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Sahrawi nationality law

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There is no Sahrawi (also known as Saharawi) nationality law which governs the acquisition of nationality or citizenship for Sahrawi people, the inhabitants of the former colony known as Spanish Sahara, now called Western Sahara. When Spain relinquished the territory, no succession of states defined the terms of the transfer of authority. As such, neither Morocco whose claim to the territory is considered by the United Nations to be a foreign occupation, nor the Sahrawi Arab Democratic Republic, a partially recognized state which claims the territory, officially have sovereignty in the territory. By international protocols, as the people of Western Sahara have not been able to make their own determination to merge with another state or be independent, nationality law cannot be imposed upon them. For nearly fifty years the sovereignty of the territory has been disputed and despite involvement by the United Nations since 1991 to negotiate a settlement, no agreement to resolve the state succession issue has been reached. Sahrawis can gain the rights of citizenship by becoming a national of a foreign state or joining a traditional community under the authority of the Sahrawi Arab Democratic Republic.

The requirements to gain formal legal membership in a nation, nationality, are typically regulated by a country's constitution, nationality law, and various international agreements to which the country is a signatory.[1] These laws determine who is, or is eligible to be, a national of a sovereign state.[2] The legal means to acquire nationality differ from the domestic relationship of rights and obligations between a national and the nation, known as citizenship. Nationality describes the relationship of an individual to the state under international law, whereas citizenship is the domestic relationship of an individual within the nation.[3][4] Some nations use the terms nationality and citizenship as synonyms, despite their legal distinction and the fact that they are regulated by different governmental administrative bodies.[3] Nationality is typically obtained under the principal of jus soli, i.e. birth in the territory, or jus sanguinis, i.e. descent from someone who is a national of the country.[5] It can be also granted to persons with an affiliation to the country or a national, like through marriage, or to a permanent resident who has lived in the country for a given period of time through naturalization or registration.[6]

Under international law typically the concerns of the international community regarding nationality focus upon the infringement of interests and obligations to other states, consent of the governed, and statelessness.[7] The first issue is addressed under the terms of state succession.[8] Under international law, the four elements that are involved in succession are a defined territory, with a permanent population, which has a government, that is capable of entering into agreements with other states.[9] Typically, the principle of uti possidetis juris, which holds that successor states should retain the integrity of the borders preceding state, underpins the transferring policies of the United Nations and has typically been used in Africa.[10][11] Treaties or agreements between the parties establish the rights and obligations of both predecessor and successor states.[9] Closely tied to those rights and obligations are the consent of the people involved to accept their change in jurisdiction or governance.[12] In 1923, a precedent was established by the International Court of Justice in The Hague regarding the imposition of French nationality on subjects of other nations.[13][14] The court found that a nation cannot impose its nationality upon foreign nationals without their agreement.[15] Further, the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted on 14 December 1960, specified that persons inhabiting a colonial territory had the right to self-determination and free choice over their independence.[16] The final issue of statelessness is internationally governed by the Convention Relating to the Status of Stateless Persons of 1954 and the Convention on the Reduction of Statelessness of 1961. Stateless persons are not legally considered as nationals by any recognized state.[17] Lack of nationality and statelessness makes persons vulnerable to breaches of their human rights, such as discrimination in their ability to live or work in a particular place, to acquire education or health services, or be protected from abuse such as trafficking.[18] It can also result in arbitrary treatment with regard to their rights, expulsion from the country, or restrictions of movement, meaning they are unable to leave or re-enter a territory.[19]

When Spain relinquished its control over Western Sahara, no agreement established a successor state or transferred sovereignty and the state's rights and obligations; thus, the United Nations still considers Spain to legally hold administrating power in the territory, maintaining that Morocco has no legal authority and is an occupying foreign power.[20][21] Morocco controls 85 percent of the country and the Sahrawi Arab Democratic Republic controls the remaining fifteen percent.[21] Morocco has invested billions of dollars in developing the infrastructure of the territory it controls, fortifying its security with defensive walls and troops, and implementing policies to assimilate the Sahrawi people and moroccanize them.[22] The Sahrawi Republic is a partially recognized[Notes 1] non-self-governing territory which claims sovereignty over the entirety of Western Sahara, but has limited internal administration over only a portion of the state territory and no externally recognized sovereignty.[25] The Sahrawi Republic promulgated its first constitution in February 1976 which was amended in August 1976, expanded in 1982 and 1985, and revised in 1999 and 2015.[24][26][27] Under its terms, an executive composed of the President, Prime Minister, and eighteen cabinet members with no political authority; an elected legislature, the Sahrawi National Council, with 53 deputies; and an independent judiciary form the administration.[24][28] The ministries are charged with economic and infrastructure development; the Sahrawi National Council members function both at the local and national level; and the judiciary consists of lower, appeals and supreme courts.[28]

