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Western Sahara Advisory Opinion

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COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS, AVIS CONSULTATIFS ET ORDONNANCES SAHARA OCCIDENTAL AVIS CONSULTATIF DU 16 OCTOBRE 1975 INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVlSORY OPINIONS AND ORDERS WESTERN SAHARA ADVlSORY OPINION OF 16 OCTOBER 1975 Mode officiel de citation: Sahara occidental, avis consultatiJ; C.1.J. Recueil 1975, p. 12. Official citation: Western Sahara, Advisoty Opinion, 1.C.J. Reports 1975, p. 12. No de vente : Sales number 414 1 INTERNATIONAL COURT OF JUSTICE YEAR 1975 1975 16 October 16 October 1975 General List No. 61 WESTERN SAHARA Competence of the Corrrt tu give opinion reqirested-Propriety of givirlg the opinion-Relevance oylack of consent of a State corlcerried-Opinion reqiiested to giride Gerieral Assembly in respect of its own firtrrre action-Alleged terri- torial dispirte-Question of ascertairinient of facts-Determination of object of qiiestions in light of General Assembly resolrrtion 3292 (XXIX) and basic principles governirig decolor~ization-Temporal coritest of questions. Concept of terra nullius in Qi!estion 1-Territory peopled by tribes- Sigriificance of State practice ai the period concerned- Western Sahara not treated as terra nullius in the prccess c,f colonization. Mearlirig of "legal ties" irl Qirestiorr II-Characteristics of Westerri Sahara- Morocco's claim to sovereigilty or1 bnsis of ir?rmemorialpossessiori-Relevance of special strrtctrire of Sherifian State-Evidence said to ir~dicate interilal display and irlternational recognitio~lof A4oroccar1 sovereigrity-Significance of the " Wad Noim shipwreck clairse"-Arlglo-Moroccan Agreement of 13 March 1895-Frar~co-Germari exchnrlge of letters of 4 November 1911. The "Mairritaniarl entityW-Fearirres of the Bilad Shingi~itti-Its relation to the Mairritarlian entity-Crireriorl for determirling ivhetller ivhat corifror~tsthe law is legally an entity-Mear~irig of "legal ties" rrsed in cor~jrrrictiorz with "Marrritanian entityV-Overlappir~g character of claims tu legal ties. Significance of purpose for 11,hich opirrion is soiight-Natitre of legal ties utrd tkeir relation to the docolorrization of Western Sahara atid the prirlciple of self-determination. ADVISORY OPINION Present: President LACHS;Vice-Presider~t AMMOUN; Jirdges FORSTER,GROS, BENGZON,PETREN, ONYEAMA, DILLARD, IGNACIO-PINTO, DE CASTRO, Mo~ozov,JIMENEZ DE ARÉCHAGA,Sir Hurnphrey WALDOCK, NAGENDRASINGH, RUDA; Jlrdge ad hoc BONI;Registrar AQUARONE. WESTERN SAHARA (ADVISORY OPINION) 13 Concerning certain questions relating to Western Sahara (Rio de Oro and Sakiet El Hamra), THECOURT, composed as above, gives the follo~vingAdvisory Opinion: 1. The questions upon which the advisory opinion of the Court has been asked were laid before the Court by a letter dated 17 Deceniber 1974, filed in the Registry on 21 Decemter 1974, addressed by the Secretary-General of the United Nations to the President of the Court. In his letter the Secretary- General informed the Court that, by resolution 3292 (XXIX) adopted on 13 December 1974, the General Assembly of the United Nations had decided to request the Court to give an advisory opinion at an early date on the questions set out in the resolution. The text of that resolution is as fol- lows : "The General 'Assembly, Recalling its resolution 1514 (XV) of 14 December 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples, Recalling also its resolutions 2072 (XX) of 16 December 1965, 2229 (XXI) of 20 December 1966, 2354 (XXII) of 19 December 1967, 2428 (XXIII) of 18 December 1968, 2591 (XXIV) of 16 December 1969, 271 1 (XXV) of 14 December 1970, 2983 (XXVII) of 14 December 1972 and 3162 (XXVIII) of 14 December 1973, Reafirrnir?g the right of the population of the Spanish Sahara to self- determination in accordance with resolution 1514 (XV), Considering that the persistence of a colonial situation in Western Sahara jeopardizes stability and harmony in the north-west African region, Taking into accolent the statements made in the General Assembly on 30 September and 2 October 1974 by the Ministers for Foreign Affairs of the Kingdom of Moroccol and of the Islamic Republic of Mauri- tania 2, Taking note of the statements made in the Fourth Committee by the representatives of Morocco 3 and Mauritania4, in which the two countries acknowledged that they were both interested in the future of the Territory, Having heard the statements by the representative of Algerias, Having heard the statements by the representative of Spain6, (The references given below appear in the text adopted by the General Assembly.) 1 A/PV.2249. A/PV.2251. 3 A/C.4/SR.2117,2125 and 2130. 4 A/C.4/SR.2117 and 2130. 5 A/ PV.2265; A/C.4/SR.2125. 