The right to nationality of the Saharawis and their legal identity documents

ABSTRACT

The Western Sahara territory is a non-self-governing territory under international law with an ongoing struggle for self-determination from colonisation and alien occupation. The unresolved statehood of the Western Sahara territory complicates the nationality status of the indigenous Saharawis and threatens their human right to a nationality. Legal identity documents have implications for the right to nationality of the individual under international law. Morocco (as the occupying power in control of most of the Western Sahara territory) and the Polisario Front (as the national liberation movement engaged in the struggle against colonisation and alien occupation) issue legal identity documents to the Saharawis. This article ascertains that these documents have an effect on the right to nationality of the Saharawis. This article finds that while the Moroccan-issued documents violate the Saharawis’ right to nationality, the Polisario Front-issued documents uphold this right and could clarify the Saharawis' nationality status.

KEYWORDS:

• Legal identity documents
• national liberation movement
• right to nationality
• non-self-governing territory
• Western Sahara
• statelessness

I. Introduction

The territory known as Western Sahara,¹ located in the northwest corner of Africa, bordered by Morocco, Algeria and Mauritania, was under Spanish colonisation from 1884 until 1976 (Mundy 2009).² In 1976, Spain left this territory and the territory was claimed by both Morocco and Mauritania (Mundy 2009). While Mauritania relinquished its claim to this territory in 1979, today, most of this territory is under Moroccan occupation while a part of it is under the control of the Polisario Front (Iratni 2014; Mundy 2009; Manby 2020). The Polisario Front is a non-state armed actor, characterised under international law as a national liberation movement representing the Saharawis³ for the purpose of self-determination (Manby 2020; UNGA 1980, 1979). Initially, the Polisario Front fought for independence against Spanish colonial administration and thereafter against alien occupation by Morocco and Mauritania (Hodges 1983). Currently, the Polisario Front exercises political, military and administrative control over a very small part of the Western Sahara territory and also administers the Saharawis in the refugee camps in Tindouf, Algeria (Manby 2020).⁴ Western Sahara territory is a non-self-governing territory under international law, a status indicative of the incomplete decolonisation and ongoing self-determination struggle of the Saharawis (African Court on Human and Peoples’ Rights 2022, 84–85; International Court of Justice 2019, 40–44; 1975). As a non-self-governing territory, statehood of Western Sahara remains unresolved (Crawford 2007, 621) and as a result, the struggle for self-determination from colonisation and alien occupation⁵ (Moroccan occupation) is ongoing in relation to the Western Sahara territory (Bouzeid 2021; Higgins 2009; Novais 2009).

The unresolved statehood of the Western Sahara territory affects the nationality⁶ status of the Saharawis. Prior to Spanish colonisation of the territory, the Saharawis were predominantly a pastoral community organized into nomadic tribes, having ‘in a broad cultural sense … a common identity’ (Hodges 1983, 30). Under colonial rule, the territory started transforming into a composite, ‘political entity’ (Hodges 1983, 36). Today, the Saharawis live within the Moroccan-occupied Western Sahara territory, within the part of the Western Sahara territory under the control of the Polisario Front, within the refugee camps in Algeria and are also part of an international diaspora (Manby 2020). The nationality status of the Saharawis remains unresolved and nationality remains an important concern for the Saharawis. For instance, despite being only an occupying power, Morocco considers the Saharawis within the Moroccan-occupied Western Sahara territory as Moroccan nationals despite opposition from the Saharawis within this territory (Manby 2020). Under international law, the Saharawis living under the control of the Polisario Front remain stateless i.e. as persons who are not considered the nationals of any State under the operation of its law, according to the definition of stateless persons in article 1 of the 1954 Convention relating to the Status of Stateless Persons. Within the international diaspora (outside the Western Sahara territory and the refugee camps in Algeria), the Saharawis struggle to establish their legal status, especially as stateless persons before national administrative authorities and domestic courts (Guillaud 2023; Manzotti 2021; Reitter 2022).

The unresolved nationality status of the Saharawis is central to this article. This article addresses the question of the nationality of the Saharawis in the context of their legal identity documents. Nationality and legal identity documents are interrelated (Immanuel 2023; Van Waas 2015).⁷ In relation to Western Sahara and the Saharawis, both the Polisario Front as a national liberation movement and Morocco as an occupying power issue legal identity documents to the Saharawis under their control (Manby 2020). This article considers these two sets of documents in relation to the nationality question of the Saharawis.

This article analyses what the Moroccan and the Polisario Front-issued documents ‘do’ or accomplish in relation to the Saharawis’ right to nationality. This article begins with a brief explanation of the unresolved statehood issues of the Western Sahara territory followed by an outline of the legal identity documents that Morocco and the Polisario Front issue to the Saharawis. Then, this article examines the ways in which the unresolved statehood of Western Sahara impacts the nationality and threatens the right to nationality of the Saharawis. Thereafter, this article reveals that the Moroccan-issued legal identity documents threaten and violate the right to nationality of the Saharawis in the Moroccan-occupied Western Sahara territory. On the other hand, the Polisario Front issued documents uphold the right to nationality of the Saharawis.