The United Nations General Assembly Resolution 2229, issued on 20 December 1966, demanded that Spain consult with the persons inhabiting their territories of Ifni and Spanish Sahara, and the governments of Mauritania and Morocco or other interested parties, and schedule a referendum for the population of those areas to determine the conditions of their decolonization.[29] There has been no agreement on how to define the Sahrawi people — either based on the 1974 Spanish census of the territory, inclusion of all Saharan tribes with historic ties to the territory, or the present population which because of Moroccan policy has displaced natives to the territory — and determine who would be eligible to participate in a referendum.[21][30][31] As such, no referendum has successfully been held to determine whether the Sahrawi people consent to a merger with another state or desire independence,[21][30] and any imposed nationality upon the people would be out of compliance with international legal norms.[32] The Sahrawi people are largely displaced and include refugees in Algeria, persons living in both Moroccan- and Polisario-controlled portions of Western Sahara, as well as a large diaspora.[21]

Avenues to Sahrawi nationality

There are approximately 150,000 Sahrawi refugees living in refugee camps in Algeria who have no access to Algerian nationality.[33] In 2018, Moroccan figures showed the population of the areas it controls in Western Sahara to include 485,000 people, of whom only twenty percent are Sahrawi. Based on United Nations estimates of the population of the entire territory of Western Sahara, in 2019, the population of the territory controlled by the Sahrawi Republic would approximate 82,000 people.[34] Since 1979, Sahrawis have been able to acquire Moroccan nationality.[35][30] The 1999 Constitution, revised in 2015, does not define its nationals,[21][36] providing only that they are African, Arab, and Muslim people.[27] Article 110 of the 2015 Constitution provides that the Sahrawi National Council can draft legislation to define nationality, the rights of citizens, and civil status, but such legislation has not been created.[36][37] Sahrawi people who were residents of Spanish Sahara before it relinquished the territory in 1975 were able to gain Spanish nationality for themselves and their descendants with documentation — such as a birth or marriage certificate, school records, or family registry, to confirm their ties to the territory — through a facilitated procedure enacted in 1998.[38][39] However, the 1998 procedure was based upon being able to prove that the applicant could not leave Western Sahara between 1975 and 1976 and thus were unable to comply with the requirements of the 1976 Royal Decree to apply in Spain.[40][41] A ruling of the Supreme Court of Spain in 2020 withdrew the right to Spanish nationality basing its decision upon an interpretation that the Francoist court which declared Western Sahara a province was in error. The court found that Western Sahara was never part of its national territory. The court ruled that as Law 40 of 1975 required decolonization, the area was not a province but a colony and as such under the Spanish Civil Code nationality could not be obtained unless a child was born in Spain.[40][41]

Avenues to Sahrawi citizenship

For Sahrawis who obtain nationality from other states, their citizenship rights, as would be anyone else's, are determined by the state with which they have established a legal bond.[42] Lacking a sovereign state, Sahrawis may have acquired citizenship from various states, such as Spain, Morocco, Mauritania, or other nations.[39][43] Though the Polisario government has existed for more than forty years, the Constitution of the Sahrawi Arab Democratic Republic does not define how citizenship is acquired or exercised. As as a government-in-exile, it provides birth certificates, national identity cards, and passports to persons within its jurisdiction of Western Sahara and in the Algerian refugee camps.{[22][44] For Sahrawi refugees living in Algeria, the Algerian government may make travel documents available to persons who need to travel in countries in which the Sahrawi Republic is not recognized, but these documents do not imply that the holders are Algerian.[45][46] The majority of Sahrawis have not acquired actual citizenship because of statelessness and the dispute over their territory.[45][47]

