CHAPTER III DECOLONIZATION OF WESTERN SAHARA:

THE LEGAL DIMENSION

CHAPTER ill

DECOLOJ\TIZA TION OF 'WESTERN SAHARA : THE LEGAL DL\'IENSION

The question of Western Sahara encompasses within its ambit a number of issues

and concepts relating to international law. UN practices and the evolving norms in

international law. At the ideal level it is easy to define and explain the various concepts.

but at the practical level these issues get entangled with intense lobbying effort by the

concerned states. various vested interest groups, level of propped-up nationalism by the

political leaders and above all by political and strategic concerns of the parties involved.

Since the time when the Western Sahara issue has come before the United Nations. it

has been treated as a problem relating to 'decolonization'. But the word decolonization

connotes two legal principles-self determination and Uti possidetis-in its operation. Both

the terms must be understood in all their manifestations before applying them to examine

the question of Western Sahara.

SELF-DETERMINATION

The self-determination is essentially a right of cohesive national groups (peoples)

to choose for themselves a form of political organization and their relation to other

groups. The choice may be independence as a state, association with other groups in a

federal state or autonomy or assimilation in a unitary state. The language from which

the world ·self-determination' was borrowed was German term Selbstbestinmungrecht.

The development of the concept of self-determination must be seen in the back drop of

history of sovereignty of the state and the people. In Europe. during the Middle Ages

the idea of state and kingship was prevalent which was essentially feudal in nature. The

54

sixteenth and seventeenth centuries witnessed the growth of absolutism. The ruler was

the bearer and agent of the state having a legal capacity. The ruler could cede territory

which had appearance of sale of land by private owner. The nineteenth century

witnessed some contradictory developments in which the ·principle of self-determination·

became increasingly important. European powers made use of the concept of res nul-

lius. 1 As early as 1802. Thomas Jefferson unequivocally stated that ·every man and

every group of people on earth have the right to self-government-a right which people

in their existence receive from the hands of nature·. The revolutionary potential of self-

determination encompasses the early and mid-nineteenth century liberalism.nationalism

and its proposition as to freedom and democracy. the right of individuals and freedom. 2

But the second half of the nineteenth century compromised the rule between liberal

society and a state steeped in absolutist traditions. Only the 'Christian' people of the

Balkans were supported in their struggle against the Ottoman Empire. 3 Th~ major

change came with the First World War when the Czarist empire and the Austro-

Hungarian monarch collapsed and a large number of new states arose from the ashes of

the old order.

As the ideal of the right of self-determination is linked to the sovereignty of the

people. the subject of self-determination has three aspects-

3

Ian Brownlie Principles of Public International Law (3rd Edn.) (Oxford. 1979). p. 131.

Rupert Emerson From Empire to Nation (Cambridge. Massachusetts. 1962) p. 295

Stefan Oeter. "The Right to self-determination in Transition" in Law and State (Vol. 49/50. 1994): p.l50.

55

(1) The principle informs and complements other general principles of international

law viz. of state sovereignty. the equality of states and the equality of peoples within a

state. Thus self-determination is employed in conjunction with the principle of non­

intervention in relation to the use of force and otherwise.

(2) The concept of self-determination has been applied in the different context of

economic self-determination.

(3) The principle may include the following corollaries-

(a) If force be used to seize territory and the object is the implementation of the

principle, then title may accrue by general acquiescence and recognition more rcadtl)

than in other cases of unlawful seizure of territory.

(b) The principle may compensate for a political lack of certain desiderata in the fields

of statehood and recognition

(c)lntervention against a liberation movement may be unlawful and assistance to the

movement may be lawful.

(d) Territory inhabited by people not organized as a state cannot be regarded as terra

nullius susceptible to appropriation by individual states in case of abandon-ment by the

existing sovereign. 4

Regarding the question as to which of the different legal systems prevailing at

successive periods is to be applied in particular case (called imer-t~mporal Jaws). a

distinction must be made between the creation of rights and existence of rights. sell­

determination as a dynamic principles keeps the international legal order open for

change. Internal self-determination is more a reference to the factual ~onditions for

4 Brownlies n. 1, p. 596

legitimate rule. If the state adopts a one-sided policy against specific ethnic groups

with excessive violation of human rights. the right of internal self-determination is

transformed into an external right of self-determination which can rhen be implemented

only by way of secession. 5

In determining the ·self in self-determination, the relevant detinition of peoples

is a ·Jegal' one. A people in sociological sense would only be accepted as a people in

legal sense for the purposes of self-determination if the people inhabited a particular type

of territory. It is not international law which detines what a 'people' is. but is detined

by the 'people' itself in its historically developed consciousness of belonging together and

distinguishing between members of the people and outsiders. 6 The date at which the

territorial 'self' crystallized is of crucial importance as the relationship between self-

determination and territorial integrity in the pre-independence situation raised the question

as to inviolability of the territorial unit. 7

The expression 'self-determination' gained political currency during the First

World War, due to the espousal of the principle by the Bolsheviks and by President

Woodrow Wilson. The Bolsheviks slogan was : "Peace without annexations and

indemnities on the basis of self-determination of peoples". Wilson's espousal of self-

determination as a central element of the peace was reactive to both Bolshevik initiatives

and war time exigencies. Contrary to popular beliefs, the expression nowhere appears

5 V. P. Nanda, "Self-determination in International Law-The Tragic Tale of Two Cities-lslalamabad (West Pak.) and Dacca (East Pak.) America! Journal of International Law 66 (1972) P. 321

6 Oeter. n. 3, p. 164

7 Malcolm .S. Shaw. Title to Territory in Africa (London. 1986). p. 105.

57

m his Fourteen Points. 8 At the Versailles Peace Conference. Wilson emphasized

America ·s belief in the right of every people to choose their own allegiance and be free

of masters altogether. But the dominant motives of the peace conference seem to be -

First to gratify faithful allies, Secondly to show severity -co the conquered foes and thirdly

to establish a new balance of power. 9 Even the League of Nations failed not simply

because it was a product of elevated principles but also because it was a means of

anchoring more or less arbitrary territorial gains by the victorious powers of the First

World-War. The expression 'self-determination' did not find any plal·e in the League

Convenant. Reference regarding self-determination can be found in Dt!clarations of

Atlantic Charter of 14 August 1941. But the allies were divided as to its application.

No doubt that it broke the traditional state structures on one side but it was restricted by

stability-oriented concepts such as the prohibition of the use of force. the territorial

integrity of states and the prohibition of intervention. For USSR. the wncept was one

of absorption or domination, while for colonial powers it meant self-destruction of

empire. 10 The principle of self-determination was ignored in the cases of Germany,

Korea and Viemam due to high strategy of international politics. Nonetheless. the

reference to 'the principles of equal rights and self-determination of peopks' appeared

in Articles I (2) and Article 55 of the UN Charter. Chap~r XI dt!als with Declaration

regarding Non-Self Governing Territories while Chapter XII deals with lmemational

8 Michla Pomerance, "The United States and Self-determination : Pt!rspectives on the Willsonian Conception" in AJIL, Vol. 70 (1976): p. 2

9 Brown P.M., "Self Determination in Central Europt!". in Amc:rican Journal of Int. Law 14 (1920); p. 237

10 Emerson. n.2, p.296

58

Trusteeship system. In resolution 637 A (VII) of 16 December 1952. the General

Assembly recommended inter-alia. that the state member of the UN shall uphold the

principle of self-determination of all peoples and nations. The inclusion of self­

determination in UN Charter is more due to the pressure of Afro-Asian countries to

achieve their independence or independent destiny in their own fashion.

The literature on self-determination is dominated by three perspectives-idealist.

realist and radicals. Idealist claim that self-determination is just in its own right.

represents essential guarantee of future peace and should have been applit:d "universally.

integrally, forcefully, sciemitically". But the idealist say that the ideal of self­

determination was not followed in the aftermath of World War-1 as the 'idol' who was

to give the ideal proved to have 'Clay feet. ' 1 1 The idealists cite the examples of

Germans Armenians, Koreans, Georgians, Arabs of Syria. Kurds etc. during 1930's.

