[p12]
The Court,
composed as above,
gives the following Advisory 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 December 1974, filed in the Registry on 21 December 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 follows:
"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, 2711 (XXV) of 14 December 1970, 2983 (XXVII) of 14 December 1972 and 3162 (XXVIII) of 14 December 1973,
Reaffirming 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 account the statements made in the General Assembly on 30 September and 2 October 1974 by the Ministers for Foreign Affairs of the Kingdom of Morocco FN1 and of the Islamic Republic of Mauritania, FN2
Taking note of the statements made in the Fourth Committee by the representatives of Morocco FN3 and Mauritania, FN4 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 Algeria, FN5 Having heard the statements by the representative of SpainFN6, [p14]
Noting 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 mind 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:
'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)?
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 upon Spain, in its capacity as administering Power in particular, as well as Morocco and Mauritania, in their capacity as interested parties, to submit to the International Court of Justice all such information 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 decolonization process in the territory, in accordance with resolution 1514 (XV), in the best possible conditions, in the light of the advisory opinion to be given by the International Court of Justice;
4. Reiterates its invitation to all States to observe the resolutions of the General Assembly regarding the activities of foreign economic and financial interests in the Territory and to abstain from contributing by their investments or immigration policy to the maintenance of a colonial situation in the Territory;
5. Requests the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples to keep the situation in the Territory under review, including the sending of a visiting mission to the Territory, and to report thereon to the General Assembly at its thirtieth session." ---------------------------------------------------------------------------------------------------------------------
(The references given below appear in the text adopted by the General Assembly.) FN1A/PV.2249.
FN2 A/PV.2251.
FN3 A/C.4/SR.2117, 2125 and 2130.
FN4 A/C.4/SR.2117 and 2130.
FN5 A/PV.2265; A/C.4/SR.2125.
FN6 A/PV 2253; A/C.4/SR.2117, 2125, 2126 and 2130.
---------------------------------------------------------------------------------------------------------------------
2. In a communication received in the Registry on 19 August 1975, the Secretary-General indicated that, owing to a technical error, the word "controversy" in the ninth paragraph of the preamble of the above resolution had been replaced by the word "difficulty" in the text originally transmitted to the President of the Court.
3. By letters dated 6 January 1975 the Registrar, pursuant to Article 66, paragraph 1, of the Statute of the Court, gave notice of the request for advisory opinion to all States entitled to appear before the Court.
4. The Court having decided, pursuant to Article 66, paragraph 2, of the Statute, that the States Members of the United Nations were likely to be able [p 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 statements or letters to the Court in response to the Registry's communications: Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, France, Guatemala, Mauritania, Morocco, Nicaragua, Panama 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 from 22 April 1975.
6. In addition to its written statement, Spain submitted six volumes entitled "Information and Documents presented by the Spanish Government 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 accordance with paragraph 2 of resolution 3292 (XXIX)". Mauritania likewise appended documentary annexes to its written statement. 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 Introductory 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 Members of the United Nations the Introductory Note and the list of the documents comprised in the dossier.
8. By letters dated 25 and 26 March 1975, respectively, Morocco and Mauritania each submitted a request for the appointment of a judge ad hoc to sit in the case. At public sittings held from 12 to 16 May 1975 the Court heard observations on this question from representatives of those States, as also of Spain and Algeria, which had likewise asked to be heard.
9. In an Order of 22 May 1975 (I.C.J. Reports 1975, pp. 6-10) the Court concluded that, for the purpose of the preliminary issue of its composition, the material submitted to it indicated that at the time of the adoption of resolution 3292 (XXIX):
". . . there appeared to be a legal dispute between Morocco and Spain regarding the Territory of Western Sahara; that the questions contained in the request for an opinion [might] be considered to be connected with that dispute; and that, in consequence, for purposes of application of Article 89 of the Rules of Court, the advisory opinion requested in that resolution appear[ed] to be one 'upon a legal question actually pending between two or more States';"
with regard to Mauritania, the Court concluded that the material submitted to it, while showing that at the time of the adoption of the resolution "Mauritania had previously adduced a series of considerations in support of its [p 16] particular interest in the territory of Western Sahara", indicated, for the purpose of the aforesaid preliminary issue, that at that time "there appeared to be no legal dispute between Mauritania and Spain regarding the Territory of Western Sahara; and that, in consequence, for purposes of application of Article 89 of the Rules of Court, the advisory opinion requested" appeared "not to be one 'upon a legal question actually pending' between those States"; those conclusions, the Court stated, "in no way prejudge[d] the locus standi of any interested State in regard to matters raised in the present case, nor [did] they prejudge the views of the Court with regard to the questions referred to it", or any other question which might fall to be decided in the further proceedings, including those of the Court's competence and the propriety of its exercise. The Court found accordingly that Morocco was entitled under Articles 31 and 68 of the Statute and Article 89 of the Rules of Court to choose a person to sit as judge ad hoc, but that, in the case of Mauritania, the conditions for the application of those Articles had not been satisfied.
10. Morocco had, in its communication of 25 March 1975 mentioned above chosen Mr. Alphonse Boni, President of the Supreme Court of the Ivory Coast, to sit as judge ad hoc in the case. Spain, consulted in accordance with Article 3, paragraph 1, of the Rules of Court, did not make any objection to this choice.
11. By a letter of 29 May 1975, the Registrar invited the Governments of the States Members of the United Nations to inform him whether they intended to take part in the oral proceedings. In addition to the four Governments which had already submitted observations during the hearings devoted to the question of the appointment of judges ad hoc, the Government of Zaire indicated that it proposed to submit its point of view to the Court. These Governments and the Secretary-General of the United Nations were informed that the date fixed for the opening of the oral proceedings was 25 June 1975. In the course of 27 public sittings, held between 25 June and 30 July 1975, oral statements were made to the Court by the following representatives:
for Morocco: H.E. Mr. Driss Slaoui, Ambassador, Permanent Representative to the United Nations;
Mr. Magid Benjelloun, Procureur general at the Supreme Court of Morocco;
Mr. Georges Vedel, Doyen honoraire of the Faculty of Law, Paris;
Mr. Rene-Jean Dupuy, Professor at the Faculty of Law, Nice; member of the Institute of International Law;
Mr. Mohamed Bennouna, Professor at the Faculty of Law, Rabat;
Mr. Paul Isoart, Professor at the Faculty of Law, Nice;
for Mauritania: H.E. Mr. Moulaye el Hassen, Permanent Representative
to the United Nations;
Mr. Yedali Ould Cheikh, Assistant Secretary-General of the Office of the President;
H.E. Mr. Mohamed Ould Maouloud, Ambassador; Mr. Jean Salmon, Professor in the Faculty of Law at the Universite libre de Bruxelles; [p 17]
for Zaire: Mr. Bayona-ba-Meya, Senior President of the Supreme Court of Zaire, Professor at the Faculty of Law, National University of Zaire;
for Algeria : H.E. Mr. Mohammed Bedjaoui, Ambassador of Algeria to France;
for Spain: H.E. Mr. Ramón Sedó, Ambassador of Spain to the Netherlands;
Mr. Santiago Martínez Caro, Director of the technical staff of the Minister for Foreign Affairs; Mr. Jose M. Lacleta, Legal Adviser to the Ministry of Foreign Affairs;
Mr. Fernando Arias-Salgado, Legal Adviser to the Ministry of Foreign Affairs;
Mr. Julio González Campos, Ordinary Professor of International Law at the University of Oviedo.
***
12. The Court will first consider certain matters regarding the procedure adopted in the present case. One is a suggestion that the Court ought to have suspended the proceedings on the substance of the questions referred to it and to have first confined itself to determining in interlocutory proceedings certain issues said to be preliminary: whether the Court is confronted with a legal question; whether there are compelling reasons for the Court's declining to reply to the request; what the eventual effect of the Court's findings may be in respect of the further process of decolonization of the territory. That these issues are of a purely preliminary character is, however, impossible to accept, particularly as they concern the object and nature of the request, the role of consent in the present proceedings, and the meaning and scope of the questions referred to the Court. Far from having a preliminary character, they constitute part of the substance of the case. Moreover, the procedure suggested, instead of facilitating the work of the Court, would have caused unwarranted delay in the discharge of the Court's functions and in its responding to the request of the General Assembly. In the event, the procedure adopted by the Court afforded a full opportunity for all the above issues to be examined, and in fact they were debated in extensive proceedings.
13. Another suggestion is that, before pronouncing on the requests made by Morocco and Mauritania for appointment of judges ad hoc, the Court ought to have decided with finality whether there was in this case a legal dispute between those States and Spain. However, as the Court said in the case concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) :
"... the question whether a judge ad hoc should be appointed is of course a matter concerning the composition of the Bench and possesses ...[p 18] absolute logical priority. It has to be settled prior to the opening of the oral proceedings, and indeed before any further issues, even of procedure, can be decided. Until it is disposed of the Court cannot proceed with the case. It is thus a logical necessity that any request for the appointment of a judge ad hoc must be treated as a preliminary matter on the basis of a prima facie appreciation of the facts and the law. This cannot be construed as meaning that the Court's decision thereon may involve the irrevocable disposal of a point of substance or of one related to the Court's competence... [T]o assert that the question of the judge ad hoc could not be validly settled until the Court had been able to analyse substantive issues is tantamount to suggesting that the composition of the Court could be left in suspense, and thus the validity of its proceedings left in doubt, until an advanced stage in the case." (I.C.J. Reports 1971, p. 25.)
It is also to be observed that, if the Court had subordinated its decision on the requests for judges ad hoc to a final conclusion on these allegedly preliminary issues, the practical result would have been that these issues — some of the most important and controverted in the case — would have been decided with the participation of a judge of Spanish nationality and without the question of judges ad hoc having been resolved.
***
4. Under Article 65, paragraph 1, of the Statute:
"The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request."
The present request has been made pursuant to Article 96, paragraph 1, of the Charter of the United Nations, under which the General Assembly may seek the Court's advisory opinion on any legal question.
15. The questions submitted by the General Assembly have been framed in terms of law and raise problems of international law: whether a territory was terra nullius at the time of its colonization; what legal ties there were between that territory and the Kingdom of Morocco and the Mauritanian entity. These questions are by their very nature susceptible of a reply based on law; indeed, they are scarcely susceptible of a reply otherwise than on the basis of law. In principle, therefore, they appear to the Court to be questions of a legal character. It may be added that none of the States which have appeared before it have contended that the questions are not legal questions within the meaning of Article 96, paragraph 1, of the Charter and Article 65, paragraph 1, of the Statute. It is necessary, however, to consider the matter further, because doubts have been raised concerning the legal character of the questions in the particular circumstances of this case. [p 19]
16. It has been suggested that the questions posed by the General Assembly are not legal, but are either factual or are questions of a purely historical or academic character.
17. It is true that, in order to reply to the questions, the Court will have to determine certain facts, before being able to assess their legal significance.
However, a mixed question of law and fact is none the less a legal question within the meaning of Article 96, paragraph 1, of the Charter and Article 65, paragraph 1, of the Statute. As the Court observed in its Opinion concerning the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276(1970):
"In the view of the Court, the contingency that there may be factual issues underlying the question posed does not alter its character as a 'legal question' as envisaged in Article 96 of the Charter. The reference in this provision to legal questions cannot be interpreted as opposing legal to factual issues. Normally, to enable a court to pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues." (I.C.J. Reports 1971, p. 27.)
18. The questions put to the Court confine the period to be taken into consideration to the time of colonization by Spain. The view has been expressed that in order to be a "legal question" within the meaning of Article 65, paragraph 1, of the Statute, a question must not be of a historical character, but must concern or affect existing rights or obligations. Yet there is nothing in the Charter or Statute to limit either the competence of the General Assembly to request an advisory opinion, or the competence of the Court to give one, to legal questions relating to existing rights or obligations. There have been instances of Advisory Opinions which did not concern existing rights nor an actually pending issue (e.g., Designation of the Workers' Delegate for the Netherlands at the Third Session of the International Labour Conference, Advisory Opinion, 1922, P.C.I.J., Series B, No. 1). When confronted, in the advisory case concerning Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), with the proposition that the Court should not deal with a question couched in abstract terms, this Court rejected it in the following words:
"That is a mere affirmation devoid of any justification. According to Article 96 of the Charter and Article 65 of the Statute, the Court may give an advisory opinion on any legal question, abstract or otherwise." (I.C. J. Reports 1947-1948, p. 61.)
And in its Advisory Opinion of 12 July 1973 the Court said:
"The mere fact that it is not the rights of States which are in issue in the proceedings cannot suffice to deprive the Court of a competence expressly conferred on it by its Statute." (Application for Review of [p 20] Judgement No. 158 of the United Nations Administrative Tribunal, I.C.J. Reports 1973, p. 172.)
Although these pronouncements were made in somewhat different contexts, they indicate that the references to "any legal question" in the above-mentioned provisions of the Charter and Statute are not to be interpreted restrictively.
19. Thus, to assert that an advisory opinion deals with a legal question within the meaning of the Statute only when it pronounces directly upon the rights and obligations of the States or parties concerned, or upon the conditions which, if fulfilled, would result in the coming into existence, modification or termination of such a right or obligation, would be to take too restrictive a view of the scope of the Court's advisory jurisdiction. It has undoubtedly been the usual situation for an advisory opinion of the Court to pronounce on existing rights and obligations, or on their coming into existence, modification or termination, or on the powers of international organs. However, the Court may also be requested to give its opinion on questions of law which do not call for any pronouncement of that kind, though they may have their place within a wider problem the solution of which could involve such matters. This does not signify that the Court is any the less competent to entertain the request if it is satisfied that the questions are in fact legal ones, and to give an opinion once it is satisfied that there is no compelling reason for declining to do so.
20. The Court accordingly finds that it is competent under Article 65, paragraph 1, of its Statute to entertain the present request, by which the General Assembly has referred to it questions embodying such concepts of law as terra nullius and legal ties, regardless of the fact that the Assembly has not requested the determination of existing rights and obligations. At the same time it appears from resolution 3292 (XXIX) that the opinion is sought for a practical and contemporary purpose, namely, in order that the General Assembly should be in a better position to decide at its thirtieth session on the policy to be followed for the decolonization of Western Sahara. However, the issue of the relevance and practical interest of the questions posed concerns, not the competence of the Court, but the propriety of its exercise. It is therefore in considering the subject of judicial propriety that the Court will examine the objection which has been raised in this connection, alleging that the questions are devoid of any useful object.
21. Similarly, the absence of an interested State's consent to the exercise of the Court's advisory jurisdiction does not concern the competence of the Court but the propriety of its exercise, as clearly appears from the Advisory Opinion concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, to which reference will be made later. Hence, notwithstanding the fact that Spain has based on the absence of its consent an objection against the competence of the Court as well as the propriety of its exercise, it is in dealing with the latter that the Court will examine the issues raised by that lack of consent.[p 21]
22. In sum, while the Court is satisfied of its competence to entertain the present request, it remains to be considered whether, in the circumstances of this case, it should exercise this competence or, on the contrary, decline to do so, whether on the grounds already referred to or for any other reason.
***
23. Article 65, paragraph 1, of the Statute, which establishes the power of the Court to give an advisory opinion, is permissive and, under it, that power is of a discretionary character. In exercising this discretion, the International Court of Justice, like the Permanent Court of International Justice, has always been guided by the principle that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions. If the question is a legal one which the Court is undoubtedly competent to answer, it may none the less decline to do so. As this Court has said in previous Opinions, the permissive character of Article 65, paragraph 1, gives it the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the request. It has also said that the reply of the Court, itself an organ of the United Nations, represents its participation in the activities of the Organization and, in principle, should not be refused. By lending its assistance in the solution of a problem confronting the General Assembly, the Court would discharge its functions as the principal judicial organ of the United Nations. The Court has further said that only "compelling reasons" should lead it to refuse to give a requested advisory opinion (cf. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I.C.J. Reports 1950, p. 72; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 27).
*
24. Spain has put forward a series of objections which in its view would render the giving of an opinion in the present case incompatible with the Court's judicial character. Certain of these are based on the consequences said to follow from the absence of Spain's consent to the adjudication of the questions referred to the Court. Another relates to the alleged academic nature, irrelevance or lack of object of those questions. Spain has asked the Court to give priority to the examination of the latter. The Court will, however, deal with the objections founded on the lack of Spain's consent to adjudication of the questions, before turning to the objection which concerns the subject-matter of the questions themselves.[p 22]
25. Spain has made a number of observations relating to the lack of its consent to the proceedings, which, it considers, should lead the Court to decline to give an opinion. These observations may be summarized as follows:
(a) In the present case 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, as formulated, raise issues concerning the attribution of territorial sovereignty over Western Sahara.
(c) The Court does not possess the necessary information concerning the relevant facts to enable it to pronounce judicially on the questions submitted to it.
26. The first of the above observations is based on the fact that on 23 September 1974 the Minister for Foreign Affairs of Morocco addressed a communication to the Minister for Foreign Affairs of Spain recalling the terms of a statement by which His Majesty King Hassan II had on 17 September 1974 proposed the joint submission to the International Court of Justice of an issue expressed in the following terms:
"You, the Spanish Government, claim that the Sahara was res nullius. You claim that it was a territory or property left uninherited, you claim that no power and no administration had been established over the Sahara: Morocco claims the contrary. Let us request the arbitration of the International Court of Justice at The Hague ... It will state the law on the basis of the titles submitted ..."
Spain has stated before the Court that it did not consent and does not consent now to the submission of this issue to the jurisdiction of the Court.
27. Spain considers that the subject of the dispute which Morocco invited it to submit jointly to the Court for decision in contentious proceedings, and the subject of the questions on which the advisory opinion is requested, are substantially identical; thus the advisory procedure is said to have been used as an alternative after the failure of an attempt to make use of the contentious jurisdiction with regard to the same question. Consequently, to give a reply would, according to Spain, be to allow the advisory procedure to be used as a means of bypassing the consent of a State, which constitutes the basis of the Court's jurisdiction. If the Court were to countenance such a use of its advisory jurisdiction, the outcome would be to obliterate the distinction between the two spheres of the Court's jurisdiction, and the fundamental principle of the independence of States would be affected, for States would find their disputes with other States being submitted to the Court, by this indirect means, without their consent; this might result in compulsory jurisdiction being achieved by majority vote in a political organ. Such circumvention of the well-established principle of consent for the exercise of [p 23] international jurisdiction would constitute, according to this view, a compelling reason for declining to answer the request.
28. In support of these propositions Spain has invoked the fundamental rule, repeatedly reaffirmed in the Court's jurisprudence, that a State cannot, without its consent, be compelled to submit its disputes with other States to the Court's adjudication. It has relied, in particular, on the application of this rule to the advisory jurisdiction by the Permanent Court of International Justice in the Status of Eastern Carelia case (P.C.I.J., Series B, No. 5), maintaining that the essential principle enunciated in that case is not modified by the decisions of the present Court in the cases concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase (I.C.J. Reports 1950, p. 65) and the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)(I.C.J. Reports 1971, p. 16). Morocco and Mauritania, on the other hand, have maintained that the present case falls within the principles applied in those two decisions and that the ratio decidendi of the Status of Eastern Carelia case is not applicable to it.
29. It is clear that Spain has not consented to the adjudication of the questions formulated in resolution 3292 (XXIX). It did not agree to Morocco's proposal for the joint submission to the Court of the issue raised in the communication of 23 September 1974. Spain made no reply to the letter setting out the proposal, and this was properly understood by Morocco as signifying its rejection by Spain. As to the request for an advisory opinion, the records of the discussions in the Fourth Committee and in the plenary of the General Assembly confirm that Spain raised objections to the Court's being asked for an opinion on the basis of the two questions formulated in the present request. The Spanish delegation stated that it was prepared to join in the request only if the questions put were supplemented by another question establishing a satisfactory balance between the historical and legal exposition of the matter and the current situation viewed in the light of the Charter of the United Nations and the relevant General Assembly resolutions on the decolonization of the territory. In view of Spain's persistent objections to the questions formulated in resolution 3292 (XXIX), the fact that it abstained and did not vote against the resolution cannot be interpreted as implying its consent to the adjudication of those questions by the Court. Moreover, its participation in the Court's proceedings cannot be understood as implying that it has consented to the adjudication of the questions posed in resolution 3292 (XXIX), for it has persistently maintained its objections throughout.
30. In other respects, however, Spain's position in relation to the present proceedings finds no parallel in the circumstances of the advisory proceedings concerning the Status of Eastern Carelia in 1923. In that case, one of the States concerned was neither a party to the Statute of the
[p 24] Permanent Court nor, at the time, a Member of the League of Nations, and lack of competence of the League to deal with a dispute involving non-member States which refused its intervention was a decisive reason for the Court's declining to give an answer. In the present case, Spain is a Member of the United Nations and has accepted the provisions of the 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, and could not validly object, to the General Assembly's exercise of its powers to deal with the decolonization of a non-self-governing territory and to seek an opinion on questions relevant to the exercise of those powers. In the proceedings in the General Assembly, Spain did not oppose the reference of the Western Sahara question as such to the Court's advisory jurisdiction: it objected rather to the restriction of that reference to the historical aspects of that question.
31. In the proceedings concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, this Court had to consider how far the views expressed by the Permanent Court in the Status of Eastern Carelia case were still pertinent in relation to the applicable provisions of the Charter of the United Nations and the Statute of the Court. It stated, inter alia:
"This objection reveals a confusion between the principles governing contentious procedure and those which are applicable to Advisory Opinions.
The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an 'organ of the United Nations', represents its participation in the activities of the organization, and, in principle, should not be refused." (I.C.J. Reports 1950, p. 71.)
32. The Court, it is true, affirmed in this pronouncement that its competence to give an opinion did not depend on the consent of the interested States, even when the case concerned a legal question actually pending between them. However, the Court proceeded not merely to stress its judicial character and the permissive nature of Article 65, paragraph 1, of the Statute but to examine, specifically in relation to the opposition of some of the interested States, the question of the judicial propriety of giving the opinion. Moreover, the Court emphasized the circumstances differentiating the case [p 25] then under consideration from the Status of Eastern Carelia case and explained the particular grounds which led it to conclude that there was no reason requiring the Court to refuse to reply to the request. Thus the Court recognized that lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court's competence, but for the appreciation of the propriety of giving an opinion.
33. In certain circumstances, therefore, the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court's judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent. If such a situation should arise, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction.
34. The situation existing in the present case is not, however, the one envisaged above. There is in this case a legal controversy, but one which arose during the proceedings of the General Assembly and in relation to matters with which it was dealing. It did not arise independently in bilateral relations. In a communication addressed on 10 November 1958 to the Secretary-General of the United Nations, the Spanish Government stated: "Spain possesses no non-self-governing territories, since the territories subject to its sovereignty in Africa are, in accordance with the legislation now in force, considered to be and classified as provinces of Spain". This gave rise to the "most explicit reservations" of the Government of Morocco, which, in a communication to the Secretary-General of 20 November 1958, stated that it "claim[ed] certain African territories at present under Spanish control as an integral part of Moroccan national territory".
35. On 12 October 1961, after Spain had agreed to transmit information on the territories in question, Morocco formulated in the Fourth Committee of the General Assembly "the strongest reservations" regarding any information Spain might submit concerning them. "Those cities and regions", it said, "formed an integral part of Morocco and the statutes at present governing them were contrary to international law and incompatible with the territorial sovereignty and integrity of Morocco". In answering these reservations, Spain drew attention, with reference to Western Sahara, to the statement it had made on 10 October 1961 in the General Assembly:
"... the historic presence of Spanish citizens on the west coast of Africa, not subject to the sovereignty of any other country and devoting [p 26] themselves largely to fishing, goes back a very long way and has been confirmed by international law ... [T]he rulers of Morocco have recognized on repeated occasions that their sovereignty does not extend to the coasts of the present Spanish province of the Sahara".
36. The legal controversy which thus arose in the General Assembly in regard to Western Sahara remained in a latent state from 1966 to 1974, a period in which Morocco, without abandoning its legal position, accepted the application of the principle of self-determination. The controversy reappeared when Morocco directly presented to Spain its legal claim in the above communication of 23 September 1974, and continued to subsist; this communication, however, did not have the effect of detaching the dispute from the decolonization proceedings of the United Nations. The submission of the issue to the Court was explicitly proposed by Morocco "in order to guide the United Nations towards a final solution of the problem of Western Sahara...".
37. After it became a Member in 1960, Mauritania put forward in the United Nations the claim that Western Sahara was a part of its national territory. It was however prepared to acquiesce in the will of the population and did not confront Spain with a direct legal claim parallel to that of Morocco.
38. As previously noted, Spain considers that the terms of the Moroccan Note of 23 September 1974 and those of the request are substantially identical. This is not however the case. The questions in the request differ materially from those raised in the Moroccan proposal, in that the former introduces the issue of the ties of the territory with the Mauritanian entity and places the case referred to the Court in a different context. In the General Assembly debates the claims of Mauritania and Morocco to legal ties appeared, in many respects, as conflicting; in the oral proceedings before the Court they were described as overlapping in certain areas rather than as conflicting. The interaction between these two claims in respect of the same territory introduces, in either situation, a substantial difference, going beyond a mere broadening in the scope of the questions posed. In any event, the terms of the request contain a proviso concerning the application of General Assembly resolution 1514 (XV). Thus the legal questions of which the Court has been seised are located in a broader frame of reference than the settlement of a particular dispute and embrace other elements. These elements, moreover, are not confined to the past but are also directed to the present and the future.
39. The above considerations are pertinent for a determination of the object of the present request. The object of the General Assembly has not been to bring before the Court, by way of a request for advisory opinion, a dispute or legal controversy, in order that it may later, on the basis of the Court's opinion, exercise its powers and functions for the peaceful settlement [p 27] of that dispute or controversy. The object of the request is an entirely different one: to obtain from the Court an opinion which the General Assembly deems of assistance to it for the proper exercise of its functions concerning the decolonization of the territory.
40. The General Assembly, as appears from paragraph 3 of resolution 3292 (XXIX), has asked the Court for an opinion so as to be in a position to decide "on the policy to be followed in order to accelerate the decolonization process in the territory ... in the best possible conditions, in the light of the advisory opinion ...". The true object of the request is also stressed in the preamble of resolution 3292 (XXIX), where it is stated "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".
41. What the Court said in a similar context, in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, applies also to the present case: "The object of this request for an Opinion is to guide the United Nations in respect of its own action." ( I. C.J. Reports 1951, p. 19.) The legitimate interest of the General Assembly in obtaining an opinion from the Court in respect of its own future action cannot be affected or prejudiced by the fact that Morocco made a proposal, not accepted by Spain, to submit for adjudication by the Court a dispute raising issues related to those contained in the request. It is difficult to see on what basis the sending of the Note would make Spain's consent necessary for the reference of the questions to the Court, if that consent would not otherwise be needed.
42. Furthermore, the origin and scope of the dispute, as above described, are important in appreciating, from the point of view of the exercise of the Court's discretion, the real significance in this case of the lack of Spain's consent. The issue between Morocco and Spain regarding Western Sahara is not one as to the legal status of the territory today, but one as to the rights of Morocco over it at the time of colonization. The settlement of this issue will not affect the rights of Spain today as the administering Power, but will assist the General Assembly in deciding on the policy to be followed in order to accelerate the decolonization process in the territory. It follows that the legal position of the State which has refused its consent to the present proceedings is not "in any way compromised by the answers that the Court may give to the questions put to it" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I.C.J. Reports 1950, p. 72).
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43. A second way in which Spain has put the objection of lack of its consent is to maintain that the dispute is a territorial one and that the consent [p 28] of a State to adjudication of a dispute concerning the attribution of territorial sovereignty is always necessary. The questions in the request do not however relate to a territorial dispute, in the proper sense of the term, between the interested States. They do not put Spain's present position as the administering Power of the territory in issue before the Court: resolution 3292 (XXIX) itself recognizes the current legal status of Spain as administering Power. Nor is in issue before the Court the validity of the titles which led to Spain's becoming the administering Power of the territory, and this was recognized in the oral proceedings. The Court finds that the request for an opinion does not call for adjudication upon existing territorial rights or sovereignty over territory. Nor does the Court's Order of 22 May 1975 convey any implication that the present case relates to a claim of a territorial nature.
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44. A third way in which Spain, in its written statement, has presented its opposition to the Court's pronouncing upon the questions posed in the request is to maintain that in this case the Court cannot fulfil the requirements of good administration of justice as regards the determination of the facts. The attribution of territorial sovereignty, it argues, usually centres on material acts involving the exercise of that sovereignty, and the consideration of such acts and of the respective titles inevitably involves an exhaustive determination of facts. In advisory proceedings there are properly speaking no parties obliged to furnish the necessary evidence, and the ordinary rules concerning the burden of proof can hardly be applied. That being so, according to Spain, the Court should refrain from replying in the absence of facts which are undisputed, since it would not be in possession of sufficient information such as would be available in adversary proceedings.
45. Considerations of this kind played a role in the case concerning the Status of Eastern Carelia. In that instance, the non-participation of a State concerned in the case was a secondary reason for the refusal to answer. The Permanent Court of International Justice noted the difficulty of making an enquiry into facts concerning the main point of a controversy when one of the parties thereto refused to take part in the proceedings.
46. Although in that case the refusal of one State to take part in the proceedings was the cause of the inadequacy of the evidence, it was the actual lack of "materials sufficient to enable it to arrive at any judicial conclusion upon the question of fact" (P.C.I.J., Series B, No. 5, p. 28) which was considered by the Permanent Court, for reasons of judicial propriety, to prevent it from giving an opinion. Consequently, the issue is whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed questions of fact the determination [p 29] of which is necessary for it to give an opinion in conditions compatible with its judicial character.
47. The situation in the present case is entirely different from that with which the Permanent Court was confronted in the Status of Eastern Carelia case. Mauritania, Morocco and Spain have furnished very extensive documentary evidence of the facts which they considered relevant to the Court's examination of the questions posed in the request, and each of these countries, as well as Algeria and Zaire, have presented their views on these facts and on the observations of the others. The Secretary-General has also furnished a dossier of documents concerning the discussion of the question of Western Sahara in the competent United Nations organs. The Court therefore considers that the information and evidence before it are sufficient to enable it to arrive at a judicial conclusion concerning the facts which are relevant to its opinion and necessary for replying to the two questions posed in the request.
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48. The Court has been asked to state that it ought not to examine the substance of the present request, since the reply to the questions put to it would be devoid of purpose. Spain considers that the United Nations has already affirmed the nature of the decolonization process applicable to Western Sahara in accordance with General Assembly resolution 1514 (XV); that the method of decolonization —a consultation of the indigenous population by means of a referendum to be conducted by the administering Power under United Nations auspices — has been settled by the General Assembly. According to Spain, the questions put to the Court are therefore irrelevant, and the answers cannot have any practical effect.
49. Morocco has expressed the view that the General Assembly has not finally settled the principles and techniques to be followed, being free to choose from a wide range of solutions in the light of two basic principles: that of self-determination indicated in paragraph 2 of resolution 1514 (XV), and the principle of the national unity and territorial integrity of countries, enunciated in paragraph 6 of the same resolution. Morocco points out that decolonization may come about through the reintegration of a province with the mother country from which it was detached in the process of colonization. Thus, in the view of Morocco, the questions are relevant because the Court's answer will place the General Assembly in a better position to choose the process best suited for the decolonization of the territory.
50. Mauritania maintains that the principle of self-determination cannot be dissociated from that of respect for national unity and territorial integrity; that the General Assembly examines each question in the context of the situations to be regulated; in several instances, it has been induced to give[p 30] priority to territorial integrity, particularly in situations where the territory had been created by a colonizing Power to the detriment of a State or country to which the territory belonged. Mauritania, pointing out that resolutions 1541 (XV) and 2625 (XXV) have laid down various methods and possibilities for decolonization, considers, in view of the foregoing, that the questions put to the Court are relevant and should be answered.
51. Algeria states that the self-determination of peoples is the fundamental principle governing decolonization, enshrined in Articles 1 and 55 of the Charter and in General Assembly resolution 1514 (XV); that, through successive resolutions which recommend that the population should be consulted as to its own future, the General Assembly has recognized the right of the people of Western Sahara to exercise free and genuine self-determination; and that the application of self-determination in the framework of such consultation has been accepted by the administering Power and supported by regional institutions and international conferences, as well as endorsed by the countries of the area. In the light of these considerations, Algeria is of the view that the Court should answer the request and, in doing so, should not disregard the fact that the General Assembly, in resolution 3292 (XXIX), has itself confirmed its will to apply resolution 1514 (XV), that is to say, a system of decolonization based on the self-determination of the people of Western Sahara.
52. Extensive argument and divergent views have been presented to the Court as to how, and in what form, the principles of decolonization apply in this instance, in the light of the various General Assembly resolutions on decolonization in general and on decolonization of the territory of Western Sahara in particular. This matter is not directly the subject of the questions put to the Court, but it is raised as a basis for an objection to the Court's replying to the request. In any event, the applicable principles of decolonization call for examination by the Court, in that they are an essential part of the framework of the questions contained in the request. The reference in those questions to a historical period cannot be understood to fetter or hamper the Court in the discharge of its judicial functions. That would not be consistent with the Court's judicial character; for in the exercise of its functions it is necessarily called upon to take into account existing rules of international law which are directly connected with the terms of the request and indispensable for the proper interpretation and understanding of its Opinion (cf. I.C.J. Reports 1962, p. 157).
53. The proposition that those questions are academic and legally irrelevant is intimately connected with their object, the determination of which requires the Court to consider, not only the whole text of resolution 3292 (XXIX), but also the general background and the circumstances which led to its adoption. This is so because resolution 3292 (XXIX) is the latest of a long series of General Assembly resolutions dealing with Western Sahara. All these resolutions, including resolution 3292 (XXIX), were drawn up in the general context of the policies of the General Assembly regarding the [p 31] decolonization of non-self-governing territories. Consequently, in order to appraise the correctness or otherwise of Spain's view as to the object of the questions posed, it is necessary to recall briefly the basic principles governing the decolonization policy of the General Assembly, the general lines of previous General Assembly resolutions on the question of Western Sahara, and the preparatory work and context of resolution 3292 (XXIX).
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54. The Charter of the United Nations, in Article 1, paragraph 2, indicates, as one of the purposes of the United Nations: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples..." This purpose is further developed in Articles 55 and 56 of the Charter. Those provisions have direct and particular relevance for non-self-governing territories, which are dealt with in Chapter XI of the Charter. As the Court stated in its Advisory Opinion of 21 June 1971 on The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970):
"... the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them" (I.C.J. Reports 1971, p. 31).
55. The principle of self-determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end, were enunciated in the Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 (XV). In this resolution the General Assembly proclaims "the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations". To this end the resolution provides inter alia:
"2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
………………………………………………………………………………………………
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. [p 32]
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purpose and principles of the Charter of the United Nations."
The above provisions, in particular paragraph 2, thus confirm and emphasize that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned.
56. The Court had occasion to refer to this resolution in the above-mentioned Advisory Opinion of 21 June 1971. Speaking of the development of international law in regard to non-self-governing territories, the Court there stated:
"A further important stage in this development was the Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly resolution 1514 (XV) of 14 December 1960), which embraces all peoples and territories which 'have not yet attained independence'." (I.C.J. Reports 1971, p. 31.)
It went on to state:
"... the Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law" (ibid.).
The Court then concluded:
"In the domain to which the present proceedings relate, the last fifty years, as indicated above, have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned. In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore." (Ibid., pp. 31 f.)
57. General Assembly resolution 1514 (XV) provided the basis for the process of decolonization which has resulted since 1960 in the creation of many States which are today Members of the United Nations. It is complemented in certain of its aspects by General Assembly resolution 1541 (XV), which has been invoked in the present proceedings. The latter resolution contemplates for non-self-governing territories more than one possibility, namely:
(a) emergence as a sovereign independent State;
(b) free association with an independent State; or
(c) integration with an independent State.
At the same time, certain of its provisions give effect to the essential feature of the right of self-determination as established in resolution 1514 (XV). Thus [p 33] principle VII of resolution 1541 (XV) declares that: "Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes." Again, principle IX of resolution 1541 (XV) declares that:
"Integration should have come about in the following circumstances:
……………………………………………………………………………………………..
(b) The integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes."
58. General Assembly resolution 2625 (XXV), "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations", — to which reference was also made in the proceedings — mentions other possibilities besides independence, association or integration. But in doing so it reiterates the basic need to take account of the wishes of the people concerned:
"The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people." (Emphasis added.)
Resolution 2625 (XXV) further provides that:
"Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:
………………………………………………………………………………………………
(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned."
59. The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a "people" entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances.
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[p 34]
60. Having set out the basic principles governing the decolonization policy of the General Assembly, the Court now turns to those resolutions which bear specifically on the decolonization of Western Sahara. Their analysis is necessary in order to determine the validity of the view that the questions posed in resolution 3292 (XXIX) lack object. In particular it is pertinent to compare the different ways in which the General Assembly resolutions adopted from 1966 to 1969 dealt with the questions of Ifni and Western Sahara.
61. In 1966, in the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, Spain expressed itself in favour of the decolonization of Western Sahara through the exercise by the population of the territory of their right to self-determination. At that time this suggestion received the support of Mauritania and the assent of Morocco. As to Ifni, Spain suggested establishing contact with Morocco as a preliminary step. Morocco stated that the decolonization of Ifni should be brought into line with paragraph 6 of resolution 1514 (XV).
62. On the basis of the proposals of the Special Committee, the General Assembly adopted resolution 2229 (XXI), which dealt differently with Ifni and Western Sahara. In the case of Ifni, the resolution:
"3. Requests the administering Power to take immediately the necessary steps to accelerate the decolonization of Ifni and to determine with the Government of Morocco, bearing in mind the aspirations of the indigenous population, procedures for the transfer of powers in accordance with the provisions of General Assembly resolution 1514 (XV)."
In the case of Western Sahara, the resolution:
"4. Invites the administering Power to determine at the earliest possible date, in conformity with the aspirations of the indigenous people of Spanish Sahara and in consultation with the Governments of Mauritania and Morocco and any other interested party, the procedures for the holding of a referendum under United Nations auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination ..."
In respect of this territory the resolution also set out conditions designed to ensure the free expression of the will of the people, including the provision by the administering Power of "facilities to a United Nations mission so that it may be able to participate actively in the organization and holding of the referendum".
63. Resolution 2229 (XXI) was the model for a series of resolutions the provisions of which regarding Western Sahara were in their substance almost identical. Only a few minor variations were introduced. In 1967 the operative part of resolution 2354 (XXII) was divided into two sections, one dealing with Ifni and the other with Western Sahara; and in 1968 resolution 2428
[p 35] (XXIII), similarly divided, included a preamble noting "the difference in nature of the legal status of these two Territories, as well as the processes of decolonization envisaged by General Assembly resolution 2354 (XXII) for these Territories". Since 1969 Ifni, having been decolonized by transfer to Morocco, has no longer appeared in the resolutions of the Assembly.
64. In subsequent years, the General Assembly maintained its approach to the question of Western Sahara, and reiterated in more pressing terms the need to consult the wishes of the people of the territory as to their political future. Indeed resolution 2983 (XXVII) of 1972 expressly reaffirms "the responsibility of the United Nations in all consultations intended to lead to the free expression of the wishes of the people". Resolution 3162 (XXVIII) of 1973, while deploring the fact that the United Nations mission whose active participation in the organization and holding of the referendum had been recommended since 1966 had not yet been able to visit the territory, reaffirms the General Assembly's:
"... attachment to the principle of self-determination and its concern to see that principle applied with a framework that will guarantee the inhabitants of the Sahara under Spanish domination free and authentic expression of their wishes, in accordance with the relevant United Nations resolutions on the subject".
65. All these resolutions from 1966 to 1973 were adopted in the face of reminders by Morocco and Mauritania of their respective claims that Western Sahara constituted an integral part of their territory. At the same time Morocco and Mauritania assented to the holding of a referendum. These States, among others, alleging that the recommendations of the General Assembly were being disregarded by Spain, emphasized the need for the referendum to be held in satisfactory conditions and under the supervision of the United Nations.
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66. A significant change was introduced in resolution 3292 (XXIX) by which the Court is seised of the present request for an advisory opinion. The administering Power is urged in paragraph 3 of the resolution "to postpone the referendum it contemplated holding in Western Sahara". The General Assembly took special care, however, to insert provisions making it clear that such a postponement did not prejudice or affect the right of the people of Western Sahara to self-determination in accordance with resolution 1514 (XV).
67. The provisions in question contain three express references to resolution 1514 (XV). In the General Assembly debates the representative of the Ivory Coast, one of the sponsors of resolution 3292 (XXIX), after describing the text before the General Assembly as the result of a compromise, called attention to these references to resolution 1514 (XV),[p 36] explaining that they had been introduced into the original text in order to enable the General Assembly to be consistent. In the light of the terms of resolution 3292 (XXIX) this must be understood as indicating the intention to ensure the consistency of that resolution with previous resolutions of the General Assembly.
68. The third paragraph in the preamble of resolution 3292 (XXIX) reaffirms "the right of the population of the Spanish Sahara to self-determination in accordance with resolution 1514 (XV)". In paragraph 1 of the operative part, where the questions asked of the Court are formulated, the Court is requested, "without prejudice to the application of the principles embodied in General Assembly resolution 1514 (XV)", to give its advisory opinion. This mention of resolution 1514 (XV) is thus made to relate to the actual request for the opinion. The reference to the application of the principles embodied in resolution 1514 (XV) has necessarily to be read in the light of the General Assembly's reaffirmation in the third paragraph of the preamble of "the right of the population of the Spanish Sahara to self-determination in accordance with resolution 1514 (XV)".
69. In paragraph 3 of the operative part it is urged that the referendum be postponed "until the General Assembly decides on the policy to be followed in order to accelerate the decolonization process in the territory, in accordance with resolution 1514 (XV)". This third mention of resolution 1514 (XV), which has also to be read in the light of the preamble, thus refers to it as governing "the decolonization process in the territory" and "the policy to be followed in order to accelerate" that process.
70. In short, the decolonization process to be accelerated which is envisaged by the General Assembly in this provision is one which will respect the right of the population of Western Sahara to determine their future political status by their own freely expressed will. This right is not affected by the present request for an advisory opinion, nor by resolution 3292 (XXIX); on the contrary, it is expressly reaffirmed in that resolution. The right of that population to self-determination constitutes therefore a basic assumption of the questions put to the Court.
71. It remains to be ascertained whether the application of the right of self-determination to the decolonization of Western Sahara renders without object the two specific questions put to the Court. The Court has already concluded that the two questions must be considered in the whole context of the decolonization process. The right of self-determination leaves the General Assembly a measure of discretion with respect to the forms and procedures by which that right is to be realized.