The Sahrawi Constitution guarantees its citizens are equal before the law with inalienable rights to free expression, education, health care, ownership of private property, and other protections to guarantee social welfare.[48] Following Sahrawi tradition, primacy of the people, culture, and community take precedence over the institutions and traditions developed during colonization.[49] The society is divided into wilayahs, provincial governing administrations, and daïras, local districts. Each district was traditionally named after the location to which the inhabitants had originated in Western Sahara, to enable reintegration of the population when independence occurred.[50] Persons living in the jurisdiction of the Sahrawi Arab Democratic Republic, including those in Algerian camps are allowed to participate in their governance, vote, and hold administrators to account.[45][47] At the local level, individuals are assigned to participate in one of five committees – education, family and legal affairs, health, industry and craftsmanship , and provisioning (distribution networks).[51] An annual congress is held to elect officials responsible for the administration of the daïras and wilayahs.[52] The daïra officials bring the concerns of their constituents to the wilayah officials who debate uniform policy solutions to the needs of the communities.[53]

History

In 1880, at the Madrid Conference, Morocco entered into an agreement with the kings of Austria-Hungary, Belgium, Denmark, France, Germany, Italy, the Netherlands, Portugal, Spain, Sweden and Norway, and president of the United States to establish spheres of influence and a protectorate over Morocco.[54] Exercising its rights under the agreement, Spain established a protectorate in Spanish Sahara in 1884 and moved forward with colonization, after making agreements with local chieftains.[55][56] France secured the sultan's signature on the Treaty of Fes in 1912, which established the French protectorate, a Spanish zone, a semi-independent Berber area in the south, and the international zone for Tangier. The terms of the treaty put France in control of the country's finances, security, and foreign relations; and established shared legislative power, but left the sultan with only the authority to veto.[57][58] The Spanish zones consisted of a northern area which included Ceuta and Melilla, as well as the Rif territory occupied by the Jebala people and a southern area including territory around Ifni, Tarfaya, and Spanish Sahara.[59] Spain viewed its territories differently, considering Ceuta and Melilla, as well as Ifni, which it had acquired in 1860, and Spanish Sahara, which it had acquired in 1884, to be Spanish territory and the remainder the Moroccan protectorate.[55][60][61][62]

The Spanish had no direct treaty with the sultan,[63] but their treaty on Morocco with France specified that each country was responsible for their own nationals and protégés residing within their zone of influence.[64] The only recognition of Moroccan subjects in the treaty was Article 22, which provided that Moroccans who were abroad and who normally resided in the Spanish zone were to be offered protection by the Spanish consular and diplomatic services.[64] Under regulations passed on 23 December 1944, the Spanish General Directorate of Morocco could grant full or limited emancipation to native inhabitants based on professional or academic certification. Fully emancipated inhabitants were subject to the Spanish Civil and Commercial, and Penal Codes.[65] Wives and children of fully emancipated natives were able to acquire full emancipation and from 1949, with the passage of Law of 21, received a certificate of their status.[66] Those with limited emancipation had limited access to Spanish legislative protection and those who were not emancipated were subject to the colonial administration and Moroccan custom.[67] When World War II ended, a nationalist and independence movement developed.[68] In 1946, Spain joined its territories in the protectorate and its colonies into a single administrative unit, Spanish West Africa, installing a Governor General at Ifni, who operated under the authority of the high commissioner in Morocco.[69]

On 2 March 1956, Morocco gained independence with Mohammed V affirmed as monarch.[68] Spain relinquished only parts of its protectorate, with Tarfaya remaining separate until 1958 and Ifni until 1969.[35] Between 1958 and 1975, Western Sahara was classified as a Spanish province, and as such, any person born in the territory was conferred Spanish nationality.[40] Beginning in 1963, the United Nations attempted to resolve the issue of Spanish Sahara, focusing on decolonization and the territorial dispute over the area between Mauritania, Morocco, and Spain.[70] The Spanish position was that the area was a province of Spain and that the population would have to request independence. The claims of Mauritanian and Moroccan officials were that they had historical and cultural ties with the region that had been severed by colonization. A visiting mission was dispatched in 1975, which confirmed the desire for independence.[71] The International Court of Justice (ICJ) heard from all parties and on 16 October 1975 ruled that though Spanish Sahara had historical links with Morocco and Mauritania, the ties were insufficient to prove the sovereignty of either country over the territory at the time of the Spanish colonization. On that basis, they advised that the inhabitants had the right to self-determination.[72]

