Public International Law - Western Sahara Case report

8/7/2019 Public International Law - Western Sahara Case report

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WESTERN SAHARA CASE

Procedural considerations

− Spain's objections:

1. the advisory jurisdiction is being used to circumvent the principle that jurisdiction to settle a dispute requires the consent of parties

− ICJ: Spain is a member of the UN and has accepted its Charter and Statute; it has thereby in general given its consent to the exercise by the Court of its advisory jurisdiction. It has not

objected, anc could not, to the GA's exercise of its powers to deal with the colonization of a non-self-governing territory and to seek an opinion on questions relevant to the exercise of

its powers. Spain did not oppose the reference of the WS question to the Court's advisory jurisdiction; rather it objected to the restriction of that reference to the historical aspects of that

question.

−ICJ: the consent of states, parties to a dispute, is the basis of the court's jurisdiction in contentious cases. It is different in regard to advisroy proceedings even where the request for anopinion relates to a legal question actually pending between states. The Court's reply is only of an advisory character; it has no binding force. No state, whether a member of the UN or

not, can prevent the gicing of an advisory opinion which the UN considers to be desirable to obtain enlightenment as to the course of action it should take. The Court's opinion is given

not to States, but to the organ which is entitled to request it. The reply of the Court, itself an organ of the UN, represents its participation in the activities of the organization and shouldnot be refused. However, lack of consent might constitute a ground for declining to give an opinion requested if, in the circumstances, considerations of judicial propriety should oblige

the Court to refuse to give an opinion.

− ICJ: in this case there's a legal controversy during the GA, '58, in that Spain stated that it possesses no non-self-governing territories, since their territories in Africa are their provinces.

Morocco claimed certain African territories at present under Spain as an integral part of its territory, while accepting the principle of self-determination (GA Resolution 1514). After it

became a member in '60, Mauritania claimed that the WS was part of its national territory, while also prepared to acquiesce to the will of the WS people. Thus, the request is located in a

broader frame of GAR 1514 and not confined to the settlement of a particular dispute, nor to the past but is alos directed to the present and future. The object of the request made

through GAR 3292, was for the GA to properly exercise its functions towards decolonization of WS. The origin and scope of the dispute between Spain and Morocco is not re: legal

status of WS today, but re: rights of Morocco over it at the time of colonization. The settlement of the dispute will not affect Spain's rights as AP of WS, but will assist GA in

decolonization.

2. the questions, as formulated, raise issues concerning the attribution of territorial sovereignty over WS.

- ICJ: questions do not relate to the territorial dispute between interested parties, because GAR 3292 recognizes Spain's current legal status as AP of WS

3. the Court does not possess the necessary information to pronounce judicially

- ICJ: though there's really no parties in an advisory proceeding required to furnish evidence to discharge any burden of proof, Mauritania, Morocco and Spain all furnished extensiveevidence, so did the Sec Gen submit a dossier concerning the discussion in the UN organs.

− The Court is competent to entertain the present request, by which the GA has referred to it questions embodying such concepts of law such as terra nullius and legal ties, regardless of the fact

that the GA has not requested the determination of existing rights and obligations. At the same time the opinion i s sought for a practical and contemporary purpose, namely, in order that the

GA should be in a better position to decide at its next session on the policy to be followed for the decolonization of WS and to choose the process for decolonization as laid down in GAR

1514.

− by lending its assistance in the solution of a problem confronting the GA, the Court would discharge its functions as the principal judicial organ of the UN. Only “compelling reasons” should

lead it to refuse to give a requested advisory opinion.

The principle of self-determination

− a right of peoples, its application being for the purpose of bringing all colonial situations to a speedy end; GAR 1514 (Declartion of the Granting of Independence to Colonial Countries and

Peoples)

− its application requires a free and genuine expression of the will of the peoples concerned

− GAR 1514 provided the basis for the process of decolonization which resulted since 1960 in the creation of the many states which are UN members today. It contemplates for non-self-

governing territories more than one possibility, namely: (1) emergence as a sovereign independent state; (2) free association with an independent state; or (3) integration with an independent

state

− these methods should be the result of free and voluntary choice by the peoples of the territory, with full knowledge of the change in their status, through democratic and informed process,

impartially conducted and may be under UN supervision, when it deems necessary.

