Sunday, March 25, 2012

Western Sahara case brief

Western Sahara (ICJ, 1975; p. 288)
  • It had been colonized by the Spanish for many yrs—since 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 resolution—Declaration on the Granting of Independence to Colonies.
  • Morocco eventually claimed the whole area and Spain wldn’t 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 broader—to help the UN.
  • Holding 1: At the time of colonization, the land was not terra nullius.
  • 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.
  • Muth: Agrees there are legal issues in this case.
  • What shld be the role of the ct in the 21st century?
    • In North Sea Case—ct was very bold in its application of the law.
    • In others, it has been very passive (SW Africa, Lotus)
  • Problem with a referendum is how do you ask the question—W. Sahara and Morocco cldn’t agree on this. So now UN won’t even push for a referendum.
  • Efficacy of intl court: It’s opinion in this case has been ignored for 26 yrs!
  • Muth: Ct needs to address the issue of political questions b/c if it doesn’t, this cld undermine the court if it is not managed well.

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