While there is rich scholarship on Western Sahara dealing with manifold aspects of the situation relating to political and conflict dynamics, this article only engages with this scholarship broadly to understand the context in which the Saharawis receive legal identity documents. The framework for this article is international law, in particular, the right to nationality under international human rights law. Existing scholarship on the right to nationality and statelessness usually consider the question of nationality within fully formed states. This article fills a gap in international law scholarship by speaking to the question of the nationality of individuals who are under the control of a national liberation movement as well as having ties to a non-self-governing territory that is under alien occupation.

II. Unresolved statehood of the Western Sahara territory

The unresolved statehood issue of the Western Sahara territory can be traced to 1974 when Spain declared its intention to leave the Western Sahara territory and planned for a referendum which was opposed by both Morocco and Mauritania, states neighbouring this territory. These states opposed the constitution of an independent state of Western Sahara (Martín 2010) and claimed territorial sovereignty over the Western Sahara territory. Ultimately, when the issue was referred to the International Court of Justice for an Advisory Opinion, the Court decided that neither Morocco nor Mauritania had ‘any tie of territorial sovereignty’ over the Western Sahara territory (ICJ 1975, 60). Despite this, in 1975, Morocco occupied most of the Western Sahara territory through a ‘Green March’ which included about 350,000 Moroccan civilians marching into the Western Sahara territory (Iratni 2014, 259). In the meantime, Spain transferred administrative control over the territory to both Morocco and Mauritania (through the 1975 Declaration of Principles on Western Sahara by Spain, Morocco and Mauritania) (Iratni 2014). While initially Mauritania also occupied a part of the territory, in 1979, it relinquished its claim (Farah 2010; Iratni 2014). At present, Moroccan presence in Western Sahara does not make Western Sahara part of Morocco under international law since Morocco does not have ‘any of tie of territorial sovereignty’ over Western Sahara. International law prohibits annexation of territory and as such, Moroccan presence in Western Sahara makes it an occupying power and occupation, by definition, is a temporary situation under international law (Simon 2014).

Currently, the UN lists the Western Sahara territory as a non-self-governing territory (UN n.d.). As a non-self-governing territory, there is no Administering Power for the Western Sahara territory since Spain exempted itself from the administration of this territory (UN n.d.). According to Article 73 of the Charter of the United Nations, non-self-governing territories refer to ‘territories whose peoples have not yet attained a full measure of self-government’, and in such cases, ‘the interests of the inhabitants of these territories are paramount’. Although this categorisation does not affect territorial title over the Western Sahara territory, the key elements of a non-self-governing territory are that the principle of self-determination applies to such a territory and that the inhabitants or people claiming the territory (the Saharawis) are ‘non-self-governing’ (Crawford 2007, 605–615; ICJ 1975, 23–25). The non-self-governing status of a territory ceases on attainment of ‘self-government’ (UNGA 1960; Crawford 2007, 621). Thus, Western Sahara as a non-self-governing territory implies that the Saharawis are ‘non-self-governing’ and that their right to self-determination (in the context of incomplete decolonisation) persists (African Court on Human and Peoples’ Rights 2022, 84–85; ICJ 2019, 40–44). Consequently, Moroccan occupation is in violation of this right of the Saharawis. Accordingly, the UN does not recognise Moroccan sovereignty over the territory, while the African Court on Human and Peoples’ Rights found Moroccan occupation ‘incompatible’ with the self-determination of the Saharawis (African Court on Human and Peoples’ Rights 2022, 84–85; UN n.d.; UNGA 1980, 1979; UN Security Council 1975). Globally, most states do not recognise Moroccan sovereignty over Western Sahara (Krasniqi 2018). Yet, Morocco occupies about two-thirds and the Polisario Front has control over one-third of the Western Sahara territory (Farah 2010).

The Polisario Front is a national liberation movement representing the Saharawis (UNGA 1980, 1979). Under international law, national liberation movements represent the people of non-self-governing territories and their self-determination (Shaw 1983). Following Morocco’s ratification of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) in 2011 (ICRC International Humanitarian Law Databases n.d..), in 2015, the Polisario Front made a unilateral declaration to apply the four 1949 Geneva Conventions and Additional Protocol I and this was accepted by the depositary of the Conventions in accordance with Article 96(3) of Additional Protocol I (Federal Department of Foreign Affairs FDFA 2015; Fortin 2015). This undertaking cements the Polisario Front’s status as a national liberation movement because Article 96(3) of Additional Protocol I relates to ‘[t]he authority representing a people engaged against a High Contracting Party’ in an international armed conflict ‘in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’.⁸ Also, more generally, the Polisario Front is accepted as a national liberation movement representing the Saharawis (Castellino 2021). The operation of the Polisario Front as a national liberation movement is also evident from its participation in UN bodies such as the Special Political and Decolonization (Fourth Committee) (Shaw 1983; UN 2021). Accordingly, the Polisario Front functions as a national liberation movement in the self-determination struggle of the Saharawis in relation to the decolonisation and alien occupation of the Western Sahara territory.