Moroccan response to the ruling was to initiate the Green March on 6 November 1975 and annex Spanish Sahara.[35][72] On 14 November 1975, Spain, Morocco, and Mauritania signed the Madrid Accords agreeing to establish a cooperative transitional administration over the territory, now to be known as Western Sahara.[72][23] In the agreement Spain would withdraw from administration effectively on 28 February 1976.[72] On 19 November 1975, Spain passed Law 40, which called for passage of laws to facilitate decolonizing the territory.[40] Francisco Franco, Spain's head of state died the following day[73] and no further legislation was passed concerning processes of decolonization until 4 June 1976, when Royal Decree 2258 was issued. The decree stipulated that Sahrawis wishing to retain their Spanish nationality could apply to do so for one year, but it had a provision that applicants had to appear in Spain and could not process an application through consular services.[40]

On 27 February 1976, the Sahrawi Arab Democratic Republic was declared by the Polisario Front, a liberation movement for Western Sahara, and a government-in-exile was established in Tindouf, Algeria.[72][23] Military conflict between the Sahrawi Republic, Mauritania, and Morocco broke out and continued until 1979, when Mauritania entered into an agreement with the Polisario to abandon claims to the territory.[74] That year, Mauritania renounced its claims to the area and the Moroccan sultan extended Moroccan nationality to Sahrawis.[35][30] The UN General Assembly urged Morocco in Resolution 34/37 of 21 November 1979 to enter into the peace process and allow Sahrawis to hold a referendum for self-determination, but fighting continued until 1988, when both parties agreed to an armistice and UN assistance in resolving the dispute.[74] In 1991, the Commission of the United Nations Mission for the Referendum in Western Sahara (MINURSO) called for the referendum to be scheduled.[21] Unable to determine who would be allowed to participate in the process, the peace process was aborted and no referendum held.[21][30]

In 1997, another round of UN negotiations culminated in the signing of the Houston Accords, which reestablished a time table for a referendum, but ultimately broke down when Morocco refused to allow the referendum to have an option for Sahrawi independence on the ballot.[75] Despite a 2002 determination of the United Nations Legal Counsel that Morocco had no legal administering authority for Western Sahara, Morocco has continued to occupy the territory.[76] In 2007, both sides submitted plans to settle the dispute. Morocco's plan included granting Western Sahara autonomy as a province of Morocco. The Sahrawi Republic rejected the plan and proposed instead that a referendum be held to allow the Sahrawi people to determine whether they want independence or a merger. Though both sides have remained entrenched on these positions, the Polisario announced they would be willing to allow Moroccan citizens living in Western Sahara to become Sahrawi citizens and vote in a referendum.[77] Another round of negotiations held in 2010 saw no compromise in the positions. Morocco remained willing to grant the Sahrawis the autonomy to govern local affairs in a Moroccan province, while the Polisario maintained that Western Sahara is not a sovereign territory of Morocco.[78] Talks broke down in 2016, with Morocco withdrawing from participation in MINURSO negotiations.[76] The ceasefire collapsed in 2020.[79] Despite the renewal of the mandate for MINURSO through October 2022, no solution to the stalemate over Western Sahara's sovereignty has been forthcoming and conflict has continued.[79][80]

See also

Notes

  1. ^ When its independence was declared in 1975, the Sahrawi Arab Democratic Republic was recognized by eighty-four countries and in 1980, became a member of the Organisation of African Unity, now the African Union.[23] In the decades since independence, thirty-four of those countries have withdrawn their recognition.[23][24]

