Liberal arts and sciences Law major Bachelor thesis Fadoua Chakor Studentnumber: U1259440 Supervisor: S. Jaghai Date: 15-06-2018

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What is the link between and the Sahrawi population and to what extent do Algeria, Mauritania, Morocco and Spain comply with International law to reduce and prevent statelessness of the Sahrawi population?

The involvement of Algeria, Mauritania, Morocco and Spain in the creation of statelessness amongst the Sahrawi population

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Table of contents Acknowledgements ...... 5 Abstract ...... 6 Abbreviations ...... 7 1. The Introduction ...... 8 1.1 The problem and topic ...... 9 1.2 Research question and sub questions ...... 10 1.3 Research goal ...... 10 1.4 Research Method ...... 11 1.5 Relevance ...... 11 2. Statelessness among the Sahrawi population...... 12 2.1 What is statelessness?...... 12 2.2 Causes of statelessness ...... 13 2.3 The implications of the conflict for the Sahrawi population ...... 16 2.4 Conclusion ...... 18 3. How did internal policy and laws of the four concerned countries deal with statelessness among the Sahrawi population? ...... 19 3.1.2 Cases of statelessness in Spain...... 20 3.2 Legal framework in Algeria...... 22 3.2.1 Cases of Statelessness in Algeria...... 24 3.3 Legal framework in Mauritania...... 24 3.3.1 Cases of statelessness in Mauritania...... 26 3.4 Legal framework in Morocco...... 27 3.4.1 Cases of statelessness in Morocco...... 29 3.5 Conclusion ...... 30 4. What provisions under International law are applicable to the protection of rights of the Sahrawi population and how does state responsibility derive from these provisions? ...... 31 4.1 The International framework of provisions, treaties and conventions...... 31 4.2 International provisions applicable to Spain...... 32 4.3 International provisions applicable to Algeria...... 33 4.4 International provisions applicable to Morocco...... 33 4.5 International provisions applicable to Mauritania...... 34 4.6 State responsibility ...... 36

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4.7 Conclusion ...... 37 5. Who is responsible to resolve the situation of statelessness among the Sahrawi population in the ? ...... 38 6. Discussion of research ...... 42 7. Conclusion ...... 45 Bibliography ...... 45

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Acknowledgements

I would like to express my deepest gratitude to my thesis supervisor Sangita Jaghai for her patient guidance, advice, encouragement and her feedback regarding my research. I would also like to thank the department of humanities at Tilburg University for their interesting courses which led to the writing of this bachelor thesis on statelessness.

Finally, I wish to thank my family and friends for their constant support and encouragement during my study at Tilburg University.

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Abstract

Statelessness is an issue that continues to affect the lives of millions of people leaving them without a nationality and deprived of basic human rights. The Sahrawi population is made up of a large group of nearly 157.000 that is stateless and namely lives in refugee camps on occupied soil in the Western Sahara, Algeria and Mauritania. The Western Sahara has a violent past filled with aggression towards civilians, political unrest, the annexing of land and the continuing debate concerning which state is the possessor of the Western Sahara. The desire for self- determination of the and the Sahrawi population has fueled the conflict between Morocco and Algeria regarding the Western Sahara in which the tension between all parties is still very present to this day. Statelessness among the Sahrawi population remains unresolved due to issues concerning the acceptance of responsibility and non-compliance with international treaties of the four involved states.

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Abbreviations

POLISARIO Popular de Liberación de Saguía el Hamra y Río de Oro MINURSO United Nations Mission for the Referendum in Western Sahara MENA Middle East and North-Africa region CEDAW United Nations Convention on the Elimination of All Forms of Discrimination against ------Women UNVM United Nations Visiting Mission ICJ International Court of Justice EU European Union ICCPR International Covenant on Civil and Political Rights UN United Nations UNHCR United Nations High Commissioner for Refugees

IHRDA Institute on Human Rights and Development in Africa

ACHPR African Commission on Human and Peoples’ Rights ICESCR International Covenant on Economic, Social and Cultural Rights CESCR Committee on Economic, Social and Cultural Rights

ILO International Labor Organization

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1. The Introduction

Statelessness is “a person who is not considered as a national by any State under the operation of its law”1. This means that a stateless person does not have a nationality and is not a member of any state. The subsequent lacking of identification papers can lead to the absence of basic human rights such as the right to have access to health care or education. The problem of statelessness can affect any person regardless of gender and age. It does not only affect adults, but also children and infants. All of these people lack basic human rights due to their statelessness. It is almost unimaginable that statelessness is an issue in the modern times we live in, however statelessness is still a vast problem that the International community and the concerning states have not yet been able to resolve. Currently the number of stateless persons in the world is estimated at 10 million.2 It is evident that millions of people are stateless in the 21st century. Combatting statelessness is a challenge of significance but of an unknown magnitude. Some people are born stateless due to the fact that their parents are also stateless and other people become stateless due to war or conflict. The occurrence of statelessness has different reasons, a couple of these reasons are discrimination against a religious or ethnic group, the gaps in a state’s nationality laws, forced displacement and state succession. Other reasons are: the rise of new states and the vanishing of old borders, the transferring of land between already existing states and conflict. For the Sahrawi population the right to exercise their self-determination desire plays a large role in the creation of statelessness among the group as they choose to live in refugee camps until they receive the nationality of their own state. In the Western Sahara region approximately 157.244 Sahrawi’s are stateless. Nearly 4.973 stateless Sahrawi’s live on the territory of Morocco without proper identification papers. Under the UNHCR’s stateless mandate approximately 270 stateless Sahrawi’s are currently living on Spanish territory. 62.001 stateless Sahrawi’s are currently living on Mauritanian territory3. In Algeria there are currently 90.000 stateless Sahrawi’s living in the country according to the UNHCR, which do not have the correct identification papers.4 The amount of stateless people and refugees in statistics obtained by the UNHCR displays that statelessness is currently still a problem that affects the lives of millions around the globe and needs to be resolved. The impact that statelessness has on stateless people is massive. Stateless persons are deprived of basic rights such as access to health care, education and numerous other rights. For instance, getting married in a wonderful ceremony at a local city hall is something we can do within a heartbeat, however for a stateless person this is yet a dream as they cannot get legally married. The acquisition of property like a vehicle or a house is also not attainable for stateless people as they are not recognized by the rule of law of any nation around the globe. Statelessness is a serious problem that needs to be solved in order to provide these people with the basic human rights they deserve to have.

1 The UNHCR (1997). The state of the world’s refugees. A humanitarian agenda, accessed on the 1st of March 2018. 2 In practice the number of stateless persons could be higher because due to the lack of not adequately registering stateless persons and their children. 3 Van Waas, L, de Chikera, A, and Albaazi, Z. (2014). The World’s Stateless. Institute on statelessness and inclusion. P.122. Accessed on the 11th of June 2018. 4 The Algerian government estimates the number of stateless Sahrawi’s at approximately 165,000. Researcher van Waas and her partners have estimated the amount of in Algeria and Mauritania between 115,000 and 190,000.

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This bachelor thesis seeks to research the link between statelessness in the Western Sahara and the compliance of states under International law and in particular how states cope with having stateless persons living on their territory. The Sahrawi population that is stateless is the main focus group of this research. The first chapter of this research gives an overview of the issues of statelessness among the Sahrawi population and sets out the research question and sub question that will be answered throughout the thesis. The second chapter gives an outline of the conflict that led to statelessness among the Sahrawi’s. More insight will be given into the conflict and more specifically the role of Spain, Algeria, Morocco and Mauritania. Furthermore, insight will be given into the causes of statelessness under International law. In the third chapter a legal comparison will be made between the four concerned countries regarding their nationality laws and statelessness. The fourth chapter discusses the International framework, legislation concerning statelessness and compliance under International law. Regional legislation concerning nationality laws will also be discussed in this chapter. The fifth chapter will consist of an analyzing chapter, in this chapter the newly adopted Security Council resolution 2414, will be analyzed to obtain information to answer both sub questions and the research question regarding responsibility. The sixth chapter will consist of a discussion chapter in which controversial questions will be raised and answered. The previous chapters will be followed by a final chapter that will contain the findings and the conclusion.

1.1 The problem and topic When the broke out, there was massive forced displacement of persons from their native land; this resulted from the standoff between Morocco and the Polisario front5. The massive forced displacement of Sahrawi’s out of the annexed Moroccan Western Sahara led to their statelessness. Bearing in mind that the two parties had different intentions, the civilians were forced to choose a side so as to enjoy protection and to pursue their desire of self- determination6. During the Western Sahara war there was a lot of pressure from the International bodies such as the UN and the ICJ to hold a referendum on the question of self-determination. A referendum meant that the number of votes would decide the outcome. Morocco on her side brought to the region about 250,000 of its population to take part in the referendum on the Western Sahara. This implied that the Moroccan nationals were deprived of their identification papers so that during the census process they would impersonate the Sahrawi’s in the voting process. The large number of Moroccan nationals voting as Sahrawi’s would swing the balance in favor of the Moroccan government. Politics play a big role in the Western Sahara statelessness problem. As an evidence of politics in this long-term struggle, Morocco left the African Union in the year 1984, after suspecting a loss of support of her peers, only to come back after 32 years of isolation. The union in a recent meeting- held in Addis Ababa Ethiopia -indicated a motive to support Morocco’s desire to keep the Western Sahara annexed.