1940's and 1960's. The Realist say that self-determination can never be an ideal capable

of universal application as its application is dangerous to peace and stability and it raises

hopes which can never be realized. Realist say that it is in essence an impractical

moralistic slogan with pernicious implications and dangerous if it enters minds of cenam

races. Regarding Wilsonian's 14-Pt and self-determination. the realists say it was mere

sloganeering and a general American 'Legalistic Moralistic' approach to foreign policy

aimed at realizing the objt!Ctive ·national interest' of the US.

The radicals agree with ·realist' in perceiving Wilsonian's self-determination as

representative of American foreign policy but deplore the Wilsonian self-determination

as an ·economic imperial imperative'. American policy was to break up other states·

11 Pomerance. n.8. p.3

59

political empires as such empires closed the doors to American economic penetration.

American goal is to replace political imperialism with its own brand of economic

imperialism or neocolonialism. 12 The capital penetration constituted a form of conquest

and Wilson had stated that a country is owned and dominated by the capital that is

invested in it. Wilsonian pre war, wartime and post-war thought on self-determination

reveals a fusion and confusion of several ideas.

The concept of self-determination has raised many questions. How is the con-:ept

to be reconciled with the countervailing principle of territorial integrity and polnical

independence of existing states? The Declaration on Colonialism (General Assembly

Resolution 1514) simply restates the dilemma by incorporating both the principles of self­

determination and territorial integrity. How far should one go back in applying the

modern concepts? Can pre-modern feudal relationships form the basis of a claim to

sovereignty with the exclusion of the self-detem1ination of the area concerned, or justify

the 'forcible occupation' of such area? 13 If the self-determination is detined as freedom

from 'alien' rule, then what is 'self' and what is alien? While dealing with self­

determination one should not loose sight of 'strategic and economic interest' of the area

concerned.

The judicial opinion on self-determination is rather more explicit. In South-West

Africa Cases. the 10 heid that the terms of Article 2 of the Mandate Agreement

disclosed a legal obligation to promote to the utmost the material and moral well-being

12 ibid, p. 14

13 Oeter. n. 3. p. 154

60

and the social progress of the inhabitants of the country. 14 In the Western Sahara

Case. 10 held that historically-based titles are fundamentally subordinated to the right

of self-determination of national group concerned. But in practice. the concept of

territorial integrity and prohibition of intervention merely provide an excuse to protect

gains made by illegal occupation. The process followed for decolonization. and the very

attitude implicit in the pattern followed by the UN. OA U and the third world countries

is that the demands for self-determination legirimises the existence of a natton and the

right of that nation pertains to a state which is expressed territorially under the pnm:iple

of uti possidetis. The declaration upon the UNGA resolution 1514 (XV) of 1960 1mplit:d

self-determination as the absolute right of colonial people which becomes the sine qua

non of decolonization. The law of uti possidetis followed by the UN and OAU must be

clearly understood to understand the problems relating to the decolonization of Western

Sahara.

PRACTICE/LAW OF UTI POSSIDETIS

The term Uti possidetis means as you possess and is expressive of the principle

of a treaty which leaves belligerents in possession of what they have acquired. But in

the theoretical framework of Decolonization after 1945, this term is used for the colonial

uti possidetis, as far as the people aspiring for independence iri any colonial territority

is concerned. The colonial uti possidt:tis comes in direct conflict with pre-colomal uti

possidetis where a new country/nation-state claims its frontier as pre-colonial uti­

possidetis. The question arises which uti-possidetis has more juridical value. In the

14 ICJ Report (1962). p. 319

61

Western Sahara case, Morocco has claimed since its independence what is called ·Greater

Morocco' comprising of the whole of the territory of Mauritania. North-West Mali.

South-West Algeria, and the Western Sahara on the basis of historic rights. Whik

Mauritania. Algeria and Mali have not yielded to the Moroccan claim. the Spanish con­

trolkd ·western Sahara' during 1956-1975 has been the bone of contention between

Morocco and Mauritania. Moro~o:co claims that during the Protectorate's Regime 1912-

1956. the French had altered the boundary without the consent of the Moroccan Sultan

or authorities. Morocco further claims that since Morocco was a mere Protectorate. the

French had no right to change the boundary/Frontier to the detriment of Morocco and

it being done, the same remain invalid and void in the eyes of law. In the pre-colonial

uti possidetis, Morocco's rule and influence extended over what is called blad-al-makhzen

and bilad-as-siba. It was in the t»ad-al-makhzen, that the Sultan exercised his complete

authority while the bilad as-siba was the land of dissidence or the area outside the

Sultan's control. The military might or authority of the Morocco was instrumental in

bringing an area into the makhzen and the moment the Moroccan rulers became weak.

the area of blad-as-siba incre~; and a number of area or tribe passed from submission

to resistance. It is only in the religious sense that the tribes in blad-as-siba accepted the

Sultan as amir-ul-mu'minin (i.e. the commander of the faithful). This religious sense of

submission has nothing to do with the 'territorial sovereignty' of Sultan over the

rebellious tribes.· Moreover. the control of Moroccan Sultan over blad-as-siba has never

been constant, continuous. fixed and deman:ated. Historically, the area of Western

Sahara was not even the part of bled-as-siba. At the most there were social. cultural and

trade links and that also diminished during the second half of the nineteenth century.

62

In addition. Morocco claims the historical links between the area's tribes and the

Sultan on basis of Islamic conception of sovereignty through the bay·a ceremony which

forms the basis of Morocco's legal daim to the territory. 15 This daim necessarily

involves a deeper probe into the n01ion of Islamic state and the concept of bay·a.

JURIDICAL BASIS OF STATE UNDER ISLAM :

Islam was proposed by Prophet Mohammed to eal·h individual and the latter

submitted to the divine will for his own welfare in this world and salvation in the next.

For every later member of the Islamic community whether na1ive born or converted. the

individual basis of submission was recognized on the basis of pactum taciturn. The

Islamic state may be based on either the One-Contract theory or Double/Two Contract

theory. By One-Contra<.:t theory the isolated individuals agn:ed on a universal <.:ontract

of submission to a rule which is vested at once with e:\dusive power. In Double

Comract theory, the society is formed by one contract and the King/ruler is enthroned

by another contract to rule in a<.:<.:ordance with certain conditions and limitation on his

authority. But in both cases, Allah is regarded as supreme. though not the dire<.:t ruler

of the state. 16

Accordingly, the Caliph's powers were derived from and limited by the divine

law, only his appointment was made by the people. The Caliph was responsible to the

people only in so far as his faithfulness was con<.:erned in the enforcement of the divine

15 JeGome B. Weiner. ·The Green Mardt in Historical PerspL"Ctive" in Middle East Journal Vo1.33. 1979; p. 22

16 Majid Khadduri. War and Peace in the Law of Islam (Baltimore and London. 1955). p. 9.

63

law. 17 According to al-Mawardi; (AD 974-1058). if the Caliph did not fulfill or was

incapacitated. from fulfilling his duties. he had no right to remain a Caliph18 It was the

Khawarij/Kharijites. who advocated the principle of revolution and to them (the

Kharijites) the Caliphate was purely a democratic institution. based on a Second Contract

theory which empowers the electorate. to depose or put to death a Caliph who violates

his duties. 19

In Islam. God never had been regarded as the immediate ruler ot IllS subjects and

only his representatives (vice regents) on earth were the real exccutJn's. Hence the

divine law (or a sacred rule}, regarded as the source of governing authority. was the

essential feature in the process of control under these systems. The law prt.'t:edes the

state and provides the basis of state. 20 The legal position of a .territory depends on the

allegiance of its people to Islam, not on mere proclamation that it belongs to Islam.

CONCEPT OF BAY' A

Closely related to the notion of state under Islamic law. is the concept of bay·s

which establishes the link between the ruler and ruled in the dar ul-Islam. Bay'a is an

Arabic term which denotes the act by which a certain number of persons acting

individually or collectively recognize the authority of another person. Thus the bay· a of

17 ibid, p. 12

18 H.A.R. Gibb. "AI-Mawardi's Theory of the Khilafa". in Islamic Culture Vol. 11 (July, 1937) pp.291-302

19 Thomas Arnold. The Caliphate (Oxford. 1924). pp. 188-189

2° Khadduri. n. 76. p. 16

64

a Caliph is the act by which one person is proclaimed and recognized as head of the

Muslim State. In a non-technical sense "to make bay'a in regard to some matter" means

to reach an agreement on this matter. The bay·a has two principal aims which differ in

their scope and nature. The first is that of adherence to a doctrine and recognition of the

pre-established authority of person who teaches it. In this sense. the bay'a simply

recognized the pre-established authority of a person and to promise him obedience. In

the second sense. the principal aim of the bay'a is the ekction of a person to a post of

command and in partiwlar. the dection of a Caliph. when a promise of obedience is

implied. 21

The bay'a was used to swear allegiance to Kings as well as Caliphs. Bay'a as an

oath of allegiance was different from the mere private compact (al-aiman wa'l uhud).

