ICJ and Western Sahara
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Questions and Answers

What were the two questions the General Assembly of the United Nations asked the Court regarding Western Sahara?

  1. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?
  2. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

How many states presented written and/or oral statements to the Court regarding the Western Sahara case, and can you name three of them?

14 States. Algeria, Mauritania, and Morocco.

Explain the Court's decision regarding Morocco's request to choose a judge ad hoc and the reasoning behind that decision.

The Court found 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. This was based on the Court's interpretation of the relevant articles and their applicability to Morocco's situation.

What was the Court's opinion on whether Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain was a territory belonging to no one (terra nullius)?

<p>The Court was unanimously of the opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain was <em>not</em> a territory belonging to no one (terra nullius).</p> Signup and view all the answers

Summarize the Court's stance on the existence of legal ties between Western Sahara and both the Kingdom of Morocco and the Mauritanian entity.

<p>The Court was of the opinion that there were legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity.</p> Signup and view all the answers

What does 'judge ad hoc' mean, and what was the Court's decision regarding Mauritania's request to choose one?

<p>A 'judge ad hoc' is a judge appointed for a particular case. The court decided that the conditions for the application of those Articles had not been satisfied for Mauritania.</p> Signup and view all the answers

Explain how the Court's conclusions regarding the judge ad hoc requests 'in no way prejudged its views' on other questions in the case.

<p>This statement means that the Court's decisions about who could appoint a judge for the case <em>did not</em> influence its later decisions about the actual issues of the case. They are separate legal considerations.</p> Signup and view all the answers

How did the Court decide on complying with the General Assembly's request for an advisory opinion, and what considerations are typically involved in such a decision?

<p>The Court decided by 13 votes to 3 to comply with the request for an advisory opinion. Such considerations typically involve assessing the Court's competence, the propriety of exercising that competence, and the relevance of the questions to the United Nations' functions.</p> Signup and view all the answers

According to the provided text, what two factors are crucial in determining Morocco's claim to sovereignty over Western Sahara?

<p>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.</p> Signup and view all the answers

The text mentions that the meaning of 'legal ties' has to be sought in the object and purpose of resolution 3292 (XXIX) of the United Nations General Assembly. How does the Court interpret 'legal ties' in the context of the decolonization of Western Sahara?

<p>Referring to such legal ties as may affect the policy to be followed in the decolonization of Western Sahara, and cannot be limited to ties established directly with the territory without reference to the people who may be found in it.</p> Signup and view all the answers

Explain the difference between 'Bled Makhzen' and 'Bled Siba' according to Morocco's claim regarding its special state structure.

<p>'Bled Makhzen' refers to areas actually subject to the Sultan's authority, while 'Bled Siba' refers to areas where tribes were not submissive to him.</p> Signup and view all the answers

Based on the text, how did the Court interpret the concept of terra nullius in relation to Western Sahara at the time of Spanish colonization?

<p>The Court gave a negative answer to Question I, implying Western Sahara was not a territory belonging to no one (<em>terra nullius</em>).</p> Signup and view all the answers

What evidence did Morocco present to support its claim of sovereignty over Western Sahara, and what was the Court's view on this evidence?

<p>Morocco presented evidence of alleged acts of internal display of Moroccan authority, consisting principally of evidence said to show the allegiance of Saharan caids to the sultan. The Court determined the evidence must directly relate to effective display of authority in Western Sahara at the time of its colonization by Spain and in the period immediately preceding.</p> Signup and view all the answers

What is the significance of resolution 3292 (XXIX) of the United Nations General Assembly in determining the legal ties of Western Sahara?

<p>The meaning of the words &quot;legal ties&quot; has to be sought in the object and purpose of resolution 3292 (XXIX) of the United Nations General Assembly. It appears to the Court that they must be understood as referring to such legal ties as may affect the policy to be followed in the decolonization of Western Sahara.</p> Signup and view all the answers

How did the nomadic nature of the tribes inhabiting Western Sahara at the time of colonization influence the Court's consideration of legal ties?

<p>The Court cannot accept limiting the legal ties to ties established directly with the territory and without reference to the people who may be found in it. At the time of its colonization the territory had a sparse population that for the most part consisted of nomadic tribes.</p> Signup and view all the answers

When did the period of colonization begin in Western Sahara?

<p>The period of colonization began in 1884, when Spain proclaimed its protectorate over the Rio de Oro.</p> Signup and view all the answers

Explain why the Court considers the period immediately preceding Spanish colonization to be particularly important when assessing Morocco's claims.

<p>The importance lies in determining the effective display of authority at the time when Spain began to exert its control, which would have legal implications regarding sovereignty.</p> Signup and view all the answers

The advisory opinion considers Question II only if Question I is answered in the negative. Briefly explain why this is the case.

<p>If Western Sahara was deemed <em>terra nullius</em> (belonging to no one), there would be no need to examine prior legal ties with Morocco or Mauritania. Since the answer to the first question was in the negative, the Court is to reply to Question II.</p> Signup and view all the answers

What two entities had legal ties with Western Sahara during the time of Spanish colonization?

