Unrecognised Documents and the Right to Nationality: The Case of Western Sahara

About the author(s):

Andrea Marilyn Pragashini Immanuel is a PhD Candidate and Research Fellow at the Peter McMullin Centre on Statelessness, Melbourne Law School, University of Melbourne. Her ongoing PhD research engages with questions of nationality and statelessness under international law during armed conflict. Previously, she worked as an Assistant Professor of Legal Practice at Jindal Global Law School, India and has also worked with UNHCR India.

Since 1976, after the end of Spanish colonial domination, Western Sahara has been considered a non-self-governing territory. The legal status of the territory remains disputed with Morocco occupying a part of the territory and the Polisario Front, a national liberation movement, exercising control over the remaining part. Sahrawis live in the occupied territory, in the territory under the control of the Polisario Front, and thousands of Sahrawis live mainly in refugee camps in Algeria. In 1976, the Polisario Front declared the creation of the Sahrawi Arab Democratic Republic (SADR) and currently, SADR is a member of the African Union. Although the SADR is recognised by about 43% of UN member states, the UN does not recognise Moroccan or SADR sovereignty over Western Sahara. 

Since the legal status of Western Sahara is disputed, so too is the status of Sahrawis. SADR/ Polisario Front issues legal identity documents to Sahrawis within Western Sahara as well as in Algeria. These documents include passports, birth certificates and national identity cards (see hereherehere and here). These documents, for instance, enable travel out of the refugee camps in Algeria and travel to states that recognise these documents such as Mauritania. While some Sahrawis have accepted Moroccan nationality, others could be considered stateless. Yet, as mentioned, many Sahrawis including those who might be considered stateless possess SADR documents. However, the usefulness of these documents is limited since these documents remain unrecognised by the majority of states. Moreover, the author of these documents is the Polisario Front, a non-state actor and the documents are issued as SADR documents, a widely unrecognised state. This raises questions about the legitimacy of these documents. In this regard, this post briefly explains that, despite the problems related to these SADR documents, these documents might have implications for securing the right to nationality of the Sahrawis. 

Relationship Between Legal Identity Documents and Nationality

Generally speaking, legal identity is understood as defining ‘the basic characteristics of an individual’s identity’ and includes nationality as an aspect of such identity. Legal identity documents record these aspects and often proceed from state authority and sovereignty. Such documents act as evidence of nationality, define who is included within the state as nationals (see here and here) and act as tools within the ‘statehood vision’. Nationality itself is considered a sovereign power within the state’s ‘reserved domain’.

Those without legal identity documents such as birth certificates (which indicate an individual’s link with the state in both jus soli and jus sanguinis states) or passports and national identity cards often find themselves at risk of statelessness (see here and here). Furthermore, an unreasonable refusal to issue or renew legal identity documents vital for nationality or confiscation of such documents can amount to arbitrary deprivation of nationality

In situations of armed conflict, particularly when non-state actors such as armed groups issue legal identity documents, they essentially enter the ‘reserved domain’ of the state and these documents present challenges to the exercise of the sovereign power of the state. Also, with legal identification systems being structured around the national/non-national divide, documents issued by non-state actors and unrecognised states can interfere with this divide and affect nationality. Furthermore, lack of recognised documents and possession of documents issued by non-state actors can lead to harmincluding the risk of statelessness for individuals. 

Are SADR Documents Problematic?

Turning to SADR documents, as mentioned, these are issued by the Polisario Front, a non-state actor. So, these documents could be considered as interfering with the state’s sovereign exercise of power over nationality. However, Western Sahara remains a disputed territory with Morocco as the occupying state. The question of sovereignty over the territory remains unresolved, pending a referendum that takes into account the right to self-determination of the Sahrawis with Moroccan occupation being ‘incompatible’ with this right. Hence, the Western Sahara situation is different in that, following decolonisation, there has been no pre-existing, fully recognised state, exercising legitimate control over Western Saharan territory. This means, for the purpose of nationality as well as legal identity documents, there seems to be no sovereign or sovereign-made legislation to refer to. 

On the other hand, although SADR remains an unrecognised state, its documents affirm the Sahrawian identity. This is important in Western Sahara because documents affirming, for instance, Moroccan nationality have the effect of erasing Sahrawian identity and threaten the Sahrawis’ right to self-determination. Ultimately, SADR documents can be considered as the chief documents that affirm and protect Sahrawian identity. In reality though, these documents are not recognised by the majority of global states thus making their practical use for individuals somewhat redundant. Legal identity documents such as these affect individual rights which are often dependent on the possession of recognised documents, particularly for freedom of movement, education and access to basic services. 

Possible Implications of SADR-documents for the Right to Nationality of the Sahrawis

Statelessness or the situation where a person is ‘not considered a national by any State under the operation of its law’ threatens the right to nationality. The right of everyone to a nationality protects the individual from arbitrary deprivation of nationality and from situations of statelessness and imposes corresponding obligations on states (see for instance, hereand here). As mentioned, in Western Sahara, individuals do not have any reference point for a recognised state that issues recognised documents, compatible with their right to self-determination (i.e. preservation of their Sahrawian identity). Any other nationality can have the effect of subsuming this identity denoting that the protection of this identity is linked to the right to nationality of the Sahrawis. Accordingly, SADR documents protecting this identity can possibly be considered as the primary (arguably, only) documents that uphold the right to nationality of the individual. This means that non-recognition of these documents violates the Sahrawis’ right to nationality.

Sahrawi Arab Democratic Republic flag.

There are two bases for this argument. First, the right to nationality being a human right limits the state’s power over nationality matters, typically over nationality acquisition, retention and deprivation. Usually, this applies in cases where states choose to arbitrarily deprive individuals of their nationality or implement a discriminatory policy or legislation in acquisition, retention or deprivation of nationality. However, in the unique case of Western Sahara, where a third state refuses to recognise SADR documents, it is deciding as to the nationality of the document-holder (since as mentioned, these documents are linked to the nationality of the individual). Such a decision is of course on the international plane and is not necessarily a comment on the relationship between the individual and SADR (this is based on the argument of the International Court of Justice in Nottebohm). This argument also effectively separates the issue of the recognition of SADR as a state from the issue of the recognition of legal identity documents. The separation of these two issues is usually suggested in scholarship (see here and here). On the international plane, the right to nationality under international human rights law exists to protect the individual and can protect a Sahrawi holding a SADR legal identity document.

Second, when states refuse to accept SADR documents, they are potentially rendering persons stateless on the international plane and perpetuating the situation of statelessness of the Sahrawis. This is inconsistent with their duty to avoid statelessness.

Accordingly, SADR documents issued by the Polisario Front cannot be dismissed as unrecognised documents. Actually, they play a vital role in upholding the right to nationality of the individual. In other words, the right to nationality defines and to an extent perhaps even legitimises Polisario Front issued legal identity documents. 

Conclusion

In this article, I briefly teased out the relationship between legal identity documents and nationality and how in the case of Western Sahara, despite documents being issued by a non-state actor, these documents have implications for the right to nationality of the individual. In general, this article also reveals the importance of understanding statehood through nationality. The two are intricately linked and where statehood issues are not resolved, nationality issues propagate. 

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