New dynasties took the bay'a from a town in some circumstances, which meant bay'a

from leading men and volunteer soldiers of the town. as there was no municipalties that

could swear on behalf of their members. The bay'a was generally taken from Awliya.

i.e. those employed as agents of the dynasty: the high officials and above all, the

soldiers. The bay'a conveyed a real commitment and soldiers gave the bay'a with

deliberation. Bay'a can also be taken to enter the service of a new monarchy. Bay'a

was also the means of expressing politil'al loyalty. 22

The legal doctrine of bay'a analyses it as a contractual agreement. On the one

side there is the will of the electors. l·xprcssed in the designation of the candidate which

21 H.A.R. Gibb, B. Lewish. Ch. Pellat and J. Schacht. Edn. The Encyclopaedia of Islam New Edition; Vol. I (A-B) London 1960) Pp 113-14.

22 Roy P. Mottahedah Loyalty and Leadership in an Early Islamic Society (Princeton N.J .. 1980) p.52.

65

constitutes the offer and on the other side is the will of the elected person which

constitutes the acceptance. Bay'a is a voluntary act sui generis which involves the

general public. It must be stressed that the doctrinal analysis. even when so regarded.

is only fully valid in regard ro the bay'a of election and not in regard to the bay·a of

simple homage. For in the latter case adherence become obligatory and no room is left

for any freedom of action. But the form of bay' a remains the same in both its roles. The

effect of bay'a is limited by the law; for bay'a is made on the condition that its recipient

remains faithful to the divine prescriptions, which means that if the ruler does not abide

by these prescriptions, those who have performed the bay'a in his favour are thereby

released from their obligations. 23 So, by applying the concept of Bay'a and Islamic

notion of State, one can conclude from the historical facts mentioned in Chapter 1. that

it was the failure of the Moroccan rulers which compelled them to distinguish between

blad-ai-Makhzen and blad-as-siba. When the blad-as-siba is not under the control of

Sultan and it was the area of dissidence, how can it be possible for tribes to offer Bay'a?

Even other conducts like refusal to pay taxes, concluding separate agreements with

European, taking free decisions \Vhen there is no military pressure, the Saharawi tri~s

beyond river Dra'a put a negative seai on the claim of Morocco. Moreover by applying

one-contract theory or Double Contract theory, it can easily be derived that the Saharawi

did not gave the kind of support to the Moroccan Sultan as required to rule them. To

maintain peace and avoid military cont1ict, the Saharawi tribes might have accepted some

of the conditions but did not conclude any kind of agreement to subject themsehes

absolutdy to the Moroccan rulers. Rather. there are instances when the tribes had led

23 Gibb. n.21, p. 114

66

armies against the Moroccan rulers when the Moroccan Sultan capitulated to the

European powers. Thus the Moroccan claim on the basis of Pre-Colonial uti possidetis

does not hold much water.

The concept of colonial uti possidetis implies that the successor state accept

international boundaries set by the predecessor regime. Uti possidetis and the territorial

integrity of the states was declared as the ultima ratio-especially in Africa and it formed

the theoretical framework in which the right of set f-determination was accepted by the

majority of the UN mem~rs. Even the International Court of Justice has aftirmed the

role of'uti possidetis principle' as an elementary constituent of the international legal

order in Africa. 24 Whether or not the boundaries of the colonial empire decreed by

cultural messianism. mercantilist greed. the Congress of Berlin or all three-made sense

or not in ecological, geographic or demographic terms, the rule which emerged as sine

qua non of decolonizat1on was that these boundaries could be altered only with the

consent of the government. 25 Even the African states, led by the OA U. had insisted

through its Cairo Declaration in 1964 and under Article 3(3) of the OAU Charter, that

each colony in the final stage of decolonization must exercise its right of self-

determination within the confines of established boundaries, thereby enunciating and

reiterating the conl·ept of intangibility of international frontiers and the primacy of right

of self-determination O\'er all other rights. particularly the historic rights. There is no

denying the fact that in somt' cases. the 'colonial uti possidetis' may 'tend to perpetuate

24 Oeter. n.3. p. 152.

25 Thomas M. Franck. "The Theory and Practice of Decolonization : The Western Sahara Case". in Richard Lawless and Laila Monahan. Ed. War and Refugees : The Western Sahara Contlict (London & N. Y. 1987) p. 10

67

certain historic injustices or cultural hardships'. 26 but what should not be forgotten is

that the other alternatives were worse. The wholesale redrawing of the map of Africa

on this basis of historic links/claims could only lead to chaos, war and the unraveling of

a continent's state system. Even the resolution 1514(XV) of 1960 warned that any

attempt at the partial or total disruption of the national unity and the territorial integrity

of a country is incompatible with the purposes and principles of the UN Charter. If a

territory wishes to join with one or several neighbouring states. it should han~ the right

to manifest that preference in the process of decolonization.27 through only the free

choice of the people. A territory with recognized boundaries should not be absorbed or

dismembered without the consent of people inhabiting the territory. As the Saharawi

people inhabiting the 'Western Sahara' underwent the colonial experience. developed

indigenous resistance and produced nationalist sentiment against the Spanish rule their

wisn should have been respected more than anything else, as was the practice being

followed by the UN. OAU. NAM and other organizations.

PRINCIPLE OF DECOLONIZA TION :

The process of decolonization started in its sincere earnest after the end

of World War II. During 1945, there were well over 120 colonial territories ac'-.:ounting

for nearly one-th,rd of the world's land, and around 750 million people lived in colonies.

By 1985. there were only arand 3 milliort people Jiving in colonies. The primary reason

:!6 Thomas M. Franck. "The Stealing of the Sahara" American Journal of

International Law. Volume 70 (1976), p.698

27 ibid. p.698

68

for decolonization has been the fatigue of the colonialists. After 1945. the colonial

powers found it economically unvia_ble and politically embarrassing to maintain control

over the dependent territories. They also found the indirect means to L"Ontrol the

territories and secure advantages for them and also to unburden themself of the political

and psychological disadvantages of colonialism. 28 This was possible because of the

advancement of science and technology in the developed countries which facilitated their

indiret:t means of control of production and marketing in the third world countries or

colonized areas. But one of the major factors of decolonization has been the growth of

steady membership to the United Nations of the Afro-Asian and Latin American

countries, which compelled the UN to politically condemn the colonial practices.

Moreover the centre of rivalry shifted from among the European colonial powers to the

rivalry of USA and USSR. It is their rivalry and desire to increase their sphere of

intluence in the colonized territories and the third world. which acted as a catalyst to

pursuade and coerce the European colonial powers to adhere to the new norms/morals

followed by the super-powers i.e. Wilsonian 14-point principle of self-determination

followed by USA and the anti-imperialist stand led by USSR.

During late 1940's and in 1950's, a number of colonial territories attained

independence through peaceful change in countries like Phillipines. India, Burma.

Indonesia, Cambodia. Morm:co, Tunisia, Ghana, .M.alaysia, etc. But there were some

countries that had to wage protracted war of independence like the Algeria against

France. Southern Rhodesia and Nambia against the Portugal. Vietnam against France and

28 Theodore A. Coulombis and James H. Wolfe, Introduction to International Relations: Power and Justice (New Delhi. 1986). p. 297.

69

the USA. etc. Though decolonization represents only a limited realization of self­

determination of the people, 'it could well be regarded as emancipating coloured people

from whites'. :!9

The United Nations involvement in the 'Decolonization process' began with the

Second World War. The anti-colonial stand was built into the United Nations Charter.

