The International Court of Justice Advisory Opinion on Western Sahara was a 1975 advisory, non-binding opinion by the International Court of Justice (ICJ) of two questions presented to it by the UN General Assembly under Resolution 3292[1] regarding the disputed territory of Western Sahara (then Spanish Sahara). Morocco had approached the UN to adjudicate its and Mauritania's claims over the territory.
The ICJ deliberated between 13 December 1974 and 16 October 1975. The final ruling by the Court stated that:
The materials and information presented to it [the ICJ] 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 (ICJ Reports 16 October 1975, 162).[2]
Background
Morocco gained independence in 1956, and the Istiqlal Party presented its vision of a Western Sahara state that would be part of Morocco, with suggested boundaries.[3] The Moroccan nationalists supported the idea of a Greater Morocco, based upon the territory of the Sharifian empire which preceded French and British colonization. The proposed "Greater Morocco" area included what was at the time Spanish Sahara, French West Africa, and French Algeria. The Kingdom of Morocco formally adopted the 'Greater Morocco' vision under Mohammed V in 1958.[3] After Mauritanian and Algerian independence in the early 1960s, Morocco renounced its claims to most of Greater Morocco, but maintained its irredentist claim over Western Sahara.
Following the establishment of the Special Committee on Decolonization, the Spanish Sahara was included in 1963 in the preliminary list of territories to which the declaration on the granting of independence to colonial peoples and countries applied, and from that year on the question of Western Sahara had been regularly considered by the Special Committee and in the General Assembly.[4] On 20 December 1966, United Nations General Assembly Resolution 2229[5] called on Spain to hold a referendum on self-determination in the territory.
After initially resisting all claims by Morocco and Mauritania (which also started laying claims to parts of the region), Spain announced on 20 August 1974 that a referendum on self-determination would be held in the first six months of 1975.[6]
Morocco declared it could not accept a referendum which would include an option for Saharan independence, and renewed its demands for the integration of the remaining provinces of Saguia el-Hamra and Rio de Oro to the Morocco's sovereignty.[citation needed] In Mauritania, a smaller movement claimed some of the territory, and suggested partitioning it with Morocco.[citation needed]
Algeria–Morocco relations had been strained since Algeria's independence in 1962, culminating in the Sand War, and a lack of normalized relations.[citation needed] Algeria, after initially supporting Morocco and Mauritania in their demands, started in 1975 to support the independence of the Spanish Sahara.[citation needed] Algeria officially supported the right of self-determination of the people of the former Spanish colony, as it had supported the right of self-determination of the peoples of the rest of the African colonized countries. The Polisario Front, created in 1973, engaged in several attacks against Spanish garrisons and patrols, and attacked the Fosbucraa conveyor belt, which exported the rich local phosphates to the El Marsa port.
On 17 September 1974, King Hassan II announced his intention to bring the issue to the World Court.[citation needed] In December, Spain agreed to delay the referendum pending the opinion of the court, and supported submission to the World Court so long as the decision would be non-binding and advisory only, rather than a "contentious issue", where the ruling would oblige the affected states to act in a particular manner.[citation needed]
UN General Assembly Resolution 3292[1] requested that the International Court give an advisory opinion on the following questions:
I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?
And, should the majority opinion be "no", the following would be addressed:
II. What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?
In the meantime, Morocco and Mauritania jointly agreed to not contest the issue of partition or sovereignty. On 16 January 1975, Spain officially announced the suspension of the referendum plan, pending the opinion of the court. From 12 to 19 May, a small investigative team made of citizens from Cuba, Iran, and Côte d'Ivoire was sent into the region to assess public support for independence. They also performed inquiries in Algeria, Mauritania, Morocco, and Spain.
In the summer, the questions were submitted by King Hassan II and Spain. Algeria, Mauritania, Morocco, and Spain were all given permission to present evidence at the hearings (the Polisario was locked out as only internationally recognized states have a right to speak - Algeria largely represented the Sahrawis). Twenty-seven sessions were held in June and July before the Court called the proceedings final.
The arguments presented by Morocco and Mauritania were essentially similar: that either one had a sovereign right over the territory. In the case of Morocco, the kingdom of Morocco claimed the allegiance of a variety of tribes in surrounding territory. In the case of Mauritania, there was no clearly defined state that existed at the time. Instead, Mauritania argued that a similar entity existed which they called "bilad Chinguetti". Spain argued against Moroccan sovereignty, citing the relationship that Spanish explorers and colonizers had established with the sultan, none of which ever recognized his authority over the region. Algeria also defended the position that the Sahrawis were a distinct people[citation needed], and not under the subjection of Morocco or Mauritania.
The opinion
On 15 October, a UN visiting mission sent by the General Assembly to tour the region and investigate the political situation published its findings, showing that the Sahrawi population were "overwhelmingly" in favor of independence from both Spain and Morocco/Mauritania. These findings were submitted to the Court, who published their opinion the next day.
For the former question, the Court decided by a vote of 13 to three that the court could make a decision on the matter, and unanimously voted that at the time of colonization (defined as 28 November 1884), the territory was not terra nullius (that is, the territory, did belong to someone).