72. 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 has referred to its intention to "continue its discussion of this question" in the light of the Court's advisory opinion. The Court, when [p 37] considering the object of the questions in accordance with the text of resolution 3292 (XXIX), cannot fail to note this statement. As to the future action of the General Assembly, various possibilities exist, for instance with regard to consultations between the interested States, and the procedures and guarantees required for ensuring a free and genuine expression of the will of the people. In general, an opinion given by the Court in the present proceedings will furnish the General Assembly with elements of a legal character relevant to its further treatment of the decolonization of Western Sahara.
73. In any event, to what extent or degree its opinion will have an impact on the action of the General Assembly is not for the Court to decide. The function of the Court is to give an opinion based on law, once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently, are not devoid of object or purpose.
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74. In the light of the considerations set out in paragraphs 23-73 above, the Court finds no compelling reason, in the circumstances of the present case, to refuse to comply with the request by the General Assembly for an advisory opinion.
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75. Having established that it is seised of a request for advisory opinion which it is competent to entertain and that it should comply with that request, the Court will now examine the two questions which have been referred to it by General Assembly resolution 3292 (XXIX). These questions are so formulated that an answer to the second is called for only if the answer to the first is in the negative:
"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)?
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?"
The suggestion has been made that the two questions are so far connected in substance that an affirmative answer could scarcely be given to the first question without also investigating the answer to be given to the second. It is possible, however, that, in the actual circumstances of the case, a negative answer to the first question may be called for irrespective of the Court's [p 38]
conclusions regarding the answer to be given to the second. Accordingly, the two questions will be taken up separately and in turn.
76. The request, by its express terms, relates Question I specifically to the time of colonization of Western Sahara (Río de Oro and Sakiet El Hamra) by Spain. Similarly, by making the second question conditional upon the answer to the first and by formulating it in the past tense, the request also unmistakably relates the second question to that same period. Consequently, before embarking on its examination of the questions, the Court has to determine what, for the purposes of the present Opinion, should be considered "the time of colonization by Spain". In this connection, it emphasizes that it is not here concerned to establish a "critical date" in the sense given to this term in territorial disputes; for the questions do not ask the Court to adjudicate between conflicting legal titles to Western Sahara. It is here concerned only to identify the period of the historical context in which the request places the questions referred to the Court and the answers to be given to those questions.
77. In the view of the Court, for the purposes of the present Opinion, "the time of colonization by Spain" may be considered as the period beginning in 1884, when Spain proclaimed a protectorate over the Río de Oro. It is true that Spain has mentioned certain earlier acts of alleged display of Spanish sovereignty in the fifteenth and sixteenth centuries. But it has explained that it did so only to enlighten the Court as to the remote antecedents of the Spanish presence on the west-African coast, and not to prove any continuity between those acts and "the time of colonization by Spain", which it conceded should be regarded as beginning in 1884. In any event, the information before the Court convinces it that the period beginning in 1884 represents "the time of colonization by Spain" of Western Sahara within the meaning of the request and constitutes the temporal context within which the two questions are placed by the terms of the request.
78. Although the Court has thus been asked to render an opinion solely upon the legal status and legal ties of Western Sahara as these existed at the period beginning in 1884, this does not mean that any information regarding its legal status or legal ties at other times is wholly without relevance for the purposes of this Opinion. It does, however, mean that such information has present relevance only in so far as it may throw light on the questions as to what were the legal status and the legal ties of Western Sahara at that period.
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79. Turning to Question I, the Court observes that the request specifically locates the question in the context of "the time of colonization by Spain", and it therefore seems clear that the words "Was Western Sahara ... a territory belonging to no one (terra nullius)?" have to be interpreted by reference to the [p 39] law in force at that period. The expression "terra nullius" was a legal term of art employed in connection with "occupation" as one of the accepted legal methods of acquiring sovereignty over territory. "Occupation" being legally an original means of peaceably acquiring sovereignty over 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 alleged to constitute the "occupation" (cf. Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No. 53, pp. 44 f. and 63 f.). In the view of the Court, therefore, a determination that Western Sahara was a "terra nullius" at the time of colonization by Spain would be possible only if it were established that at that time the territory belonged to no-one in the sense that it was then open to acquisition through the legal process of "occupation".
80. Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through "occupation" of terra nullius by original title but through agreements concluded with local rulers. On occasion, it is true, the word "occupation" was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as an "occupation" of a "terra nullius" in the proper sense of these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual "cession" of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terrae nullius.
81. In the present instance, the information furnished to the Court shows that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them. It also shows that, in colonizing Western Sahara, Spain did not proceed on the basis that it was establishing its sovereignty over terrae nullius. In its Royal Order of 26 December 1884, far from treating the case as one of occupation of terra nullius, Spain proclaimed that the King was taking the Río de Oro under his protection on the basis of agreements which had been entered into with 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 Española de Africanistas", and announced that the King had confirmed "the deeds of adherence" to Spain. Likewise, in negotiating with France concerning the limits of Spanish territory to the north of the Río 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.
82. Before the Court, differing views were expressed concerning the nature and legal value of agreements between a State and local chiefs. But the Court [p 40] is not asked by Question I to pronounce upon the legal character or the legality of the titles which led to Spain becoming the administering Power of Western Sahara. It is asked only to state whether Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain was "a territory belonging to no one (terra nullius)". As to this question, the Court is satisfied that, for the reasons which it has given, its answer must be in the negative. Accordingly, the Court does not find it necessary first to pronounce upon the correctness or otherwise of Morocco's view that the territory was not terra nullius at that time because the local tribes, so it maintains, were then subject to the sovereignty of the Sultan of Morocco; nor upon Mauritania's corresponding proposition that the territory was not terra nullius because the local tribes, in its view, then formed part of the "Bilad Shinguitti" or Mauritanian entity. Any conclusions that the Court may reach with respect to either of these points of view cannot change the negative character of the answer which, for other reasons already set out, it has found that it must give to Question I.
83. The Court's answer to Question I is, therefore, in the negative and, in accordance with the terms of the request, it will now turn to Question II.
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84. Question II asks the Court to state "what were the legal ties between this territory" — that is, Western Sahara — "and the Kingdom of Morocco and the Mauritanian entity". The scope of this question depends upon the meaning to be attached to the expression "legal ties" in the context of the time of the colonization of the territory by Spain. That expression, however, unlike "terra nullius" in Question I, was not a term having in itself a very precise meaning. Accordingly, in the view of the Court, the meaning of the expression "legal ties" in Question II has to be found rather in the object and purpose of General Assembly resolution 3292 (XXIX), by which it was decided to request the present advisory opinion of the Court.
85. Analysis of this resolution, as the Court has already pointed out, shows that the two questions contained in the request have been put to the Court in the context of proceedings in the General Assembly directed to the decolonization of Western Sahara in conformity with resolution 1514 (XV) of 14 December 1960. During the discussion of this item, according to resolution 3292 (XXIX), a legal controversy arose over the status of Western Sahara at the time of its colonization by Spain; and the records of the proceedings make it plain that the "legal controversy" in question concerned pretensions put forward, on the one hand, by Morocco that the territory was then a part of the Sherifian State and, on the other, by Mauritania that the territory then formed part of the Bilad Shinguitti or Mauritanian entity. Accordingly, it appears to the Court that in Question II the words "legal ties between this territory and the Kingdom of Morocco and the Mauritanian [p 41] entity" must be understood as referring to such "legal ties" as may affect the policy to be followed in the decolonization of Western Sahara. In this connection, the Court cannot accept the view that the legal ties the General Assembly had in mind in framing Question II were limited to ties established directly with the territory and without reference to the people who may be found in it. Such an interpretation would unduly restrict the scope of the question, since legal ties are normally established in relation to people.
86. The Court further observes that, inasmuch as Question II had its origin in the contentions of Morocco and Mauritania, it was for them to satisfy the Court in the present proceedings that legal ties existed between Western Sahara and the Kingdom of Morocco or the Mauritanian entity at the time of the colonization of the territory by Spain.
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87. Western Sahara (Rio de Oro and Sakiet El Hamra) is a territory having very special characteristics which, at the time of colonization by Spain, largely determined the way of life and social and political organization of the peoples inhabiting it. In consequence, the legal regime of Western Sahara, including its legal relations with neighbouring territories, cannot properly be appreciated without reference to these special characteristics. The territory forms part of the great Sahara desert which extends from the Atlantic coast of Africa to Egypt and the Sudan. At the time of its colonization by Spain, the area of this desert with which the Court is concerned was being exploited, because of its low and spasmodic rainfall, almost exclusively by nomads, pasturing their animals or growing crops as and where conditions were favourable. It may be said that the territory, at the time of its colonization, had a sparse population that, for the most part, consisted of nomadic tribes the members of which traversed the desert on more or less regular routes dictated by the seasons and the wells or water-holes available to them. In general, the Court was informed, the right of pasture was enjoyed in common by these tribes; some areas suitable for cultivation, on the other hand, were subject to a greater degree to separate rights. Perennial water-holes were in principle considered the property of the tribe which put them into commission, though their use also was open to all, subject to certain customs as to priorities and the amount of water taken. Similarly, many tribes were said to have their recognized burial grounds, which constituted a rallying point for themselves and for allied tribes. Another feature of life in the region, according to the information before the Court, was that inter-tribal conflict was not infrequent.
88. These various points of attraction of a tribe to particular localities were reflected in its nomadic routes. But what is important for present purposes is the fact that the sparsity of the resources and the spasmodic character of the [p 42] rainfall compelled all those nomadic tribes to traverse very wide areas of the desert. In consequence, the nomadic routes of none of them were confined to Western Sahara; some passed also through areas of southern Morocco, or of present-day Mauritania or Algeria, and some even through further countries. All the tribes were of the Islamic faith and the whole territory lay within the Dar al-Islam. In general, authority in the tribe was vested in a sheikh, subject to the assent of the "Juma'a", that is, of an assembly of its leading members, and the tribe had its own customary law applicable in conjunction with the Koranic law. Not infrequently one tribe had ties with another, either of dependence or of alliance, which were essentially tribal rather than territorial, ties of allegiance or vassalage.
89. It is in the context of such a territory and such a social and political organization of the population that the Court has to examine the question of the "legal ties" between Western Sahara and the Kingdom of Morocco and the Mauritanian entity at the time of colonization by Spain. At the conclusion of the oral proceedings, as will be seen, Morocco and Mauritania took up what was almost a common position on the answer to be given by the Court on Question II. The contentions on which they respectively base the legal ties which they claim to have had with Western Sahara at the time of its colonization by Spain are, however, different and in some degree opposed. The Court will, therefore, examine them separately.
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90. Morocco's claim to "legal ties" with Western Sahara at the time of colonization by Spain has been put to the Court as a claim to ties of sovereignty on the ground of an alleged immemorial possession of the territory. This immemorial possession, it maintains, was based not on an isolated act of occupation but on the public display of sovereignty, uninterrupted and uncontested, for centuries.
91. In support of this claim Morocco refers to a series of events stretching back to the Arab conquest of North Africa in the seventh century A.D., the evidence of which is, understandably, for the most part taken from historical works. The far-flung, spasmodic and often transitory character of many of these events renders the historical material somewhat equivocal as evidence of possession of the territory now in question. Morocco, however, invokes inter alia the decision of the Permanent Court of International Justice in the Legal Status of Eastern Greenland case (P.C.I.J., Series A/B, No. 53). Stressing that during a long period Morocco was the only independent State which existed in the north-west of Africa, it points to the geographical contiguity of Western Sahara to Morocco and the desert character of the territory. In the light of these considerations, it maintains that the historical material suffices to establish Morocco's claim to a title based "upon continued display of authority" (loc. cit., p. 45) on the same principles as those applied [p 43] by the Permanent Court in upholding Denmark's claim to possession of the whole of Greenland.
92. This method of formulating Morocco's claims to ties of sovereignty with Western Sahara encounters certain difficulties. As the Permanent Court stated in the case concerning the Legal Status of Eastern Greenland, a claim to sovereignty based upon continued display of authority involves "two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority" (ibid., pp. 45 f). True, the Permanent Court recognized that in the case of claims to sovereignty over areas in thinly populated or unsettled countries, "very little in the way of actual exercise of sovereign rights" (ibid., p. 46) might be sufficient in the absence of a competing claim. But, in the present instance, Western Sahara, if somewhat sparsely populated, was a territory across which socially and politically organized tribes were in constant movement and where armed incidents between these tribes were frequent. In the particular circumstances outlined in paragraphs 87 and 88 above, the paucity of evidence of actual display of authority unambiguously relating to Western Sahara renders it difficult to consider the Moroccan claim as on all fours with that of Denmark in the Eastern Greenland case. Nor is the difficulty cured by introducing the argument of geographical unity or contiguity. In fact, the information before the Court shows that the geographical unity of Western Sahara with Morocco is somewhat debatable, which also militates against giving effect to the concept of contiguity. Even if the geographical contiguity of Western Sahara with Morocco could be taken into account in the present connection, it would only make the paucity of evidence of unambiguous display of authority with respect to Western Sahara more difficult to reconcile with Morocco's claim to immemorial possession.
93. In the view of the Court, however, what must be of decisive importance in determining its answer to Question II 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 (cf. Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953, p. 57). As Morocco has also adduced specific evidence relating to the time of colonization and the period preceding it, the Court will now consider that evidence.
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94. Morocco requests that, in appreciating the evidence, the Court should take account of the special structure of the Sherifian State. No rule of international law, in the view of the Court, requires the structure of a State to follow any particular pattern, as is evident from the diversity of the forms of [p 36] State found in the world today. Morocco's request is therefore justified. At the same time, where sovereignty over territory is claimed, the particular structure of a State may be a relevant element in appreciating the reality or otherwise of a display of State activity adduced as evidence of that sovereignty.
95. That the Sherifian State at the time of the Spanish colonization of Western Sahara was a State of a special character is certain. Its special character consisted in the fact that it was founded on the common religious bond of Islam existing among the peoples and on the allegiance of various tribes to the Sultan, through their caids or sheikhs, rather than on the notion of territory. Common religious links have, of course, existed in many parts of the world without signifying a legal tie of sovereignty or subordination to a ruler. Even the Dar al-Islam, as Morocco itself pointed out in its oral statement, knows and then knew separate States within the common religious bond of Islam. Political ties of allegiance to a ruler, on the other hand, have frequently formed a major element in the composition of a State. Such an allegiance, however, if it is to afford indications of the ruler's sovereignty, must clearly be real and manifested in acts evidencing acceptance of his political authority. Otherwise, there will be no genuine display or exercise of State authority. It follows that the special character of the Moroccan State and the special forms in which its exercise of sovereignty may, in consequence, have expressed itself, do not dispense the Court from appreciating whether at the relevant time Moroccan sovereignty was effectively exercised or displayed in Western Sahara.
96. It has been stated before the Court, and not disputed in the course of the proceedings, that at the relevant period the Moroccan State consisted partly of what was called the Bled Makhzen, areas actually subject to the Sultan, and partly of what was called the Bled Siba, areas in which de facto the tribes were not submissive to the Sultan. Morocco states that the two expressions, Bled Makhzen and Bled Siba, merely described two types of relationship between the Moroccan local authorities and the central power, not a territorial separation; and that the existence of these different types did not affect the unity of Morocco. Because of a common cultural heritage, the spiritual authority of the Sultan was always accepted. Thus the difference between the Bled Makhzen and the Bled Siba, Morocco maintains, did not reflect a wish to challenge the existence of the central power so much as the conditions for the exercise of that power; and the Bled Siba was, in practice, a way of affecting an administrative decentralization of authority. Against this view it is stated that what characterized the Bled Siba was that it was not administered by the Makhzen; it did not contribute contingents to the Sherifian army; no taxes were collected there by the Makhzen; the government of the people was in the hands of caids appointed by the tribes, and their powers were derived more from the acquiescence of the tribes than from any delegation of authority by the Sultan; even if these local powers did not totally reject any connection with the Sherifian State, in reality they [p 45] became de facto independent powers. It is also said that the historical evidence shows the territory between the Souss and the Dra'a to have been in a state of permanent insubordination and part of the Bled Siba; and that this implies that there was no effective and continuous display of State functions even in those areas to the north of Western Sahara. In the present proceedings, it has been common ground between Mauritania, Morocco and Spain that the Bled Siba was considered as forming part of the Moroccan State at that time, as also appears from the information before the Court.
97. That the areas immediately to the north of Western Sahara lay within the Bled Siba at the relevant period is a point which does not appear to be in dispute. This is accordingly an element to be taken into consideration in appreciating the material which has been submitted regarding the alleged display of Moroccan authority in Western Sahara itself.
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98. As evidence of its display of sovereignty in Western Sahara, Morocco has invoked alleged acts of internal display of Moroccan authority and also certain international acts said to constitute recognition by other States of its sovereignty over the whole or part of the territory.
99. The principal indications of "internal" display of authority invoked by Morocco consist of evidence alleged to show the allegiance of Saharan caids to the Sultan, including dahirs and other documents concerning the appointment of caids, the alleged imposition of Koranic and other taxes, and what were referred to as "military decisions" said to constitute acts of resistance to foreign penetration of the territory. In particular, the allegiance is claimed of the confederation of Tekna tribes, together with its allies, one part of which was stated to be established in the Noun and another part to lead a nomadic life the route of which traversed areas of Western Sahara: through Tekna caids, Morocco claims, the Sultan's authority and influence were exercised on the nomad tribes pasturing in Western Sahara. Moreover, Morocco alleges that, after the marabout Ma ul-'Aineen established himself at Smara in the Sakiet El Hamra in the late 1890s, much of the territory came under the direct authority of this sheikh, and that he himself was the personal representative of the Sultan. Emphasis is also placed by Morocco on two visits of Sultan Hassan I in person to the southern area of the Souss in 1882 and 1886 to maintain and strengthen his authority in the southern part of his realm, and on the despatch of arms by the Sultan to Ma ul-'Aineen and others in the south to reinforce their resistance to foreign penetration. In general, it is urged that Western Sahara has always been linked to the interior of Morocco by common ethnological, cultural and religious ties, and that the Sakiet El Hamra was artificially separated from the Moroccan territory of the Noun by colonization.[p 46]
100. Spain, on the other hand, maintains that there is a striking absence of any documentary evidence or other traces of a display of political authority by Morocco with respect to Western Sahara. The acts of appointment of caids produced by Morocco, whether dahirs or official correspondence, do not in Spain's view relate to Western Sahara but to areas within southern Morocco such as the Noun and the Dra'a; nor has any document of acceptance by the recipients been adduced. Furthermore, according to Spain, these alleged appointments as caid were conferred on sheikhs already elected by their own tribes and were, in truth, only titles of honour bestowed on existing and de facto independent local rulers. As to the Tekna confederation, its two parts are said to have been in quite different relations to the Sultan: only the settled Tekna, established in southern Morocco, acknowledged their political allegiance to the Sultan, while the nomadic septs of the tribe who traversed the Western Sahara were "free" Tekna, autonomous and independent of the Sultan. Nor was Ma ul-'Aineen, according to Spain, at any time the personal representative of the Sultan's authority in Western Sahara; on the contrary, he exercised his authority to the south of the Dra'a in complete independence of the Sultan; his relations with the Sultan were based on mutual respect and a common interest in resisting French expansion from the south; they were relations of equality, not political ties of allegiance or of sovereignty.
101. Further, Spain invokes the absence of any evidence of the payment of taxes by tribes of Western Sahara and denies all possibility of such evidence being adduced; according to Spain, it was a characteristic even of the Bled Siba that the tribes refused to be taxed, and in Western Sahara there was no question of taxes having been paid to the Makhzen. As to the Sultan's expeditions of 1882 and 1886, these, according to Spain, are shown by the historical evidence never to have reached Western Sahara or even the Dra'a, but only the Souss and the Noun; nor did they succeed in completely subjecting even those areas; and they cannot therefore constitute evidence of display of authority with respect to Western Sahara. Their purpose, Spain maintains, was to prevent commerce between Europeans and the tribes of the Souss and Noun, and this purpose was unrelated to Western Sahara. Again, the alleged acts of resistance in Western Sahara to foreign penetration are said by Spain to have been nothing more than occasional raids to obtain booty or hostages for ransom and to have nothing to do with display of Moroccan authority. In general, both on geographical and on other grounds, Spain questions the unity of the Saharan region with the regions of southern Morocco.
102. Mauritania's views, in so far as they relate to Morocco's pretensions to have exercised sovereignty over Western Sahara at the time of its colonization, may be summarized as follows: Mauritania does not oppose Morocco's claim to have displayed its authority in some, more northerly, [p 47] areas of the territory. Thus it does not dispute the allegiance at that time of the Tekna confederation to the Sultan, nor Morocco's claim that, through the intermediary of Tekna caids in southern Morocco, it exercised a measure of authority over Tekna nomads who traversed those areas of Western Sahara. Mauritania does not, however, admit the allegiance of other tribes in Western Sahara to the Sultan, as it considers them to belong to the Bilad Shinguitti, or Mauritanian entity. In particular, like Spain, it maintains that the Regheibat were a tribe of marabout warriors wholly independent of both the Tekna caids and the Sultan, and that their links were rather with the tribes of the Bilad Shinguitti. Again, Mauritania does not admit that the marabout sheikh, Ma ul-'Aineen, represented the authority of the Sultan in Western Sahara. Instead, it insists that he was a Shinguitti personality, who acquired influence and renown as head of a religious brotherhood in the Bilad Shinguitti and also became a political figure in the Sakiet El Hamra in the later stages of his life. Like Spain also, Mauritania maintains that, as a political figure organizing and leading resistance to French penetration, Ma ul-'Aineen dealt with the Sultan on a basis of co-operation between equals; and that the relation between them was not one of allegiance but of an alliance, lasting only until the time came when the sheikh proclaimed himself Sultan.
103. The Court does not overlook the position of the Sultan of Morocco as a religious leader. In the view of the Court, however, the information and arguments invoked by Morocco cannot, for the most part, be considered as disposing of the difficulties in the way of its claim to have exercised effectively internal sovereignty over Western Sahara. The material before the Court appears to support the view that almost all the dahirs and other acts concerning caids relate to areas situated within present-day Morocco itself and do not in themselves provide evidence of effective display of Moroccan authority in Western Sahara. Nor can the information furnished by Morocco be said to provide convincing evidence of the imposition or levying of Moroccan taxes with respect to the territory. As to Sheikh Ma ul-'Aineen, the complexities of his career may leave doubts as to the precise nature of his relations with the Sultan, and different interpretations have been put upon them. The material before the Court, taken as a whole, does not suffice to convince it that the activities of this sheikh should be considered as having constituted a display of the Sultan's authority in Western Sahara at the time of its colonization.
104. Furthermore, the information before the Court appears to confirm that the expeditions of Sultan Hassan I to the south in 1882 and 1886 both had objects specifically directed to the Souss and the Noun and, in fact, did not go beyond the Noun; so that they did not reach even as far as the Dra'a, still less Western Sahara. Nor does the material furnished lead the Court to conclude that the alleged acts of resistance in Western Sahara to foreign penetration could be considered as acts of the Moroccan State. Similarly, the despatch of arms by the Sultan to Ma ul-'Aineen and others to encourage their resistance [p 48] to French penetration to the east of Western Sahara is, in any case, open to other interpretations than the display of the Sultan's authority. Again, although Morocco asserts that the Regheibat tribe always recognized the suzerainty of the Tekna confederation, and through them that of the Sultan himself, this assertion has not been supported by any convincing evidence. Moreover, both Spain and Mauritania insist that this tribe of marabout warriors was wholly independent.
105. Consequently, the information before the Court does not support Morocco's claim to have exercised territorial sovereignty over Western Sahara. On the other hand, it does not appear to exclude the possibility that the Sultan displayed authority over some of the tribes in Western Sahara. That this was so with regard to the Regheibat or other independent tribes living in the territory could clearly not be sustained. The position is different, however, with regard to the septs of the Tekna whose routes of migration are established as having included the territory of the Tekna caids within Morocco as well as parts of Western Sahara. True, the territory of the Tekna caids in the Noun and the Dra'a were Bled Siba at the relevant period and the subordination of the Tekna caids to the Sultan was sometimes uncertain. But the fact remains that the Noun and the Dra'a were recognized to be part of the Sherifian State and the Tekna caids to represent the authority of the Sultan. No doubt, as appears from previous paragraphs, the allegiance of the nomadic septs of the Tekna to the Tekna confederation has been in dispute in the present proceedings. The mere fact that those Tekna septs in their nomadic journeys spent periods of time within the territory of the caids of the Tekna confederation appears, however, to the Court to lend support to the view that they were subject, at least in some measure, to the authority of Tekna caids. The Court at the same time notes that Mauritania considers these Tekna septs to have been in "Moroccan fealty".
106. Furthermore, the material before the Court contains various indications of some projection of the Sultan's authority to certain Tekna tribes or septs nomadizing in Western Sahara. Such indications are, for example, to be found in certain documents relating to the recovery of shipwrecked seamen and other foreigners held captive by Teknas in Western Sahara; in documents showing that on some occasions, notably the Sultan's visits to the south in 1882 and 1886, he received the allegiance of certain nomadic tribes which came from Western Sahara for the purpose; and in letters from the Sultan to Tekna caids requesting the performance of certain acts to the south of the Noun and the Dra'a. Accordingly, and after taking due account of any contradictory indications, the Court considers that, taken as a whole, the information before it shows the display of some authority by the Sultan, through Tekna caids, over the Tekna septs nomadizing in Western Sahara.
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107. Thus, even taking account of the specific structure of the Sherifian State, the material so far examined does not establish any tie of territorial sovereignty between Western Sahara and that State. It does not show that Morocco displayed effective and exclusive State activity in Western Sahara. It does however provide indications that a legal tie of allegiance had existed at the relevant period between the Sultan and some, but only some, of the nomadic peoples of the territory.
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108. The Court must now examine whether its appreciation of the legal situation which appears from a study of the internal acts invoked by Morocco is affected to any extent by a consideration of the international acts said by it to show that the Sultan's sovereignty was directly or indirectly recognized as extending to the south of the Noun and the Dra'a. The material upon which it relies may conveniently be considered under four heads:
(a) A series of Moroccan treaties, and more especially a treaty with Spain of 1767, and treaties of 1836, 1856 and 1861 with the United States, Great Britain and Spain respectively, provisions of which deal with the rescue and safety of mariners shipwrecked on the coast of Wad Noun or its vicinity.
(b) A Moroccan treaty with Great Britain of 1895 in which Great Britain, it is claimed, recognized "the lands that are between Wad Draa and Cape Bojador, and which are called Terfaya above named, and all the lands behind it" as part of Morocco.
(c) Diplomatic correspondence concerning the implementation of Article 8 of the Treaty of Tetuan of 1860 and an alleged agreement with Spain of 1900 relating to the cession of Ifni, which are claimed to show Spanish recognition of Moroccan sovereignty as far southwards as Cape Bojador.
(d) A Franco-German exchange of letters of 1911 which expressed the understanding of the parties that "Morocco comprises all that part of northern Africa which is situated between Algeria, French West Africa, and the Spanish colony of Río de Oro".
109. The treaty provisions cited by Morocco begin with Article 18 of the Treaty of Marrakesh of 1767, the interpretation of which is in dispute between Morocco and Spain. This Article concerned a project of the Canary Islanders to set up a trading and fishing post on "the coasts of Wad Noun", according to Morocco, or "to the south of the River Noun", according to Spain, and the dispute is as to the scope of the Sultan's disavowal in Article 18 of any responsibility with respect to such a project. Morocco states that in the Arabic text the Article has the following meaning: [p 50]
"His Imperial Majesty warns the inhabitants of the Canaries against any fishing expedition to the coasts of Wad Noun and beyond. He disclaims any responsibility for the way they may be treated by the Arabs of the country, to whom it is difficult to apply decisions, since they have no fixed residence, travel as they wish and pitch their tents where they choose. The inhabitants of the Canaries are certain to be maltreated by those Arabs."
It contends, moreover, that this Arabic text is the only "official text" and should have preference also as being the more limited interpretation. On the basis of the Arabic text, it maintains that the Article signifies that the Sultan was recognized to have the power to take decisions with respect to the inhabitants of "Wad Noun and beyond", though it was difficult to apply his decisions to them.
110. Spain, however, stresses that the Spanish text of the treaty is also an original text, which is equally authentic and has the following meaning:
"His Imperial Majesty refrains from expressing an opinion with regard to the trading post which His Catholic Majesty wishes to establish to the south of the River Noun, since he cannot take responsibility for accidents and misfortunes, because his domination [sus dominios]does not extend so far. ... Northwards from Santa Cruz, His Imperial Majesty grants to the Canary Islanders and the Spaniards the right of fishing without authorizing any other nation to do so."
It also disputes the meaning attributed by Morocco to the crucial words in the Arabic text and maintains that the meaning found in the Spanish text is confirmed by the wording of contemporary letters sent by the Sultan to King Carlos III, as well as other diplomatic material, and by a later Hispano-Moroccan treaty of 1799. Morocco, it should be interposed, in its turn questions the meaning given by Spain to certain words in the Arabic texts of the Sultan's letters and the 1767 treaty. Spain, however, on the basis of its interpretations of the various texts, contends that Article 18 of that treaty, far from evidencing Spanish recognition of the Sultan's sovereignty to the south of the Wad Noun, constitutes a disavowal by the Sultan himself of any pretensions to authority in that region.
111. The Court does not find it necessary to resolve the controversy regarding the text of Article 18 of this early treaty, because a number of later treaties, closer to the time of the colonization of Western Sahara and thus more pertinent in the present connection, contained clauses of a similar character, concerning mariners shipwrecked on coasts of the Wad Noun. It confines itself, therefore, to the following observations: In so far as this, or any other treaty provision, is relied upon by Morocco as showing international recognition by another State of Moroccan sovereignty, it would be difficult to consider such international recognition as established on the sole basis of a Moroccan text diverging materially from an authentic text of [p 51] the same treaty written in the language of the other State. In any event, the question of international recognition which Morocco claims to be raised by Article 18 of the Treaty of 1767 hinges upon the meaning to be given to such phrases as "Wad Noun and beyond" and "to the south of the River Noun", which is also a matter in dispute and calls for consideration in connection with the later treaties.
112. Article 18 of the 1767 treaty is indeed superseded for present purposes by provisions in Article 38 of the Hispano-Moroccan Treaty of Commerce and Navigation of 20 November 1861, which itself followed the model of similar provisions in treaties signed by Morocco with the United States in 1836 and with Great Britain in 1856. The relevant provisions of the 1861 treaty ran:
"If a Spanish vessel of war or merchant ship get aground or be wrecked on any part of the coasts of Morocco, she shall be respected and assisted in every way, in conformity with the laws of friendship, and the said vessel and everything in her shall be taken care of and returned to her owners, or to the Spanish Consul-General... If a Spanish vessel be wrecked at Wad Noun or on any other part of its coast, the Sultan of Morocco shall make use of his authority to save and protect the master and crew until they return to their country, and the Spanish Consul-General, Consul, Vice-Consul, Consular Agent, or person appointed by them shall be allowed to collect every information they may require... The Governors in the service of the Sultan of Morocco shall likewise assist the Spanish Consul-General, Consul, Vice-Consul, Consular Agent or person appointed by them, in their investigations, according to the laws of friendship."
Morocco considers that these provisions, and similar provisions in other treaties, recognize the existence of Moroccan authorities in the Noun and Western Sahara, in the form of Governors in the service of the Sultan of Morocco, and also the effective possibilities of action by those Governors. It also argues that they recognize Moroccan sovereignty over Western Sahara because under Article 38 the Spanish authorities receive permission to enquire into the fate of shipwrecked mariners and derive that permission from the Sultan.
113. Morocco further considers that this view of the treaty provisions is confirmed by Spanish diplomatic documents relating to the recovery in 1863 of nine sailors from the Spanish vessel Esmeralda who had been captured, while fishing, by "Moors of the frontier coast". According to the documents, this incident occurred "more than 180 miles south of Cape Noun" and the Moors had demanded a ransom. The Spanish Minister of State had then instructed the Spanish Minister in Morocco to make the necessary request to the Sultan, pursuant to Article 38 of the 1861 treaty, "to use his powers to rescue the captive sailors". In due course the sailors were reported to have been freed and to be in the hands of Sheikh Beyrouk of the Noun; and the [p 44] Spanish Minister in Morocco was authorized to make a gift to the sheikh as a mark of gratitude.
114. Spain, on the other hand, claims that the origin of the shipwreck clauses was directly connected with the state of insubordination in the Souss and the Noun, and stresses that the treaties contained two systems of rescue and protection. One system, which it calls the general system, provided for areas where the Sultan did exercise his authority and undertook to use his normal powers to protect the shipwrecked. The other was a special regime for the Wad Noun. If a vessel were shipwrecked at the Wad Noun or beyond, the treaty provisions gave a different answer as to the duty of the Sultan. In that case, he did not "order" or "protect" but undertook to try to liberate the shipwrecked persons so far as he was able; and in order to do that he would use his influence with the peoples neighbouring on his realm and negotiate the ransoming of the sailors, usually with the local authorities. It was not, Spain considers, a matter of his exercising his own authority.
115. Spain also refers to various diplomatic documents relating to the recovery of sailors from a number of shipwrecked vessels as confirming the above interpretation of the clauses. Those documents, it states, show that in all those cases, including that of the Esmeralda, it was the intervention of the Beyrouk family, the sheikhs of the Wad Noun, which was decisive for the liberation of the captives, and that they negotiated directly with the Spanish Consul at Mogador. In one case, according to these documents, Sheikh Beyrouk informed the Spanish authorities that he had resisted the Sultan's efforts to wrest the prisoners from him and that their liberation had been achieved only when he himself had "negotiated the affair with the Spanish nation". According to Spain, this evidence indicates that to the north of Agadir the power of the Sultan was exercised and the Sultan could give orders; from Agadir to the south, in the Souss, the Noun and the Dra'a, the Sultan negotiated with local powers, he could not give orders; and this, Spain says, explains the cardinal role played by Sheikh Beyrouk in these matters.
116. Implicit in Morocco's claim that these treaties signify international recognition of the exercise of its sovereignty in Western Sahara is the proposition that phrases such as "the coasts of Wad Noun", "to the south of Wad Noun" or "Wad Noun and beyond" are apt to comprise Western Sahara. This proposition it advances on the basis that "Wad Noun" was a term used with two meanings: one narrow and restricted to the Wad Noun itself, the other wider and covering not only the Wad Noun but the Dra'a and the Sakiet El Hamra. This wider meaning, it indicates, was the one with which the term was used in Moroccan documents and treaties. Spain, on the other hand, maintains that no evidence has been adduced to demonstrate the use of the term Wad Noun with that special meaning, that there is no trace of it in the cartography of the period and that the testimony of travellers and explorers is conclusive as to the geographical separation of the Wad Noun country from [p 53] the Sakiet El Hamra. It is for Morocco to demonstrate convincingly the use of the term with that special meaning (cf. Legal Status of Eastern Greenland, P.C.I.J., Series A/B, No. 53, p. 49) and this demonstration, in the view of the Court, is lacking.
117. In the particular case of the Esmeralda; as the Court has already noted, Morocco points to documents showing a request by Spain to the Sultan in 1863 for the application of Article 38 of the Treaty of 1861 in respect of an incident which had occurred more than 180 miles to the south of Cape Noun. That incident may, therefore, be invoked as indicating Spain's recognition of the applicability of the treaty provision in relation to that part of the coast of Western Sahara. But those documents, especially when read together with further documents before the Court relating to the same incident, do not appear to warrant the conclusion that Spain thereby also recognized the Sultan's territorial sovereignty over that part of Western Sahara. The documents, and the whole incident, appear rather to confirm the view that Article 38, and other similar provisions, concerned, instead, the exercise of the personal authority or influence of the Sultan, through the Tekna caids of the Wad Noun, to negotiate the ransom of the shipwrecked sailors from the tribe holding them captive to the south of the Wad Noun. Clearly, Morocco is correct in saying that these provisions would have been pointless if the other State concerned had not considered the Sultan to be in a position to exercise some authority or influence over the people holding the sailors captive. But it is a quite different thing to maintain that those provisions implied international recognition by the other State concerned of the Sultan as territorial sovereign in Western Sahara.
118. Examination of the provisions discussed above shows therefore, in the view of the Court, that they cannot be considered as implying international recognition of the Sultan's territorial sovereignty in Western Sahara. It confirms that they are to be understood as concerned with the display of the Sultan's authority or influence in Western Sahara only in terms of ties of allegiance or of personal influence in respect of some of the nomadic tribes of the territory.
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119. The Anglo-Moroccan Agreement of 13 March 1895 is invoked by Morocco as evidencing specific international recognition by Great Britain that Moroccan territory reached as far south as Cape Bojador. This treaty concerned the purchase by the Sultan from the North-West African Company of the trading-station which had been set up at Cape Juby some years previously by agreements made between Mr. Donald Mackenzie and Sheikh Beyrouk. The treaty of 1895 provided inter alia that, if the Moroccan Government bought the trading-station from the company, "no one will have any claim to the lands that are between Wad Draa and Cape Bojador, and which are called Terfaya above named, and all the lands behind it, because all this belongs to the territory of Morocco". A further clause provided that the [p 54] Moroccan Government in turn undertook that "they will not give any part of the above-named lands to any-one whatsoever without the concurrence of the English Government". Morocco asks the Court to see these provisions as constituting express recognition by Great Britain of Moroccan sovereignty at the relevant period in all the land between the Wad Dra'a and Cape Bojador and the hinterland.
120. The difficulty with this interpretation of the 1895 treaty is that it is at variance with the facts as shown in the diplomatic correspondence surrounding the transaction concerning the Mackenzie trading-station. Numerous documents relating to this transaction and presented to the Court show that the position repeatedly taken by Great Britain was that Cape Juby was outside Moroccan territory, which in its view did not extend beyond the Dra'a. In the light of this material the provisions of the 1895 treaty invoked by Morocco appear to the Court to represent an agreement by Great Britain not to question in future any pretensions of the Sultan to the lands between the Dra'a and Cape Bojador, and not a recognition by Great Britain of previously existing Moroccan sovereignty over those lands. In short, what those provisions yielded to the Sultan was acceptance by Great Britain not of his existing sovereignty but of his interest in that area.
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121. Morocco also asks the Court to find indications of Spanish recognition of Moroccan sovereignty southwards as far as Cape Bojador in diplomatic material concerning the implementation of Article 8 of the Treaty of Tetuan of 1860 and an agreement of 1900 alleged to have been concluded with Spain in that connection. By Article 8 of the Treaty of Tetuan, the Sultan had agreed to concede to Spain "in perpetuity, on the coast of the Ocean, near Santa Cruz la Pequeña, the territory sufficient for the construction of a fisheries establishment, as Spain possessed in prior times". Morocco invokes a diplomatic Note of 19 October 1900 from the Spanish Ambassador in Brussels to the Belgian Foreign Minister, which referred to instructions having been given to the Spanish representative in Tangier "to negotiate an exchange between the port of Ifni and another port situated between Ifni and Cape Bojador as well as the cession of the city of Terfaya between the Dra'a and Cape Bojador...". In the same year a publication in Spain appeared to give some substance to the suggestion that as a result of those negotiations a protocol had been concluded in this connection.
122. Spain, however, denies altogether the existence of any such protocol, which, it argues, Morocco could not have failed to produce if it had been concluded; for Morocco itself would have been one of the parties to this alleged agreement. An examination of its archives, Spain states, shows that no agreement was concluded at the time of the mission, although the press published erroneous news on the subject at the time. Mauritania also voices strong doubts as to the existence of the alleged protocol. It further says: [p 55]
"In the absence of direct evidence, and faced with second-hand references, which are geographically vague and general, it is difficult to express a view on the question, and in particular to draw any conclusions as to territorial recognitions by the Spanish Government."
123. The doubts raised by both Spain and Mauritania as to the alleged protocol of 1900 have not been dispelled by the material before the Court. The Court is not, therefore, able to take the possible existence of such a document into account.
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124. There remains the exchange of letters annexed to the Agreement between France and Germany of 4 November 1911, which Morocco presents as recognition by those Powers of Moroccan sovereignty over the Sakiet El Hamra. In Article 1 of the Agreement Germany undertook not to interfere with the action of France in Morocco. The exchange of letters then further provided that:
"Germany will not intervene in any special agreements which France and Spain may think fit to conclude with each other on the subject of Morocco, it being understood that Morocco comprises all that part of northern Africa which is situated between Algeria, French West Africa and the Spanish colony of Rio de Oro."
It is on these last words that Morocco relies; and it maintains that, whatever construction is put upon the exchange of letters, those words mean that the agreement recognized that the Sakiet El Hamra belonged to Morocco. In support of this contention, it refers to certain diplomatic letters which are claimed to show that, when France and Germany drew up the exchange, they meant "to posit the principle that the Sakiet El Hamra was part of Moroccan territory".
125. Spain, on the other hand, points to Article 6 of the earlier Franco-Spanish Convention of 3 October 1904, which stated:
"... the Government of the French Republic acknowledges that Spain has henceforward full liberty of action in regard to the territory comprised between the 26° and 27° 40' north latitude and the 11th meridian west of Paris, which are outside the limits of Morocco".
It further points to Article 2 of the Franco-Spanish Convention of 27 November 1912 as providing expressly that Article 6 of the 1904 Convention was to "remain effective". In those two Conventions, it observes, France clearly recognized that the Sakiet El Hamra was "outside the limits of Morocco". At the same time, it contests the view expressed by Morocco in the proceedings that these Conventions are not opposable to Morocco. It also draws attention to other diplomatic material relating to the 1911 exchange [p 56] of letters and claimed by it to show that this was concerned with Franco-German relations and not with the existing frontier of Morocco.
126. In the present connection, the Court emphasizes, the question at issue is not the Spanish position in the Sakiet El Hamra but the alleged recognition by other States of Moroccan sovereignty over the Sakiet El Hamra at the time of colonization by Spain. Accordingly the question of how far any of these agreements may or may not be opposable to any of the States concerned does not arise. The various international agreements referred to by Morocco and Spain are of concern to the Court only in so far as they may contain indications of such recognition. These agreements, in the opinion of the Court, are of limited value in this regard; for it was not their purpose either to recognize an existing sovereignty over a territory or to deny its existence. Their purpose, in their different contexts, was rather to recognize or reserve for one or both parties a "sphere of influence" as understood in the practice of that time. In other words, one party granted to the other freedom of action in certain defined areas, or promised non-interference in an area claimed by the other party. Such agreements were essentially contractual in character. This is why one party might be found acknowledging in 1904, vis-à-vis Spain, that the Sakiet El Hamra was "outside the limits of Morocco" in order to allow Spain full liberty of action in regard to that area, and yet employing a different geographical description of Morocco in 1911 in order to ensure the complete exclusion of Germany from that area.
