International Court of Justice Advisory Opinion on Western Sahara

Background

Since its access to independence in 1956, Morocco has considered Spanish Sahara to be part of its pre-colonial territory, and Spain had largely decolonized its foreign holdings, including much of Spanish Morocco, but had retained the Spanish Sahara. In 1958, the Moroccan Army of Liberation fought the Spanish forces in the Ifni War. After support from France, Spain regained control of the region but returned the region of Cape Juby to Morocco. Morocco however continued to claim Ifni, Saguia el-Hamra and Rio De Oro and several other regions (Mauritania, western parts of Algeria and northern part of Mali) colonized by France. During the 1960s, Morocco succeeded in getting Spanish Sahara to be listed on the list of territories to be decolonized, and on December 20, 1966, United Nations General Assembly Resolution 2229 called on Spain to hold a referendum on self-determination in the region.

After initially resisting all claims by Morocco and Mauritania (which also started laying claims to parts of the region), Spain announced on August 20, 1974, that a referendum on self-determination would be held in the first six months of 1975 and took a census of the region in order to assess the voting population.

Morocco declared it cannot accept a referendum which would include an option for independence and renewed its demands for the integration of the remaining provinces of Saguia el-Hamra and Rio de Oro to the country's sovereignty. In Mauritania, a smaller movement existed to overtake some amount of the territory, partitioning it with Morocco.

Algerian-Moroccan relations had been strained since Algeria's independence in 1962, culminating in the Sand war, and a lack of normalized relations. Algeria, after initially supporting Morocco and Mauritania in their demands, started in 1975 to support the independence of the territory. The Algerian official position was that it supported the right of self-determination of the people of the former Spanish colony, as it had supported the right of self-determination of the peoples of the rest of the African colonized countries. The Polisario Front, created in 1973, a national liberation movement known as Polisario (Spanish: "Frente Popular de Liberación de Saguia el-Hamra y Río de Oro" English: "Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro") was formed in 1973 to expel the Spaniards. They engaged in several attacks against Spanish garrisons or patrols, and also attacked the Fosbucraa conveyor belt, which exported the rich local phosphates to the El Marsa port.

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

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

Submission

UN General Assembly Resolution 3292 requested that the International Court give an advisory opinion on the following questions:

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

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

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

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

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

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

The opinion

On October 15, a UN visiting mission sent by the General Assembly to tour the region and investigate the political situation published its findings, showing that the Sahrawi population were "overwhelmingly" in favor of independence from both Spain and Morocco/Mauritania. These findings were submitted to the Court, who published their opinion the next day.

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

For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the opinion, by 14 votes to two, that there were legal ties of allegiance between this territory and the Kingdom of Morocco. Furthermore, it was of opinion, by 15 votes to one, that there were legal ties between this territory and the "Mauritanian entity". However, the Court defined the nature of these legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied sovereignty or rightful ownership over the territory. These legal ties also did not apply to "self-determination through the free and genuine expression of the will of the peoples of the Territory."(ICJ Reports (1975) p. 68, para. 162)

Results

The opinion of the Court was interpreted differently by the different parties, and each focused on what it sees as supporting its claims.

While Morocco and Mauritania found in the answers to the two questions a recognition that their claims are legitimate and historically based, Algeria and the Polisario Front focused on the penultimate paragraph that stated that the court's decision was not to hinder the application of self-determination through the ongoing Spanish referendum.

King Hassan II declared the organisation of a peaceful march to force Spain to start negotiations on the status of the territory, to which Spain finally agreed. A round of talks between Spain, Morocco and Mauritania were held in Madrid and culminated in a tripartite agreement, becoming known as the Madrid Accords On November 16, 1975, where Spain formally ceded the administration of the northern two thirds of the territory to Morocco, while the southern third was to be administrated by Mauritania. Algeria protested the agreement, and president Boumedienne retaliated by expelling all Moroccans living in Algeria. The text of the Madrid Accords have never been made public record.

In consequence, the Court's decisions were largely disregarded by the interested parties. On October 31, 1975 the first Moroccan troops invaded Western Sahara from the north-east. Algeria sent its troops into the territory of Western Sahara to help in the logistic of the evacuation of the Sahrawi refugees who have been bombarded by Moroccan air forces, which led to the first and last direct military confrontation between units of the Moroccan armed forces and the Algerian national army in the First Battle of Amgala (1976). The Algerian army suffered hundreds of deaths and more than a hundred soldiers were made prisoners by the Moroccan army. Diplomatic intervention from Saudi Arabia and Egypt prevented the situation from escalating further.

Spain's last soldier departed the territory on February 26, 1976. The next day, the Saharawi Arab Democratic Republic was declared by Polisario Front representatives. Morocco intensified their military presence in the region, and by the end of the year, Mauritania and Morocco had partitioned the territory. Mauritania was too weak militarily and economically to compete against POLISARIO, though, and were forced to renounce their claims in 1979. Morocco immediately annexed that territory in addition. To this day, most of Western Sahara is administered by Morocco, but its sovereignty has not been recognized by the UN or any country in the world. At the same time, 82 governments have recognized the Sahrawi Republic as the legitimate government of Western Sahara.