Western Sahara case : Western Sahara was colonised by Spain in 1884 and was known as Spanish Sahara. In 1960 it was added to the UN General Assembly list of non-self- governing territories and from 1963 onwards it was considered by the UN Special Committee on Decolonisation. In 1966 the General Assembly asked Spain, in consultation with Mauritania and Morocco to ‘determine at the earliest

doi:10.4324/9781843143802-53

Chapter

ABSTRACT

II What were the legal ties between this territory and the Kingdom of Morocco and the Mauritian entity?5

Opinion of the Court 79 Turning to Question I, the Court observes that the request specifically locates

the question in the context of ‘the time of colonisation by Spain’, and it therefore seems clear that the words ‘Was Western Sahara ... a territory belonging to no one (terra nullius)?’ have to be interpreted by reference to the law in force at that period. The expression ‘terra nullius’ was a legal term of art employed in connection with ‘occupation’ as one of the accepted legal methods of acquiring sovereignty over territory. ‘Occupation’ being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of 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 (cf Legal Status of Eastern Greenland, PCIJ, Series A/B, No 53, pp 44f and 63f). 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’.