− But this is not affected by the fact that in some cases the GA dispensed with the requirement of consultation of the inhabitants based either on the consideration that a certain population did

not constitute a “people” entitled to self-determination or on the conviction that it was totally unnecessary under a special circumstances.

− Re: Western Sahara

− '66: in a Special Committee, Spain agreed with the decolonization of WS through a referendum, so did Morocco and Mauritania, in line with GAR 1514.

− series of GARs from '66-'73 with the UN reaffirming its responisibility to lead the free expression of wishes of the people, and Morocco and Mauritania sustaining their respective

claims alongside it

− GAR 3292: for Spain to postpone referendum, without prejudice to the right of the WS people to self-determination, and to request an advisory opinion of the ICJ.



− Thus, the questions must be in the whole context of the decolonization process.

Questions submitted to the Court

1. Was Western Sahara (Rio de Oro and Sakiet el Hamra) at the time of the colonization by Spain a territory belonging to no one (terra nullius)? If in the negative,

2. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian Entity?

Temporal context

− Q1 relates to “the time of colonization of WS by Spain”, and by making Q2 conditional upon Q1, the time reference relates to Q2 as well

− not to establish a “critical date” as in territorial disputes, since the Court i s not asked to adjudicate between conflicting legal titlesl it is concerned only to identify the historical context of the

questions− the “time of colonization by Spain” is the period beginning 1884, when Spain proclaimed a protectorate over Rio de Oro, based upon earlier acts of alleged display of Spanish sovereignty

but only to enlighten the Court as to remote antecedents od Spanish presence.

− This does not mean that the information regarding its status at other times is wholly irrelevant; relevant only insofar as sheds light on the legal status and legal ties of WS at that period.

Question 1

− Considering the temporal context, the question must be interpreted by reference to the law in force at that period

− Terra nullius was a legal term of art employed in connection with “occupation” as one of the legal methods of acquiring sovereignty over a territory. Occupation being legally an original

means of peacably acquiring sovereignty over a territory otherwise than by cession or succession, it was a cardinal condition of a valid occupation that the territory should be terra

nullius—a territory belonging to no one—at the time of the act allege to constitute occupation.

− The state practice of the relavant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius. In the

case of such territories, the acquisition of sovereignty was not generally effected unilaterally through “occupation” by original title but through agreements concluded with local rulers.

Such agreements, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius.− Western Sahara:

− At the time of colonization WS was inhabited by peoples which, if nomadic, were socially and politically organized in tr ibes and under chiefs competent to represent them.

− Also, in colonizing WS, Spain in its Royal Order proclaimed that the King was taking Rio de Oro under his protection on the basis of agreements with the chiefs of the local tribes in the

form of “deeds of adherence” to Spain.

− Likewise, in negotiating with France concerning the limits of Spanish territory to the north of the Rio de Oro (i.e., the Sakiet El Hamra), Spain did not rely upon any claim to the

acquisition of sovereignty over a terra nullius.

Question 2

− Legal ties is a term not having in itself a very precise meaning, but in the present case its meaning has to be found in the purpose of GAR 3292, which places the questions within the context

of decolonization pursuant to GAR 1514. During discussion, a legal controversy arose over the status of WS at the relevant period, concerning Morocco, on the one hand, claiming WS as

part of the Sherifian State, and Mauritania, on the other hand, claiming WS as part of the Bilad Shinguitti of the Mauritanian Entity. Thus the term legal ties refers to such as may affect the

policy to be followed in the decolonization of WS, framing the question as not merely limited to ties established with the territory but also with reference to the people found in it,

since legal ties are normally established in relation to people.− Inasmuch as Q2 originated in the contentions between Morocco and Mauritania, it was for them to satisfy the Court that legal ties existed between WS and to Morocco or Mauritania.

− Western Sahara territory:

− part of the Great Sahara Desert

− low and spasmodic rainfall

− exploited by nomads, pasturing their animals or growing crops as and where conditions were favorable

− had a sparse population, consisted of nomadic tribes, which traversed thedesert on more or less regular routes dictated by the seasons and the wells or water-holes available

− right of pasture was enjoyed in common by the tribes

− perrenial water-holes were considered propert of the tribe which put them into commission, though their use was alos open to all, subject to certain customs as to priorities and the

amount of water taken

− have their recognized burial grounds

− inter-tribal conflict was not infrequent

−

sparsity of resources ans spasmodic character of rainfall compelled these nomadic tribes to traverse very wide areas of the desert. As a result, none of them were confined to WS, some passed to Morocco, Mauritania or Algeria.



