CHAPTER III DECOLONIZATION OF WESTERN SAHARA: THE LEGAL DIMENSION

Transcription

1 CHAPTER III DECOLONIZATION OF WESTERN SAHARA: THE LEGAL DIMENSION

2 CHAPTER ill DECOLOJ\TIZA TION OF 'WESTERN SAHARA : THE LEGAL DL\'IENSION The question of Western Sahara encompasses within its ambit a number of issues and concepts relating to international law. UN practices and the evolving norms in international law. At the ideal level it is easy to define and explain the various concepts. but at the practical level these issues get entangled with intense lobbying effort by the concerned states. various vested interest groups, level of propped-up nationalism by the political leaders and above all by political and strategic concerns of the parties involved. Since the time when the Western Sahara issue has come before the United Nations. it has been treated as a problem relating to 'decolonization'. But the word decolonization connotes two legal principles-self determination and Uti possidetis-in its operation. Both the terms must be understood in all their manifestations before applying them to examine the question of Western Sahara. SELF-DETERMINATION The self-determination is essentially a right of cohesive national groups (peoples) to choose for themselves a form of political organization and their relation to other groups. The choice may be independence as a state, association with other groups in a federal state or autonomy or assimilation in a unitary state. The language from which the world self-determination' was borrowed was German term Selbstbestinmungrecht. The development of the concept of self-determination must be seen in the back drop of history of sovereignty of the state and the people. In Europe. during the Middle Ages the idea of state and kingship was prevalent which was essentially feudal in nature. The 54

3 sixteenth and seventeenth centuries witnessed the growth of absolutism. The ruler was the bearer and agent of the state having a legal capacity. The ruler could cede territory which had appearance of sale of land by private owner. The nineteenth century witnessed some contradictory developments in which the principle of self-determination became increasingly important. European powers made use of the concept of res nullius. 1 As early as Thomas Jefferson unequivocally stated that every man and every group of people on earth have the right to self-government-a right which people in their existence receive from the hands of nature. The revolutionary potential of selfdetermination encompasses the early and mid-nineteenth century liberalism.nationalism and its proposition as to freedom and democracy. the right of individuals and freedom. 2 But the second half of the nineteenth century compromised the rule between liberal society and a state steeped in absolutist traditions. Only the 'Christian' people of the Balkans were supported in their struggle against the Ottoman Empire. 3 Th~ major change came with the First World War when the Czarist empire and the Austro- Hungarian monarch collapsed and a large number of new states arose from the ashes of the old order. As the ideal of the right of self-determination is linked to the sovereignty of the people. the subject of self-determination has three aspects- Ian Brownlie Principles of Public International Law (3rd Edn.) (Oxford. 1979). p Rupert Emerson From Empire to Nation (Cambridge. Massachusetts. 1962) p Stefan Oeter. "The Right to self-determination in Transition" in Law and State (Vol. 49/ ): p.l50. 55

4 (1) The principle informs and complements other general principles of international law viz. of state sovereignty. the equality of states and the equality of peoples within a state. Thus self-determination is employed in conjunction with the principle of nonintervention in relation to the use of force and otherwise. (2) The concept of self-determination has been applied in the different context of economic self-determination. (3) The principle may include the following corollaries- (a) If force be used to seize territory and the object is the implementation of the principle, then title may accrue by general acquiescence and recognition more rcadtl) than in other cases of unlawful seizure of territory. (b) The principle may compensate for a political lack of certain desiderata in the fields of statehood and recognition (c)lntervention against a liberation movement may be unlawful and assistance to the movement may be lawful. (d) Territory inhabited by people not organized as a state cannot be regarded as terra nullius susceptible to appropriation by individual states in case of abandon-ment by the existing sovereign. 4 Regarding the question as to which of the different legal systems prevailing at successive periods is to be applied in particular case (called imer-t~mporal Jaws). a distinction must be made between the creation of rights and existence of rights. selldetermination as a dynamic principles keeps the international legal order open for change. Internal self-determination is more a reference to the factual ~onditions for 4 Brownlies n. 1, p. 596

5 legitimate rule. If the state adopts a one-sided policy against specific ethnic groups with excessive violation of human rights. the right of internal self-determination is transformed into an external right of self-determination which can rhen be implemented only by way of secession. 5 In determining the self in self-determination, the relevant detinition of peoples is a Jegal' one. A people in sociological sense would only be accepted as a people in legal sense for the purposes of self-determination if the people inhabited a particular type of territory. It is not international law which detines what a 'people' is. but is detined by the 'people' itself in its historically developed consciousness of belonging together and distinguishing between members of the people and outsiders. 6 The date at which the territorial 'self' crystallized is of crucial importance as the relationship between selfdetermination and territorial integrity in the pre-independence situation raised the question as to inviolability of the territorial unit. 7 The expression 'self-determination' gained political currency during the First World War, due to the espousal of the principle by the Bolsheviks and by President Woodrow Wilson. The Bolsheviks slogan was : "Peace without annexations and indemnities on the basis of self-determination of peoples". Wilson's espousal of selfdetermination as a central element of the peace was reactive to both Bolshevik initiatives and war time exigencies. Contrary to popular beliefs, the expression nowhere appears 5 V. P. Nanda, "Self-determination in International Law-The Tragic Tale of Two Cities-lslalamabad (West Pak.) and Dacca (East Pak.) America! Journal of International Law 66 (1972) P Oeter. n. 3, p Malcolm.S. Shaw. Title to Territory in Africa (London. 1986). p

