The International Court of Justice And The Western Sahara

The story is happening in December 1974. At the request of the U.N General Assembly, the U.N
Secretary General asks the International Court of Justice (ICJ) located in The Hague (Netherlands) to
give an Advisory Opinion on the Western Sahara issue by answering two questions :
1. Was Western Sahara (Rio de Oro and Sakeit El Hamra) at the time of colonization by Spain a territory
belonging to no one (terra nullius)? and 2. What were the legal ties between that territory and the
Kingdom of Morocco and the Mauritanian entity?
On October 16th, 1975, the Court delivered its advisory opinion which came like this :
"With regard to 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)?",
- decided by 13 votes to 3 to comply with the request for an advisory opinion;
- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain was not a territory belonging to no one (terra nullius).
With regard to Question II, "What were the legal ties between this territory and the Kingdom of
Morocco
and
the
Mauritanian
entity?",
the
Court
- decided by 14 votes to 2 to comply with the request for an advisory opinion;
- was of opinion, by 14 votes to 2, that there were legal ties between this territory and the
Kingdom of Morocco of the kinds indicated in the penultimate paragraph of the Advisory Opinion;
- was of opinion, by 15 votes to 1, that there were legal ties between this territory and the
Mauritanian entity of the kinds indicated in the penultimate paragraph of the Advisory Opinion ".
That's it.
This is the exact ICJ Opinion on the Western Sahara. But that's half (or three quarters, depending on
your position on the conflict) of the cup...the court completed its opinion quoted above by a
"penultimate paragraph of the Advisory Opinion" that explains the nature of the ties between the
Western Sahara and Morocco and Mauritania. So here is that juicy part fully quoted again :
"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 of 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 Sahara. On the other hand,
the Court's conclusion is that the materials and information presented to it 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 General Assembly 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 ".
In the war of arguments that characterizes the Western Sahara conflict, both Morocco and the Polisario
try to use the ICJ decision to their favor. Morocco holds on to the decision itself which recognizes the
existence of legal ties between the kingdom and the territory of Western Sahara. Morocco further relies
on the first part of the explanatory paragraph which recognizes the existence of legal ties of allegiance
between the Sultan (King) of Morocco and some sahrawi tribes. On the other hand, Polisario uses the
other part of the explanatory paragraph which doesn't recognize the existence of Moroccan
sovereignty on the territory and acknowledge the right of self determination of the peoples of the
territory.

The same thing happens with both parties supporters. Don't be surprised when reading about the
subject if you find that the original text of the ICJ Advisory Opinion is largely cut to reflect only one
position or to try to influence readers.

Western Sahara case brief

Western Sahara (ICJ, 1975; p. 288)

It had been colonized by the Spanish for many yrssince Papal Bull (1492). Spain resisted
adjudication.

Morocco claimed the north half and Mauritania claimed the S. Half. Mauritania was indep
from Fr in the 60s, but Morocco claimed it was part of Morocco). This area had a huge deposit
of phosphates. (Oil deposits)

Resolution 1514 (1960)a normative Gen Ass resolutionDeclaration on the Granting of

Independence to Colonies.

Morocco eventually claimed the whole area and Spain wldnt consent to a contentious
proceeding. If this is really a contentious proceeding, can an advisory opinion work? Within the
framewk, , Muth says this is ok. Ct sees its role as broaderto help the UN.

Holding 1: At the time of colonization, the land was not terra nullius.

Muth: Agrees there are legal issues in this case.

Problem with a referendum is how do you ask the questionW. Sahara and Morocco cldnt
agree on this. So now UN wont even push for a referendum.

Efficacy of intl court: Its opinion in this case has been ignored for 26 yrs!

Presence of organized tribes made it not terra nullius.

