[SOVEREIGNTY AND EQUALITY OF STATES; TERRITORIAL SOVEREIGNTY]
01 WESTERN SAHARA
October 16, 1975 | Advisory Opinion
Petitioner/s:
Respondent/s:
Doctrine: Occupation being legally an original means of peaceably acquiring
sovereignty over territory otherwise than by cession or succession, it was a cardinal
condition of a valid occupation that the territory should be terra nullius. There might
not be a central government, but there were agreements with local rulers, thus it was
clearly not terra nullius.
Factual Background
Re: Question I (on whether Western Sahara was terra nullius at the time of Spanish
Colonization)
 At the time of colonization, Western Sahara was inhabited by peoples which, if
nomadic, were socially and politically organized in tribes and under chiefs
competent to represent them.
 In colonizing Western Sahara, Spain did not proceed on the basis that it was
establishing sovereignty over terrae nullius.
o In its Royal Order of December 26, 1884, Spain proclaimed that the
King was taking the Rio de Oro under the protection on the basis of
agreements which were entered into with the chiefs of local tribes.
o Such Order referred expressly to the documents which the independent
tribes of this part of the coast" had "signed with the representative of the
Sociedad Espafiola de Africanistas", and announced that the King had
confirmed "the deeds of adherence" to Spain.
 In negotiating with France concerning the limits of Spanish territory to the north of
the Rio de Oro, in the Sakiet El Hamra area, Spain did not rely upon any claim to
the acquisition of sovereignty over a terra nullius.
Re: Question II (legal ties between this territory, Morocco, and Mauritianian entity)
 Western Sahara (Rio de oro and Sakiet el Hamra) is a territory having very
special characteristics which at the time of Spanish colonization, largely
determined the way of life and social and political organization of the peoples
inhabiting it.
 It forms part of the great Sahara desert which extends from the Atlantic coast of
Africa to Egypt and the Sudan.
 At the time of Spanish colonization, its area which the Court is concerned was
being exploited, because of its low and spasmodic rainfall, almost exclusively by
nomads, pasturing their animals or growing crops as and where conditions were
favourable.
 It may be said that the territory, at the time of its colonization, had a sparse
population that consisted of nomadic tribes the members of which traversed the
desert on more or less regular routes dictated by the seasons and the wells or
water-holes available to them.
 The right of pasture was enjoyed in common by these tribes.
o Some areas suitable for cultivation were subject to a greater degree to
separate rights.
o Perennial water-holes were in principle considered the property of the
tribe which put them into commission, though their use also was open to
all, subject to certain customs as to priorities and the amount of water
taken.
 Many tribes were said to have their recognized burial grounds, which constituted
a rallying point for themselves and for allied tribes.
 Inter-tribal conflict was not infrequent.
 The sparsity of the resources and the spasmodic character of the rainfall
compelled all those nomadic tribes to traverse wide areas of the desert.
o In consequence, the nomadic routes of none of them were confined to
Western Sahara; some passed also through areas of southern Morocco,
or of present-day Mauritania or Algeria, and some even through further
countries.
 All the tribes were of the Islamic faith and the whole territory lay within the Dar al-
Islam.
o In general, authority in the tribe was vested in a sheikh, subject to the
assent of the "Juma'a", that is, of an assembly of its leading members,
and the tribe had its own customary law applicable in conjunction with
the Koranic law.
 Not infrequently one tribe had ties with another, either of dependence or of
alliance, which were essentially tribal rather than territorial, ties of allegiance or
vassalage.
Arguments / Ruling
W/N Western Sahara was a territory belonging to no one (terra nullius) at the time
of Spanish colonization - NO
 The ‘time of colonization’ is deemed to be 1884, when Spain proclaimed by
Royal Decree, protectorate over Rio de Oro (Western Sahara)
 ‘Terra Nullius’ is a legal term of art connected with ‘occupation’, which is an
original means of peaceably acquiring territory i.e., establishing sovereignty
over land that did not belong to anyone.
 A determination that Western Sahara was terra nullius during the time of
colonization is possible if it is established that it belonged to no one at that
time, and was susceptible to occupation.
 State practice shows that territory occupied by tribes are not terra nullius
o The acquisition of such territory is not done through unilateral
occupation, but through agreements with local leaders.
o These agreements are a derivative means of acquiring title, and
may be considered a form of cession.
 In 1884, Western Sahara was inhabited by nomadic tribes who are socially
and politically organized under chiefs. Thus, it is not terra nullius.
 Spain’s colonization was not on the basis establishing sovereignty over
terra nullius, but through agreements with the local chiefs.
o Royal Order of Dec 26 1884 proclaimed Rio de Oro as a protectorate
of Spain, in accordance with the agreements with the local leaders.
o Colonization was not done through occupation since the land was not
terra nullius. The term “occupation” which appeared in historical
records was used in an informal sense, and not to refer to the legal
 means of establishing title. the appointment of local tribes. No
o In its negotiations with France, Spain did not rely upon any claim to caids (Muslim Local evidence of tax
acquisition of sovereignty over terra nullius. Administrator) and payments made by
 Based on the foregoing, Western Sahara was not terra nullius at the time of imposition of taxes the tribes.
Spanish colonization. over Western  Ma úl-Aineen is not
Sahara. the Sultan’s
 In 1890, much of the representative. He is
territory was under an independent ruler
W/N the legal ties between this territory and the Kingdom of Morocco and the direct control of Ma who dealt with the
Mauritanian entity is sovereignty – NO úl-Aineen, who is a Sultan as an equal.
personal The sultan’s dispatch
Argument of Morocco: Morocco had immemorial possession of the territory and representative of the of troops to him only
exercised public display of sovereignty that is uncontested and uninterrupted for Sultan. shows their common
years.  The Tekna interest in resisting
 The nature of the Moroccan State was that it was not based on notions of Confederation, which French invaders.
territory, but on the common religious bond of Islam among the various tribes. consist in tribes  The nomadic tribes
The exercise of sovereignty is shown by the allegiance of the various tribes to established in of the Tekna
the Sultan. During this time, the State consisted of 2 kinds of areas: Morocco and confederation are not
o Bled Makhzen, areas directly under control of the Sultan. nomadic tribes in aligned with
o Bled Siba, areas that are not completely submissive to the Sultan. West Sahara owe Morocco.
 Morocco and West Sahara are geographically united. Morocco’s claim over allegiance to the  The Sultan’s
West Sahara is analogous to Denmark’s claim over Greenland in the case of Sultan. Hence, expeditions never
Eastern Greenland. Morocco exercises reached West
sovereignty over Sahara.
ICJ: Bled Siba are de facto independent powers and Morocco did not exercise West Sahara through
sovereignty over them. Most of Western Sahara is part of the Bled Siba. the nomadic Tekna
 Bled Siba are not directly administered by the Sultan. They do not pay taxes or tribes.
contribute to the Moroccan Army.  The Sultan led two
 Local officials are elected by the tribes themselves. Power is derived from expeditions to
acquiescence of the tribes, not through delegation of the Sultan. Western Sahara to
strengthen his
authority, and
ICJ: Morocco’s claim is not on all fours with Denmark’s claim.
dispatched arms to
 Eastern Greenland enumerated 2 elements of continuous display of authority:
reinforce the area
intention to act as sovereign, and actual exercise of sovereign rights.
against intruders.
 In thinly populated countries such as Greenland, very little actual exercise is
sufficient.
ICJ: The acts of internal display of authority claimed by Morocco relate only to areas
 However, this is not the case in sparsely populated areas whose people are within present day Morocco and do not extend to Western Sahara.
organized in tribes and frequently war with each other such as Western
 No documentary evidence of levying taxes.
Sahara.
 Since there is doubt on the exact nature of the relationship between Ma úl-
 No evidence of actual exercise of sovereignty.
Aineen and the Sultan, his activities should not be concluded as a display of
the Sultan’s authority over West Sahara.
 No evidence that the Sultan’s expeditions reached West Sahara.
Argument of Morocco: Argument of Spain: Argument of Mauritania:
 The dispatch of arms to Ma úl-Aineen is open to numerous interpretations and
Morocco performed  Alleged appointment  Ma úl-Aineen is is not conclusive of display of authority.
internal displays of of caids are honorary actually a member of
authority over Western in nature since they the Mauritanian
Sahara were conferred on Entity.
Argument of Morocco: Treaties entered by Morocco show that the international
 Presented shieks which where
community recognizes its sovereignty over West Sahara:
documents showing pre-elected by the
 Treaties concluded between Spain, Great Britain, and US which dealt with the
 the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.
rescue of stranded seamen on the coast of the Noun River or its vicinity.
Thus the Court has not found legal ties of such a nature as might affect the
 Certain bilateral treaties with the European powers which are said to have
recognized that Morocco’s sovereignty extended as far south to the boundary application of resolution 1514(XV) in the decolonization of Western Sahara and, in
of Rio de Oro (West Sahara). particular, of the principle of self-determination through the free and genuine
expression of the will of the peoples of the Territory (cf. paragraphs 54-59 above).
ICJ: These treaties are mere evidence of allegiance or personal influence over
some nomadic tribes in the area rather than a recognition of the Sultan’s
sovereignty.
 There are no ties of territorial sovereignty between West Sahara and Morocco.
However, there are indications that there was allegiance between the Sultan
and some of the nomadic tribes of the territory. This shows that the Sultan
displayed some influence within the area through those nomadic tribes.