6 m his Fourteen Points. 8 At the Versailles Peace Conference. Wilson emphasized America s belief in the right of every people to choose their own allegiance and be free of masters altogether. But the dominant motives of the peace conference seem to be - First to gratify faithful allies, Secondly to show severity -co the conquered foes and thirdly to establish a new balance of power. 9 Even the League of Nations failed not simply because it was a product of elevated principles but also because it was a means of anchoring more or less arbitrary territorial gains by the victorious powers of the First World-War. The expression 'self-determination' did not find any plal e in the League Convenant. Reference regarding self-determination can be found in Dt!clarations of Atlantic Charter of 14 August But the allies were divided as to its application. No doubt that it broke the traditional state structures on one side but it was restricted by stability-oriented concepts such as the prohibition of the use of force. the territorial integrity of states and the prohibition of intervention. For USSR. the wncept was one of absorption or domination, while for colonial powers it meant self-destruction of empire. 10 The principle of self-determination was ignored in the cases of Germany, Korea and Viemam due to high strategy of international politics. Nonetheless. the reference to 'the principles of equal rights and self-determination of peopks' appeared in Articles I (2) and Article 55 of the UN Charter. Chap~r XI dt!als with Declaration regarding Non-Self Governing Territories while Chapter XII deals with lmemational 8 9 Michla Pomerance, "The United States and Self-determination : Pt!rspectives on the Willsonian Conception" in AJIL, Vol. 70 (1976): p. 2 Brown P.M., "Self Determination in Central Europt!". in Amc:rican Journal of Int. Law 14 (1920); p Emerson. n.2, p

7 Trusteeship system. In resolution 637 A (VII) of 16 December the General Assembly recommended inter-alia. that the state member of the UN shall uphold the principle of self-determination of all peoples and nations. The inclusion of selfdetermination in UN Charter is more due to the pressure of Afro-Asian countries to achieve their independence or independent destiny in their own fashion. The literature on self-determination is dominated by three perspectives-idealist. realist and radicals. Idealist claim that self-determination is just in its own right. represents essential guarantee of future peace and should have been applit:d "universally. integrally, forcefully, sciemitically". But the idealist say that the ideal of selfdetermination was not followed in the aftermath of World War-1 as the 'idol' who was to give the ideal proved to have 'Clay feet. ' 11 The idealists cite the examples of Germans Armenians, Koreans, Georgians, Arabs of Syria. Kurds etc. during 1930's. 1940's and 1960's. The Realist say that self-determination can never be an ideal capable of universal application as its application is dangerous to peace and stability and it raises hopes which can never be realized. Realist say that it is in essence an impractical moralistic slogan with pernicious implications and dangerous if it enters minds of cenam races. Regarding Wilsonian's 14-Pt and self-determination. the realists say it was mere sloganeering and a general American 'Legalistic Moralistic' approach to foreign policy aimed at realizing the objt!ctive national interest' of the US. The radicals agree with realist' in perceiving Wilsonian's self-determination as representative of American foreign policy but deplore the Wilsonian self-determination as an economic imperial imperative'. American policy was to break up other states 11 Pomerance. n.8. p.3 59

8 political empires as such empires closed the doors to American economic penetration. American goal is to replace political imperialism with its own brand of economic imperialism or neocolonialism. 12 The capital penetration constituted a form of conquest and Wilson had stated that a country is owned and dominated by the capital that is invested in it. Wilsonian pre war, wartime and post-war thought on self-determination reveals a fusion and confusion of several ideas. The concept of self-determination has raised many questions. How is the con-:ept to be reconciled with the countervailing principle of territorial integrity and polnical independence of existing states? The Declaration on Colonialism (General Assembly Resolution 1514) simply restates the dilemma by incorporating both the principles of selfdetermination and territorial integrity. How far should one go back in applying the modern concepts? Can pre-modern feudal relationships form the basis of a claim to sovereignty with the exclusion of the self-detem1ination of the area concerned, or justify the 'forcible occupation' of such area? 13 If the self-determination is detined as freedom from 'alien' rule, then what is 'self' and what is alien? While dealing with selfdetermination one should not loose sight of 'strategic and economic interest' of the area concerned. The judicial opinion on self-determination is rather more explicit. In South-West Africa Cases. the 10 heid that the terms of Article 2 of the Mandate Agreement disclosed a legal obligation to promote to the utmost the material and moral well-being 12 ibid, p Oeter. n. 3. p