Holding 2: There were some ties btwn the nomadic tribes and Morocco but not
enough to say full political allegiance. (Like in E. Greenland case and Muth says ct is
right). Ct says the same about the ties w/ Mauritania.
What shld be the role of the ct in the 21st century?
o In North Sea Casect was very bold in its application of the law.
o In others, it has been very passive (SW Africa, Lotus)

Muth: Ct needs to address the issue of political questions b/c if it doesnt, this cld
undermine the court if it is not managed well.

The Western Sahara Case

The International Court of Justice has also specifically rejected the notion that lands inhabited by
nomadic peoples may be acquired on the basis of occupation as terra nullius. In the Mabo decision,
Justice Brennan quoted from the 1975 majority judgment of the International Court of Justice in its
Advisory
Opinion
on
Western
Sahara.
The
International
Court
said:
'"Occupation" being legally an original means of peaceably acquiring sovereignty over territory
otherwise than by cession or succession, it was a cardinal condition of a valid 'occupation' that the
territory should be terra nullius - a territory belonging to no-one - at the time of the act alleged to
constitute the "occupation" ... . In the view of the Court, therefore, a determination that Western
Sahara was a "terra nullius" at the time of colonisation by Spain would be possible only if it were
established that at that time the territory belonged to no-one in the sense that it was then open to
acquisition through the legal process of "occupation".... Whatever differences of opinion there may
have been among jurists, the State practice of the relevant period indicates that territories inhabited
by tribes or people having a social or political organisation were not regarded as terra nullius.'

-o0o

Tinoco Claims Arbitration (Great Britain v. Costa Rica) case brief

Tinoco
Claims
Arbitration
(Great
Britain
v.

Costa

Rica)

(1923) 1 R.I.A.A. 369

Procedural History
Arbitration of contract repudiation.

Overview
Great Britain (P) claimed that the former government of Costa Rica (D), the Tinoco regime, had granted
oil concessions to a British company that had to be honored by the present regime. The Tinoco regime
had seized power in Costa Rica by coup. Great Britain (P) and the United States never recognized the
Tinoco regime. When the Tinoco regime fell, the restored government nullified all Tinoco contracts,
including an oil concession to a British company. Great Britain (P) claimed that the Tinoco government
was the only government in existence at the time the contract was signed and its acts could not be
repudiated. Costa Rica (D) claimed that Great Britain (P) was estopped from enforcing the contract by
its nonrecognition of the Tinoco regime. The matter was sent for arbitration.

Issue
Does nonrecognition of a new government by other governments destroy the de facto status of the
government?

Rule
-A government that establishes itself and maintains a peaceful de facto administration need not to
conform to previous constitution and nonrecognition of the govt. by other govt.s does not destroy the
de
facto
status
of
the
govt.

Analysis
The arbitrator found there was no estoppel. The evidence of nonrecognition did not outweigh the
evidence of the de facto status of the Tinoco regime. Unrecognized governments thus may have the
power
to
form
valid
contracts.

Outcome
No. A government that establishes itself and maintains a peaceful de facto administration need not
conform to a previous constitution and nonrecognition of the govern ment by other governments does
not destroy the de facto status of the government. Great Britain's (P) nonrecognition of the Tinoco
regime did not dispute the de facto existence of that regime. There was no estoppel since the
successor government had not been led by British nonrecognition to change its position.

Great Britain v Costa Rica, (1923) 1 RIAA 369

Facts:
Government of Costa Rica was overthrown and the new government passed a law invalidating all Ks
and made a new Constitution. When this government fell Great Britain sued Costa Rica for debts. Costa
Rica's new government claims no responsibility for what the old government did.
Great Britain says that Tinoco (the head of the old government) was the government de facto and de
jur Cost Rica says Tinoco wasnt a government in international law.
Tinoco contracted a lot of foreign debt while running Costa Rica, including with Great Britain.