For the latter question, the Court decided by a vote of 14 to two that it would decide. It was of the opinion, by 14 votes to two, that there were legal ties of allegiance between this territory and the Kingdom of Morocco. Furthermore, it was of opinion, by 15 votes to one, that there were legal ties between this territory and the "Mauritanian entity". However, the Court defined the nature of these legal ties in the penultimate paragraph of its opinion, and declared that neither legal tie implied sovereignty or rightful ownership over the territory. These legal ties also did not apply to "self-determination through the free and genuine expression of the will of the peoples of the Territory." (ICJ Reports (1975) p.68, para. 162)
Results
The opinion of the Court was interpreted differently by the different parties, and each focused on what it sees as supporting its claims.
While Morocco and Mauritania found in the answers to the two questions a recognition that their claims are legitimate and historically based, Algeria and the Polisario Front focused on the penultimate paragraph that stated that the court's decision was not to hinder the application of self-determination through the ongoing Spanish referendum.
King Hassan II declared the organisation of a peaceful march to force Spain to start negotiations on the status of the territory, to which Spain finally agreed. A round of talks between Spain, Morocco and Mauritania were held in Madrid and culminated in a tripartite agreement, becoming known as the Madrid Accords. On 16 November 1975, where Spain agreed to the temporary administration of the northern two thirds of the territory by Morocco, while the southern third was to be temporarily administered by Mauritania; sovereignty was not ceded and both administrations were subject to a subsequent referendum. Algeria protested against the agreement, and presidentBoumédiène retaliated by expelling all Moroccans living in Algeria.
In consequence, the Court's decisions were largely disregarded by the interested parties. On 31 October 1975 the first Moroccan troops invaded Western Sahara from the north-east. Algeria sent its troops into the territory of Western Sahara to help in the logistics of the evacuation of the Sahrawi refugees who have been bombarded by Moroccan air forces, which led to the first and last direct military confrontation between units of the Moroccan armed forces and the Algerian national army in the First Battle of Amgala (1976). The Algerian army suffered hundreds of deaths and more than a hundred soldiers were made prisoners by the Moroccan army.[citation needed] Diplomatic intervention from Saudi Arabia and Egypt prevented the situation from escalating further.
The Spanish government withdrew its troops from Spanish Sahara on January 12, 1976, and formally ended any presence in the territory on February 26, 1976.[7] The next day, the Sahrawi Arab Democratic Republic was declared by Polisario Front representatives.[8] Morocco intensified its military presence in the region, and by the end of the year, Mauritania and Morocco had partitioned the territory. Mauritania was too weak militarily and economically to compete against Polisario, though, and was forced to renounce its claims in 1979.[citation needed] Morocco immediately annexed that territory. Morocco has continued to administer most of Western Sahara, and its sovereignty has been recognized by the United States.[9] At the same time, 82 governments have recognized the Sahrawi Republic as the legitimate government of Western Sahara.[10]
Western Sahara is a disputed territory in North-western Africa. It has a surface area of 272,000 square kilometres (105,000 sq mi). Approximately 30% of the territory is controlled by the Sahrawi Arab Democratic Republic (SADR); the remaining 70% is occupied and administered by neighboring Morocco. It is the most sparsely populated country in Africa and the second most sparsely populated country in the world, mainly consisting of desert flatlands. The population is estimated at 618,600. Nearly 40% of that population lives in Morocco-controlled Laayoune, the largest city of Western Sahara.
The history of Western Sahara can be traced back to the times of Carthaginian explorer Hanno the Navigator in the 5th century BC. Though few historical records are left from that period, Western Sahara's modern history has its roots linked to some nomadic groups such as the Sanhaja group, and the introduction of Islam and the Arabic language at the end of the 8th century AD.
The politics of Western Sahara take place in a framework of an area claimed by both the partially recognized Sahrawi Arab Democratic Republic and the Kingdom of Morocco.
Western Sahara, formerly the Spanish colony of Spanish Sahara, is a disputed territory claimed by both the Kingdom of Morocco and the Popular Front for the Liberation of the Saguia el Hamra and Rio de Oro, which is an independence movement based in Tifariti and Bir Lehlou. The Annexation of Western Sahara by Morocco took place in two stages, in 1976 and 1979, and is considered illegal under international law.
The Polisario Front, Frente Polisario, Frelisario or simply Polisario, is a Sahrawi nationalist liberation movement seeking to establish a Sahrawi Arab Democratic Republic for the Sahrawi people through the means of self-determination and armed resistance in the disputed territory of Western Sahara.
Spanish Sahara, officially the Spanish Possessions in the Sahara from 1884 to 1958, then Province of the Sahara between 1958 and 1976, was the name used for the modern territory of Western Sahara when it was occupied and ruled by Spain between 1884 and 1976. It had been one of the most recent acquisitions as well as one of the last remaining holdings of the Spanish Empire, which had once extended from the Americas to the Spanish East Indies.
