =/= Mauritanian Entity; BS = area of an
Islamic culture, a cultural and religious center
which had a certain influence up to 16th century
- the idea of an entity must express not only a
the same treaty in the langauge of the other
state.
The diplomatic documents show Spain's
recognition of the applicability of the Treaty,
but doesn't warrant the conclusion that it
recognizes the Sultan's sovereignty. Rather, it
confirms his exercise of personal authority or
influence through some tribes of the Tekna
caids of Wad Noun.
The various international agreements are of
limited value for it was not their purpose either
to recognize an existing sovereignty over a
territory or to deny its existence. Their purpose
was rather to recognize or reserve for one or
both parties a “sphere of influence” at that time.
ICJ says
Reparation for Injuries Suffered in the
Service of the United Nations:
- a criterion has to be employed to
determine whether or not what
confronts the law is or is not legally
Juma'a belonging but also the idea the the components are
- that the BS was an entity united by historical, religious, homogeneous. The Mauritanian Entity, however, is
linguistic, social, cultural and legal ties formed of heterogeneous components, some being
- that the concepts of “nation” and of “people” most mere tribes and others being complex emirates.
appropriately expalin the status of BS at the time of Also, the Emirate of the Adrar, particularly, has
colonization grave internal troubles and is being harassed by
neighboring emirates, effectively being in a state of
anarchy.
- no proof of ties of allegiance between the
Mauritanian tribes and those of WS, which lived
independently of other Saharan tribes
- re: agreements concluded by the independent
Saharan tribes with Spanish and French
explorersrun counter to the thesis that there was a
“Mauritanian Entity” in which the WS tribes were
integrated
- the Islamic Republic could not be regarded as the
direct successor to the alleged historical
Mauritanian Entity, for the notion of Mauritania was
born in 1904 when the WS was already said to have
had an existence established in fact and law.
an “entity”, the criterion was to
enquire whether thr entity involved
was in “such a position that it
possesses, in regard to its members,
rights which it is entitled to ask them
to respect”
There were many ties of a racial,
linguistic, religious, cultural and
economic nature between the various
tribes and emirates in the Saharan
regioun. However, there is that
independence of the tribes and
emirates in relation to one another
and, despite some forms of common
activity, the absence among them of
any common institutions or organs.
Therefore, the BS did not have the
character of a personality or corporate
entity distinct from the several
emirates and tribes. Thus, no legal ties
exist between the Mauritanian Entity
and the WS.

Both Morocco and Mauritania stress the overlapping character of the respective legal ties which they claim to have with WS. Both say that there is a north appertaining to Morocco and a south
appertaining to Mauritaniaand that there are some overlappings as a result of the intersection of the nomadic routes from the north and from the south, leaving “no geographical void”—no “no-man's
land” between their respective ties with WS.

ICJ:
Q2 doesn't envisage any territotrial delimitation by the Court. The overlapping simply arose from the geographical locations of the migration routes of the nomadic tribes. This complexity was
increased by the independence of some nomads, notably the Reighebat, a prominent warrior tribe in WS. Therefore, the significance of the overlapping is not that it indicates a “north” or a “south”
without “no-man's land”. It signifies rather that it indicates the difficulty of disentangling the various relationships existing in WS at the time.
GA, in asking Q2, enquires as to the nature of the legal ties. The materials show the existence of legal ties of allegiance between the Sultan of Morocco and some tribes in WS. They also show the
existence of rights relating to land, which constituted legal ties with Mauritania. On the other hand, they don't establish any tie of territorial sovereignty between WS and Morocco or Mauritania. Thus,
the Court has not found legal ties of such a nature as might affect the application of GA Resolution 1514 in the decolonization of WS, and in particular, of the principle of self-determination.