9 and the social progress of the inhabitants of the country. 14 In the Western Sahara Case. 10 held that historically-based titles are fundamentally subordinated to the right of self-determination of national group concerned. But in practice. the concept of territorial integrity and prohibition of intervention merely provide an excuse to protect gains made by illegal occupation. The process followed for decolonization. and the very attitude implicit in the pattern followed by the UN. OA U and the third world countries is that the demands for self-determination legirimises the existence of a natton and the right of that nation pertains to a state which is expressed territorially under the pnm:iple of uti possidetis. The declaration upon the UNGA resolution 1514 (XV) of mplit:d self-determination as the absolute right of colonial people which becomes the sine qua non of decolonization. The law of uti possidetis followed by the UN and OAU must be clearly understood to understand the problems relating to the decolonization of Western Sahara. PRACTICE/LAW OF UTI POSSIDETIS The term Uti possidetis means as you possess and is expressive of the principle of a treaty which leaves belligerents in possession of what they have acquired. But in the theoretical framework of Decolonization after 1945, this term is used for the colonial uti possidetis, as far as the people aspiring for independence iri any colonial territority is concerned. The colonial uti possidt:tis comes in direct conflict with pre-colomal uti possidetis where a new country/nation-state claims its frontier as pre-colonial utipossidetis. The question arises which uti-possidetis has more juridical value. In the 14 ICJ Report (1962). p

10 Western Sahara case, Morocco has claimed since its independence what is called Greater Morocco' comprising of the whole of the territory of Mauritania. North-West Mali. South-West Algeria, and the Western Sahara on the basis of historic rights. Whik Mauritania. Algeria and Mali have not yielded to the Moroccan claim. the Spanish controlkd western Sahara' during has been the bone of contention between Morocco and Mauritania. Moro~o:co claims that during the Protectorate's Regime the French had altered the boundary without the consent of the Moroccan Sultan or authorities. Morocco further claims that since Morocco was a mere Protectorate. the French had no right to change the boundary/frontier to the detriment of Morocco and it being done, the same remain invalid and void in the eyes of law. In the pre-colonial uti possidetis, Morocco's rule and influence extended over what is called blad-al-makhzen and bilad-as-siba. It was in the t»ad-al-makhzen, that the Sultan exercised his complete authority while the bilad as-siba was the land of dissidence or the area outside the Sultan's control. The military might or authority of the Morocco was instrumental in bringing an area into the makhzen and the moment the Moroccan rulers became weak. the area of blad-as-siba incre~; and a number of area or tribe passed from submission to resistance. It is only in the religious sense that the tribes in blad-as-siba accepted the Sultan as amir-ul-mu'minin (i.e. the commander of the faithful). This religious sense of submission has nothing to do with the 'territorial sovereignty' of Sultan over the rebellious tribes. Moreover. the control of Moroccan Sultan over blad-as-siba has never been constant, continuous. fixed and deman:ated. Historically, the area of Western Sahara was not even the part of bled-as-siba. At the most there were social. cultural and trade links and that also diminished during the second half of the nineteenth century. 62

11 In addition. Morocco claims the historical links between the area's tribes and the Sultan on basis of Islamic conception of sovereignty through the bay a ceremony which forms the basis of Morocco's legal daim to the territory. 15 This daim necessarily involves a deeper probe into the n01ion of Islamic state and the concept of bay a. JURIDICAL BASIS OF STATE UNDER ISLAM : Islam was proposed by Prophet Mohammed to eal h individual and the latter submitted to the divine will for his own welfare in this world and salvation in the next. For every later member of the Islamic community whether na1ive born or converted. the individual basis of submission was recognized on the basis of pactum taciturn. The Islamic state may be based on either the One-Contract theory or Double/Two Contract theory. By One-Contra<.:t theory the isolated individuals agn:ed on a universal <.:ontract of submission to a rule which is vested at once with e:\dusive power. In Double Comract theory, the society is formed by one contract and the King/ruler is enthroned by another contract to rule in a<.:<.:ordance with certain conditions and limitation on his authority. But in both cases, Allah is regarded as supreme. though not the dire<.:t ruler of the state. 16 Accordingly, the Caliph's powers were derived from and limited by the divine law, only his appointment was made by the people. The Caliph was responsible to the people only in so far as his faithfulness was con<.:erned in the enforcement of the divine 15 JeGome B. Weiner. The Green Mardt in Historical PerspL"Ctive" in Middle East Journal Vo ; p Majid Khadduri. War and Peace in the Law of Islam (Baltimore and London. 1955). p