5 The Polisario front is a liberation movement made out of Sahrawi’s fighting for an end to the Moroccan regime in the Western Sahara. 6 Lehtinen, T. (2013). The Sanctity of Borders and the Question of Western Sahara. Conflict Transform. Accessed on the 8th of January 2018.

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Evidently, the Moroccan security forces were alleged to have been involved in the confiscation of personal documents of Sahrawi’s. The Sahrawi group that sought settlement in Algeria had no documents to indicate their nationality because of this. Given these points, the stateless Sahrawi population is a result of massive displacement and the subsequent confiscation of the vital identification document by the security forces. The instability in the area also contributes to statelessness. Statelessness among the Sahrawi’s means deprivation of basic rights such as job opportunities to ensure income, access to health care and education.

1.2 Research question and sub questions In view of the problem that this thesis tries to tackle, the essential questions this bachelor thesis will try to answer are: What is the link between statelessness and the Sahrawi population and to what extent do Algeria, Mauritania, Morocco and Spain comply with International law to reduce and prevent statelessness of the Sahrawi population?

To answer the above stated research questions the following sub questions have been formulated to help give more insight into the problem. This bachelor thesis will focus on International treaties and conventions specifically concerning statelessness.  What is statelessness? And why is it a problem?  What are the causes of statelessness among the Sahrawi population and what has been the role of Spain, Algeria, Mauritania and Morocco in causing statelessness among the Sahrawi population?  How did the internal policies of the four concerned countries deal with statelessness among the Sahrawi population?  What provisions under International and regional law are applicable to the protection of rights of the Sahrawi population and how does the state derive responsibility from these provisions?  Who is responsible to resolve the situation of statelessness among the Sahrawi population?

1.3 Research goal The general aim of this bachelor thesis is to conduct a research based on the review of existing literature concerning International law and more specifically the concept of statelessness. The goal of this research is to describe the current state of the Sahrawi population in accordance with the compliance of the four concerned countries that affects this group of people heavily under International law. Relevant treaties, articles, conventions and interpretations by Human Rights bodies will be reviewed and evaluated. In due course this bachelor thesis aspires to offer more insight into the complex situation of statelessness amongst Sahrawi’s. It will also provide more insight into which party has the responsibility to resolve the issue of Sahrawi statelessness.

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1.4 Research Method This research will be conducted on the basis of a literature review and the review of existing legislation and relevant case law. Furthermore, a comparative analysis will be conducted to compare both International and National legislation of the four involved states. The 1954 Convention and the 1961 Convention on statelessness and other legal sources will be outlined and analyzed. In addition to the legislation on statelessness, existing secondary sources on the subject from academic scholars will be analytically evaluated. The secondary sources will be assessed on the basis of relevance and reliability. Documentation of the UNHCR and other non- governmental organizations will be used as corresponding sources to ensure relevant and up-to- date information on statelessness, mostly due to the fact that NGO’s like the UNHCR have conducted multiple researches on statelessness in different regions of the world. The International framework will consist of International law and the compliance with International law by the four concerned countries.

1.5 Relevance The consequences of statelessness are that a lot of people are still deprived of the basic human rights that they should simply have because of the fact that they belong to the human race. Education, health care and job opportunities are fundamental rights, yet are impossible to obtain as a stateless person. Being stateless deprives people from protection and rights under the 1948 Universal Declaration of Human Rights.7 The number of stateless persons worldwide is estimated at 10 million which shows that statelessness is still a current, major and very relevant problem in the world.8

The Western Sahara is a blank space on the world map that doesn’t belong to any country, this is recognized by the International community. However, the fact that the Sahrawi population is stateless, is something that has been overlooked these past years and the Sahrawi’s remain stateless in different countries. The specific case of the Sahrawi population is not subject to a lot of research, especially when it comes to the conflict and compliance under International law. The theoretical relevance of this research on statelessness among the Sahrawi’s is to fill the gap, that has been created due to the lack of sufficient and correct information on statelessness among the Sahrawi population and to provide new insights on statelessness among the Sahrawi population. Furthermore this research will hopefully be a contribution towards the existing knowledge and information on statelessness among the Sahrawi population.

7 In the 1948 Universal Declaration of Human Rights contains fundamental rights that all human beings are entitled to. 8 Institute on statelessness and inclusion (2014). The world’s statelessness. P.161-163. Accessed on the 4th of May 2018.

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2. Statelessness among the Sahrawi population.

In this chapter statelessness and the causes of statelessness among the Sahrawi population are explained. This explanation is highlighted by the event, concerning multiple states, in the region that led to the creation and scattering of the stateless Sahrawi population.

2.1 What is statelessness? Statelessness occurs all over the planet in countries such as Myanmar, Kuwait, Cote d’Ivoire, Thailand, Iraq, and the Dominican Republic. These nations have the largest groups of stateless persons. The most common causes of statelessness are gender discrimination in laws, state succession, forced displacement, the failure to adequately register people and the withdrawal of nationality.9 These common causes will be further explained in the upcoming paragraphs. Article 1(1) of the 1954 UN Convention describes a stateless person as ‘a person who is not considered as a national by any State under the operation of its law’, in this article ‘any State’ refers to States that a certain person is connected to by birth or established residence. These persons lack a nationality and therefore often lack rights and protection which leads to various violations of human rights law. This is referred to as de iure statelessness, which is, consistent with the definition of statelessness in terms of the law10. This type of statelessness is focused on the most in legal frameworks. It is of importance to note that article 1(1) of the 1954 convention is accepted as customary law by the International community. De facto statelessness is another category of statelessness which is more complicated, because no consensus has been reached in the International community for the definition of de facto statelessness.11 De iure statelessness entails the actual attainment of nationality under law and the acknowledgement of states while de facto stateless is solely concerned with the concrete and practical usage of an existing, previously acquired after birth, nationality12. Furthermore, it is evident that being stateless is, in most cases, seen as a problem itself which leads to isolation of the issue of ‘statelessness’ when in fact it is part of a much larger issue. This problem cannot be addressed in separation of other disciplines or problems for the reason that statelessness is impacted by issues concerning human rights, security, economic welfare, humanitarian law, democracy and International development13. The significance of statelessness should be recognized by all disciplines to assure the addressing of statelessness in a correct manner. 14

9 Weis, P (1979). Nationality and Statelessness in International Law. Second edition, p. 4-6. Accessed on the 8th of May 2018. 10 UNHCR 2010, par. 2; UNHCR Guidelines No. 1, p. 6. Accessed on the 5th of May 2018. 11 The UNHCR defines de facto statelessness as the following: ‘de facto stateless persons are persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country de facto stateless is solely concerned with the concrete and practical usage of an existing, previously acquired after birth, nationality’11 12 The distinction amongst these categories of statelessness is of great importance due to the fact that de iure stateless persons are safeguarded more under International law than de facto stateless persons. However, even though these two categories differ from on another they often encounter similar issues such as the lack of basic human rights. Taking this into consideration, the thesis will focus solely on de iure stateless definition of statelessness as is mentioned in the 1954 Convention. 13 Van Waas, L. (2010). The situation of stateless persons in the Middle East and North Africa. United Nations High Commissioner for Refugees. Accessed on the 14th of April 2018.

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2.2 Causes of statelessness In different parts of the world there are millions of stateless persons. North African countries such as Morocco and Algeria deal with a number of stateless Sahrawi’s. In current societies limitations continue to exist in terms of acquiring nationality. In the case of the Sahrawi population the renouncing of nationality plays a large role in statelessness of the population. The choose not acquire the nationality of one of the states that have annexed their land due to the self-determination agenda of the Polisario front. The Sahrawi population renounces nationality, more specifically the Moroccan nationality, because they wish to obtain a nationality that is issued by their own state.15 Gender discrimination in laws Gender-biased nationality laws are another cause of statelessness due to the fact that women have an underprivileged status under certain nationality laws. Women rely on their male partner to acquire and pass on nationality. Gender discrimination in nationality laws violates International standards for acquiring and must therefore be combatted. Attaining the reform of nationality laws that are gender biased to echo the set International standards have been regrettably slower in the MENA region than elsewhere in the world. Countries such as Mauritania, in North Africa, still have gender discrimination in their nationality laws. Women cannot automatically transfer their nationality to their children and can only do so if the father is deceased or unknown. Gender discrimination in nationality laws makes it extremely difficult for Sahrawi women to transfer their nationality to their children leaving them stateless. Statelessness is still at risk due to these intolerant policies since babies cannot acquire nationality from their mother. However countries such as Morocco and Algeria have vowed to implement new non- biased nationality laws which ensure the acquiring of nationality through the mother.16 Displacement and state succession Migratory movement of a large group of people across a region can also result in statelessness, such as nomadic groups of people that are hindered in acquiring due to state succession. The Sahrawi population was forcibly displaced from the Western Sahara by the Moroccan government leaving the population stateless and scattered over countries in North Africa. Children are most at risk when it comes to group migratory movement for the reason that the registration of newborns is lacking in these societies. This registration process is essential to acquiring nationality under applicable law and can for that reason prevent statelessness. The 1978 Vienna convention, Vienna Convention on Succession of States in Respect of Treaties, defines state succession as: ‘the replacement of one state by another in the responsibility for the International relations of territory’ (article 2 (1)(b)). Statelessness has a number of causes, in the MENA region it has been mostly the creation of new sovereign states. Morocco annexed the Western Sahara, which is the land of the Sahrawi’s and made it part of Morocco upholding new

15 Bentveld, M. (2018). De muur: Westelijke Sahara [video file]. Nederlandse Publieke Omroep, BNNVARA. Retrieved from: https://www.npostart.nl/de-muur/02-05-2018/BV_101388194. Accessed on the 9th of June 2018. 16 Van Waas, L. (2010). The situation of stateless persons in the Middle East and North Africa. Report for the United Nations High Commissioner for Refugees. Accessed on the 14th of April 2018.