− All the tribes were of Islamic faith and the territory lay within the Dar Al-Islam.

− Authority in the tribe vested in the sheikh, subject to the assent of the Juma'a, an assembly of its leading members. And the tribe had its own customary law applicable in conjucntionwith the Koranic law.

− One tribe had ties with another, either of dependence or of alliance, which were essentially tribal rather than territorial, ties of allegiance or vassalage.

− In the context of such a territory and socio-political organization of the population that the Court has to examine the “legal ties” in question.

Morocco's claim to legal ties with WS

Grounds Arguments Bases/Proof Others say ICJ says

1. Immemorial

possession

Arab conquest of North Africa in 7 th

century A.D. Shows not an isolated

act of occupation but on the public

display of sovereignty for centuries,

based on historical works

Legal Status of Eastern Greenland

Case

- that during a long period Morocco

was the only independent state which

existed in North-West Africa, and

- geographic contiguity of WS to

Morocco

Greenland Case – a claim to sovereignty based

upon continued display of authority involves 2

elements each of which must be shown to exist:

the intention and the will to act as sovereignty

over areas in thinly populated or unsettled

countries might be sufficient in the absence of a

competing claim

In this case, WS, if somewhat sparsely

populated, was a territory across which sociallyand politically organized tribes were in constant

movement and where armed incidents amongthem were frequent.

There is paucity of evidence of actual display of

authority unambiguously relating to WS

Geographical unity is also debatable, which

militates against the concept of contiguity.

What must be decisive is not the indirect

inferences drawn from events in past history but

evidence directly relating to effective display of

authority in WS at time of colonization and the

the period immediately preceding it.

2. The special

structure of the

Sherifian state

Founded on the common religious

bond of Islam and on the allegiance of

the various tribes to the Sultan,

through their caids or sheikhs, rather

than on the notion of territory

Common religious links do not signify a legal

tie of sovereignty or subordination to a ruler.

Even the Dar Al-Islamknew separate states

within the common religious bond.

Political ties to a ruler, on the other hand, is

frequently a major element in the composition

of a state. Such an allegiance must clearly be

real and manifested in acts evidencing

acceptance of his authority.

Consisted partly of the Bled Makhzen,

areas actually subject to the Sultan,

and the Bled Siba, areas in which de

facto the tribes were not submissive to

the Sultan.

- that the two expressions, merely

The Bled Siba

- wasn't administered by the Makhzen

- didn't contribute contingents to the Sherifian

Army

- no taxes collected by the Makhzen

- government was by the caids appointed by the



described two types of relationship

between the Moroccan local

authorities and the central power, not

a territorial separation. Because of acommon cultural heritage, the

spiritual authority of the Sultan wasalways accepted. The Bled Siba was

effecting an administrativedecentralization of authority.

tribes, and their powers were derived more from

acquiescence of the tribes than from any

delegation of authority by the Sultan

- even if didn't totally reject connections withthe Sherifian state, in reality they're de facto

independent powers.

This implies there was no effective andcontinuous display of state functions.

3. Alleged acts of

internal display of

Moroccan

authority

Allegiance to the Sultan shown by the

Saharan caids

Dahirs and other documents concerning

the appointment of caids

Spain:

- these don't relate to WS but to areas within

southern Morocco (Noun and Dra'a)

- no document of acceptance by thereceipients

- appointments as caid were conferred onsheikhs already elected by theirown tribes and

were only titles of honor on existing and defacto independent local rulers

Taken as a whole, this doesn't convince that

these activities are considered as having

constituted a display of the Sultan's authority.

However, it shows the display of some authority by the Sultan over some, but only some, of the

nomadic peoples in WS.

