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[p.6]
The Court,
Composed as above,
After deliberation,
Having regard to Articles 31 and 68 of the Statute of the Court, and to
Articles 3, 87 and 89 of the Rules of Court,
Having regard to resolution 3292 (XXIX) of the General Assembly of the
United Nations dated 13 December 1974 requesting the International Court of
Justice to give an advisory opinion on the following questions:
"I. Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)?
If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanian entity?" [p 7]
Makes the following Order:
Whereas by a letter from the Permanent Representative of Morocco to the
United Nations dated 25 March 1975, the Government of the Kingdom of
Morocco alleged that there is "a legal question actually pending" between
the administering Power of Western Sahara, namely Spain, and the Kingdom of
Morocco, as well as other States which are directly interested; and, basing
its request on Article 89 of the Rules of Court, requested the appointment
of a person to sit in the present proceedings as judge ad hoc under Article
31 of the Statute;
Whereas, by a letter from the Charge d'affaires ad interim of the
Mauritanian Embassy to the Netherlands dated 26 March 1975, the Government
of the Islamic Republic of Mauritania, relying upon Article 31 of the
Statute of the Court and Articles 87 and 89 of the Rules of Court, referred
to the recognition of its interest in the question of the Sahara under
Spanish administration by the General Assembly in resolution 3292 (XXIX),
and informed the Court of its intention to choose a person to sit as judge
ad hoc in the present proceedings;
Whereas the Court includes upon the Bench a judge of the nationality of
Spain, the administering Power of Western Sahara;
Whereas, by a letter from the Ambassador of Spain to the Netherlands dated 9
April 1975, the Government of the Spanish State informed the Court that it
was convinced that the circumstances which would render applicable Article
89 of the Rules of Court, in relation to Article 31 of the Statute, had not
arisen in the present case;
Whereas, by a letter from the Ambassador of Algeria to France dated 21 April
1975, the Government of the Democratic and Popular Republic of Algeria
reserved its rights to take part in the oral proceedings; and with reference
to the letters referred to in the foregoing recitals, stated that Algeria
reserved its rights on a basis of equality;
Having regard to the communications or written statements under Article 66,
paragraph 2, of the Statute of the Court, filed by the Governments of
Chile, Costa Rica, Dominican Republic, Ecuador, France, Guatemala,
Mauritania, Morocco, Nicaragua, Panama and Spain;
Having regard to the dossier of documents transmitted to the Court, in two
instalments, by the Secretary-General of the United Nations, pursuant to
Article 65, paragraph 2, of the Statute, as likely to throw light upon the
questions;
Having heard the respective observations of Morocco, Mauritania, Algeria and
Spain at public hearings held between 12 and 16 May 1975;
Whereas, for the purpose of the present preliminary issue of the
composition of the Court in the proceedings, the material submitted to the
Court indicates that, when resolution 3292 (XXIX) was adopted, there
appeared to be a legal dispute between Morocco and Spain regarding the
Territory of Western Sahara; that the questions contained in the request for
an opinion may be considered to be connected with that dispute; and [p 8]
that, in consequence, for purposes of application of Article 89 of the Rules
of Court, the advisory opinion requested in that resolution appears to be
one "upon a legal question actually pending between two or more States";
Whereas the material submitted to the Court shows that when resolution 3292
(XXIX) was adopted, Mauritania had previously adduced a series of
considerations in support of its particular interest in the territory of
Western Sahara; whereas however, for the purpose of the present preliminary
issue of the composition of the Court in the proceedings, that material
indicates that, when resolution 3292 (XXIX) was adopted, there appeared to
be no legal dispute between Mauritania and Spain regarding the Territory of
Western Sahara; and that, in consequence, for purposes of application of
Article 89 of the Rules of Court, the advisory opinion requested in that
resolution appears not to be one "upon a legal question actually pending"
between those States;
Whereas the conclusions stated above in no way prejudge the locus standi of
any interested State in regard to matters raised in the present case, nor do
they prejudge the views of the Court with regard to the questions referred
to it in the above-mentioned resolution 3292 (XXIX), or any other question
which may fall to be decided in the further proceedings on the present
request for an advisory opinion, including the question of the Court's
competence and the propriety of its exercise;
The Court,
by 10 votes to 5,
(1) finds that the Kingdom of Morocco is entitled under Articles 31 and 68
of the Statute of the Court and Article 89 of the Rules of Court to choose a
person to sit as judge ad hoc in the present proceedings;
by 8 votes to 7,
(2) finds that, in the case of the Islamic Republic of Mauritania, the
conditions for the application of Articles 31 and 68 of the Statute of the
Court and Article 89 of the Rules of Court are not satisfied in the present
proceedings.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-second day of May, one thousand nine
hundred and seventy-five, in six copies, of which one will be placed in the
archives of the Court, one will be transmitted to the Secretary-General of
the United Nations, and the others will be transmitted to the Governments
of the following States: Algeria, Mauritania, Morocco and Spain.
(Signed) Manfred Lachs,
President.
(Signed) S. Aquarone,
Registrar. [p 9]
President Lachs makes the following
declaration :
The Court may wish to comment further on the question of the appointment of
judges ad hoc in the present proceedings when pronouncing upon the request
for advisory opinion. Individual Members of the Court will of course be
entitled, in exercise of the right conferred on them by Article 57 of the
Statute, also to express their views on the subject at that time.
Judge Morozov
appends a dissenting opinion to the Order of the Court.
(Initialled) M.L.
(Initialled) S.A. [p 10]
Dissenting Opinion of Judge Morozov.
I voted in favour of a judge ad hoc appointed by the Kingdom of Morocco
sitting in the present case, and I voted, for the same reason, in favour of
a judge ad hoc appointed by the Islamic Republic of Mauritania, because I
consider that the latter State has the same right to choose a judge ad hoc
as the Kingdom of Morocco, and because the participation of such judge in
the current case would also help in the elaboration of the objective
advisory opinion requested by the General Assembly.
For the same reason, I could not support the second part of the penultimate
paragraph of the reasoning of the Order (from the words: "whereas however,
for the purpose . . ." to the end of the paragraph), which does not present
a correct description of the position of the Government of the Islamic
Republic of Mauritania, and is in contradiction with the relevant part of
its written statement as well as with the oral statement of Counsel for that
Government during the public hearings.
(Signed) Platon Morozov. |
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