All these point to the unresolved nature of the statehood of the Western Sahara territory. Yet, in 1976, the Polisario Front declared the establishment of the Saharawi Arab Democratic Republic as a state (Martín 2010; Naldi 2005). The Saharawi Arab Democratic Republic is a member of the African Union and has been recognised as a state by few African, Latin American, Asian, Oceanian (and one European) states, although in recent times, many states have withdrawn or suspended recognition owing to political and economic reasons and Morocco’s diplomatic efforts (Fernández-Molina and Porges 2019; Ganohariti 2024; Rosner-Merker 2021; Universidade de Santiago de Compostela n.d.). The African Court on Human and Peoples’ Rights accepted as a ‘settled fact’, the sovereignty of the Saharawi Arab Democratic Republic over the Western Sahara territory (2022, 84–85). Nevertheless, the majority of states and the UN do not recognise the Saharawi Arab Democratic Republic as a state (Geldenhuys 2014; Krasniqi 2018). Following Moroccan occupation in 1975, many Saharawis fled to the neighbouring Algeria and live in refugee camps in Tindouf, Algeria. The Saharawi Arab Democratic Republic operates in these camps, having its own constitution and institutions, holds elections, provides welfare services, issues documents and functions like a state (Martín 2010). It also engages in diplomatic activities (including the operation of embassies in many of the states that recognise it) and participates in international organizations such as the African Union (Universidade de Santiago de Compostela n.d.; Martín 2005).

This article considers the Saharawi Arab Democratic Republic as indicative of the ‘potentiality’ of the Saharawis as a people to become a future state under international law (Mbuzukongirar and Sahinkuye 2018, 54). This is because the statehood of the Saharawi Arab Democratic Republic is contestable while at the same time, the status of the Western Sahara territory as a non-self-governing territory remains certain (Naldi 2005). In any case, the Saharawi Arab Democratic Republic faces severe limitations in operating as a state since it ‘has failed to convince the wider international community of its claim to statehood’ (Naldi 2005, 33) (given that it lacks universal recognition as a state and does not possess UN membership), and so, can be considered as having ‘titular recognition, meaning considerable formal acceptance (by at least African states) of its right or title to statehood, but facing severe external constraints in exercising the rights and duties of a full-fledged state’ (Geldenhuys 2014, 361). In this sense, Western Sahara could be considered as a case of state ‘in statu nascendi’, that is in a state of being born as opposed to a fully formed state (Naldi 2005, 34–35). This aspect is relevant in the consideration of the nationality of the Saharawis in the remaining sections of this article.

In sum, the Polisario Front is a national liberation movement and the existence of the Saharawi Arab Democratic Republic indicates the existence of a ‘right to statehood’ for the Saharawis (Geldenhuys 2014, 361). Accordingly, the Saharawi Arab Democratic Republic is indicative of a state being born in furtherance of the self-determination of the Saharawis and currently, the Polisario Front exists as a national liberation movement furthering the cause of statehood for the Saharawis. This is evident from article 32 of the Constitution of the Saharawi Arab Democratic Republic which makes the Polisario Front the ‘political framework that shall unite and mobilise politically the Sahrawis to express their aspirations and legitimate rights to self-determination and independence and to defend their national unity and complete the building of their independent Sahrawi State’. Article 32 supports my argument that the Saharawi Arab Democratic Republic is in a state of being born. Article 32 also explains why, often, it is difficult to separate the functioning of the Saharawi Arab Democratic Republic from that of the Polisario Front (Krasniqi 2018; Martín 2005). Accordingly, the activities undertaken by the Saharawi Arab Democratic Republic can be considered as activities relating to statehood that the Polisario Front undertakes to further the cause of the national liberation movement.

III. The legal identity documents of the Saharawis

While much more can be said about the statehood issues relating to Western Sahara, for the purpose of this article, I turn to the legal identity documents of the Saharawis. Depending on their place of residence, the Saharawis possess a variety of legal identity documents. For instance, the Saharawis in refugee camps in Algeria can obtain Algerian passports for travel based on the Polisario Front-issued documents, although these passports do not confer citizenship (Manby 2020).

In general, Saharawis face difficulties in establishing their legal status in other states. For instance, in July 2023, the Conseil d’Etat of France refused to recognise the claim that the Saharawi applicant before it is stateless on the ground that the applicant had Moroccan citizenship, despite this being a nationality status imposed by an occupying power (Guillaud 2023). Similarly, in 2021, the Swiss Federal Supreme Court refused to consider a Saharawi as stateless even though the Court considered that the Saharawi can be registered as a person having ‘no nationality’ under Swiss law (Manzotti 2021).⁹ Specifically, in Spain, administrative authorities find it difficult to process and often fail to process statelessness determination cases involving Saharawis who possess an Algerian passport as well as those who do not possess an Algerian passport. This is because the possession of a passport operates as a ‘contradiction’ in statelessness determination whereas the absence of an Algerian passport means that authorities are unable to determine the Saharawi’s stateless status (Reitter 2022, 169) While these complications raise important points for further research, in this article, I only examine the legal identity documents that Morocco and the Polisario Front issue to the Saharawis under their control.

Within Moroccan occupied Western Sahara territory, by virtue of Moroccan law, Morocco considers the Saharawis as Moroccan nationals automatically. Owing to Moroccan nationality, the Saharawis as Moroccan citizens within the occupied territory can receive legal identity documents from Morocco including travel documents (Krasniqi 2018; Manby 2020).

