WESTERN SAHARA CASE

I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of the
Colonization of Spain a territory belonging to no one? (terra nullius)
II. If the answer to the first question is in the negative, what were the legal ties
between this territory and the Kingdom of Morocco and the Mauritanian entity?

ART 65 – The court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the UN to make
such request
-merely permissive and discretionary
-the consent of states, parties to a dispute, is the basis of the court’s jurisdiction in
contentious cases. The situation is different in regard to advisory proceedings where a
request for an opinion relates to a legal question actually pending between states. The
court’s reply is only of an advisory character as such, it has no binding force.
-the object of a request for an opinion is to guide the UN in respect to its own action.

LEGAL QUESTION – must not be of historical character but must concern or affect existing
rights and obligations

The legal controversy which thus arose in regard to Western Sahara remained in a latent
state, a period in which Morocco, accepted the application of principle of self-
determination.

Spain released a statement with reference to Western Sahara, where it stated that the
historic presence of Spanish Citizens on the west coast of Africa, not subject to any
sovereignty of any country, goes back a very long way and has been confirmed by
international law. The rulers of Morocco have recognized that their sovereignty does not
extend to the coasts of the present Spanish province of Sahara. The legal controversy arose
when Morocco presented to Spain its legal claim against such statement.

After it became a member in 1960, Mauritania put forward in the UN the claim that
Western Sahara was a part of its national territory. It was however prepared to acquiesce in
the will of the population and did not confront Spain with a direct legal claim parallel to that
of Morocco.

The lack of consent by Spain is not material; the issue between Morocco and Spain is not
one as to the legal status of the territory but one as to the rights of Morocco over it at the
time of colonization. The settlement of the issue will not affect the rights of Spain today as
administering power, but will assist the GA in deciding on the policy to be followed in order
to accelerate the decolonization process in the future. IT FOLLOWS THAT THE LEGAL
POSITION OF THE STATE WHICH HAS REFUSED ITS CONSENT TO PRESENT PROCEEDINGS IS
NOT IN ANY WAY COMPROMISED BY THE ANSWERS THAT THE COURT MAY GIVE TO THE
QUESTIONS PUT TO IT. The parties do not dispute Spain’s administering power over the
territory, and does not find that the request for an opinion does not call for adjudication
upon existing territorial rights or sovereignty over territory.

Spain considers that the UN has already affirmed the nature of the decolonization process
applicable to Western Sahara in accordance with the GA resolution. The method of
decolonization should be done as a consultation of the indigenous population by means of
referendum to be conducted by the administering Power under the UN auspices.

Morocco points out that decolonization may come about through the reintegration of a
province with the mother country from which it was detached in the process of
colonization.

Mauritania maintains that the principle of self-determination cannot be dissociated from

that of respect for national unity and territorial integrity. The GA should examine each
question in the context of the situations to be regulated. It asserts that territorial integrity
should be given priority, particularly in situations where the territory had been created by a
colonizing power to the detriment of a state or country to which the territory belonged.

Algeria states that the self-determination is the fundamental principle governing

decolonization. The General Assembly recognized the right of the people of Western Sahara
to exercise free and genuine self-determination.

The Charter of the UN provides for the rules relevant for non-self-governing territories. The
principle of self-determination is the right of the people and its application for the purpose
of bringing all colonial situations to a speedy end. The GA proclaimed the necessity of
bringing to a speedy and unconditional end colonialism in all its forms and manifestations.

The UN charter enunciated that immediate steps shall be taken, in Trust and Non-Self-
Governing Territories and all other territories which have not yet attained independence, to
transfer all powers to the people of the territory without any condition or reservations..

GA resolution 1514 provided for the basis for the process of decolonization which has
resulted in the creation of many states which are today, members of the UN. Another
resolution made possible for non-self-governing territories more than one possibility,
namely:

a. Emergence as a sovereign independent state;

b. Free association with an independent state;
c. Integration with an independent state – should be the result of the freely expressed
wishes of the territory’s peoples acting with full knowledge of the change in their status,
their wishes having been expressed through informed and democratic processes,
impartially conducted and based on universal suffrage.
 But the principle of self-determination is not affected by the fact that in the past, the GA
has dispensed with the requirement of consulting inhabitants of a given territory, such
as when the certain population did not constitute a “people” entitled to self-
determination or that consultation was no longer necessary.

Spain already expressed itself to decolonize Western Sahara through the exercise by the
population of their right to self-determination. This was supported by Mauritanina and
Morocco. However, another resolution by the GA was issued to postpone the holding of
referendum in Western Sahara, without prejudice to the right of the people in Western
Sahara to self-determination.

The issue to be ascertained is that whether the right of self-determination of Western

Sahara renders without object the two specific questions put in this issue. An advisory
opinion of the court on the legal status of the territory at the time of the Spanish
colonization and on the nature of any ties then existing with Morocco and Mauritanina
may assist the GA in its future decisions. It will furnish the GA with the elements of a
legal character relevant to its further treatment of the decolonization of Western
Sahara.