12 law. 17 According to al-mawardi; (AD ). if the Caliph did not fulfill or was incapacitated. from fulfilling his duties. he had no right to remain a Caliph 18 It was the Khawarij/Kharijites. who advocated the principle of revolution and to them (the Kharijites) the Caliphate was purely a democratic institution. based on a Second Contract theory which empowers the electorate. to depose or put to death a Caliph who violates his duties. 19 In Islam. God never had been regarded as the immediate ruler ot IllS subjects and only his representatives (vice regents) on earth were the real exccutjn's. Hence the divine law (or a sacred rule}, regarded as the source of governing authority. was the essential feature in the process of control under these systems. The law prt.'t:edes the state and provides the basis of state. 20 The legal position of a.territory depends on the allegiance of its people to Islam, not on mere proclamation that it belongs to Islam. CONCEPT OF BAY' A Closely related to the notion of state under Islamic law. is the concept of bay s which establishes the link between the ruler and ruled in the dar ul-islam. Bay'a is an Arabic term which denotes the act by which a certain number of persons acting individually or collectively recognize the authority of another person. Thus the bay a of 17 ibid, p H.A.R. Gibb. "AI-Mawardi's Theory of the Khilafa". in Islamic Culture Vol. 11 (July, 1937) pp Thomas Arnold. The Caliphate (Oxford. 1924). pp Khadduri. n. 76. p

13 a Caliph is the act by which one person is proclaimed and recognized as head of the Muslim State. In a non-technical sense "to make bay'a in regard to some matter" means to reach an agreement on this matter. The bay a has two principal aims which differ in their scope and nature. The first is that of adherence to a doctrine and recognition of the pre-established authority of person who teaches it. In this sense. the bay'a simply recognized the pre-established authority of a person and to promise him obedience. In the second sense. the principal aim of the bay'a is the ekction of a person to a post of command and in partiwlar. the dection of a Caliph. when a promise of obedience is implied. 21 The bay'a was used to swear allegiance to Kings as well as Caliphs. Bay'a as an oath of allegiance was different from the mere private compact (al-aiman wa'l uhud). New dynasties took the bay'a from a town in some circumstances, which meant bay'a from leading men and volunteer soldiers of the town. as there was no municipalties that could swear on behalf of their members. The bay'a was generally taken from Awliya. i.e. those employed as agents of the dynasty: the high officials and above all, the soldiers. The bay'a conveyed a real commitment and soldiers gave the bay'a with deliberation. Bay'a can also be taken to enter the service of a new monarchy. Bay'a was also the means of expressing politil'al loyalty. 22 The legal doctrine of bay'a analyses it as a contractual agreement. On the one side there is the will of the electors. l xprcssed in the designation of the candidate which H.A.R. Gibb, B. Lewish. Ch. Pellat and J. Schacht. Edn. The Encyclopaedia of Islam New Edition; Vol. I (A-B) London 1960) Pp Roy P. Mottahedah Loyalty and Leadership in an Early Islamic Society (Princeton N.J ) p

14 constitutes the offer and on the other side is the will of the elected person which constitutes the acceptance. Bay'a is a voluntary act sui generis which involves the general public. It must be stressed that the doctrinal analysis. even when so regarded. is only fully valid in regard ro the bay'a of election and not in regard to the bay a of simple homage. For in the latter case adherence become obligatory and no room is left for any freedom of action. But the form of bay' a remains the same in both its roles. The effect of bay'a is limited by the law; for bay'a is made on the condition that its recipient remains faithful to the divine prescriptions, which means that if the ruler does not abide by these prescriptions, those who have performed the bay'a in his favour are thereby released from their obligations. 23 So, by applying the concept of Bay'a and Islamic notion of State, one can conclude from the historical facts mentioned in Chapter 1. that it was the failure of the Moroccan rulers which compelled them to distinguish between blad-ai-makhzen and blad-as-siba. When the blad-as-siba is not under the control of Sultan and it was the area of dissidence, how can it be possible for tribes to offer Bay'a? Even other conducts like refusal to pay taxes, concluding separate agreements with European, taking free decisions \Vhen there is no military pressure, the Saharawi tri~s beyond river Dra'a put a negative seai on the claim of Morocco. Moreover by applying one-contract theory or Double Contract theory, it can easily be derived that the Saharawi did not gave the kind of support to the Moroccan Sultan as required to rule them. To maintain peace and avoid military cont1ict, the Saharawi tribes might have accepted some of the conditions but did not conclude any kind of agreement to subject themsehes absolutdy to the Moroccan rulers. Rather. there are instances when the tribes had led 23 Gibb. n.21, p

15 armies against the Moroccan rulers when the Moroccan Sultan capitulated to the European powers. Thus the Moroccan claim on the basis of Pre-Colonial uti possidetis does not hold much water. The concept of colonial uti possidetis implies that the successor state accept international boundaries set by the predecessor regime. Uti possidetis and the territorial integrity of the states was declared as the ultima ratio-especially in Africa and it formed the theoretical framework in which the right of set f-determination was accepted by the majority of the UN mem~rs. Even the International Court of Justice has aftirmed the role of'uti possidetis principle' as an elementary constituent of the international legal order in Africa. 24 Whether or not the boundaries of the colonial empire decreed by cultural messianism. mercantilist greed. the Congress of Berlin or all three-made sense or not in ecological, geographic or demographic terms, the rule which emerged as sine qua non of decolonizat1on was that these boundaries could be altered only with the consent of the government. 25 Even the African states, led by the OA U. had insisted through its Cairo Declaration in 1964 and under Article 3(3) of the OAU Charter, that each colony in the final stage of decolonization must exercise its right of selfdetermination within the confines of established boundaries, thereby enunciating and reiterating the conl ept of intangibility of international frontiers and the primacy of right of self-determination O\'er all other rights. particularly the historic rights. There is no denying the fact that in somt' cases. the 'colonial uti possidetis' may 'tend to perpetuate 24 Oeter. n.3. p Thomas M. Franck. "The Theory and Practice of Decolonization : The Western Sahara Case". in Richard Lawless and Laila Monahan. Ed. War and Refugees : The Western Sahara Contlict (London & N. Y. 1987) p