On the other hand, the Polisario Front issues birth certificates and national identity cards to the Saharawis in refugee camps in Algeria (Immigration and Refugee Board of Canada 2000) and from 2012, the Saharawi Arab Democratic Republic also began issuing passports to the Saharawis (Krasniqi 2018). The procedure for the issuance and the acquisition of these documents is unclear (Manby 2020). For the Saharawis in Algeria, the Polisario Front-issued documents enables them to travel to other cities inside Algeria as well as outside Algeria to a limited extent. The Saharawis can also use the Polisario Front-issued documents to travel to states that recognise the Polisario Front and the Saharawi Arab Democratic Republic such as Mauritania (Manby 2020). Furthermore, the Polisario Front issues all of the above legal identity documents to the Saharawis still living in the Western Sahara territory under its control (Immanuel 2023; Manby 2020; Sahara Press Service n.d.). These documents have similar benefits. Ultimately though, given the limited recognition and use of these documents and because many states do not recognise the Saharawi Arab Democratic Republic as a state, the Saharawis in possession of the Polisario Front-issued documents are stateless (Manby 2020).

IV. Unresolved statehood of the Western Sahara territory and the right to nationality of the Saharawis

The aim of this article is to examine the right to nationality of the Saharawis in relation to their legal identity documents. Accordingly, while I will return to the discussion of the legal identity documents of the Saharawis in section V, this section discusses the complications related to the right to nationality of the Saharawis arising from the unresolved statehood of the Western Sahara territory (discussed in section II). This is because statehood and nationality are linked (Krasniqi 2012).

Under international law, one of the criteria for statehood is permanent population. However, this criterion does not relate to nationality and nationality as a matter of concern of the state arises following statehood (Crawford 2007), although there is an emerging understanding that nationality could also be considered as an element of statehood (Von Rütte 2022). Ultimately, the state is the ‘underwriter’ of nationality (Grossman 2001, 860). The international law rule is that nationality is a sovereign power of the state, with few limitations on this power (Von Rütte 2022). Thus, the first step to discuss nationality is the existence of the state.

Nevertheless, as noted before, both statehood and nationality are connected. The state acts as a ‘representative structure’ for individuals on the international plane (Knop 2015, 97), entitling them to diplomatic protection through nationality (Von Rütte 2022). In relation to the state’s representational work, nationality is the ‘operative concept’ (Knop 2015, 97), meaning that nationality indicates that the individual holding the nationality of the state is part of the representational nature of that state. While the existence of nationality does not confirm statehood (Crawford 2007), nationality stands as the manifestation of the state.

For the Saharawis, with decolonisation being incomplete, their nationality is in limbo and statelessness exists on account of ‘state’-lessness. Without a state, the Saharawis face a situation of perpetual statelessness (unless they have received nationality from Morocco or another state). In a world of nation-states, statelessness severely limits the individual’s rights (UNHCR 2014; n.d.; Belton 2015). In this regard, the international law relating to nationality and state succession (such as the International Law Commission’s Articles on Nationality of Natural Persons in Relation to the Succession of States) does not help resolve the Saharawis’ nationality status since these rules apply when there is an actual ‘replacement of one [s]tate by another in the responsibility for the international relations of territory’ (Article 2(a)).¹⁰

Accordingly, the absence of a state and nationality has meant, for instance, that within the Moroccan-occupied Western Sahara territory, the Saharawis face ‘Moroccanisation’ which includes the imposition of nationality (discussed further in section V), language, prohibition on asserting that Western Sahara is not Moroccan or asserting the self-determination of the Saharawis as well as harassment, discrimination, torture and enforced disappearance of those Sahrawis who resist Moroccan rule (Equal Rights Trust 2009; Hopman 2023; Lourenço 2019). Also, Moroccanisation occurs in the occupied territory through education in schools where the history of Morocco is highlighted without discussion of Western Sahara and through imposition of Moroccan national symbols and holidays (Equal Rights Trust 2009), ‘to co-opt Sahrawi identity and create an illusionary image of happiness among the Sahrawis’ (79). Furthermore, Saharawi students from the occupied territory often travel to Morocco for higher education in public universities where they face discrimination and harassment (Norwegian Support Committee for Western Sahara and National Union of Students in Norway 2020). All these contribute to undermining the self-determination struggle of the Saharawis. Without a universally recognised, Saharawi nationality, the Saharawis face difficulties in establishing their legal status internationally that risk affecting their rights and are often denied their Saharawi identity (Bouzeid 2021; Guillaud 2023; Manzotti 2021; Smith 2021) as discussed in section III. The Saharawis in the Polisario Front-controlled part of the Western Sahara territory and within refugee camps in Algeria also do not possess a universally recognised nationality and are in a situation of perpetual statelessness which is nearing half a century. The Saharawis in the refugee camps in Algeria receive access to primary education but do not have access to further education without a universally recognised Saharawi nationality (Smith 2021).

