Request for an Advisory Opinion on Western Sahara (1974)

The GA first became involved in the Western Sahara case in 1965 when it adopted resolution 2072 (XX) (A/RES/2072(XX)) requesting Spain to “take all necessary measures for the liberation” of the territory, and to “enter into negotiations on problems relating to sovereignty”. From 1966 to 1973, the GA passed an additional seven resolutions concerning the territory, each reaffirming the requirement to conduct a referendum on self-determination.¹ Observing that the “persistence of a colonial situation in Western Sahara jeopardizes stability and harmony in the north-west African region”, on 13 December 1974, the GA requested an advisory opinion from the ICJ related to the status of Western Sahara (A/RES/3292 (XXIX)). Specifically, it asked the ICJ to consider whether “Western Sahara (Rio de Oro and Sakiet El Hamra) was at the time of colonization by Spain a territory belonging to no one (terra nullius)” (ibid., para. 1). If the ICJ replied negatively to this question, the following was to be addressed by the Court: “What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity?” (ibid.). The resolution also urged Spain to postpone the referendum it considered holding in the territory until the ICJ opinion had been offered, in order to inform the decolonization process (ibid., para. 3).

In response to the GA’s request, the ICJ delivered its advisory opinion on 16 October 1975. It did not find that Western Sahara was a “terra nullius” (belonging to no one). However, while it did find ties both with Morocco and with Mauritania, it did not find that these ties overrode the right to self-determination of the peoples of Western Sahara.² Specifically, the Court concluded it had “not found legal ties of such nature that might affect the application of the 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” and specifically referenced the Spanish referendum process, initiated in part in response to prior GA resolutions related to good offices.³

In October 1975, Moroccan troops entered Western Sahara. The Spanish Government withdrew its forces in January 1976. Since the end of 1976, Morocco has administered most of the territory of Western Sahara.