Elusive Sovereignty—People, Land and Frontiers of the Desert: The Case of the Western Sahara and the International Court of Justice

Abstract

In putting the seminal advisory opinion of the International Court of Justice on Western Sahara in perspective, the Court's opinion should not be remembered essentially for its denial of local legal exceptionalism in the face of a universally accepted principle of international law (self-determination). Rather, it should stand out as a paradigm shift from a treaty-based approach to a domestic and administrative fact-finding determination of evidence of state sovereignty and territorial occupation. The Court's analysis of the Western Saharan tribes' relationships with Morocco, in particular, in light of its newly found positivism, is a vector of further evolution towards a self-contained definition of sovereignty whereby the international treaty body may no longer be seen as the sole authoritative source. The Court's approach ultimately points to the emergence of a principle that combines internal sovereignty (proof of effective display of state authority) and external sovereignty (based on recognition expressed in international treaties) as the basis for a determination of sovereignty, even though the Court upheld self-determination for Western Sahara. The Court's specific finding with regard to legal ties between Western Sahara and Morocco suggests a differentiated approach to a future political status of the Western Sahara's northern and southern region and to a settlement of the still alive dispute: neither partition, nor independence, or integration with Morocco, but a political dispensation that could accommodate the Court's finding of legal ties of allegiance to Morocco with regard to some northern tribes. The Court's conclusion that self-determination remains the overarching principle for any future determination of the political status of Western Sahara assigns an essentially flawed decolonisation practice and process, as defined by the United Nations. The indigenous peoples of the Atlantic seaboard of the Sahara desert exemplify a unique preservation of nomadic life and organisational structure that defies classification and integration by neighbouring, emerging states and Western liberal approaches alike. The genesis and legacy of the advisory opinion offer a rare insight into a three-dimensional civilisation clash of legal and political conceptions of space, borders and power, which has much bearing on key issues impinging on the now unfolding right of indigenous peoples.

Acknowledgements

The author is grateful to Dr Margaret Wachenfeld and Allen L. Keiswetter for their thoughtful comments on earlier drafts as well as Marc Caplan for his research assistance.

Notes

1. There were actually examples in the Muslim and Arab world of tribal groups who were not expected to pay taxes to their established ruler while others were. In the central Mauritanian emirate of Trarza, a variety of taxes constituted a manifestation of political sovereignty as well as effective control over a territory and its population, not to mention the only revenues (As-Sad, 1989). It seems however that taxation was a more recent innovation of the nineteenth century, particularly in the Gulf region, in par with the vagueness of political sovereignty and territorial identification exercised by traditional rulers over the hinterland even in the first decades of the twentieth century. Effective authority or mere influence did not appear to be clearly defined, least by the extant of payment of taxes (Heard-Bey, 2004).

2. Association refers here to a delegation of certain competences (mainly foreign affairs and defence) to a principal state, though the original state retains a status of subject of international law. It is almost identical to the old notion of protectorate.

3. Marabout: holy man acting as intermediary with God for illiterate populations usually in the countryside.

4. The argument was made by Dubai, relying explicitly on the ICJ's advisory opinion on Western Sahara.

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Jacques Eric Roussellier

Jacques Roussellier is an adjunct scholar at the Middle East Institute, 1761 N. Street NW, Washington, DC 20036-2882, USA, and is an international political consultant. He has held various positions dealing with elections, human rights, dispute resolution and conflict prevention with the Organisation for Security and Co-operation in Europe, the United Nations and the World Bank Group.