127. In consequence, the Court finds difficulty in accepting the Franco-German exchange of letters of 1911 as constituting recognition of the limits of Morocco rather than of the sphere of France's political interests vis-à-vis Germany.
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128. Examination of the various elements adduced by Morocco in the present proceedings does not, therefore, appear to the Court to establish the international recognition by other States of Moroccan territorial sovereignty in Western Sahara at the time of the Spanish colonization. Some elements, however, more especially the material relating to the recovery of shipwrecked sailors, do provide indications of international recognition at the time of colonization of authority or influence of the Sultan, displayed through Tekna caids of the Noun, over some nomads in Western Sahara.
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129. The inferences to be drawn from the information before the Court concerning internal acts of Moroccan sovereignty and from that concerning international acts are, therefore, in accord in not providing indications of the existence, at the relevant period, of any legal tie of territorial sovereignty [p 57] between Western Sahara and the Moroccan State. At the same time, they are in accord in providing indications of a legal tie of allegiance between the Sultan and some, though only some, of the tribes of the territory, and in providing indications of some display of the Sultan's authority or influence with respect to those tribes. Before attempting, however, to formulate more precisely its conclusions as to the answer to be given to Question II in the case of Morocco, the Court must examine the situation in the territory at the time of colonization in relation to the Mauritanian entity. This is so because the "legal ties" invoked by Mauritania overlap with those invoked by Morocco.
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130. The Court will therefore now take up the question of what were the legal ties which existed between Western Sahara, at the time of its colonization by Spain, and the Mauritanian entity. As the very formulation of Question II implies, the position of the Islamic Republic of Mauritania in relation to Western Sahara at that date differs from that of Morocco for the reason that there was not then any Mauritanian State in existence. In the present proceedings Mauritania has expressly accepted that the "Mauritanian entity" did not then constitute a State; and also that the present statehood of Mauritania "is not retroactive". Consequently, it is clear that it is not legal ties of State sovereignty with which the Court is concerned in the case of the "Mauritanian entity" but other legal ties. It also follows that the first point for the Court's consideration is the legal nature of the "Mauritanian entity" with which Western Sahara is claimed by Mauritania to have had those legal ties at the time of colonization by Spain.
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131. The term "Mauritanian entity", as appears from the information before the Court, is a term first employed during the session of the General Assembly in 1974 at which resolution 3292 (XXIX) was adopted. This term, Mauritania maintains, was used by the General Assembly to denote the cultural, geographical and social entity which existed at the time in the region of Western Sahara and within which the Islamic Republic of Mauritania was later to be created. That such is the sense in which the term is used in Question II has not been disputed.
132. Explaining its concept of the Mauritanian entity at the time of the colonization of Western Sahara, Mauritania has stated:
(a) Geographically, the entity covered a vast region lying between, on the east, the meridian of Timbuktu and, on the west, the Atlantic, and bounded on the south by the Senegal river and on the north by the Wad [p 58] Sakiet El Hamra. In the eyes both of its own inhabitants and of the Arabo-Islamic communities, that region constituted a distinct entity.
(b) That entity was the Bilad Shinguitti, or Shinguitti country, which constituted a distinct human unit, characterized by a common language, way of life and religion. It had a uniform social structure, composed of three "orders": warrior tribes exercising political power; marabout tribes engaged in religious, teaching, cultural, judicial and economic activities; client-vassal tribes under the protection of a warrior or marabout tribe. A further characteristic of the Bilad Shinguitti was the much freer status of women than in neighbouring Islamic societies. The most significant feature of the Bilad Shinguitti was the importance given to the marabout tribes, who created a strong written cultural tradition in religious studies, education, literature and poetry; indeed, its fame in the Arab world derived from the reputation acquired by its scholars.
133. According to Mauritania, two types of political authority were found in the Bilad Shinguitti: the emirates and the tribal groups not formed into emirates. The major part of the Shinguitti country was composed of the four Emirates of the Trarza, the Brakna, the Tagant and the Adrar, where the town of Shinguit is situated. This town was both the centre of Shinguitti culture and a crossroads of the caravan trade, so that the Emirate of the Adrar became the pole of attraction for the important nomadic tribes of the Sahara. At the time of the Spanish colonization of Western Sahara, Mauritania maintains, the Emir of the Adrar was the principal political figure of the north and north-west Shinguitti country, and possessed "an influence extending from the Sakiet El Hamra to the Senegal". In this connection, it invokes the testimony of the Spanish explorer, Captain Cervera, who in 1886 concluded with the Emir at 'Ijil a treaty by which, had it been ratified, Spain would have been recognized as sovereign of the whole Adrar at-Tmarr. He had reported at the time that it was thanks to the Emir that several tribal chiefs were assembled at 'Ijil; that it was under the Emir's protection that the Spanish delegation had been able to attend the meeting safely; and that the parties to the two treaties concluded on that occasion included chiefs not only of tribes of the Adrar but also of tribes from west of the Emirate, i.e., from the territory of the Río de Oro.
134. In addition to the four emirates, Mauritania mentions a number of other tribal groups, not formed into emirates, which existed in Western Sahara at the time of its colonization by Spain. Among these it names as the main tribes the 'Aroussiyeen, Oulad Deleim, Oulad Bu-Sba', Ahil Barik-Allah and Regheibat. It maintains that all these tribes and the four emirates themselves were both autonomous and independent, not acknowledging any tie of political allegiance to the Sultan of Morocco. Their independence, it states, is shown by the numerous treaties which they signed with foreign Powers, and by the fact that "the emirs, sheikhs and other tribal [p 59] chiefs were never invested by outside authorities and always derived their powers from the special rules governing the devolution of power in the Shinguitti entity". Each emirate and tribal group was autonomously administered by its ruler, whose appointment and important acts were subject to the assent of the assembly of the Juma'a.
135. Mauritania recognizes that the emirates and the tribes were not under any common hierarchical structure. "In this respect", it has said:
"... the Shinguitti entity could not be assimilated to a State, nor to a federation, nor even to a confederation, unless one saw fit to give that name to the tenuous political ties linking the various tribes".
Within the entity there were "great confederations of tribes, or emirates whose influence, in the form sometimes of vassalage and sometimes of alliance, extended far beyond their own frontiers". Even so, Mauritania recognizes that this is not a sufficient basis for saying that "the Shinguitti entity was endowed with international personality, or enjoyed any sovereignty as the word was understood at that time".
136. The Bilad Shinguitti, according to Mauritania, was a community having its own cohesion, its own special characteristics, and a common Saharan law concerning the use of water-holes, grazing lands and agricultural lands, the regulation of inter-tribal hostilities and the settlement of disputes. Within this community:
"It was in reality the component entities which were endowed with the legal personalities or sovereignties, save in so far as these had been wholly or partly alienated, by ties of vassalage or alliance, to other such components. The sovereignty of the different component entities obviously derived from their practice";
each body, as master of a territory, ensured the protection of the territory and of its subjects against acts of war or pillage and, correspondingly, its ruler had the duty to safeguard outsiders who sought his protection. When the emirs or sheikhs formed alliances with or waged war on one another, it was a question of relations between equals. But the existence of the community became apparent when its independence was threatened, as is shown, in the view of Mauritania, by the concerted effort made by the tribes throughout the Shinguitti country to resist French penetration.
137. At the same time, Mauritania lays emphasis on the special characteristics of the Saharan area and the nomadic existence of many of the tribes which have already been referred to in this Opinion. Life in the arid areas of the Shinguitti country, it observes, required the continuous quest for suitable pastures and water-holes; and each tribe had a well-defined migration area with established migration routes determined by the location [p 60] of water-holes, burial grounds, cultivated areas and pastures. The colonial Powers, it further observes, in drawing frontiers took no account of these human factors and in particular of the tribal territories and migration routes, which were, as a result, bisected and even trisected by those artificial frontiers. Nevertheless, the tribes of necessity continued to make their traditional migrations, traversing the Shinguitti country comprised within the territory of the present-day Islamic Republic of Mauritania and Western Sahara. The same families and their properties were to be found on either side of the artificial frontier. Some wells, lands and burial grounds of the Río de Oro, for example, belonged to Mauritanian tribes, while watering places and palm oases in what is now part of the Islamic Republic were the properties of tribes of Western Sahara. These facts of life in the region, it points out, were recognized by France and Spain, which, in 1934, concluded an administrative agreement to prevent any obstacles to the nomadic existence of the tribes.
138. If it is thought necessary to have recourse to verbal classifications, Mauritania suggests that the concepts of "nation" and of "people" would be the most appropriate to explain the position of the Shinguitti people at the time of colonization; they would most nearly describe an entity which despite its political diversity bore the characteristics of an independent nation, a people formed of tribes, confederations and emirates jointly exercising co-sovereignty over the Shinguitti country.
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139. As to the legal ties between Western Sahara and the Mauritanian entity, the views of Mauritania are as follows: At the time of Spanish colonization, the Mauritanian entity extended from the Senegal river to the Wad Sakiet El Hamra. That being so, the part of the territories now under Spanish administration which lie "to the south of the Wad Sakiet El Hamra was an integral part of the Mauritanian entity". The legal relation between the part under Spanish administration and the Mauritanian entity was, therefore, "the simple one of inclusion". At that time, the Bilad Shinguitti was an entity united by historical, religious, linguistic, social, cultural and legal ties, and it formed a community having its own cohesion. The territories occupied by Spain, on the other hand, did not form an entity of their own and did not have any identity. The part to the south of the Wad Sakiet El Hamra was, legally speaking, part of the Mauritanian entity. That part and the present territory of the Islamic Republic of Mauritania together constitute "the indissociable parts of the Mauritanian entity".
140. In the light of the foregoing, Mauritania asks the Court to find that "at the time of colonization by Spain the part of the Sahara now under Spanish administration did have legal ties with the Mauritanian entity". At the same [p 61] time, it takes the position that where the Mauritanian entity ended the Kingdom of Morocco began. It also makes clear that the finding which it requests is limited to the part of Western Sahara to the south of the Sakiet El Hamra, subject to some overlapping between the legal ties of the Mauritanian entity and those of Morocco solely where they met, owing to the overlapping of the nomadic routes of their respective tribes.
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141. Spain considers that there are a number of obstacles in the way of accepting the views of the Islamic Republic. The Bilad Shinguitti or Shinguitti entity, it says, by no means coincides with what is called the Mauritanian entity. In its broadest sense, the Bilad Shinguitti is the area of an Islamaic culture, and it is a cultural and religious centre which had a certain influence up to the sixteenth century. Spain finds it impossible, however, to accept that a cultural phenomenon, limited in time and space, could be identical with an alleged entity of which the significance was mainly geographical and which had wider limits: Shinguit's religious and cultural influence and its fame in the Islamic world is not to be confused with the political hegemony of the Emirate of the Adrar which, when it came into being in the eighteenth century, included the town of Shinguit in its borders.
142. Again, in the view of Spain, the idea of an entity must express not only a belonging but also the idea that the component parts are homogeneous. The Mauritanian entity, however, is said to have been formed of heterogeneous components, some being mere tribes and others having a more complex degree of integration, such as an emirate. As to the Emirate of the Adrar, which is claimed to have been the nucleus of the Mauritanian entity, Spain maintains that it was a region distinct and independent from all those surrounding it, politically, socially and economically. Spain considers it to have constituted a centre of autonomous power distinct both from the other emirates in the south and from the independent nomad tribes in the north and west. Furthermore, at the period of colonization of Western Sahara, this emirate, according to Spain, was undergoing grave internal troubles and also being harassed by the neighbouring Emirates of the Trarza and the Tagant, and Spain describes the region as having then been in a state of anarchy.
143. Another difficulty, according to Spain, is that the concept of a Mauritanian entity is not accompanied by proof of any tie of allegiance between the tribes inhabiting the territory of Western Sahara and the Mauritanian tribes or between the tribes of the territory and the Emirate of the Adrar. Far from merging into or disappearing within the framework of the so-called Mauritanian entity, Spain maintains, the tribes of Western Sahara led their own life independently of the other Saharan tribes. In its view, there is an almost total lack of evidence which might give support to the Mauritanian argument over and above the mere sociological facts about nomadic life. [p 62]
144. As to the agreements concluded by the independent tribes of the Sahara with Spanish explorers and with France, Spain considers those documents to run counter to the thesis that there was a "Mauritanian entity" in which tribes of Western Sahara were integrated. It regards the texts of the two treaties signed a 'Ijil on 12 July 1886, one with the independent tribes and the other with the Emir, as decisive on this point. The first was concluded with the tribes living in the area between the Atlantic and the western slopes of the Adrar, who ceded to Spain "all territories between the coast of the Spanish possessions of the Atlantic between Cape Bojador and Cabo Blanco and the western boundary of the Adrar"; the second treaty was concluded with the Emir and "recognizes Spanish sovereignty over the whole territory of the Adrar at-Tmarr". The existence of these two separate treaties, in Spain's view, evidences not only the total independence of those tribes and of the Emirate, but also their independence of each other; and it further proves that the Emir may have exerted influence but never political authority over those tribes. The independence of the tribes as between themselves is held by Spain to be also shown by the signature of the 1884 treaty by one tribe alone with the explorer Bonelli. Furthermore, other participants in this alleged entity, the Emirates of the Brakna, Trarza and Tagant and the tribes of the Hodh, signed with France a long series of treaties throughout the nineteenth century. Spain therefore finds it difficult to appreciate the coherence of the alleged Shinguitti entity.
145. Furthermore Spain rejects the proposition, bound up with the concept of the Mauritanian entity advanced by Mauritania, that the territory under Spanish administration did not itself form an entity or possess an identity of its own. It considers that what is the present territory of Western Sahara was the foundation of a Saharan people with its own well-defined character, made up of autonomous tribes, independent of any external authority; and that this people lived in a fairly well-defined area and had developed an organization and a system of life in common, on the basis of collective self-awareness and mutual solidarity. In Western Sahara, it says, a clear distinction was made by the population and in literature between their own country, the country of the nomads, and other neighbouring countries of a sedentary way of life, such as Shinguitti, Tishit and Timbuktu. The land of the settled people coincided to a large extent, in the north, with the historic frontiers of Morocco and, in the south, with the Emirate of the Adrar at-Tmarr. There was thus, according to Spain, a Sahrawi people at the time of colonization, coherent and distinct from the Mauritanian emirates; and this people in no way regarded itself as part of the Bilad Shinguitti or Mauritanian entity.
146. Another legal difficulty, according to Spain, is that 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 at a time when the territory of Western Sahara is said by Spain already to have had an existence well established in fact and in law. [p 63]
147. On the basis of the foregoing considerations, Spain maintains that at the time of colonization by Spain there were no legal ties between the territory of Western Sahara and the Mauritanian entity.
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148. In the case concerning Reparation for Injuries Suffered in the Service of the United Nations, the Court observed: "The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community" (I.C.J. Reports 1949, p. 178). In examining the propositions of Mauritania regarding the legal nature of the Bilad Shinguitti or Mauritanian entity, the Court gives full weight both to that observation and to the special characteristics of the Saharan region and peoples with which the present proceedings are concerned. Some criterion has, however, to be employed to determine in any particular case whether what confronts the law is or is not legally an "entity". The Court, moreover, notes that in the Reparation case the criterion which it applied was to enquire whether the United Nations Organization — the 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" (ibid.). In that Opinion, no doubt, the criterion was applied in a somewhat special context. Nevertheless, it expresses the essential test where a group, whether composed of States, of tribes or of individuals, is claimed to be a legal entity distinct from its members.
149. In the present case, the information before the Court discloses that, at the time of the Spanish colonization, there existed many ties of a racial, linguistic, religious, cultural and economic nature between various tribes and emirates whose peoples dwelt in the Saharan region which today is comprised within the Territory of Western Sahara and the Islamic Republic of Mauritania. It also discloses, however, the independence of the emirates and many of the tribes in relation to one another and, despite some forms of common activity, the absence among them of any common institutions or organs, even of a quite minimal character. Accordingly, the Court is unable to find that the information before it provides any basis for considering the emirates and tribes which existed in the region to have constituted, in another phrase used by the Court in the Reparation case, "an entity capable of availing itself of obligations incumbent upon its Members" (ibid.). Whether the Mauritanian entity is described as the Bilad Shinguitti, or as the Shinguitti "nation", as Mauritania suggests, or as some form of league or association, the difficulty remains that it did not have the character of a personality or corporate entity distinct from the several emirates and tribes which composed it. The proposition, therefore, that the Bilad Shinguitti should be considered as having been a Mauritanian "entity" enjoying some form of sovereignty in Western Sahara is not one that can be sustained. [p 64]
150. In the light of the above considerations, the Court must conclude that at the time of colonization by Spain there did not exist between the territory of Western Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of tribes, or of "simple inclusion" in the same legal entity.
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151. This conclusion does not, however, mean that the reply to Question II should necessarily be that at the time of colonization by Spain no legal ties at all existed between the territory of Western Sahara and the Mauritanian entity. The language employed by the General Assembly in Question II does not appear to the Court to confine the question exclusively to those legal ties which imply territorial sovereignty. On the contrary, the use of the expression "legal ties" in conjunction with "Mauritanian entity" indicates that Question II envisages the possibility of other ties of a legal character. To confine the question to ties of sovereignty would, moreover, be to ignore the special characteristics of the Saharan region and peoples to which reference has been made in paragraphs 87 and 88 above, and also to disregard the possible relevance of other legal ties to the various procedures concerned in the decolonization process.
152. The information before the Court makes it clear that the nomadism of the great majority of the peoples of Western Sahara at the time of its colonization gave rise to certain ties of a legal character between the tribes of the territory and those of neighbouring regions of the Bilad Shinguitti. The migration routes of almost all the nomadic tribes of Western Sahara, the Court was informed, crossed what were to become the colonial frontiers and traversed, inter alia, substantial areas of what is today the territory of the Islamic Republic of Mauritania. The tribes, in their migrations, had grazing pastures, cultivated lands, and wells or water-holes in both territories, and their burial grounds in one or other territory. These basic elements of the nomads' way of life, as stated earlier in this Opinion, were in some measure the subject of tribal rights, and their use was in general regulated by customs. Furthermore, the relations between all the tribes of the region in such matters as inter-tribal clashes and the settlement of disputes were also governed by a body of inter-tribal custom. Before the time of Western Sahara's colonization by Spain, those legal ties neither had nor could have any other source than the usages of the tribes themselves or Koranic law. Accordingly, although the Bilad Shinguitti has not been shown to have existed as a legal entity, the nomadic peoples of the Shinguitti country should, in the view of the Court, be considered as having in the relevant period possessed rights, including some rights relating to the lands through which they migrated. These rights, the Court concludes, constituted legal ties between the territory of Western Sahara and the "Mauritanian entity", this expression being taken to denote [p 65] the various tribes living in the territories of the Bilad Shinguitti which are now comprised within the Islamic Republic of Mauritania. They were ties which knew no frontier between the territories and were vital to the very maintenance of life in the region.
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153. In the oral proceedings, Morocco and Mauritania both laid stress on the overlapping character of the respective legal ties which they claim Western Sahara to have had with them at the time of colonization. Although the view of the Court as to the nature of those ties differs in important respects from those of the two States concerned, the Court is of the opinion that the overlapping character of the ties of the territory with Morocco and the "Mauritanian entity", as defined by the Court, calls for consideration in connection with Question II. This is because the overlapping character of the ties appears to the Court to be a significant element in appreciating their scope and implications.
154. The views of Morocco and Mauritania appear to have evolved considerably since their respective claims to special links with Western Sahara were first raised in the United Nations. It suffices, for the purposes of this Opinion, to note their views as finally formulated before the Court.
155. Morocco's views were explained as follows:
"Morocco asserts the exercise of its sovereignty, but it does not deny, in so doing, that legal ties of another nature, no less essential having regard to the question put to the Court and to the forms of political life in the region concerned at the time of Spanish colonization, may be asserted by Mauritania.
………………………………………………………………………………………………
the sovereignty invoked by Morocco and the legal ties invoked by Mauritania were exercised on nomadic tribes and had their first impact on human beings. Of course, these human beings traced in their travels the outline of a territorial entity but, because of the very nature of the relationships between man and the land, some geographical over-lappings were inevitable.
When Morocco cites dahirs addressed to geographical destinations extending to Cabo Blanco, it is relying on documents attesting the allegiance of tribes finding themselves at given times at certain points in their nomadic itineraries. But it does not mean thereby to claim that, viewed from the standpoint of the destination of the dahir, the strongest link was not with the Mauritanian entity.[p 66]
Conversely, Morocco does not consider that geographical reference by Mauritania to the outer limits of the nomadic itineraries of Mauritanian tribes rules out the predominance of Moroccan sovereignty in those areas.
In short, there is a north and there is a south which juxtapose in space the legal ties of Western Sahara with Morocco and with Mauritania."
Amplifying this explanation, Morocco said:
"... when Morocco refers to Cabo Blanco and Villa Cisneros in stating arguments of a general character, it is not intending thereby to maintain that its sovereignty extended over those regions at the time of the Spanish colonization; for at the period under consideration those regions were an integral part of the Mauritanian entity, to which the Islamic Republic of Mauritania is the sole successor."
156. The views of Mauritania were explained as follows:
"... the Governments of the Islamic Republic of Mauritania and of the Kingdom of Morocco recognize that there is a north appertaining to Morocco, a south appertaining to Mauritania and that there are some overlappings as a result of the intersection of the nomadic routes from the north and from the south. As a result, therefore, there is no no-man's land between the influence of Morocco and that of the Mauritanian entity..."
"The areas of overlap which have been referred to before the Court implied the superimposition of the Mauritanian entity, the Shinguitti entity, and the Kingdom of Morocco, solely where they met.
Thus the mention of Cabo Blanco and Villa Cisneros by Morocco cannot signify that those regions were, at the time of colonization, under Moroccan sovereignty, as was conceded... on 25 July... Similarly, the fact that there may have been this or that Mauritanian nomadic migration in the region of the Sakiet El Hamra cannot be regarded as implying any dispute as to the fact that that region appertains to the Kingdom of Morocco, which, in the view of the Mauritanian Government, did not end at the limits of the Makhzen."
157. It has to be added that Morocco and Mauritania both emphasized that, in their_view, the overlapping left "no geographical void" —no "no-man's land" — between their respective ties with Western Sahara.
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158. The Court, as has already been indicated, concurs in the view that Question II does not envisage any form of territorial delimitation by the [p 67] Court. It is also evident that the conclusions reached by the Court concerning the ties which existed between Western Sahara and the Kingdom of Morocco or the Mauritanian entity, as defined above, at the time of colonization lead also to the conclusion that there was a certain overlapping of those ties. The findings of the Court, however, regarding the nature of the legal ties of the territory respectively with the Kingdom of Morocco and the Mauritanian entity differ materially from the views advanced in that respect by Morocco and Mauritania. In the opinion of the Court those ties did not involve territorial sovereignty or co-sovereignty or territorial inclusion in a legal entity. In consequence, the "geographical overlapping" drawn attention to by the two States had, in the Court's view, a different character from that envisaged in the statements quoted above.
159. The overlapping arose simply from the geographical locations of the migration routes of the nomadic tribes; and the intersection and overlapping of those routes was a crucial element in the complex situation found in Western Sahara at that time. To speak of a "north" and a "south" and an overlapping with no void in between does not, therefore, reflect the true complexity of that situation. This complexity was, indeed, increased by the independence of some of the nomads, notably the Regheibat, a tribe prominent in Western Sahara. The Regheibat, although they may have had links with the tribes of the Bilad Shinguitti, were essentially an autonomous and independent people in the region with which these proceedings are concerned. Nor is the complexity of the legal relations of Western Sahara with the neighbouring territories at that time fully described unless mention is made of the fact that the nomadic routes of certain tribes passed also within areas of what is present-day Algeria.
160. In the view of the Court, therefore, the significance of the geographical overlapping is not that it indicates a "north" and a "south" without a "no-man's land". Its significance is rather that it indicates the difficulty of disentangling the various relationships existing in the Western Sahara region at the time of colonization by Spain.
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161. As already indicated in paragraph 70 of this Opinion, the General Assembly has made it clear, in resolution 3292 (XXIX), that the right of the population of Western Sahara to self-determination is not prejudiced or affected by the present request for an advisory opinion, nor by any other provision contained in that resolution. It is also clear that, when the General Assembly asks in Question II what were the legal ties between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity, it is addressing an enquiry to the Court as to the nature of these legal ties. This question, as stated in paragraph 85 above, must be understood as referring to [p 68] such legal ties as may affect the policy to be followed in the decolonization of Western Sahara. In framing its answer, the Court cannot be unmindful of the purpose for which its opinion is sought. Its answer is requested in order to assist the General Assembly to determine its future decolonization policy and in particular to pronounce on the claims of Morocco and Mauritania to have had legal ties with Western Sahara involving the territorial integrity of their respective countries.
162. 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 of 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 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 and the Kingdom of Morocco 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-determination through the free and genuine expression of the will of the peoples of the Territory (cf. paragraphs 54-59 above).
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163. For these reasons,
The Court Decides,
with regard to Question I,
by 13 votes to 3,
and with regard to Question II,
by 14 votes to 2,
to comply with the request for an advisory opinion;
The Court Is of Opinion,
with regard to Question I,
unanimously, [p 69]
that Western Sahara (Río de Oro and Sakiet El Hamra) 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 this Opinion;
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 this Opinion.
Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this sixteenth day of October, one thousand nine hundred and seventy-five, in two copies, of which one will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar.
Judge Gros makes the following declaration:
[Translation]
The request for advisory opinion, as I understand it, puts to the Court a precise question, relating to a certain legal controversy, to which the Advisory Opinion gives a complex reply; I was in agreement with the Court only in respect of one part of that reply, which I would have preferred to separate from the rest of the operative part of the Opinion. My analysis of the facts of the case and the rules of interpretation which should be applied to them differs from the observations made by the Court, and I consider it necessary to give a brief account of the reasons for my approach to the problems raised by examination of the General Assembly's request, the object of which appears to me to be more limited than that adopted in the Advisory Opinion.
1. In every case, whether contentious or advisory, the first question which arises for a court is: What is being asked for? In the present case, right from [p 70] the beginning of the proceedings it was apparent that the General Assembly was asking the Court to give it an opinion on a precise legal question, defined as springing from a "legal controversy [which] arose" during the discussion "over the status of the said Territory at the time of its colonization by Spain"; in the documentation supplied by the Secretary-General concerning the period 1958-1974 there is no trace of any specific legal question between Morocco and Spain, which however the present Advisory Opinion has described as a "legal dispute ... regarding the Territory" (Order of 22 May 1975 and para. 9 of the Opinion). I therefore voted against the Order of 22 May, which, while it was devoted to the composition of the Court, inevitably settled the question of the legal nature of the Opinion, as had already happened in 1971 (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, pp. 16 ff.). The problem I will deal with first is that of the definition of the object of the present request for opinion, apart from the consequences of the Order on the composition of the Court (cf. on this point para. 7 below). I consider that there is no dispute — since that is the word used by the Court — 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 only in 1974, which may be analysed as a multilateral legal controversy in a debate on the future status of the territory of Western Sahara (hereinafter referred to as the Territory). The subject of that legal question is as follows: is Morocco entitled to claim 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 by Spain? Such is therefore the precise legal question, and the sole question, to be answered by the Court; I therefore regard the reasoning of the Advisory Opinion on other subjects as unrelated to the object of the request.
2. There is no need to dwell at length on the nature of the alleged dispute between two States on such a question. The Court should examine the titles of the Sherifian Empire prior to the time of colonization by Spain, even though the date of 1884 were not a rigid date. Proof of the sovereignty of the Sherifian Empire is necessarily a proof prior to the action of the Government of Spain, and independent thereof; since the claim was based on the detachment of part of the territory of the Empire, it entails the need to prove prior appurtenance to the territory of a State which was then recognized by the community of States. Spain may of course have been one witness, among others, of the situation, but it cannot be a party to a bilateral legal dispute which "continued to subsist" (para. 36 of the Opinion) with the Kingdom of Morocco over facts and a legal situation existing 90 years ago. For a dispute really to exist between two States, it is necessary, as Judge Morelli, and subsequently Judge Sir Gerald Fitzmaurice, have explained, in the Northern Cameroons case (I.C.J. Reports 1963, p. 109), and subsequently the case of the Advisory Opinion of 21 June 1971 (I.C.J. Reports 1971, p. 314), that: [p 71]
"... the one party [or parties] should be making, or should have made, a complaint, claim or protest about an act, omission or course of conduct, present or past of the other party, which the latter refutes, rejects or denies the validity of, either expressly, or else implicitly by persisting in the acts, omissions or conduct complained of, or by failing to take the action or make the reparation, demanded".
It is not enough that two States may have different or even opposing views as to an event or situation for there to be a contentious case, and the end of the passage quoted makes this clear: if it is not possible for any satisfaction for the claim of the one State to be obtained from the other, there is no dispute between them. Now what response could the Government of Spain make to a claim of the Government of Morocco concerning the right of reintegration of the Territory into the Kingdom of Morocco, when these two Governments have specifically agreed to effect the decolonization of the Territory by a procedure set in motion within the United Nations, except to reply that it had no competence to settle by itself this problem which the two Governments, along with many others, are debating in various United Nations bodies. Even if the Government of Spain had agreed to support the claim of the Government of Morocco, such an attitude would have been without any legal effect in the international sphere. The two Governments have explicitly chosen decolonization in the context of the United Nations, in order to study and ultimately settle the future of the Territory, with the other Members of the United Nations. There is no bilateral dispute which is detachable from the United Nations debate on the decolonization; there is no bilateral dispute at all, nor has there ever been any such dispute.
3. In the Advisory Opinion the Court has not re-used the expression "legal dispute... regarding the Territory" between the Governments of Morocco and Spain, used in the Order of 22 May; paragraphs 34 to 41 slightly modify the analysis, and refer to a legal controversy which arose not in bilateral relations but during the proceedings of the General Assembly, and in relation to matters with which it was dealing. But the ground of the Order of 22 May was an alleged bilateral dispute, since a judge ad hoc was accepted for Morocco and refused for Mauritania. Despite the stylistic development in the Opinion, the reasoning is still that a legal controversy continued to subsist between Morocco and Spain, and this is, it seems to me, not maintainable for the reasons of substance which I have briefly outlined. It is also not maintainable in the light of the history of how the alleged dispute took concrete shape. When examining the documents submitted, the Court has correctly noted that between 1958 and 1974 the controversy had several aspects. Between 1966 and 1974 it so far faded away that it was left aside by the claimant State, apart from reservations intended to prevent it being argued that its legal contention had been abandoned. Prior to 1966, however, the opposition of views between Morocco and Spain never got beyond the stage of bilateral diplomatic conversations, or discussions of principle in the United [p 72] Nations; the dossier before the Court does not contain a single trace of a negotiation which might appear to be a preliminary to the crystallization of a bilateral dispute. After having tried the way of negotiation with Spain in order to obtain solutions the nature of which the dossier does not make clear, the Government of Morocco stated on 7 June 1966 that it would choose another way, that of "the liberation and independence of the Moroccan people of so-called Spanish Sahara ... in the conviction that unity could be achieved only through liberation and independence.. ."(A/AC.109/SR.436, p. 8). The alleged dispute had not crystallized up to that time, and in subsequent debates it was not until the 1974 session of the General Assembly that, according to the Court, it "reappeared".
4. In connection with the Advisory Opinion of 21 June 1971 (I.C.J. Reports 1971, pp. 329-330), I have enquired into the elements for solution of the problem posed by the parallel existence of a dispute between two or more States and of a situation of which the political organ of the United Nations was seised, and I then took the view that the fact that a general situation was being dealt with within the United Nations could not bring about the disappearance of the element of a dispute between States if there existed such an element, and that in each case the first question was whether one is or is not confronted with what is really a dispute. I do not see that in the present case there is any dispute between Morocco and Spain; there cannot be a dispute over a legal issue which neither of the States can resolve by themselves. The disagreement in all the United Nations debates concerns a problem any solution of which is meaningless unless it is valid erga omnes; in the present case there is no bilateral dispute which can be detached from the general discussion of the claim of the Government of Morocco to re-integration of the Territory, but what is detachable from the general discussion is a point of law of general interest on which the General Assembly considers itself insufficiently informed, and which it asks the Court to settle in order to be able to continue its examination of the decolonization of the Territory. This point may of course be of more particular interest to certain member States, and that is the reason why they are mentioned in resolution 3292 (XXIX), but these States are not making specific claims against each other, and there is no dispute.
5. Apart from the important legal interest of principle involved in the discussion of the point, the principal consequence of the difference between the alleged bilateral dispute and a legal question falling within the advisory competence of the Court has been an erroneous decison taken as to the composition of the Court, and further the fact that the presentation of the Advisory Opinion is a precise transposition of what is customary in contentious proceedings. I find it regrettable that the Court should in the Opinion have confirmed the view provisionally taken in the Order of 22 May, and — associating myself with the reservations of other Members of the Court — I maintain that that analysis did not take account of the necessary conditions for the existence of real disputes to be recognized. This is all the more so in that, by conceding in the advisory opinion that the subject of its [p 73] examination depended on the interpretation of the decolonization action of the Territory, the Court in effect abandoned the view that there was a bilateral opposition between Morocco and Spain as to the re-integration of the Territory into the Kingdom of Morocco.
6. The question whether, within the decolonization process of Western Sahara commenced by the United Nations, one or two States can 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 the Statute of the Court, and it is proper to give a reply thereto. But the definition of legal questions within the meaning of Article 65, as formulated in a general way in paragraphs 18 and 19 of the Advisory Opinion, seems to me dangerously inaccurate. I shall merely recall that when the Court gives an advisory opinion on a question of law it states the law. The absence of binding force does not transform the judicial operation into a legal consultation, which may be made use of or not according to choice. The advisory opinion determines the law applicable to the question put; it is possible for the body which sought the opinion not to follow it in its action, but that body is aware that no position adopted contrary to the Court's pronouncement will have any effectiveness whatsoever in the legal sphere. In the present case, as defined in the Advisory Opinion, this point is no longer in doubt; since the question put has been found to be a legal one, and since a reply could be regarded as capable of influencing the United Nations action of decolonization of the Territory, the Court could exercise its function as a judicial organ on such a question in the normal way, unlike the case contemplated in 1963 when it stated that: "it is not the function of a Court merely to provide a basis for political action if no question of actual legal rights is involved" (I.C.J. Reports 1963, p. 37, emphasis added). The Court's reply concerns a claim of right to re-integration of the Territory at the present time, and the fact that the first test of that right was that of the titles prior to colonization does not make such a question abstract or academic. That is not so with regard to the other part of the reply which the Court has given in paragraph 162 of the Opinion, as we shall see in paragraphs 10 and 12 of these observations; it is the application of this theory, which gives an extensive meaning to Article 65 of the Statute, to the operative part of the Opinion which shows how improper it is.
7. To conclude on this aspect of the problems of competence which have arisen for the Court, I shall merely observe that once again the commitments entered into in an Order on a preliminary question have tied the Court's hands. The recitals in the Order of 22 May 1975 were based on the "appearance" of a dispute between Morocco and Spain and of a request on a legal question pending between two or more States within the meaning of Article 89 of the Rules; the verb "appear" is used four times. The Court however then went on to say that its conclusions did not prejudge its position on any of the questions subsequently to be decided, competence, propriety of replying to the request, merits. Despite the effective disappearance of the bilateral dispute in the Court's train of reasoning in its Opinion, and the veil [p 74] drawn over the existence of a legal question pending between States, the Court has been unable or unwilling to modify what it said in May 1975, although the reason for the appointment of a judge ad hoc does not stand. The third recital in the Order states that the Court "includes upon the Bench a judge of the nationality of Spain, the administering Power of Western Sahara"; I have pointed out in paragraphs 2 and 4 above that Spain was not, on the basis of that or any other status, a party to a bilateral dispute, or to the settlement of a legal question pending between two or more States. By deciding that the question put to the Court was linked to the pursuit of the General Assembly's decolonization process, the Court impliedly admits that the justification for its competence is no longer the dispute which there "appeared" to be in May 1975. Judge Sir Gerald Fitzmaurice and I commented in 1971 on the regrettable effects of these Orders on the composition of the Court which irrevocably prejudge the merits (I.C.J. Reports 1971, p. 316, pp. 325-326 and 330). I should add, in the present case, that the Court allowed one of its Members to sit although he had in the United Nations committed himself on one element in the discussion (on this point cf. I.C.J. Reports 1971, the dissenting opinion of Sir Gerald Fitzmaurice, p. 309, and my own observations on pp. 311 ff.).
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8. My observations on the problems raised by the Government of Mauritania essentially do not differ from those of the Court; I would however observe that the legal position of the Government of Mauritania in the proceedings before the Court was peculiar, inasmuch as prior to 1974 it did not seek to set up its claim for reintegration of the Territory into its national territory against the normal pursuit of the procedure for self-determination of the population of the Territory in the United Nations context.
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9. The above considerations as to the proper interpretation of Article 65 of the Statute and the precise object of the request for advisory opinion enable me to be brief in explaining my negative vote as to the propriety of replying to the first question in the request. Since the Court decided to reply to this question in the very terms in which it has been put, I took the view that the question was not a legal one, that it was purely academic and served no useful purpose, and I share the views of Judge Dillard as to its being a "loaded" one. The Advisory Opinion rightly recognizes that the concept of terra nullius was never relied on by any of the States interested in the status of the Territory at the time of colonization; no treaty or diplomatic document has been produced relying on this concept in connection with Western Sahara, and States at the time spoke only of zones of influence. With regard to a territory [p 75] in respect of which the concept makes no appearance in the practice of States, it is a sterile exercise to ask the Court to pronounce on a hypothetical situation; it is not for a court to enquire into what would have happened in 1884 if States had relied on this concept, but into what did happen. If the real question put by the General Assembly, in the thinking of those who drafted it, was what was the legal status of the Territory under international law at the time, it duplicated the second question, to which the Court has, almost unanimously, agreed to reply.
Having said that, since the Court has decided to give a reply to the first question, and since our rules do not permit an abstention, I have voted with all my colleagues that the Territory was not nullius before colonization; for I consider that the independent tribes travelling over the territory, or stopping in certain places, exercised a de facto authority which was sufficiently recognized for there to have been no terra nullius.
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10. The Court has not adopted the simplest way of giving its reply to the second question, since the reply itself, inasmuch as it is effected by cross-reference to paragraph 162 of the reasoning, is enigmatic, as is the paragraph referred to, in which a positive finding of what are said to be legal ties of allegiance between certain nomadic tribes of the territory and the Emperor of Morocco at the time of colonization, and also other ties which are said to be legal, this time between the Mauritanian entity and the Territory, is combined with a negative decision as to the existence of any tie of sovereignty over the territory on the part of the Emperor of Morocco or the Mauritanian entity, the conclusion being that no legal tie exists which could influence the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory (with a fresh cross-reference here to paras. 54-59 of the opinion).
The second part of paragraph 162, concerning the question of territorial sovereignty, is the only one which corresponds to the question put in the request for opinion. The object of the request, as I said in my very first paragraph above, was to obtain the opinion of the Court on a claim of the Government of Morocco to the reintegration of the Territory in the national territory of Morocco, and on a parallel claim by the Government of Mauritania based on the concept of the Mauritanian entity at the time in question, which advisory opinion was necessary prior to pursuit of the decolonization of the territory. I agree with the views and decision of the Court on this point of law.
On the other hand, if paragraph 162 had been divided into two, I would have voted against the first part which relates to the "legal ties" other than the tie of territorial sovereignty, because those ties are not legal ties but ethnic, religious or cultural ties, ties of contact of a civilization with what lies on its periphery and outside it, and which do not touch on its own nature. I must [p 76] therefore make a few observations on the part of the Court's reply with which I disagree, both as regards the reasoning and the conclusion (for Morocco, paras. 105, 106, 107, 129; for Mauritania, paras. 151 and 152; for the conclusion, para. 162).
11. The description given in the Opinion of the Saharan desert and of nomadic life in 1884 is an idyllic vision of what was a harsh reality. At the time, the Saharan desert was still the frontierless sea of sand used by the caravans as convoys use an ocean, for the purposes of a well-known trade; the desert was a way of access to markets on its periphery. The relation between the territory and human beings was affected by these aspects, and the organization of the populations of the desert reflects these special conditions of life: caravans, the quest for pastures, oases, defence or conquest, protection and submission between tribes — with regard to which testimony produced to the Court, and not disputed, was to the effect that in modern times there are 173 Moorish tribes. Since the Court was unable to carry out any specific research, it is vain to make generalizations, in the absence of any reliable data, on the lines that there was "allegiance" between the Emperor of Morocco and "some" of the nomadic tribes, or "some rights relating to the land", between the Territory and the Mauritanian entity, when the Court would be quite unable to say either what were the tribes concerned in 1884, to what extent and for what period, nor in what effective exercise of rights relating to the land the tribes and the Mauritanian entity were combined, nor what tribes, nor for what period. It is the duty of a court to establish facts, that is to say to make findings as to their existence, and it confers a legal meaning upon them by its decision; a court may neither suppose the existence of facts nor deduce them from hypotheses unsupported by evidence. How can one speak of a legal tie of allegiance, a concept of feudal law in an extremely hierarchical society, in which allegiance was an obligation which was assumed formally and publicly, which was known to all, was relied on on both sides, and was backed by specific procedures and not merely by the force of arms. The political situation, in the broadest sense of the term, of the tribes of the desert is that of independence asserted by arms, independence both between the tribes themselves and with regard to what lay on the periphery of their travelling grounds. To give the term allegiance its traditional sense, more would have to be said than that it was possible that the Sultan displayed some authority over some unidentified tribes of the desert (para. 105 of the Opinion). As to the observations and deductions made as to the role of the various Tekna tribes, also unidentified, these seem to me injudicious, mere a posteriori constructions of a little known epoch. On the basis of the dossier as it stands, and of the studies of this period by geographers, historians, explorers and soldiers, the Saharan desert and its tribes did not recognize allegiance in the legal sense of the word, and sporadic contacts or relationships with the outside world did not affect the peculiarity and exclusivity of their way of life. If the desert is a separate world, it is an autonomous world in the conception of its relationships with those who have a different way of life. [p 77]
12. Contact-relationships of which the duration is unknown, and the existence of which at the period of colonization is supposed rather than proved, do not afford possible material for the Court to examine and on which to reply, and by doing so it oversteps the limits of the powers conferred upon it by Article 65 of its Statute (cf. para. 6 above). By means of the extensive interpretation given to Article 65, whereby the Court was led to put to itself a second question, that of the legal ties other than sovereignty over the Territory at the period under consideration, which was the sole subject of the controversy which gave rise to the request for opinion, the Court purports to be replying to a legal question, but the ties which it describes as legal would only be so if, after having established their existence, the Court could in any way, by determining their significance, produce an effect on the decolonization of the Territory. The Court cannot attribute a legal nature to facts which do not intrinsically possess it; a court does not create the law, it establishes it. If there is no rule of law making it possible for it to assert the existence of the alleged legal ties, the Court oversteps its role as a judicial organ by describing them as legal, and its finding is not a legal finding; the Court's statement in paragraph 73 of the Opinion that questions put in a request for opinion must have "a practical and contemporary effect" if they are not to be "devoid of object or purpose", does not suffice, for the Court does not in this field have capacity to "give advice" to the General Assembly which would have a practical effect. Whether such factors existed in 1884 or not — which has not been "established" in the judicial sense of the word — the General Assembly would be free to take them into account together with other contemporary factors, which also do not fall within the Court's competence, because economics, sociology and human geography are not law. In 1962 the Court said: "in accordance with Article 65 of its Statute, the Court can give an advisory opinion only on a legal question. If a question is not a legal one, the Court has no discretion in the matter" (Advisory Opinion of 20 July 1962, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), I.C.J. Reports 1962, p. 155).