All these instances demonstrate the importance of the state and nationality for the individual since, under international law, one of the functions of a state is to protect their nationals abroad as well as from external aggression at home. Accordingly, for the individual, the human right to a nationality is related to statehood and usually secures for the individual the protection of the state through nationality. Article 15 of the Universal Declaration of Human Rights (UDHR) guarantees the right of everyone to a nationality. This right is also guaranteed in international and regional human rights treaties including the International Covenant on Civil and Political Rights (ICCPR) (Article 24), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (Article 5) and in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (Article 9). In general, the right to nationality is an ‘enabling right’ for the enjoyment of other human rights or the ‘right to have rights’ (Kesby 2012, Chapter 2; Tobin and Seow 2019, 239). While international law does not recognise the right for an individual to claim a particular nationality, the right to nationality protects the individual from discrimination in nationality matters, from the arbitrary deprivation of nationality and from situations of statelessness (Edwards 2014; Kesby 2012). States have a corresponding duty to avoid statelessness and are prohibited from arbitrarily depriving individuals of nationality. Thus, even if nationality follows statehood, the question of the nationality of the Saharawis before statehood becomes important because without the state and nationality, individuals face statelessness and are prevented from enjoying the full range of human rights. Accordingly, statehood and the right to nationality are linked and the unresolved statehood of the Western Sahara territory affects the right to nationality of the Saharawis. Whereas Saharawis in the Moroccan-occupied territory possess the nationality of Morocco, this violates their right to nationality since it is a nationality imposed on them by an occupying power.¹¹ The Open Society Justice Initiative makes a similar argument in relation to automatic naturalization in Crimea (2018).¹² Such imposed nationality takes away the choice that individual Saharawis will have at the time of state succession (in accordance with the International Law Commission’s Articles on Nationality of Natural Persons in Relation to the Succession of States) and denies them a nationality related to their Saharawi identity and self-determination. The Saharawis in the Polisario Front-controlled Western Sahara territory and in the refugee camps in Algeria face perpetual statelessness and this situation violates their right to nationality.

V. The Moroccan-issued and the Polisario Front-issued legal identity documents and the right to nationality of the Saharawis

Having examined how unresolved statehood affects the right to nationality of the Saharawis, this section examines this right in the context of the legal identity documents that Morocco and the Polisario Front issue to the Saharawis.

Nationality is an aspect of legal identity and legal identity documents, often, contain details of nationality (Immanuel 2023). Importantly, where individuals do not possess legal identity documents, they face a risk of statelessness. Furthermore, whether such documents mention nationality or not, these documents frequently play a part in determining the nationality of an individual (Fortin, Klem and Sosnowski 2021; Immanuel 2023). For instance, birth certificates and identity documents of the parents play a crucial part in determining the nationality of a child. Legal identity documents also impact nationality when states doubt the nationality of individuals or deprive them of their nationality on the ground that they do not possess sufficient legal identity documents or that they possess fraudulent documents (for instance, African Court on Human and Peoples’ Rights 2018; Immanuel 2021). In such instances, it is the right to nationality of the individual that is threatened or violated. Accordingly, legal identity is related to nationality and legal identity documents have relevance for the right to nationality of the individual.

Legal identity documents indicate the legal status and personal information of individuals. However, beyond this, legal identity documents also perform specific functions or do certain things for individuals who possess them. For instance, a passport represents that the holder possesses the nationality of the passport-issuing state. A passport is crucial for state authorities to decide the conditions that apply when considering if the passport-holder is permitted to enter the state. Similarly, birth certificates not only reveal information pertaining to the birth of the individual but also act as a primary document that an individual can use to procure other identity documents as well as to access specific rights and services within a state. Accordingly, legal identity documents are more than the information that they contain. Documents such as passports have been considered as ‘objects that move’ with the passport-holder and as documents that prevent or restrict movement of individuals (Dehm 2018, 348–349). They are also ‘jurisdictional document[s]’ affecting ‘relations and practices of law’ (Dehm 2021, 71). In this regard, as Sosnowski and Klem explain in their introduction to this Special Issue: ‘Legal identity documents are not inert material objects. They are potent. They do things to people and to situations’ (Sosnowski 2024). Considering legal identity documents as not only containing useful, personal information of individuals but also as accomplishing certain things enables the following discussion on what these documents do for the Saharawis in relation to their right to nationality.

V.I. Moroccan-issued legal identity documents and the right to nationality of the Saharawis

As mentioned in section III, Morocco issues legal identity documents to the Saharawis by considering them as Moroccan nationals. These legal identity documents perform certain functions and accomplish certain things which threaten the right to self-determination of the Saharawis as well as their right to nationality. This is because these documents are an outflow of the alien occupation by Morocco and its imposition of nationality in the occupied territory. This imposition of nationality is part of Morocco’s policy of Moroccanisation of the Western Sahara territory which was elaborated in section IV.

