"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 selfdetermination 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 Morocco1 and of the Islamic Republic of Mauritania2,
Taking note of the statements made in the Fourth Committee by the representatives of Morocco3 and Mauritania4, in which the two countries acknowledged that they were both interested in the future of the Territory,
Having heard the statements by the representative of Algeria5,
Having heard the statements by the representative of Spain6,
(The references given below appear in the text adopted by the General Assembly.)
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."
"... 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 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.
|for Morocco:||H.E. Mr. Driss Slaoui, Ambassador, Permanent Representative to the United Nations; Mr. Magid Benjelloun, Procureur général at the Supreme Court of Morocco ; Mr. Georges Vedel, Doyen honoraire of the Faculty of Law, Paris; Mr. René-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 Université libre de Bruxelles;|
|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. José 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.|
"... the question whether a judge ad hoc should be appointed is of course a matter concerning the composition of the Bench and possesses... 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.
"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.
"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.)
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 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.
(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.
"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.
"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.)
"... the historic presence of Spanish citizens on the west coast of Africa, not subject to the sovereignty of any other country and devoting 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".
"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".
"... 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".
"I. Was Western Sahara (Rio 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 conclusions regarding the answer to be given to the second. Accordingly, the two questions will be taken up separately and in turn.
(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 Rio de Oro".
"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.
"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.
"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.
"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."
"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".
"... 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 of letters and claimed by it to show that this was concerned with Franco-German relations and not with the existing frontier of Morocco.
(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 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.
"... 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".
"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.
"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 overlappings 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.
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."
.. 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."
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,
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.
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