References

Citations

  1. ^ Manby 2016, pp. 32–34, 37.
  2. ^ Manby 2016, pp. 6–7.
  3. ^ a b Fransman 2011, p. 4.
  4. ^ Rosas 1994, p. 34.
  5. ^ Manby 2016, pp. 51, 55.
  6. ^ Manby 2016, p. 92.
  7. ^ Manby 2020, pp. 20–21.
  8. ^ Manby 2020, p. 22.
  9. ^ a b Emanuelli 2003, p. 1277.
  10. ^ Arieff 2008, p. 61.
  11. ^ Hensel, Allison & Khanani 2009, p. 122.
  12. ^ Manby 2020, p. 21.
  13. ^ Manby 2020, pp. 15–16.
  14. ^ Latey 1923, pp. 49–50.
  15. ^ Latey 1923, p. 59.
  16. ^ Kalicka-Mikołajczyk 2021, p. 37.
  17. ^ Foster & Lambert 2016, p. 566.
  18. ^ Foster & Lambert 2016, p. 567.
  19. ^ Foster & Lambert 2016, pp. 574–575.
  20. ^ Manby 2020, pp. 14, 23.
  21. ^ a b c d e f g h Krasniqi 2018, p. 14.
  22. ^ a b Krasniqi 2018, pp. 14–15.
  23. ^ a b c d Krasniqi 2018, p. 13.
  24. ^ a b c Kalicka-Mikołajczyk 2021, p. 43.
  25. ^ Krasniqi 2018, pp. 1, 13.
  26. ^ Constitution 2015.
  27. ^ a b Bontems 1987, p. 171.
  28. ^ a b Bontems 1987, p. 175.
  29. ^ Kalicka-Mikołajczyk 2021, p. 36.
  30. ^ a b c d e Manby 2020, p. 11.
  31. ^ Zaireg 2017.
  32. ^ Manby 2020, p. 16.
  33. ^ Manby 2016, p. 131.
  34. ^ Manby 2020, p. 13.
  35. ^ a b c d Perrin 2011, p. 6.
  36. ^ a b Manby 2020, p. 18.
  37. ^ Constitution 2015, p. 13.
  38. ^ Manby 2020, p. 20.
  39. ^ a b Otazu 2017.
  40. ^ a b c d e Handaji 2020.
  41. ^ a b Europa Press 2020.
  42. ^ Manby 2018, p. 9.
  43. ^ Krasniqi 2018, p. 16.
  44. ^ Manby 2020, pp. 18–19.
  45. ^ a b c Krasniqi 2018, p. 15.
  46. ^ Manby 2018, p. 290.
  47. ^ a b Manby 2018, p. 289.
  48. ^ Bontems 1987, p. 173.
  49. ^ Bontems 1987, p. 174.
  50. ^ Bontems 1987, p. 177.
  51. ^ Bontems 1987, p. 180.
  52. ^ Bontems 1987, p. 178.
  53. ^ Bontems 1987, p. 179.
  54. ^ Bevans 1968, p. 71.
  55. ^ a b Aguirre 1997.
  56. ^ Manby 2020, p. 10.
  57. ^ Aguiar 2010.
  58. ^ Perrin 2011, p. 4.
  59. ^ Ferrer-Gallardo 2007, pp. 4, 8.
  60. ^ B. 1954, p. 212.
  61. ^ Ferrer-Gallardo 2007, p. 4.
  62. ^ Argudo Périz & Pérez Milla 1991, p. 161.
  63. ^ B. 1954, p. 209.
  64. ^ a b Treaty Between France and Spain 1912, p. 92.
  65. ^ Argudo Périz & Pérez Milla 1991, pp. 176–177.
  66. ^ Argudo Périz & Pérez Milla 1991, p. 176.
  67. ^ Argudo Périz & Pérez Milla 1991, p. 177.
  68. ^ a b Perrin 2011, p. 5.
  69. ^ Rézette 1975, p. 101.
  70. ^ Gunter 1979, pp. 204–205.
  71. ^ Gunter 1979, p. 205.
  72. ^ a b c d e Gunter 1979, p. 206.
  73. ^ Giniger 1975, p. 85.
  74. ^ a b Kalicka-Mikołajczyk 2021, p. 38.
  75. ^ Farah 2010, p. 60.
  76. ^ a b Manby 2020, p. 14.
  77. ^ Al Jazeera 2007.
  78. ^ Farah 2010, p. 65.
  79. ^ a b Al Jazeera 2021.
  80. ^ Africa News 2022.

Bibliography

References

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