Accordingly, Morocco’s legal identity documents for the Saharawis represent Morocco’s attempt to ‘co-opt Saharawi identity’ (Equal Rights Trust 2009, 79), impose Moroccan nationality and bring about demographic changes to the occupied territory (which Morocco has been engaging in since its occupation) (Human Rights Watch 1995, n.d.; Saharawi Committee for Employees and Workers n.d.; Zunes 2020). Under international law, non-self-governing status of a territory comes to an end with the formation of a new state or with free association or integration with an independent state (Crawford 2007). The co-opting of Saharawi identity through legal identity documents can lead to converting the people of a non-self-governing territory whose right to statehood exists into the nationals of an already existing state, without the usual process by which a non-self-governing status terminates. In other words, the legal identity documents that Morocco issues to the Saharawis provide a state to the people of a non-self-governing territory through nationality, without taking the people’s preference into account. In this sense, these documents defeat the proposal of the United Nations Mission for the Referendum in the Western Sahara (MINURSO) to conduct a referendum to ascertain if the Saharawis, in exercise of their right to self-determination and as people of a non-self-governing territory, are desirous of creating an independent state or joining Morocco.

These documents, issued by Morocco to the Saharawis, also violate international law more generally. With nationality being a sovereign power, Morocco is engaging in a sovereign act. Under international law, an Administering Power of a non-self-governing territory has some sovereignty over the territory, subject to limitations (Crawford 2007). If the Western Sahara territory had an Administering Power, perhaps such a Power could regulate nationality but this is debatable.¹³ In any case, Morocco is not an Administering Power but an occupying power and its imposition of nationality and the subsequent issuance of nationality documents threatens the non-self-governing status of the Western Sahara territory. Importantly, according to article 73 of the Charter of the United Nations, the interests of the Saharawis, their ‘well-being’ and the development of self-government are ‘paramount’. Morocco’s nationality imposition and the documents which flow from such imposition do not consider the Saharawis’ interests or well-being and their self-governance and in this sense violate the right to self-determination of the Saharawis. This right is a well-established human right under the International Covenant on Civil and Political Rights (ICCPR) (Article 1) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Article 1) and is a jus cogens (peremptory) norm¹⁴ as per the International Law Commission’s Draft Conclusions of Identification and Legal Consequences of Peremptory Norms of General International Law (jus cogens). According to Conclusion 19 of the Draft Conclusions, the acts (which in the case of the Saharawis is Morocco’s nationality imposition and the issuance of documents) flowing from such a violation of a peremptory norm cannot be recognised under international law.

Policies of automatic naturalization in occupied territory often violate the right to nationality of the individual under international human rights law, lead to arbitrary deprivation of the individual’s right to change nationality and also violate due process norms that ought to accompany any state action that affects the enjoyment of the right to nationality (Open Society Justice Initiative 2018; UNGA 2023). Morocco’s policy of automatic conferral of nationality denies choice in relation to nationality for the Saharawis whose self-determination is alive and Moroccan nationality documents are instruments that defeat this choice. In fact, there have been resistance and protests by many Saharawis who refuse to accept Moroccan documents and who also refuse to consider themselves Moroccan nationals even whilst possessing these documents (Manby 2020; Human Rights Watch 2009).

Since the legal situation of the Western Sahara territory is that of occupation by Morocco (against which the Saharawis as a people are fighting in line with Article 1(4) of Additional Protocol I through the Polisario Front, an authority representing the Saharawis under Article 96(3) of Additional Protocol I), the law of occupation under international humanitarian law applies. Morocco is a party to the 1949 Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV) and Additional Protocol I. Morocco has extended its nationality law to the occupied territory. Under Article 47 of Geneva Convention IV, Morocco cannot introduce changes in the occupied territory that deprives protected persons of the benefits of the Convention. According to Article 4 of the Convention, protected persons are those who ‘find themselves…in the hands of…Occupying Power of which they are not nationals’. So, nationality determines if a person is protected by the Convention. When there is an automatic application of Moroccan nationality law in the occupied territory, this makes Saharawis Moroccan nationals and deprives them of the protection they might be entitled to under the Convention.¹⁵ In this sense, imposition of Moroccan nationality in the occupied territory and the issuance of legal identity documents violates Article 47 of the Convention.

Occupation is meant to be a temporary situation (even where it is a protracted situation) and the application of Moroccan nationality law in the occupied territory establishes a state-national relationship between Morocco and the Saharawis. Under Article 64 of Geneva Convention IV, Morocco, as the Occupying Power, can legislate on certain matters including for maintaining orderly government or for ensuring security. Even if an argument could be made that provision of Moroccan nationality and legal identity documents enables orderly government, this cannot be a justification to change the status of individuals from protected persons to nationals of the Occupying Power or to bring about permanent changes to the status of the population of the occupied territory through legal identity documents. In this regard, Article 45 of the 1907 Hague Regulations Concerning the Laws and Customs of War on Land¹⁶ is instructional. Article 45 forbids compelling inhabitants of an occupied territory to swear allegiance to the Occupying Power. In general, nationality is conceptualised not only as a relationship between the state and the national but also as allegiance that the national owes the state (Irving 2019). Accordingly, extending Moroccan nationality law in the Western Sahara territory automatically and symbolically compels Saharawis to swear allegiance to Morocco. Moroccan legal identity documents flowing from such nationality are representative of this forced allegiance to Morocco which Article 45 prohibits. This violation of Article 45 cannot be justified through legislation under Article 64 of Geneva Convention IV (Dinstein 2019).