W/N there is territorial sovereignty between West Sahara and Mauritania – NO,
only some allegiance between its tribes

Argument of Mauritania: Part of the Western Sahara was controlled by the Bilad
Shinguitti or the so-called Mauritanian Entity, a collection of tribes and emirates
that share a common allegiance.

ICJ: The State of Mauritania did not exist at the time of Spanish Colonization.
 The Mauritanian Entity is not a State. It 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’.

Dispositive
For these reasons, the Court decides, with regard to Question 1, by 13 votes to 3, and
with regard to Question II, by 14 votes to 2, to comply with the request for an advisory
opinion; with regard to Question 1, unanimously, that Western Sahara (Rio de Oro
and Sakiet El Hamra) at the time of colonization by Spain was not a territory
belonging to no-one (terra nullius); with regard to Question II, by 14 votes to 2, that
there were legal ties between this territory and the Kingdom of Morocco of the kinds
indicated in paragraph 162 of this Opinion; by 15 votes to 1, that there were legal ties
between this territory and the Mauritanian entity of the kinds indicated in paragraph
162 of this Opinion.

Notes
Paragraph 162:
The materials and information presented to the Court show the existence, at the time
of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and
some of the tribes living in the territory of Western Sahara. They equally show the
existence of rights, including some rights relating to the land, which constituted legal
ties between the Mauritanian entity, as understood by the Court, and the territory of
Western Sahara. On the other hand, the Court's conclusion is that the materials and
information presented to it do not establish any tie of territorial sovereignty between