16 certain historic injustices or cultural hardships'. 26 but what should not be forgotten is that the other alternatives were worse. The wholesale redrawing of the map of Africa on this basis of historic links/claims could only lead to chaos, war and the unraveling of a continent's state system. Even the resolution 1514(XV) of 1960 warned that any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the UN Charter. If a territory wishes to join with one or several neighbouring states. it should han~ the right to manifest that preference in the process of decolonization. 27 through only the free choice of the people. A territory with recognized boundaries should not be absorbed or dismembered without the consent of people inhabiting the territory. As the Saharawi people inhabiting the 'Western Sahara' underwent the colonial experience. developed indigenous resistance and produced nationalist sentiment against the Spanish rule their wisn should have been respected more than anything else, as was the practice being followed by the UN. OAU. NAM and other organizations. PRINCIPLE OF DECOLONIZA TION : The process of decolonization started in its sincere earnest after the end of World War II. During 1945, there were well over 120 colonial territories ac'-.:ounting for nearly one-th,rd of the world's land, and around 750 million people lived in colonies. By there were only arand 3 milliort people Jiving in colonies. The primary reason :! 6 Thomas M. Franck. "The Stealing of the Sahara" American Journal of International Law. Volume 70 (1976), p ibid. p

17 for decolonization has been the fatigue of the colonialists. After the colonial powers found it economically unvia_ble and politically embarrassing to maintain control over the dependent territories. They also found the indirect means to L"Ontrol the territories and secure advantages for them and also to unburden themself of the political and psychological disadvantages of colonialism. 28 This was possible because of the advancement of science and technology in the developed countries which facilitated their indiret:t means of control of production and marketing in the third world countries or colonized areas. But one of the major factors of decolonization has been the growth of steady membership to the United Nations of the Afro-Asian and Latin American countries, which compelled the UN to politically condemn the colonial practices. Moreover the centre of rivalry shifted from among the European colonial powers to the rivalry of USA and USSR. It is their rivalry and desire to increase their sphere of intluence in the colonized territories and the third world. which acted as a catalyst to pursuade and coerce the European colonial powers to adhere to the new norms/morals followed by the super-powers i.e. Wilsonian 14-point principle of self-determination followed by USA and the anti-imperialist stand led by USSR. During late 1940's and in 1950's, a number of colonial territories attained independence through peaceful change in countries like Phillipines. India, Burma. Indonesia, Cambodia. Morm:co, Tunisia, Ghana,.M.alaysia, etc. But there were some countries that had to wage protracted war of independence like the Algeria against France. Southern Rhodesia and Nambia against the Portugal. Vietnam against France and 28 Theodore A. Coulombis and James H. Wolfe, Introduction to International Relations: Power and Justice (New Delhi. 1986). p

18 the USA. etc. Though decolonization represents only a limited realization of selfdetermination of the people, 'it could well be regarded as emancipating coloured people from whites'. :! 9 The United Nations involvement in the 'Decolonization process' began with the Second World War. The anti-colonial stand was built into the United Nations Charter. The decolonization effort of the UN was derived from the principle of 'equal rights and self-determination of peoples' enunciated in Article 1 of the Charter as well as from the three specitic chapters in the Charter- XI, XII and XIII, which set out the Organization's role and responsibilities in relation to colonial territories. While Chapter XII of the Charter established the International Trusteeship System of supervision of Trust Territories placed under it by individual agreements with the states administering them. the system applied to (a) Territories then held under Mandates established by the League of Nations after the First World War (b) Territories detached from enemy states as a result of Second World War and (c) Territories voluntarily placed under the system by states responsible for their administration. Chapter XIII of the Charter provided for the establishment of Trusteeship Council with the aim to supervise the administration of Trust territories and to ensure that government responsible for their administration took adequate steps to prepare them from the achievement of the Charter goals. Chapter XI of the Charter. "Declaration Regarding the Non-Self Governing Territories" provides that the members of the UN which administer Territories whose people have not attained a full measure of selfgovernment recognize the principle that the interests of the inhabitants of those territories 29 Oeter. n.3. p