The decolonization effort of the UN was derived from the principle of 'equal rights and

self-determination of peoples' enunciated in Article 1 of the Charter as well as from the

three specitic chapters in the Charter- XI, XII and XIII, which set out the Organization's

role and responsibilities in relation to colonial territories. While Chapter XII of the

Charter established the International Trusteeship System of supervision of Trust

Territories placed under it by individual agreements with the states administering them.

the system applied to (a) Territories then held under Mandates established by the League

of Nations after the First World War (b) Territories detached from enemy states as a

result of Second World War and (c) Territories voluntarily placed under the system by

states responsible for their administration.

Chapter XIII of the Charter provided for the establishment of Trusteeship Council

with the aim to supervise the administration of Trust territories and to ensure that

government responsible for their administration took adequate steps to prepare them from

the achievement of the Charter goals. Chapter XI of the Charter. "Declaration

Regarding the Non-Self Governing Territories" provides that the members of the UN

which administer Territories whose people have not attained a full measure of self­

government recognize the principle that the interests of the inhabitants of those territories

29 Oeter. n.3. p.154

70

are paramount and accept as a sacred trust the obligation to promote to the utmost the

well-being of the inhabitants. To assist the political aspiration of the dependent peopks

in the progressive development of their free political institutions. Administering Powers

were obliged to transmit regularly to the Secretary-General statistical and other

information on the economic, social and educational conditions in their respective

territories. 30

But new problems kept pouring in. Spain and Portugal jointed the UN in 1955

and when asked by the UN to furnish information regarding the colonial territories; they

both stated that their overseas possessions were not colonies. Spain had declared in 1958

that the Spanish Sahara and Ifni were to be the provinces of the metropolitan Spain. But

by 1961, Spain eventually agreed to transmit information on its overseas territories.

The urgent demand of the dependent peoples to be free of colonial domination and

the international community's perception that the Charter principles were being too

sluwly applied led to the General Assembly's proclamation (Resolution 1514 (XV)) on

14 December 1960 of the Declaration on the Granting of Independence to Colonial

Countries and Peoples (hereinafter to be referred as Declaration of 1960) by a

overwhelming majority of 89 in favour to none against with nine abstentions. The

Dcdaration left no doubt about where the international community stood in the matter

of dccolonization. Subjugation of people to alien domination and exploitation was

prodaimed a denial of fundamental human rights. contrary to the United Nations

Charter. All peoples have the right to self-determination and therefore the right freely

to determine their politil:al status and pursue their economic. social and cultural

30 UN. Brief Facts About the United Nations (New York. 1987). p.ll9.

71

development. It also declared that inadequacy of political, economic. social or

educational preparedness should never serve as a pretext of delaying independence and

caJied for an end to all armed or repressive action directed against dependent peoples and

for "immediate steps" to be taken towards the transfer of power to them in accordance

with their freely expressed will and desire. The Assembly believed that the process of

liberation was irresistible and irreversible and that in order to avoid serious crisis, an end

must be put to colonialism and all practices of segregation and discrimination associated

therewith. 31

In 1961, the General Assembly established a Special Committee on the situation

with regard to the implementation of Declaration (1514 (XV)), with wide-ranging power

to study_. investigate and recommend action. The Special Committee of 24 (membership

was enlarged from 17 to 24 in 1962) became the international community's watch dog

on the progress of decolonization. The General Assembly had earlier repeatedly

reaftirmed that questions of territorial size. geographical location, size of population and

limited natural resources should in no way delay the implementation of the Declaration.

It also urged the specialized agencies and other organizations of the UN systems to

extend all necessary moral and material assistance to peoples of colonial territories and

to their national liberation movements.

In 1970. 1975. 1980. 1985, in connection with the tenth. fifteenth. twentieth and

twentififth anniversaries of the adoption of the Declaration (i.e. 1514(XV)), the Assembly

adopted a series of action plans and programmes aimed at expediting and speedily

implementing tht: Declaration. The Western Sahara issue was reviewed in the plenary

31 UN. The United Nations of Forry (New York. 1985); p.64

72

meeting of tht: Spt!cial Committee. The Spt:cial Committee;: had pointed out that two

important fa~:tors rt:tarded the process of decolonization - the rol~:: of for~::ign economil:

mt~::resrs which protit from the;: continuation of colonial ruk and tht: military int~::resrs of

colonial powers. In 1970. the Assembly dedared that the further continuation of

colonialism was a crimt: and p~::ople under such rule had an inherent right to struggk by

all n~essary means at their disposal against colonial powers whil:h were suppressing

tht:ir aspirations for freedom and independence. It further decided to invite

representative;: of liberation movements to participate in UN organs whenever necessary.

On 26 February 1976, Spain informed the Secretary-General that as of that date it had

terminated its prest:nce in the Territory of the Sahara and deemed it necessary to pla~:e

the following on record : Spain considers itself henceforth exempt from any

responsibility of an international nature in connection with administration of the territory.

in view of the cessation of its participation in the temporary administration established

for the territory.

On 5 December 1984, the General Assembly reaftirmed that the question of

Western Sahara remained a question of decolonization which remained to be completed

by the people of Western Sahara. The Assembly entrusted the Secretary General in

respect of Wc:stern Sahara with specitic tasks in assisting in and facilitating the process

of decolonization. in ac~o:ordance with the process of decolonization under the UN

Charter and the objectives of the Dedaration. In a nutshell, the decolonization proct:dure

adopted by tht: UN under the Resolution 1514(XV) of 1960 gave/allowed three;:

possibilities : Sovereign independence. free association with an independent state or

integration with an independent state. The Resolution 2625 (XXV) of 1970 confirmed

73

this choice by stating that any political status could be chosen by a population seeking

decolonization provided only that such a choice was 'freely determined by a people' .n

WESTERN SAHARA ISSUE BEFORE INTERNATIONAL COURT OF JUSTICE (IC,f)

The General Assembly of the United Nations passed a resolution 3292 (XXIX)

wherein it decided to request the ICJ to give an advisory opinion on the legal controversy

which arose over ti1e status of the said territory (Western Sahara) at the time of its

colonization by Spain. The 10 was requested to give an advisory opinion on the

following questions -

I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of

colonization by Spain a territory belong to no one (terra nullius)? If the answer

to the first question is in the negative,

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

the Mauritanian entity?

These questions were considered by 16 Judges for advisory opinion. After

hearing the arguments from the concerned parties and scanning the document plact:d

before it, the ICJ Decided:

With regard to Question I by 13 votes to 3; and with regard to Question

II by 14 votes to 2, to conmply with request for an advisory opinion. The ICJ was of

the Opinion:

32 George Joffe, "The International Court of Justice and the Western Sahara Dispute" in Richard Lawless and Laila Monahan Eds. War and Refugees (London & New York, 1987) p.20

74

- With regard to Question I. unanimously, that the Western Sahara 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 the

optmon;

- With regard to Question II, 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 the

opinion.

While deciding the question and forming its opinion, the Court had to deal with

a number of questions and issues. Morocco and Mauritania had submitted a request of

the appointment of a Judge ad hoc to sit in the case. But, the court held that only

Morocco was entitled under Article 31 and 68 of the Statue and Article 89 of the Ruks

of Court to choose a person as judge ad hoc. Accordingly, Morocco chose Mr.

Alphonse Bani of Ivory Coast to sit as judge ad hoc in the case.

Three preliminary issues were raised before the court33-

(a) Whether the court is confronted with a legal question? (b) Whether there are

compelling reason for the Court's declining to reply to the request? (c) What would be

the eventual effect of the Court's tinding on the further process of decolonization of the

territory?

"The court held that the questions submitted by the General Assembly had been

framed in terms of law and raise problems of international law. Article 65. paragraph

1. of the Statute authorises 'the Court to give an opinion on any legal questions at the

33 Western Sahara. Advisory Opinion. ICJ Report 1975. p. 9

75

request of whatever body may be authorized by or in accordance with the Charter of the

United Nations to make such a request.· Moreover. the present request had been made

pursuant to Article 96. paragraph 1. of the Charter of the UN, under which the General

Asst!mbly may seek the Court's advisory opinion on any legal question. abstract or

otherwise. 34 The court further held that it is competent under Article 65 paragraph 1,

of its statute to entertain the present request. by which the General Assembly had

referred to it questions embodying such concepts of law as tera nullius and legal tit!s.

regardkss of the fact that Asst!mbly had not requt!sted to dt!termination of existing rights

and obligations. 35

Spain made the foilowing observations before the court relating to the lack of its

consent to the proceeding, which Spain considers, should lead to Court to decline to give

an opinion-

(a) The Advisory jurisdiction is being used to circumvent the principle that

jurisdiction to settle a dispute requires the consent of the parties.

