International Court of Justice Advisory Opinion on Western Sahara

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The Western Sahara conflict

Western Sahara

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One of the main functions of the International Court of Justice is to provide Advisory Opinions - non-binding legal interpretations admitted by United Nations organs. In the summer of 1975, the court considered two questions regarding the disputed territory of Western Sahara (then Spanish Sahara).

Contents

[edit] Background

Leading up to the advisory opinion, Spain had largely decolonized its foreign holdings, including much of Spanish Morocco, but had retained the Spanish Sahara. On December 20, 1966, UN General Assembly Resolution 2229 called on Spain to hold a referendum on self-determination in the region. For the better part of the decade, the country dragged its feet on the issue, and announced on August 20, 1974, that it would be held in the first six months of 1975 and took a census of the region in order to assess the voting population.

Meanwhile, in Morocco, a nationalist movement had been opposing decolonization in the region (namely in Algeria and Mauritania) for 15 years, under the auspice of "reunifying" Greater Morocco. Consequently, the Moroccan position had been that it had rightful sovereignty over the region as its "Southern Provinces", demanding that it be given to Morocco in its entirety. In Mauritania, a smaller movement existed to overtake some amount of the territory, partitioning it with Morocco.

Algerian-Moroccan relations had been strained since Algeria's independence in 1962, culminating the so-called Sand war, and a lack of normalized relations. Throughout the prior decade, Algeria had inconsistently supported the right of self-determination of the native Sahrawi people, and represented their interests in international forums. Among the people of the territory, a militia/political party known as Polisario (Spanish: "Frente Popular de Liberación de Saguia el-Hamra y Río de Oro" English: "Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro") was formed in 1973 to expel the Spaniards. They engaged in several low-level acts of property destruction, mostly localized around the Fosbucraa conveyor belt, which exported the rich phosphates to the Atlantic Ocean.

On September 17, 1974, King Hassan II announced his intention to bring the issue to the ICJ. In December, Spain agreed to delay the referendum pending the opinion of the court. They gave their support to ICJ submission on the grounds that it be a non-binding, advisory opinion, rather than a "contentious issue", where the ruling would oblige the interested states to act in a particular manner.

On December 13, the United Nations General Assembly voted on submission, resulting in UN General Assembly Resolution 3292, affirming it and defining the wording of the questions to be submitted. Algeria was among the nations voting in favor, and several Third World nations abstained.

[edit] Submission

The Resolution stipulated that the dispute would be worded as such:

I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?

And, should the majority opinion be "no", the following would be addressed:

II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

In the meantime, Morocco and Mauritania jointly agreed to not contest the issue of partition or sovereignty. On January 16, 1975, Spain officially announced the suspension of the referendum plan, pending the opinion of the court. From May 12 through 19, a small investigative team made of citizens from Cuba, Iran, and Côte d'Ivoire was sent into the region to assess public support for independence. They also performed inquiries in Algeria, Mauritania, Morocco, and Spain.

In the summer, the questions were submitted by King Hassan II and Spain. Algeria, Mauritania, Morocco, and Spain were all given permission to present evidence at the hearings (the Polisario was locked out as only internationally-recognized states have a right to speak - Algeria largely represented the Sahrawis). Twenty-seven sessions were held in June and July before the Court called the proceedings final.

The arguments presented by Morocco and Mauritania were essentially similar: that either one had a sovereign right over the territory. In the case of Morocco, there was a sultanate established in the region and claimed the allegiance of a variety of tribes in surrounding territory. The modern Moroccan monarchy is derived from this sultanate. In the case of Mauritania, there was no clearly-defined state that existed at the time. Instead, Mauritania argued that a similar entity existed which they called "bilad Chinguetti". Spain argued against Moroccan sovereignty, citing the relationship that Spanish explorers and colonizers had established with the sultan, none of which ever recognized his authority over the region. Algeria also defended the position that the Sahrawis were a distinct people, and not under the subjection of Morocco or Mauritania.

[edit] The Opinion

On October 16 the Court published its opinion.

For the former question, the Court decided by a vote of 13 to three that the court could make a decision on the matter, and unanimously voted that the time of colonization (defined as November 28, 1884), the territory was not terra nullius (that is, the territory, did belong to someone).

For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the opinion, by 14 votes to two, that there were legal ties of allegiance between this territory and the Kingdom of Morocco. Furthermore, it was of opinion, by 15 votes to one, that there were legal ties between this territory and the "Mauritanian entity". However, the Court defined the nature of these legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied sovereignty or rightful ownership over the territory. These legal ties also did not apply to "self-determination through the free and genuine expression of the will of the peoples of the Territory."

[edit] Results

The opinion of the Court was largely disregarded by the interested parties. As the Spanish withdrew from their garrisons in the latter part of the year and early 1976, Morocco's army moved in to take their place. On November 16, Mauritania, Morocco, and Spain signed the Madrid Accords, a secret agreement that partitioned the territory between the African states, and gave Spain a stake in the valuable phosphate deposits.

Spain's last soldier departed the territory on February 26, 1976. The next day, the Saharawi Arab Democratic Republic was declared by Polisario representatives. Morocco intensified their military presence in the region, and by the end of the year, Mauritania and Morocco had partitioned the territory. Mauritania was too weak militarily and economically to compete against Polisario, though, and renounced their claims in 1978. Morocco immediately annexed that territory in addition. To this day, most of Western Sahara is controlled by Morocco, but its claim has not been internationally recognized. At the same time, 44 governments recognize the Sahrawi Republic as the legitimate government of Western Sahara.

[edit] See also

[edit] External links and Sources

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