19 are paramount and accept as a sacred trust the obligation to promote to the utmost the well-being of the inhabitants. To assist the political aspiration of the dependent peopks in the progressive development of their free political institutions. Administering Powers were obliged to transmit regularly to the Secretary-General statistical and other information on the economic, social and educational conditions in their respective territories. 30 But new problems kept pouring in. Spain and Portugal jointed the UN in 1955 and when asked by the UN to furnish information regarding the colonial territories; they both stated that their overseas possessions were not colonies. Spain had declared in 1958 that the Spanish Sahara and Ifni were to be the provinces of the metropolitan Spain. But by 1961, Spain eventually agreed to transmit information on its overseas territories. The urgent demand of the dependent peoples to be free of colonial domination and the international community's perception that the Charter principles were being too sluwly applied led to the General Assembly's proclamation (Resolution 1514 (XV)) on 14 December 1960 of the Declaration on the Granting of Independence to Colonial Countries and Peoples (hereinafter to be referred as Declaration of 1960) by a overwhelming majority of 89 in favour to none against with nine abstentions. The Dcdaration left no doubt about where the international community stood in the matter of dccolonization. Subjugation of people to alien domination and exploitation was prodaimed a denial of fundamental human rights. contrary to the United Nations Charter. All peoples have the right to self-determination and therefore the right freely to determine their politil:al status and pursue their economic. social and cultural 30 UN. Brief Facts About the United Nations (New York. 1987). p.ll9. 71

20 development. It also declared that inadequacy of political, economic. social or educational preparedness should never serve as a pretext of delaying independence and cajied for an end to all armed or repressive action directed against dependent peoples and for "immediate steps" to be taken towards the transfer of power to them in accordance with their freely expressed will and desire. The Assembly believed that the process of liberation was irresistible and irreversible and that in order to avoid serious crisis, an end must be put to colonialism and all practices of segregation and discrimination associated therewith. 31 In 1961, the General Assembly established a Special Committee on the situation with regard to the implementation of Declaration (1514 (XV)), with wide-ranging power to study_. investigate and recommend action. The Special Committee of 24 (membership was enlarged from 17 to 24 in 1962) became the international community's watch dog on the progress of decolonization. The General Assembly had earlier repeatedly reaftirmed that questions of territorial size. geographical location, size of population and limited natural resources should in no way delay the implementation of the Declaration. It also urged the specialized agencies and other organizations of the UN systems to extend all necessary moral and material assistance to peoples of colonial territories and to their national liberation movements. In , in connection with the tenth. fifteenth. twentieth and twentififth anniversaries of the adoption of the Declaration (i.e. 1514(XV)), the Assembly adopted a series of action plans and programmes aimed at expediting and speedily implementing tht: Declaration. The Western Sahara issue was reviewed in the plenary 31 UN. The United Nations of Forry (New York. 1985); p.64 72

21 meeting of tht: Spt!cial Committee. The Spt:cial Committee;: had pointed out that two important fa~:tors rt:tarded the process of decolonization - the rol~:: of for~::ign economil: mt~::resrs which protit from the;: continuation of colonial ruk and tht: military int~::resrs of colonial powers. In the Assembly dedared that the further continuation of colonialism was a crimt: and p~::ople under such rule had an inherent right to struggk by all n~essary means at their disposal against colonial powers whil:h were suppressing tht:ir aspirations for freedom and independence. It further decided to invite representative;: of liberation movements to participate in UN organs whenever necessary. On 26 February 1976, Spain informed the Secretary-General that as of that date it had terminated its prest:nce in the Territory of the Sahara and deemed it necessary to pla~:e the following on record : Spain considers itself henceforth exempt from any responsibility of an international nature in connection with administration of the territory. in view of the cessation of its participation in the temporary administration established for the territory. On 5 December 1984, the General Assembly reaftirmed that the question of Western Sahara remained a question of decolonization which remained to be completed by the people of Western Sahara. The Assembly entrusted the Secretary General in respect of Wc:stern Sahara with specitic tasks in assisting in and facilitating the process of decolonization. in ac~o:ordance with the process of decolonization under the UN Charter and the objectives of the Dedaration. In a nutshell, the decolonization proct:dure adopted by tht: UN under the Resolution 1514(XV) of 1960 gave/allowed three;: possibilities : Sovereign independence. free association with an independent state or integration with an independent state. The Resolution 2625 (XXV) of 1970 confirmed 73

22 this choice by stating that any political status could be chosen by a population seeking decolonization provided only that such a choice was 'freely determined by a people'.n WESTERN SAHARA ISSUE BEFORE INTERNATIONAL COURT OF JUSTICE (IC,f) The General Assembly of the United Nations passed a resolution 3292 (XXIX) wherein it decided to request the ICJ to give an advisory opinion on the legal controversy which arose over ti1e status of the said territory (Western Sahara) at the time of its colonization by Spain. The 10 was requested to give an advisory opinion on the following questions - I. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belong 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? These questions were considered by 16 Judges for advisory opinion. After hearing the arguments from the concerned parties and scanning the document plact:d before it, the ICJ Decided: With regard to Question I by 13 votes to 3; and with regard to Question II by 14 votes to 2, to conmply with request for an advisory opinion. The ICJ was of the Opinion: 32 George Joffe, "The International Court of Justice and the Western Sahara Dispute" in Richard Lawless and Laila Monahan Eds. War and Refugees (London & New York, 1987) p.20 74