Page | 13 rules and nationality requirements for the Sahrawi’s.17 The nationality laws of current MENA states were shaped by the conditions the states were in at the time and in some cases there was a convergence of factors that led to statelessness.18 All former applicable laws and regulations in reference to nationality are altered by the establishment of a new state. In some of the cases the cause of statelessness was the failure to correctly register people to acquire citizenship due to the fact that in historic societies the concept of borders or nationalities were unknown.19

Failure to register Another cause of statelessness in countries such as Morocco, Algeria and Mauritania is the failure to adequately register the Sahrawi population to obtain nationality due to the fact of faults in registration and the lack of people registering their children.

Conflict of laws Legislation differs in states, nationality laws are no exception. In the event that nationality laws clash between multiple states it may result in the individual not having a nationality of either state. If the nationality laws of both states are implemented collectively at the same time, this may cause issues for nationals and may possibly result in the depriving of nationality. An example that perfectly explains conflict of laws is the case where in state X nationality is obtained through ancestry and in state Y one acquires nationality by place of birth. In the case of a combination of both, place of birth and ancestry, in two different states this may lead to a conflict of law in which the person acquires no nationality. This is a result of failing to qualify for nationality under the state’s law.

Withdrawal of nationality20 In current societies limitations continue to exist in terms of acquiring nationality. Some states use internal nationality regulations to reduce threats to national peace and security, furthermore states use these regulations to sustain demographic stability. In this case it can result in the denationalization of individuals for merely committing criminal acts or not being loyal to the state. Some states in the MENA region made an effort to reduce the causes of statelessness, in Algeria for example laws were implemented that combine both the need to maintain national security by excluding persons that could form a threat and at the same time ensures that the excluded persons do not become stateless21. Some states, including Algeria, have implemented laws that allow nationals to renounce their nationality even before acquiring another nationality leaving them deprived of a nationality. The automatically revoking of nationality by states sometimes occurs if the individual resides abroad. Faults in administrative tasks are often associated with the depriving of a person’s nationality due to the fact that emigrants are not

17 Thomas, K. for the United Nations (2012).The Legal Issues Involved in the Western Sahara Dispute. The principle of self- determination. Accessed on the 14th of April 2018. 18 Van Waas, L. (2010). The situation of stateless persons in the Middle East and North Africa. Report for the United Nations High Commissioner for Refugees. Accessed on the 14th of April 2018. 19 Blackman, J.L. (1998).State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law. Michigan journal, vol 19. Issue 4. Accessed on the 7th of April 2018. 20 The withdrawal of nationality entails both the deprivation and the renunciation of nationality by individuals and states. 21 Van Waas, L. (2010). The situation of stateless persons in the Middle East and North Africa. Report for the United Nations High Commissioner for Refugees. Accessed on the 14th of April 2018.

Page | 14 informed adequately enough about the measures one must take when moving abroad. Statelessness is often a direct result of not succeeding in effectively registering emigrants.22 The conflict in the region One of the main reasons for statelessness amongst the Sahrawi population is the conflict over soil in the Western Sahara. The Western Sahara is a territory in North Africa. The territory borders Morocco, Mauritania, and Algeria. It is inhabited by Moroccans and the minority Sahrawi population that is native to the area. The region was a Spanish colony thus given the name . It is a region of historical and ongoing territorial dispute between the Sahrawi liberation group the ‘Polisario’ and the kingdom of Morocco. The liberation front receives support from the neighboring country Algeria. It is an ongoing struggle that constitutes invasion, colonization, and decolonization, and an incidental political stalemate that has resulted in the situation being declared as one of the most intractable yet the longest struggles on the continent over the years. Currently, the region is divided into two regions; the larger region on the western side is referred to as the which are under the control of Morocco and the smaller region to the east also known as the which is controlled by the Polisario and Algeria. In spite of extensive negotiations, UN interventions and the long cease-fire attempts and also the substantial political and economic costs incurred by the actors, the conflict has not been adjudicated leaving the Sahrawi’s living in refugee camps scattered over Tindouf. According to the Government of Algeria, 165,000 Sahrawi refugees are residing in the Tindouf camps.23 The conflict converted from an unarmed to an armed conflict, taking place between 1975-1991.The main participants were the Moroccans and the Polisario front. The stalemate took place immediately after the withdrawal of Spain from the area after the Madrid agreement. In this agreement, Spain had agreed to allocate the administrative control of the dominion to the Mauritanians and the Moroccan government. The Polisario received military and financial support from Libya and Algeria, and the two countries, Libya and Algeria, advocated for an independent Sahrawi state rather than delegating governing power to Morocco and Mauritania. Following the heightened aggression against Morocco and Mauritania, Mauritania recalled its troops from the area in the year 1979, leaving Morocco in the battle. The struggle continued through the years until Morocco and the Polisario front reached a cease-fire in the year 1991. The record indicates that by this time a total of around 14000 to 21000 number of casualties were suffered on both sides. In the course of the conflict, around 40000 to 80000 of the Sahrawi population had been made into stateless people by being forcibly displaced from their homeland in the Western Sahara.24 The conflict between the concerned states and the Polisario front made the Sahrawi population strive for self-determination and therefore resulted in not accepting any other nationality than the

22 Achiron, M. (2005) Nationality and statelessness, a handbook for parliamentarians. Inter-Parliamentary Union, United Nations High Commissioner for Refugees. Accessed on the 8th of April 2018.

23 The UNHCR, Global trends (2013) .Identifying stateless person. UNHCR. Accessed on the 17th of April 2018. 24 Lehtinen, T. (2013). The Sanctity of Borders and the Question of Western Sahara. Conflict Transform. Accessed on the 17th of April 2018.

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Sahrawi Arab Democratic Republics nationality. This is mainly because the Sahrawi’s had the support of Algeria and Libya which made them a stronger opponent for Morocco. Not accepting the nationality of Algeria, Mauritania, Morocco or Spain has left the Sahrawi’s stateless and deprived of human rights.

2.3 The implications of the conflict for the Sahrawi population The beginning of the Western Sahara Stalemate is linked to the designation of the region as a Spanish territory in the year 1884 in the Berlin conference that saw the division of Africa by the European masters. During this time of scramble and division of Africa, Spain maintained its control of the inland and the coastal region of the Western Sahara region25. It was because of the strategic location of the area, the lucrative fishing activities that were going on in the region and the possibility of military support from the Spanish provinces that are in the Canary Islands. Through the first half of the twentieth century, Spain had no International resistance until the United Nations general resolution 1514 was published. The publication aimed at granting independence to the colonial people and countries. The declaration stated that “The need of bringing a fast and unconditional stop to colonialism” it also added that “everyone has self- determination right by merit of this right they freely decide their political position and freely engage their social, economic and cultural growth”. Following the above declaration, the Mauritians and the Moroccan governments took advantage of the vacating Spanish master and begun to claim ownership of the region. By claiming ownership of the region a period of transitional administration kicked off. Laws and regulations were changed in the region which left the Sahrawi population deprived of a nationality which ultimately led to their statelessness. In response to Morocco and Mauritania’s endeavor to claim the region, there was the formation of the Polisario front. The liberation front received support from the Algerian government, and the main aim was to have the region declared a sovereign state. In a bid to settling the stalemate, the Spanish government declared a referendum on independence. At the same time, the Moroccan government applied to the International court of justice calling for the ICJ advisory opinion. Accordingly, the Spanish referendum was adjourned awaiting the outcomes of the report. After a brief deliberation on the application, ICJ established that there was a significant Mauritian and Moroccan historical links to the area. However, ICJ indicated that dividing the territory along these findings would not be in the interests of the people. The ICJ therefore declared that the ties that were established by the two states were irrelevant and not of substance. The “own will through the genuine and free manifestation of the will of the peoples living in the territory” on the grounds of the right of self-determination prevailed in this case. Coincidentally, the report agreed with the report drafted by the United Nations visiting mission (UNVM) which is a body within the United Nations that is charged with the inquiring of the political unanimity in the area and the assessment of the validity of the contradictory claims. According to the UNVM findings, there was an overwhelming endorsement of the people of the Western Sahara for independence. Hence, this meeting of minds between the two bodies

25 Deubel, T. F. (2015). Mediascapes of human rights: Emergent forms of digital activism for the Western Sahara. TRANSMODERNITY: Journal of Peripheral Cultural Production of the Luso-Hispanic World, 5(3). Accessed On the 20th of January 2018.