(b) The questions raise issues concerning the attribution of territorial sovereignty

over Western Sahara.

(c) The Court does not possess the nt!cessary information concerning the relevant

facts to enable it to pronounce judicially on the questions submitted to it. 36

The Court held that in the present case. Spain is a Member of the UN and has

accepted the provisions of the Charter and Statute, and thereby it has given its const!nt

34 Opinion, n.32, p.I0-11

35 ibid. p. 13

36 ibid. p. 14

76

to the exercise by the Court of its advisory jurisdiction. Spain could not validly objet.:t

to the General Assembly's of a non-self-governing territory and to seek an opinion on

questions relevant to the exercise of those powers. 37 The consent of the intt!rested state

continues to be relevant. not for the court's competence. but for the appreciation of the

propriety of giving an opinion. The legal controversy arose during the proc~ings of

General Assembly from 1966 to 1974 and it did not arise indept!ndently in bilateral

rt!lations. Moreover, the legal status of the territory pt!rtain to tht! qut!stion of rights of

Morocco over it at the time of colonization.

Regarding the objection of Spain that the dispute is a territorial ont!. the Court

held that the Court is neither considering Spain's present position as tht! administering

Power of the territory, not adjudicating upon existing territorial rights or sovert!ignty

over territory. Regarding the Court's possessing necessary information regarding the

relevant facts, the Court held that the Mauritania, Morocco and Spain have furnished

extensive documentary evidence of fact which is sufficient to enable it to arrive at a

judicial conclusion. 38

Extensive arguments and divergent views were presented before the coun by

Morocco. Algeria <¥id Mauritania as to how and in what form the principles of

decolonization apply in this case, in the light of various General Assembly resolutions

on decolonization in general and on decolonization of Western Sahara in particular. The:

Court considered various provisions of the UN Charter, the 'Declaration on the Granting

of Independence to Colonial Countries and People', and various General Assembly

37 ibid, p.16

38 ibid, p.20-21

77

resolutions on Ifni and Western Sahara and held that Resolution 2229 (XXI) which dealt

with Ifni and Western Sahara was the model for a series of resolutions. The right of the

population of Western Sahara to determine their future political status by their own freely

expressed will. is not affected by the present-request for an advisory opinion. The right

of that population to self-determination constitutes a basic assumption of the questions

put to the Court. An advisory opinion of the Court on the legal status of the territory

at the time of Spanish colonization and on the nature of any ties then existing with

Morocco and with the Mauritanian entity may assist the General Assembly in the future

decisions which it is called upon to take. The General Assembly had referred to its

intention to ·continue its discussion of this question' in the light of the Court's advisory

opinion. 39

Turning to Question I, the Court observed that the request specifically locates the

question in the context of 'the time of colonization by Spain' and therefore the question

must be interpreted by reference to the law in force at that period. On the basis of

information furnished, the Court held that at the time of colonization Western Sahara was

inhabited by peoples who were socially and politically organized in tribes and under

chiefs competent to represent them. Spain did not proceed on the basis that it was

establishing its sovereignty over terrae nullius. In it Royal Order of 26 December 1884.

Spain proclaimed that the King was taking the Rio de oro under his protection on the

basis of agreements which had been entered into which the chiefs of the local tribes. The

order referred expressly to 'the documents which the independent tribes of this part of

the coast' had 'signed with the representative of the Sociedad Espanola de Africanistas·.

39 ibid. p.28.

78

Likewise in negotiating with France concerning the limits of Spanish territory to the

north of the Rio de Oro. that is. in the Sakiet El Hamra area. Spain did not rely upon

any claim. to the acquisition of sovereignty over a terra nullius 40 Thus, the Court's

answer to Question I was in negative.

Regarding Question II as to what were the legal ties between Western Sahara and.

the Kingdom of Morocco and the Mauritanian entity, the Court opined that the scope or

this question depends upon the meaning attached to the expression 'legal ties· in the

context of the of colonization of the territory by Spain.

Morocco claimed ties of sovereignty before the court on the ground of an allegl!d

immemorial possession of the territory based on the public display of sovereignty.

uninterrupted and uncontested for centuries. But, the court held that in determining its

answer to question II, it is not indirect inferences drawn from events in past history but

evidence directly relating to effective display of authority in Western Sahara at the time

of its colonization by Spain and in the period immediately preceding that time. Regarding

Morocco's request for taking account of the special structure of the Sheritian State, the

Court distinguished the Bled Makhzen from Bled Siba and held that the areas imme­

diately to the north of Western Sahara lay within the Bled Siba at the relevant period.

As evidence of its display of sovereignty in Western Sahara. Morocco invokoo

alleged acts of internal display of Moroccan authority and certain int~rnationa! acts said

to constitute recognition by other states of its sovereignty over the whole or part of the

territory. Moroccan evidence of 'internal' display of authority consisted of the alleged

allegiance of Saharan caids to Sultan including dahirs and other document conce::rning the

40 ibid. p.32

79

appointment of caids, the alleged imposition of Koranic and other taxes. allegiances of

confederation of Tekna tribes. military decisions regarding resistance to foreign im·asion

of the territory, and that the Marabout Ma-ul-Aineen was the personal representati\'e of

the Sultan in late 1890's. The Courr took into account the position of the Sultan of

Morocco as a religious leader and held that almost all the dahirs and other acts con­

cerning raids relate to areas situated within present-day itself and do not in themselves

provide evidence of effective display of Moroccan authority in Western Sahara. The

expeditions of Sultan Hassan I ro the south in 1882 and 1886 both had objects specitically

directed ro the Sous and the Noun. They did not reach even as far as the Dra·a. 41

Even taking into account the specitic structure of the Sheritian state, Morocco could not

establish any effective display of territorial sovereignty over Western Sahara.

Morocco invoked international acts to prove that Sultan's sovereignty was

recognized directly or indirectly upon the south of the Noun and the Dra·a. Morocco

relied on:

(a) Series of Moroccan treaties with Spain of 1767; with US of 1836. with Great

Britain of I 856 and with Spain of 1861, in which provisions regarding the rescue and

safety of mariners shipwrc:cked on the coast of Was Noun it vicinity were inserted.

(b) Moroccan treaty with Great Britain of 1895 in which Great Britain recognized

the lands between Wad Draa and Cape Bojador called Tarfaya, and all the lands behind

it. as part of Morocco.

41 ibid. p.39

80

(c) Franco-German exchange of letter of 1911 which expressed the understanding

of the parties that Moron:o comprised all that part of northern Africa which is situated

between Algeria, French West Africa· and the Spanish colony of Rio de oro.

(d) Diplomatic correspondence relating to Treaty of Tetuan of 1860 and an alleged

agreement with Spain of 1900 relating to cession of Ifni .42

The court examined the provisions in the above-mentioned treaties and it was of

the view that they cannot be considered as implying international recognition of the

Sultan's territorial sovereignty in Western Sahara. The Anglo-Moroccan Agreement of

13 March 1895 by which Morocco purchased from the North-West African Company the:

trading station at Cape Juby, was not an acceptance by Great Britain of Sultan's existing

sovereignty but of his interest in that area. Similarly. the doubts raised by Spain and

Mauritania as to the alleged protocol of 1900 have not been dispelled by the materials

before the Court. The Court cannot take possible existence of any such document into

account. Regarding the exchange of letters annexed to the Agreement between France

and Germany of 4 November 1911, which Morocco presented as recognition by those

Powers of Moroccan sovereignty over the Sakiet El Hamra, the Court was of view that

the purpose of these agreements was to recognize or reserve for one or both parties a

·sphere of intluence' as understood in the practice of that time. Such agreements were

essentially contractual in character. The Court did not accept Franco-German exchange

of letters of 1911 as constituting recognition of the limits of Morocco rather than of the

sphere of Fr~ce's political interests vis-a-vis Germany. But. the Court held that some

elements like the material relating to the recovery of the ship wrecked sailors do provide

42 ibid. p.41

81

some indications of international recognition at the time of colonization of authority of

or intluence of the Sultan displayed through Tekna caids of the Noun, over some nomads

in Western Sahara. 43

Over the question as to what were the legal ties between Western Sahara and the

Mauritanian entity, at the time of colonization by Spain, the court held that since

'Mauritanian entity' did not then constitute a State, therefore there was no legal ties of

State sovereignty, but other legal ties. Mauritanian argued that at the time of Spanish

colonization. the Mauritanian entity extended from Senegal river to the Wad Sakiet El

Hamra. The legal relation was therefore 'the simple one of inclusion' and the Bilad

Shinguitti was an entity united by historical. religious, linguistic, social, cultural and

legal ties which formed a community having its own cohesion. The court held that Bilad

Shinguitti cannot be considered as having been a Mauritanian 'entity' enjoying some form

of sovereignty in Western Sahara. But there were legal ties between territory of Western

Sahara and Mauritanian entity which knew no frontier between the territories and which

was vital to the very maintenance of life in the region.