13. I expressed my view in 1974 as to the current trend in the Court to reply to problems which it raises itself rather than to that which is submitted to it, and can only endorse what I said then (I.C.J. Reports 1974, pp. 148-149). In the present case, the way in which the operative part of the Advisory Opinion has been drawn has obliged me to vote in a way as unsatisfactory as that drafting itself, as is shown by the various opinions in relation to the apparent quasi-unanimity. Like other Members of the Court, I was faced only with the choice between agreeing or disagreeing subject in either event to reservations. I voted in favour of the adoption of the operative clause, and thus of paragraph 162, because of the part thereof concerning the object of the request, as I have defined it above, that is to say verification of the existence of legal ties of appurtenance or dependence of the population of the Territory, at the period under consideration, vis-à-vis an external political authority — in short, ties relating to the sovereignty which was claimed before the Court; and the role of the Court went no further than that. [p 78]
Judge Ignacio-Pinto makes the following declaration:
[Translation]
I have been able to subscribe only in part to the Opinion of the International Court of Justice dated 16 October 1975 and only because in the final paragraph of its reasoning, paragraph 162, 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 and the Kingdom of Morocco 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-determination through the free and genuine expression of the will of the peoples of the Territory."
I consequently reject all that part of the Court's statement which declares that at the time of colonization by Spain there were legal ties of allegiance between the Sultan of Morocco and certain tribes of the territory at the same time as other legal ties between the Mauritanian entity and the territory of Western Sahara.
My objection to the Advisory Opinion is due to the fact that I consider that, even if it appears that the Court is justified in declaring itself competent under the provisions of Article 96 of the Charter of the United Nations on the one hand, and of Article 65 of the Statute of the Court on the other, to receive from the United Nations General Assembly the request for an advisory opinion, it would have been proper by reason of certain circumstances in the case ab initio for the Court, availing itself of its discretionary power, and after having declared the request receivable as to the form, to reject it as to the substance, because the questions as put are, as it were, loaded questions, leading in any case to the answer awaited in this particular instance, namely the recognition of rights of sovereignty of Morocco on the one hand and of Mauritania on the other over some part or other of Western Sahara.
For the sake of brevity and to avoid useless repetition, I can support the observations of Judge Petren concerning the interpretation of paragraph 162 of the Opinion and the grounds on which my colleague, like myself, rejects all of that paragraph other than where it deals with the question of any tie of territorial sovereignty between the territory and Morocco and the Mauritanian entity — a part of the paragraph which I can accept.
Judge Nagendra Singh makes the following declaration:
While agreeing with the Advisory Opinion and the emphasis that it places on ascertainment of the will of the people "genuinely expressed" as the basic [p 79] pillar of self-determination it may be worthwhile to throw more light on the nature and character of the legal ties which remain the subject-matter of Question II of General Assembly resolution 3292 (XXIX) by which the Court is seised of the present request for an Advisory Opinion. No tribunal would appear to depart from its judicial character if it were to state precisely the implications of those ties in terms of decolonization which is the very object and the main theme of the exercise pending before the General Assembly. This is a vital aspect which has to be stated fully and in clear and un-ambiguous terms to enlighten the General Assembly.
In addition there are other aspects, perhaps equally important; which merit attention and require to be appropriately emphasized to convey the full significance of the Advisory Opinion. These matters which weigh with me are briefly stated below.
I
Both Morocco and Mauritania have pleaded on certain pertinent aspects and details of the decolonization process which need to be emphasized. Counsel for Morocco in his oral argument before the Court stated:
"Even in the event that the General Assembly should decide that for the implementation of the principle of self-determination, a referendum should be held, even in such a case, it would be useful to know whether, bearing in mind the existence of legal ties with a country at the time of colonization of this territory by. Spain, it would not be as well to lay before the populations the problem of their future re-attachment, of their return, or on the contrary of their detachment from, ex hypothesi, their former mother country." (Hearing of 26 June 1975.)
"... this problem of the wording of the questions to be put in some future referendum is to some extent clarified by the need for the General Assembly to be in possession of all the elements of this matter... "(ibid.) (emphasis added).
The Court, having reached the correct conclusion that there were no legal ties of such a nature as might "affect the application of resolution 1514 (XV) and, in particular, of the application of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory" would appear to be justified in proceeding further by indicating the extent to which those legal ties that did exist could have a bearing on the decolonization process and if so what concrete shape it could take.
Those legal ties which the Court found to exist at the time of Spanish colonization between Western Sahara and Morocco or Mauritania were not of such a character as to justify today the reintegration or retrocession of the territory without consulting the people. The main reason for this conclusion is simply that, at the time of Spanish colonization, there was no evidence of the [p 80] existence of one single State comprising the territory of Western Sahara and Morocco, or Western Sahara and Mauritania, 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 provisions of paragraph 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 thus points to reintegration of territory. Nevertheless, as the Court finds that there were certain legal ties in existence, it becomes necessary to proceed to assess them with the sole purpose of evaluating them to ascertain if they indicate a definite step in terms of the decolonization process. In short the strength and efficacy of these ties though limited must still be held to be of such an order as to point in the direction of the possible options which could be afforded to the population in ascertaining the will of the people. These options, in accordance with resolution 1541 (XV) as well as 2625 (XXV), could be either integration with Morocco or with Mauritania or having free association with any one of them or for opting in favour of a sovereign independent status of the territory. Even if it is conceded that the procedures for decolonization lie within the exclusive province of the General Assembly it is yet appropriate for a court to point out the relationship between the existence of the legal ties and the decolonization process in order fully to enlighten the General Assembly. To do so is not to trespass on the prerogatives of the General Assembly but to fulfil the role as the principal judicial organ of the United Nations.
There are some valid reasons for going this far but no farther. First, taking into consideration the very raison d'être of resolution 3292 (XXIX) it is clear what the General Assembly expects in the answer to Question II is the Court's appraisal of the nature of these legal ties "which must be understood as referring to such legal ties as may materially affect the method or the policies and procedures to be applied in the decolonization of Western Sahara". If the Court cannot be "unmindful of the purpose for which its opinion is sought" it stands to reason that while remaining well within its judicial bounds the Court should proceed far enough to make clear those aspects of the available options which are open to the people of the territory in any method of their consultation particularly when the Court holds that consultation is essential.
The second reason is that there have been specific pleadings on this matter both by Morocco and Mauritania, as cited above, and these need not be totally ignored.
II
The Court has recognized the validity of the principle of self-determination, "defined as the need to pay regard to the freely expressed will of the peoples". Furthermore the Court has rightly concluded that the need for ascertaining the freely expressed will of the people is not in any way affected by the present request of the General Assembly for an advisory [p 81] opinion. In my opinion the consultation of the people of the territory awaiting decolonization is an inescapable imperative whether the method followed on decolonization is integration or association or independence. This is established by not only the general provisions of the United Nations Charter but also by specific resolutions of the General Assembly on this subject. Apart from Articles 1, 2, 55 and 56 of the Charter and paragraphs 2 and 5 of resolution 1514 (XV) which bring out this aspect generally there are also specific provisions such as contained in principles VII and IX of resolution 1541 (XV) which categorically state "integration should be the result of the freely expressed wishes of the territory's peoples". It is principle VI (c) of resolution 1541 (XV) which prescribes integration as a method of decolonization and principle IX (b) imposes the condition of consultation of the people as the means of achieving self-determination by integration. Again resolution 2625 (XXV) concerning friendly relations goes a long way to further emphasize the point that on decolonization the "emergence into any political status" has to be "freely determined by a people". Thus even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people — the very sine qua non of all decolonization.
However, I am in agreement with the clarification given by the Court to that aspect of the matter which relates to certain cases in which the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. It follows, in my view, that the principle of self-determination could be dispensed with only if the free expression of the will of the people was found to be axiomatic in the sense that the result was known to be a foregone conclusion or that consultations had already taken place in some form or that special features of the case rendered it unnecessary. Such exceptional circumstances are possible and could exist but they do not appear to be present in this case so as to do away with the salutary principle of ascertainment of the freely expressed will of the people of the territory who could, on consultations, elect to integrate with any one of the adjoining interested States if they so desired.
Again, cases falling under paragraph 6 of resolution 1514 would remain outside this rule. In any event, as stated earlier, the facts disclosed here do not point to the application of that particular provision of the said resolution.
III
Another aspect which is equally important to me relates to the Court's observations concerning respect for the fundamental principle of consent to jurisdiction if in any case the requirement of such consent was circumvented by resorting to the advisory proceedings of the Court. In this case Spain has not given its consent to adjudication of the questions formulated in resolution 3292 (XXIX). Furthermore, it did not agree to Morocco's proposal to move the Court in contentious proceedings. It was necessary, therefore, for the [p 82] Court to clarify the legal position resulting from the Spanish contention that there was lack of consent to invoke the Court's jurisdiction. The conclusion is warranted that although there are two distinct channels of the Court's jurisdiction, namely advisory and contentious and although "consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases while the situation is different in regard to advisory proceedings" since the Court's reply is only of an "advisory character" and given "not to States but to the organ entitled to request it" (I.C.J. Reports 1950, p. 71), there could still be certain circumstances in which lack of consent of an interested State could render the giving of an advisory opinion incompatible with the Court's judicial character. The Court, therefore, has stated that if a request for an advisory opinion was made in circumstances which clearly disclosed that the intention or the purpose was to circumvent the principle of consent a situation would arise in which "the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction".
No such bypassing of this salutary principle has taken place in the present proceedings because the object of the request for an opinion has been to obtain from the Court legal advice which the General Assembly considers of assistance in the discharge of its functions in relation to the pending decolonization of a territory. What is of importance, therefore, in this context is the recognition given to the principle of judicial propriety which would oblige the Court to refuse an opinion on the ground of the existence of a "compelling reason" for doing so, if the purpose behind the request for an opinion was to defeat the principle that a State is not obliged to submit its disputes to judicial settlement without its consent. This also enlightens the General Assembly in the use of Article 96 of the Charter by asserting that consent of an interested State still continues to be relevant even in advisory proceedings, "for the appreciation of the propriety of giving an opinion".
Vice-President Ammoun, Judges Forster, Petren, Dillard and de Castro and Judge ad hoc Boni append separate opinions to the Opinion of the Court.
Judge Ruda appends a dissenting opinion to the Opinion of the Court.
(Initialled) M.L.
(Initialled) S.A.
[p 83]
Separate opinion of vice-president Ammoun
[Translation]
While subscribing to the Opinion arrived at by the Court, I feel obliged to deal in this opinion with certain questions to which the Court did not address itself, and with certain others that need to be developed at greater length, or which received a solution or treatment that I am unable to agree with.
***
The Court has rightly held that legal ties existed, at the time of colonization by Spain, between Morocco and Western Sahara.
Without sufficiently convincing reasons, however, it minimizes the nature of those ties by maintaining that they consisted in an allegiance of the Saharan population to the Sultan of Morocco. Paragraphs 95, 107 and 129 quite properly speak of "political" allegiance to the Sultan.
I shall develop the objections to this thesis at length. For the moment, I should like to define the notion of allegiance to the Moroccan sovereign more precisely in order to determine its exact bearing.
***
In itself, allegiance to the sovereign is of a political and constitutional character, as in certain countries that were subject to a military feudal system. Furthermore, at the time of colonization by Spain, that is to say towards the end of the nineteenth century, the Sultan combined in his person the legislative and executive powers, to which was added the spiritual power. He exercised those powers by means of dahirs, which were issued — a significant fact — under his sole signature.
Does this not mean that the Sultan at that time personified the State, all of whose powers he exercised? Therefore allegiance to the Sultan, or sovereign, was equivalent to allegiance to the State. This entails acknowledging that the legal ties between Morocco and Western Sahara recognized by the Court took the form of political ties, indeed ties of sovereignty.
***
We must, however, realize that these ties, which are of a political character, are to be considered as such directly and not in the round about way adopted in the Advisory Opinion, via allegiance to the Sultan. [p 84]
This follows, on the international level, from international instruments—treaties and unilateral declarations of foreign governments — and internally, from acts of Moroccan authority.
***
It is first necessary to clear the ground by disposing of the thesis according to which Western Sahara was not terra nullius, not because it had legal ties with Morocco and Mauritania, but because the tribes inhabiting it were politically organized and signed agreements with Spain (the 'Ijil Agreements).
I shall not pause to discuss the legal validity of those Agreements, which were signed by private persons who had not been invested prior to the act of signature with powers conferred by the Spanish State.
Even supposing them to be legally valid, one could not conclude from them that Western Sahara, being the master of its own destiny, had no legal ties with Morocco and Mauritania. For the capacity to sign agreements is not incompatible with the existence of an authority superimposed on the local authority.
In any case, if Western Sahara found itself cut off from any external political power, this would certainly seem to be the effect of colonization.
This was generally the policy of colonialism: it let the local and regional languages, literature and civilizations fall into decay, including the Arab civilization of the countries of the Maghreb, upon whose philosophical and scientific sources Europe drew from the Middle Ages up until the beginning of the Renaissance.
In a second stage, the colonizers sought to win over the colonized peoples to their own civilization, in order to bind them more closely to themselves.
In Western Sahara, this policy of encroachment did not, however, suppress all ties with the other Arabs. Relations continued to exist from the Muslim conquest onwards and under the successive Maghreb dynasties up until the reigning 'Alaweet dynasty.
If this is indeed the explanation for the origin of a certain autonomous way of life on the part of the tribal populations in Western Sahara, one can similarly suppose that the present separatist tendencies pointed to by counsel for Spain (hearing of 22 July 1975, morning), namely the document sent by the Jum'a to the Head of the Spanish State on 23 March 1973, and the statements made by various local groups, are also the result of a foreign presence. We shall see, moreover (infra, p. 101), why Spain is so keen on a referendum.
Mr. Benjelloun, Procureur general of the Supreme Court of Morocco, who is well acquainted with the geography and history of his country, refuted this argument in a learned address; he disposed of the argument which denies the natural and human relationships and, in fact, the legal ties which make the northern part of Western Sahara a territory forming part of the Empire of
[p 85] Morocco. The Procureur general concluded, very rightly, that, between the Sahrawi and their Moroccan compatriots there existed something which made of them one and the same nation, namely:
"... the shared past which they have wrought, the struggles carried out side by side, the same shared ideal, a culture based on a concerted effort and lasting will, a real determination to live together ..." (hearing of 30 June 1975).
Thus from the point of view of Morocco, the Spanish argument is contradicted by a body of evidence based on diplomatic instruments, ethnic considerations, common customs, one and the same social and cultural life, a single language, common religion and religious practices, struggles carried out side by side, submission to the authority of Moroccan Sultans, and finally and above all the common aspirations which have ultimately constituted the ties which as a matter of law link together the elements of one and the same nation.
***
"Terra Nullius"
Mr. Bayona-Ba-Meya, Senior President of the Supreme Court of Zaire, and Mr. Mohammed Bedjaoui, Algerian Ambassador in Paris, representatives respectively of the Republic of Zaire and the Democratic and Popular Republic of Algeria, both expressed penetrating views which compel our attention with regard to the concept of terra nullius.
***
Anyone familiar with the philosophy of Zeno of Sidon or Citium and his Stoic school cannot but be struck by the similarity between the ideas of that philosopher and the views of Mr. Bayona-Ba-Meya as to the links between human beings and nature, between man and the cosmos. Further, the spirituality of the thinking of the representative of Zaire echoes the spirituality of the African Bantu revealed to us by Father Placide Tempels, a Belgian Franciscan, in his work Philosophie bantoue. The author sees therein a "striking analogy" with "that intense spiritual doctrine which quickens and nourishes souls within the Catholic Church".
Mr. Bayona-Ba-Meya goes on to dismiss the materialistic concept of terra nullius, which led to this dismemberment of Africa following the Berlin Conference of 1885. Mr. Bayona-Ba-Meya substitutes for this a spiritual notion: the ancestral tie between the land, or "mother nature", and the man [p 86] who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. This amounts to a denial of the very concept of terra nullius in the sense of a land which is capable of being appropriated by someone who is not born therefrom. It is a condemnation of the modern concept, as defined by Pasquale Fiore, which regards as terrae nullius territories inhabited by populations whose civilization, in the sense of the public law of Europe, is backward, and whose political organization is not conceived according to Western norms.
One might go still further in analysing the statement of the representative of Zaire so as to say that he would exclude from the concept of terra nullius any inhabited territory. His view thus agrees with that of Vattel, who defined terra nullius as a land empty of inhabitants.
This is the reply which may be given to the participants in the Berlin Conference of 1885, who, during the fierce blaze of nineteenth-century colonialism, the success of which they sought to ensure by eliminating competition, regarded sub-Saharan Africa as an immense terra nullius available for the first occupier, whereas that continent had been inhabited since prehistoric times, and flourishing kingdoms had there been established — Ghana, Mali, Bornu — whose civilization survived until the colonial period, and only succumbed to the wounds inflicted by colonization and the slave trade (I.C.J. Reports 1971, p. 86, separate opinion). It was in the southern part of this continent and in Kenya that the ethnologists discovered the remains of the first hominoids.
***
As for Mr. Mohammed Bedjaoui, in a bold survey of history from antiquity up to modern times, he distinguishes, with consummate skill, three major epochs:
(1) Roman antiquity, when any territory which was not Roman was nullius.
(2) The epoch of the great discoveries of the sixteenth and seventeenth centuries, during which any territory not belonging to a Christian sovereign was nullius.
(3) The nineteenth century, during which any territory which did not belong to a so-called civilized State was nullius.
In short, the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned. It is well known that in the sixteenth century Francisco de Vittoria protested against the application to the American Indians, in order to deprive them of their lands, of the concept of res nullius.
This approach by the eminent Spanish jurist and canonist, which was adopted by Vattel in the nineteenth century, was hardly echoed at all at the Berlin Conference of 1885. It is however the concept which should be [p 87] adopted today. The Advisory Opinion, after mentioning the great diversity of views among modern jurists, takes, in paragraph 80, a considerable step along the path marked out by Vittoria, Vattel, Mr. Bedjaoui and Mr. Bayona-ba-Meya.
Recognition by the International Community of the Legal Ties between Morocco and Western Sahara
The Treaties
It must first be pointed out that the Advisory Opinion has left out of account, or has misinterpreted, certain relevant treaties.
An analysis of these instruments points to the existence of a Moroccan political or State authority extending as far as Cabo Bojador and embracing the Sakiet El Hamra.
***
1. To begin with, there are two sixteenth-century treaties, quoted by the historian Romeu (Vol. I): the Treaty of Alcaçovas and the Treaty of Cintra, between Spain and Portugal.
The Treaty of Alcaçovas fixed, by agreement between the two Powers, the limits of the Kingdom of Marrakesh to the south of Cabo Bojador.
The Treaty of Cintra does the same thing for what it calls the Kingdom of Fez.
These two treaties, whose relevance appears manifest, are not even mentioned in the Advisory Opinion.
They do not simply record an allegiance to the Sultan, but recognize that the authority of Morocco extended beyond Cabo Bojador.
2. Then there is the treaty between Morocco and Spain of 1 March 1767. This treaty, according to Article 18 of which Sherifian sovereignty extended beyond the Wad Noun, i.e., further south into the neighbouring region of Sakiet El Hamra, gave rise to a controversy between Morocco and Spain; it is rejected by the Advisory Opinion, the Court not having found it necessary to resolve the controversy on the ground that Article 18 had been superseded by Article 38 of the Hispano-Moroccan Treaty of 20 November 1861: in other words, that it had been abrogated. It was not, however, expressly abrogated by any provision of the Treaty of 1861, nor does it appear to have been tacitly abrogated by Article 38 of that Treaty, the function of which was rather to supplement and reinforce it. I shall have more to say about Article 38 later on. Furthermore, the recognition of the extent of Moroccan territory in Article 18 was established, and could not subsequently be denied. [p 88]
We must therefore abide by Article 18 of the Treaty of 1767, which Spain misinterprets on the basis of the Spanish text of the Treaty.
Morocco contended, in conformity with settled case-law, that, where two texts of a treaty do not agree, it is the more limited text that should prevail — in the present case, the Arabic text.
The Advisory Opinion mentions this contention by Morocco but does not answer it. It could not reject it because, as I have said, it is based on settled case-law. This is what the Arabic text says:
"His Imperial Majesty warns the inhabitants of the Canaries against any fishing expedition to the coasts of Wad Noun and beyond. He disclaims any responsibility for the way they may be treated by the Arabs of the country, to whom it is difficult to apply decisions, since they have no fixed residence, travel as they wish and pitch their tents where they choose..."
Spain disputes the sense of this text, alleging it to mean, not that the nomads were beyond the Sultan's power to enforce decisions with respect to them, but that they were beyond his jurisdiction.
The controversy turns on the word ahkam translated by the word "decisions".
A decisive argument in support of the Moroccan contention is that the sense which Spain wishes to give to the plural ahkam, that of jurisdiction, is one which it can bear only in the singular hukm, whereas it is in the plural in the text of Article 18. In French one speaks of the juridiction of the Sultan or of the State, and not of the juridictions. In Arabic, similarly one says hukm as-sultan or hukm ad-dawla in the singular, and not ahkam in the plural. This signifies that ahkam in the text has the meaning of decisions in the plural.
A second argument:
One might have hesitated about the meaning given by Spain and Morocco to the term ahkam independently of the above argument, but such hesitation would only have been permissible if the term were taken out of its context.
For Article 18 includes in its terms an explanation: it is the nomadic character of the populations of the Wad Noun and the regions beyond. Now the nomadic character of those populations, which often makes it impossible to catch them after the illegal act imputed to them, does not do away with the authority which exists over the territory through which they pass. Their nomadic existence can only render difficult the application and implementation of the decisions of the governing authority that pronounces them.
Morocco rightly deduces from that the existence, in addition to allegiance to the Sultan, of Sherifian authority over the Wad Noun and the regions beyond in Western Sahara.
3. Furthermore, the Treaty of 20 November 1861, far from weakening the Moroccan argument, is, as has been said, calculated to strengthen it. It contains the following provision:[p 89]
"If a Spanish vessel be wrecked at Wad Noun or on any other part of its coast, the Sultan of Morocco shall make use of his authority to save and protect the master and crew until they return to their country, and the Spanish Consul-General, Consul, Vice-Consul, Consular Agent, or person appointed by them shall be allowd to collect every information they may require ..."
To begin with, if the Sultan of Morocco is called upon to use his authority to save the crew of the wrecked vessel, it must mean that he has authority in the place where the shipwreck occurred. Moreover, if authorization or permission is sought to enable the consul, etc., to collect information, it is clearly because the Sultan possesses an authority with which the Spaniards must treat.
***
4. The Treaty of 1 March 1767 is supported by several international treaties, but they do not give us any more information about the limit to which Moroccan sovereignty extends beyond the Wad Noun. They include that between Morocco and Spain of 1 March 1799, Article 22; that between Morocco and the United States of 16 September 1836, Article 10; and, finally, the two treaties between Morocco and Great Britain, both of 9 December 1856, Articles 33 and 12 respectively.
***
5. Treaties likely to throw light on the limits of the confines of Morocco and thereby to enable us to assess the ties that existed between that country and Western Sahara are, however, not lacking.
To begin with, there is the Anglo-Moroccan Agreement of 13 March 1895. Clause I of that agreement reads as follows:
"If this Government buy the building, etc., in the place above-named from the above-named Company, no one will have any claim to the lands that are between Wad Draa and Cape Bojador, and which are called Terfaya above-named, and all the lands behind it, because all this belongs to the territory of Morocco."
Great Britain thus recognizes that Moroccan territory extends to Cabo Bojador, including Sakiet El Hamra.
The representatives of Spain have questioned the meaning of this text. The Court has said that the provisions of the treaty appear to it to represent an agreement by Great Britain not to question in future any pretension of the [p 90] Sultan to the lands between the Dra'a and Cape Bojador, and not a recognition by Great Britain of previously existing Moroccan sovereignty over those lands.
The Court does not say "represent" but "appear to represent" and on the ground of this "appearance" which is not asserted as a fact proceeds to set aside the treaty on the clear text of which Morocco relies. How, in the absence of any premise whatever, was the Court able to decide what the provisions of the treaty "appeared" to represent?
Moreover, according to settled case-law, a clear text is not to be interpreted.
Where the chink in the armour appears is where Spain contends that the agreement cannot be invoked against it, being res inter alios acta—as if what was in question was a mere bilateral agreement and not one of the elements in the international community's recognition of the frontiers of a country.
Furthermore, did the statement that the text of the agreement did not appear to be in a pure English style imply that in a bilateral agreement the collaboration of the two parties in its drafting is not to be considered?
We thus see how inconsistent are the arguments to which Spain has resorted in order to reject the clear text of the 1895 Treaty.
One is entitled to riposte by asking how a Government, after solemnly recognizing a fact in an authentic instrument, can deny it through the voice of its representatives. It is necessary to seek the motives for this volte-face.
They are to be found in the concerns of the Powers at the time when colonialist expansion was at its height.
Under the Treaty of 8 April 1904, France undertook not to interfere with the action of England in Egypt, in return for which England undertook not to interfere with the action of France in Morocco. A similar agreement was concluded between Germany and France, which abandoned Gabon to Germany in return for freedom of action in Morocco.
Morocco rightly protested against the Anglo-French Treaty of 8 April 1904, which had been kept secret.
It is true that European colonialist law at that time did not forbid secret treaties; but international morality has always condemned them; and it is the precepts of morality that have justly received the consecration of positive law in this case as in so many others.
The Treaty of 8 April 1904 was also morally wrong because it empowered third parties to dispose of Moroccan sovereignty by secret negotiations, unknown to Morocco.
This treaty explains the change in the attitude of England to Morocco, in which, with the exception of Tangier, it ceased to take any political interest. For England was obliged, under the provisions of the third of the secret articles of the Anglo-French Treaty of 8 April 1904, to facilitate the understanding which France was proposing to enter into with Spain for the establishment of spheres of influence in Morocco with a view to its partition. Great Britain was obliged to remove any obstacle to the conclusion of that [p 91] understanding. It therefore waived its rights under the Anglo-Moroccan Treaty of 1895; and British officials were to be heard denying the official recognition of the Moroccan boundary at Cape Bojador.
The Advisory Opinion has thus taken account of the statements of one party to the treaty in order to attribute to it a meaning to which the text in no way lends itself in the absence of any intrinsic basis deduced from the terms of the Convention: a meaning which appears to have sprung from nowhere and to be, to say the least, a pure figment of the imagination. What is worse, the interpretation has been made contra legem. Such an interpretation is calculated to undermine the very foundation of relations between States, namely the respect due to treaties.
***
Moreover, Spain itself had recognized that extension of Sherifian authority to Cape Bojador, in the two treaties of Alcaçovas and Cintra already mentioned. Nevertheless, in the Franco-Spanish Treaty (also secret) of 3 October 1904, the two contracting parties conceded to one another spheres of influence in Morocco. They were obliged to keep this arrangement secret for, on the very day of its signature, they published a declaration whose tenor, contrary to the provisions of the treaty, was intended to allay the apprehensions of the Moroccans, and which affirmed the determination, contrary to the real intentions, of France and Spain, to guarantee the integrity of Moroccan territory. This Treaty of 3 October 1904 incurred, in addition to a reiteration of the criticisms of the Treaty of 8 April 1904, that of duplicity because of the conflict —hidden from Morocco — between the Treaty of 3 October and the declaration issued that same day.
***
The Advisory Opinion also brushes aside without adequate justification a text in which it is recognized that the territory of Morocco included the Sakiet El Hamra. I have in mind the letters annexed to the Treaty of 4 November 1911 between France and Germany. These letters state:
"Germany will not intervene in any special agreements which France and Spain may think fit to conclude with each other on the subject of Morocco, it being understood that Morocco comprises all that part of northern Africa which is situated between Algeria, French West Africa and the Spanish colony of Río de Oro."
It is in vain that Spain has attempted to give to the expression "Río de Oro" the meaning of Western Sahara. The Río de Oro stops at the southern [p 92] boundary of Sakiet El Hamra, which is recognized in the exchange of letters as forming part of the territory of Morocco.
As with the Anglo-Moroccan Treaty of 1895, the Advisory Opinion makes the Franco-German letters say something other than what they clearly state. It attributes to them, by a pure figment of the imagination, the purpose of simply recognizing spheres of influence over Moroccan territory, whereas the letters make no allusion whatever to this stillborn practice of an expiring colonialism.
***
Besides the treaties, there are other international instruments that are no less conclusive. They consist of two declarations of international scope emanating respectively from Spain and from France, both of which recognize the Sakiet El Hamra as belonging to Morocco.
As early as 1454, at the time when Portugal was in competition with Spain, the latter asserted that the limit of the Kingdom of Morocco was situated at Cabo Blanco, and therefore included Sakiet El Hamra.
The Advisory Opinion makes no reference to this declaration. Had it done so, it would no doubt have attributed the declaration to Spain's wish to discourage any Portuguese ambitions with regard to the territory in question. This does not, however, make the declaration any less conclusive.
This point of view was shared by the French Government: in the Instructions nautiques published by that Government in 1849 there is a paragraph headed: "On the west coast of Africa, from Cape Spartel to Cape Bojador (coast of Morocco)." The reference to the coast of Morocco is significant.
***
Internal Manifestations of Moroccan Authority over Western Sahara
Having dealt with the diplomatic activities that support the existence of the legal ties between Morocco and Western Sahara (Sakiet El Hamra), I now turn to an examination of the manifestations of that sovereignty by the exercise of legislative, executive and spiritual authority.
Legislative Activity
The Sultans legislated for the Sakiet El Hamra as they did for the national territory north of the Dra'a. That legislation took the form of dahirs of the Sultan.[p 93]
It extended to economic activity through the control of trade and production, in particular as regards fishing, the monopoly of which was generally reserved to the Sultan's subjects, except in the case of special concessions to foreigners; it also extended to the administration of the ports, in order to open and close them to foreign trade, according to the requirements of national policy.
The Sultan's legislative authority also related to raw materials and fiscal matters through the assessment, imposition and collection of taxes and dues.
Thus the Spanish historian Huici says in his political history of the Almohad Empire (p. 193) that the Sultan Abdulmoumey levied taxes in the Souss al-Aksa, or farthest Souss, which straddles the valley of the Sakiet El Hamra.
Executive Power
The Sultans exercised executive power by means of dahirs, as in matters of legislation. That was how they appointed and dismissed the caids to whom they entrusted responsibilities of government in a region, on a coast, or over a group of tribes. The caids are, according to the etymological meaning of the term, military commanders who also have administrative functions.
The choice of the sovereign could fall on a personage because of his local influence or family or tribal connections. That does not mean that the title of caid tended to be an honorary one, as has been alleged. It is a practice current in quite a number of countries, in the absence of a centralized authority, to choose persons to govern who have the qualifications which enable them to make their authority felt and carry out their tasks.
***
It is the dahirs of the nineteenth century which are primarily of interest to us.
Of those dahirs submitted by Morocco, five relate to the regions of Western Sahara. It is the dahirs in documents 4, 5 and 8 which appoint caids with authority over the Sahara tribes of the Tidrareen and Oulad Tidrareen, whose nomadic migration routes extend to the whole of Western Sahara according to Mauritania's maps numbers 2 and 3, and go beyond Cabo Bojador; the dahir in document 4 also appoints the caid with authority over the Saharan Tekna, whose nomadic migration route extends to the northern part of the Sahara, or the Sakiet El Hamra, according to map number 3.
Then there were a whole series of caids in the Sakiet El Hamra, who were mentioned in connection with the deeds attributed to them in the history of Western Sahara, whether they held their post in the Sakiet El Hamra itself, or governed it from a post which they held in the interior. And that was the case [p 94] throughout the eighth, the eleventh, twelfth and fourteenth centuries, as recounted by the historians Vernet, Domenech, Huici and Seco de Lucena, to whom we shall refer in the pages which follow.
***
Historians
Five historians — a Frenchman, Vernet, and four Spaniards, Domenech Lafuente, Seco de Lucena, Huici and Romeu — who inspire great confidence with regard to the facts, supporting the Moroccan case, which they relate, particularly in view of their nationality, tell of events going back, in the case of Vernet, to the seventh century, concerning Western Sahara and its legal ties with Morocco. Recourse has already been had to some of them, and will be to all, depending on the subject.
Mention will also be made of a geographer of world-wide renown, El Idrissi.
***
Vernet tells on page 36 of his work Islamisation how, after the Arab conquest of Morocco by Okba in 681, Moussa ben Nosaïr (a Lebanese chief converted to Islam, who was the companion of Tarek ben Ziad in the passage of the Straits of Gibraltar and in the conquest of Spain) sent his son Merouana to the furthest Souss. We know that the furthest Souss, or Sous al-Aksa, is situated within the boundary of the Sakiet El Hamra.
Vernet also relates the following facts: in 740, the Moroccan governor (or caid) called Ismail ben Obeidetallah was appointed to Sakiet El Hamra (p. 48).
In 745, Okba's great-nephew went as far as 'Ijil, and dug the first wells in the Sahara (p. 53), thus clearly showing occupation of the territory.
From the eighth to the eleventh centuries, that occupation was reinforced by the building of roads across the Sahara (p. 138).
In 757, the town of Sijilmassa was founded and its governor extended his authority over the Sahara (ibid.).
In 761, the Sahara had a Moroccan governor (or caid), called Mohamed Sonja!!!i, who conducted a campaign in the Sudan (p. 55).
From that time on, continues Vernet, the dynasty of the Idrissids did not cease to govern the Sahara, until the advent of the following dynasty.
The Spanish historian Domenech Lafuente, no less illustrious than Vernet, confirms in his book Quelque chose sur le Rio de Oro, the events related by the latter, and goes on with the story.
[p 95]
He mentions that Sultan Abdullah ben Yasseen administered the south until his death in 1040 (p. 19).
The Spanish historian Huici continues the list of facts which bear witness to Moroccan authority over Western Sahara.
First of all, there is the information appearing in his Histoire politique de I'empire almohade that the whole of the south was governed by the capital of the Souss (p. 65); later he mentions that desert troops responded to the call of Sultan Abdul Moumen and beseiged the town of Igli (p. 68).
Another Spanish historian, Seco de Lucena, in his work Le Maroc au debut du XIVe siecle(p. 94), related that the Sultan Habib ben Othman, who reigned from 1331 to 1351, made Sijilmassa the capital of the territory of Sahara.
One cannot conclude this list of the facts recorded by the historians, providing indisputable evidence of the extension of the authority of Morocco to the Sakiet El Hamra as far as Cape Bojador, without mentioning the decisive support they received from the geographer El Idrissi.
El Idrissi, following in the tradition of Marinos of Tyre, the founder of mathematic geography based on the calculation of longitudes and latitudes, and precursor of the great Ptolemy, was the most illustrious geographer in the Arab world and Europe of the Middle Ages. His knowledge was highly esteemed by the Norman kings of Sicily, in whose kingdom he wrote, in 1154, a great work describing the geography of northern Africa, Nouzhat al Mouchtak. Taking the facts strictly into account, he situates the western Sahara within the confines of Morocco.
***
Roads
Spain has alleged, in order to show that Western Sahara was distinct from Morocco and had no ties with it, that the latter Power had left there no building of the Moroccan architectural type. That is to forget that typical Moroccan architecture belongs to the cities, and has nowhere left traces in the desert.
On the other hand, Morocco built roads in Western Sahara which went right across it, from north to south. Two main roads in particular have been mentioned: the Lemtouna road and that of Jouder. Could it claim that they were built by the Bedouin tribes? As far as the Lemtouna road is concerned, there is no need to quote the historians who speak of it, for, 900 years after it was built, it can still be used. In 1678 Sultan Moulay Rasheed used that road in two of his expeditions beyond Western Sahara (Domenech, op. cit., p. 30).
The Jouder road was built later, in the time of Sultan Ahmad al-Mansour, on the occasion of his expedition to the Soudan.[p 88]
One can conclude definitely from the foregoing that three dynasties of the Idrissids, the Almoravids and the Almohads have extended their authority without a break over at any rate the north of the Sahara, at Sakiet El Hamra.
***
The Military Expeditions
The authority of the Sultans over Western Sahara, recognized by the international community of former times, could not fail to make itself known through the presence of armed forces.
The expeditions of the Sultans were of two kinds: some had as their purpose control of Western Sahara, and more particularly the Sakiet El Hamra. The expeditions of 1882 and 1886 are examples of these. The others went through Western Sahara in order to go to the countries in the south, as far as the River Niger and Timbuktu.
In her work Avec les rois Alaouites (p. 35), Odette de Puigaudeau notes that "the Sherifian interventions lost their character of conquest and only retained that of tours of inspection and prestige".
This was at the time which is considered in the Opinion to be the time of colonization by Spain.
The documents of the time show that history and the reports of diplomats agree. For example, the French Consul in Mogador, in his report of 7 June 1886 to the French Minister in Tangier, wrote:
"The expedition of Sultan Moulay Hassan to the Souss can be regarded as fully completed. It was a triumphal progress all the way. All the tribes made their submission and swore allegiance to him. Even the very nomads of the Sahara were bent on bringing him fast camels and offering him their help in the Holy War." (Documents submitted by the Kingdom of Morocco, No. 115.)
What should be noted in this report are the passages concerning the oaths of allegiance of the tribes and the help which the tribes of the Sahara offered the Sultan in connection with the Holy War. I shall revert to the point in relation to the religious solidarity between Sahrawi and Moroccans.
It should also be stressed that the reason why the Sultan's forces in 1882 and 1886 did not go right on into the heart of the Sahara was that only the Sakiet El Hamra appertained to Morocco, and it was a matter, as has been recalled, of tours of inspection and prestige.
***
The other expeditions used the Saharan territory as a way through to the Soudan (or Mali), Timbuktu and the Niger.[p 97]
Those expeditions passed through Western Sahara without hindrance as the armies which undertook them were on home territory. Sometimes Saharan contingents joined the Moroccan forces and, in any case, the latter received from the Saharans all the help they needed along the way.
Saharans even joined the Sultan's troops in order to fight at their side. For instance, Sultan Abdul Moumen got help, at the siege of Igli, from troops who came from south of the Atlas and from the desert (Huici, p. 68).
***
It is in the writings of historians worthy of confidence that information about those expeditions must be sought.
One reads in Vernet that in 707 Moussa ben Nosaïr, the Lebanese converted to Islam, the companion of Tarek Ben Ziad in the historic passage of the Straits of Gibraltar which is named after the latter, and also in the conquest of Spain, sent his son Merouan to the furthest Souss to the Sakiet El Hamra (op. cit., p. 36).
In 721, still according to Vernet, a nephew of Okba, the conqueror of Morocco, penetrated as far as the Soudan (p. 71).
He adds that the Moroccan governor (or caid) of the Sahara, Muhammad Sonjaï and also Caid Mussa Ben Ali El Afia, went there, the former in 701 and the latter in 1032, passing through the Sahara on their way (op. cit., pp. 55 and 216 ff.).
Domenech Lafuente, too, relates that in 1584 and 1589 Ahmad al-Mansour el-Assadi undertook two expeditions to the Soudan (op. cit., pp. 28 and 30).
In 1618, Moulay Zidane sent an expedition through the Sahara which reached Timbuktu.
In 1665, Moulay Rasheed, of the reigning 'Alaweet dynasty, commanded an expedition to the Soudan (op. cit., p. 33).
In 1678, he commanded two expeditions which followed the Lemtouna route to the south (ibid.).
Between 1734 and 1736, Moulay Abdullah organized an expedition to the Soudan (ibid.).
In 1730, Moulay Abdullah commanded a first expedition to the Senegal, which went by way of Massa, Wadi Noun and the Sakiet El Hamra, and a second between 1734 and 1736, to the Soudan (ibid.).
Between 1802 and 1809, Moulay Suleiman sent two expeditions to the south (ibid.).
***
The Sahrawi, moreover, themselves asked the Sultan for help in repelling attacks by foreign forces, namely those of Spain and France.[p 98]
Domenech, on page 33 of the work already quoted, writes that the Moors considered that their ties with the Sultan of Morocco were so close that, when the French troops arrived on the confines of Mauritania and the Hodh, the threatened troops requested help and assistance from Moulay Abdul-'Azeez, the King of Morocco, who had claimed those regions as coming under his sovereignty. The Sultan who succeeded him sent his own uncle, Moulay Idriss, with arms and munitions to support the Holy War against the French, whom he beseiged at Tijiqja.
***
Religious Ties
Religious feeling does not preclude ethnic or national solidarity between Sahrawi and Moroccans. It tends, rather, to consolidate it.
That tie has been neglected in the Opinion. Yet there is no doubt that the religious tie is one of the constituent elements in legal ties and in those of nationality, being additional to ethnic, social, cultural and economic ties and national aspirations, and making them more binding: the more so in that the Sultan possessed both temporal and spiritual powers, and appointed the caids who applied Muslim law. Modern examples showing the strength of religious ties abound: Ireland, Pakistan, Bangladesh and the States with constitutions which determine the religion of the Head of State or establish a State religion.
The religious tie is thus a constituent element of the legal tie.
Notwithstanding the Spanish allegations, the documentation already mentioned shows that the religious ties between the Sahrawi and the Moroccans found expression even in recourse to the holy war. That was the case even though holy wars, rendered illustrious by the crusading spirit and later by the great epic of Saladin, each concerned with the holy places of Christendom or Islam, had lost much of their zeal and effectiveness — witness the attitude of the Powers, both Christian and Muslim, which remained deaf to the appeal to rescue the holy places of Jerusalem.
The spirit of a holy war nevertheless remained more alive in Morocco and Western Sahara, confronted with the Christian colonialist powers. I would refer again to the historian Domenech (supra, p. 94 ff.) and to the report from the French consul in Mogador (supra, p. 96).