Imposition of Koranic and other taxes Spain: characteristic even of the Bled Siba that

the tribes refused to be taxed

“Military decisions” constitute acts of

resistance to foreign penetration

Spain: these were nothing more than

occasional raids to obtain booty or hostagesfor ransom

Allegiance shown by the

confederation of Tekna tribes with its

allies, one part established in the Noun and another nomadic in the

Sahara

Spain: the other nomadic part were “free”

Tekna

After the Marabout Ma Ul-'Aineen

established himself at Smara in late

1890s, much of the territory came

under this sheikh

- that he himself was the personal

representative of the Sultan

Spain: he exercised authority to the south of

Dra'a in complete independence of the Sultan;

his relations to the Sulan were based on

mutual respect and common interest in

resisting French expansion, based on equality,

not allegianceMauritania:

- the Regheibat were a tribe of Marabout

warriors wholly independent of both the Tekna

caids and the Sultan, and were rather linked

with the Bilad Shinguitti (the Mauritanian

Entity)

- Ma Ul-'Aineen was a Shinguitti personality

Two visits of Sultan Hassan I to the

southern area of Sous in 1882 and1886

Spain: these didn't reach WS or even the

Dra'a, but only to the Souss and the Noun, andtheir purpose was to prevent commerce

between the tribes of the Souss and the Noun

4. Internationalacts showing

Series of Moroccan treaties withSpain (1767), US (1836), Great

Art. 18, Treaty of Marrakesh (1767)- that the Arabic text says that the

Spain: the Spanish text refers to establishing atrading post in “the south of the River Noun”

Not reliable proof due to the Moroccan textdiverging materially from an authentic text of



recognition of the

Sultan's

sovereignty

Britain (1956) and Spain (1861) re:

rescue and safety of marienrs

shipwrecked on the coast of Wad

Noun or its vicinity

Sultan was recognized to take decisions

with respect to inhabitants of “Wad

Noun and beyond”

and no further the same treaty in the langauge of the other

state.

Hispano-Moroccan Treaty of

Commerce and Navigation (1861)

- that these recognize Moroccan

authorities through governors under the

Sultan

- that Art. 38 says the Spanish

authorities received permission from

the Sultan to enquire into the fate of

shipwrecked mariners, proven by

Spanish diplomatic documents re:recovery of 9 sailors of Esmeralda, who

were captured while fishing by theMoors of the frontier coast

Spain:

- 2 systems of rescue and protection: (1)

general system, Sultan exercises authority to

afford protection; (2) special regime for the

Wad Noun, where if a vessel is shipwrecked

there or beyond, the Sultan doesn't “order” or

“protect”, but rather would use his influence

and negotiate the ransoming with local

authorities.

- it was the intervention of the Beyrouk family, the sheikhs of the Wad Noun, that

liberated thet captives and negotiated directlywith Spanish Consuls.

The diplomatic documents show Spain's

recognition of the applicability of the Treaty,

but doesn't warrant the conclusion that it

recognizes the Sultan's sovereignty. Rather, it

confirms his exercise of personal authority or

influence through some tribes of the Tekna

caids of Wad Noun.

Treaty with Great Britain (1895)

recognizing lands as part of Morocco

The Anglo-Moroccan Agreement re:

Sultan's purchase of the trading station

at Cape Juby from NorthWest African

Company

- that if Morocco bought it, no one will

have any claims to the lands because

they belong to Morocco

Great Britain:

- that Cape Juby was outside Morocco, which

did not extend beyond the Dra'a

- it shows only acceptance not of the Sultan's

sovereignty but of his interest in that area

The various international agreements are of

limited value for it was not their purpose either

to recognize an existing sovereignty over a

territory or to deny it s existence. Their purpose

was rather to recognize or reserve for one or

both parties a “sphere of influence” at that time.

Diplomatic correspondence re:

implementation of Treaty of Tetuan

(1860) and agreement with Spain

(1900) re: cession of Ifni, showing

Spanish recognition of Moroccan

authority

- that the Sultan agreed to concede to

Spain the territory sufficient for the

construction of a fisheries establishment

- that the Spanish Ambassador in

Brussels wrote to the Belgian foreign

minister referring to instructions to the

Spanish rep, which resulted in a

Protocol

Spain:

- no such Protocol was concluded; no material

proof shown

Franco-German exchange of letters

(1911) understanding that Morocco

comprises all of French West Africa,

and the Spanish colony of Rio de Oro

- that Germany would not interfere in

agreements between France and Spain

re: Morocco, which comprises the area

between Algeria, French West Africa,and Spanish colony of Rio de Oro

Spain: Art. 6 of Franco-Spanish Convention

(1904)

- that French recognizes Spanish sovereignty

over the area, which is actually recognized asoutside Morocco

Mauritania's claim to legal ties with WS

Mauritania: that geographically the Mauritanian Entity covered a vast region bounded by Timbuktu (east), the Atlantic (west), Senegal River (south), and Wad Skeit el Hamra (north), which in the

eyes of its own inhabitants and of the Arabo-Islamic communities, constituted a distinct community, called the Bilad Shinguitti (BS).

