The Western Sahara Case
The International Court of Justice has also specifically rejected the notion that lands inhabited by nomadic peoples may be acquired on the basis of occupation as terra nullius. In the Mabo decision, Justice Brennan quoted from the 1975 majority judgment of the International Court of Justice in its Advisory Opinion on Western Sahara. The International Court said:
'"Occupation" being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a 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" ... . 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".... Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or people having a social or political organisation were not regarded as terra nullius.'
'"Occupation" being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of a 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" ... . 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".... Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or people having a social or political organisation were not regarded as terra nullius.'
Keywords: Africa, Brennan, Justice Gerard, International Court of Justice, occupation, terra nullius, Western Sahara case, 1975
Author: Nettheim, Garth
Source: 'Advisory Opinion on Western Sahara', International Court ofJustice.
Source: 'Advisory Opinion on Western Sahara', International Court ofJustice.