The court is concerned only to identify the period of the historical context in which the
request places the request. The “time of the colonization of Spain” may be considered as
the period beginning in 1884, when Spain proclaimed a protectorate over Rio de Oro. As to
the first issue, to determine of Western Sahara is a terra nullius, the law in force at the time
should be referred to. The expression was a legal term employed with occupation – an
original means of peaceably acquiring sovereignty over territory otherwise by cession or
succession. However, for an occupation to be valid, the territory should be terra nullius.
With this, a determination that Western Sahara is a terra nullius would be possible if it was
established that it belonged to no one, and that it was open to acquisition through the legal
process of occupation.

The state practice of the relevant period indicates that the territories inhabited by the tribes
or people having a social and political organization were not regarded as terrae nullius. With
such, occupation is not possible – acquisition is only possible through agreements
concluded with local rulers, and only derivative roots of title.

At the time of colonization of WS, the place was inhabited by people which were socially
and politically organized, with chiefs competent to represent them. Moreover, Spain
proclaimed that it took over the area on the basis of agreements entered into with the
chiefs of the local tribes. Thus, WS was not a terra nullius at the time of colonization.

With regard to question II:

Morocco claimed that WS is part of the Sherifian State, and the Mauritania claimed that the
territory formed part of the Bilad Shinguitti.
WS (Rio de Oro and Sakiet El Hamra) is a territory which at time of colonization, largely
determined their own way of life and social and political organization of the people organizing
it. At the time of the colonization, the territory, which forms part of the Great Sahara desert, is
exploited by nomads because of its low and spasmodic rainfall. They pastured animals and grew
crops. This was occupied by nomadic tribes, with the rights to pasture commonly enjoyed by
them. As to cultivation, water holes put by separate tribes are considered their property. They
also exercised their burial practices.

Because of the sparse rainfall, some tribes were not confined to the area alone. Some passed
through southern Morocco, or present-day Mauritania or Algeria.

Morocco’s claim of legal ties pertains as claim to ties of sovereignty on the ground of an alleged
immemorial possession of the territory. It was not based on isolated acts of occupation, but on
the pubic display of sovereignty which was uninterrupted and uncontested. It also pointed to
the geographical contiguity of Western Sahara to Morocco and the desert character of the
territory. Moreover, Morocco invoked acts of internal display of Moroccan authority and also
certain international acts said to constitute recognition by other states of its sovereignty over
the whole or part of the territory.

The court held that two elements have to exist:

a. Intention and will to act as sovereign;
b. Actual exercise or display of authority
The presence of organized tribes in WS makes the claim of Morocco difficult; nor is the
introduction of geographical unity of WS with Morocco. But what must determine such are
those relating to the effective display of authority in Western Sahara at time of colonization by
Spain and in the period immediately preceding that time. Morocco requests that the Court
should take account of the special structure of the Sherifian state. Where the sovereignty over
territory is claimed, the particular structure of a state may be a relevant element in
appreciating the reality or otherwise of a display of state activity adduced as evidence of that
sovereignty.

Sherifian state contained a special characteristic - it was founded on the common bond of
Islam through the people and allegiance of various tribes with the sultan, rather than on the
notion of territory. Political ties of allegiance to a ruler, have frequently formed a major
element in the composition of a state. It is required that the ruler’s sovereignty must be real
and manifested in acts evidencing acceptance of his authority.

At the time, the Moroccan state was divided into two, which however, was do not pertain to
territorial separation but rather on the relationship between Moroccan local authorities and
the central power:
a. Bled Makhzen – areas subject to sultan;
b. Bled siba – de facto tribes not submissive to the sultan; North WS lay within here
As to the internal display of authority, Morocco invoked evidences to show allegiance of
Saharan caids to the Sultan, imposition of Koran and taxes, and military operations to constitute
resistance to foreign penetration of the territory. Spain countered this, as the alleged acts do
not pertain to WS by only southern Morocco. The allegiance of the caids were not political ties
but relations of equality as they were resisting French expansion. Furthermore, evidence of
taxes were also absent.

Mauritania, on the other hand, does not oppose Morocco’s claim. However, it does not admit
of the allegiance of other tribes in WS to the Sultan as it considers them to beling in Bilad
Shinguitti or Mauritanian Entity. Ma ul Aineen was a Shinguitti personality who formed
allegiance with the tribes of the ME.

The court disputed the evidence adduced by Morocco. The activities of the sheikh cannot
answer to those of the whole WS in relation to the Sultan. In conclusion, the evidence provides
indicatin that a legal tie of allegiance had existed at the relevant period between Sultan and
some of the nomadic peoples of the territory.