<p>The Sultan of Morocco and the Mauritanian entity.</p> Signup and view all the answers

What principle, related to the decolonization of Western Sahara, did the court emphasize should be applied through the free and genuine expression of the will of the people?

<p>The principle of self-determination.</p> Signup and view all the answers

According to the advisory opinion, what was the General Assembly of the United Nations hoping to seek concerning the decolonization of the territory?

<p>An advisory opinion of assistance.</p> Signup and view all the answers

What specific method for the decolonization of Western Sahara had the United Nations already settled on, according to Spain's suggestion?

<p>A consultation of the indigenous population by means of a referendum conducted by Spain under United Nations auspices.</p> Signup and view all the answers

What was the main reason the Court determined it was competent to provide the advisory opinion requested?

<p>The questions submitted were framed in terms of law and raised problems of international law.</p> Signup and view all the answers

What resolution, related to the decolonization of countries and peoples, is referenced in the advisory opinion?

<p>Resolution 1514 (XV).</p> Signup and view all the answers

According to Spain, why could the Court not fulfill the requirements of good administration of justice with regard to the determination of the facts?

<p>The case involved a dispute concerning the attribution of territorial sovereignty over Western Sahara.</p> Signup and view all the answers

What did the Court find regarding the nature of legal ties between Western Sahara and the Kingdom of Morocco or the Mauritanian entity?

<p>The materials and information did not establish any tie of territorial sovereignty.</p> Signup and view all the answers

What was Spain's primary objection regarding the Court's ability to adjudicate the questions submitted, relating to consent?

<p>Spain had not given its consent to the Court's adjudicating upon the questions submitted.</p> Signup and view all the answers

What discretion does the General Assembly maintain concerning the realization of self-determination in Western Sahara?

<p>The General Assembly retains discretion with respect to the forms and procedures by which self-determination is to be realized.</p> Signup and view all the answers

According to the advisory opinion, what prompted the request for an advisory opinion on Western Sahara?

<p>General Assembly resolution 3292 (XXIX).</p> Signup and view all the answers

What was the contention made by Spain regarding the purpose and effect of the questions submitted to the Court?

<p>The questions were academic and devoid of purpose or practical effect.</p> Signup and view all the answers

According to the advisory opinion, in what terms were the submitted questions framed?

<p>In terms of law.</p> Signup and view all the answers

What did Spain suggest regarding a legal controversy and its impact on the Court's ability to provide an opinion?

<p>Spain suggested a legal controversy existed over the status of Western Sahara.</p> Signup and view all the answers

According to the advisory opinion, what 'basic assumption' underlies the Court's consideration of the questions related to Western Sahara?

<p>The population's right to self-determination.</p> Signup and view all the answers

Flashcards

Advisory Opinion

A request from the UN General Assembly asking the ICJ for a legal opinion.

UN Resolution 3292

Resolution 3292 (XXIX) adopted on December 13, 1974, which officially requested the ICJ's advisory opinion on Western Sahara.

Dossier Transmission

The official record of documents and information presented to the ICJ for consideration.

Participating States

Countries that provided written or oral statements to the ICJ regarding the Western Sahara case.

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Judge ad hoc

A judge chosen by a state to participate in a specific case before the ICJ, especially if that state doesn't have a judge of its nationality already on the court.

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Order of 22 May 1975

Orders are the decisions in the case.

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Terra nullius

Territory that belongs to no state. The ICJ determined Western Sahara was NOT this at the time of Spanish colonization.

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Legal Ties

The court investigated these connections to determine the legal status of the territory.

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Western Sahara's Status

Western Sahara was not considered "terra nullius" (territory belonging to no one) at the time of Spanish colonization.

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Meaning of Legal Ties

The Court understood "legal ties" to refer to ties that might affect the decolonization policy of Western Sahara.

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Population of Western Sahara

At the time of colonization, Western Sahara had a sparse, nomadic population.

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Morocco's Claim

Morocco claimed legal ties based on alleged immemorial possession and uninterrupted exercise of authority.

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Decisive Evidence

Decisive evidence relates to the effective display of authority in Western Sahara at the time of Spanish colonization.

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Moroccan State Structure

The Moroccan State was founded on Islam and allegiance of tribes to the Sultan.

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Bled Makhzen

Bled Makhzen refers to areas actually subject to the Sultan's rule.

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Western Sahara and Bled Siba

The Court determined that Western Sahara fell within the Bled Siba

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Spanish Colonization Start Date

Spanish colonization of Western Sahara began in 1884.

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Occupation Definition

"Occupation" was a means of peacefully acquiring sovereignty over territory.

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Moroccan Ties to Western Sahara

Legal ties of allegiance existed between the Sultan of Morocco and tribes in Western Sahara during Spanish colonization.

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Mauritanian Entity & Western Sahara

Legal connections, including land rights, existed between 'the Mauritanian entity' and Western Sahara.

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ICJ Advisory Role

The ICJ can offer legal advice to authorized bodies like the UN General Assembly.

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UN Authority to Request Opinions

The UN General Assembly is authorized to request advisory opinions from the ICJ.

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Requirements for ICJ Questions

Questions posed to the ICJ must be framed in terms of law and raise problems of international law.