Page | 16 supported the will of the Western Sahara people to have a sovereign state in the region as opposed to the will and desire of both the Moroccan and Mauritanian governments26. Following the outcomes of the reports, the Mauritanian government honored the outcomes and accordingly withdrew and dropped its claim concerning the region. This basically means that the UN supported the will of the Sahrawi population to create a state named the Sahrawi Arab Democratic Republic. However, Morocco on the other hand chose not give up the annexed land to the Sahrawi’s as it was too lucrative for the state and it went on with the invasion and effective actions to push its bid. Notably, the Moroccans first reaction to the report was the unarmed invasion popularly known as the in the year 1975. Consequently, there was the formation of the Sahrawi liberation front and this is noted to be the start of the modern-day crisis in the region. The rapid expansion of the territory was violently resisted by the Polisario front that was supported by the Algerian government with new riffles and other ammunitions27. Over the last four decades, the population of the Western Sahara has had war with Morocco. It is evident that different countries have taken different viewpoints depending on the benefits that were forthcoming for them. Spain, for instance, is alleged to have been holding a different relationship with the Sahrawi population due to the historical background the two had at the time of the colonization of the region that was formerly known as the Spanish Sahara28. Algeria has been sustaining the conflict on the background as well, its main reason was to destabilize the Moroccan economy. Each party to this war took a side which was not based on the need to have peace in the region but to have their interest safeguarded. Algeria, for example, found it fit to support the Sahrawi side so that their link to the Mediterranean Sea is never lost. Algeria supports the Polisario front by supplying weapons and military support alongside the Moroccan border. The decades long stalemate can be described as a political tussle between the two divisions and is perpetuated by the differentiated ideologies and political viewpoints of the warring parties. It can easily be seen by the amount of political numbers Morocco tried to win from the Sahrawi population so that in case of a referendum the numbers would rule the outcomes. Morocco brought a lot of their own people into the Western Sahara to gain political support. This mass movement of people can be attributed to the creation of statelessness of the Sahrawi population as the referendum was won by Morocco. This affected the Sahrawi population heavily as their land was annexed for the second time and Morocco brought in a new administrative department to establish Moroccan law and regulations in the Western Sahara. The changing of laws, state succession in this case, led to statelessness of the Sahrawi population and their deprivation of basic human rights. Another effect applicable to the situation of the Sahrawi’s is the massive forced displacement where at least 190,000 Sahrawi’s were displaced from the Western Sahara and were forced to reside in refugee camps in neighboring states. Thus the conflict resulted in the creation of statelessness amongst the Sahrawi’s which means no nationality, no freedom to work or travel, no rights in the state they are residing in and

26 Jacobs, M. D. (2012). Hegemonic Rivalry in the Maghreb: Algeria and Morocco in the (Doctoral dissertation, Jacobs University). Accessed On the 25th of January 2018 27 Lippert, A. (1987). The human costs of War in Western Sahara. Africa Today, 34(3), 47-59. Accessed On the 27th of January 2018. 28 Boukhars, A., & Amar, A. O. (2011). Trouble in the Western Sahara. The Journal of the Middle East and Africa, 2(2), 220- 234. Accessed On the 27th of January 2018.

Page | 17 living under extreme conditions in refugee camps. Far more important for the Sahrawi’s it means no sovereign Sahrawi state in which families are united again and where they have the right to exercise their freedoms.

2.4 Conclusion To conclude, the four concerned countries played a large role in the creation of a stateless Sahrawi population, a fight over territory with the Polisario front caused casualties on both sides of the conflict and caused several thousands of Sahrawi people to become scattered and stateless. The four concerned countries which are Spain, Algeria, Mauritania and Morocco have, due to the desire to fulfill their own interests, contributed in the creation of a population that is statelessness and therefore cannot enjoy basic human rights. The four concerned countries had a conflict over the territory that was named ‘The Spanish Sahara’, this conflict between the states and the Polisario front has led to the Sahrawi’s becoming refugees and stateless in refugee camps in Algeria. The refugee camp in Tindouf is known for harboring the Sahrawi population. Mass movement of the Sahrawi population due to the conflict has contributed to the creation of the stateless Sahrawi population. The Polisario front is currently still desiring an own state where all the Sahrawi people can live in harmony and hopefully attain the basic human rights that they lack.

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3. How did internal policy and laws of the four concerned countries deal with statelessness among the Sahrawi population?

In this chapter a comparative analysis will be made of all four involved countries in which National legislation and the state’s nationality laws will be explained and highlighted by court cases in which Sahrawi’s have sought one of the four states’ nationality to rid themselves of the refugee or stateless status. Furthermore, the legal framework of all involved countries concerning statelessness and nationality will be explained.

3.1 Legal framework in Spain Under Spanish law children that are born stateless on the country’s territory are automatically protected by the law. Children that are born from foreign parents, which are stateless, on Spanish ground are Spanish by birth. Spain requires all asylum seekers to hand in an application at the Spanish office for Asylum and Refuge within the first month of entering the country29. In the application all applicants that are stateless must clarify why they are stateless and provide evidence in the form of documentation to support their case. However this might be problematic for some stateless persons if they cannot obtain any documentation or proof of their status. Unfortunately, the Spanish law does require a form of proof before starting the procedure for a stateless person. After the application and all documentation have been sent in, the Minister of Interior takes the decision on the application within three months of it being filed. This process was accepted by the Royal decree 865/2001. The procedure of applications alters Spanish jurisprudence ‘case number 36744C’ that was established by the Administrative court stating: ‘that neither regular residence, nor regular presence, constitute necessary conditions for applying and recognizing statelessness.’30 Spain is one of the few countries in the world that grants a residence permit immediately once one has the stateless status and can provide a statelessness status card. The stateless person then has access to the Spanish labor market (European commission, 2016). However, even though Spain has set up a procedure to aid stateless persons, the country still has some inadequacies when it comes to the implementation and the efficiency of the process. Spain is a state party to the 1954 convention but did not ratify the 1997 European convention on nationality or the 1961 UN convention31.

In article 13.4 of the Spanish Constitution it is stated that when a stateless persons seeks asylum he or she has the right to have advantages from the right to seek asylum, this right is also stated in the Organic law of December 2009. However, although the Organic law has been approved for nearly 8 years it still does not have specific regulations. This is harmful towards asylum seekers due to the fact that different treatments may occur as a result of the unsuitability amongst dissimilar laws. Furthermore the process of determining the status of statelessness in writing is

29 Constitución Espanola, march 2016. The law library of Congress, refugee and asylum law. Spanish constitutional law. Accessed On the 26th of January 2018 30 EMN report (2016). Statelessness in the EU. Migration and home affairs. Version 4. Accessed On the 28th of January 2018 31 Semenriak Gavrilenok.A, (2017).Child refugees without nationality - A short overview of statelessness policy and practice in Spain. www.statelessness.eu. Accessed On the 27th of January 2018.

Page | 19 said to only take 3 months when in practice it can take up to 2 years. Resulting in the risk of the stateless persons to become vulnerable to social exclusion. Asylum seekers are permitted to work in Spain when their application has been submitted for at least six months even if the determination of the asylum status has not yet been established. Stateless persons are less fortunate when to comes to access to the labor market, they are only permitted to join the workforce if their status is determined as stateless and receive an official stateless status card which, as was stated above, in some cases can take years.32

Acquiring the Spanish nationality by is not subject to any prior set conditions. The government may or may not grant the Spanish nationality to any applicant after examining the application and its extraordinary circumstances. The government evaluates the application and will then by the power invested in them by the Royal decree decide whether a Sahrawi will or will not obtain the Spanish nationality. Acquiring the nationality by residence is only possible if the applicant has lived legally on Spanish territory for at least ten years or after five years if the applicant has obtained the refugee status in Spain. For Sahrawi’s with the refugee status the Spanish nationality can be acquired after only five years of residence in Spain. If a Sahrawi applicant, at the time of application, is married to a Spanish national he or she will be eligible for citizenship only after a year of residing in Spain.33

3.1.2 Cases of statelessness in Spain The larger part of statelessness status applications in Spain come from the Sahrawi population. Controversially, the Sahrawi population receives the least attention from the authorities in Spain, resulting in the lacking of benefits and rights that the status of statelessness brings them in Spain. Spanish jurisprudence from the Spanish Supreme Court shows that in previous years the status of statelessness has been granted to Sahrawi’s which is contradicting with the attitude of the Spanish authorities. The Supreme Court in Spain has deliberated on three separate questions when it comes to handling these specific cases of applications that come from the Sahrawi population. The court assesses whether applicants that come from refugee camps such as Tindouf have acquired the Algerian Nationality. In addition, the court established a policy regarding the potential ascription of the Moroccan nationality to applicants of Sahrawi origin that were born on Moroccan territories or regions that were occupied by Morocco since the year 1975. The final question the Court addresses is whether applicants that are Sahrawi were registered by MINURSO, the United Nations Mission for the Referendum in Western Sahara, resulting in the protection and aid from non-governmental organizations or organizations that belong to the United Nations. These persons receive immunity under the 1954 convention concerning the status of stateless persons.

As stated above the Sahrawi population is the largest group seeking recognition of the stateless status on Spanish territories. In the year 2012 to 2013 nearly 600 applications came in from Sahrawi’s seeking the refuge on the basis of their stateless status with the support of CEAR Euskadi, which is a non-profit organization that provides the reception and legal assistance of

32 Semenriak Gavrilenok.A, (2017).Child refugees without nationality - A short overview of statelessness policy and practice in Spain. Accessed On the 31st of January 2018.

33 Gobiero de Espana. (2018). Ministerio de Asuntos Exteriores, Union Europea Y cooperacion. Spanish nationality. Information for foreigners. Accessed On the 31st of January 2018.

