Understanding the Advisory opinion on Western Sahara (1975)

For this new article on Space Legal Issues, let us have a look at the Advisory opinion on Western Sahara (1975). During colonisation and conquest times, several methods of acquiring spaces were used. For example, in the 15th and 16th Centuries we used the theory of attribution, by which the Pope notably allocated American lands to Portugal and Spain, and the theory of discovery: a territory was under the sovereignty of the person who discovered this land and therefore by extension of the State which made the mission of exploration.

Another widely used method is that of the actual occupation of so-called “masterless land”. This method was mainly claimed by the colonising States in the 18th Century. To do this, we must first explain the concept of land without a master, or terra nullius. This covers both uninhabited and unsuitable land spaces, but also inhabited spaces but whose social organization differs from that of Western states. It’s a method which has been mainly used on the African continent. Before the Western States had to take into account the populations, even if their political and social organization were different. It was common to deal with peoples to obtain the surrender of the territories where they were established.

It is this notion of terra nullius that was at the center of the advisory opinion Western Sahara of the International Court of Justice in 1975, the Advisory opinion on Western Sahara (1975). Western Sahara is a land located on the northwest coast of Africa, south of Morocco and west of Mauritania. It was and still is a land populated by nomadic tribes. This territory was occupied by Spain during the 20th Century until 1975, when Spain wished to no longer have this region under its protectorate. A dispute has started between neighbouring countries over which one would be to take over from Spain. Hence this opinion of the Court which aimed to clarify the status of this territory. Two questions have been asked to the Court of Justice: was Western Sahara at the time of colonisation by Spain a territory belonging to no one (terra nullius)? What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?

The documents provided to the Court showed that Sahara at the time was inhabited by people who were socially and politically organised in tribes. Even if their organization differed from the Western one, the Court could not declare Western Sahara as terra nullius. Regarding the first question, the Court ruled that at the time of the colonisation by Spain, Western Sahara was not a territory belonging to no one.

The notion of “legal ties” should be interpreted as ties which could influence the policy to be followed for the decolonisation of Western Sahara. For the Court, the parties must provide evidence demonstrating an exercise of authority during the Spanish colonisation. Morocco has presented acts such as the collection of taxes, military acts of resistance to a foreign invasion in the territory of Western Sahara, international treaties in which the other states recognized Morocco’s sovereignty over this territory. For the Court, these acts do not show international recognition of the legal ties of territorial sovereignty between Western Sahara and Morocco. However, it recognized the existence of a legal link between the Sultan and certain nomadic tribes. Despite social, religious, linguistic, cultural and economic ties, the Court explained that there were no common institutions or bodies between Western Sahara and the Mauritanian entity. On the other hand, the Court considered that the nomadic populations of the Mauritanian group had rights, and which constituted legal links between Western Sahara and the Mauritanian group.

Regarding the second question, the Court declared that there were legal ties between Western Sahara and the Kingdom of Morocco and between Western Sahara and the Mauritanian entity. The court recognized and confirmed the links between Western Sahara and Morocco and the Mauritanian group, but specified that these were not enough to establish the existence of a link of territorial sovereignty. It appeared from the advisory opinion that the principle of self-determination must apply to Western Sahara. As of today, Western Sahara is still considered a non-autonomous territory according to the United Nations, that is to say a territory considered to be non-decolonised and whose population is not yet completely self-administered.

The Polisario front relies on the fact that the overwhelming majority of the population living in this territory wants independence and does not want to ally with a neighbouring country. Morocco uses the Madrid agreements and historical links between the Sahrawi tribes and the sultans of Morocco as arguments for its sovereignty over the territory of Western Sahara. These agreements were signed in 1975 and by which Spain, Morocco and Mauritania defined the conditions of the withdrawal of Spain from Western Sahara and the distribution of the territory between Morocco and Mauritania.

Since the Spanish left in 1976, this territory has still not defined its legal status. Its administration is claimed both by Morocco, by the Sahrawi Arab Democratic Republic (proclaimed by the Polisario Front in 1976, a movement which seeks to achieve total independence of Western Sahara) and by Mauritania. The international scene has different opinions about the future of this territory. Among other actions, the United Nations organised negotiations between the parties, but these were unsuccessful. Peter van Walsum, former special envoy to the UN Secretary General, said that as long as Morocco does not abandon its claim to sovereignty, Western Sahara can never become independent. The Arab League supports Morocco and wishes this territory of Western Sahara to be an integral part of Morocco. The United States of America has told them it will not support a plan to create a new state in Africa. In conclusion, the situation in Western Sahara is still uncertain and is not likely to change soon.