To prove the existence of the religious tie between Sahrawi and the Moroccans, one must quote in particular Paul Cambon, the French Ambassador in Madrid, who reported the following observation in a despatch to his Minister of Foreign Affairs:
"It has always been recognized that the territorial sovereignty of the Sultan extends as far as his religious suzerainty, and as it is beyond doubt that the peoples of Cape Juby are subject to him from the religious point [p 99] of view, we could consider his sovereignty as indisputable." (Documents diplomatiques français, 1871-1914, first series, Vol. VIII).
***
Finally, let us recall that the Islamisation of the States of Western Africa (Mali, Ghana, Nigeria, Senegal, etc.) was the continuation of that Arab conquest which generally set out from or through the province detached by colonization under the name of Spanish Sahara. The Kingdoms of Mali and of Ghana were thereby consolidated and remained strong and prosperous until the European conquest, which undermined their foundations by the partitioning of Africa and its colonization, and by the massive slave trade to North and South America, which was on a scale without precedent since the ancient days of Greece and Rome, and of which vestiges remain in apartheid in South Africa and in racial discrimination and segregation there and elsewhere.
***
The Opinion deals with the right of self-determination in paragraphs 54 to 59.
The latter paragraph ends by referring to certain instances where consultation in application of the principle of self-determination was dispensed with by the General Assembly. Such instances are very numerous.
The paragraph is certainly in fairly general terms, since it mentions in fine "the conviction that a consultation was totally unnecessary in view of special circumstances".
Nevertheless, it seems to me that there is one case which deserves to be mentioned specifically: that is the legitimate struggle for liberation from foreign domination.
The General Assembly has affirmed the legitimacy of that struggle in at least four resolutions, namely resolutions 2372 (XXII), 2403 (XXIII), 2498 and 2517 (XXIV), which taken together already constitute a custom. Furthermore the Security Council too has affirmed it in resolution 269 ( 1969).
This recognition by the United Nations of the legitimacy of that struggle comes within the framework of the developments in law affirmed by the Court in its Advisory Opinion on Namibia (I.C.J. Reports 1971, p. 31). The Court there explained that: "in this domain as elsewhere the corpus juris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore" (ibid.).
I upheld this point of view on the occasion of the Advisory Opinion on Namibia in 1971.I was not followed. I return to the charge, and I would have [p 100] liked the last sentence of paragraph 59 to be completed as follows: "and in particular the legitimate struggle for liberation from foreign domination."
***
Nothing could show more clearly the will for emancipation than the struggle undertaken in common, with the risks and immense sacrifices it entails. That struggle is more decisive than a referendum, being absolutely sincere and authentic. Many are the peoples who have had recourse to it to make their right prevail. It is, one need hardly repeat, that thousand-year struggle which has established the right of peoples to decide their own fate, a right which jurists, statesmen, constitutions and declarations, and the United Nations Charter, have merely recognized and solemnly proclaimed.
***
In the forefront we find Algeria and Morocco.
Algeria, which, after having heroically resisted conquest, was purely and simply annexed; Algeria, which sacrificed a million of its children to reconquer its freedom.
As for Morocco, it fought for centuries to maintain its independence and the integrity of its territory in the face of a coalition of the mighty ones of the day; and when the State had to give way to superior force, the people, in the felicitous phrase of Professor Dupuy, took over from the State, continuing the fight on all fronts until the final victory, which showed, better than any referendum, the irresistible will of the nation.
Going back through history, one can mention instances of liberation without a referendum through the legitimate struggle of numerous countries.
The struggle is still being untiringly pursued for the liberation of the peoples of Namibia and Arab Palestine.
***
Among the grounds put forward by Spain to convince the Court that it should refuse to answer the General Assembly's request for an advisory opinion, it mentions the fact that the Assembly has already decided that a referendum should be carried out, and that it cannot go back on that decision which is binding on it; the Advisory Opinion would, it is alleged, in those circumstances only be of academic interest.
That argument was rightly rejected by the Court.
But why is Spain so keen on the referendum?[p 101]
One can find the explanation in the memorandum from the Spanish Minister for Foreign Affairs to Morocco's Ambassador in Madrid dated 5 April 1957, which lays down the procedures to be adopted for Spain's evacuation of the territory, which the memorandum states in the following terms:
"4. The recognition in favour of Spain, in consideration of what it has achieved, and in a form to be agreed, of special privileges, as well as the grant of a right preferential to that of other countries with regard to the economic development and joint exploitation of the said territory." (Hearing of 1 July 1975.)
***
Reference can be made again to the mention I made above of certain of the struggles which the Sahrawi undertook in common with the Moroccans to repel the Spanish and French troops (supra, p. 97). That joint struggle shows their determination to be reintegrated into the mother country (ibid).
Allegiance to the Sultan and the Operative Part of the Opinion
While having agreed with the Court that Western Sahara has legal ties with the Kingdom of Morocco and the Mauritanian entity, I do not accept that those ties represented for Morocco nothing more than ties of allegiance between the Sultan of Morocco and some of the nomadic tribes living in the territory of Western Sahara.
The allegiance to the Sultan is only one of the elements of the legal ties.
Those ties were of a State or political character, as the Court has said.
On close examination of the text of paragraph 162, to which the operative part of the Opinion refers, one notes, further, the following:
1. That text completely disregards the notion of territory in saying that Morocco had legal ties with certain peoples.
Those peoples did not live suspended between the sky and the ground.
The territory of the Sakiet El Hamra which they have always inhabited and traversed in all directions, exploiting its agricultural resources (palm groves, grazing grounds, seasonal crops, water-holes, etc.) and its economic resources (routes of communication and commercial transit) — is that territory not theirs?
After all, Spain based itself on agreements with sheikhs to extend its protectorate over the territory which they inhabited.
2. Further, one must refer to the question put by the General Assembly in order to give it an appropriate answer: but Question II is worded as follows: "What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?" [p 102]
The ties which the General Assembly request should be determined are the legal ties of the territory, which (as obviously intended by the General Assembly) includes the population, not solely the ties with that population.
3. The reply, as worded in the operative part, with the reference to the grounds as stated, contains an internal contradiction.
Mention is made there of the territory of the Sahara, but it is immediately explained, by the cross-reference, that it is the tribes that are meant.
In short, the considerations which I have set forth throughout my Opinion establish that there exist legal ties of a political character between the territory of Western Sahara and the Kingdom of Morocco. I would emphasize: that territory with the population living there.
At all events, allegiance to the Sultan was equivalent to allegiance to the State, as has been explained above.
As regards the Mauritanian entity, the ethnic, social, cultural, economic and religious ties indicated in the Opinion constitute the elements of the political ties between Western Sahara and the Mauritanian entity.
(Signed) Fouad Ammoun.
[p 103]
Separate opinion of judge Forster
[Translation]
I subscribe to the Advisory Opinion of the International Court of Justice of 16 October 1975, inasmuch as it:
states: "that Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain was not a territory belonging to no one (terra nullius)",
finds that the materials and information presented to the Court:
(a) show the existence, at the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara;
(b) 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 Sahara.
But at this point my adherence to the Opinion is replaced by the following express reservation: I cease to agree with the Advisory Opinion when the Court concludes that the materials and information presented to it do not establish any ties of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity.
Here I can no longer agree, for this conclusion goes too far in minimizing the exceptional importance of the geographical, social and temporal context of the problem. It is Western Sahara which is in question, at the time of Spanish colonization, that is to say around 1884. It is Africa of former times which is in question, as to which it cannot arbitrarily be required that its institutions should be a carbon copy of European institutions, for on that basis almost the entire African continent would have to be declared terra nullius. It is also Morocco and the Mauritanian entity which are in question, with their specific structures and traditional systems. It is from this viewpoint that the "legal ties" recognized in the Opinion should be confronted with the classic notions conveyed by the expression "State" and "sovereignty".
I personally consider that the "legal ties", in particular those of allegiance, described in the Advisory Opinion indicate the existence of State power and the exercise of political administration analogous to a tie of sovereignty exercised in the Sahara, a territory to which access was difficult, and over tribes some of which were nomadic and others settled.
(Signed) I. Forster
[p 104]
Separate opinion of judge Petren
[Translation]
Although I found it unnecessary, hence inappropriate, for the Court to reply to Question I, I voted on this question like my colleagues, since abstention is not allowed. As for Question II, I find myself in agreement with what I regard as the essential content of the answer given in the Advisory Opinion, though unable to subscribe to certain parts of that answer. Accordingly, while I was thus able to vote with the majority on Question II, I append this statement of my separate opinion to the Court's decision.
*
Like contentious proceedings, advisory proceedings may raise preliminary questions which it is the duty of the Court to settle before giving its decision on matters of substance. With regard to contentious cases, preliminary questions concerning the Court's competence or the admissibility of applications were subjected to particular attention at the time of the revision of the Rules effected in 1972. Under Article 67, paragraph 3, of the revised Rules, the effect of an objection is to suspend the proceedings on the merits, which are not to continue until after the Court has pronounced on the objection. However, paragraph 7 of the same Article permits the Court, instead of upholding or rejecting the objection, to declare that "the objection does not possess, in the circumstances of the case, an exclusively preliminary character". This latter provision replaces the former paragraph 5 of Article 62, which authorized the Court simply to join preliminary objections to the merits. The Court has thus shown its intention henceforth not to postpone the definitive settlement of objections except in cases covered by the new formula.
The preliminary questions which may arise in advisory proceedings are not entirely of the same nature as those in contentious proceedings. Of course, questions concerning the competence of the Court may also arise, since Article 65, paragraph 1, of the Statute permits the Court to give an advisory opinion only if the request emanates from a body authorized to make such a request and relates to a legal question. The Statute does not however impose on the Court an absolute obligation to give an opinion in all cases in which it is competent to do so. Article 65, paragraph 1, leaves it free to refuse if it considers that it is not proper to proceed. The question of the propriety of giving an advisory opinion may thus play a part analogous to that of admissibility in contentious proceedings. Finally, in advisory proceedings the practice of the Court recognizes a third category of preliminary questions: if [p 105] it considers that the question on which its opinion is asked does not, as formulated, lend itself to being answered by the Court, the Court regards itself as free to reformulate the question.
The provisions of the Rules of Court concerning advisory proceedings are very summary; the preliminary questions just referred to are not mentioned. Article 87, paragraph 1, contains the following provision:
"In proceedings in regard to advisory opinions, the Court shall, in addition to the provisions of Article 96 of the Charter and Chapter IV of the Statute, apply the provisions of the Articles which follow. It shall also be guided by the provisions of these Rules which apply in contentious cases to the extent to which it recognizes them to be applicable; for this purpose it shall above all consider whether the request for the advisory opinion relates to a legal question actually pending between two or more States."
In proceedings in regard to advisory opinions, it appears no less desirable than in contentious proceedings that preliminary questions should be settled before any proceedings on the substantive issues. There would otherwise be a risk that a reply to a preliminary question would cause the time and money devoted to the proceedings on the substance to be wasted. That is why the spirit and the letter of Article 87, paragraph 1, in my view require that the provisions of the Rules concerning preliminary objections in contentious cases should also be applied so far as possible in advisory proceedings.
In the present case, preliminary questions have been raised concerning both the Court's competence and the propriety of its exercise, and the possible reframing of the questions submitted to the Court.
Before the opening of the oral proceedings on the substantive issues, the Court indirectly touched on one of these questions, that of its competence, when by its Order of 22 May 1975 it ruled on the applications by the Moroccan and Mauritanian Governments for the appointment of judges ad hoc. When accepting the Moroccan Government's application, the Court gave the following reason for its decision:
"Whereas, for the purpose of the present preliminary issue of the composition of the Court in the proceedings, the material submitted to the Court indicates that, when resolution 3292 (XXIX) was adopted, there appeared to be a legal dispute between Morocco and Spain regarding the Territory of Western Sahara; that the questions contained in the request for an opinion may be considered to be connected with that dispute; and that, in consequence, for purposes of application of Article 89 of the Rules of Court, the advisory opinion requested in that resolution appears to be one 'upon a legal question actually pending between two or more States'."
Since the competence of the Court depends on the questions which are put to it being legal ones, it goes without saying that the Court is competent to entertain a request for advisory opinion on a legal question pending between [p 106] two or more States. The Order of 22 May 1975 therefore implies that the Court regarded itself as competent, but only on a provisional basis. It stated that, when General Assembly resolution 3292 (XXIX) was adopted, there appeared to be a legal dispute between Morocco and Spain regarding the territory of Western Sahara, and it concluded, with the same absence of certainty, that the advisory opinion appeared to have been requested upon a legal question pending between two States. This was thus a sort of side-stepping of the point, which imposed on the Court the duty to commit itself on a preliminary question at a later stage.
The Order of 22 May 1975 raises a question of interpretation of Article 89 of the Rules which cannot be passed over. That Article provides that the provisions of the Statute concerning the appointment of judges ad hoc apply "if the advisory opinion is requested upon a legal question actually pending between two or more States". But what happens if the dispute contemplated in the request for advisory opinion has ceased to exist at the time when the Court takes its decision on the request for the appointment of a judge ad hoc? The Order is confined to the situation existing on 13 December 1974, when the resolution seeking the opinion of the Court was adopted by the General Assembly. The Order was adopted, according to its text, in view of the "material submitted to the Court". This includes the written statements filed by Spain, Morocco and Mauritania, and the statements made by the representatives of those States and of Algeria during the public hearings (12 to 16 May 1975) devoted to the possible appointment of judges ad hoc. From its examination of this material, the Court drew solely the conclusion that they indicated "that, when resolution 3292 (XXIX) was adopted, there appeared to be a legal dispute between Morocco and Spain regarding the Territory of Western Sahara". It did not seek to ascertain whether these statements did not also reveal that the dispute which had perhaps existed on 13 December 1974 had disappeared. It would in such case have been necessary to consider whether Article 89 of the Rules nevertheless required the appointment of a judge ad hoc, which for my part I do not think it did. By not considering the possible development of the situation between 13 December 1974, and 22 May 1975, the Order therefore contains a lacuna. In particular, the question should have been examined whether in May 1975 there really was a legal dispute between Morocco and Spain as to the categorization of Western Sahara as terra nullius at the time of its colonization by Spain.
Further, it should be observed that Article 89 of the Rules only calls for application of Article 31 of the Statute if a legal question pending between two or more States is a matter of current reality. It does not refer to a dispute which appears to exist. The Court did of course say, in its Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), that the question of judges ad hoc had to be settled before any argument on the preliminary objections, and that the decision [p 107] taken did not prejudge the competence of the Court if it were claimed, for example, that there was no dispute (I.C.J. Reports 1971, pp. 25 f.). I am not prepared to follow this reasoning. The appointment of a judge ad hoc is definitive, and operates for the whole of the proceedings. To accept such an appointment on the supposition that a dispute exists, but to leave in suspense any definitive decision as to the existence of that dispute, involves serious risks. First of all, if the ultimate decision is negative, and contrary to the provisional assessment made by the Court, this will imply that there should not have been any judge ad hoc. In addition, the judge ad hoc will be permitted to take part in the final vote on the question upon which the Court has made the legality of his presence on the Bench depend; it could even happen that his own vote tipped the scale on the point.
In my opinion, the time has come for the Court to abandon a practice which is capable of giving rise to such procedural anomalies. It would have all the more reason to do so inasmuch as one of the principal objects of the revision of the Rules adopted in 1972 was to avoid the replies to preliminary questions being postponed to the end of the proceedings. At the hearings of May 1975 the Court had before it the representatives of Mauritania and Morocco, as also of Spain, and was in possession not only of the records of the General Assembly concerning the question of the decolonization of Western Sahara but also of the written statements in the proceedings to-gether with their annexes. I venture to believe that, in such favourable circumstances, the Court, by putting the appropriate questions to the representatives of the three States concerned, could have obtained all the information necessary to ascertain whether there existed any legal dispute or disputes between them concerning Western Sahara. It would not then have needed to postpone its reply to this question until the end of the proceedings on the issues of substance.
It is furthermore my opinion that the Court should have defined the subject of the questions put by the General Assembly in May 1975, when the Members of the Court had already had time to familiarize themselves with the contents of the General Assembly records. To what better source could the Court have turned in order to appreciate the meaning of the questions? To have defined their subject-matter would have enabled the Court to consider whether they were of a legal nature or not, and whether there was any occasion to reframe them. Thus all the preliminary issues could have been disposed of before the opening of the oral proceedings on matters of substance, which would have made it possible to focus those hearings on precise and carefully limited subjects. This would have resulted in shorter proceedings. The Court having chosen another course, it is only now, at the final stage of the case, that the preliminary questions have been decided.
*
The most salient characteristic of the questions upon which the United Nations General Assembly has sought the advisory opinion of the Court is [p 108] that they concern the legal categorization of situations which belong to a time now long past.
This raises the question whether the General Assembly's request meets the requirements of Article 65, paragraph 1, of the Statute, according to which the Court may give advisory opinions on legal questions. Does this mean that even questions concerning the legal assessment of situations which have ceased to exist may be submitted to it? It seems clear from the terms of the present Advisory Opinion, in particular from paragraph 19 thereof, that that is the view of the Court. I myself am unable to subscribe to this view. The Court is the principal judicial organ of the United Nations; it is not an historical research institute. There are numerous problems of the history of law to which no definitive answer has yet been given. Yet no one would think of submitting to the Court the question, for example, of the authenticity of the will of the Emperor Trajan, or whether the invasion of Britain by William the Conqueror was justified. These examples, extreme as they are, indicate the impossibility of interpreting Article 65 of the Statute to mean that there is no need to require that the questions submitted to the Court call for answers which are such as will contribute to the clarification of present-day legal problems. The Court would not otherwise be called upon to fulfil a judicial function, a function which should also be furthered by its advisory opinions.
In my 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 international law, or to the conditions which, if fulfilled, would result in the coming into existence, the modification or the termination of such a right or obligation. Is that so with regard to the present request for an advisory opinion?
The ninth paragraph of the preamble of resolution 3292 (XXIX) adopted by the General Assembly on 13 Decernber 1974, as communicated to the Court by the Secretary-General of the United Nations in a correct version in August 1975, would suggest that this was so. It is there stated that a legal controversy arose during the discussion on the status of the territory of Western Sahara at the time of its colonization by Spain. Thus it is suggested that it is upon that controversy that the opinion of the Court has been sought. But who then are parties to this controversy, and to what precisely is it said to relate? The reply to this question was hinted at by the Court when it made its Order of 22 May 1975, by which it granted to Morocco, but refused to Mauritania, the appointment of a judge ad hoc. As I have mentioned above, the Court stated in that Order that there appeared to have existed on 13 December 1974 between Morocco and Spain, but not between Mauritania and Spain, a legal dispute regarding the territory of Western Sahara, and that the questions contained in the request for advisory opinion might be considered to be connected with that dispute. The legal controversy alluded to in General Assembly resolution 3292 (XXIX) is thus, it is suggested, a legal dispute between Morocco and Spain regarding the territory of Western Sahara.[p 109]
The terms in which the Court expressed itself in the Order are such as to suggest that it supposed that the present case related to a territorial claim formulated by Morocco against Spain, and disputed by the latter. In paragraph 34 of the Advisory Opinion one finds traces of the dispute which is presented in the Order as appearing to have existed on 13 December 1974. Paragraph 34 of the Advisory Opinion states, without making any reference to the Order, that there is in this case a legal controversy, but one which arose during the proceedings of the General Assembly and in relation to matters with which it was dealing. The legal dispute between Morocco and Spain which was taken by the Order of May 1975 to have existed on 13 December 1974 is thus transformed, in the Advisory Opinion, into a legal controversy still existing in October 1975 but defined by reference to the proceedings of the General Assembly. The rest of paragraph 34 of the Advisory Opinion, and paragraphs 35 and 36, are devoted to a more detailed definition of this controversy. It goes back to 1958, and originated from a claim by Morocco to Western Sahara as being an integral part of its national territory, a claim opposed by Spain. According to paragraph 36, the controversy which thus arose in the General Assembly with regard to Western Sahara continued to subsist.
Whatever may have been the position at the time of the discussions in the General Assembly, the statements made by Morocco and Spain from the very outset of the proceedings before the Court have made it clear that in the present case there is no legal question pending between these two States with regard to Western Sahara. Morocco does not dispute the present sovereignty of Spain over the territory, and 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. For States taking part in discussions in the General Assembly to express divergent views on the questions under discussion cannot be regarded as constituting legal disputes between them. In my opinion, the appointment in the present case of a judge ad hoc by Morocco by virtue of Article 89 of the Rules was not warranted. Had I taken a different view of the situation, I would have been of the opinion that Mauritania also was entitled to choose a judge ad hoc. For those reasons, I voted against the Order of 22 May 1975 as a whole.
However, the legal character which Article 65, paragraph 1, of the Statute requires of a question, if it is to be the subject of an advisory opinion, does not depend on the existence of a legal dispute between two or more States. I must thus pursue my examination of the legal character of the questions put to the Court in the present request for an advisory opinion.
The context in which those questions have been formulated is that of the [p 110] decolonization of Western Sahara under Spanish administration. There is no need to recall the place of decolonization, under the aegis of the United Nations, in the present evolution of international law. Inspired by a series of resolutions of the General Assembly, in particular resolution 1514 (XV), a veritable law of decolonization is in the course of taking shape. It derives essentially from the principle of self-determination of peoples proclaimed in the Charter of the United Nations and confirmed by a large number of resolutions of the General Assembly. But, in certain specific cases, one must equally take into account the principle of the national unity and integrity of States, a principle which has also been the subject of resolutions of the General Assembly. It is thus by a combination of different elements of international law evolving under the inspiration of the United Nations that the process of decolonization is being pursued. The decolonization of a territory may raise the question of the balance which has to be struck between the right of its population to self-determination and the territorial integrity of one or even of several States. The question may be raised, for example, whether the fact that the territory belonged, at the time of its colonization, to a State which still exists today justifies that State in claiming it on the basis of its territorial integrity. That argument has been put forward, and has been contested. The question of its validity in general and the question of its applicability to Western Sahara are undeniably of a legal character.
It seems however that questions of this kind are not yet considered ripe for submission to the Court. The reason is doubtless the fact that the wide variety of geographical and other data which must be taken into account in questions of decolonization have not yet allowed of the establishment of a sufficiently developed body of rules and practice to cover all the situations which may give rise to problems. In other words, although its guiding principles have emerged, the law of decolonization does not yet constitute a complete body of doctrine and practice. It is thus natural that political forces should be constantly at work rendering more precise and complete the content of that law in specific cases like that of Western Sahara. Thus the General Assembly has reserved to itself the task of determining the methods to be adopted for the decolonization of the territory in accordance with the principles of resolution 1514 (XV). But, before discharging that task, it felt the need to obtain an advisory opinion of the Court on two questions which were regarded as preliminary to the decisions to be taken.
The questions on which an advisory opinion of the Court is requested relate to the status of Western Sahara at a period in the past, defined as the time of its colonization by Spain. The Court is asked to answer first the question whether, at that time, Western Sahara was a territory belonging to no-one (terra nullius). In the event of its answer to that first question being in the negative, it is asked to answer a second question, namely what the legal ties were between the said territory and the Kingdom of Morocco and the Mauritanian entity. Taken literally, those two questions only asked the Court to define the legal status of Western Sahara in an already distant past. The Court is not called upon to lift its eyes to the present, still less to the future. It [p 111]
is not asked to draw from its historical research any legal conclusion relating to the Western Sahara of today or of tomorrow.
It follows from what I have said above that, if such were the meaning of the questions put to the Court, I would not find they had the legal character required by Article 65, paragraph 1, of the Statute, for they would not call for any answer bearing on the solution of a legal problem of the present time. In the present Advisory Opinion, however, the Court defines the two questions in such a way as to create such a link with the present time. This is to be found in inter alia paragraphs 85 and 161 of the Advisory Opinion. The Court explains there that in answering the request of the General Assembly it must indicate whether at the time of its colonization, Western Sahara had, with the Kingdom of Morocco and the Mauritanian entity, such legal ties as may affect the policy to be followed in its decolonization. Then the Court fulfils that task, not in the operative part of its Advisory Opinion, but in paragraph 162, to which the operative part expressly refers. There the Court states that it has not found legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory. It is that approach in the present Advisory Opinion which confers on it in my view the character of an answer to a legal question within the meaning of Article 65, paragraph 1, of the Statute. But is this really in harmony with the request of the General Assembly?
I have just observed that, taken literally, the questions asked do not call on the Court to define a current legal situation. Throughout the proceedings, Morocco and Mauritania have asserted that the Court was not asked to pronounce on the effect its findings might have on the procedures for the decolonization of Western Sahara. According to those two States, which played an important part in the formulation and adoption of resolution 3292 (XXIX), the effect which the Court's conclusions might possibly have as regards determination of the procedures for the decolonization of Western Sahara is entirely a matter for the decisions of a political nature which the General Assembly has reserved for itself. That being so, one may wonder whether the interpretation which the Court has decided to give to the questions put is in fact in accordance with the intentions of the General Assembly, and whether it does not, rather, represent a new formulation of those questions.
However that may be, I think that this approach by the Advisory Opinion should have been the subject of a deliberation and a decision at the beginning and not right at the end of the proceedings. To me it is a further example of a preliminary question which may arise in advisory proceedings and which should, in my view, be treated as such and dealt with before the definitive opening of any proceedings on the merits. It seems to me that in the present case to have organized the proceedings in that way would have been [p 112] particularly advisable out of consideration for the States represented before the Court, which have unceasingly repeated that the General Assembly had by no means asked the Court to state its view concerning the possible effect its findings might have on the decolonization procedure. In not revealing that it contemplated doing so, the Court failed to convey to the States concerned the importance for them of stating their views on the subject.
The question of the extent to which, and under what conditions, past legal ties may influence the decolonization of a territory seems to me to fall within an as yet inadequately explored area of contemporary international law. That is why I find that the Court should not have approached those questions without first examining both their theoretical and their practical aspects. I am bound to say that paragraph 162 of the Advisory Opinion bears no signs of any such analysis.
*
The participation of the interested States had conferred on the present proceedings a wholly unusual character tending to obscure the difference in principle between contentious and advisory proceedings. Whereas in contentious proceedings the Court has before it parties who plead their cause and must, where necessary, produce evidence in support of their contentions, in advisory proceedings it is assumed that the Court will itself obtain the information it needs, should the States not have supplied it. In contentious proceedings, if a party does not succeed in producing good grounds for a claim, the Court has only to dismiss it, whereas in advisory proceedings the Court's task is not confined to assessing the probative force of the information supplied by States, but consists in trying to arrive at an opinion with the help of all the elements of information available to it.
In the present case, the General Assembly, in formulating its request for an advisory opinion, expressly called upon Spain, Morocco and Mauritania to submit to the Court all such information and documents as might be needed to clarify the questions posed. In response to that call, those three States, who were joined by Algeria, continued before the Court the discussion over Western Sahara on which they had embarked in the General Assembly. As a result the proceedings assumed an aspect which was much more contentious than advisory. Thus we had the three States submitting to the Court abundant historical and cartographical documentation the significance of which was the subject of much dispute. The same events, the same treaties, the same legislative and administrative acts, and the same religious, cultural and linguistic phenomena were represented and interpreted in a variety of ways, which were often contradictory. On many a point the Court was invited to choose between differing contentions.
Although those differences of view between the interested States did not culminate in the claiming of rights, the proceedings developed as though that had been so. Action by the Court to obtain other elements of information than those made available to it by the interested States were thereby [p 113] diminished. The Court did not feel the need to seek other information than that submitted to it by the interested States. It did not arrange for experts in Islamic law or in the history of northern Africa to sit with it as assessors, as its Statute would have allowed. It is common knowledge that its internal practice does not provide for the appointment of juges-rapporteurs. It is true that each judge has had to struggle — as far as his knowledge of languages would allow — through the immense literature existing on the questions of African history to which reference was made, and has been able to inform his colleagues of the fruit of his reading. It is nevertheless striking that the Advisory Opinion should be based almost exclusively on the documents and arguments submitted by the interested States, which are accepted or dismissed in the light of an examination of the evidence adduced. One does not find here the margin of uncertainty in which an advisory opinion ought to leave the facts which have neither been proved nor disproved.
*
What has just been expounded does not affect the competence of the Court to give an advisory opinion on questions defined by it in the way in which it has defined those put to it by the General Assembly. There remains the question of the propriety of the Court's answering them. The need to go into that question is, in my view, particularly acute as regards the first of the two questions put to the Court, namely whether Western Sahara was, at the time of colonization by Spain, a territory belonging to no-one (terra nullius).
This question originated in a debate at the beginning of which the validity of Spain's titles to various parts of Western Sahara had been contested. It is understandable that the term terra nullius should have made its appearance in that debate, since that technical term has been used by legal writers, to define the legality of certain ways in which colonial Powers acquired territory. But that phase of the debate on Western Sahara is now over. The request for an advisory opinion does not ask the Court to state its view as to the lawfulness of the acquisition by Spain of sovereignty over Western Sahara. The question of whether the territory was terra nullius at the time of colonization is thus without object in the context of the present case. What the General Assembly felt the need to be informed about by the Court was the validity of the claims of Morocco and Mauritania, of which one claimed that it had sovereignty over Western Sahara at the time of colonization, whereas the other asserted that at that time the territory belonged in co-sovereignty to an assemblage of emirates and tribal confederations called the Mauritanian entity. In its answer to the first of the questions put by the General Assembly, the Advisory Opinion sidesteps that object of the request. Paragraphs 81 and 82 of the Opinion evade the question of sovereignty when they state that Western Sahara was not terra nullius since there were in that territory nomadic tribes having a social and political organization. This latter fact has never been disputed by Spain and will hardly be news to the General Assembly.
[p 114]
In view of the foregoing, I find it pointless and consequently inappropriate for the Court to answer the first of the two questions put.
As regards the second question, the circumstances are different. Relating as it does to the legal ties which may have existed between Western Sahara and Morocco or the Mauritanian entity, it covers the problem of sovereignty. In my view, it is essentially on that point that the General Assembly needs enlightenment. That is why I find it proper to answer the second question.
The answer of the Court to that question is given in paragraph 162 of the Advisory Opinion. The essential part of that paragraph is the Court's conclusion that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity. I do not believe it possible to arrive at any other conclusion on the basis of the information available to the Court. I am therefore also in agreement with the last sentence of paragraph 162, according to which 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-determination through the free and genuine expression of the will of the peoples of the territory. I feel it is as well to point out that this sentence does not indicate what would have been the effect on the decolonization of Western Sahara of a pronouncement by the Court establishing the existence of former ties of sovereignty between that territory and Morocco or the Mauritanian entity.
In my view, the findings stated in the last two sentences of paragraph 162 suffice to answer the General Assembly's question, which only relates to the existence of legal ties which belong to the past but which are such as to allow Morocco or Mauritania now to make claims concerning the decolonization of Western Sahara. The beginning of paragraph 162, however, contains two statements to which I cannot subscribe, for in my view they are superfluous and go beyond the purpose of the request for an advisory opinion. The Court states that the materials and information presented to it 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 understood by the Court, and the territory of Western Sahara. For my part, I doubt whether the information available to the Court allows it to make such a categorical assertion. The effect of the first statement depends in any case on an analysis of the real significance of the allegiance mentioned, and on an exact identification of the tribes acknowledging it and of the parts of Western Sahara inhabited by them. No such analysis or identification are to be found in the Advisory Opinion.
Furthermore, the ties which existed between the territory of Western Sahara and the Mauritanian entity were certainly numerous and important, but one could not regard them as legal ties between them. Mauritania's [p 115] contribution to the proceedings, in particular, showed the existence, at the period referred to by the request for an advisory opinion, of a way of life and a rich cultural heritage common to a large number of tribes leading a nomadic existence in vast territories of north-west Africa included today in Western Sahara and in the neighbouring States, Mauritania in particular. The fact that distinct tribes have the same religion, the same language, the same social and political structure, the same mode of life and the same literary, musical and artistic traditions does not mean that they are welded together in a State entity. It is true that non-legal ties of that kind could give rise to the establishment of legal ties amounting to the creation of such an entity, but no such development took place with regard to the Bilad Shinguitti, the traditional appellation of the territories where the said tribes were to be found. That does not mean that the General Assembly may not find it appropriate to take into account the non-legal factors mentioned above when it is determining the procedures to be followed in the decolonization of Western Sahara, but its decision in that connection will be of a purely political character. It is thus not for the Court to pronounce thereon.
That is why I find that the first part of paragraph 162 of the Advisory Opinion should not have been included, particularly as the request for an advisory opinion did not ask the Court for any finding on the existence of ties between the territory of Western Sahara and Morocco or the Mauritanian entity other than such legal ties as might affect the future application of resolution 1514 (XV) in the decolonization of the territory.
(Signed) S. Petren.
[p 116]
Separate opinion of judge Dillard
While I am in agreement with the Opinion and the approach taken by the Court, my reasons do not altogether coincide with those set out in the Opinion. Furthermore it seems to me desirable to make a few comments touching the operative clauses of the Opinion and especially the significance which, in my view, attaches to the response to Question II. This furnishes my excuse for appending a separate opinion.
***
At the very threshold of our enquiry doubts assailed me as to both the existence and relevance of any legal question. Unless the Court were seised of a legal question it would not be competent to respond to the request in light of Article 96 (1) of the Charter of the United Nations. On the other hand, even if a legal question were present, its lack of apparent relevance to any contemporary problem might well induce the Court to invoke, however, reluctantly, its discretionary power of refusal conferred upon it by Article 65 (l) of its Statute.
These doubts were prompted by two significant facts. First it was immediately apparent that the two questions were exclusively confined to an historical period and second they raised no issue whatever as to the legitimacy of Spain's original occupation of the territory or its present authority over it. It appeared, therefore, that the two questions invited an enquiry which, while no doubt historically fascinating, was far removed from any contemporary problem whateverFN1.
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FN1 Readers of Judge Petren's separate opinion will observe that he entertained similar doubts.
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Furthermore, it was urged upon the Court that it should confine itself to a strict and literal reading of the questions for fear otherwise that it might trespass on the prerogatives of the General Assembly. This view was fortified by the argument that during the debates in the Fourth Committee, Spain and a number of other delegates among the 43 who had abstained in the voting, objected to the manner in which the questions had been framed. Nevertheless, despite these objections, they emerged and were voted on in the historically confined manner referred to above.
Spain strenuously urged upon the Court the view that the questions were merely "academic" or "historical". Its argument was based on the premise that the General Assembly had already decided on both the principles and [p 117] methods to be applied to the decolonization process and furthermore the decision carried the concurrence of both the Kingdom of Morocco and the Islamic Republic of Mauritania. The reply to the two questions would thus be devoid of object or purpose. The Opinion has dealt with this argument in great detail in paragraphs 48-74 and no repetition is called for in this separate opinion.
The doubts which assailed me were not grounded on the same premise as that advanced by Spain and analysed in the Opinion. They centred on the proper scope of the Court's powers of interpretation in light of the contention that the questions were clear, precise, legal and relevant. This string of assertions left open the natural enquiry "relevant to what", an enquiry which also bore upon the legal character of the questions as well.
The notion that a legal question is simply one that invites an answer "based on law" appears to be question-begging and it derives no added authority by virtue of being frequently repeated. Nor is it apparent that an exclusively historical question could be automatically converted into a legal one merely because of the use of a legal term such as terra 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. More important, it seemed difficult to discern any contemporary legal relevance to any answer the Court might give if it were confined to the status of a territory some 90 years ago the title to which was not in dispute then or now.
Finally it did not appear to me sufficient to say that the questions would be rendered legally relevant on the mere assumption that the answers would tend to enlighten the General Assembly in the exercise of its political functions. Absent from this assumption was the notion of contemporary legal relevanceFN1.
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FN1 Although made in connection with a contentious case, a dictum in the Northern Cameroons case bears on the observation above. In the course of its reasoning the Court stated "... it is not the function of a court merely to provide a basis for political action if no question of actual legal rights is involved" (I.C.J. Reports 1963, p. 37).
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***
It is immediately apparent that these doubts were based on the assumption that the Court was strictly confined to a literal reading of the two questions. Wisely, however, the Court, as revealed in paragraph 52, did not so confine itself but instead located the two questions in the total context of the contemporary decolonization process. An analysis of the genesis and terms of resolution 3292 (XXIX) which the Court has undertaken in paragraphs 66-69 [p 118] clearly justifies this approach. Furthermore it is fully justified by the jurisprudence of the Court. As stated in the Certain Expenses of the United Nations case it cannot be assumed that the General Assembly seeks:
"... to fetter or hamper the Court in the discharge of its judicial functions; the Court must have full liberty to consider all relevant data available to it in forming an opinion on a question posed to it for an advisory opinion" (I.C.J. Reports 1962, p. 157).
While stated in general terms and in a different context this well-known dictum appears relevant. Perhaps even more relevant is the equally well-known pronouncement of Judge Lauterpacht in the case concerning Voting Procedure in Questions relating to Reports and Petitions concerning the Territory of South West Africa. He was concerned with a question incidental to the one asked and its relation to the role of the Court. His statement deserves the respect it has generated.
"I cannot disregard that aspect of the matter on the alleged ground that the Court cannot answer this — or any other legal question — incidental to the Opinion, seeing that the General Assembly has not specifically asked for an answer to these questions. The General Assembly has asked only one substantive question; that issue, and that issue only, is answered in the operative part of the unanimous Opinion of the Court. Clearly, in order to reply to that question, the Court is bound in the course of its reasoning to consider and to answer a variety of legal questions. This is of the very essence of its judicial function which makes it possible for it to render Judgments and Opinions which carry conviction and clarify the law." (I.C.J. Reports 1955, pp. 92-93.)
Statements of similar import could be culled from many other cases. It results from the above that there is nothing in the jurisprudence of the Court which can support the proposition that it would be presumptuous on its part to so interpret the questions as to give them a contemporary legal significance by invoking the larger context in which they are framed. By so locating the questions in the contemporary setting of the decolonization process the Court has thus, in my opinion, countered the view that the question invited an answer of a purely "academic" or "historical" character.
In addition to providing a contemporary setting for the questions it has also emphasized the importance of resolution 1514 (XV) in so far as it applies to the Western Sahara as well as other resolutions dealing with the decolonization of that territory. This in turn has a distinct bearing on an important aspect of one of the operative clauses and especially the response to Question II.
***[p 119]
Turning specifically to Question II in the operative clauses it will be observed that the specific reference to paragraph 162 incorporates that paragraph into the operative part of the Opinion. Otherwise the reply would not be responsive to the question since obviously the question did not ask the Court merely to confirm the existence of legal ties but to determine their nature. Furthermore paragraph 162 is not, properly speaking, part of the reasoning of the Court but a statement of conclusions drawn from its reasoning. An understanding of the thrust and significance of the answer to Question II thus focuses on that paragraph.
It will be observed that paragraph 162 breaks down into three parts. The first, dealing with legal ties, proclaims the existence of "legal ties of allegiance" between the Sultan of Morocco and "some of the tribes found in Western Sahara" and also the existence of "rights" including some that relate to the land which constituted legal ties between the Mauritanian entity and Western Sahara.
In the second part, dealing with territorial sovereignty, the Court concludes, however, that the materials and information presented to it "do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity".
Finally in the third part, dealing with self-determination, the Court asserts that no ties were of such a nature as to affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and in particular no ties which might affect the "principle of self-determination through the free and genuine expression of the will of the peoples of the territory".
Whether the first conclusion is sufficiently supported by the evidence is, in my view, questionable. The matter is largely one of interpreting many complex sets of disputed historical facts and intangible relations in order to determine their significance in light of the "principles and procedures to be applied in the decolonization of Western Sahara". The debates in the Fourth Committee provided no specific clue as to the meaning to be attached to the term "legal ties" and the Opinion in paragraph 85 merely locates the meaning in the context of the decolonization process, "... in conformity with resolution 1514 (XV) of 14 December 1960".
However, no matter what may be said about it, the first conclusion seems to me to be of minor importance when consideration is given to the relationship between all three conclusions and the overriding significance of the second and third.
The second conclusion, which carries my complete concurrence, that no tie of territorial sovereignty existed between the Western Sahara and the Kingdom of Morocco and the Mauritanian entity is, of course, critically significant and especially so in light of the debates in the Fourth Committee and the legal controversy which prompted the request for the present Advisory Opinion. The matter has been thoroughly analysed in the Opinion and repetition would be superfluous. It may be helpful, however, to [p 120] emphasize at least three implications which, in my view, flow from this conclusion.
First, it negates the notion advanced by the two interested States that the territory was, legally speaking, an integral part of a "parent" State (the Kingdom of Morocco) or that it was "included" within the confines of what has now emerged as the Islamic Republic of Mauritania. It follows that the image of a kind of colonial amputation beginning in 1884 of a pre-existing territorial unity is distorted.
Second, it implies that any claim to what has been called automatic retrocession is not applicable to the Western Sahara and therefore it was unnecessary for the Court to pronounce upon the principle of territorial integrity embedded in paragraph 6 of resolution 1514 (XV) FN1.
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FN1 This controversial matter is alluded to in the Opinion in connection with the arguments of the two interested States. It is also alluded to in paragraphs 57, 58 and 59. The Court might have felt called upon to consider the matter more fully had it decided that the Moroccan claim to immemorial possession had been established.
My personal view is that both the genesis and language of paragraph 6 of resolution 1514 (XV), especially when read in light of principles VII and IX of resolution 1541 (XV), make it unlikely that paragraph 6 could justifiably be applied to the decolonization of the Western Sahara as a principle of territorial integrity overriding the right of the people to self-determination which has been so firmly announced in all the resolutions dealing with that particular area.
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Third, while it may not have resolved every legal aspect of the problems debated in the Fourth Committee it has certainly done so with respect to the principal controversy which stimulated the adoption of resolution 3292 (XXIX).
The implications above appear to me to be warranted even if it is conceded with respect to Morocco that the legal ties noted in the restrained conclusion in paragraph 129 of the Opinion can be said to have been established. The implications also hold for the Islamic Republic of Mauritania even if full weight is given to the nature of the legal ties summarized in paragraph 152 of the Opinion.
The relative lack of importance of these ties is, in my view, further fortified when consideration is paid to the third point stressed in paragraph 162 dealing with the potential application of resolution 1514 (XV) and the principle of self-determination.
***
It will be recalled that paragraph 162 reaffirms the continuing applicability of resolution 1514 (XV). It asserts that no legal ties affect this conclusion and it places renewed emphasis on the principle of self-determination "through the free and genuine expression of the will of the peoples of the territory".
This part of the operative clause invites comment of three kinds. At the [p 121] broadest level there is the problem of determining whether the right of self-determination in the context of non-self-governing territories can qualify as a norm of contemporary international law; second there is the more limited level concerned with the impact of the right in possibly rendering without object the historically oriented questions posed in resolution 3292 (XXIX) and finally there is the delicate problem of determining the extent if any by which the "right" limits the possible policies open to the General Assembly in the decolonization process of the Western Sahara. I shall deal with each briefly.