Page | 20 refugees and asylum seekers. This organization has filed multiple law suits to get the Spanish courts to recognize statelessness among the Sahrawi population. In some cases they succeeded however a lot of Sahrawi’s remain deprived of basic human rights.34

The first person of Sahrawi origin was recognized by the Spanish minister of interior as stateless on September 5th 2013. 35 This case attracts attention due to the fact that the new methods of the ministery of Interior are displayed towards the stateless Sahrawi population. The case was advocated by an organization named CEAR-Euskadi (The Spanish Commission for Refugee Aid) that worked hard to bring the cases before the court and aided the Sahrawi applicants. This case displayed that the recognition of the stateless status through the administrative trail is much faster and more efficient than the judicial trail. The case also showed that the Supreme Court followed previous jurisprudence and decisions. The applicant was a female of Sahrawi origin that was born in the Western Sahara in the year 1967 but later moved to a refugee camp in Tindouf. The status of Sahrawi’s in refugee camps in Algeria was unsure. The Court states: ‘Algeria has never expressed, explicitly or implicitly the recognition or concession of Algerian nationality to stateless Sahrawi’s resident in the camps of Tindouf.’36 The applicant was in possession of Algerian identification papers which were only issued out of humanitarian reasons. These identification papers permitted the Sahrawi’s to travel to other countries and were solely used to travel these were not seen as valid identification papers such as a . The applicant did not have the actual Algerian nationality. When the applicant moved from the occupied territory to a refugee camp in Tindouf she automatically renounced the Moroccan nationality. The court then established whether the applicant was registered in the register of MINURSO. The regulations state that: ‘the 1954 Convention shall not apply to persons who are currently receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance.’ The UN Security Council Resolution 690 states that MINURSO was solely instructed to ensure the occurrence of the cease-fire and to confirm whether the Moroccan military was reduced in the area, to conclude no assistance was granted towards the applicant mentioned above or other Sahrawi’s as was outlined in article 1.2 of the convention concerning the status of stateless persons. The ministry of Interior in Spain concluded on the ground of all three distinct questions that the applicant was not aided by any UN organization and did not acquire any other nationality and thus is considered stateless37. The appeal for this asylum application was upheld by the Spanish Supreme Court, this resulted in the applicant remaining a stateless person. However, the court did state that applicant may be a candidate for the refugee status ‘under International protection’ which will ensure that the applicant will not be sent back and may in the future obtain Spanish identification papers.

34 ECtHR (2014) - A.C. and Others v. Spain, Application No. 6528/11 35 ECtHR (2014) - A.C. and Others v. Spain, Application No. 6528/11. Accessed On the 31th of January 2018. 36 Cherendnichenko, M. (2013). Statelessness, the determination and the protection status of stateless persons. European network on Statelessness. Accessed On the 26th of January 2018.

37 ECtHR (2014) - A.C. and Others v. Spain, Application No. 6528/11. Accessed On the 31th of January 2018.

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3.2 Legal framework in Algeria Currently there are several states that use their nationality policies to moderate threats to national security or to keep the countries demographic in balance. However, these policies often lead to the denationalization of individuals for committing minor criminal acts. Fortunately, other states around the globe have implemented regulations that tackle the causes of statelessness. Algeria is a state that effectively excludes all threats caused by individuals to national security without leading to statelessness. Algeria amongst many other MENA countries have reformed their legislation and have adopted gender equality and women’s nationality rights into their laws38. In 2005 Algeria and Morocco both followed the example set by Egypt by amending their nationality laws, in the year 2007 both countries have adjusted the laws respectively. Algeria is the perfect example of how to ensure national security, prevent statelessness and denationalization by excluding individuals who they believe to be a threat to the states national security without creating stateless individuals. The 2005 amendments to the Algerian nationality laws are fine examples of effort to comply with global nationality laws and reduce statelessness in the MENA region. The greatest modification with the most impact on women is the fact that due to the 2005 amendment women were allowed to marry a foreigner and transmit the Algerian nationality to her children and spouse. This amendment made nationality laws for women equal to those of men and has a retroactive effect, so all children born before the amendment are automatically considered Algerian nationals. The Algerian nationality laws remain the exemplary model for nationality laws in the MENA region. Sahrawi women that are born on Algerian soil and that were adequately registered could also marry a foreigner and transfer the Algerian nationality to their children and spouse. The nationality laws in Algeria allows loss of nationality in several cases, examples are: individuals that have committed crimes or have showed treacherous behavior towards the state. However, in all cases Algerian provides a safety net for individuals that have only one nationality ensuring that the loss of the Algerian nationality does not lead to statelessness.39 Furthermore, to ensure that the regulation is applied in a correct manner the law in Algeria grants an individual, which has been deprived of the nationality, a judicial remedy within 18 months of the verdict. Nationality laws in Algeria are relevant for the Sahrawi population as their children are being born on Algerian soil. Thus, the nationality laws are applicable to the Sahrawi population. Children born in Algeria from nomadic parents could possibly face some complications with birth registration which could ultimately result in statelessness. The Sahrawi population therefore risks a new generation of statelessness persons as they originally consist out of nomadic tribes. They continue to be viewed as nomadic until the self-determination of their Sahrawi state40. Birth registration in refugee camps in Algeria is almost non-existing. Generally known birth

38 Van Waas, L. (2010). The situation of stateless persons in the Middle East and North Africa. United Nations High Commissioner for Refugees. Accessed On the 8th of February 2018. 39 Van Waas, L. (2010). The situation of stateless persons in the Middle East and North Africa. United Nations High Commissioner for Refugees. Accessed On the 8th of February 2018. 40 Higgs, J. & Ryan, C. (2015). Leaders in the desert: The Sahrawi women of Western Sahara, International journal for intersectional feminist studies, 1, pp. 29-39. Accessed On the 15th of February 2018.

Page | 22 registration numbers are lower within states in the MENA region particularly amongst displaced populations such as the Sahrawi population. The problem of low birth registration effects this region more specifically due to the fact that it hosts large numbers of refugees and migrant workers. Algeria is party to the ‘1954 Convention relating to the Status of Stateless Persons’ and should therefore comply with the International regulations concerning stateless persons. Article 7 of the Convention relating to the Status of Stateless Persons perfectly describes guidelines states should follow to prevent statelessness: “Article 7 exemption from reciprocity 1. Except where this Convention contains more favorable provisions, a Contracting State shall accord to stateless persons the same treatment as is accorded to aliens generally. 2. After a period of three years’ residence, all stateless persons shall enjoy exemption from legislative reciprocity in the territory of the Contracting States. 3. Each Contracting State shall continue to accord to stateless persons the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State. 4. The Contracting States shall consider favorably the possibility of according to stateless persons, in the absence of reciprocity, rights and benefits beyond those to which they are entitled according to paragraphs 2 and 3, and to extending exemption from reciprocity to stateless persons who do not fulfill the conditions provided for in paragraphs 2 and 3. The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for which this Convention does not provide.41” Article 7 of the Convention clearly states that if a stateless person resides within a country for three years, the state should provide them with the rights and benefits that they are entitled to. Since Algeria is party to the Convention it should progress more towards giving the stateless persons residing in Algeria their rights. Algeria became a state party to the 1951 Convention in 1963 and agreed to its 1967 protocol. Furthermore, Algeria is also party to the 1954 Convention relating to the Status of Stateless Persons as one of few countries in the MENA region. The 1954 Convention ensures the recognition of stateless persons, access to identification documents and the gratification to enjoy basic human rights. By being a party to the 1954 Convention Algeria displays a sense of responsibility towards the identification and protection of stateless persons on its territory. In addition to the previously mentioned conventions Algeria also ratified an African legal instrument regarding refugee problems similarly known as the 1969 OAU Convention. The UNHCR provides protection and humanitarian assistance for the Sahrawi refugees, living in large refugee camps in Tindouf, from the Western Sahara as this group was not registered by Algeria. The UNHCR in Algeria ensures safety, education and other basic needs based on the needs of the Sahrawi refugees. Sahrawi adults may possibly be able to acquire the Algerian citizenship by way of naturalization if they are able to meet the requirements. The requirements for the Algerian citizenship are: being of good morality, no previous criminal conviction, he or she must be over 21 years old, he or she must have resided in Algeria for no less than seven years, be of good health and must be

41 1954 The convention relating to the status of stateless persons. Accessed on the 2nd of June 2018.

Page | 23 able to provide means for living in Algeria.42 In the process of naturalization or before naturalization the Algerian government issues the nationality details in the case a Sahrawi wants to go abroad, but the fact that the document is issued, never implies that one becomes a full citizen of Algeria43. Mostly, the Western Saharan’s travel documents are not recognized by most of the global countries on the grounds that Western Sahara is not an independent state. Some of these countries include Estonia, France, Finland, and Greece etcetera. However, this changes if a Sahrawi becomes a full Algerian citizens with the correct identification papers.

