Heightened Scrutiny in Western Sahara: What Are the Legal Consequences of the Madrid Agreement of 1975 for the Status of Western Sahara?

Edi Rexhaj

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Chapter 7 Heightened Scrutiny in Western Sahara: What Are the Legal Consequences of the Madrid Agreement of 1975 for the Status of Western Sahara?

In: Western Sahara in the International Legal Order

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Edi Rexhaj

Edi Rexhaj
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Type:: Chapter

Pages:: 150–166

DOI:: https://doi.org/10.1163/9789004739215_009

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Abstract

This paper proposes a legal framework for the analysis of the legality of treaties signed between a Non-Self-Governing Territory and its administering Power based on the 2019 Chagos Archipelago advisory opinion by the icj and the reference to heightened scrutiny it contains. The paper suggests that for heightened scrutiny to be applicable certain elements need to be present. The treaty must be composed of unequal parties, have been signed when the right to self-determination formed part of customary international law, affect the territorial integrity of the Non-Self-Governing Territory and exclude the will of the people. This framework of heightened scrutiny is then applied to the case of Western Sahara and the Madrid Agreement, which was signed between the governments of Spain, Mauritania and Morocco in 1975. This paper suggests that the findings of the icj in Chagos are mutatis mutandis applicable to Western Sahara and therefore the Madrid Agreement is void.

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Western Sahara in the International Legal Order

50 Years after the ICJ Advisory Opinion

Series: International Studies in Human Rights, Volume: 148

Cover Western Sahara in the International Legal Order

E-Book ISBN:: 9789004739215

Publisher:: Brill | Nijhoff

Print Publication Date:: 18 Dec 2025

Subjects
- Human Rights and Humanitarian Law
  - Human Rights

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Chapter 7 Heightened Scrutiny in Western Sahara: What Are the Legal Consequences of the Madrid Agreement of 1975 for the Status of Western Sahara?

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Western Sahara in the International Legal Order

50 Years after the ICJ Advisory Opinion

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