Ratio:
Even an illegal government may bind a state to international obligations. International law looks to the
State, not the gov entity w/in the state.
Caveat: when government in power contrary to international law, not just domestic law, then
doctrine of state continuity will not generally apply

Analysis:
Tinoco was a sovereign government. Even though some sates did not recognize it that cannot
outweigh the evidence disclosed that de facto it was a government.
The question is not if the government abides by a constitution but is: Has it established itself in such a
way that all w/in the its influence recognize its control, and that there is no opposing force assuming to
be a gov in its place
As long a it is the effective government of the state it is the government of the state. Debts owed are
not owed by the government of the day but between the state the only legal entity that is relevant is
the state.

Holding:
Great Britain was able to sustain a claim against Costa Rica because the Ks were made with Costa Rica
not Tinoco.

Brief Fact Summary

The Tinoco regime, which was the former government of Costa Rica, was alleged by Great Britain to
have granted oil concession to a British company that had to be honored by the present regime.

Synopsis of Rule of Law

A government need not conform to a previous constitution if the government had established itself and
maintained a peaceful de facto administration and non-recognition of the government by other
government does not destroy the de facto status of the government.

Tinoco Arbitration Case (Great Britain vs. Costa Rica) (1923)

Background

1917 Government of Costa Rica [President Alfredo Gonzales] overthrown by Federico Tinoco.

1919 Tinoco retired, left the country Government fall.

Tinoco assumed power & established new constitution

During his tenure, he:
o Granted certain concession to search for oil to a British company
o Passed legislation issuing certain new currencies, and British banks [in the course of
business] became holders of much of this currency
Old constitution restored and elections were held.
August 22, 1922, restored government passed Acts nullifying the currency laws it had made
Consequence: Invalidated all transactions involved
The restored government is a signatory of the treaty of arbitration.

The Claim

Brought by Great Britain on behalf of two British Corporations:

o Royal Bank of Canada
o Central Costa Rica Petroleum Company

Royal Bank of Canada claimed:

o Banco Internacional of Costa Rica and the Government of Costa Rica are indebted to it
proven by the holding of 998 1000 colones bills

Central Costa Rica Petroleum Company [CCRPC] claimed:

o It owns the rights to explore and exploit petroleum reserves in Costa Rica
o This is based on a grant issued by Tinoco

The Defense

Great Britain:
o On behalf of its nationals, legislation passed invalid
o Restored gment should recognize the concessions given to CCRPC and the validity of
Tinocos currency held by the Royal Bank of Canada
o During the period in question, the Tinoco Government had been the de facto and de
jure government[2]
o Supported by the fact that the government was not opposed in any significant manner
o Thus giving the government legitimacy
o All its acts were valid and its successor has no right to repudiate[annul] them

Costa Rica:

o
o

Objected. Claimed that any acts carried out by the government were void because the
Tinoco regime violated the Costa Rican constitution.
Because Great Britain did not recognize the Tinoco Government as legitimate, it cannot
then turn around and claim agreements with an illegitimate government as binding.

Held

Rejected Costa Rica arguments

In fact, the Tinoco gment had been a de facto gment during the period of its existence
o For the two years while in power, the Tinoco government served its role in a peaceful
environment
o No objections, no revolution and no power dispute.
o The court then holds that the Tinoco government was an actual sovereign
government.
o The court finds in favor of the Royal Bank of Canada, but finds the petroleum
concession to be a violation of the 1917 Constitution (which means Tinoco could have
nullified the agreement as well).

While the failure on the part of Great Britain to recognize Tinoco government was evidence to
be taken into account in deciding on the status of that government, it was not decisive as the
status of the government had to be determined in the light of all evidence

Courts arguments which is significance to the aspect of International law

Scholarly writing: Dr. John Basset Moore: Changes in the government or the international
policy of a state do not as a rule affect its position in international law.

States may change between forms of government without ceasing to be that state in the eyes
of international law, or in terms of its international obligations.

The principle of the continuity of states = state is bound by engagements entered into by
governments that have ceased to exist; the restored government is generally liable for the acts
of the usurper.