3.2.1 Cases of Statelessness in Algeria In Algeria there were no Sahrawi applicants who brought forth their cases to a court. Most of the Sahrawi population resides in refugee camps in Algeria and awaits the self-determination of their own state. The UNHCR in Algeria safeguards Sahrawi refugees that reside in the Tindouf refugee camp and urban refugees of other nationalities.44 The Sahrawi refugees are seen as provisional refugees by the Algerian government and are therefore housed in five large refugee camps located in Laayoune, Dakhla, Smara, Awserd and Tindouf. Birth registration has been extremely low in the refugee camps due to the political indifferences amongst the host government and the Polisario front concerning the Western Sahara region making it nearly impossible to properly conduct the registration. For the above mentioned reason no accurate statistics exist for the amount of Sahrawi refugees living in Algeria. Algeria hosts several refugees and asylum seekers in its capital, among them are 4.200 Palestinians, 90.000 Sahrawi refugees, 6.211 Syrian refugees and 572 refugees of other nationalities.45 As of September 2011 the UNHCR in Algeria has managed to register 146 urban refugees and 795 asylum seekers of whom 37% are females and 17% are children. The Algerian government does not recognize the status of many refugees and asylum seekers leaving them in the absence of the most basic rights such as access to the labor market.46

3.3 Legal framework in Mauritania According to the UNHCR Approximately 26,420 Sahrawi refugees reside on Mauritanian soil. This basically means that Sahrawi women and men have been living in Mauritania since the conflict emerged. The issue that arises is child birth and the acquiring of nationality of the Sahrawi population that lives on Mauritanian territory. For Mauritania to reduce and prevent statelessness it needs to resolve the problem of statelessness of the Sahrawi’s. Mauritanian nationality laws form the legal framework for Mauritania when it comes to acquiring citizenship.47

42 Embassy of the Democratic and Popular Republic of Algeria (2002). Noncommercial information about citizenship, dual citizenship and . Consular Section 2118 Kalorama Rd., NW Washington, DC 20008. Accessed on the 8th of June 2018. 43 Boukhars, A. (2013). Western Sahara: Beyond complacency. FRIDE, September. Accessed on the 5th of February 2018. 44 The UNHCR (2016). UNHCR OPERATIONAL UPDATE on Algeria. Accessed on the 2nd of February 2018.

46 The UNHCR. (2016). Algeria fact sheet containing the UNHCR’s work in Algeria. More specifically its work in Tindouf a refugee camps where mostly Sahrawi’s reside. It further highlight the amount of refugees Algeria currently has. Accessed on the 2nd of April 2018 47 The UNHCR. Global report on statelessness. The Western Sahara situation. Accessed on the 2nd of February 2018.

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Mauritania was under French colonial rule from the year 1903 until 1960, it is for this reason that the Mauritian nationality law resembles the French nationality law. Before the French ruled in Mauritania state sovereignty did not exist, all laws and regulations were made in consultation with the citizens. Mauritania became independent in 1960 and adopted an independence convention in 1961, the convention however did not define the citizens of the state. A separate nationality law was adopted in the same year to define Mauritanian citizenship. In article 8 of the nationality law describes the birth right that states that a person is Mauritanian if one is born from a Mauritanian father. The article was discriminatory towards women and their children born from fathers with other heritages. Later a new article, article 9, was adopted describing that Mauritanian citizenship is obtained by anyone whom is born from a Mauritanian father or a Mauritanian mother or born on Mauritanian territory. The amended article is derived from the French civil code of 1889 that states that a person is legally entitled to the citizenship if one of the parents is born on the territory despite of the parent’s legal citizenship. Mauritanian nationality laws continue to be discriminatory on the basis of gender: children born from Mauritanian fathers are automatically Mauritanian citizens while children born from a Mauritanian mother are only considered citizens if the father is of an unknown nationality, stateless or if the child rejects the father’s nationality before he or she has turned 18. The assumption of the law is the fact that a father’s nationality exceeds the mother’s nationality. Furthermore, children born from Mauritanian mothers can become citizens if they do not decline the citizenship before reaching the age of 18.48 Article 13 of the nationality law describes the process of obtaining the Mauritanian citizenship if one is born to Mauritanian parents abroad which automatically provides them with the nationality. If one is born in Mauritania to foreign parents, he will obtain the citizenship, before he reaches the age of majority, if the parents have lived on Mauritanian soil for at least five years. Naturalization is only available to those that are in other situations than the ones mentioned above and only applicable if these persons have lived on Mauritanian soil for five years. The habitual residence rule of five years is only waived for those born in Mauritania, ones that marry a Mauritanian citizen or those that have served the country in an extraordinary way that is beneficial to the state49.

Mauritanian nationality laws are relatively liberal although it discriminates women, it does not do so in full effect. It is possible for women to provide their husbands and children with the Mauritanian citizenship it is solely not given to them automatically like in the cases of a Mauritanian father. Mauritania does not have a historically stateless population and attempts to reduce statelessness by providing several manners to obtain the Mauritanian citizenship. Its regulations that provide children that are born on its soil, the Mauritanian citizenship after living in the country for five years perfectly displays its efforts to combat statelessness. Naturalization in Mauritania holds the requirement that the applicant must speak one of the many languages spoken in the state which are Wolof, Hassaniya, Bambara, French, Sarahule or Peul. Sahrawi’s may acquire the Mauritanian nationality if they are able to fulfill the conditions that the state has

48 Statelessness and Citizenship: A Comparative Study on the Benefits of nationality, Accessed on 13th of February 2018. 49 Blitz, b. Lynch, M. (2011), Statelessness and the Benefits of Citizenship: A Comparative Study. Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality. Accessed on 13th of February 2018.

Page | 25 set for naturalization: residence within the Mauritanian state for at least five years, no violations of the Mauritanian law and unquestionably no criminal record, acquaintance with the state’s customs and languages are the conditions one must fulfill before applying for naturalization in Mauritania.50 Mauritania has had many alterations in the constitution, however the nationality laws have remained unaltered. One of the alterations to the constitution is similar to a rule upheld by the United States of America which state that to be eligible for presidency one must be born in Mauritania or be Mauritanian by birth51.

3.3.1 Cases of statelessness in Mauritania In Mauritania, there were no cases brought before the court by any Sahrawi’s. There were cases brought before the Mauritanian court that concern nationality laws and human rights which are both equally important and applicable to this research as this research aims to gain insight into ways states concerned in the Western Sahara conflict deal with statelessness. Arab Moors primarily inhabited Mauritania’s northern part while several non-Arab populations inhabited the south. In 1984 after the coup d’état the policy of Arabization was implemented by the Mauritanian government. In the years following the implementation, black Mauritanians that opposed the new policy were detained in solitary confinement, tried and even (in some extreme cases) executed. The Mauritanian government expelled nearly 70.000 non-Arab citizens after implementing a policy that insisted the ‘Arabization’ of the Mauritanian population in 1989. Black citizens were detained and expelled to neighboring states such as Mali and Senegal, where they lived in refugee camps as stateless persons. Approximately a decade later the African Commission on Human and People’s rights found that the rights of the expelled black Mauritanian citizens were violated. They declared that during a three-year period the Mauritanian government committed immense human rights violations directed at black citizens. The Mauritanian government was in violation of the African Charter in which it states that the expulsion of citizens and the deprivation of citizenship based on discrimination is wrongful. The case of human rights violation by Mauritania was brought before a judge in 1997 by the Institute on Human Rights and Development in Africa (IHRDA) in IHRDA v. Mauritania on behalf of the expellees. Mauritania was brought before a court on counts of discrimination, deprivation of property, denial of citizenship and denial of peace and security.52 The ACHPR, the African Commission on Human and People’s Rights, requested the court to ensure Mauritania complied with the law and to accept the expellees back into Mauritania without any postponement. They also demanded new identification documents for the expellees and the reinstating and restoring of seized property. By the year 2003, the Mauritanian government still had not complied with the requests from the court and the ACHPR. In spite of various pressures that were put on the government by numerous human rights organizations. The African Union Special Rapporteur on Refugees was obliged to start investigating the situation of

50 Embassy of the Islamic Republic of Mauritania (2001). Citizenship laws. Consular Section 2129 Leroy Pl., NW Washington, DC 20008. Accessed on 9th of June 2018. 51 Blitz, b. Lynch, M. (2011), Statelessness and the Benefits of Citizenship: A Comparative Study. Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality. Accessed on the 15th of February 2018. 52 IHRDA v. Mauritania [2009] (African Commission on Human and Peoples’ Rights). Accessed on the 18th of February 2018.

Page | 26 the expellees in neighboring states. By the year 2004, the investigating team managed to gather testimonies from approximately 25.000 expelled black Mauritanians wherein they state that the Mauritanian government had snatched their identification papers and the citizenship from them. The investigation led to a tripartite contract that was signed by Mauritania, Senegal and the UNHCR in 2007. In the contract, Mauritania vowed to accept the return of the previously expelled black Mauritanians. By the end of 2008, approximately 5.000 expelled Mauritanians returned to Mauritania. Though, the expellees are allowed to return home a lot of issues remain in place as many of the expellees that have returned are denied documentation papers leaving them stateless and deprived of basic human rights53.

3.2 Legal framework in Morocco The Western Sahara is part of Morocco according to the government of the sovereign state. The Sahrawi population that live on Moroccan soil is estimated at the amount of 603,253 which is significantly higher than the amount that live on territories of the other involved states. Laayoune is seen as the capital of the annexed Western Sahara and has a population of 217,732. Sahrawi offspring is born every single day on annexed soil in the Western Sahara and deal with nationality issues if the parents decide not the register their children. The will for self- determination lies higher in Laayoune than in any other city in the Western Sahara. Parents dislike the fact that Morocco annexed the soil after Spain decided to retract itself from the area. This often result in the renunciation of the Moroccan nationality. The conflict between the Polisario front and Morocco is currently still heated which has a tremendous impact on the nationality of the Sahrawi population. Nationality laws in Morocco however display the state’s effort to combat statelessness on its soil.54 In 1956, Morocco ratified the ‘1951 convention relating to the Status of Refugees’ and the connecting 1967 protocol nearly a decade later. Except from the 1951 convention, Morocco has failed to sign and ratify any other convention relation to stateless persons. Morocco’s constitution, which was adopted in 2011, identifies the primacy of ratified International regulations over its domestic laws. It also recognizes the rights and freedoms, which are similar to those of the nationals, of foreign citizens that do not have the Moroccan citizenship.55 Morocco implemented a Royal decree concerning asylum procedures in the year 1957 and the application of the 1951 convention. The decree resulted in the creation of an Office for Refugees and Stateless Persons (Bureau des Réfugiés et Apatrides) and an Appeals chamber for asylum seekers within the ministry of Foreign Affairs. The Bureau des Réfugiés et Apatrides is responsible for the assignment of the refugee status to people arriving to Morocco and issuing identification documents and permits to applicants. Despite the fact that Morocco established the bureau that was responsible for the assigning of statuses and the issuance of documentation it did

53 IHRDA v. Mauritania [2009] (African Commission on Human and Peoples’ Rights). Accessed on the 18th of February 2018. 54 Holt, B. (2017). Western Sahara, Sahrawi Arab Democratic Republic: Protracted Sahrawi displacement and Camping. P.6-12 Accessed on the 15th of May 2018. 55 Submission by the United Nations High Commissioner for Refugees (2014). Compilation Report Universal Periodic Review: 3rd Cycle, 27th Session. Morocco. Accessed on the 11th of May 2018.