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ICJ Competence Scope

The ICJ is competent even if questions embody facts or don't address existing rights.

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ICJ Opinion & Self-Determination

The ICJ's opinion won't affect applying Resolution 1514 (XV) on Western Sahara's decolonization and self-determination.

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Spain's Objection (Consent)

Spain objected, arguing the ICJ's opinion circumvents the need for state consent in dispute resolution.

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Spain's Objection (Territorial Sovereignty)

Spain argued the matter was a territorial sovereignty dispute needing state consent.

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Spain's Objection (Fact Determination)

Spain claimed the ICJ couldn't properly determine the facts in this case.

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UN's Aim: Decolonization Advice

The General Assembly sought advice for decolonization, not dispute settlement.

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ICJ Not Adjudicating Rights

The questions don't require the Court to adjudicate existing territorial rights.

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Spain's 'Academic' Argument

Spain suggested the questions were pointless because the UN already decided on a referendum.

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Self-Determination Paramount

The decolonization process respects Western Sahara's right to self-determination.

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Opinion's Purpose: Inform Discussion

The advisory opinion will provide legal elements for further General Assembly discussions.

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Study Notes

  • The International Court of Justice (ICJ) issued an Advisory Opinion following a request from the United Nations General Assembly regarding Western Sahara.
  • The request consisted of two questions about the region.
  • The court voted 13-3 to address the questions in resolution 3292 (XXIX), adopted on December 13, 1974.
  • The written statements and letters from 14 states, including Algeria, Mauritania, Morocco, Spain, and Zaire, were considered.

Question 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)?"
  • The ICJ unanimously decided that Western Sahara was not a territory belonging to no one (terra nullius) during Spanish colonization.

Question II

  • "What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?"
  • The court voted 14-2 to address the question.
  • Legal ties existed between Western Sahara and the Kingdom of Morocco.
  • Legal ties also existed with the Mauritanian entity.
  • The court clarified that it didn't find legal ties that might impact the application of General Assembly resolution 1514 (XV) regarding the decolonization of Western Sahara, especially concerning self-determination.
  • The Sultan of Morocco had legal ties of allegiance with some tribes in Western Sahara during Spanish colonization.
  • The Mauritanian entity had legal ties to the land in Western Sahara.
  • There was no tie of territorial sovereignty between Western Sahara and either the Kingdom of Morocco or the Mauritanian entity.
  • The composition of the Court for these proceedings included President Lachs, Vice-President Ammoun, and Judges Forster, Gros, Bengzon, Petrén, Onyeama, Dillard, de Castro, Morozov, Jiménez de Aréchaga, Sir Humphrey Waldock, Nagendra Singh, Ruda, and Judge ad hoc Boni.

Court Competence

  • The ICJ is authorized to provide advisory opinions on any legal question at the request of an authorized body, according to Article 65, paragraph 1, of its Statute.
  • The General Assembly of the United Nations is authorized by Article 96, paragraph 1, of the UN Charter.
  • The submitted questions are legal in nature and raise issues of international law.
  • The Court is competent to address the request.

Propriety of Giving an Advisory Opinion

  • Spain argued that providing an opinion was incompatible with the Court's judicial character, citing a lack of consent.
  • Spain maintained that the subject was identical to a dispute Morocco had invited the Court to submit jointly in 1974, which Spain refused.
  • Spain also suggested the questions were academic.
  • The General Assembly sought assistance in the decolonization of the territory, not peaceful settlement.
  • The questions did not ask the Court to adjudicate on existing territorial rights, and the Court had sufficient information.
  • The decolonization process respects the right of the population of Western Sahara to determine their political status freely.
  • The Advisory Opinion will offer the Assembly legal elements for further discussion.
  • The Court found no compelling reason to refuse a response to the questions.

"Terra Nullius"

  • The relevant period for determining "terra nullius" is from 1884, when Spain proclaimed its protectorate over Rio de Oro.
  • "Occupation" was a peaceful means of acquiring territory.
  • Agreements with local tribal chiefs formed the basis.
  • The Court gave a negative answer to Question I.
  • The meaning of "legal ties" relates to the decolonization policy of Western Sahara.
  • Legal ties aren't limited to those established directly with the territory.
  • The territory had a sparse, nomadic population of Islamic faith.
  • Claims to legal ties with Western Sahara were presented by Morocco and Mauritania.
  • Morocco claimed ties of sovereignty based on immemorial possession and uninterrupted authority.
  • Evidence directly relating to the effective display of authority in Western Sahara at the time of Spanish colonization is important.
  • The Moroccan State was founded on Islam and the allegiance of tribes to the Sultan.
  • The State consisted of the Bled Makhzen (areas subject to the Sultan) and the Bled Siba (areas not submissive).
  • Areas north of Western Sahara lay within the Bled Siba.
  • Morocco provided evidence of Saharan caids' allegiance to the Sultan.

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The International Court of Justice (ICJ) issued an Advisory Opinion following a request from the United Nations General Assembly regarding Western Sahara. The ICJ determined that Western Sahara was not a territory belonging to no one during Spanish colonization. Legal ties existed between Western Sahara and Morocco.

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