6 A/PV 2253: A/C.4/SR.2117,2125,2126 and 2130. WESTERN SAHARA (ADVISORY OPINION) 14 Noring that during the discussion a legal controversy arose over the status of the said territory at the time of its colonization by Spain, Considering, therefore, that it is highly desirable that the General Assembly, in order to continue the discussion of this question at its thirtieth session, should receive an advisory opinion on some important legal aspects of the problem, Bearing in miird Article 96 of the Charter of the United Nations and Article 65 of the Statute of the International Court of Justice, 1. Decides to request the International Court of Justice, without prejudice to the application of the principles embodied in General Assembly resolution 1514 (XV), to give an advisory opinion at an early date on the following questions: '1. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nrrllius)? 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?'; 2. Calls ripoil Spain, in its capacity as administering Power in parti- cular, as well as Morocco and Mauritania, in their capacity as interested parties, to submit to the International Court of Justice al1 such infor- mation and documents as may be needed to clarify those questions; 3. Urges the administering Power to postpone the referendum it contemplated holding in Western Sahara until the General Assembly decides on the policy to be followed in order to accelerate the decoloni- zation process in the territory, in accordance with resolution 1514 (XV), in the best possible conditions, in the light of the advisory opinion t0 be given by the International Court of Justice; 4. Reiterates its invitation to al1 States to observe the resolutions of the General Assembly regarding the activities of foreign econoniic and financial interests in the Territory and to abstain from contributing their investments or immigration policy to the maintenance of a colonial situation in the Territory; 5. Reqrlests the Special Conlnlittee on the Situation with regard to the lmplementation of the Declaration on the Granting of lndependence to Colonial Countries and Peoples to keep the situation in the Territory under review, including the sending of a visiting iiiission to the Territory, and to report thereon to the General Asseinbly at its thirtieth session." 2. In a comiiiunication received in the Registry on 19 Augiist 1975, the Secretary-General indicated that, owing to a technical error, the word "controversy" in the ninth paragrapli of the preamble of the above resolution had been replaced by the word "difficulty" in the text originally transniitted to the President of the Co~irt. 3. By letters dated 6 Jan~iary1975 the Registrar, pursuant to Article 66, paragraph 1, of the Statute of the Court, gave notice of the request for advisory opinion to al1 States entitled to appear before the Court. 4. The Court having decided, pursuant to Article 66, paragraph 2, of the Statute, that the States Meriibers of the United Nations were likely to be able WESTERN SAHARA (ADVISORY OPINION) 15 to furnish information on the questions submitted, the President, by an Order dated 3 January 1975, fixed 27 March 1975 as the time-limit within which the Court would be prepared to receive written statements from them. Accordingly, the special and direct communication provided for in Article 66, paragraph 2, of the Statute was included in the letters addressed to those States on 6 January 1975. 5. The following States submitted written staternents or letters to the Court in response to the Registry's communications: Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, France, Guatemala, Mauritania, Morocco, Nicaragua, Fanama and Spain. The texts of these statements and letters were transmitted to the States Members of the United Nations, and to the Secretary-General of the United Nations, and made accessible to the public as frorn 22 April 1975. 6. In addition to its written statement, Spain submitted six volumes entitled "Information and Documents presented by the Spanish Govern- ment to the Court in accordance with paragraph 2 of resolution 3292 (XXIX) of the United Nations General Assembly", and two volumes of "Further Documents" submitted on the same basis. Morocco similarly submitted a large number of documents "in support of its written statement and in accor- dance with paragraph 2 of resolution 3292 (XXIX)". Mauritania likewise appended documentary annexes to its written staternent. All three States provided cartographical material. 7. The Secretary-General of the United Nations, pursuant to Article 65, paragraph 2, of the Statute and Article 88 of the Rules of Court, transmitted to the Court a dossier of documents likely to throw light upon the question, together with an lntroductory Note; this dossier was received in the Registry in several instalments, in the two official languages of the Court, between 18 February and 15 April 1975. On 23 April 1975 the Registrar transmitted to the States Meinbers of the United Nations the Introductory Note aiid the list of the documents comprised in the dossier.
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