As is well known the first problem has elicited conflicting views which, in terms of opposing poles, may be described as follows. At one extreme is the contention that even if a particular resolution of the General Assembly is not binding, the cumulative impact of many resolutions when similar in content, voted for by overwhelming majorities and frequently repeated over a period of time may give rise to a general opinio juris and thus constitute a norm of customary international law. According to this view, this is the precise situation manifested by the long list of resolutions which, following in the wake of resolution 1514 (XV), have proclaimed the principle of self-determination to be an operative right in the decolonization of non-self-governing territories.
At the opposite pole are those who, resisting generally the law-creating powers of the General Assembly, deny that the principle has developed into a "right" with corresponding obligations or that the practice of decolonization has been more than an example of a usage dictated by political expediency or convenience and one which, in addition, has been neither constant nor uniform.
I need not dwell on the theoretical aspects of this broad problem which, as everyone knows, commands an immense literature FN1. Suffice it to call attention to the fact that the present Opinion is forthright in proclaiming the existence of the "right" in so far as the present proceedings are concerned.
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FN1 My statement of the contrasting "poles" draws on an article (Emerson, "Self Determination", 65 AJIL (1971) 459) in which some of the opposing views of Dr. Rosalyn Higgins and Professor Leo Gross are crisply summarized.
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This is made explicit in paragraph 56 and is fortified by calling into play two dicta in the Namibia case (I.C.J. Reports 1971, p. 31) to which are added an analysis of the numerous resolutions of the General Assembly dealing in general with its decolonization policy and in particular with those resolutions centring on the Western Sahara (Opinion, paras. 60-65).
The pronouncements of the Court thus indicate, in my view, that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations.
It should be added that the force of these pronouncements is in no way diminished by virtue of the theoretically non-binding character of an [p 122] advisory opinion. It is a misconception, no less real for being widely held, that in this respect an advisory opinion differs markedly from a judgment in a contentious case. This follows because, as with a declaratory judgment and also a judgment in a contentious case, it is in its statement of the law along with its assessment of facts that the Court fulfills its principal function.
In its Opinion, the Court deals extensively with the second problem noted above. Indeed its discussion of the numerous resolutions including resolution 3292 (XXIX) is primarily directed toward countering the Spanish contention that the principle of self-determination has the effect of rendering entirely without object or purpose the historically oriented questions referred to the Court. On this point I have little to add except to reinforce the conclusion of the Court by one observation. The Spanish argument, as previously noted, is rested on the premise that the General Assembly had already foreclosed itself by its former resolutions or that a kind of estoppel was operative against the claims of the Kingdom of Morocco and the Islamic Republic of Mauritania by virtue of their approval of them. But this contention attempts to prove too much since clearly the General Assembly has not forfeited its paramount supervisory power over any future decolonization process including the Western Sahara. On the other hand the right of self-determination may bear upon the character and scope of that power.
This brings me to the third problem referred to earlier. To what extent, if any, does the right of self-determination limit the possible policy choices open to the General Assembly? The Court has treated this delicate question with great circumspection in paragraphs 71 and 72 of the Opinion. In the former it states that the right of self-determination "leaves the General Assembly a measure of discretion with respect to the forms and procedures by which that right is to be realized" (emphasis added). In the latter it calls attention to "various possibilities" which exist for the future action of the General Assembly as "for instance with regard to consultations between the interested States, and the procedures and guarantees required for ensuring a free and genuine expression of the will of the people".
It seemed hardly necessary to make more explicit the cardinal restraint which the legal right of self-determination imposes. That restraint may be captured in a single sentence. It is for the people to determine the destiny of the territory and not the territory the destiny of the people. Viewed in this perspective it becomes almost self-evident that the existence of ancient "legal ties" of the kind described in the Opinion, while they may influence some of the projected procedures for decolonization, can have only a tangential effect in the ultimate choices available to the people. This in turn fortifies the view, expressed earlier, that the first conclusion in paragraph 162 of the Opinion is of limited significance.
At one point Spain asserted, principally in its written statement, that in the free exercise of the population's right to self-determination allowance must be made for the independence of the territory as a legal possibility. She drew this conclusion from an analysis of resolution 1541 (XV) and the broader [p 123] options designated in resolution 2625 (XXV). She also intimated that the General Assembly had committed itself to holding a referendum. I can find nothing in these resolutions, however, or in the legal aspects of the "right" itself which compels such conclusions. On the contrary it may be suggested that self-determination is satisfied by a free choice not by a particular consequence of that choice or a particular method of exercising it.
***
The many votes cast on specific questions in the operative clauses, coupled with the elaborate reasoning of the Court, tended, in my view, to put into too dispersed a focus what were the two centrally significant aspects of the Court's Opinion. This has been my excuse for emphasizing Question II.
I now turn briefly to Question I. Not without some misgivings I voted with the majority in favour of responding to this question. Having done so I concurred without any misgivings in the conclusion that the territory, at the time of colonization, was not terra nullius.
My misgivings were prompted by the seeming irrelevance of the question even when viewed in the context of the contemporary decolonization process.
The concept of terra nullius has meaning with reference and only with reference to the well-established principle of international law that title to territory may be acquired through "effective occupation". A condition to the legitimacy of this method of acquiring original title is that the territory be sans maître, i.e., terra nullius. Furthermore the problem becomes legally important only when the legitimacy of the occupation either as originally manifested or as geographically extended is challenged by a third State as was true in many cases of which the Legal Status of Eastern Greenland (P.C.I.J., Series A/B, No. 53), the Island of Palmas ( UNRIAA, Vol. II, p. 829), and the Clipperton Island (ibid., p. 1105) cases furnish familiar examples.
In the present request no issue whatever was posed concerning the legitimacy of Spain's original exercise of authority over the territory. Furthermore, no State appearing before the Court, including Spain, asserted that the territory was terra nullius. How then could it be deemed relevant?
The answer, in my view, is quite subtle. As the questions were presented in resolution 3292 (XXIX) the Court could not, a priori, dismiss Question I because had the Court come to the conclusion that the territory was sans maître it would have automatically eliminated the principal contentions of both the Kingdom of Morocco and the Islamic Republic of Mauritania that the territory at the time of colonization belonged to the former or was included as an integral part of the domain of the latter. The question therefore [p 124] appeared to have a certain remote legal relevance. This seemed to justify responding to the question. It helped to clear the decks for Question II.
At the same time it was arguable that the two questions were so linked that to avoid circular reasoning the second had to be considered before the first could be analysed. On the other hand it was possible to respond to the second question without reference to the first.
This seeming difficulty was compounded by another. The manner in which the two questions were framed and linked together appeared to confront the Court with what, in logical discourse, is known as a loaded question. Thus a literal reading of the two questions appeared to compel the conclusion that if the answer to the first question was that Western Sahara was not terra nullius then by necessary implication there must have been legal ties between the territory and that of the two interested States. But this was the subject of the second question and remained to be determined. These difficulties were not, however, insurmountable and were easily overcome. The conclusion that the territory was not sans maître did not imply that it was under the sovereignty of either of the interested States because of the presence in the area of independent tribes with a degree of political and social organization.
The conclusion that the Western Sahara was not sans maître has been analysed in the Opinion and I am disposed merely to add a few words. Despite a measure of doctrinal discord on the subject of sparsely inhabited lands a controlling factor in the present case centred on the nature of the Spanish occupation. Not merely was it effected through numerous treaties with independent tribes, the treaties themselves were of a special character. This is important because the treaties, of which the Bonelli Treaty of 1884 was a prototype, did not provide for more than a relationship of protection. As was cryptically put in the proceedings: you do not protect a terra nullius. On this point there is little disagreement.
***
Having disposed of my views on both Questions I and II it remains for me only to offer certain comments on the general posture of the case.
In paragraphs 87 and 88 of the Opinion the Court makes clear that it was not insensitive to the particular characteristics and circumstances which dominated life in the vast Saharan area. Furthermore it took these characteristics and circumstances into consideration in its analysis of the questions addressed to it.
In this separate opinion I have felt it incumbent upon me to emphasize the contemporary legal significance of what, in my view, the Court has decided. [p 125]
In doing so I have downgraded the importance of legal ties. At the same time I wish to record that I was not unaware of the need to consider the facts in light of the circumstances of time and place.
In doing so I shall venture, even at the risk of appearing pedagogical, to indicate two distinct approaches which could be taken in analysing the fascinating problem of determining the nature of legal ties in a time long past and in an area with its own peculiar attributes. One approach is highly analytical; the other is more broadly oriented and in effect challenges the premise on which the first is rested. I turn first to the analytical approach.
Under this approach it would seem obvious that the meaning of "legal ties" can only be understood by ascribing to the term "ties" a special characteristic which differentiates it from other kinds of ties, namely the characteristic of being "legal". Admittedly this raises a difficult point since it appears to invite a preliminary analysis of what is meant by "law" which, like the concept of "sovereignty", jurists, philosophers and political theorists have debated for some two thousand years.
Nevertheless if intellectual confusion is to be avoided the effort must be made to provide a specific criterion by which to differentiate one kind of tie from another. Applied to the Western Sahara a tie, say between the Sultan and Ma ul-'Aineen or the Emir of the Adrar and the chiefs of nomadic tribes can be characterized as a legal one only if it expresses a relationship in which there is a sense of obligation of a special kind. Put more concretely the evidence must support the view that the inhabitants of the territory had a sense that the wishes of the Sultan or the Emir (however expressed and by whatever investiture of authority) not only "should" be obeyed out of a feeling of religious affiliation or courtesy, but "must" be obeyed out of a sense of deferential obligation. This sense of obligation need not be inspired by the fear of sanctions, nevertheless it must exist in the sense of being pervasively felt as part of the way of life of the people. The point is that it is this quality which, at least intellectually, differentiates a tie based on religious, cultural, ethnic, linguistic or other factors from one that is legal.
The broader approach which, in view of the posture of the case, is applicable more particularly to the Islamic Republic of Mauritania asserts that a concept of law and hence of "legal" ties is misconceived if patterned on the kind of sense of obligation which now prevails in post-Reformation western oriented societies. In these societies, ever since the Reformation, the sense of obligation to the sovereign has been sharply focused on his secular authority which is not only paramount but permits a dissociation between obligations owed to the State and those owed to religious authority.
Concepts of this kind are not applicable to a society, such as prevailed in the Sahara, in which a distinction between modes of authority are not sharply delineated and are not part of the consciousness of people. It is artificial, [p 126] therefore, to say that a tie is not "legal" merely because it fails to qualify as one in which a sense of obligation is owed vertically to the secular power of someone with authority. The manifestation of power is neither secular nor religious since the distinction, itself, has little meaning.
From all this it follows that the relation between those in power in the Mauritanian entity on the one hand and the wandering tribes, on the other hand, is of secondary importance. The important thing is that the tribes criss-crossing in the Western Sahara felt themselves to be a part of a larger whole, while also claiming rights in the territory focused on the intermittent possession of water-holes, burial grounds and grazing pastures. All this should suffice to characterize ties as being legal once we rid ourselves of the preconceptions which identify "legal" with deference to mere secular authority. Such an identification, applied to the Western Sahara, would be responsive neither to reality nor to any notion of law then prevalent in time and space.
While, in my view, the evidence failed to support any claim to territorial sovereignty and while I thought the evidence of sufficient allegiance to the Sultan of Morocco was questionable, yet considerations of the kind noted above made me reluctant to vote against the existence of any legal ties whatever. At the same time it seems to be abundantly clear that attributing the quality of being "legal" to the ties which existed in 1884 has only limited significance in the contemporary setting of the decolonization process. The legal component only appears as a kind of gloss on the bigger reality. The bigger reality lies in the possible sense of unity and belonging which the people themselves feel with respect to their own or neighbouring territories. This can only be adequately determined by consulting them one way or another. There is nothing to preclude them from-expressing that feeling in accordance with whatever procedures the General Assembly may see fit to adopt including the choices indicated in resolutions 1541 (XV) and 2625 (XXV).
(Signed) Hardy C. Dillard.
[p 127]
Separate opinion of judge de Castro
[Translation]
I have voted in favour of the Advisory Opinion because it states that there are no ties of sovereignty between the territory of Western Sahara and the Kingdom of Morocco and the Mauritanian entity, and that the principle of self-determination should be applied to the said territory, thereby giving a correct, clear and conclusive reply to the real questions put to the Court. On the other hand, I cannot go along with the Advisory Opinion either in its statement regarding the existence of other legal ties between the territory and the Kingdom of Morocco and the Mauritanian entity, nor in all its reasoning. In order to justify my vote, I feel obliged to set out my separate opinion below.
Introduction
1. Origins of the Case
For the sake of clarity and to avoid repetitions, I think it as well to refer to the more important features of the background to the case before the Court.
The ultimate origins of resolution 3292 (XXIX) of the United Nations General Assembly can be traced back to the determined activity of a most extraordinary personality, Si Allal El Fassi, to whom must be attributed Morocco's interest in the expansion of its frontiers. It would seem that, around 1956, Moroccans firmly believed that the Sherifian Kingdom did not extend beyond the Wad Dra'a. Government ministers were unaware even of the existence of the southern region of the Spanish Protectorate FN1. El Fassi, on the other hand, even before Morocco's independence, was advocating the reconstitution of Greater Morocco, by claiming, on the basis of Morocco's historic rights, Mauritania, Río de Oro, the Sakiet El Hamra, part of Algeria — Tindouf and Colomb-Bechar—and part of Mali. Speaking of what he had done, he boasted: "Originally, I was the only person to call for the liberation of the Sahara and I was greeted with laughterFN2." He considered those rights of Morocco over those territories as stronger than the will of the indigenous people, and stated:
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FN1 Husson, La question des frontieres terrestres du maroc, 1960, p. 44. The explanation lies in the fact that Tarfaya, or the area of the Tekna, was at the extreme edge of the Bled Siba, which had been pacified by the French and Spanish armies.
FN2 Speaking to the Beni-Mestara tribe on 16 October 1957; Husson, op. cit., p. 48.
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"Mauritania has no right to separate itself from the rest of Morocco. In such an event — which God forbid — the King and the people would [p 128] have a duty to constrain the Mauritanians by force to preserve the unity of the homeland FN1."
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FN1 Criticism of the proposals made by the Crown Prince, 17 September 1958, Husson, op. cit., p. 72.
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The theories propounded by El Fassi reached the international level in the Fourth Committee's debate on information to be given on non-self-governing territories, when the representative of Morocco protested against the inclusion of Mauritania, Spanish Sahara and the Ifni enclave among non-self-governing territories. They were, he said, integral parts of Moroccan territory (14 October 1957, A/C.4/SR.670).
It was on the basis of such alleged historic rights, — and similar arguments were to be used subsequently with respect to Western Sahara — that Morocco opposed in the United Nations the declaration of the independence of MauritaniaFN2. In the General Assembly, some States were in favour of Morocco's claims; others thought that the principle of self-determination of peoples was paramount. On that occasion, the representative of Senegal pointed out that it would be contradictory for the United Nations to satisfy Morocco's claims at a time when a draft resolution proclaiming the independence of all countries under colonial administration was being prepared (16 November 1960, A/4445).
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FN2 See White Paper on Mauritania, Rabat 1960, especially pp. 9-11.
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The draft referred to by the representative of Senegal became General Assembly resolution 1514 (XV) of 14 December 1960; Mauritania was ultimately to be recognized as an independent State and admitted as a Member of the United Nations.
The growing strength of the principle of self-determination duly had its effect upon the status of Western Sahara. Spain and the United Nations agreed to consider the territory as "non-self-governing" and thus subject to decolonization, which in pursuance of General Assembly resolution 2229 (XXI) of 20 December 1966 was to be by means of a referendum carried out on the basis of consultations between the administering Power, the Governments of Morocco and Mauritania and any other interested party.
From 1966, Morocco, too, expressed the wish that the Saharan regions should accede to independenceFN3. From then on, the policy of Morocco was to insist that the administering Power should grant independence to Western Sahara, and it voted for the General Assembly resolutions to that effect (those cited in General Assembly resolution 3292 (XXIX)).
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FN3 Statements by the Minister for Foreign Affairs in October 1966 and by the Minister of the Interior dated 7 May 1967. On the meeting held in Addis Ababa on 7 June 1966, see Lazrak, Le contentieux territorial entre le Maroc et l'Espagne, 1974, pp. 364-365.
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In his book on the subject published in 1974 (see footnote 1 below), Professor Lazrak of the University of Rabat comments that:
"... the change in the Moroccan attitude... was an important event in Moroccan diplomacy and, indeed, in the general process of decolonization, since the principle of self-determination, as advocated [p 129] by Morocco, was to become the United Nations doctrine on the subject and, consequently, the only solution adopted for the problem of the Sahara" (p. 365).
In the same book, Professor Lazrak had noted the existence of "new aspects to the problem of the Sahara" — economic aspects (the Bu Craa deposit) and political aspects (Morocco's relations with Mauritania and Algeria) (p. 355 et seq.).
But there was a further change. In his message to the Head of the Spanish State, His Majesty King Hassan II complained about Spain's "new policy in the Sahara" (A/9654). The policy announced by the Spanish Minister for Foreign Affairs — which was subsequently embodied in a communication to the Secretary-General of the United Nations — was that a decision had been taken to hold a referendum for the decolonization of the Sahara; the referendum was to be under the auspices of and supervised by the United Nations, and would be held during the first six months of 1975 on a date to be fixed sufficiently long in advance (A/9714, 21 August 1974).
The reaction of the King took the form of a letter, dated 23 September 1974, from the Minister for Foreign Affairs of Morocco to the Minister for Foreign Affairs of Spain. The letter reproduced the text of a statement made by the King to the Press:
"You, the Spanish Government, claim that the Sahara was res nullius; you claim that it was a territory or property left uninherited; you claim that no Power and no administration had been established over the Sahara; Morocco claims the contrary. Let us then request the arbitration of the International Court of Justice... it will state the law of title and will then be able to enlighten the United Nations, enabling it to recommend to Morocco and Spain the course that they should follow."
The Moroccan Government accordingly presented to the Spanish Government a formal proposal:
"... to submit this question jointly to the arbitration of the International Court of Justice, in accordance with the spirit and the letter of Chapter VI of the United Nations Charter relating to the peaceful settlement of differences" (A/9771, 24 September 1974).
The Spanish Government did not reply; I do not know for what reason.
On 30 September 1974, Mr. Laraki, the representative of Morocco, in a statement to the General Assembly, said that the principle of self-determination was not always applicable in matters of decolonization; "for Morocco, the decolonization of the two Saharan provinces implied their reintegration into the Moroccan State" (A/PV.2249).
In Mr. Laraki's view, a dispute had existed between Morocco and Spain since 1956. To resolve it, he again proposed to submit to the Court the following questions: [p 130]
"... were the two Territories of the Sahara in question originally, as the Spanish Government claims, 'res nullius 'or Territories without a master, and open to occupation? Or were they at the moment of occupation under the sovereignty and administration of the Moroccan State?" (Ibid.)
If that direct method were not adopted, he added, there would remain the method of a request to the Court by the General Assembly for an advisory opinion. He commented: "The opinion given by the supreme international judicial body on a point of law could have just as considerable an effect as its arbitration." (Ibid.)
Mr. Laraki, following the lines laid down by the King, as formulated in the letter of 23 September 1974 and relying on the arguments put forward in the General Assembly, claimed the territory of Western Sahara on the grounds of Morocco's historic titles or ties. Thus no more was heard of the "other interested parties", and the right to self-determination of the indigenous population, which had appeared to be guaranteed by the Assembly's resolutions, was ignored.
The political understanding within the African group moderated the reaction against the Moroccan demands, but there was nevertheless a reaction — and a strong one — in favour of the principle of self-determination.
In the General Assembly Mauritania, while referring to its claim to Western Sahara as an integral part of the Islamic Republic of Mauritania, nevertheless emphasized that, whatever the opinion of the Court might be, "the right of self-determination of the people of the Sahara cannot be subject to any impediment" (A/PV.2251). Algeria stated that "the opinion of the population directly concerned will always be the most important element and the decisive factor in any settlement" (A/PV.2265). The representatives of the administering Power expressed the same view (A/PV.2253 and A/PV.2257).
The background to General Assembly resolution 3292 (XXIX) is also worth bearing in mind. Introducing the draft resolution in the Fourth Committee, the representative of Upper Volta said that "it was the fruit of long negotiations among the delegations concerned, particularly those of Mauritania, Morocco and Algeria" (A/C.4/SR.2130). The representative of Senegal — one of the countries of the group of 35 which sponsored the draft — explained that the purpose of the proposed resolution should be to:
"... assist the African countries concerned in finding a solution, even one of waiting, which would respect both the provisions of the Declaration on the Granting of Independence and the possible rights which a given country might have over a territory under foreign domination" (A/C.4/SR.2124).
The representative of the Ivory Coast, also a member of the African group, said that the draft had been prepared "in a spirit of compromise" and that:
"... elements had been introduced into the original text which would enable the General Assembly to be consistent. Those elements were, [p 131] firstly, the reaffirmation, in the preamble, of the right to self-determination of the people of Spanish Sahara" (A/C.4/SR.2131).
The nature of the compromise referred to above can also be inferred from the report submitted by the administrative Secretary-General of the Organization of African Unity. According to him, when the Moroccan draft of the request to the Court for an advisory opinion was submitted to the African Group, "many" delegations had expressed concern over the fact that the resolution totally disregarded the right of the people of the Sahara to self-determination and had felt that this could constitute a dangerous precedent for African countries which had fought for the principle of self-determination since their independence (Spanish written statement, para. 250).
Thus, although there was no rejection of the Moroccan proposal that the Court should consider the validity of the legal titles to or legal ties with the territory of Western Sahara at the time of colonization by Spain, the principle of self-determination was reaffirmed in the text of the resolution. But as the representative of the Ivory Coast recognized, "it was an unusual draft resolution that might perhaps not be entirely satisfactory" (A/C.4/SR.2131). For that reason, several members of the Fourth Committee were afraid that the resolution still entailed a threat to the principle of self-determination. Consequently, when voting for or abstaining from voting on the draft, States made a point of putting on record the fact that they were in favour of the principle of self-determination. In addition to Algeria (A/C.4/SR.2125), those adopting this course included the United Republic of Cameroon and the Syrian Arab Republic (A/C.4/SR.2130), Cuba, Grenada, Equatorial Guinea, Colombia, Costa Rica, Malaysia, Venezuela, Portugal, Libyan Arab Republic and Ecuador (A/C.4/SR.2131). The representative of Democratic Yemen, as a sponsor of the draft, did not have to explain his vote, but he stressed that, "only the people of the Territory themselves were entitled to decide the nature and form of their future life" (A/C.4/SR.2131). The representative of Kenya was against the request for an advisory opinion; he complained that "the United Nations was being asked to treat them [the indigenous peoples] as chattels and not as people" (ibid.).
The Fourth Committee finally proceeded to vote on the draft resolution, which was adopted by 81 votes to none, with 43 abstentions. In the General Assembly, it was adopted by 87 votes to none, with 43 abstentions (resolution 3292 (XXIX)).
In consequence, the matter came before the Court. It is noteworthy that, in the written statements of Morocco and Mauritania, each of those two States claimed the whole of the territory of Western Sahara. In the course of the oral statements before the Court, the contradictory character of the claims of Morocco and Mauritania disappeared, each State limiting its claim to a part — respectively the north and the south — of Western Sahara. 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 the information and documents supplied in the earlier statements claiming the whole of the territory. [p 132]
2. Interpretation of the Terms of the Request for an Advisory Opinion
The two questions put to the Court are apparently simple and clear. An examination of them reveals that they raise delicate problems of interpretation.
(a) Method of Interpretation
First of all, there is the preliminary question of the method of interpretation to be followed. Are the questions put to the Court to be isolated from the rest of the resolution in which they are included; or are they, on the contrary, to be considered in the context of the resolution and in the light of its history and background?
It seems clear that, in order to interpret a resolution of the United Nations General Assembly, as when interpreting a law or with any unilateral declaration in general, it is necessary to enquire into its purpose and the reason for its existence FN1. It is not therefore permissible to isolate the questions asked from the body of the resolution in which they are inserted. It is the resolution as a whole which expresses the reasons for the request for an advisory opinion and explains the use to which that opinion is to be put by the General AssemblyFN2.
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FN1 As Baldus said, "Ratio in lege sicut anima et Spiritus, eius autem verba sunt corpus ".
FN2 "Incivile est nisi tota lege perspecta, una aliqua particula eius proposita judicare, vel respondere", Celsus, D.l, 3, 24.
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The background of the resolution shows that, although the two questions put to the Court were the same as those that had been proposed by H.M. King Hassan II, their purpose and sense changed when they were inserted in the draft of the 35 States. Their object is no longer to obtain a declaration on Morocco's title to claim Western Sahara, but to assist the General Assembly in deciding "on the policy to be followed in order to accelerate the decolonization process in the territory, in accordance with resolution 1514 (XV)". This object is so clearly expressed by the General Assembly that it cannot be ignored when interpreting the questions submitted to the Court for an advisory opinion.
(b) Complementary Character of the Two Questions Asked
When two questions are put to the Court it seems natural to ascribe to each of them a distinct and separate meaning of its own. If one and the same question were being asked, what would be the point of repeating it in different words? However, notwithstanding the accuracy of this observation, one must not ignore the fact that the promoters of the request for an advisory opinion, and the parties concerned, gave the two questions a complementary sense which the General Assembly was aware of and accepted when it voted in favour of the resolution.
The General Assembly did not ask whether the territory had belonged to no-one or whether it had been in the possession of independent tribes; its [p 133] interest was confined to the question whether the territory had belonged to no-one because it had no ties with Morocco or Mauritania.
The interconnection of the two questions appears natural in the context of the resolution and has been admitted on a number of occasions by the interested parties.
In view of its origin and purpose, the first question must not be separated from the second; it is the same question, albeit differently drafted. The territory must be considered nullius if it was not subjected by legal ties to any State or juridical organization at the time of colonization by Spain; it would not have been terra nullius if, at that time, it had been subjected by legal ties to the Kingdom of Morocco or the Mauritanian entity.
It was on the initiative of Morocco, by a declaration of H.M. King Hassan II dated 17 September 1974, and then by the statement made by Mr. Laraki to the General Assembly on 30 September 1974, that the two questions were put separately — a separation that recurs in General Assembly resolution 3292 (XXIX) FN1. Following the debate in the General Assembly and the voting of the request for an advisory opinion, the complementary nature of the two questions may be regarded as evident.
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FN1 The purpose of this initiative seems to have been to present the Moroccan claims in the form of a dispute with Spain regarding the weight of the two countries' respective titles to Western Sahara. The supposition is that Spain bases its title on the territory's having been terra nullius. Should the Court reply that the territory was not one belonging to no-one at the time of colonization, this would mean that it had an owner, and that owner—or so the conclusion would appear to be —could only have been Morocco, the sole neighbouring Muslim State. This method of posing the question changes with the introduction of the draft resolution of the group of 35, because of the emphasis placed on the principle of self-determination. For similar reasons it was in Morocco's interest to avoid raising the question of the legality of colonization by Spain, for to do so would have shown that the issue was one proper to the Court's contentious rather than its advisory jurisdiction.
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The Moroccan Government itself observes, in the introduction to its written statement:
"Clearly, the two questions put to the Court are closely connected. For the Kingdom of Morocco, the proof that Western Sahara was not, at the various times marking the stages of the process of Spanish colonization, a territory belonging to no-one, follows from the fact that, since very ancient times (the 11th century), contemporary with the constitution of the Kingdom itself, this territory was under an effective authority, and that such authority was that of Moroccan sovereignty. It is impossible to separate the demonstration of these two points, since they are concerned with acts of sovereignty of a State which, although appreciably different in structure from European States, was none the less recognized as a sovereign State by them, and has never ceased its resistance to Spanish implantation in Western Sahara." [p 134]
The written statement by the Islamic Republic of Mauritania has this to say:
"If the problem submitted to the Court concerned the legitimacy of Spanish possession or the territorial limits of that possession, there would certainly be some call to apply the realistic concept or fiction-concept of territorium nullius.
But it is difficult to see how it fits in with the preoccupations of the General Assembly, which are as follows: how to decolonize the territory of Spanish Sahara? Should this territory be considered, at the time of its colonization, to have belonged to no-one, in which case anything created on it is Spanish and might qualify for a wholly independent and self-governing future, or should it be considered to have been inhabited by tribes which themselves formed part of a larger Moroccan or Mauritanian whole?"
According to the record of the debate in the Fourth Committee, the representative of Spain stated that Spain "had never said that the Sahara was res nullius", and "he repeated that the Sahara was populated by Saharans" (A/C.4/SR.2130). When the spokesmen for the Spanish Government speak of the Western Sahara as being nullius, they do so to deny the existence of legal ties between that territory and the Kingdom of Morocco or the Mauritanian entity.
Those statements, and the argument addressed to the CourtFN1, show that the parties concerned agree in interpreting the first question put to the Court as not being the question whether the territory was terra nullius in the sense of having been capable of being colonized under the law in force at the time, and they also agree in considering that the question put to the Court is whether the territory of Western Sahara, at the time of colonization by Spain, was or was not terra nullius in the sense of not having, or of having, legal ties with the Kingdom of Morocco or with the Mauritanian entity.
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FN1 Thus, counsel for Morocco said: "This was the approach followed in the written statement of the Government of Morocco, based on the connection between the notion of terra nullius and that of the absence of State sovereignty" (hearing of 3 July) which is considered "... relevant as regards Morocco, a sovereign State" (ibid); and he concluded: "Proof of the non-existence of a terra nullius in the Sahara necessarily follows from proof of the exercise of Moroccan sovereignty in Western Sahara at the time of colonization" (hearing of 25 July).
Counsel for Mauritania stated: "The problem is not whether Spain could or could not occupy this territory by considering it as res nullius but to define the situation of this territory in relation to its Mauritanian and Moroccan surroundings with a view to its decolonization" (hearing of 10 July) and, at the conclusion of his address, he asked the Court to find "... that Western Sahara, at the time of colonization, was not in any part a territory without an owner (terra nullius), because it was made up of Mauritanian and Moroccan territories, and consequently, with the exception of a limited overlap area, appertained in its southern part to the Mauritanian entity and in its northern part to the Kingdom of Morocco" (hearing of 28 July).
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It therefore seems that the Court is competent to reply to the first question [p 135] if it is competent to reply to the question regarding the nature of the legal ties between the territory and the Kingdom of Morocco or the Mauritanian entity.
(c) Legal Ties with the Territory
The term legal ties is extraordinarily wide, whether one considers all the possible categories 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 flow from an unlawful act (responsibility). There are territorial ties, personal ties, ties of sovereignty, of servitude, of suzerainty, of fealty, of vassalage, to say nothing of all the other ties of a feudal character. According to their legal source they can be international, ties of public or private law, of State law, of canon law, or of Muslim law (based on the shari'a).
It is therefore necessary to enquire into the sense in which the term is used in the resolution, which is possible having regard to the formulation of the second question and to its relation with the first.
The words "the legal ties between this territory and the Kingdom of Morocco" indicate the category of ties envisaged: a vinculum juris between a territory (which is the object of the ties in question) and a body public (which is a State) FN1. What is involved is thus State ties relating to two specific areas (the Río de Oro and the Sakiet El Hamra). Their legal nature is made plain by the relation existing between the two questions. In the first question, the Court was asked whether or not the territory had been a territory belonging to no one (sans maître in the French text). The second question, supplementing the first, amounted to asking who, if the territory was not without a master [maître], had been its master [or owner] at the time of colonization by Spain. Was it Morocco? Was it the Mauritanian entityFN2? The expression legal ties must be understood to mean State ties relating to the territory and capable of having the value of a legal title to lay claim to the territory, that is to say, a right of sovereignty over the territory.
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FN1 The Mauritanian entity raises the question of its existence and its legal status.
FN2 The General Assembly ignored the question of the territory's ties with the independent tribes inhabiting it, as being irrelevant for the purposes of its decision on the decolonization process.
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Morocco put the question thus: were the two territories of the Sahara (Río de Oro and Sakiet El Hamra) "at the moment of occupation under the sovereignty and administration of the Moroccan State?" (A/PV.2249). That corresponds to its assertions that the "two provinces" of Western Sahara fall "under our sovereignty" (ibid.) and that "prior to Spanish colonization, Morocco had exercised sovereignty over those territories in accordance with the conditions laid down by public international law" (A/C.4/SR.2117).
In the draft resolution and during the debate in the Fourth Committee, the question retained the sense given to it by Morocco. Hence the controversy [p 136] originating in the threat to the principle of self-determination that a number of countries saw in the request for an advisory opinion FN1.
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FN1 The African group that prepared the draft was at pains to refer four times to resolution 1514 (XV), to mention the eight resolutions on the decolonization of Western Sahara and to reaffirm the right of Western Sahara to self-determination.
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In the introduction to its written statement, Morocco maintained that since the eleventh century Western Sahara had been "under an effective authority, and that such authority was that of Moroccan sovereignty". In its oral statements it said that "the only question which has arisen, from our point of view, is whether Morocco ... was sovereign in Western Sahara at the time of Spanish colonization" (hearing of 26 June) and that, "at the time of colonization by Spain, the Kingdom of Morocco was exercising its sovereignty in Western Sahara" (hearing of 25 July), being "considered to be the immemorial possessor" of the territory (hearing of 3 July).
Mauritania maintained, for its part, that the Sahara under Spanish administration was an integral part of the Mauritanian entity. In its written statement it said, "the legal relation between the two is a simple one of inclusion". In its oral statements, it spoke of a "co-sovereignty of the different constituents of the Shinguitti country" (hearing of 10 July).
In the oral statements of Morocco, we find the assertion that "the Moroccan State... conforms to the traditional monarchical idea of personal allegiance" (hearing of 2 July). The bearing of this statement is not clear. The personal allegiance traditional in Morocco conferred rights over persons not territories. The territory of the vassal is not directly subject to the overlord; it is subject to him only indirectly during the period of allegiance and that allegiance ends — and must be renewed —at the death of the lord or the vassal FN2. In the period of colonization by Spain, the Sultans are masters [maîtres] of the territory which falls de facto under their sovereignty and seek to become masters of the territories which they regard as belonging to them de jure in the Bled Siba. In any case a territorial claim such as Morocco's claim to the territory of Western Sahara cannot be founded on a personal allegiance.
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FN2 The claims of Turkey against France in 1881 on the subject of Tunis show clearly how little force the ancient ties of vassalage retained in modern international practice (Hertslet, The Map of Africa by Treaty (Protest of the Porte against the French Treaty), reprint of the third ed., London 1897, p. 118).
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Following the understanding between Mauritania and Morocco, reference was made in the oral statements of Mauritania to "tribes of Moroccan fealty" (hearing of 9 July). But the extent of this alleged "fealty" is very limited. According to the testimony of Mr. Vincent Monteil presented by Mauritania, the Wadi Sakiet El Hamra must be taken as the demarcation line between the "Moroccan fealty" and the Mauritanian entity (hearing of 8 July) FN3
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FN3 Neither the ties of personal allegiance nor those of "fealty" between tribes (overlappings of routes) were or could have been the subject of the dispute between Morocco and Spain which "appeared" to exist according to the Order of the Court of 22 May 1975.
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[p 137]
(d) Time of Colonization by Spain
An important point is how the time of colonization by Spain is to be determined. It is not a question of establishing the "critical date" of a dispute; the Court is not judging a contentious issue. We cannot confine ourselves to the narrow sense of the words. We are concerned with more than a very brief period, for the Spanish colonization of Western Sahara was a process spread over a number of years. In this sense, one can speak of a period of colonization or a "critical period", and it is necessary to take into consideration not only the beginning of the colonization, whether de facto or de jure, but also the time of its consolidation by occupation or pacification.
The period of colonization must be understood as referring to each of the two territories referred to in the resolution, the Río de Oro and the Sakiet El Hamra. Each has had its own history and its own period of colonization FN1. The colonization of Río de Oro was proclaimed by the Royal Decree of 26 December 1884. That of the Sakiet El Hamra had as its starting point the treaty between France and Spain of 27 March 1912. The total pacification of the two territories was accomplished in about 1934.
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FN1 When suggesting to the General Assembly the questions that should be put to the Court, Mr. Laraki spoke of the "two Territories of the Sahara" (A/PV.2249). This distinction between the two territories of Western Sahara is reflected in resolution 3292 (XXIX) containing the request for an advisory opinion. The first question begins with the words: "Was Western Sahara (Río de Oro and Sakiet El Hamra)..."
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It should also be noted that, in the language of the period, the words colony, protectorate, sphere of influence, intervention, pacification, are used indiscriminately. Thus, when there is a reference to the exercise of a protectorate over tribes or indigenous populations, what is meant is a colonization, and not a protectorate in the technical sense like the protectorate which was exercised over Morocco.
The words "at the time of colonization 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 necessary to consider the events of a very distant period, but that should not make us forget that what matters is whether the said possession by Morocco was exercised at the time of colonization by Spain.
Part I
I. Competence of the Court
1. Legal Question and Questions of Fact
In its Order of 22 May 1975, the Court considers that the conclusions stated in no way prejudge the question of the Court's competence. At the present stage of the procedure, the Court has to decide on its own competence.
The Court may give an advisory opinion "on any legal question" at the request of whatever body may be authorized to make such a request (Statute, [p 138] Art. 65). According to the Court, it "can give an advisory opinion only on a legal question. If a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested" (I.C.J. Reports 1962, p. 155). This dictum of the Court in the case concerning Certain Expenses of the United Nations may have been regarded as an interpretation based on argument a contrario. In fact, it is binding, because it flows from the nature of the advisory proceedings, which is very different from that of contentious proceedings.
In litigation, the parties are masters of the evidence: the court has a passive role. In the words of the traditional axiom of procedure, the court says to the party: da mihi factum, dabo tibi jus. The parties put forward facts and submit the evidence that they consider favourable to their claims, and the court takes them into consideration when making its decison (secundum allegata et probata). That is perfectly logical, because the purpose of the judgment is to decide as between the parties, and it "has no binding force except between the parties and in respect of that particular case" (Statute, Art. 59).
The function of the Court with regard to questions of fact in advisory proceedings was considered by the Permanent Court:
"The Court does not say that there is an absolute rule that the request for an advisory opinion may not involve some enquiry as to facts, but, under ordinary circumstances, it is certainly expedient that the facts upon which the opinion of the Court is desired should not be in controversy." (P.C.I.J., Series B, No. 5, p. 28.)
This cautious approach may perhaps be explained by the old practice of States of submitting their disputes to the Court by means of a request for an advisory opinion. Today, it would seem certain that, when the fact on the existence of which an advisory opinion is requested is disputed or in controversy, the Court has no competence to decide upon its existence. The reason is that the Court cannot content itself with the evidence, which may be biased, supplied by the States interested or concerned; the effect of an advisory opinion is not confined to the parties as though it were a matter of a judgment; the opinion is authoritative erga omnes, and is not restricted to the States or organizations that make written or oral statements or submit information or documents to the Court. The Court cannot collaborate with the body that requests an advisory opinion or state the existence of a fact by way of a finding, unless it has itself verified its accuracy.
When faced with a request for an advisory opinion, the Court itself bears the responsibility for verifying the factual data on which it bases its reply. How is it to proceed in a case in which the quaestio facti is fundamental to any possible reply? The Court's procedure does not provide the means of conducting investigations. Even if Article 68 of the Statute is interpreted in the broadest manner, it would not seem that in advisory proceedings the Court is entitled to make arrangements connected with the taking of evidence (Statute, Art. 48) or to entrust anyone with the task of carrying out an enquiry or giving an expert opinion (Statute, Art. 50).[p 139]
The existence of a legal fact or of an act in the law is also a question of fact rather than of law. That was confirmed by the Permanent Court in the case of the Status of Eastern Carelia when it ruled that the question whether Finland and Russia had entered into a contract was a question of fact (P.C.I.J., Series B, No. 5, p. 26). It would be another matter if the question were one of establishing the legal conditions for the existence of a contract, or ascertaining its legal consequences in time or in space — even in the case of a contract the existence of which is hypothetical.
It is possible that the request for an advisory opinion may relate or seem to relate to a mixed or complex question of fact and law. In that case, the Court will have to interpret, by virtue of its powers, the request for an opinion and see whether, taking account of the background and the purpose, it can set aside the question. As an organ of the United Nations, it has a duty to collaborate with the organ which requests an opinion, and to consider whether it can assist in resolving the difficulties that have given rise to the request.
2. Is the Question of the Existence of Ties at the Time of Colonization by Spain a Question of Law?
In the information given and the oral statements made by the parties concerned on the substantive issues, it should be noted that efforts have been concentrated on proving the facts. Morocco and Mauritania have endeavoured to prove the existence of ties between the territory of Western Sahara and their own countries; Spain has done everything in its power to prove the contrary. As a result, there was an erudite and fiercely contested polemic on facts and questions concerning geography, ethnography, linguistics and, above all, history.
Morocco proceeded to "draw an outline of the historical facts" from the year 681 (hearing of 30 June). The role of the Court is "to go into arid problems of geography or history" (hearing of 24 July) and that of Morocco is "to put together a bundle of historical arguments which confirm the existence of legal ties" (hearing of 25 July); it will be "sought to prove the ties which throughout history united Morocco to Western Sahara. In order to do so we based ourselves in particular on the work of recognized historians, specialists in these ancient periods" (hearing of 25 July) and the Court is assured that the statement has been prepared "with the greatest possible historical objectivity" (hearing of 21 July). Mauritania promises to make "a brief contradictory examination of the historic facts" (hearing of 9 July). Spain has filed a voluminous dossier of documents and has endeavoured to contradict the arguments of Morocco and Mauritania. Moreover, the latter two countries, despite their understanding, have opposing points of view on important facts.
Algeria expressed impatience with this view of the case: [p 140]
"... while taking account of the historical nature of the questions submitted, the subject of the request must nonetheless not be reduced to a mere historical discussion; the Court has better things to do than clear up a historical controversy merely for the satisfaction of the specialists..." (hearing of 15 July).
Algeria proposed that the Court should not answer "a historical question simply to satisfy academic curiosity", and proposed, on the contrary, that the request for an advisory opinion should be regarded as a request for useful enlightenment on a contemporary problem (ibid.).
The parties concerned have interpreted the request for an advisory opinion as one that poses an historical question, directed to the verification of the existence of facts in the past — even in the most remote past — in order to establish the existence of the legal ties (titles to sovereignty) between the territory of Western Sahara and Morocco and the Mauritanian entity (hearing of 12 May).