Page | 27 not succeed in creating an effective asylum procedure.56 In the year 2003, Morocco adopted a new immigration law ‘l’entrée et au séjour des étrangers au Royaume du Maroc, à l’émigration et l’immigration irrégulière’. In article 17 of the immigration law new conditions were set for the granting of refugees and asylum-seekers with a residence permit. Deportation criteria and measures for dealing with asylum seekers were established in articles 29 and 38. The 2003 immigration law paved the way for the drafting of an asylum law in 2014 which reinforces the protection of the UNCHR’s persons of concern by recognizing the fundamental principle of non- refoulement in which it is stated that it is forbidden for a country to send refugees or asylum- seekers back to a country in which they would be in danger of persecution. The asylum law has however not yet been adopted by the Moroccan government and parliament and until it is adopted the immigration law remains the only national legislation available to immigrants, refugees and asylum-seekers. The bureau des Réfugiés et Apatrides has been inactive since the adoption of the 2003 immigration law. The government revived the bureau, pending the asylum law, in 2013 to attain regularization for refugees that are considered UNHCR’s people of concern. Starting in 2016, the bureau has questioned 1493 refugees that are registered at the UNHCR, 687 of the refugees were not nationals of Syria. The government granted all questioned non-Syrians the refugee protection status and renewable sojourn permits which constitutes a noteworthy progress in refugee protection in Morocco.57 As of the year 2016, the UNCHR in Morocco has registered 6.398 persons of which 4.329 were refugees and 2.069 were asylum-seekers. 44 percent of all registered persons consist of women and children. Most of the registered refugees consist of Syrian nationals, they make up 68 percent of all applicants.58 In Morocco, women’s rights groups protested in front of the parliament and the ministry of justice to raise awareness for the issue that women could not pass their nationality to their foreign husband and kids. The protests were effective and sparked a discussion resulting in the alteration of the nationality laws. Many stateless children received the Moroccan nationality after the amended law was effective. This law is effectively reducing statelessness among children, as there is a significant rise in Moroccan citizens marrying a non-Moroccan national. More specifically the majority of the rise consists out of Moroccan women. Gender equality in nationality laws supports the reduction and prevention of statelessness in Morocco. In 2007, new amendments to the nationality laws allowed Moroccan women to automatically transfer their nationality to their spouse and children regardless of the nationality of the father. The new amendments to the nationality laws are not only important remedies to ensure gender equality in Moroccan legislation it also is a critical measure in preventing statelessness among children. It provides children with the right to a nationality at birth which is preserved in the 1961 Convention. Despite the efforts Morocco is making to combat statelessness it is still evident

56 Submission by the United Nations High Commissioner for Refugees (2014). Compilation Report Universal Periodic Review: 3rd Cycle, 27th Session. Morocco. Accessed on the 13th of May 2018. 57 Conseil National de droits de l’Homme (2013).Foreigners and Human Rights in Morocco, for a radically new asylum and migration policy. Accessed on the 3rd of March 2018. 58 Morocco: Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report. Universal Periodic Review: 3rd Cycle, 27th Session. Accessed on the 8th of February 2018.

Page | 28 among children of stateless refugees that inherit statelessness from their parents even if the children are born on Moroccan territory. The gap in Moroccan legislation allows children born from unknown parents also known as foundlings to obtain the Moroccan nationality but prohibits children born to stateless parents to do the same even if the identity is known. So, how can stateless persons living on Moroccan territory acquire the nationality? Naturalization may be possible for stateless Sahrawi’s if they fulfill the conditions laid out by the Moroccan government in article 11 of the 1958 nationality law. The conditions are: having knowledge of the Arabic language, being of legal age, not having a criminal record nor should they have ever been convicted on a crime that is indictable by the law in Morocco. Other requirements are mental and physical health, having lived on Moroccan soil for at least 5 years preceding the application and being able to provide for themselves. An important aspect of the application procedure is that one must be in possession of a birth certificate. A stateless person may be given the nationality by royal decree if he or she executed an exceptional service on behalf of the Moroccan state. Article 12 of the nationality law describes that one may also be given the nationality if the individual is deemed beneficial for the state however, he or she must fulfill the conditions of not having a criminal record and being of a legal age before being considered.59

3.4.1 Cases of statelessness in Morocco In Morocco, there were no cases brought before the court on behalf of Sahrawi’s. However there were cases brought before the Moroccan courts that concern nationality laws and human rights which are both equally important for this research as it displays Morocco’s behavior towards statelessness, nationality and human rights. The ‘Nationality decrees issued in Tunis and Morocco’ court case was brought before the permanent court of International justice in the year 1921.60 This case concern British nationals that were denied nationality decrees by the French government on French territory in North- Africa (mainly Morocco and Tunis). On the 8th of November, in the year 1921, a decree was publicized in Tunis, it’s first article states the following: “With the exception of citizens, subjects or nationals of the Protecting Power (other than our own subjects), every person born in the territory of our Kingdom of parents one of whom was also born there, is a Tunisian, subject to the provisions of conventions or treaties binding the Tunisian Government.” On exactly the same day the French president publicized a similar decree in which the first article contains similar information on the acquiring of nationality in France: “Every person born in the Regency of Tunis of parents of whom one, justiciable as a foreigner in the French Courts of the Protectorate, was also born there, is French.” In Morocco, similar legislation was issued concerning the acquiring of nationality. Morocco and Tunis were also seen as French territory hence the similarities in legislation. After the issuance of the decrees the British Ambassador denounced the new legislation as it was now applicable to British nationals in Morocco and Tunis which

59 The 1958 Moroccan nationality law, Moroccan DAHIR. N.1-58-250: On the Code of Moroccan nationality. Accessed on the 7th of March 2018. 60 Advisory Opinion No. 4, Nationality Decrees Issued in Tunis and Morocco, 4, Permanent Court of International Justice, 7 February 1923. Accessed on the 7th of March 2018.

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Great-Britain could not recognize. The French and British governments had divergent views on the matter and therefore chose to bring the matter before the International court of justice, as arbitration and judicial settlements were refused, and appealed to the 1903 Franco-British Arbitration Convention of October 14th. The court was requested to give an advisory opinion solely on the matter of domestic jurisdiction. On the 7th of February, 1923, the court delivered its opinion on the matter. The court applied the doctrine of paragraph 8 of article 15 of the covenant concerning exclusive jurisdiction. Due to the fact that Morocco and Tunis were annexed by France, by way of sovereignty, the state had the exclusive right to implement the same legislation as they had in France. The court case was not a matter of International jurisdiction but merely the domestic jurisdiction of France, therefore the court ruled in favor of the French government. After negotiations between the French and British governments, they came to the agreement that starting January 1st 1924 all British nationals born on French territory should be entitled to decline the French nationality. If one is born from a British national somewhere else than the capital Tunis he or she should not be considered a French national by any means. In Morocco similar agreements were decided upon by the concerning governments. A British national born before 1921 on French soil would not be subject to the French nationality. The nationality decrees implemented by France in Tunis and Morocco described a procedural manner of acquiring nationality by birth and therefore it contributed towards the reducing of statelessness in Morocco and Tunis. The French decree concerning nationality laid the foundation for the Moroccan immigration and nationality laws.

3.5 Conclusion The comparison of legal framework of all four involved countries consists out of nationality laws and relevant court cases applicable to the Sahrawi population. To conclude, Sahrawi adults could possibly acquire citizenship of one of the four involved states by opting to apply for naturalization if they are able to fulfill the necessary requirements. Another option to acquire the nationality of one of the four states could be if it is given to the individual under certain extraordinary circumstances for instance a heroic act on behalf of the state. For children on the other hand, obtaining the nationality of the state they are born in is much easier as one of the most important requirements for nationality is being born on the state’s territory.

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4. What provisions under International law are applicable to the protection of rights of the Sahrawi population and how does state responsibility derive from these provisions?

In this chapter an overview will be given of which International provisions are applicable to the four concerned countries and by which of these international provision the states can be held responsible and accountable for non-compliance.