Thus, what the legal identity documents issued by Morocco do is that they violate international law including the Saharawis’ right to nationality, cause demographic changes in furtherance of Morocco’s policy of Moroccanisation and defeat the right to self-determination of the Saharawis. They also have an effect on the status of individuals as protected persons under Geneva Convention, depriving them of the protections to which they are entitled under the Convention and are a result of Morocco’s violation of international humanitarian law.

V.II. Polisario Front-issued legal identity documents and the right to nationality of the Saharawis

At the outset, the Polisario Front-issued legal identity documents are, for the most part, unrecognised documents with very limited, practical uses for the Saharawis who possess them, meaning that they ‘do’ very few things if they are understood only as unrecognised documents.¹⁷ Yet, I argue that these Polisario Front-issued documents can be considered as performing two things for the right to nationality of the Saharawis.

First, from the perspective of the right to nationality, these documents perform a representational function. As mentioned before, state is a ‘representational structure’ of the people and nationality is the ‘operative concept’ (Knop 2015, 97), a manifestation of the state. An entity which is in the process of becoming a state might engage in manifesting statehood through nationality. This ‘nationality’ may appear different from the nationality offered by a fully formed state. Put differently, according to the 1933 Montevideo Convention on the Rights and Duties of States, for statehood, a defined territory, permanent population, government and the capacity to enter into relations with other states are vital. In the case of a non-self-governing territory and a national liberation movement, all these elements might exist on a spectrum because the state is not yet fully born. Nationality may also be manifested along that spectrum in a nascent stage. Without this ‘nationality’ which is in development, individuals are left in a state of limbo and protracted statelessness.

The Western Sahara territory and the Saharawis, along with the Polisario Front as the national liberation movement representing them, are on the journey to statehood collectively. Thus, the legal identity documents that the Polisario Front issues can be seen as a manifestation of such a statehood (in progress). Consequently, these documents are representational elements of the incomplete statehood of the Western Sahara territory which is premised on the right to self-determination (from colonisation and alien occupation of the Saharawis) which, in turn, is very much alive in the Western Sahara case. In this sense, in contrast to Moroccan legal identity documents in the occupied Western Sahara territory, these documents are representative of the self-determination struggle of the Saharawis. By indicating a nationality (in progress) for the individuals of a non-self-governing territory, these documents are instruments that can resolve their statelessness. Accordingly, the Polisario Front-issued documents are nationality documents in a different sense because they perform a different function. They are instruments that indicate the nascent nationality accorded by a national liberation movement which is progressing towards statehood. This understanding of these documents accords with the fact that, at times, Saharawis prefer being recognised as a Saharawi national and not as stateless persons (Manzotti 2021; Smith 2021). While being a Saharawi national may not mean the same as calling someone the national of a fully formed state under international law, the documents indicating such nationality indicate a sort of nationality in progress since statehood is also in progress. This nascent nationality of the state to come can be considered as protecting the self-determination of the Saharawis and the non-self-governing status of the Western Sahara territory, especially in circumstances (either within the occupied territory or as part of the international diaspora) when the Saharawis may face imposition of any other nationality or denial of the Saharawi identity. This work of these Polisario Front-issued documents reiterates Sosnowski’s and Klem’s point that these documents are not inert material objects.

This understanding of the Polisario Front-issued documents does not negate the fact that the Saharawis could also be considered as stateless persons. Since nationality is progressing, both nationality and statelessness could exist simultaneously for the Saharawis. Usually, states recognise that individuals possess the nationality of a fully formed state. Accordingly, a state, under the operation of its law, might consider a Saharawi with the Polisario Front-issued documents as a stateless person. At the same time, the presence of these documents indicates what is to be the nationality of the individual in the future which is linked to the Saharawis’ right to self-determination. Thus, the Western Sahara situation presents a paradox – the Saharawis are simultaneously nationals and stateless. Their documents are representative of the right to nationality which guarantees the individual of this right, obligates states to respect this right and enables them to claim that they are stateless persons (since they do not have a fully formed state and nationality).

Second, the right to nationality indicates state obligations and individuals’ entitlements in relation to this right which can explain what these documents do. The individual’s right to nationality curtails state power over nationality (Edwards 2014; Von Rütte 2022). Where state decisions affect documents related to nationality, this can impact the right to nationality. Accordingly, the right to nationality also limits state decisions related to documents that are vital for the nationality of an individual. This is why states are required to abide by due process requirements in relation to any decision pertaining to the nationality of the individual (Human Rights Council 2013).

From this perspective, the Polisario Front-issued documents could be seen as limiting state power, particularly that of third states, in relation to the nationality of the Saharawis. Nationality and legal identity documents are linked. The rejection or non-acceptance of the latter can impact the former and ultimately the right to nationality. This, for instance, means that the rejection of these documents by other states and recording of a Saharawi as a Moroccan national (against the wishes of the individual Saharawi) could amount to a violation of the right to nationality as well as possibly constitute arbitrariness. Thus, these documents could be considered as a limitation on third states’ powers in relation to the nationality status of the Saharawis.