Arguments, Bases/Proof Others say ICJ says

- that there are 2 types of political authority in the BS: (1)the emirates and (2) the tribal groups, and that both types

were independent of the Sultan of Morocco, as each was

autonomously administered by its ruler, whoseappointment and acts were subject to the assembly of

Recognition by France and Spain, which in1934, concluded and administrative

agreement to prevent any obstacles to the

nomadic existence of the tribes

Spain:- BS =/= Mauritanian Entity; BS = area of an

Islamic culture, a cultural and religious center

which had a certain influence up to 16th century- the idea of an entity must express not only a

Reparation for Injuries Suffered in theService of the United Nations:

- a criterion has to be employed to

determine whether or not whatconfronts the law is or is not legally



Juma'a

- that the BS was an entity united by historical, religious,

linguistic, social, cultural and legal ties

- that the concepts of “nation” and of “people” mostappropriately expalin the status of BS at the time of

colonization

belonging but also the idea the the components are

homogeneous. The Mauritanian Entity, however, is

formed of heterogeneous components, some being

mere tribes and others being complex emirates.Also, the Emirate of the Adrar, particularly, has

grave internal troubles and is being harassed byneighboring emirates, effectively being in a state of

anarchy.- no proof of ties of allegiance between the

Mauritanian tribes and those of WS, which livedindependently of other Saharan tribes

- re: agreements concluded by the independent

Saharan tribes with Spanish and French

explorersrun counter to the thesis that there was a

“Mauritanian Entity” in which the WS tribes were

integrated

- the Islamic Republic could not be regarded as the

direct successor to the alleged historical

Mauritanian Entity, for the notion of Mauritania was

born in 1904 when the WS was already said to havehad an existence established in fact and law.

an “entity”, the criterion was to

enquire whether thr entity involved

was in “such a position that it

possesses, in regard to its members,rights which it is entitled to ask them

to respect”

There were many ties of a racial,linguistic, religious, cultural and

economic nature between the varioustribes and emirates in the Saharan

regioun. However, there is that

independence of the tribes and

emirates in relation to one another

and, despite some forms of common

activity, the absence among them of

any common institutions or organs.

Therefore, the BS did not have the

character of a personality or corporate

entity distinct from the severalemirates and tribes. Thus, no legal t ies

exist between the Mauritanian Entityand the WS.

Both Morocco and Mauritania stress the overlapping character of the respective legal ties which they claim to have with WS. Both say that there is a north appertaining to Morocco and a south

appertaining to Mauritaniaand that there are some overlappings as a result of the intersection of the nomadic routes from the north and from the south, leaving “no geographical void”—no “no-man's

land” between their respective ties with WS.

ICJ:

Q2 doesn't envisage any territotrial delimitation by the Court. The overlapping simply arose from the geographical locations of the migration routes of the nomadic tribes. This complexity was

increased by the independence of some nomads, notably the Reighebat, a prominent warrior tribe in WS. Therefore, the significance of the overlapping is not that it indicates a “north” or a “south”without “no-man's land”. It signifies rather that it indicates the difficulty of disentangling the various relationships existing in WS at the time.

GA, in asking Q2, enquires as to the nature of the legal ties. The materials show the existence of legal ties of allegiance between the Sultan of Morocco and some tribes in WS. They also show theexistence of rights relating to land, which constituted legal ties with Mauritania. On the other hand, they don't establish any tie of territorial sovereignty between WS and Morocco or Mauritania. Thus,

the Court has not found legal ties of such a nature as might affect the application of GA Resolution 1514 in the decolonization of WS, and in particular, of the principle of self-determination.

Documents

Public International Law - Western Sahara Case report