The Court finally expressed the operative part of the Advisory Opinion m

Paragraph 162 which states-

"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 and 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

43 ibid. p.48

82

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 the territory of

Western Sahara or the Mauritanian entity. Thus the Court has not found legal ties of

such a nature as might affect the application of resolution 1514 (XV) in the

decolonization of Western Sahara and, in particular, of the principle of self-determinatio.n

through the free and genuine expression of the will of the peoples of the Territory. "44

Even though the advisory opinion of the ICJ was not binding on the parties. it

_is assumed for all practical purposes that the Morocco and Mauritania accept in the

principle the prevalent international norms and laws during 1974-75. The parties to the

issue were by their conduct before the 'opinion' and while presenting the case before

10, tacitly agreed to follow the Advisory opinion irrespective of the outcome. This is

more so far Morocco, which initiated the 'legal process'. The Advisory Opinion gave

primacy to self-determination over the claims based on historic title. But even while

adhering to the majority opinion, most of the Judges gave separate reasons/judgement for

their opinion.

OPINION OF JUSTICE GROS :

Justice Gros considered that there was no 'dispute' between Morocco and Spain.

but a legal question raised by the Government of Morocco before the General Assembly

with the support of the Mauritanian government which may be analysed as a multilateral

legal controversy in a debate on the future status of the territory of the Western Sahara.

The subject of that legal question was whether Morocco was entitled to daim

44 ibid. p.60

83

reintegration of the territory into the national territory of the Kingdom of Morocco to

which it belonged, according to Morocco at the time of colonization? He regardt::d the

reasoning of the advisory opinion on the other subjects as unrelated to the object of the

request. 45

He further observed that the governments of Spain and Morocco had explicitly

choosen decolonization in the context of the United Nations, in order to ultimately seulc

the future of the territory. There was no bilateral dispute which is detachable from the

l)N debate on the decolonization nor had there ever been any such dispute. He

wondered that 'the ground of Order of 22 May 1 CJ75 was alleged bilateral dispute'. sinn:

a judge ad hoc was accepted for the Morocco and refused for Mauritania. 46

He disagreed with the detinition of legal questions formulated in para 18 and 19

of the Opinion in the general way and in his opinion the question whether within the

decolonization process of Western Sahara commenc-ed by the UN. one or two states could

invoke a right to re-integration of the territory so as to come under their sovereignty is

a legal question within the meaning of Article 65 of Statute of the Court. The Court

gives an Advisory Opinion on the question of law it states the law. The absence of

binding force does not transform the judicial operation to a legal consultation which may

be made use of or not according to choice. 47

On the para 162 of the Advisory Opinion. Justice Gros opined that the question

of territorial sovereignty was the only one which corresponded to the question put in the

45 ICJ Advisory Opinion in Western Sahara Occidental. p. 70

46 ibid. p.71

47 ibid. p. 73

84

request for opinion. The 'legal ties' are not kgal ties but ethnic. religious or cultural

ties. ties of contact of a civilization with what lies on its periphery and outside it 48

On the situation relating to allegian~.:e between Western Sahara and Moro~.:co. and

with Mauritanian entity during 1884, he was of the view that the duty of a court is to

~tablish facts. that is to make tindings as to their existence and it confers a legal

meaning upon them by its decision. A Court may neither suppose the existence of facts

or deduce them from hypotheses unsupported by evidence. The Court cannot attribute

a legal nature to facts which do not intrinsically possess it, nor it creates the law. it

establishes it. 49

SEPARATE OPINION OF JUDGE JUDA IGNACIO PINO :

Justice Pino accepted only the second part of the Para 162 of the Advisory

Opinion. which does not establish any tie of territorial sovereignty between Western

Sahara and Morocco and with Mauritania entity. He thus rejected all parts of the court's

opinion which establishes 'legal ties'. He also objected strongly to the manner in which

the UN General Assembly requests with 'loaded questions' leading to the legal ties of

some nature50

48 'b'd 75 I I . p.

49 ibid. p. 76

50 ibid. p. 78

85

SEPARATE OPINION OF JUDGE NAGENDRA SINGH:

Justice Nagendra Singh supports the Advisory Opinion of the Court. except to that

portion where the court concludes on the question of legal tit!s which it founds to exist

at tht! time of colonization by Spain between Western Sahara and Morm:co. and with

Mauritanian entity. He was of tht! opinion that the 'legal ties' were not of SU(:h a

character as to justify today the reintegration or retrocession of the territory without

consulting the people. At the time of Spanish colonization. there was no evideoce of tht!

t!xistenct! of one singk state comprising the territory of Western Sahara and Morocco

or Western Sahara and Mauritanian entity, which would have been dismembered by the

colonizer and thus justify reunion on decolonization at the present time. Accordingly.

the facts and circumstances of this case would not attract the provision of para 6 of

resolution 1514 (XV) which holds disruption of national unity or territorial integrity of

a country as incompatible with the Charter of the United Nations and thereby pointing

to the reintegration of territory. In addition, he maintains that even if intt!gration of

territory was demanded by an interested state, it could not be had without as<.:t!rtaining

the freely expressed will of the people-the vt!ry sine qua non of all decolonization. 51

SEPARATE OPINION OF JUDGE FOUD Al\tfl\iiOUN:

The separate opinion of Justice Ammoun discussed at length the concept of 'Terra

Nullius· and held that the concept of 'terra nullius· as t!mployt!d during different periods

to the brink of tht! twentieth ct!ntury to justify conqut!st and to that extt!nt colonization

stands condt!mned. Ht! mt!ntiont!d treatit!s like Treaty of Alcacovas and Treaty of Cimra

51 ibid. p. 78

86

between Spain and Portugal in sixteenth century; Treaty between Morocco and Spain of

1 Man:h 1767; the Hispano-Moroccan Treaty of 20 November 1861; Anglo-Morm:can

agreement of 13 March 1895 and arrived at the conclusion that in all these treaties there

were certain clauses which strengthened the Moroccan argument that its intluem:e

extended upto Cape Boujdour. He held that the treaty of 8 April 1904 was morally

wrong because it empowered third parties to dispose off Moroccan sovereignty by secret

negotiations unknown to Morocco. Moreover, the treaty of 4 November 1911 between

France and Germany also recognized that the territory of Morocco included the Sakiet-ei­

Hamra. He dealt with at length regarding the internal manifestation of Moroccan

authority over Western Sahara, taking into account executive power of Sultan since

historical times; construction of roads in Western Sahara by Sultan; military expedition

to Soudan (black Africa) via Western Sahara against the foreign element, the religious

ties; continuation of Islamisation process by Morocco in the desert and black Africa, etc.

Justice Ammoun took objection to para 162 which says that Morrocco had ties with

certain peoples which ignores the 'notion of territory' and held that those people did not

live suspended between the sky and the ground. According to him, 'alligiance to the

Sultan was equivalent to allegiance to the state. '52 On the whole, Judge Foud Amman

was in favour of Moroccan arguments.

SEPARATE OPINION OF JUDGE FORSTER :

While subscribing/appending his consent to the Advisory opinion of the ICJ. he

expressed his reservation and disagreement over the court's conclusion that the materials

52 ibid .. p. 102.