The right to nationality is also an individual entitlement. While generally it is unclear against which state this right can be claimed, in the context of state succession, this does not present a challenge. At the time of state succession, according to the International Law Commission’s Articles on Nationality of Natural Persons in Relation to the Succession of States, individuals can opt for the nationality of either the predecessor state or the successor state. In relation to non-self-governing territories, under article 20, the successor state has to attribute its nationality to the habitual residents of the territory at the time of state succession unless the right of option is exercised by the individual. To be sure, this rule applies when the transfer of territory has taken place, meaning when the non-self-governing status of the territory comes to an end. If the right to choose nationality exists at the time of transfer of a non-self-governing territory, this entitlement to nationality must also remain when the non-self-governing territory exists as such. If not, the right to choose nationality might be defeated before the transfer of territory can take place in the future. For instance, if eventually the Western Sahara territory becomes a separate state, the Saharawis will have the option of its nationality. Such option will become redundant if the Saharawis lose their Saharawi identity through Moroccanisation before the formation of this separate state. In this sense, the Polisario Front-issued documents that the Saharawis possess protects the right to nationality as an entitlement of the Saharawis, that will take shape and effect at the time of the transfer of territory.

Accordingly, the legal identity documents that the Polisario Front issues to the Saharawis are representational of the state in progress and act as a placeholder for the nationality of a forthcoming state which at present is a non-self-governing territory. Such a nationality protects the self-determination of the Saharawis. These documents also have the potential to act as limitations on the action of third states in relation to the Saharawis and protect the right to nationality of the Saharawis from violation by other states (particularly through the imposition of nationality). Thus, these documents uphold the right to nationality of the Saharawis. These arguments do not limit the Saharawis also being treated as stateless persons simultaneously (which means that they can also benefit from the protections under the 1954 Convention Relating to the Status of Stateless Persons where applicable and other protections under international law).

VI. Conclusion

This article examined the context of the Western Sahara territory to illuminate the threats to the individual’s right to nationality when there are unresolved statehood issues. It also revealed ways to understand the nationality of individuals belonging to a non-self-governing territory under alien occupation and under the control of a national liberation movement.

This article has elaborated how the right to nationality of the Saharawis is threatened in the Moroccan-occupied Western Sahara territory. It highlighted the general complexities for the Saharawis in relation to their right to nationality. Thereafter, this article sought to understand the nationality and the right to nationality of the Saharawis in relation to their legal identity documents. The analysis in this article explained that, Moroccan-issued documents threaten and the Polisario Front-issued documents uphold the Saharawis’ right to nationality.

Acknowledgments

I am grateful to the two anonymous reviewers and the Editors of this Special Issue, Marika Sosnowski and Bart Klem as well as the participants of the workshop ‘Legal Identity under Insurgencies and Unrecognised States’ for their helpful comments on previous versions of this article. I also thank Michelle Foster, Katharine Fortin, Andrea Furger and Sae Uk Kim, Azadah Mohammad and Marcus Hickleton for their suggestions and feedback on earlier versions of this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by the Melbourne Research Scholarship.

Notes

1. In this article, ‘Western Sahara territory’ is used to denote the territory in the northwest corner of Africa that is largely occupied and controlled by Morocco but where the Polisario Front also has control over a small section.

2. Section II explains this context in detail.

3. This article uses the term Saharawis or Sahrawis to denote the people considered indigenous to this territory.

4. Section II discusses the status of the Polisario Front.

5. ‘Alien occupation’ refers to ‘cases of partial or total occupation of a territory which has not yet been fully formed as a State’ (International Committee of the Red Cross 1987, 54; Higgins 2009).

6. This article refers to citizenship and nationality synonymously as is often the case in international law scholarship dealing with the right to nationality (for instance, Edwards 2014, 14).

7. Section V discusses this interrelationship.

8. In general, the relevance of Article 1(4) and Article 96(3) of Additional Protocol I is debated (Mačák 2018). Yet, Polisario Front’s undertaking and its subsequent acceptance indicate the continued relevance of Article 1(4) and Article 96(3) in differentiating non-international armed conflicts from conflicts (involving non-state actors) in the exercise of the right of self-determination against colonial domination, alien occupation and racist regimes which, essentially, are international armed conflicts.

9. Under Swiss Law, the recognition as a stateless person provides a pathway to a settlement permit whereas the ‘no nationality’ status only provides provisional admission (Manzotti 2021).

10. Section V of this article contains further discussion of the International Law Commission’s Articles on Nationality of Natural Persons in Relation to the Succession of States.

11. Section V contains a further discussion about this imposition of nationality from an international humanitarian law perspective.

12. This point is discussed further in Section V.

13. This is because nationality is a sovereign power whereas Administering Powers only have limited sovereignty over non-self-governing territories (Crawford 2007).

14. According to the 1969 Vienna Convention on the Law of Treaties, a peremptory norm is ‘a norm from which no derogation is permitted’ (Article 53).

15. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has undertaken a liberal approach to interpret ‘nationality’ in Article 4 (for instance International Criminal Tribunal for the former Yugoslavia, Appeals Chamber 2001), such interpretation reaffirms the centrality of nationality in determining who is a protected person (Landefeld 2023). Accordingly, Morocco’s actions relating to nationality have the potential to impact the application of the Convention to the Saharawis, thus attracting the limitation of Article 47.

16. These Regulations are part of customary international law (Dinstein 2019) and are applicable to Morocco as an occupying power.

17. For details on their usefulness, see section III.