Unwanted Citizenship Part 1 – The man who would be stateless

I open the debate with the unusual case of a man from Western Sahara, a Sahrawi, who unsuccessfully begged a French court to treat him as stateless rather than as having Moroccan citizenship.  Given the challenges of being stateless, what would make someone choose statelessness over citizenship?  Here is a reminder of what it means to be stateless.

As part of this series, I consider wider questions of citizenship under the law on occupation and the rights and responsibilities of occupying states to the people of the occupied state.  Finally, this series examines another instance where the law on occupation and citizenship have become relevant over the last few years: the Russian occupation in Ukraine of the Donbass and Luhansk regions and the annexation of Crimea in 2014.

Not Moroccan but Sahrawi and stateless

In this unusual case heard before the Administrative Court of Appeal in Nantes, France ¹, the applicant, a Sahrawi from Western Sahara, argued that it was for the Court of Justice of the European Union (CJEU), rather than the national authority on asylum – in this case France’s Office for the Protection of Refugees and Stateless Persons (OFPRA) – to deny statelessness status to a person from a non-autonomous and occupied territory.  The territory in question is Western Sahara.  It is the last remaining non-self-governing territory in Africa ².  A non-self-governing territory is one which “has not yet attained the measure of self-government”.  In other words, Western Sahara is not an independent state.

The applicant in this case argued that the occupying power in parts of Western Sahara – Morocco – imposed Moroccan nationality on him in violation of international law.  According to the applicant, and contrary to the French authorities, he is not eligible to apply for Moroccan nationality.  This is because Morocco and Western Sahara are two distinct territories.  Equally, as occupying power, Morocco is prohibited, under international law, from imposing nationality on the Sahrawi residents of the occupied territory.

In this case OFPRA was mandated to carry out a determination as to whether the applicant is stateless ³.  I have written about statelessness determination procedures here and here.  Following the determination procedure, OFPRA determined that the Sahrawi applicant had or was entitled to Moroccan citizenship and was not stateless.  The French court agreed with OFPRA’s determination and ruled against the applicant on the basis that the applicant had not provided sufficient evidence that he was stateless.  The Court also declined to refer the case to the CJEU.

Morocco’s presence in Western Sahara

Non-self-governing territories, of which there are still seventeen globally, are administered by the state which has assumed responsibility for the territory ⁴.  Until 1976 the administering Power for Western Sahara was Spain.  In 1975 both Mauritania and Morocco asserted rights over the territory.  In 1976 Spain terminated its presence there and declared itself exempt from responsibility.  That year Moroccan troops took control of the region.  The territory was partitioned between Morocco and Mauritania until Mauritania renounced its claim in 1979.  Morocco is now in de facto control of the territory.

Morocco continues to dispute governance and rights over the territory with the Saharawi – Western Sahara’s population – and its independence movement, the Polisario Front.  As a result of the dispute and ongoing conflict, many Sahrawis have left Western Sahara seeking refuge in Algeria, whilst those that remain are now outnumbered by Moroccan citizens.  The refugees in Algeria have lived in large refugee camps for generations, without being granted Algerian citizenship ⁵.

To bring an end to the conflict between Morocco and the Polisario Front, a referendum on independence was proposed by the UN and agreed in 1991.  It is yet to take place.  The parties to the dispute cannot agree who is eligible to vote in the referendum.  Polisario argues for eligibility based on the census of 1974 – before the influx of Moroccans taking up residency in Moroccan controlled Western Sahara.  Morocco wants to include its citizens residing in the territory.  The challenge is that, currently, Moroccans outnumber by approximately 4-to-1 the Sahrawis.  Moroccans in Western Sahara are expected to vote to treat the territory as part of Morocco.  Morocco has more recently refused to allow a referendum that includes an independent Western Sahara as a possible outcome.  The likelihood of a referendum has grown more distant with talk now focusing on a ‘mutually acceptable political solution’.  This solution would lead to internal self-governance but not to full statehood ⁶.

Why would the applicant prefer to be stateless? What are the implications?

Sahrawis in the Moroccan occupied territory are treated as Moroccan citizens with citizenship applied by Moroccan domestic nationality laws.

Yet Morocco is not recognised as having sovereignty over Western Sahara.  Morocco has not been recognised as the ‘administering power’ of Western Sahara by the UN.  As recently as 2016, then UN Secretary General Ban-ki Moon described Morocco’s presence on the territory as ‘occupation’.  The African Union, equally, does not recognise Moroccan sovereignty over the territory and continues to support self-determination for Western Sahara ⁷.  As such, it is questionable whether its domestic laws can in fact extend and be applied to a people and a territory outside of Morocco’s borders.

Many Sahrawis, such as the applicant in this case, do not accept the imposition of Moroccan nationality.  To accept the imposition of citizenship would be to accept that Morocco has sovereignty over the territory it occupies.  This goes against the very grain of the argument for self-determination for all of Western Sahara, including the territory currently occupied by Morocco.  Sahrawis, like the applicant before the French court, would rather be stateless, even with all the challenges that this poses, rather than accept Morocco has a claim over their homeland.

Next time on The Torn Identity… occupation, statelessness and the binary solution

Ultimately, this case, and this series, delve again into a question I have asked before: is the time right to move away from a strict choice between statelessness and citizenship?  You can read more about that in in my blogs on climatic statelessness, found here, here, here and here.  How does that choice consider individual and group identity?  Does such a choice ignore the importance of identity as something more valuable than citizenship?

The question of choice of citizenship and of belonging is especially pertinent when it comes to instances of territorial occupation.  Morocco may not be able to claim sovereignty over the Western Sahara territory it occupies, but can it impose citizenship on the population there by virtue of being an occupying power?  In the second blog in this series, I will look at the law on occupation and its impact on the grant of citizenship.  Can Morocco benefit from the international law on occupation and give or impose Moroccan citizenship to native Sahrawis?  I will also consider who might, in turn, be eligible for Sahrawi citizenship.  And to what extent can group and individual identity weigh in favour of one citizenship over another.