87

and information presented to it do not establish any ties of terrtorial sovereignty between

the terriotry of Western Sahara and the Kingdom of Morocco, and the Mauritanian

entity. He maintained that this conclusion goes too far in minimizing the exceptional

importance of the geographical, social and temporal context of the problem. Africa of

1884 cannot be a carbon copy of the European insitutions. He considered the 'legal ties·

to indicate the existence of state power and the existence of political administration.

analogous to a tie of soverignty exercised in the Sahara, a territory to which access was

dirtkuit and over tribes some of which were nomadic and other settled. 53

SEPARATE OPINION OF .JUDGE PETREN:

Justice Petren was of the view that it was quite inappropriate for the court to reply

to Question I. Advisory proceeding may raise preliminary questions and it is the duty

of the court to settle those questions before giving its decision on matters of substance.

Preliminary question in this case raises the concern of court's competence and propriety

of its exercise and the possible reframing of the questions submitted to the court. 5"'

The questions posed to the court must meet the requirement of Article 65 para (l) of the

statue as the court is the principal judicial organ of the UN and not an historical research

institute. The questions called upon by the GeneraJ Assembly does not clarify the present

day legal problems. In his view. a request for an advisory opinion cannot be regarded

as admissible unless the question which it submits to the court relates either to the

existence or the content of rights or obligations of the international law. The L1i\

53 ibid. p.l03.

S.J ibid. p.l05

88

General Assembly resolution 3292 (XXIV) suggested that thl:!rt:! is a legal dispute between

Morocco and Spain over Western Sahara as the ad hoc appoinrment of a judge was

refused for Mauritania. 55

Ht! was of the view that there is no legal question pending betwel:!n Morm.:co and

Spain with regard to Western Sahara as Morocco does not dispute the present sovereignry

of Spain over Western Sahara. Both Morocco and Spain accept for its decolonization the

application of the resolutions of the General Assembly. In other words. the court is not

faced with a legal claim of right made by Morocco against Spain. and disputed by Spain.

which would have constituted a legal dispute between the two states. The point on which

their opinions have differed since the discussions in the General Assembly is that of the

procedures still to be decided for the implementation of the decolonization. 56

According to him, the question of the extent to which and under what conditions

past legal ties may intluence the decolonization of a territory, fall within an as yet

inadequately explored area of contemporary international law. The participation of the

interested states had conferred on the present proceedings a wholly unusual character to

obscure the difference in principle between contentious and advisory prm:eedings. 57

It is nevertheless striking that the Advisory opinion should be based almost exclusively

on the documents and arguments submitted by the interested parties which are accepted

or dismissed in the light of an examination of the evidence adduced.

55 ibid. p. 108

56 ibid. p.l09

57 ibid. p. 112

89

He disagreed with that part of para 162 of the Opinion which stated that materials

and information presented to the Court show the existence of legal ties of allegiance

between the Sultan of Morocco and some of the nomadic tribes found in the territory

of Western Sahara together with the existence of rights, including certain rights relating

to the land. which constitute legal ties between the Mauritanian entity. as undersrood by

the court and the. territory of Western Sahara." He expressed doubts whether the

information available to the court allows it to make such a categorical assertion. 58

SEPARATE OPINION OF JUDGE HARDY C. DILLARD :

Like Judge S. Petren, Justice Dillard also expresses doubt about both the

existence and relevance of any legal question. Unless the court were seized of a legal

question it would not be competent to respond to the request in the light of Article 96( I)

of the Charter of the UN. It is quite apparent that an exdusively historical question could

be automatically convened into a legal one merely because of a legal term such as terr~

nullius or because the question itself baptized the term 'ties' with a legal label by

referring to them as 'legal ties'. a device which also appeared to be question begging. 59

He makes three comments on Para 162 of the Advisory Opinion- (a) Whether the

determination of the right of self-determination in the context of non-self governing

territories can qualify as a norm of contemporary international law? (b) The impact of

the ·right" in possibly rendering without object the historil:ally orienrcd questions posed

in 3292 (XXIX) and (c) the delicate problem of determining the extent if any. by which

58 ibid. p. 114

59 ibid. p.117

90

the right' limits th~ possible policies open to the General Assembly in the decolonization

process of the Western Sahara. 60 The first problem raised two opposite and contlicting

poles of view-at one extreme is that the cumulative impact of many resolutions passed

by overwhelming majorities may give rise to a general opinio juris and thus constitutes

a norm of customary international law. This follows in the wake of UNGA resolution

1514 (XV), which has proclaimed the principle of self-determination to be an operative

right in the decolonization of non-self-governing territories. At the other end is the

opposition of law-creating powers of the General Assembly. The pronouncement of the

court indicate that a norm of international law has emerged and are applicable to the

decolonization of those non-self-governing territories which are under the aegis of the

UN. It is for the people to determine the destiny of the territory and not the territory the

destiny of the people.61 The attribution of the 'legal~ to the ties which existed in 1884

has only limited significance in the contemporary setting of decolonization process.

SEPARATE OPINION OF JUDGE F. DE CASTRO :

While agreeing with the 'no ties of sovereignty' and application of self­

determination to Western Sahara territory'. he was in categorical disagreement with that

statement of the advisory opinion which states 'the existence of other legal ties between

the territory and Kingdom of Morocco & the Mauritanian entity'. He was of the

opinion that around 1956. Moroccans firmly believed that the Sherifian kingdom did not

extt:nd beyond the Wad Dra·a. But it was Si Alia! al Fassi who expanded the Moroccan

60 ibid. p.121

61 ibid. p. 122

91

expansion of its frontiers and advocated for the reconstruction of Greater Morocco. He

pointed out that in the written statements of Morocco and Mauritania before the court.

each of these two states claimed the whole of the territory of Western Sahara. But in the

course of the oral statements before the court, the contradictory character of the claims

of Morocco and Mauritania disappeared. and each state limited its claim to a part i.e. in

the north and in the south of Western Sahara respectively. This change of position

occurred without any explanation being given to the court of the reasons prompting it or

of its bearing on the value of information and documents supplied in the earlier

statements claiming the whole of the territory. 62

He considered it necessary to inquire into the sense in which the term 'legal ties'

is used in the resolution, as the term 'legal ties' is extraordinarily wide. whether one

considers all the possible category of ties, or all the factors that could give those ties a

legal character. Ties can arise from proximity, from a treaty or from war. or they can

follow from an unlawful act (responsibility). There are territorial ties. personal ties. ties

of sovereignty, of servitude, of suzerainty, of fealty, of vassallage. to say nothing of all

other ties of a feudal character. According to the legal source, there can be international

ties of public or private law, of state law. of Canon law or of Muslim Law (based on the

Sharia). 63 Further, he observed that the words "at the time of decolonization by Spain'

impose limits on the investigation of the legal ties with the territory. By basing its claim

of sovereignty on immemorial possession. Morocco made it net..:essary to consider the

6~ ibid. p.l31

63 ibid. p. 135

92

events of a very distant period but what mattt:rs is whether the said posst:ssion by

Morocco was t:xt:rcised at the time of colonization by Spain. 64

He further elaborated that the detinition of a legal question according to Charles

De Vischer is 'it means any question capable of receiving an answer based on law·.

Applying this definition. it can be St:en that the question of the existenct: of tit:s at the

time of colonization by Spain could not be capable of receiving an answer bast:d on law;

and the answer would have to be based on the proof of historical facts. 65

Regarding the ties o.f Western Sahara with Morocco and Mauritanian t:ntity. ht:

held that at the time of colonization of the territories of Africa, Morocco did not havt:

the strength to compete with the European powers, or to oppose the colonization nor

even any interest in doing so. Though there were ties between Sahara and Morocco. it

was only of a transient nature and without legal or political signiticance. 66 A ftt:r

discussing various agreement/treaties, maps etc., he arrived at the conclusion that tht:

intt:rnational community considered Wad Dra'a as the southern limit of Morocco.