23 - With regard to Question I. unanimously, that the Western Sahara 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 the optmon; - With regard to Question II, 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 the opinion. While deciding the question and forming its opinion, the Court had to deal with a number of questions and issues. Morocco and Mauritania had submitted a request of the appointment of a Judge ad hoc to sit in the case. But, the court held that only Morocco was entitled under Article 31 and 68 of the Statue and Article 89 of the Ruks of Court to choose a person as judge ad hoc. Accordingly, Morocco chose Mr. Alphonse Bani of Ivory Coast to sit as judge ad hoc in the case. Three preliminary issues were raised before the court 33 - (a) Whether the court is confronted with a legal question? (b) Whether there are compelling reason for the Court's declining to reply to the request? (c) What would be the eventual effect of the Court's tinding on the further process of decolonization of the territory? "The court held that the questions submitted by the General Assembly had been framed in terms of law and raise problems of international law. Article 65. paragraph 1. of the Statute authorises 'the Court to give an opinion on any legal questions at the 33 Western Sahara. Advisory Opinion. ICJ Report p. 9 75

24 request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Moreover. the present request had been made pursuant to Article 96. paragraph 1. of the Charter of the UN, under which the General Asst!mbly may seek the Court's advisory opinion on any legal question. abstract or otherwise. 34 The court further held that it is competent under Article 65 paragraph 1, of its statute to entertain the present request. by which the General Assembly had referred to it questions embodying such concepts of law as tera nullius and legal tit!s. regardkss of the fact that Asst!mbly had not requt!sted to dt!termination of existing rights and obligations. 35 Spain made the foilowing observations before the court relating to the lack of its consent to the proceeding, which Spain considers, should lead to Court to decline to give an opinion- (a) 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 raise issues concerning the attribution of territorial sovereignty over Western Sahara. (c) The Court does not possess the nt!cessary information concerning the relevant facts to enable it to pronounce judicially on the questions submitted to it. 36 The Court held that in the present case. Spain is a Member of the UN and has accepted the provisions of the Charter and Statute, and thereby it has given its const!nt 34 Opinion, n.32, p.i ibid. p ibid. p

25 to the exercise by the Court of its advisory jurisdiction. Spain could not validly objet.:t to the General Assembly's of a non-self-governing territory and to seek an opinion on questions relevant to the exercise of those powers. 37 The consent of the intt!rested state continues to be relevant. not for the court's competence. but for the appreciation of the propriety of giving an opinion. The legal controversy arose during the proc~ings of General Assembly from 1966 to 1974 and it did not arise indept!ndently in bilateral rt!lations. Moreover, the legal status of the territory pt!rtain to tht! qut!stion of rights of Morocco over it at the time of colonization. Regarding the objection of Spain that the dispute is a territorial ont!. the Court held that the Court is neither considering Spain's present position as tht! administering Power of the territory, not adjudicating upon existing territorial rights or sovert!ignty over territory. Regarding the Court's possessing necessary information regarding the relevant facts, the Court held that the Mauritania, Morocco and Spain have furnished extensive documentary evidence of fact which is sufficient to enable it to arrive at a judicial conclusion. 38 Extensive arguments and divergent views were presented before the coun by Morocco. Algeria < id Mauritania as to how and in what form the principles of decolonization apply in this case, in the light of various General Assembly resolutions on decolonization in general and on decolonization of Western Sahara in particular. The: Court considered various provisions of the UN Charter, the 'Declaration on the Granting of Independence to Colonial Countries and People', and various General Assembly 37 ibid, p ibid, p

26 resolutions on Ifni and Western Sahara and held that Resolution 2229 (XXI) which dealt with Ifni and Western Sahara was the model for a series of resolutions. The right of the population of Western Sahara to determine their future political status by their own freely expressed will. is not affected by the present-request for an advisory opinion. The right of that population to self-determination constitutes a basic assumption of the questions put to the Court. 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 had referred to its intention to continue its discussion of this question' in the light of the Court's advisory opinion. 39 Turning to Question I, the Court observed that the request specifically locates the question in the context of 'the time of colonization by Spain' and therefore the question must be interpreted by reference to the law in force at that period. On the basis of information furnished, the Court held that at the time of colonization Western Sahara was inhabited by peoples who were socially and politically organized in tribes and under chiefs competent to represent them. Spain did not proceed on the basis that it was establishing its sovereignty over terrae nullius. In it Royal Order of 26 December Spain proclaimed that the King was taking the Rio de oro under his protection on the basis of agreements which had been entered into which 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 Espanola de Africanistas. 39 ibid. p

