Prior to the Supreme Court decision on June 4, anyone born in Western Sahara after Spain relinquished the former colony had the right to claim Spanish nationality.
The Spanish Supreme Court in Madrid has officially revoked the right of Sahrawis born in Western Sahara after 1975 to claim Spanish nationality. The Madrid court ruled on Thursday June 4 that Western Sahara could not legally be considered a part of Spanish sovereign territory when Spain controlled the region.
Article 17.1.c of the Spanish Civil Code grants the right to Spanish nationality to “those born in Spain to foreign parents, if both lack nationality or if the legislation of neither of them attributes a nationality to the child.”
Meanwhile, during the dictatorship of Francisco Franco, 1939 to 1975, the administration classed Western Sahara as a Spanish province. From 1958, until the Spanish withdrawal in 1975, all Sahrawis born in what the Franco regime called “the autonomous region of Spain,” had the right to claim Spanish nationality. Spain conferred nationality on at least 32,000 Sahrawis during the late 1950s.
The 1974 census shows that 74,000 Sahrawis lived in the so-called Spanish rovince. Therefore, as per the legislation applied by the Francoist courts, the descendants of all 74,000 Sahrawis should have the right to claim Spanish citizenship.
The Supreme Court, however, discounted the classification of the Francoist court, and focussed instead on Law 40/1975. The November 19 1975 law authorizes the government to “perform and adopt necessary acts and measures for the decolonization of the non-autonomous territory of the Sahara, while safeguarding Spanish interests.”
The use of the word “decolonization” negates, according to the Supreme Court, the previous classification of Western Sahara as a province.
The June 4 ruling also considered Royal Decree 2258/1976. The decree gave Sahrawis in the region one year to apply to Spanish authorities to retain their citizenship. The majority did not comply and, therefore, in the eyes of the law, lost their right to Spanish nationality.
The process was complicated by the fact that, in order to process any applications for nationality, Sahrawis had to appear before a judge of the Civil Registry in Spain rather than via consular services. The complexity of the process indirectly pushed Sahrawis to opt for Moroccan on Mauritanian nationality.
On consideration of the legislation, from both the Franco era and the post-dictatorship decolonization process, the Supreme Court ruled definitively that “those who were born in a territory during the period when it was a Spanish colony are not born in Spain.”
The court ruling explain that “whatever the opinion is on the performance of Spain as a colonizing power throughout its presence in Western Sahara, the indisputable fact is that it [the Court] recognizes the colonial condition of the Sahara – something else hardly questionable even during the provincialization stage – and that, therefore, the Sahara cannot be considered Spain at all in terms of nationality of origin.”
‘Objectivity and neutrality’
The ruling came after the Spanish General Directorate of Registries appealed the decision of a court in the Balearic Islands to grant citizenship, via the nationality of origin route, to a Sahrawi woman who was born in Agwanit in 1973. The Supreme Court ruling will mean that the woman, who has lived in Ibiza for 36 years, will have to apply for citizenship through naturalization.
The decision to revoke the right to citizenship comes just days after the Spanish Supreme Court made it illegal to display the flags and symbols of non-recognized entities, including the flag of the self-proclaimed Sahrawi Arab Democratic Republic which claims independence in Western Sahara.
The legislative text specifies that flags or symbols that are not “compatible with the current constitutional and legal framework” or with the “duty of objectivity and neutrality of Spanish administrations” should not be used or displayed in public spaces.
The Supreme Court judgement is clear that flags or symbols that are not officially recognized by the Spanish government should not appear alongside “the flag of Spain and the others legally or legally established.”
The decision to prohibit the hanging of the self-proclaimed SADR flag alongside recognized entities sparked a less than positive response from the Polisario Front, the breakaway group that claims governance over the region.
In an official statement published on Tuesday June 2, the Polisario slammed Spain’s lack of support for their independence claims, calling on the European country, and former colonial power, to to recognize “the historical, political, legal and moral responsibility of the Spanish State” to stand with the self-proclaimed SADR against Morocco in the search for an equitable resolution to the Western Sahara conflict.
Though seemingly an innocuous and apolitical decision, the move from the former colonial power to deny nationality of origin to Sahrawis could be seen as another implicit shift in support of Morocco’s territorial integrity, since the Supreme Court legislation notes that the Sahrawis are not “born stateless.”
Combined with the clarification in the previous ruling that displaying symbols of entities “not compatible” with Spain’s constitutional framework, the Polisario could well take the most recent ruling as another blow to their cause.