Situation of territories near coast was well known but the interior of Africa was terra

incognita. 67

Colonization by Spain occurred during colonial period without Moroccan

opposition. whether on the part of the Army or that of the government. The Moroccan

expt:ditions to tht: Soudan (black Africa) had an epht:meral intluence in the Sahara. Tht:

6·1 ibid. p. 137

65 ibid. p.l40

66 ibid. p.l47

67 ibid. p.l53

93

Sultans had no interest in these desert areas except in so far as they were on the route

to the Soudan. The Saharan tribes Wt!re in no position to resist. but they regained full

freedom once the Moroccan forces had withdrawn. It should also be noted that the

Morm:can expeditions followed the rt!gular caravan route. i.e. from Tindouf to Senegal.

thus by passing the present-day Western Sahara. the route through which was more

roundabout and inhospitable. 68

Finally, he opined that the first question whether Western Sahara had the status

of a territory belonging to no one. should not have ~en considered independently of the

second question. In considering it separately the! court has given it a different meaning

from that which it had during the di~ussion in the General Assembly.

SEPARATE OPINION OF JUDGE A. BONI:

Though he voted without reservation in favour of Advisory Opinion. he

considered that as regards Morocco. insufficient t>mphasis has been placed on tht:

religious ties linking the Sultan and certain tribes of Sakiet-ei-Hamra. For these tribes.

the Sultan was commanqer to the faithful, that is. to say the steward of God on earth for

all matters. whether relig'ious or not. He was also the director of their religious as wt:ll

as temporal affairs. Thus the legal ties had the character of territorial sovereignty.

Further he opined that if the General Assembly had placed before it an resolution

for advisory opinion of the Court declaring that tht:re were ties of sovereignty between

68 ibid. p.157

94

Morocco and certain areas of Sahara, it would have been obliged to l'Onsult the

inhabitants on the different options provided for in resolution 1514 (XV). 69

DISSENTING OPINION OF JUDGE J .M. RUDA :

Justice Ruda disagreed with court's conclusion that there was legal ties between

Kingdom of Morocco and the Western Sahara but concluded that there were legal ties

between Western Sahara and the Mauritanian entity. The rights of a political entity over

a territory means the exercise of jurisdiction over persons and things and those rights

wert! therefore established in things relating to people. He opined that the General

Assembly was only interested in those legal ties the existence of which could throw light

on the question whether Western Sahara belonged to Morocco or the Mauritanian entity.

The reply of the court does not correspond to what has been requested by the General

Assembly. The letters and document submitted to the court does not afford dear

indication of permanent, real and manifested acceptance either of allegiance or of

Sultan's political authority over tribes in Western Sahara. Sporadic manifestations of

allegiance and authority, even if established, are not sufficient to declare the existence

of legal ties, whether of a territorial or personal character. 70

Further, the existence of legal ties between Mauritanian entity and the Western

Sahara had been ties of territorial character. Various tribes living in the territories of

blad-Shinguiry. were independent political unity which possessed rights. inter-alia. to

pastures. water-holes and burial grounds. which were reciprocally acknowledged among

69 ibid p. 174

70 ibid. p. 175

95

the tribes. These legal ties were affected by the process of colonization in the 1934

administrative agreement between Spain and France. which recognized the traditional

freedom of nomads to migrate across frontiers. 71

LEGAL STATUS OF WESTERN SAHARA AFTER 1975 MADRID AGREEMENT

Notwithstanding the Opinion expressed by ICJ in its judgemen. the Moroccan's

indulged in such acts which has justly been described by Tony Hodges as tht:

'Deco1onisation disaster'. A Secret agreement was sigr-1ed by Spain. Morocco and

Mauritania at Madrid on 14 November 1975, which envisaged tht! transfer of

"administrative authority" by Spain. to Morocco and Mauritania. What dot:s it mean in

International law? The Tripartite Agreement is contradictory in itself as on the one hand

it speaks of Decolonization while on the other hand it negotiates with 'interested parties'

disregarding the interest of the 'people' for whom the whole exercise was supported to

have been done. After the ratification of the Tripartite Agreement. the lao;t Spanish

Governor in the territory stated that Spain no longer exercised any authority in the

Sahara. Spanish Foreign Minister Cortina had made it clear in a note to UN Secretary

General Kurt Waldheim that the Spanish withdrawal involved the transfer of

administrative authority only, which again leaves the question of sovereignty unresolved.

In response to Morocco's request to Kurt Waldheim to send a UN observer to Jem'aa

meeting. Waldheirrt .stated that neither Spain nor the Tripartie administration had takt: ....

the necessary steps to assure the exercise of the right of self-determination. Similarly.

71 ibid. p. 176

96

the P.olisario Front raised senous questions about the Jema'as composition and

legitimacy. 7:!

The President select of the 31st General Assembly, Shirley Amarshinghe of Shri

Lanka condemned Morocco's opportunism and the indifferen<.:e and warned the third

world wuntries that its failure to unite in opposition to the Moro<.:<.:an and Mauritanian

usurpation of the Western Sahara would condone a trend'to repla<.:e the old imperialism

by another form of foreign control founded on territorial claims. 73 Similarly, the

Chairman of the Specia! Committee, Ambassador Salim of Tanzania pointed out that

·card~nal prim:iples' were involved and that the UN must avoid <.:ondoning an evil

precedent whi<.:h 'would have consequences not only in the territory itself but also beyond

its borders and even beyond the African continent. 74

On 14 April 1976, in an attempt to establish "formal" control over the Western

Sahara. Morocco and Mauritania signed an agreement to partition the disputed territory

with the Southern part (one-third of the territory) going to Mauritania and the northern

two-third of the territory being annexed by Morocco. They also signed an e<.:onomic

cooperation agreement for joint exploration/exploitation of all natural resources in the

·recovered provinces' both underground and offshore. 75 In this way, both Moro<.:co

and Mauritania usurped the whole of the territory notwithstanding the fact that they had

T' John Damis Contlict in North-West Africa (California. 1983) p. 74

73 UN Document A/C. 4/SR1175 Fourth Committee. 15 Nov. 27. 1975

74 UN Document AIC 4/SR2174 Fourth Committee, 22 November. 24. 1975 as Quoted in n.32. Lawless & Monahan. p.13

75 Damis. n. 71. p. 78

97.

to encounter fierce resistance from the indigenous population of the territory under the

leadership and guidance of POLISARIO who had established a Government-in-Exile

called Saharawi Arab Democratic Republic on 27 February 1976. The Moroccan

possession of the territory remains illegal as Spain had committed itself to the ·Declara­

tion' under the provisions of the UN Charter and practices and therefore the rule ·nemo

det quoat non-habet" (one who does not possess valid title cannot transfer the same

legally) applies. Moreover, the Moroccan acts are against the provisions of UN Charter.

the ICJ judgement. the OAU Charter and violates the principles enunciated in uti

possidetis and Resolution 1514 (XV) of the General Assembly.

The discussion of the various legal concepts and UN practices makes its

explicitly clear that the right to 'rule in perpetuity' through one time conquest m the

history or in the pre-colonial era would not hold good as far as the right to self­

determination is concerned. This is more so in the case where the historic rule has come

to an end through various factors and events. To claim the right to rule in perpetuity.

it is necessary that the conquest is complete, continuous and there is legitimacy of that

rule by the sovereign backing of the people. But the historical analysis of the territory

and its people proves otherwise. The rule was broken in the beginning of the 19th

Century and there was no continuous bay'a. Moreover, Morocco had adhered to the

OAU principles. it is a signatory state to the UN Charter. had admitted to the

'Decolonisation· of the territory before the various UN forums. invoked the ICJ"s

opm1on. There is no doubt that the UN failed to apply the principles of

·ocxolonization· and circumnavigated the usual procedure for decolonization by taking

recourse to the 1CJ at Morocco's request. Moreover, if the inter-temporal law is applied

to determine question of title or sovereignty. Morocco would not be able to win the case.

98

But it must be borne in mind that the international law does not take into account the

·Sharia· as far as the state practices are concerned.

Sovereignty and self-determination fohn um:omfortable bedfellows in the pr01.:ess

of decolonization and the Western Sahara issue provided the basis for an inevitable

contlict which international law could not resolve. 76 Even the Judges of the ICJ aware

of this problem and they had stated this in their separate opinions. They could nor go

beyond the questions posed by the UN General Assembly. They even could not abstain

as there is no provision of abstai-rnng in the statutes of 10. Thus. the only course left

for the parties were to take ·armed action' as the peaceful negotiations failed to tackk

the problem.

76 Lawless & Monahan, n.32. p.28

99