This approach by the parties concerned compels enquiry into the competence of the Court. Reference has been made to the definition of a legal question which we owe to Charles De Visscher, according to whom "it means any question capable of receiving an answer based on law"; he adds that the Court would refrain from replying to a question which "depended upon considerations extraneous to the law" (Theories et realites en droit international public, Paris, 1970, p. 401).
Applying that definition to the present case, it can be seen that the question of the existence of ties at the time of colonization by Spain could not be capable of receiving an answer based on law; the answer would have to be based on the proof of historical facts. That is what the parties concerned have given in studying and discussing, for example, the historical consequences of the Almoravid epoch, the geographical and historical reality of the territory known as the Noun, the scope of the expeditions of Al Mamoun and of Moulay Hassan, the significance of the life and exploits of Ma ul-'Aineen and the existence of a group or of two groups of Tekna tribes.
It is true that the old Court was not afraid of studying historic rights, even going back to the year 900 (P.C.I.J., Series A/B, No. 53, 1933) and that the present Court has examined titles going back to 1066 (I.C.J. Reports 1953, p. 53). But these were cases submitted to the Court under contentious procedure, the nature of which is altogether different from the procedure for advisory opinions.
It is also true that in the case concerning Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276(1970), the Court said:
"Normally, to enable a court to pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues." (I.C.J. Reports 1971, p. 27, para. 40.) [p 141]
But it should be noted that the facts referred to in connection with South Africa were not facts that required to be proved; they were facts that were obvious or generally known, such as apartheid — facts affirmed in resolutions adopted by the United Nations General Assembly (I.C.J. Pleadings, Namibia, Vol. II, p. 182; I.C.J. Reports 1971, separate opinion, pp. 177-179).
The most striking aspect of this case is the Court's difficulty in determining the truth of the facts discussed before it. The statements by the parties concerned have not been confined to the provision of information and documents, but have taken the form of real forensic arguments on behalf of opposing causes — both learned and shrewd, it is true, but naturally biased, and on matters extraneous to the law.
It would have been a heavy task to follow the debates on the historical data and to endeavour to acquaint oneself with the works cited in their entirety and not merely through the extracts chosen by the parties concerned FN1; but there was the still greater difficulty of assessing the relative value of the testimony of the historians on the basis of their knowledge and objectivity and of supplementing the information supplied by the parties concerned by research in libraries and archives. Furthermore, several of the works to be consulted were in Arabic.
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FN1 The presentation of a number of statements was somewhat careless; it may be noted that there were cases where the page references for the works cited were not given.
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The same difficulties arose in connection with the geographical, ethnical and linguistic questions.
The impotence of the Court became overwhelmingly clear when it was confronted with conflicting translations of Arabic texts of documents that were considered by the parties concerned to be of fundamental importance to their respective arguments. That was the position with regard to the Hispano-Moroccan Treaty of 28 May 1767 (hearings of 3, 21 and 25 July), the letter from the Sultan to the King of Spain of 28 May 1767 (hearings of 21 and 25 July), the Anglo-Moroccan Treaty of 13 March 1895 (hearings of 10 and 25 July); the reply of Sultan Moulay Hassan on the boundaries of Morocco (hearings of 21 and 25 July), and the evidence of the submission of Ma ul-'Aineen (hearing of 18 July). Note should also be taken of the conflicting views on the existence of a document (hearings of 25 and 30 July), the citations from unpublished works (hearings of 8 and 22 July) and the references to oral traditions and information (hearings of 27 and 30 July). There are indeed many cases where it would have been necessary or useful to have heard witnesses or experts in order to elucidate matters apparently of importance.
3. Weight of the Evidence
There are reasons for doubting the competence of the Court. The Court really does not seem to be the appropriate organ to elucidate, by means of an [p 142] advisory opinion, questions of fact or questions of which the historical aspect is predominant. However the Court's spirit of collaboration in relation to the other organs of the United Nations, together with the very special nature of a case, may be justification for the Court not applying Article 65 of its Statute strictly.
The General Assembly called upon the interested parties to submit to the Court all such information and documents as might be needed to clarify the questions posed. But the way in which those parties proceeded was not that of amici curiae. Throughout the proceedings, the attitude of the interested parties was that of parties in contentious proceedings; which is what makes one think that it would have been appropriate to apply the rules of evidence (question of law). Morocco and Mauritania have endeavoured to prove the existence of titles in their favour showing that it was to them that the territory of Western Sahara belonged at the time of colonization by Spain. To that end they have referred to historical facts. Spain has also submitted information and documents, but with a view to disputing the assertions of Morocco and Mauritania.
The question of the burden of proof, which appertains to contentious proceedings, does not arise in advisory proceedings. In the latter form of proceedings, however, it is necessary at least to apply the rules of evidence. Whoever puts forward a point must prove it. The verification of facts was even more necessary in a case like the present one, which assumed a quasi-contentious form FN1, and was not very clearly delineated, and was, from the outset, of a hybrid character. A critical examination of the assertions of the parties concerned reveals that there were statements without sufficient evidence and others contrary to the most authoritative testimony FN2, that challenges to the evidence were left unanswered, and that there were baseless generalizations and quite obviously arbitrary conclusions.
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FN1 This abnormal situation was favoured by the Order of 22 May 1975, according to which the questions put to the Court "may be considered to be connected" with a dispute existing at the time of the adoption of resolution 3292 (XXIX).
FN2 The Members of the Court had occasion and the opportunity to inform themselves, and not merely study the information and documents submitted by the interested parties.
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The Court thus appeared to be in a position to judge whether the evidence which had been submitted to it was sufficient to give rise to a reasonable conviction of the existence of the ties in question, or whether, on the contrary, there were sufficiently convincing indications leading to the conclusion that those ties were non-existent. With a view to that limited objective, it was necessary and sufficient to examine, in accordance with the rules of judicial practice, the value and probative force of the facts relied on before the Court in support of the existence of ties with the territory of Western Sahara at the time of colonization by Spain. [p 143]
II. Propriety of the Exercise of the Court's Competence
The Order of 22 May 1975 mentioned that, in the further proceedings, the question of the propriety of the exercise of the Court's competence might fall to be decided.
Article 65 of the Statute lays down that the Court may give an advisory opinion. The Court is thus authorized to use its discretion to refuse a request for an advisory opinion. Hitherto, it has not made use of that power. But it has noted that, according to the circumstances of the case (I.C.J. Reports 1950, p. 72), it has to consider whether there are "compelling reasons" which would justify a refusal of the request for an advisory opinion (I.C.J. Reports 1971, p. 27 and I.C.J. Reports 1973, p. 183). The Court has not had occasion to say what such "compelling reasons" are. Nevertheless, it seems evident that there is a compelling reason for refusal when the request for an advisory opinion implies that the advisory function of the Court is being used to get round the difficulty represented by the optional nature of the contentious jurisdiction.
The question of the propriety of acceding to the request for an advisory opinion contained in resolution 3292 (XXIX) could be examined by taking two hypotheses: (1) that there is a dispute between Morocco and Spain, but that there is no dispute between Mauritania and Spain; (2) that there is no dispute between Morocco and Spain, but a mere difference of opinion like that which may exist between Morocco, Spain, Mauritania, Algeria, Zaire and other Members of the United Nations.
1. Hypothesis of a Dispute between Morocco and Spain
The doubts concerning the propriety of giving a reply find considerable support in the Order of 22 May 1975. According to that Order, the material submitted to the Court shows that when resolution 3292 (XXIX) was adopted, there appeared to be a legal dispute between Morocco and Spain regarding Western Sahara and that the questions contained in the request for an advisory opinion might be considered to be connected with that dispute; and that there appeared to be no dispute between Mauritania and Spain.
The hypothesis adopted by the Court on the occasion of the appointment of the judge ad hoc appears to be based on the attitude of Morocco to Spain and the request for an advisory opinion. The Spanish Government believes that the time has come to accomplish its task as administering Power and, in implementation of the pressing resolutions of the General Assembly, to organize a referendum for the purpose of decolonizing Western Sahara.
Morocco's representative in the General Assembly explained the dispute with Spain in the following words:
"The formulation of these two attitudes [those of Morocco and Spain] allows us to discern clearly the basis of the dispute between Morocco and Spain since 1956. First of all, we must answer the following questions: were the two territories of the Sahara in question originally, as the [p 144] Spanish Government claims, 'res nullius'or territories without a master, and open to occupation? Or were they at the moment of occupation under the sovereignty and administration of the Moroccan State?" (A/PV.2249.)
Mr. Laraki went on to say:
"The Government of Morocco sent Spain a note dated 23 September 1974 inviting it to join Morocco in submitting a request in accordance with the rules of procedure of the International Court ... If for one reason or another that direct method had not been adopted, we would still have requested the Court not for an arbitrary decision but simply for an advisory opinion ... The opinion given by the International Court of Justice on a point of law can have as considerable an effect as a decision of arbitration. In any case the General Assembly would be in a position, on the basis of such opinion, definitively to find a solution to the political question of the future of the two provinces, Sakiat El-Hamra and Rio de Oro." (Ibid.)
Morocco appears to have achieved its objective. Being unable to bring its dispute before the Court by contentious proceedings, it has managed to have it submitted to the Court by means of a request for an advisory opinion. For Morocco, the dispute is still the same. At the beginning of the oral proceedings before the Court, counsel for Morocco made a point of indicating that the Court's reply to the request for an advisory opinion would have implications for interests of Morocco which were fundamental "because they involve the principle of territorial unity and integrity" and that in "the advisory opinion asked for in the Western Sahara case, we find that the interests of States are involved in a field which concerns the very substance of what makes a State, that is to say, the territorial field" (hearing of 12 May).
In the Order of 22 May, the Court apparently inclined to the view that there was a dispute between Morocco and Spain and not between Mauritania and Spain, taking into account — it seems — Mauritania's reply to a question put by Sir Humphrey Waldock, affirming that Mauritania had not taken part in the Moroccan initiative to have the dispute submitted to the Court.
On the supposition that the Court still thought that there was between Morocco and Spain the same dispute as there was when resolution 3292 (XXIX) was adopted, the Court should have asked itself whether the request for an advisory opinion "touches the merits of those disputes" (I.C.J. Reports 1950, p. 72) and to have considered whether answering the questions in the request for an advisory opinion would be equivalent to settling that former dispute between Morocco and Spain.
The Court was thus obliged to take a decision of importance for the future. According to the view expressed by Morocco in the debates in the General Assembly, it was confronted by the question of the admissibility of "an advisory opinion ... in regard to a dispute between States [which] is nothing else than an unenforceable judgment" (ibid., dissenting opinion of Judge Zorieie, p. 101). [p 145]
The principle of voluntary jurisdiction, or of the consent of States, invoked by the Permanent Court (P.C.I.J., Series B, No. 5, p. 27) is established in the Charter (Art. 2, para. 7) and in the Statute (Art. 36). Can it be circumvented by means of a request for an advisory opinion?
An example will illustrate the meaning of the question. State A claims a territory occupied by State B. State B does not accept the offer of State A to submit its claim to the contentious jurisdiction of the Court. Is State A allowed to bring State B, in spite of its refusal, before the Court, by means of a request for an advisory opinion, thanks to the adoption of a resolution to that effect by a majority of the General Assembly FN1 ?
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FN1 In this hypothesis, the intervention of Mauritania does not alter the situation: it joined in with Morocco to benefit from the situation created by the latter.
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2. Existence of a Controversy in the General Assembly
However, in my opinion, the question of propriety did not arise; there was no dispute between Morocco and Spain, according to the law which is to be applied.
It is true that Morocco has sought to create the appearance of a dispute with Spain FN2. It would thus have been possible for it, by placing in the forefront the question of its supposed titles to Western Sahara, to have excluded the process of self-determination.
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FN2 Morocco began by saying that Spain had claimed that the two territories of Western Sahara were, at the time of colonization, res nullius; but Spain did not advance any such contention.
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This skilful approach was in fact no more than a piece of camouflage. Even if Spain had accepted Morocco's proposal to bring before the Court by way of contentious proceedings the two questions raised in the letter of 23 September 1974, the case would not have been viable. Spain did not have at that time, and does not have today, capacity to be party to a dispute with Morocco, or with any other State, as to the present or past titles to sovereignty concerning a territory which has the status of a non-self-governing territory, and of which it is the administering Power. Spain does not have what is called in procedure a legitimation passive. Once it is established that the status of Western Sahara is that of a non-self-governing territory, Spain cannot recognize the right of another State to claim the territory, nor can it concede the existence of the titles of sovereignty of any State whatsoever, nor agree to arbitration over the sovereignty, nor make an agreement for partition of the territory, nor decide on its joint exploitation, nor attribute sovereignty over it to itself. Spain could not be party to a dispute involving the settlement, directly or indirectly, of any question concerning the sovereignty over the territory under its administration. Nor could the administering Power disregard the fact that it did not have the power to dispose of the right to self-determination of the Sahrawi, recognized by eight resolutions of the General Assembly and by the parties which are interested or concerned, nor the power to disregard that right. [p 146]
Any doubts which may have existed as to whether the advisory opinion was requested upon a legal question actually pending between Morocco and Spain should have disappeared after the fundamental change made by the African group in the meaning of the questions proposed by Morocco FN1. In the Fourth Committee, Morocco stated, through Mr. Slaoui, that it agreed that "the problem of the decolonization of the Sahara was not merely a dispute between Morocco and Spain but concerned another country and came within the competence of the entire United Nations" (A/C.4/SR.2117). In resolution 3292 (XXIX), the General Assembly showed quite unequivocally that the request for an advisory opinion was made for reasons, and with a purpose, different from those of Morocco's earlier proposal. The resolution emphasized that the request was prompted by a controversy which arose during the discussion in the General Assembly, and that its purpose was to enable the General Assembly to decide, in the light of the advisory opinion, "on the policy to be followed in order to accelerate the decolonization process in the territory, in accordance with resolution 1514 (XV), in the best possible conditions".
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FN1 The draft resolution presented by the African group was "the fruit of long negotiations" (representative of Upper Volta, A/C.4/SR.2130), and reflected "a spirit of compromise" (representative of Ivory Coast, A/C.4/SR. 2131).
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Spain and Morocco have not regarded themselves as parties to a dispute. The General Assembly called upon Spain in its capacity as administering Power in particular, as well as Morocco and Mauritania in their capacity as interested parties, to submit to the Court all such information and documents as might be needed to clarify the questions put. In a true dispute between Morocco and Spain, it would have been for the two parties to plead their cases as seemed best to them, with a view to defending their rival contentions. The resolution calls for the collaboration of the three States, and in different capacities, with a view to an objective which pertains to the competence of the General Assembly, namely decolonization. The function of the three States is that of informateurs, to use ancient terminology, and not that of parties to a dispute FN2.
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FN2 It should be noted that resolution 3292 (XXIX) was adopted in the context of item 23 on the agenda of the Twenty-ninth Session, concerning the "Application of the Declaration on the Granting of Independence to Colonial Peoples and Countries". On the other hand, the proposal of the King of Morocco (letter of 23 September 1974) was worded as a request destined to settle the dispute between Morocco and Spain in accordance with the spirit and letter of Chapter VI of the Charter.
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If there is no dispute in the legal sense between Morocco and Spain, this causes the most substantial obstacle to the propriety of the Court's giving an advisory opinion to disappear. The purpose of a request for an advisory opinion is "to guide the United Nations in respect of its own action" (I.C.J. Reports 1951, p. 19; I.C.J. Reports 1971, p. 24) FN3
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FN3 The Order of the Court of 22 May 1975 does not assert that there was a legal dispute between Morocco and Spain regarding the territory of Western Sahara, but that there "appeared" to be such a dispute; it was given only on the occasion of the applications for the appointments of judges ad hoc.
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[p147]
Part II
It was not possible for the Court to carry out an historical investigation as to the existence of legal ties, but, as I have already observed, it was able to examine the evidential value of the information and documents supplied by the parties concerned, in order to attain a reasonable conviction as to the existence of the ties in question.
I. Ties with the Kingdom of Morocco
1. Preliminary Considerations
Concerning the ties of Western Sahara with Morocco, the known facts lead one to believe that Morocco had reason to think, and indeed was right in thinking, that the Sahara (including Mauritania) was a suitable territory for the natural expansion of her Empire; everything seemed to have intended it to be occupied by her. Morocco was a people organized as a State; the Sahara was inhabited by tribes considered "wild" by the Moroccans, and it was the only neighbouring State with the same Muslim faith. There are also the obvious relationships between the two countries throughout history.
It is to be noted that those relationships have this particular feature: only those from south to north have permanent effects; the people of the Sahara who penetrated into Morocco settled there and forgot the poor and difficult territory of the Sahara. On the other hand, the Moroccan expeditions into the Sahara, whether military or trading expeditions, had no future; life in the Sahara was too hard for the Moroccans. At the time of the colonization of the territories of Africa, Morocco did not have the strength to compete with the European Powers, or to oppose the colonization, nor even any interest in doing so. The same may be said with regard to the whole territory of the Sahara, Mauritania and Western Sahara.
Thus there were ties between the Sahara and Morocco, but only of a transient nature and without legal or political significance. In his preface to the book by Mr. Rachid Lazrak, Mr. Paul Reuter refers to those ties as follows:
"... ties perhaps fragile and intermittent, but which were the only ones by which those territories were united with a world which brought them Islamic culture and the elements of a political life" (Le contentieux territorial entre le Maroc et I'Espagne, Casablanca, 1974, p. 9).
Mr. Rachid Lazrak gives the reason which made the Sultan's minister oppose the occupation by Mackenzie when he states that: "All the Sahara inhabited by Muslims belonged by virtue of the shari'a to the Sultan of Morocco" (p. 142).
In the pages which follow, I am not attempting to go into the facts which were the subject of dispute between the parties concerned; I shall confine [p148] myself to indicating some of the reasons which have led me to the conclusions I have stated.
2. Religious Ties
Belonging to Dar al-Islam is a powerful tie; the world of the Muslim believers is opposed to that of the unbelievers (Dar al-Harb); an opposition which justifies the call for mutual help in cases of a holy war jihad). It is a tie which is not to be confused with legal or political ties FN1.
"With the advent of the Abbassids... the [Muslim] community system became blurred with the emergence of the provincial spirit:... Omeyyad Spain and Idrissi Morocco split off from the rest of the Muslim Empire; other defections took place in the Orient itself; the populations of those countries then considered that they constituted real self-governing entities." (Hajji, "L'idee de nation au Maroc et quelques-uns de ses aspects aux XVIe et XVIIe siecles", Hesperis Tamuda, Rabat, 1968, p. 110; see also pp. 114 f.)
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FN1 With regard to the religious argument, see the criticism made by counsel for Mauritania at the hearing of 9 July.
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"Over the centuries, the greater part of the Moroccan population was to show itself as faithful to its faith as it was attached to its independence" (Terrasse, Histoire du Maroc, II, p. 424) FN2. Islam, which proved unable to cement Moroccan unity, did not deeply bind Morocco to the outside world: "All that Islam did was to give a legal form to the deep-seated xenophobia of the Moroccan populations" (ibid., p. 431) FN3.
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FN2 "Islam was unable to conquer the spirit of independence of the Muslim peoples" (Hajji, op. cit., p. 110; see also Terrasse, op. cit., II, pp. 424-431). The imperialist ambitions of the Sultans rested upon ties of religion: "All the Sahara inhabited by Muslims, and not belonging to a sovereign, belonged by virtue of the shari'a to the Sultan of Morocco" (Miege, Le Marocet l'Europe, III, p. 305). The Sultan also regarded himself as sovereign of the Soudan (loc. cit., note 6).
FN3 During the reign of Moulay Hassan, Ahmed en-Nasiri, with reference to the Sultan's military reforms, noted that: "The soldiers desire to learn the profession of arms in order to defend the faith, and lose their faith while learning it" (Miege, op. cit., IV, p. 416, note 4
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3. Territorial Continuity
It is necessary to pay some attention to the question of the geographical situation of Morocco and the Sahara. The representative of Morocco in the General Assembly maintained that there was a presumption that Western Sahara belonged to Morocco, based on territorial contiguity and continuity (A/C.4/SR.2117).
Such information as I have been able to obtain shows, rather, that there is a well-marked discontinuity between the territory of Morocco and that of Western Sahara.
According to remarkable studies by R. Montagne (Hesperis, XI, fascs. 1-2, [p 149] Rabat, 1930, Conference on the Present State of Sahara Studies, pp. 111 ff.), it seems established that there is a natural frontier marked by the Jebel Bani, and by the Kem-Kem, or little monticules, a series of hills, isolated from each other; it is a veritable wall pierced with embrasures or defiles, it is the line of the R'negats. In those defiles are mountain oases, halts or staging-posts of which the name always begins with the word "foum" (mouth) [Fr. bouche]. This line joins up the points by which Morocco debouches on to the Sahara. "It is at the 'foum' that one passes from one world into another. This change is very marked, not to say abrupt." It is shown by innumerable signs: change of vegetation, change of customs, change of way of life, change of costume, architectural differences, geological differences, and, above all, change to a different language (Hassaniya) (Thomas, Sahara et communaute, Paris, 1960, pp. 31 ff.; Marchât, "Frontiere Saharienne du Maroc", Politique etrangere, XXII, 1957, No. 6, pp. 638 ff.; La Republique islamique de Mauritanie et le royaume du Maroc; Husson, Les frontieres terrestres du Maroc, 1960, pp. 37-38).
The existence of the pre-Sahara zone calls for special mention. It is constituted by:
"... successive 'forms' of transition between the life of the men of the north and of the south. He [Montagne] distinguishes five such forms, ending up with the Ait Youssa, who appear to us to be the last transitional type between the minor nomad of the Noun and the great nomad of the Sahara like the Regheibat. Then one crosses the Dra'a and gets to the Hamada, which, still according to Montagne, is the real edge of the western desert" (Marchat, op. cit., p. 638).
After the pre-Sahara zone, one finds the western Sahara, of which we are told that it has an incontestable individuality" (Celerier, "Le Sahara occidental, Problemes de structure et morphologie", Hesperis, XI, fascs. 1-2, 1930, p. 2).
4. Pre-Sahara Zone and Boundaries of the Kingdom of Morocco
The consistent testimony of historians and geographers is that the southern limit of the Moroccan Empire was at the extremity of the pre-Sahara zone. The political status of the zone was singular. The Sultan claimed to be the sovereign, and was considered as such de jure, but not de facto in the geographical maps and by the European States. It was a strange situation: the boundaries of Morocco remained undetermined. The Moroccan authorities could not state exactly where they were, and gave only delaying answers to the Spaniards' requests for information.
The Bled Siba was in the power of local chiefs or sheikhs, either fighting or allied among themselves, so that relations with the Makhzen were always liable to change according to whether the Sultan's forces were approaching or whether he needed aid in his internal quarrels. The zone of the Souss was in that irregular condition, which was still further complicated by the fact that [p 150] the almost independent principalities more or less eluded the Sultan's independent authority. The cartographers knew the coastal zone well, but had to take its variations into account. That explains why in the maps of Morocco, from the seventeenth to the nineteenth century, Morocco's frontier is placed at Cape Noun, to the south of the Noun, to the north of Cape Noun, on the Messa river, at Cape Agulon, at Cape Juby and on the Wad Dra'a, bounded by the region of the independent Moors and by the Kingdom or State of Sidi Hisham and the Wad Noun. On the subject of those principalities, we are told that "Tazeroualt corresponds to the State of Sidi Hisham;... [it] includes the township of High and the tomb (Kouba) of Sidi Ahmad-ou-Moussa" (H. de Castries, "Notice sur la region de l'oued Draa", Bulletin de la societe de geographie, 1880, Vol. XX, p. 500). The country of the Wad Noun (to the south of Tazeroualt) is also called, after the name of the founder of the dynasty, the State of Abid-Allah-Ou-Salem; the representatives thereof in 1880 were the Beyrouk brothers.
"Tazeroualt and the Wad Noun in reality never came under Morocco. However, according to the author of Roud-el-Kartas, the Almohad sovereign Abdel Moumen (1159) extended his authority over that land." (Castries, op. cit., p. 501.)
It is also to be noted that towards 1765 the greater part of the Tekna confederation, which was established at the mouth of the Dra'a, freed itself of Moroccan control FN1. The Moroccan Tekna are not to be confused with the free Tekna of the SaharaFN2.
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FN1 Counsel for Mauritania also observed that "the confederation of the Tekna near the mouth of the Dra'a was itself partly liberated from the Sultan's control" (hearing of 9 July).
FN2 The distinction is that of Colonel Lahure, quoted by F. de la Chapelle, "Les Tekna du Sud Marocain", L'Afrique française, 1933, p. 791. La Chapelle goes on: "This division, although superficial, gives a good summary picture of the respective positions of the nomads and the settled people", emphasizing that "the borderline between the two ways of life is not always clear."
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The political situation of the zone is still further complicated by the fact that the chiefs of the zone extended or claimed to have authority over the zone of Tarfaya. Thus Beyrouk made agreements with Mackenzie concerning the establishment of the trading-station at Cape Juby, as an independent authority, and he also tried to urge the European Powers to build a harbour in the region, against the interests and despite the opposition of the Sultan. Nevertheless there was a time, when the differences between the Beyrouks and the Moroccans came to an end, when Beyrouk received from the Sultan an appointment as caid; but, for that very reason, Beyrouk found his authority over the Tekna tribes disappearing (Trout, Morocco's Saharan Frontiers, Geneva, 1969, p. 151).
The advance of the French armies changed everything (F. de la Chapelle, "Esquisse d'une histoire du Sahara occidental", Hesperis, XI, fascs. 1-2, 1930, p. 90). But, as Miege said in his essay on Morocco, it is to the French forces [p 151] that Morocco owes the pacification of the unsubjugated zones. "For the first time, the whole of the country came under the same central power. The immediate consequence was the development of a national self-awareness." (Miege, Le Maroc, Paris, 1950, p. 43.)
This peculiarity of the Bled Siba affords the explanation and justification of the so-called shipwreck clause for the Souss region FN1. The origin may be found in the Treaty of Peace and Commerce between the Sultan of Morocco and the King of Spain of 28 May 1767FN2. Later this became a customary clause in the Treaties between Morocco and European PowersFN3. The fact is that the idea that sovereignty implied responsibility for unlawful acts of a sovereign's subjects was well known to Morocco. In order to affirm the concept of Morocco as sovereign in all regions claimed as belonging to it, Moulay Hassan decided, in order that doubt should not be thrown on his authority over those territories, to entertain the requests for indemnity submitted to him, thus exacerbating, as Miege observes, the bleeding of the Moroccan Treasury (Le Maroc et l'Europe, III, p. 357; IV, p. 417).
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FN1 It was the custom of the inhabitants of this region to make captive any shipwrecked mariners whom they found on their coasts, and to hand them over only in exchange for large ransoms. Faced with the claims of the States of which the captives were nationals, the Sultans had to assist in ransoming them, if necessary by paying the sum demanded themselves.
FN2 In the text reproduced by Lazrak, Article 18 of the Treaty reads: "His Imperial Majesty refrains from expressing an opinion with regard to the establishment which His Catholic Majesty wishes to found to the south of the river Noun, since he cannot undertake the responsibility for the accidents or misfortunes which may occur, because his sovereignty does not extend so far, and because the nomadic and savage tribes who inhabit the country have continually injured and even made captive the people of the Canary Islands" (op. cit., pp. 389-390); this clause is consistent with the letter of the Sultan to King Carlos III (information and documents supplied by the Spanish Government, Book 3, App. 2 to Ann. 7). Both these texts were, in the course of the oral statements before the Court, the subject of controversy as to the translation and meaning of the Arabic texts. (On the Treaty, see hearings of 3, 21 and 25 July; on the Sultan's letter see hearings of 21 and 25 July.)
FN3 Such a clause appears in the Treaty between Morocco and the United States of 25 January 1787, in Article 22 of the Treaty of Peace, Friendship, Navigation, Commerce and Fisheries between Morocco and Spain of 1 March 1799, and in Morocco's treaties with Great Britain (8 April 1791), the United States (16 September 1836), and Great Britain (9 December 1856).
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A further consequence of this curious situation of the Bled Siba is that the Moroccan authorities were unable to pinpoint the southern frontier of the Moroccan Empire. The repeated enquiries of European Powers as to the boundaries of Morocco received no precise reply. At best, the old aspirations to empire were invoked (Miege, op. cit., III, pp. 305-306). Sultan El-Hassan Ben Muhammad was to reply to the pressing Spanish enquiries that the frontiers of the territory over which his sovereignty was exercised were: "Egypt on one side, the Soudan on another, and Maghnia on the other" (documents submitted by the Kingdom of Morocco, Nos. 9A, 11 and 12).
The general opinion of the period was that the furthest limit of the Bled Siba was at the Wad Dra'a (Trout, op. cit., p. 137). Sir John Drummond Hay, [p 152] a recognized defender of the rights of Morocco, stated that "the legal FN1 domination of the Sultan does not extend beyond the Wad Dra'a" (Miege, op. cit., III, p. 305, note 3).
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FN1That is to say not de facto but de jure, or by way of zone of lawful influence of authority of the Sultan.
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In his oral statement to the Court, one of the counsel for Mauritania, while endeavouring to show that the Bled Siba extended beyond the Dra'a, had to concede that the nearer one got to the Dra'a, "the more allegiance to the Sultan was watered down, and it disappeared altogether at the level of the Wad Sakiet El Hamra" (hearing of 9 July).
The purchase by the Sultan of the Mackenzie trading-station at Cape Juby, under the Treaty of 28 November 1895, did not change the situation in the region. The confederation of the Tekna only recognized the religious authority of the Sultan. The former trading-station at Cape Juby was an enclave in the hands of the Sultan, regarded as an area having extra-territorial status, with an exiguous military garrison, and without influence in the neighbourhood FN2.
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FN2 It should be noted that Cape Juby, although it was beyond the Dra'a, was to the north of the 27° 40' parallel, and further still from the Wad Sakiet El Hamra. The Sultan claimed as against Great Britain that the district fell under his authority, but he conceded that he did not possess there "the slightest power of control" (Miege, op. cit., III, p. 305).
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5. Maps
The importance of the very special nature of the Bled Siba becomes apparent in the context of international relations. Even if, for years or even for an entire century, the Makhzen had exercised no authority in a territory of the Bled Siba, that territory was still considered by the European Powers as being de jure under the authority of the Sultan. Basically, the Powers considered the territories of the Bled Siba as spheres of influence of the Sherifian authority. It is this international recognition which makes it possible to speak of a sovereignty which was hardly ever exercised.
This characteristic of the Bled Siba explains the importance of the maps, which show what the international opinion of the period regarded as the recognized frontiers of the Moroccan Empire. It had the effect of limiting the freedom of the Powers to occupy certain territories, and of obliging them to consider those territories as coming within the purview of the general duty to respect the integrity of the Sherifian Empire (Act of Algeciras of 7 April 1906; Franco-Spanish Declaration of 3 October 1904).
The Court was provided with a considerable number of maps by the Spanish Government, in pursuance of the General Assembly's request to the interested parties to submit to the Court all such information and documents as might be needed to clarify the questions put to it. Annex B-l contains 44 maps dated from 1630 to 1887 and published in France, England, the Netherlands, Italy, Germany, Austria and North America. Annex B-2 contains a further six maps published in France and Germany. As indicated and explained to the Court, these maps show the southern frontier of Morocco as running along certain capes and rivers of the Bled Siba, but never [p 153]
as extending beyond the Wad Dra'a; and this agrees with the written testimony of the period.
Map V of Annex B-2, taken from Die Deutsche Handelsexpedition 1886, by Dr. R. Jannasch, Berlin, 1887, clearly shows the old frontiers of Morocco (alte Grenze von Marokko), established on the Atlas mountains, and the frontiers of the territories in a situation of dependence upon the Sultan (Grenze der jenigen Länder, welche zum Sultan von Marokko im Abhängigkeits-Verhältniss stehen, that is to say the Bled Siba), which follow the course of the Wad Dra'a.
The limits of the Souss country can be seen on map XI (Ann. B-2), taken from R. Montagne, Les Berberes et le Makhzen dans le sud du Maroc. They extend from the High Atlas to the Wad Dra'a FN1.
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FN1 Trout reproduces the maps prepared by Renou in 1844 and by the French Ministry of War in 1848 (op. cit., pp. 478-481 ). Renou's map shows the limits of the State of Sidi Hisham. There are also references to the State of Sidi Hisham and the region of the "independent Moors" in maps XXIII-XXIX, XXXIV, and XLII (1830-1887) of Annex B-l of information and documents supplied by the Spanish Government.
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The importance of the mapsFN2 as evidence of inter-State territorial boundaries is obvious and appears decisive where the testimony is consistent. In the present case, the maps clearly show that the international community considered the Wad Dra'a as the southern limit of Morocco. The knowledge and objectivity of the cartographers of Africa are not in doubt. It is true that there was in the interior of Africa a terra incognita, but the situation of the territories near the coasts was well known. These regions were the object of considerable commercial and political interests and information was constantly being supplied by navigators, merchants and travellers.
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FN2 The only map supplied by Morocco (placed first in its book of documents) may have proved misleading, since it does not indicate the Moroccan frontier, but a boundary between the French and Spanish zones running through Cabo Blanco, which is also found in another edition of the same map supplied by the Spanish Government and in a map accompanying the report of the French authorities of Senegal in 1891 and delimiting the "French sphere of influence" and the "Spanish protectorate" (supplementary documents submitted by the Spanish Government, Ann. B-2, maps I and IX).
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6. Historic Ties with Morocco
Morocco's assertion of rights of sovereignty over Western Sahara called for the examination, as a question of fact, of the way in which those rights had been acquired and whether they still subsisted at the time of colonization.
It was thus for Morocco as the claimant to prove to the satisfaction of the Court when and how the Moroccan Empire had acquired Western Sahara. Was it by conquest? Was there a true debellatio of the tribes of the Sahara? Was it by cession? If so, by what treaties? Was it by occupation? Was the Sahara terra nullius?
For the purpose of determining whether Western Sahara was ever incorporated in the Sherifian Empire, it is necessary to enquire how Morocco took possession of it. Such possession must have been effective and neither [p 154] transitory nor temporary. There must be more than a vague animus possidendi, and "right of proximity" or the fact of belonging, like Morocco, to the Dar al-Islam.
On the hypothesis that one of the incursions of the Moroccans into Saharan territory was considered as a taking of possession of a territory belonging to no-one or as a conquest, it was necessary to consider whether the withdrawal of the Moroccan forces had had the legal effect of an abandonment. According to the most reasonable point of view, abandonment occurs when the invading State has not established in the territory an administration rendering the continuity of its occupation effective and ensuring the incorporation of the territory into the invader's polity. It is also necessary to prove such incorporation ab extra by showing that the State acquiring the territory was responsible vis-à-vis other States for the acts of the territory's authorities and inhabitants FN1.
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FN1 According to Bugeaud's axiom, "In Africa, an expedition not followed by occupation leaves a trace no more lasting than the wake of a vessel on the boundless ocean" (Bernard, Le Maroc, Paris, 1915, p. 350).
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Colonization by Spain occurred during the critical period without Moroccan opposition, whether on the part of the army or on that of the Government. This could explain why Morocco told the Court that "the fact of history, where Morocco is concerned, is none other than the centuries-old existence of the Moroccan State exercising immemorial possession of Western Sahara" and added that "Morocco may rely on the centuries-old and historically proven exercise of sovereignty in Western Sahara" and that "at the time of Spanish colonization Morocco was considered to be the immemorial possessor by the international community" (hearing of 3 July).
Was Morocco in possession of Western Sahara at the time of colonization by Spain? The allegation of immemorial possession does not make proof of possession unnecessary. Immemorial possession sive indefinita manifests itself as a present and evident fact the commencement of which is unknown. It requires the fulfilment of two conditions. One condition is positive: proof of a peaceful possessio during the critical period, exercised for so long that there is no longer any memory of a time when it did not exist. The other is negative: the uninterrupted — that is to say, neither sporadic nor transitory — character of such possession.
Morocco has not attempted to prove its possession of Western Sahara at the time of colonization by Spain. It has sought to prove its immemorial possession by a series of isolated facts which, it has contended, established continuous possession by the Sultan of Morocco as sovereign. It is therefore necessary to examine these facts and see whether they satisfy the necessary conditions for the formation of a reasonable conviction as to the proof of immemorial possession FN2.
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FN2 The Moroccan allegations prompted a doubt which the hearings failed to dissipate: what value can be attributed to identical facts and arguments used in pursuit of different objectives: the successive claims to Greater Morocco, Mauritania, Western Sahara, the northern portion of Western Sahara?
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[p 155]
(a) Unbroken Relations between Morocco and the Sahara
The statements submitted to the Court by Morocco mention, as relevant historic ties, immemorial relations existing between Morocco and the Sahara, as well as a series of special facts cited as proofs of Morocco's authority over Western Sahara.
The following quotation in the second part of the written statement of Morocco is italicized to indicate the importance attached to it: "this basic fact of Moroccan history, the periodic conquest of inner Morocco by outer Morocco ... In most cases a dynasty that has come into being beyond the Atlas has conquered Atlantic Morocco."
The passage quoted is used equivocally; it seems to have been interpreted as meaning that there are two Moroccos, inner Morocco and outer Morocco, and that outer Morocco is the Sahara. The sentence in the Moroccan statement is a word-for-word quotation from Histoire du Maroc by Henri Terrasse (Casablanca, 1949, I, p. 13). We must therefore ascertain what Morocco meant for Terrasse. In the hypsometric map of Morocco included in his book (pp. 8-9), the southern boundary of Morocco is the Dra'a. In his view, Morocco has seaward fronts (pp. 4-6) and landward fronts and also access points (pp. 6-10); in his study of them, he refers to the importance of the pre-Saharan front of Morocco, that is to say the place that:
"... these semi-desert areas with their scattering of oases, have occupied in the life of the country. Their role was twofold: the oases of the valleys, situated at intevals from Tafilelt to Wad Dra'a by Charis, the Tadgha and the Dad!!!es, were an invasion corridor and, consequently, one of the gateways to Morocco ...
The Moroccan oases, which were a hallway and a secondary gateway to Morocco, were also the bridges across the desert. The caravans that crossed Western Sahara terminated at the Dra'a or at Tafilelt." (P. 7.)
"These caravan links with the world of the Sahara and Black Africa, even when they were continuous, remained tenuous and fragile ...
Morocco, as a whole, is therefore an isolated country. On the outer side it has only three access points of different value...; lastly a long path of oases, which hardly gives direct means of access except at the extreme south of the country, but which is one of the terminal points of the Sahara and the Soudan." (P. 10.)
In the "overall view" with which Terrasse concludes his work, outer Morocco is considered to be constituted by "eastern Morocco" and the "oasis region" (ibid., II, pp. 460-464). Of the oasis region, Terrasse says:
"The two western provinces of this pre-Saharan zone, the Souss and the lower Dra'a, often had a separate existence. Since the Almohads, the Souss was always under the authority of the Makhzen. But from that narrow enclave, in the Bled Siba, it was rare for the Sultans to be able to extend their ascendancy over the mountains and the oases." (P. 463.) [p 156]
It therefore seems plain that, according to Terrasse (whose authority is tacitly recognized by Morocco), outer Morocco is the pre-Saharan zone, the limit of which is the Dra'a FN1 and that Western Sahara is therefore outside the frontiers of Morocco.
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FN1 The same limit — following the course of the Wad Dra'a — is shown on the maps of Le Maroc au temps des Idrissides (I, p. III), Le Maroc entre les Idrissides el les Almoravides (I, p. 167), Le peuplement du Maroc au d!!!ebut du XIe si!!!ecle(I, p. 195), Le Maroc sous les Almoravides (I, pp. 233-234), Le Maroc des Almohades (1, pp. 264-265), Le Maroc sous les Merinides (II, pp. 24-25), Les entreprises portugaises au Maroc(II, p. 133), Le Maroc sous les Zenatta (II, pp. 152-153), Le Maroc sous les Saadiens (II, pp. 168-169), Le Maroc sous les Alaouties (II, pp. 248-249).
It must be noted also that the existence of dynasties of Saharan origin and the conquests of Morocco by the Saharans (Almoravids, Ma ul-'Aineen, al-Hiba) do not signify the annexation of Morocco to the Sahara; they were exploits with no future significance.
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(b) Almoravid Epoch
In the second part of its written statement the Moroccan Government devotes several pages to showing the importance of the Almoravids in the development of Morocco; its argument is based on citations from the work of Terrasse. The astonishing achievement of the "veiled Sanhaja", and the conquest of Morocco (and also of Muslim Spain) by the Saharans, have been considered decisive, perhaps rightly, in the history of Morocco (Terrasse, op. cit.. I, p. 256). But the union and the relationship between Sahara and Morocco were of very short duration. Other passages of Terrasse's book explain how they came to an end. Abou Bekr, who had become the sole chief of the Almoravid movement, wished to settle disputes that had broken out in the Sahara and left the command of Almoravid Morocco to his cousin, Yussif Ibn-Tashfeen "whom he married to Zeinab, who had been previously repudiated in accordance with the law. On Abou Bekr's return, Yussif was to return to him his command and his wife" (ibid., I, p. 222).
"Yussif Ibn-Tashfeen had consolidated his power and established the Almoravid movement in Morocco. The enterprise of the veiled Sanhaja, originally Saharan, became more and more Moroccan. The return of Abou Bekr was to be the occasion for a decisive gesture.
Abou Bekr re-established peace in the desert. Thinking that he had assured the Almoravid movement at its very basis, he returned to Morocco to resume his conquests there. Yussif Ibn-Tashfeen, on the advice of Zeinab, decided not to return the supreme command to Abou Bekr, but also to avoid an armed struggle. He presented himself before Abou Bekr with rich presents and a strong escort. When the two chiefs met each other, Abou Bekr expressed surprise at the gifts: 'they are to make sure you lack nothing in the desert', Yussif Ibn-Tashfeen replied. Abou Bekr understood and returned to the land of the Lemtouna. He had remained a Saharan; Yussif Ibn-Tashfeen had become a Moroccan ...
The Almoravid movement in Morocco was practically cut off from [p 157] the desert; there was only one other course open to it: to complete the conquest of Morocco." (P. 223.)
This quotation, by means of a symbolic anecdote, serves to indicate the fresh schism which occurred between the two worlds: the Sahara was forgotten by the Almoravids, who had become Moroccans. Thus Morocco, under the Almoravids, had the Wad Dra'a as its southern frontier (vide map, Terrasse, I, pp. 232-233).
