Unwanted Citizenship Part 2 – Citizenship under occupation in Western Sahara

This series started with a blog on the unusual case of a man from Western Sahara, a Sahrawi, begging a French court to treat him as stateless.  The applicant argued that the occupying power in parts of Western Sahara – Morocco – imposed Moroccan nationality on him in violation of international law.  Was he right?

In the second blog in this series, I unpack the question of who can impose or grant citizenship. Is an occupying power prohibited under international law from imposing its citizenship on the residents of an occupied territory?

 

Who is responsible for citizenship under international law?

Questions of nationality and citizenship are a matter for each state.  It is for each state to determine under its own laws who is a national of that state.  This was first articulated by the Hague Convention of 1930 ¹.

There are limits to states’ jurisdiction, however.  Each state needs to honour its obligations under international law and to other states.  For example, parties to the 1961 Convention on the Reduction of Statelessness are under an obligation to reduce and prevent statelessness ².  I have written about the two Conventions’ approach to reducing and mitigating the effects of statelessness here.

Under international law Morocco has jurisdiction and can determine who within the state (of Morocco) is eligible for Moroccan citizenship.  The question then becomes: what is the extent of the state of Morocco?  Morocco takes the position that its jurisdiction extends to the territory it occupies in Western Sahara ³.  Morocco considers the occupied territory to be part of one indivisible Moroccan state.  Morocco’s domestic nationality laws reflect this view, hence the decision of the Moroccan government to treat Sahrawis in the occupied territory as citizens of Morocco ⁴.

To claim jurisdiction over some or all the territory of Western Sahara, Morocco must show that it is the rightful successor to that territory.

 

State succession

According to the International Law Commission’s draft Articles on the Nationality of Natural Persons in Relation to the Succession of States, state succession is the replacement of one state with another in terms of responsibility for the international relations of the territory in question.  In other words, it is the lawful transfer of sovereignty over a territory and a people from one state to another.  Article 24 of the draft Articles deals with situations where the successor state only has sovereignty and jurisdiction over part of the territory of a previous state.  In terms of citizenship, where the new state has sovereignty and jurisdiction over part of the territory the residents of that territory can acquire the citizenship of the successor state.

The rules on state succession, however, only apply where the succession is in conformity with international law.  Lawful state succession tends to follow an agreement to transfer sovereignty from one state to another, or where there is an internationally recognised successor state.

 

In Western Sahara Morocco is not the successor of Spain

Morocco’s argument, set out in its pleadings to the International Court of Justice (ICJ), is that the occupied territory belongs to it based on ‘historic title’.  This title predates Spain’s colonisation and goes back to the 7th century.  As far as Morocco is concerned, it had demonstrated a continuous display of authority in the territory until Spanish colonisation.  When Spain left the territory, Morocco, in regaining its title, became the lawful successor to Spain.

It is noteworthy, however, that the court in its 1975 Advisory Opinion rejected this argument.  The ICJ considered the evidence for this claim insufficiently strong.  The Court also took into account the lack of recognition of Morocco’s sovereignty by the international community.

More recently, in 2018, the Court of Justice of the European Union confirmed that Western Sahara is not part of the concept of the “territory of Morocco”.  Whilst this was a decision on a specific point about fishing agreements and rights under EU law, the decision turned on the consistent finding that the jurisdiction of Morocco does not extend to the occupied territory in Western Sahara.

 

Can Morocco rely on lawful occupation of Western Sahara?

If Morocco is not the successor state to Spain, how can it claim jurisdiction over the occupied territory?  And does it have the right to grant Sahrawis Moroccan citizenship?

There are, broadly, two types of lawful occupation.  The first is occupation of ‘terra nullius’, or land that belongs to no one.  This land is not under the sovereignty or the control of any state or politically organised group.  A state can also acquire territory based on acquisitive presumption.  Acquisitive presumption is the peaceable exercise of de facto sovereignty for a long period over a territory subject to the sovereignty of another.  Or where the possession was unlawful originally, but no one has asserted a right over that territory since the occupation.

Going back to the 1975 Advisory Opinion of the ICJ, the Court found that Western Sahara was not terra nullius at the time of Spanish Colonisation.  The territory was inhabited by a people, albeit nomadic, who were socially and politically organised.  Spain itself claimed that its presence was based on agreements entered into with the chiefs of local tribes.  Acquisitive presumption is a difficult argument to sustain in this context.  Clearly Spain had sovereignty over the region.  Mauritania also made claims, dismissed by the ICJ in the same Advisory Opinion.  Western Sahara’s independence movement, the Polisario Front too, although confined to a small strip of land and operating largely out of Algeria, continues to dispute Morocco’s jurisdiction ⁵.

 

Unlawful occupation in Western Sahara

Occupation by use of force is not lawful and does not lead to the acquisition of sovereignty.  The UN does not recognise Morocco as the ‘administering power’ of Western Sahara.  As recently as 2016, then UN Secretary General Ban-ki Moon described Morocco’s presence on the territory as ‘occupation’ ⁶.  The African Union, equally, does not recognise Moroccan sovereignty over the territory and continues to support self-determination for Western Sahara ⁷.

The 1907 Hague Convention, the 1949 Fourth Geneva Convention, the Convention’s Additional Protocol and in customary international law make up the international law norms on occupation.  In short, the occupying power does not acquire sovereignty over the territory.  The rules on citizenship were clarified further around the time of the Second World War as a result of Germany’s attempt to impose German nationality on those living in German occupied territories.  These attempts were considered to be “obviously inconsistent with international law” ⁸.

The grant and revocation of citizenship is an exercise of sovereignty over a territory and a people.  Since the occupying power is not sovereign, it cannot carry out actions which are reserved for the sovereign power.

 

Rejecting citizenship under unlawful occupation

Morocco is considered to be an occupying rather than a sovereign power in Western Sahara.  As such, there are limits on its exercise of jurisdiction.  This includes limits on the right to impose citizenship to non-Moroccan residents in the occupied territory.  Returning to the decision of the French court to attribute Moroccan nationality to the Sahrawi applicant that prompted these blogs, we start to understand why the applicant claims the imposition of Moroccan nationality to be in breach of international law.

The decision of the French Court is also at odds with that of other states.  There are instances of states treating Morocco as occupier rather than sovereign power in Western Sahara.  The Swiss courts, for example, recently found that a Sahrawi from the occupied territory is ‘without a nationality’ ⁹.  That decision is not entirely problem-free. The Swiss court did not go as far as finding the applicant in that case to be stateless, since Western Sahara is not a state ¹⁰.

 

Next time on the Torn Identity…

In my next blog I will examine another instance where the relationship between occupation and citizenship has become relevant recently.  I will look at the 2014 Russian occupation in Ukraine of the Donbas and Luhansk regions and the annexation of Crimea.  What can the parallels between West Sahara and the Ukraine tell us about citizenship under occupation, and the use of citizenship as a tool of occupation?