The Green March was a strategic mass demonstration in November 1975, coordinated by the Moroccan government and military, to force Spain to hand over the disputed, autonomous semi-metropolitan province of Spanish Sahara to Morocco. The Spanish government was preparing to abandon the territory as part of the decolonization of Africa, just as it had granted independence to Equatorial Guinea in 1968. The native inhabitants, the Sahrawi people, aspired to form an independent state. The demonstration of some 350,000 Moroccans advanced several kilometers into the Western Sahara territory. Morocco later gained control of most of the former Spanish Sahara, which it continues to hold.
The Madrid Accords, formally the Declaration of Principles on Western Sahara, was a treaty between Spain, Morocco, and Mauritania setting out six principles which would end the Spanish presence in the territory of Spanish Sahara and arrange a temporary administration in the area pending a referendum.
Tiris al-Gharbiyya was the name for the area of Western Sahara under Mauritanian control between 1975 and 1979.
The Settlement Plan was an agreement between the ethnically Saharawi Polisario Front and Morocco on the organization of a referendum, which would constitute an expression of self-determination for the people of Western Sahara, leading either to full independence, or integration with the Kingdom of Morocco. It resulted in a cease-fire which remains effective until 2020, and the establishment of the MINURSO peace force to oversee it and to organize the referendum. The referendum never occurred.
To assist in the decolonization process of the Spanish Sahara, a colony in North Africa, the United Nations General Assembly in 1975 dispatched a visiting mission to the territory and the surrounding countries, in accordance with its resolution 3292.
The Western Sahara conflict is an ongoing conflict between the Sahrawi Arab Democratic Republic/Polisario Front and the Kingdom of Morocco. The conflict originated from an insurgency by the Polisario Front against Spanish colonial forces from 1973 to 1975 and the subsequent Western Sahara War against Morocco between 1975 and 1991. Today the conflict is dominated by unarmed civil campaigns of the Polisario Front and their self-proclaimed SADR state to gain fully recognized independence for Western Sahara.
The politics of the Sahrawi Arab Democratic Republic refers to politics of the Polisario Front's proclaimed Sahrawi Arab Democratic Republic, a country in North Africa with limited recognition by other states, controlling parts of the Western Sahara region.
In the 1970s in Morocco, after two coup attempts in 1971 and 1972, the patriotism engendered by Morocco's participation in the Middle East conflict and by the events in Western Sahara contributed to Hassan's popularity and strengthened his hand politically despite serious domestic turmoil. The king had dispatched Moroccan troops to the Sinai front after the outbreak of Arab-Israeli War in October 1973. Although they arrived too late to engage in hostilities, the action won Morocco goodwill among other Arab states. Shortly thereafter, the attention of the government turned to the annexation of then Spanish Sahara from Spain, an issue on which all major domestic parties agreed.
Sahrawi nationality law is the law of the Sahrawi Arab Democratic Republic's (SADR) governing nationality and citizenship. The SADR is a partially recognized state which claims sovereignty over the entire territory of Western Sahara, but only administers part of it. The SADR also administers Sahrawi refugee camps.
The following outline is provided as an overview of and topical guide to the Sahrawi Arab Democratic Republic:
The Western Sahara peace process refers to the international efforts to resolve the Western Sahara conflict. The conflict has failed so far to result in permanent peace between Morocco and the Polisario Front. The standing issues of the peace process include Sahrawi refugees, and human rights in Western Sahara.
Sahrawi nationalism is a political ideology that seeks self-determination of the Sahrawi people, the indigenous population of Western Sahara. It has historically been represented by the Polisario Front. It came as a reaction against Spanish colonialist policies imposed from 1958 on, and subsequently in reaction to the Mauritanian and Moroccan invasions of 1975.
Sahrawi Arab Democratic Republic–Spain relations are the current and historical relations between the Sahrawi Arab Democratic Republic and Spain.
The annexation of Western Sahara occurred in two stages: 1976 and 1979. Shortly after Spain gave up control over Spanish Sahara in 1975, both Mauritania and Morocco occupied the territory. On 14 April 1976, the two countries annexed it between themselves via the Western Sahara partition agreement. However, on 14 August 1979, Mauritania renounced all territorial claims to Western Sahara and withdrew its troops, prompting Morocco to extend its annexation to formerly Mauritanian-controlled areas.
1 2 Campos-Serrano, Alicia; Rodríguez-Esteban, José Antonio (January 2017). "Imagined territories and histories in conflict during the struggles for Western Sahara, 1956–1979". Journal of Historical Geography. 55: 47. doi:10.1016/j.jhg.2016.11.009. hdl:10486/686245.
Tony Hodges (1983), Western Sahara: The Roots of a Desert War, Lawrence Hill Books ( ISBN0-88208-152-7)
Anthony G. Pazzanita and Tony Hodges (1994), Historical Dictionary of Western Sahara, Scarecrow Press ( ISBN0-8108-2661-5)
Toby Shelley (2004), Endgame in the Western Sahara: What Future for Africa's Last Colony?, Zed Books ( ISBN1-84277-341-0)
Erik Jensen (2005), Western Sahara: Anatomy of a Stalemate, International Peace Studies ( ISBN1-58826-305-3)
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