27 Likewise in negotiating with France concerning the limits of Spanish territory to the north of the Rio 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 40 Thus, the Court's answer to Question I was in negative. Regarding Question II as to what were the legal ties between Western Sahara and. the Kingdom of Morocco and the Mauritanian entity, the Court opined that the scope or this question depends upon the meaning attached to the expression 'legal ties in the context of the of colonization of the territory by Spain. Morocco claimed ties of sovereignty before the court on the ground of an allegl!d immemorial possession of the territory based on the public display of sovereignty. uninterrupted and uncontested for centuries. But, the court held that in determining its answer to question II, it 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. Regarding Morocco's request for taking account of the special structure of the Sheritian State, the Court distinguished the Bled Makhzen from Bled Siba and held that the areas immediately to the north of Western Sahara lay within the Bled Siba at the relevant period. As evidence of its display of sovereignty in Western Sahara. Morocco invokoo alleged acts of internal display of Moroccan authority and certain int~rnationa! acts said to constitute recognition by other states of its sovereignty over the whole or part of the territory. Moroccan evidence of 'internal' display of authority consisted of the alleged allegiance of Saharan caids to Sultan including dahirs and other document conce::rning the 40 ibid. p.32 79

28 appointment of caids, the alleged imposition of Koranic and other taxes. allegiances of confederation of Tekna tribes. military decisions regarding resistance to foreign im asion of the territory, and that the Marabout Ma-ul-Aineen was the personal representati\'e of the Sultan in late 1890's. The Courr took into account the position of the Sultan of Morocco as a religious leader and held that almost all the dahirs and other acts concerning raids relate to areas situated within present-day itself and do not in themselves provide evidence of effective display of Moroccan authority in Western Sahara. The expeditions of Sultan Hassan I ro the south in 1882 and 1886 both had objects specitically directed ro the Sous and the Noun. They did not reach even as far as the Dra a. 41 Even taking into account the specitic structure of the Sheritian state, Morocco could not establish any effective display of territorial sovereignty over Western Sahara. Morocco invoked international acts to prove that Sultan's sovereignty was recognized directly or indirectly upon the south of the Noun and the Dra a. Morocco relied on: (a) Series of Moroccan treaties with Spain of 1767; with US of with Great Britain of I 856 and with Spain of 1861, in which provisions regarding the rescue and safety of mariners shipwrc:cked on the coast of Was Noun it vicinity were inserted. (b) Moroccan treaty with Great Britain of 1895 in which Great Britain recognized the lands between Wad Draa and Cape Bojador called Tarfaya, and all the lands behind it. as part of Morocco. 41 ibid. p.39 80

29 (c) Franco-German exchange of letter of 1911 which expressed the understanding of the parties that Moron:o comprised all that part of northern Africa which is situated between Algeria, French West Africa and the Spanish colony of Rio de oro. (d) Diplomatic correspondence relating to Treaty of Tetuan of 1860 and an alleged agreement with Spain of 1900 relating to cession of Ifni. 42 The court examined the provisions in the above-mentioned treaties and it was of the view that they cannot be considered as implying international recognition of the Sultan's territorial sovereignty in Western Sahara. The Anglo-Moroccan Agreement of 13 March 1895 by which Morocco purchased from the North-West African Company the: trading station at Cape Juby, was not an acceptance by Great Britain of Sultan's existing sovereignty but of his interest in that area. Similarly. the doubts raised by Spain and Mauritania as to the alleged protocol of 1900 have not been dispelled by the materials before the Court. The Court cannot take possible existence of any such document into account. Regarding the exchange of letters annexed to the Agreement between France and Germany of 4 November 1911, which Morocco presented as recognition by those Powers of Moroccan sovereignty over the Sakiet El Hamra, the Court was of view that the purpose of these agreements was to recognize or reserve for one or both parties a sphere of intluence' as understood in the practice of that time. Such agreements were essentially contractual in character. The Court did not accept Franco-German exchange of letters of 1911 as constituting recognition of the limits of Morocco rather than of the sphere of Fr~ce's political interests vis-a-vis Germany. But. the Court held that some elements like the material relating to the recovery of the ship wrecked sailors do provide 42 ibid. p.41 81

30 some indications of international recognition at the time of colonization of authority of or intluence of the Sultan displayed through Tekna caids of the Noun, over some nomads in Western Sahara. 43 Over the question as to what were the legal ties between Western Sahara and the Mauritanian entity, at the time of colonization by Spain, the court held that since 'Mauritanian entity' did not then constitute a State, therefore there was no legal ties of State sovereignty, but other legal ties. Mauritanian argued that at the time of Spanish colonization. the Mauritanian entity extended from Senegal river to the Wad Sakiet El Hamra. The legal relation was therefore 'the simple one of inclusion' and the Bilad Shinguitti was an entity united by historical. religious, linguistic, social, cultural and legal ties which formed a community having its own cohesion. The court held that Bilad Shinguitti cannot be considered as having been a Mauritanian 'entity' enjoying some form of sovereignty in Western Sahara. But there were legal ties between territory of Western Sahara and Mauritanian entity which knew no frontier between the territories and which was vital to the very maintenance of life in the region. The Court finally expressed the operative part of the Advisory Opinion m Paragraph 162 which states- "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 and 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 43 ibid. p.48 82