(c) Conquest of Timbuktu
The incursions or expeditions of the Sultans of Morocco had a restricted purpose. They were carried out for economic reasons which are well known. Their objectives were the Teghazza saltmines, gum arabic, gold and black slaves from the Soudan. Sultan Moulay Ahmad al-Mansour, it is said, succeeded in establishing his authority in the Sahara after his conquest of Timbuktu. His dazzlingly victorious expedition resounded throughout the Sahara, and thereafter Morocco was able to maintain its influence on the Soudan. That influence lasted from 1591 to 1612. Later, Sultan Moulay Ismail took a new interest in the Soudan, in particular in order to acquire black slaves, and he succeeded in establishing his influence there. On his death in 1727, however, tribute from Timbuktu ceased to be paid.
The Moroccan expeditions to the Soudan had an ephemeral influence in the Sahara. The Sultans had no interest in these desert areas except in so far as they were on the route to the Soudan. The Saharan tribes were in no position to resist, but they regained full freedom once the Moroccan forces had withdrawn. It should also be noted that the Moroccan expeditions followed the regular caravan route, in other words that from Tindouf to Senegal, thus by-passing present-day Western Sahara, the route through which was more roundabout and inhospitable.
Notwithstanding the very limited extent of these conquests, they were to be long remembered. They explain the replies given to the European Powers, by the Moroccan authorities who claimed that the Sultan's domains reached as far as the Senegal River, and included Timbuktu and the surrounding region, on the pretext that the Sultans had been sovereigns of these regions and still regarded themselves as such (Trout, op. cit., p. 137; citing Mi!!!ege, op. cit.. III, p. 305). Those claims were subsequently revived in the concept of Greater Morocco advocated by El Fassi.
(d) Attempts to Subjugate the Souss
Sultan Moulay Hassan ("the Bloody") succeeded in establishing Sherifian authority, which had been seriously weakened under Muhammad XVII (1859-1873). In the region of the Souss, the marabout State of Tazeroualt and the principality of the Beyrouk family did not acknowledge their dependence on the Makhzen. The enormous import and export dues levied at the port of Mogador, which had the monopoly of commerce in the region, encouraged the sheikhs of the Souss to enter into relations with Europeans for the purpose of establishing ports along their coasts and thus acquiring duty-free [p 158] commercial outlets. In 1879 Beyrouk signed for Mackenzie a concession charter conferring on the North-West African Company the monopoly of sea-borne trade in the territories of the Wad Noun. Si Hussain, the chief of the Berber Kingdom of the Tazeroualt, had extensive negotiations with French traders for the establishment of another port. There were also Spanish, German and Belgian projects with the same objectives and involving the same characters.
All this implied a serious threat to the finances and authority of the Sultan, who decided, apparently on the advice of Sir John Drummond Hay, to take military action. In May 1882 Moulay Hassan entered the plain of the Souss with an army variously estimated at between 40, 000 and 70, 000 strong. Supply difficulties prevented him from penetrating as far as Qolimeen. There was practically no fighting. The notables of all the tribes of the region presented themselves before the Sultan and promised to oppose the machinations of the foreigners. At the end of July the army withdrew (Miege, op. cit., III, p. 351).
The results of this first campaign were not decisive. In 1884 the caids appointed by the Sultan were driven out by a tribal insurrection. In 1886 Moulay Hassan decided to take the field once more with an army of 40, 000 men. The title of caid was conferred on a considerable number of Si Hussain's sheikhs throughout the plain of the Souss. Having made up his mind to occupy the Souss as thoroughly as possible, the Sultan established a series of military posts at Tiznit, Kasbah Ba Amrane, Assaka and Qolimeen (Miege, op. cit.. III, pp. 352-354).
The two expeditions of Moulay Hassan FN1 resulted in the loss of Tazeroualt's independence and put an end to the influence of the Beyrouk family, but the Sultan's authority, still nominal rather than effective, did not extend to the tribes beyond the Dra'a (Trout, op. cit., pp. 153-155 and map 16).
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FN1Which did not go beyond Wad Noun (hearing of 2 July).
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The decline in the Sultan's power after the Treaty of 1884 accelerated during the reign of Abdul 'Azeez IV(1894-1908), whose European tastes and fondness for increasing taxes made him unpopular and led to rebellions throughout his Empire. In the Bled Siba in general and the Souss in particular, anarchy reigned and acts of pillage became increasingly frequent.
Notwithstanding the Sultan's support, Ma ul-'Aineen encountered opposition not only from the Tekna but also from the 'Ait Moussa of Qolimeen (Trout, op. cit., p. 156). The independence of the Sanhaja, the Regheibat, the Beraber and the Touareg became more pronounced and was the cause of fresh conflicts between Saharan tribes (F. de la Chapelle "Esquisse d'une histoire du Sahara occidental", Hesperis, XI, fascs. 1-2, 1930, p. 90).
By the time Spanish colonization of the Sakiet El Hamra could have begun (Treaty of 27 November 1912), the Sultan's authority over the area had [p 159] vanished FN1 This was the period of the struggle waged by the sons of Ma ul-'Aineen against the Moroccans, whom they regarded as traitors to the Muslim cause.
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FN1 Even the trading station at Cape Juby, which the British Government had sold to the Sultan in 1895, "had been abandoned by the Sultan" in 1911 (information and documents supplied by the Spanish Government, Ann. 19, App. 11).
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There would appear to be good reason for the observation:
"Thus never, except in the Soudan at the time of al-Mansour and the Touat-Gourara during the reigns of a few particularly active sultans, was Moroccan sovereignty exercised over the Sahara "(Husson, op. cit.; italics in original).
(e) Ma ul-'Aineen
The spokesmen for the Kingdom of Morocco attached extraordinary importance to the figure of Ma ul-'Aineen, convinced that his life and exploits provide cogent support for the Moroccan thesis of the integration of Western Sahara with the Moroccan EmpireFN2.
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FN2 In La Republique islamique de Mauritanie et Le Royaume du Maroc, p. 10, Ma ul-'Aineen is mentioned in the historical argument concerning Morocco's ownership of Mauritania.
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In the General Assembly, Mr. Laraki recalled the conduct of Ma ul-'Aineen, who had struggled tenaciously against French penetration, and asked "Is there a more striking historical example of the determination of the Moroccan people to preserve their national unity and territorial integrity?" (A/PV.2249.) An account of Ma ul-'Aineen's campaigns against colonialism in Western Sahara and in the service of the Sultan of Morocco was given in the second part of Morocco's written statement.
Morocco's interest in Ma ul-'Aineen is easy to explain. Ma ul-'Aineen, who was born in the Sahara, founded Smara in the territory of the Sakiet El Hamra. He had close and friendly relations with the Sultan of Morocco for many years, and relations with Morocco until the end of his days. Nevertheless, the history of the life of Ma ul-'Aineen and his sons is in glaring contradiction with the view that Ma ul-'Aineen became a subject of the Sultan and that he made the Sakiet El Hamra an integral part of Morocco FN3.
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FN3 Reference should be made to the information on the life of Ma ul-'Aineen given by Mr. Ould Maouloud and by Mr. Yedali Ould Cheikh (hearing of 9 July).
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Ma ul-'Aineen might have been another Yussif Ibn-Tashfeen, the Almoravid hero. Yussif, too, was a native of the Sahara. Like Yussif, Ma ul-'Aineen was both a religious personality and a warrior of enormous prestige exercising a dominating influence over several Saharan tribes. But the circumstances were different from those of the Almoravid epoch. The purpose of his whole life was to be to combat the French penetration which was in ever-increasing evidence in the Sahara. He seems to have been impelled to do so not only by the desire to wage a holy war against the unbeliever, but also because of the need to survive; for the sources of the trade in black slaves, an essential factor in his economy, were threatened, and the [p 160] French advance was progressively and inexorably cutting his trade routes with the south.
Ma ul-'Aineen proceeded to seek allies in all quarters. He asked the Germans and the Spaniards for assistance, and above all he sought alliance with Morocco, which was his neighbour and the closest Muslim Power, and which also felt threatened by France. Morocco, for its part, saw Ma ul-'Aineen as an ally in the Sahara who could be useful in helping to check the progress of the French armies, which were encircling it from the south. It was a natural alliance, but it soon became a difficult one as a result of the growing influence of France on the Moroccan Government.
The power of Ma ul-'Aineen in the Sahara was, however, limited. His policy, which relied upon the authority of the Sultan, and appeals to the tribes to unite around the Sultan in order to resist the French, ran up against the mistrust felt for the Moroccans by the chiefs of the Saharan tribes, as well as against the spirit of independence in the Tekna tribes and the enmity of the powerful Sheikh Sidia. In point of fact, Ma ul-'Aineen never lost his independence or political initiative. He was not a subject of the Sultan, and the Moroccan authorities did not have the slightest influence over the territory he dominated FN1.
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FN1 For Ma ul-'Aineen's religious and political independence of the Sultan, see his statements at the time of his first pilgrimage to Mecca (hearing of 9 July).
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The letters exchanged between the Sultan and Ma ul-'Aineen, when their alliance was at its zenith, contain numerous expressions of friendship and loyalty, drafted in the flowery style of the period. Ma ul-'Aineen appears in these letters as the envoy of the Sultan sent to unite the Muslims of the Sahara against the invading unbelievers.
But the relations between Ma ul-'Aineen and the Sultans deteriorated steadily as relations between Morocco and France improved. For a time, Morocco's policy was to give clandestine help to Ma ul-'Aineen's resistance by promoting the smuggling of arms to the Saharans through the Moroccan enclave at Cape Juby. France soon lost patience with Morocco's double game and ultimately insisted upon the agreement of 4 March 1910, by Article 10 of which Morocco undertook to prevent all assistance to Ma ul-'Aineen. The immediate consequence of Morocco's new policy was a most vigorous reaction by Ma ul-'Aineen against Morocco. He proclaimed himself Sultan and marched against Fez, but he was halted by General Moinier's army, and defeated at Tadla. After his death, his son al-Hiba proclaimed himself Sultan in 1912 and, invading Morocco, succeeded in capturing Marrakesh; he was eventually defeated by the army of General Mangin. French troops thus prevented the conquest of Morocco by a Saharan army.
The independence of the successors of Ma ul-'Aineen and of the other groups of Saharan tribes that were not among their followers lasted until 1934. The total "pacification" of the Sahara, like that of the pre-Saharan region, was the result of the consolidation of the "colonial fact".
There is no evidence to establish that Ma ul-'Aineen took possession of the [p 161] Sakiet El Hamra or any other Saharan territory in the name of the Sultan of Morocco. There is evidence that the Saharan tribes controlled by Ma ul-'Aineen did not regard themselves as Moroccan subjects and were not so regarded. Their acceptance of the religious authority of the Sultan of Morocco was also precarious: it was invoked while it could be useful to promote the struggle against France. Once all hope had been lost of assistance from Morocco, there was a disavowal of the Sultan's authority that could not have been more complete: Ma ul-'Aineen, and then his son al-Hiba, proclaimed themselves Sultan of the Believers and invaded Morocco.
(f) The Anglo-Moroccan Agreement of 13 March 1895
As already mentioned, there is apparently incontrovertible evidence that the extreme southerly frontier of Morocco was nowhere further than the Wad Dra'a at the furthest. This established post must be borne in mind when considering the Anglo-Moroccan Agreement of 1895 (Lazrak, op. cit., p. 172 et seq.).
The 1895 agreement brought to an end the difficulties that had arisen between Morocco and Great Britain over Mackenzie's settlement at Cape Juby. In clause I of the agreement, it is said that, if the Moroccan Government buys the said settlement from the North-West African Company:
"... no one will have any claim to the lands that are between Wad Draa and Cape Bojador, and which are called Terfaya above named and all the lands behind it, because all this belongs to the territory of Morocco" (Lazrak, op. cit., p. 406).
Clause II adds:
"It is agreed that this Government shall give its word to the English Government that they will not give any part of the above-named lands to any one whatsoever without the concurrence of the English Government." (Ibid.)
These texts are considered to constitute recognition that the sovereignty of Morocco embraced not only the region between the Dra'a and Cape Bojador, but also the whole of Western Sahara (ibid., p. 173).
With regard to the weight to be attached to the agreement, the following observations must be made concerning its limited purpose and the attitude of Great Britain and France on the question FN1.
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FN1 On the polemic concerning the translation of the Arabic text, see hearings of 10 and 25 July.
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The Mackenzie trading-station had been the source of serious incidents and diplomatic difficulties between Morocco and Great Britain. The agreement was reached at a time when, given its unfavourable economic position, it was in the interest of the North-West African Company to sell, and also at a time when British diplomacy was in an awkward situation. How could Britain continue to play the role of protector of Morocco against the [p 162] cupidity of the other Powers while at the same time continuing to occupy Cape Juby against the will of the Moroccan GovernmentFN1 ?
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FN1 A point already made by Sir John Drummond Hay to the British Government (Mi!!!ege, op. cit., III, pp. 302-303).
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The clause concerning the extent of Moroccan territory can be explained as an apparent favour to the Moroccan GovernmentFN2, but in exchange there was reserved to Great Britain a certain influence on the same coast, which could, if necessary, be set up against the other Powers.
The international scope of the statement on the extent of Morocco's sovereignty was strictly limited, since, as Delcasse observed, the agreement was res inter alios acta (Trout, op. cit., p. 166), and thus ineffective vis-à-vis the other Powers.
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FN2 The reason for the reference to Cabo Bojador lay apparently in the enmity existing at that time between the Sultan and Beyrouk, who had proclaimed himself to be independent and the master of the principality of Wad Noun, which, according to him, extended as far as the southern extremity of Cabo Bojador.
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The statement was also in conflict with the previous conduct of the British Government. Mackenzie had in fact established himself at Cape Juby after having been informed that Wad Noun was independent of Morocco and that the territory was under the authority of Sheikh Beyrouk. It was Beyrouk who, in June 1879, granted Mackenzie a small piece of land to establish his trading-station.
It is interesting to read the correspondence on the Cape Juby settlement preserved in the British archives. The Moroccan authorities affirmed the rights of the Sultan over Cape Juby on the grounds that the Muslim tribes that inhabited the territory to the south of the Wad Dra'a as far as the Soudan and at the extreme south of the Niger had no other sovereign, that Moulay Ismail had imposed his authority in the Sahara by force of arms, and that the said tribes, although rebels, mentioned the Sultan in their prayers. The British authorities, while affirming that their Government wished to uphold the integrity of the Sultan's possessions, retorted that the furthest boundary of Morocco's territory had always been at the Wad Noun, that Moroccan control in the Souss itself was very feeble, and that it was absurd to confuse religious authority with political authority. As proof of the latter argument, they pointed out that the name of the Sultan of Turkey was mentioned in prayer by Muslims throughout Asia and Africa, who were not and never could be considered Turkish subjects (information and documents supplied by the Spanish Government, Ann. 20, Apps. 18-29).
It is also important to note the restricted validity that the Powers concerned attributed to the 1895 agreement. The French Government endeavoured to persuade the Moorish Government that the agreement might be against Morocco's own interests and that clause II should be interpreted as referring to Cape Juby itself and not to the rest of the coastline and hinterland (ibid., Ann. 2, App. 35). At the time of the preparatory negotiations for the secret treaty between Spain and France of 1904, France endeavoured to ascertain the attitude of Great Britain. At the beginning of 1904, Ambassador Paul [p 163] Cambon, writing to Minister Delcasse following protests in the Spanish press, stated that they were:
"... the more specious in that Morocco's rule between the Wad Dra'a FN1 and Cabo Bojador has never been admitted by any Power and it is solely in order to get compensation for its nationals of Cape Juby that the British Government recognized the sovereignty of the Makhzen on this coast" (Husson, op. cit., p. 36) FN2.
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FN1 In the arrangement of 7 June 1905 regarding the boundary between southern Algeria and French West Africa, it is stated that Cape Noun constitutes the frontier of Morocco. Cape Noun is at the mouth of the Dra'a (Cape Dra'a) (Trout, op. cit.. pp. 182-188).
FN2 It is also said that "Spain, established at the Río de Oro to the south of Cape Bojador, has always considered the coast up to Cape Juby as belonging to it, and British maps ascribe it to "Spain".
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Great Britain did not raise any objection to the treaty between France and Spain of 27 November 1912, under which the Sakiet El Hamra region in the south of Morocco (as far as parallel 27° 40' N latitude) is attributed to Spain; the 1912 treaty incorporates, in their entirety, Articles 5 and 6 of the 1904 treaty.
(g) Letters Annexed to the Franco-German Agreement of 4 November 1911
In these letters it is said "... it being understood that Morocco comprises all that part of Northern Africa which is situated between Algeria, French West Africa, and the Spanish Colony of Río de Oro ..." (Lazrak, op. cit., p. 416). This phrase has been regarded as an acknowledgment by France and Germany that the Sakiet El Hamra region, and even the whole of Mauritania, lay within the boundaries of Morocco (ibid., p. 177).
The true meaning of those letters becomes apparent when one reads them. The intention of the German Government was to state that it would place no obstacle in the way "in the event of the French Government deeming it necessary to assume a protectorate over Morocco". It states that it has pleasure in adding "that Germany will not intervene in any special agreements which France and Spain may think fit to conclude with each other on the subject of Morocco"; after this sentence comes the passage quoted: "it being understood ..." The understanding about what was comprised by "Morocco" had no purpose other than that of specifying the regions of Africa in relation to which Germany waived any interest of its own in favour of France, and which France could place under its protectorate or colonize — unless it entered into agreements about them with Spain; the entire Sahara was included in the area, in other words the Sakiet El Hamra and Mauritania.
It should also be noted that in relations between France and Spain, the Sakiet El Hamra is often regarded as a part of the Río de Oro. Thus, in a letter dated 2 April 1913 from Mr. Pichon, Minister for Foreign Affairs, to the Minister of Colonies, it is said that by virtue of the Franco-Spanish [p 164] Convention of 3 October 1904 and that of 27 November 1912 the region of Smara is part of the colony of the Río de Oro (Trout, op. cit., p. 212) FN1.
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FN1 On the Moroccan administrative map of 1934, the Rio de Oro begins at the Wad Dra'a (Trout, op. cit.. plate 31, pp. 532-533). Cf. the residential decree of 11 January 1935, Art. 2 (a) (documents supplied by Morocco, Ann. 89 (B)).
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II. Legal Ties of the Territory with the Mauritanian Entity
The question of legal ties between the Mauritanian entity and the territory of Western Sahara raises "very difficult problems", as Professor Salmon, one of the spokesmen for the Islamic Republic of Mauritania, acknowledged (hearing of 10 July). That is certainly true if the intention is to maintain that Mauritania has ties of sovereignty with the territory by reason of the ties that the Mauritanian entity had with that territory at the time of colonization by Spain.
First of all, the Court had to satisfy itself of the very existence of the subject to which ties or rights of sovereignty were attributed. At the time of colonization by Spain, was there a Mauritanian entity? Did the Mauritanian entity then have legal personality, so as to be capable of having rights? These are questions to which, despite the bravest attempts, no convincing affirmative answer can be found.
On the basis of the statements made and the information supplied by the parties concerned, it would seem to be an undisputed fact that at the time of colonization by Spain there were in the Sahara a large number of tribes of different ethnic origin — nomadic tribes, semi-nomadic tribes, settled or semi-settled tribes, which were grouped into short-lived confederations and leagues (the Emirate of the Adrar was a temporary exception) and which were engaged in continual struggles among themselves — with the resulting razzias, wars, robberies and feuds. At the time of colonization by Spain it is hard to detect any external or internal signs of an entity. Each tribe, taking no account of the others, concluded treaties, agreements and contracts and made acts of submission or protectorate with the European Powers or with Morocco. The relationships of the tribes between themselves were similar to those of independent powers. It was this or that individual tribe which entered into commitments with another, and not the entity. There is no glimpse of the entity playing any role or serving any purpose; the entity acquired no rights, possessed no rights, had no legal or non-legal responsibilities or duties.
The concept — and even the sociological reality — of the Mauritanian entity came into being after, and as a consequence of, the "colonial fact". In the resolution adopted on 28 August 1960 by the Political Committee of the Arab League at its meeting at Chtaura (Lebanon), Mauritania is considered "an artificial entity" ( White Paper on Mauritania, Rabat, 1960, p. 129). It did not exist before the French colonization. That is why the Government of the Islamic Republic of Mauritania stressed that: "In the 20th century, [p 165] Mauritania, just like Morocco, underwent profound changes as a result of what has been called the 'French colonial fact' " (La Republique islamique de Mauritanie et le Royaume du Maroc, Paris, p. 29).
The population of the territory which it is sought to call the Bilad Shinguitti was, at the time of the French colonization, an amorphous cluster composed of tribes and sub-tribes — moving and changing, and whose ultimate configuration it was impossible to predict. How then is it possible to apply the term entity to what, by the merger and separation of other similar human groups, took shape only as a result of the administrative organization and the pacification imposed by France?
The idea of the Shinguitti entity is attractive, like a beautiful patriotic myth that inspires respect; but a myth can have no legal ties with any territory.
Considerations on the question of nomadism, however interesting they may be from the ethnological point of view and even de lege ferenda, cannot make up for the lack of unity of the tribes and the non-existence of any entity capable of legal assessment.
The bold proposition of a co-sovereignty of tribes over particular territories does not seem to stand up. Disparate or even mutually hostile tribes cannot change in a flash into a confederation or a federation. Nor does it really seem possible to conceive of a sovereignty with reference to tribes that are in continual movement on a series of intersecting routes.
The continuity of passage of tribes over the same route might, as a continuous usus by consent, give rise to a servitude (such as those recognized by international law), but it is not of such a nature as to create a right of sovereignty over a territory — particularly since, as the Court was informed, these routes vary according to climatic conditions and the relationships between tribes and neighbouring States.
These movements along established routes, crossing the frontiers of present-day States, were effected by consent, and permitted in accordance with good neighbourly relations, but not imposed by law; any time, they could be suspended for an important reason, such as a war.
To endeavour to deduce, from the existence of ethnic, cultural and geographical analogies, the existence of legal ties over a territory is like leaping into an abyss: the spokesmen for Mauritania have not been able to bridge the gap FN1.
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FN1 "He [the representative of Mauritania] wished to stress the human, geographical, ethnic and cultural aspects, for the legal aspect of the problem was far from being the essential one. The legal aspect could, in any case, be properly appreciated only in the light of a number of fundamental facts ranging from the attachment of the people to the soil and a continuous life in common to the same concerns and way of life." (A/C.4/SR.2117.)
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Lastly, it must be noted that, from the date of the colonization of Mauritania by France and in accordance with the law in force at the time, France alone would have had the status required to establish legal ties between the present territory of Mauritania and the territory of Western Sahara. [p 166]
PART III
Even on the hypothesis of the Court concluding that it had no competence to reply to a quaestio facti, such as that of the existence of legal ties at the time of colonization by Spain, it would not have followed that the Court had no competence to reply to the request for an advisory opinion.
1. Legal Validity of Resolution 3292 (XXIX)
It is important to interpret General Assembly resolution 3292 (XXIX) most carefully — which is not an easy task. The resolution is the result of a compromise. The representative of the Ivory Coast, who supported the resolution, did not conceal the fact that it is "an unusual resolution" and that "it might perhaps not be entirely satisfactory" (A/C.4/SR.2131). The fact was that the first Moroccan draft, which amounted to a request to the Court to give an opinion on its alleged titles of sovereignty (legal ties) over Western Sahara, met with vigorous opposition. Members of the African Group and other members of the Fourth Committee, were afraid that a possible recognition of those titles by the Court might be considered as having sufficient validity to justify the immediate integration of Western Sahara with the Kingdom of Morocco — in disregard of the rights of the population of the Sahara. Consequently, so as to avoid such a conclusion, at the very beginning of the resolution the General Assembly recalls its resolution 1514 (XV) containing the declaration on the Granting of Independence to Colonial Countries and Peoples. Moreover, there is another reference to the same resolution in operative paragraph 3, which deals with the policy for decolonization to be followed by the General Assembly. Moreover, there is a careful recall of the eight resolutions on decolonization and the independence of Western Sahara. Lastly, the right of the population of Western Sahara to self-determination is reaffirmed, in accordance with resolution 1514 (XV) FN1.
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FN1 The representative of the Ivory Coast explained that the new elements introduced into the draft of resolution 3292 (XXIX) as compared with the initial text (that of Morocco) were intended to enable the General Assembly "to be consistent. Those elements were, firstly, the reaffirmation, in the preamble, of the right to self-determination of the people of Spanish Sahara" (A/C.4/SR.2131).
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In the text of resolution 3292 (XXIX) two contradictory positions can be seen side by side — or at least apparently. What is to be done? It did not seem to me that the right approach was to adopt a restrictive or negative interpretation that would lead to the conclusion that the request for an advisory opinion was without object. The Court should rather do its best to assist the General Assembly in the task of decolonization. The Court was, in my view, in a position to arrive at a positive interpretation, while taking account of the spirit of compromise that led to the adoption of the resolution, as well as of its purpose, and remaining in harmony with the text of the question put to the Court.[p 167]
The reason for the request for an advisory opinion is, we are told, that it was noted that "during the discussion [in the Assembly] a legal controversy arose". It should be noted that the legal controversy arose during the discussion, particularly in the Fourth Committee. That clarification is most valuable. It tends to rule out the possibility that the sole object of the question was to ascertain whether ties existed, for that would have been a question of fact and not of legal controversy. The controversy, it is added, arose during the discussion, and the question of the existence of ties was not even touched upon during the discussion in the Fourth Committee. The discussion centred on the clash between two opposing positions — the claim to the territory on the basis of ties said to be in existence at the time of colonization by Spain, and the principle of self-determination.
General Assembly resolution 3292 (XXIX) then justifies the request for an advisory opinion by saying that, in the light of the advisory opinion to be given, the General Assembly will decide on the policy to be followed in order to accelerate the decolonization process in the territory, in accordance with resolution 1514 (XV), in the best possible conditions. On the hypothesis that the question asked concerns the existence of ties, an advisory opinion by the Court stating that Morocco or the Mauritanian entity did have ties with the territory at the time of colonization by Spain would still leave the General Assembly in the same difficulty, that of deciding which of the two arguments — integration or self-determination — it should favour. This would retard the process of decolonization of the territory rather than accelerate it.
The origin of the real difficulty to be removed and of the doubts to be cleared up lies in the weight which Morocco impliedly gives to its alleged legal ties with the territory. Morocco called in question all the resolutions concerning the self-determination of the Sahara when its representative in the General Assembly said:
"All the resolutions and recommendations which have been voted [by the General Assembly in the previous ten years] concern the main question: that of knowing whether the two [Saharan] provinces of Sakiet El Hamra and Río de Oro belong to a certain sovereignty..." (A/PV.2249.)
Does the existence, supposing it proved, of alleged ties of Morocco (or of Mauritania) with the territory at the time of colonization by Spain render the resolutions on the self-determination and the independence of Western Sahara ineffective? That was the underlying question during the General Assembly's debates and there is reason to suppose that it was not unconnected with the request to the Court for an advisory opinion.
These considerations may be of assistance in finding the true meaning of the words "What were the ties?" They may be interpreted as meaning: what was the quality of those ties, what was their strength and their potential validity ? To interpret them thus would not be to stretch the literal meaning of the words, and such an interpretation fits most closely with the purpose of the resolution.[p 168]
To ask what were the ties or rights at a given time is to go into the question of the consequences that they might have in the future. A right exists or has present validity according to the powers which it confers for future exercise. The value of a right lies in the power it gives, its potential content, in space and time, its capacity for continued existence or resistance to new events, changes in the law and possible reasons for its extinction.
2. Question of Intertemporal Law
To perform the task entrusted to it by the General Assembly, namely that of casting light on the true difficulty that arose during the discussion, the Court ought, in my view, to have made clear what could have been the potential strength of the ties referred to at the time of the colonization of the territory by Spain. Did they have the validity of acquired rights, unaltered by the passage of time, or of contingent rights (A/C.4/SR.2124) which could still be exercised, or were they subject to the rules of intertemporal law? The question is not a new one; it is a question of the validity of historic rights FN1.
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FN1 One of the counsel for Morocco seems to have considered this point: "What makes this dispute [between Morocco and Spain] actual is that those past legal facts [the alleged legal ties] are titles for many States — titles to sovereignty which have present-day application or which may bring about consequences for the present time." (Hearing of 12 May.)
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The Court has already had to consider the validity of legal ties in accordance with intertemporal law. In the Minquiers and Ecrehos case, the Court considered that it was not necessary to deal with pointless historical controversies.
"The Court considers it sufficient to state as its view that even if the Kings of France did have an original feudal title also in respect of the Channel Islands, such a title must have lapsed as a consequence of the events of the year 1204 and following years." (I.C.J. Reports 1953, p. 56.)
The Court thus judged that the original title ceases to be valid if there are new facts to be considered on the basis of new law.
The same doctrine had been expressed in the Island of Palmas (or Miangas) case. Huber had said:
"As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law." (UNRIAA, Vol. II, p. 845.) [p 169]
According to Mr. Gros, the arbitrator had intended to lay down a twofold rule:
"A legal fact must be viewed in the light of the law contemporaneous with it.
When the legal system by virtue of which the title has been validly created disappears, the right can no longer be claimed under the new legal system unless it conforms to the conditions required by that system." (I.C.J. Pleadings, Minquiers and Ecrehos, Vol. II, p. 375.)
Huber's dictum has been the subject of observations by commentators who think that excessive weight was given to the new law; but regardless of the merit of their comments on the way in which Huber expressed his thought, it is clear that his arbitral award was just. Like the Court in 1953, Huber considered that after the original event (the discovery of the island) a new event had occurred (the taking of possession of the island by the Netherlands), which had to be weighed up according to the new law.
The generally accepted principle of intertemporal law, which is contained in the rule tempus regit factum, should therefore be considered as a recognized principle of international law. Consequently, the creation of ties with or titles to a territory must be determined according to the law in force at the time. The same law will also determine the nature and validity of the ties at that time. The rule tempus regit factum must also be applied to ascertain the legal force of new facts and their impact on the existing situation. New facts will be subject to the rules of law in force at the time when they occur.
3. New Facts and New Law
In the case at present before the Court, changes of facts and changes in the law to be applied cannot be ignored. Just before colonization by Spain, the territory had a status which was governed by the law in force at that time. But that status had not crystallized and was not fixed ad aeternum. It was subject to changes in the times.
First of all, there was colonization. Colonization is now condemned to die out; but the colonial fact was a new fact with sociological and legal implications. It has been rightly said: "In the 20th century, Mauritania, just like Morocco, underwent profound transformations as a result of what has been called the 'French colonial fact' " (La Republique islamique de Mauritanie et le Royaume du Maroc, Paris, p. 29.) Colonization created ties and rights that must be judged in accordance with the law in force at the time.
After the entry into force of the United Nations Charter, the territory of Western Sahara became a "non-self-governing territory", and the administering Power therefore has a duty to recognize the principle that the interests of the inhabitants of the territory are paramount, and to develop self-government (Art. 73 of the Charter).
A new fact was that the General Assembly, in implementation of resolution 1514 (XV), urged the administering Power to take the necessary measures to [p 170] put an end to the colonial domination of the territory. That is what emerges from the resolutions cited in resolution 3292 (XXIX) FN1. It can be said that, at the date of the latter resolution, the law then in force was based on the principle that the peoples of non-self-governing territories have the right to decide upon their own destiny and to decide freely, and by democratic means, either to become independent or to become integrated with an independent StateFN2. The consequence thereof was that it had to be recognized that these [p 171] peoples must be regarded as having the right (either an acquired right or an unconditional spes juris) to decide upon their independence. The Court has had occasion to make a statement on the matter:
"Furthermore, the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them. The concept of the sacred trust was confirmed and expanded to all 'territories whose peoples have not yet attained a full measure of self-government' (Art. 73). Thus it clearly embraced territories under a colonial regime." (I.C.J. Reports 1971, p. 31.)
"These developments [in the law] leave little doubt that the ultimate objective of the sacred trust was the delf-determination and independence of the peoples concerned. In this domain, as elsewhere, the corpus juris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore." (Ibid., pp. 31-32.)
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FN1 General Assembly resolution 2229 (XXI) of 20 December 1966 draws a distinction between the case of Ifni, with regard to which the administering Power is requested "to take.. .the necessary steps to accelerate the decolonization .. ."and "to determine with the Government of Morocco... procedures for the transfer of Powers ..." and that of Spanish Sahara, with regard to which the administering Power is called upon to determine "... the procedures for the holding of a referendum under United Nations auspices with a view to enabling the indigenous population of the Territory to exercise freely its right to self-determination".
Resolution 2354 (XXII) of 19 December 1967 notes the statement of the administering Power that a dialogue had already begun with the Government of Morocco; and with regard to Spanish Sahara insists on "the holding of a referendum" and on "the right to self-determination" of the "indigenous population of the Territory".
Resolution 2428 (XXIII) of 18 December 1968 notes the intention of the administering Power to sign a treaty with the Government of Morocco on the transfer of the Territory of Ifni; on the subject of the Sahara:" Reaffirms the inalienable right of the people of Spanish Sahara to self-determination" and invites the administering Power to determine the procedures for "the holding of a referendum" with a view to enabling the indigenous population of the territory to exercise freely its right to self-determination. This is said while " Noting the difference in nature of the legal status of these two territories".
Resolution 2591 (XXIV) of 16 December 1969 contains no further reference to Ifni (the Treaty of Fez was signed on 4 January 1969) and, with regard to the Sahara, insists on the holding of a referendum and on the right to self-determination of the indigenous population of the territory.
Resolution 2711 (XXV) of 14 December 1970 insists-and forcefully-on the holding of a referendum and the right of the population.
Resolution 3162 (XXVII) of 14 December 1973 "Reaffirms the legitimacy of the struggle of colonial peoples and its solidarity with, and support for, the people of the Sahara in the struggle they are waging in order to exercise their right to self-determination and independence" and "Repeats its invitation to the administering Power to determine the procedures for the holding of a referendum".
Resolution 3292 (XXIX) of 13 December 1974 again reaffirms the right of the population of the Spanish Sahara to self-determination in accordance with resolution 1514 (XV).
FN2 Resolution 1541 (XV) of 15 December 1960 laid down in its annex the "principles which should guide Members in determining whether or not an obligation exists to transmit the information called for in Article 73 (e) of the Charter of the United Nations". The resolution lists the ways by which a non-self-governing territory can be said to have reached a full measure of self-government (principle VI). And, when self-government is acquired by integration with an independent State, integration "should have come about in the following circumstances:
(a) The integrating territory should have attained an advanced stage of self-government with free political institutions, so that its peoples would have the capacity to make a responsible choice through informed and democratic processes;
(b) The integration should be the result of the freely expressed wishes of the
territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes."
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By declaring that the legal ties that Morocco or Mauritania might have had with the territory of Western Sahara at the time of colonization by Spain are subject to the rules of intertemporal law, the Court was not laying down for the General Assembly the policy to be followed in the decolonization of the territory. The advisory opinion of the Court is confined to the statement that, whatever the existing legal ties with the territory may have been at the time of colonization by Spain, legally those ties remain subject to intertemporal law and that, as a consequence, they cannot stand in the way of the application of the principle of self-determination.
Conclusions
I venture to add a few words to sum up my thinking.
I believe that the first question put to the Court, as to whether Western Sahara had the status of a territory belonging to no-one, should not have been considered independently of the second question. In considering it separately, it seems to me, the Court has given it a different meaning from that which it had during the discussions in the General Assembly. If it was nevertheless desired to do this, it would have been preferable to make the answer explicit, by saying that the territory was not a territory belonging to no-one, because it was inhabited at the time of colonization by Spain by independent tribes. [p 172]
The second question concerned the legal ties between the territory and the Kingdom of Morocco and the Mauritanian entity, that is to say the nature of those ties, should they have existed: Were they ties of sovereignty? Were they in any case subject to intertemporal law?
The Court has answered rightly, and with a remarkable degree of general agreement, that those ties were not ties of sovereignty, and that thus they could not be considered to be titles to a claim or for a demand for recovery of territory.
To reach that conclusion, FN1 the Court had studied carefully all the information available to it, taking into account its value as evidence.
But, in asking itself whether there existed legal ties other than those of sovereignty, the Court interpreted the question which had been put to it in a different sense from that which had been the object of the controversy in the General Assembly.
There is no legal foundation for regarding as ties with the force of ob-ligare (vinculatio) the personal and sporadic ties of the Sultan with certain unclearly defined tribes. I have not found any firm evidence of the existence of such ties.
The ties of the territory with the Mauritanian entity suggested by the Advisory Opinion result from the ties existing between some independent tribes and the lands through which their nomadic routes passed. It would seem that, if such were the case, there would be ties between each tribe and the territory over which it passed, but nothing more. In any case, as regards the existence of those ties, the Court had nothing to go on, in my opinion, except vivid and touching descriptions of desert life —but no concrete facts about the beneficiary tribes or about the places subject to those ties which would fulfil the conditions required of evidence to be submitted to a court.
(Signed) F. de Castro.[p 173]
Separate opinion of judge Boni
[Translation]
I have voted without reservation in favour of the Advisory Opinion delivered by the International Court of Justice.
The Court has decided that Western Sahara (Río de Oro and Sakiet El Hamra) was not a terra nullius. Its population, although consisting mainly of nomads, was organized in independent tribes under the authority of democratically elected sheikhs.
The Court has found that legal ties of allegiance existed between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara.
It has also found that there existed many ties of a racial, linguistic, religious, cultural and economic nature between the tribes who dwelt in the Sahara region which today is comprised within the Sahara under Spanish domination and the Islamic Republic of Mauritania.
On the other hand it has categorically affirmed that these ties were not ties of territorial sovereignty between the territory of Western Sahara on the one hand and Morocco and the Mauritanian entity on the other hand.
In adopting this latter solution, the Court has not taken sufficient account of the local context. As regards Morocco, insufficient emphasis has been placed on the religious ties linking the Sultan and certain tribes of the Sakiet El Hamra. For these tribes, the Sultan was Commander of the Faithful, that is to say, the Steward of God on earth for all matters, whether religious or not. He was thus regarded not only as religious leader but as director of their temporal affairs. The legal ties between them were thus not only religious —which no one denies —but also political, and had the character of territorial sovereignty.
In strict logic, I should have voted "no" to the second question of the Advisory Opinion. I did not do so for the following reasons:
The Court has denied that the ties between Western Sahara and Morocco were in any way ties of territorial sovereignty. It has urged the General Assembly to consult the population of those regions on their future in conformity with General Assembly resolution 1514 (XV). Can one reasonably reproach the Court for having adopted such an attitude, which is consistent with its role in the present case, viz. to enlighten the General Assembly?
The solution which I advocate, and which confers a character of territorial sovereignty on the ties that existed between Morocco and Western Sahara, leads to the same conclusion: obligatory consultation of the inhabitants of [p 174] Western Sahara on their future, in pursuance of General Assembly resolution 1514 (XV).
The General Assembly has, it is true, decided on occasion that there was no need to consult the populations of territories that were to be decolonized. But it has stated its reasons, namely:
The populations in question were not peoples and did not therefore qualify
for self-determination.
Consultations were unnecessary because of special circumstances, of which
the General Assembly is the sole judge.
Such reasons could not be held to apply in the present case. If the General Assembly had had before it an advisory opinion of the Court declaring that there were ties of sovereignty between Morocco and certain areas of Western Sahara, it would have been obliged to consult the inhabitants of the region on the different options provided for in resolution 1514 (XV).
(Signed) A. Boni.
[p 175]
Dissenting opinion of judge Ruda
I have voted in favour of the decision of the Court to comply with the request for an advisory opinion, in favour of the reply given to Question I, and in favour of the reply given to Question II in so far as it concerns the legal ties between the Mauritanian entity and the territory of Western Sahara, but unfortunately I cannot go along with the conclusions of the majority of the Court concerning the legal ties between the Kingdom of Morocco and this territory, as indicated in the penultimate paragraph of the Opinion.
My interpretation of the request in General Assembly resolution 3292 (XXIX) is that in Question II it refers only to legal ties of a territorial character, which could have been affected by the process of colonization at the end of the nineteenth century. Such interpretation is based on the actual text of Question II and on the debates in the General Assembly in 1974.
In other words, the purpose of the request as a whole, and of Question II in particular was simply to find out from the Court what were the rights, if any, of Morocco and the Mauritanian entity over the territory of Western Sahara, at the time of Spanish colonization. Of course, the rights of a political entity over a territory mean the exercise of jurisdiction over persons and things, and those rights are therefore established in relation to people, but, to my mind, 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 and the Mauritanian entity.
It appears to me that the legal ties of allegiance and authority, as described in the penultimate paragraph and other paragraphs of the Opinion, are not legal ties between the territory of Western Sahara and the Kingdom of Morocco, but merely personal ties. If the Court had found that the existence of such legal ties of allegiance and authority had created a territorial right, the legal inference of such a finding would normally have been that the Sultan of Morocco was the sovereign of the territories where these tribes lived; but this is a proposition that the Court has not accepted.
I, therefore, conclude that the reply of the Court does not correspond to what has been requested by the General Assembly.
It seems to me, therefore, that the correct reply to Question II as far as the Kingdom of Morocco is concerned would have been that there were no legal ties between the territory of Western Sahara and the Kingdom of Morocco, whereas the Court has found that there were legal ties of allegiance.
Moreover, I have not been convinced that the letters and documents mentioned in the Advisory Opinion, or any other information submitted to [p 176] the Court, afford clear indication of permanent, real and manifested acceptance either of allegiance, or of the 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. I do however recognize the religious, moral and political influence of the Sultan, but I remain unconvinced that such influence has created legal ties of any nature.
For these reasons I have been unable to concur with the majority of the Court on this point.
On the other hand, I have voted in favour of the existence of legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara, because the ties indicated in the penultimate paragraph of the Opinion were, in my view, legal ties of a territorial character. It has not been contested that the various tribes living in the territories of the Bilad Shinguitti, to use the formula employed by the Court to convey its understanding of the concept of the Mauritanian entity, were independent political units which possessed rights, inter alia, to pastures, water-holes and burial grounds, which were reciprocally acknowledged among the tribes. The normal migratory areas were the territory of each tribe, although often certain tribes traversed the territories of other groups. Each tribe, therefore, enjoyed rights of a territorial character in the zones of Western Sahara through which their nomadic routes ran at the time of Spanish colonization. However, the independence of these tribes deprived the Bilad Shinguitti itself of the character of a political unity, juridically capable, per se, of being the subject of territorial rights.
The confirmation that the legal ties referred to above were affected by the process of colonization is the 1934 administrative agreement between Spain and France, which recognized the traditional freedom of nomads to migrate across frontiers.
I cannot refrain from pointing out, moreover, although this does not establish legal ties between the Kingdom of Morocco and the territory, that the independent nomadic Tekna septs whose routes of migration are established as traversing the Sakiet El Hamra and the Southern part of Morocco possessed territorial rights within their migratory zones similar to those recognized in the Advisory Opinion as belonging to the tribes living within the territories of the Bilad Shinguitti.
(Signed) J. M. Ruda. | |
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