As to the international acts, Morocco alleges that they executed treaties with UK, US and Spain
regarding the territory. The first treaty pertains to a project of the Canary Islanders setting up a
trading and fishing post on the coast of Wad Noun, and the disclaim of the Sultan on the
treatment of the Arabs. However, the court doubts the treaty provision as it was lifted from the
Arabic text. Thus, there is a conflict between the phrases “Wad Noun and beyond” and “to the
south or River Noun” Morocco is on the firm stance that the treaty obligation mandating them
to return ships of foreign origin to its state of origin, is a manifestation of their sovereignty over
the Cape Noun. Spain disputes this as such should not be considered as order or protection but
only to liberate shipwrecked persons.

Morocco states that “to the south of Wad Noun” or “Wad Noun and beyond” are apt to
comprise Western Sahara. But the court held that Spain’s request to the Sultan is only to be
regarded as applying the treaty provision, but not to recognize the territorial sovereignty of the
Sultan over WS. The power to liberate only means the exercise of personal influence to
negotiate with neighboring tribes to free the captives in Wad Noun. The recognition of
influence is different from implied international recognition by the other state to recognize
Morocco’s territorial sovereignty.

The second treaty pertains to the Anglo-Moroccan agreement, where UK recognized the
Moroccan territory reaches as far south as Cape Bojador. It was brought about by the purchase
of Morocco of trading stations, which cannot be given without the consent of UK. However, it
was shown that UK viewed Cape Juby as outside Moroccan territory. It was not a recognition of
Moroccan sovereignty, but rather of the Sultan’s interest.

Lastly, as to the exchange of letters between France and Germany, which Morocco alleges as
comprising the part of Rio De Oro. The court concluded that the purpose of these treaties was
not to recognize their sovereignty over a territory, but to recognize or to reserve a sphere of
influence. It was granting freedom of action in defined areas and promised non-interference by
the other parties. They were contractual in character.

With regard to Mauritania:

The proposition of Mauritania admits that the Mauritanian entity at the time of colonization did
not constitute a state, and that the statehood of Mauritania is not retroactive. It claims that:

a. Geographically, the entity covered a vast region that in the eyes of its own inhabitants,
the region constituted a distinct entity.
b. The entity was the Bilad Shinguitti which was organized socially, culturally and
politically. They were the emirates and the tribal groups. Mauritania maintains that at
the time of colonization, one of the four major emirates was the major attraction for the
people of Sahara, and that the Emir of such emirate was responsible for the conclusion
of treaties between Spain and the chiefs of the tribes.
c. It also mentions a number of tribal groups which existed in Western Sahara at time of its
colonization. They maintained that the four emirates and the tribes were autonomous
and independent, and that they did not have any allegiance with the Sultan of Morocco.
d. They also alleged that the Bilad Shinguitti was a community of its own and that it was
endowed with international identity. This was shown when they resisted French
penetration.
e. The tribes on migration traversed through the territories of the present day Mauritania
and WS. Such burial grounds in Rio de Oro for example, belonged to Mauritanian tribes,
while some palm oases were the properties of tribes in WS.
f. At the time of colonization, some parts of the territory under Spanish administration
belonged to the Mauritanian entity. It was a simple one of inclusion. They were
previously united under one entity having a common religion, practice, etc.

Spain disputes this as to the ground that each component must be heterogenous. The emir
was undergoing internal troubles. They also maintained that there was no allegiance
formed between the tribes of WS and the emirate. The WS cannot be also said to be a
successor of the ME as Mauritania was born in 194 at the time when WS already had an
existence of its own.

The court recognized that at the time of the Spanish Colonization, there existed many ties of
racial, linguistic, religious and cultural nature between various tribes and emirates who
dwelt in the Saharan region which today comprise of WS and Mauritania. However, such is
not enough to constitute a separate entity distinct from the several emirates and tribes
which compose it. Therefore, Bilad Shinguitti having been an ME enjoying sovereignty over
WS cannot be sustained. The court concluded that at the time of colonization, there did not
exist any tie of sovereignty between WS and ME. This does not however mean that
Mauritania had no legal ties at all with WS. The “legal ties” do not pertain exclusively to
territorial sovereignty, rather, it also comprises other ties of legal character.
The nomadism of the great majority of the people of WS at the time of its colonization gave
rise to certain legal ties between the tribes of WS and the neighboring region of Bilad
Shinguitti. The migration routes formed a substantial part of the present day Mauritania.
The ME, although did not exist as a legal entity, had relevant possessed rights, including the
rights relating to the lands through which they migrated. These rights constituted legal ties
between WS and ME.

As to the overlapping character of claims of Morocco and Mauritania:

Morocco asserts sovereignty but does not deny legal ties of another nature, such as those
by Mauritania. Also, both claims were based on the exercise of nomadic tribes over
overlapping geographical areas where they migrated.

After the consideration of the evidences on record, the court concluded that there were
overlapping legal ties between Morocco and Mauritania. This overlap merely pertains to the
geographical locations of the migration routes of the nomadic tribes.