4.1 The International framework of provisions, treaties and conventions States have sovereignty which allows them to set the regulations for the attainment, modification and forfeiture of nationality for their own state without the interference of other states. Simultaneously, states have boundaries that have been set by general principles, International treaties and customary International law which states must comply with (if ratified). The basis for International protection of stateless persons lays within the 1954 convention, it offers the definition of statelessness and establishes the principles by which stateless persons ought to be treated and which rights they should have. Furthermore the 1954 convention assures the acquisition of travel documents, administrative assistance and the right to an identity. The 1961 convention deals with regulations concerning the prevention and reduction of statelessness. This convention obliges state parties to establish regulations in their national legislation that address the occurrence of statelessness both at birth and later on in life. Additionally, it sets regulations to prevent statelessness and protect those that have lost their nationality due to renunciation or state succession. It further describes potential and limited cases in which deprivation of nationality is allowed. Regional treaties establish supplementary regulations for the prevention of statelessness that perfectly complement the conventions. Other International instruments such as the International Covenant on Civil and Political Rights, the Convention on the rights of the child, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Universal Declaration of Human Rights, the Convention on the Rights of Persons with Disabilities, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of Discrimination against Women all contain requirements regarding the right to nationality, help prevent statelessness and protect stateless persons under International law.61 The legal documents that perfectly describes and highlight the importance of the issue are the 1954 UN convention concerning the status of stateless persons and the 1951 convention on the reduction of statelessness. By implementing certain measures concerning statelessness into national legislation, states can guarantee that infants that are born inside of a state’s border have the right to acquire the nationality. Nevertheless, regardless of the existence of legal instruments that ensure the safeguarding of stateless persons some states disregard the legal instruments due to the fact that they cannot fulfill the obligations or have not ratified the UN conventions. The abovementioned is a result of the International community lacking a monitoring force to ensure compliance under International law. Additionally, the absence of a shared procedure to regulate the stateless status is postponing resolutions that could ensure the rights and protection of stateless persons.

61 The UNHCR. (2014). what is statelessness, I belong campaign. Accessed the 15th of March 2018.

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Every human being has some set rights and privileges that are bestowed upon them by the state and those in power. The law states categorically, the status of the rights and in the case of any limitation, the law dictates the extent. Universally, it is agreed that individual rights have to be protected at all times, this is according to the Geneva Convention. Irrespective of the prevailing conditions in a given state or time these privileges must be dispensed unreservedly. For example, one has the right to life, free from slavery, free from torture, right to a fair trial, right to protection amongst others. As it has been witnessed in other global areas involved in conflicts, there are a lot of violations of human rights, to that effect Western Sahara is no exception. A lot of reports have indicated repression of these basic rights. For example, killings in the area, unfair trials, and disappearance amongst other violations. Internationally, there are bodies entrusted with ensuring that human rights are not violated as stipulated in Geneva’s universal declaration of human rights document. These bodies include among others the Committee on Economic Social and Cultural Rights (CESCR).

4.2 International provisions applicable to Spain Spain comprehends the importance of protection and advertising of human rights and has therefore resubmitted its candidacy for the United Nations’ human rights body for this term (2018-2020).62 It is also an active state party to several legal instrument concerning human rights. Spain has ratified numerous legal instruments preserving human rights in Spain. Below will follow a summary of all legal instruments Spain has ratified and therefore should uphold and comply with. These International provisions in Spain are applicable to the Sahrawi refugees and other stateless persons:  International Covenant on Economic, Social and Cultural Rights and the ICESCR option protocol.  ratified the 1951 Convention relating to the Status of Refugees in 1956 and its 1967 Protocol in  International Covenant on Civil and Political Rights and the ICCPR 1st optional protocol.  Convention on the Elimination of All Forms of Discrimination against Women and the CEDAW optional protocol.  Convention on the Rights of the Child and the CRC 3rd optional protocol.  International Convention on the Elimination of All Forms of Racial Discrimination and has accepted individual complaints under its art. 14.  Convention against Torture and the CAT optional protocol.  ILO Convention 169 on the Rights of Indigenous People.  Convention on the rights of persons with disabilities and the CRPD optional protocol.  European Convention for the Protection of Human Rights and Fundamental Freedoms.  The Convention on the Rights of the Child was ratified by Spain in 1990.

62 Ministerio de Asuntos Exteriores y de Cooperación (2018). Human Rights Council report of Spain 2018-2012. Accessed on the 8th of March 2018.

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4.3 International provisions applicable to Algeria Algeria has ratified a number of International provisions governing human rights on their territory. Although the human rights in Algeria have improved over the last couple of years, the state still has a long way to go. When it comes to human rights Algeria has some serious challenges, the most extensive restrictions in Algeria are freedom of association and social gatherings, freedom of press and the freedom of expression. According to the human rights watch reporters were detained and were facing criminal prosecutions in the year 2017 for exercising their freedom and speech. In doing so the reporters insulted state officials, the religion of Islam and even the president.63 Algeria is also known for its restrictions on movement and its violence against women even though the state has ratified the CEDAW charter in which all forms of discrimination against women are eliminated. Concerning Sahrawi refugees in Tindouf, Algeria is not providing them with the freedom of movement nor the freedom of expression as they are marginalized by the government and the Polisario front. Below will follow a summary of all legal instruments Algeria has ratified and therefore should uphold and comply with. These International provisions in Algeria are applicable to the Sahrawi refugees and other stateless persons:  The Convention relating to the Status of Refugees  1969 OAU Convention governing the specific aspects of Refugee Problems in Africa  African Charter on the Rights and Welfare of the Child  African Charter on Human and Peoples' Rights  The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)  the Convention for the Rights of the Child (CRC)  Geneva Conventions and the Additional Protocol I (Protection of Victims of International Armed Conflicts), AP I Article 90, and Additional Protocol II (Protection of Victims of Non-International Armed Conflicts)  Algeria has ratified all 8 fundamental ILO conventions  The Convention on the Rights of Persons with Disabilities  The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment  The Convention on the Elimination of All Forms of Racial Discrimination

4.4 International provisions applicable to Morocco The government in Morocco under former king Hassan the second was known for its hostile behavior towards its enemies. The state displayed the most aggression during the 1960s until the 1980s in the so called ‘years of lead’. Morocco adopted a new constitution in 2012 where human rights were highlighted. The constitution prohibits torture, cruel, degrading and inhuman treatment in its article 22. It goes on by stating that harming a person’s moral or physical integrity is punishable under Moroccan law. Furthermore in Morocco every human being is

63 Reuters. Bensemra, Z. (2017). Human rights watch report: Algeria. Accessed the 13th of March 2018.

Page | 33 innocent until proven otherwise and racism or violence towards anyone living in the kingdom is prohibited. It is evident that Morocco has put a lot of effort towards improving its image of being an aggressive state by implementing its new regulations on human rights. When it comes to the human rights in the Western Sahara among Sahrawi’s Morocco attitude towards it needs to improve. In 2015, the UN Secretary-General visited the refugee camps in Tindouf resulting in Ban-ki Moon referring to the Western Sahara as occupied. Morocco reacted by firing all the personnel from the peace keeping mission MINURSO and not allowing them to return home.64 Thus can be concluded that Morocco is still sensitive about the situation in the Western Sahara. The Sahrawi population are unfortunately still a victim of unfair trials, police violence and arbitrary arrests. Below will follow a summary of all legal instruments Morocco has ratified and therefore should uphold and comply with. These International provisions in Morocco are applicable to the way Sahrawi refugees need to be treated:  Morocco ratified the 1951 Convention relating to the Status of Refugees in 1956 and its 1967 Protocol in 1968  The Convention on the Elimination of All Forms of Discrimination against Women  The Convention on the Rights of Persons with Disabilities  The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment  The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families  The Convention on the Elimination of All Forms of Racial Discrimination  Convention on the Rights of the Child was ratified by Morocco in 1993.

4.5 International provisions applicable to Mauritania Mauritania seems committed to meet their human rights obligations by ratifying International human rights treaties and by adopting numerous laws to protect human rights in their own state. Mauritania has a lot of challenges concerning human rights as it deals with corruption on a political level and the marginalization of ethnic groups. In the past Mauritania has exiled nearly 70.000 black Mauritanians because of their ethnicity. Other challenges are improving the poor conditions of detainees in Mauritanian prisons and sexual violence against women. Demonstrations against the government are prohibited as they are seen as association and the right of association is restricted. The human rights situation concerning women and young girls are extremely worrying as they are in danger of abuses such as rape, human trafficking and child marriages65. Below will follow a summary of all legal instruments Mauritania has ratified and therefore should uphold and comply with. These International provisions in Mauritania are applicable to the way Sahrawi refugees need to be treated:

64Boudlal, Y. (2016). Human rights watch report: Morocco and the Western Sahara. accessed 15 March 2018 65 The Human Rights watch (2018) .Ethnicity, discrimination and other red lines. Repression of Human Rights Defenders in Mauritania. Accessed on the 15th of March 2018.

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 African Charter on Human and Peoples' Rights  African Charter on the Rights and Welfare of the Child  The International Covenant on Civil and Political Rights  The Committee on the Elimination of Racial Discrimination  The 1951 Convention relating to the Status of Refugees in 1956 and its 1967 Protocol  The International Covenant on Economic, Social and Cultural Rights  The Convention on the Elimination of All Forms of Discrimination against Women  Convention on the Rights of the Child  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families  International Convention for the Protection of All Persons from Enforced Disappearance.

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4.6 State responsibility All four concerning states have the responsibility to ensure compliance with the signed or ratified treaties regarding Human Rights. State responsibility derives from the International provisions and should therefore be strictly followed. The breaching of an International obligation can lead to sanctions or other punishments from the United Nations. In International law signing or ratifying a convention or treaty automatically means that the state may be held accountable when breaching it. Neither of the four concerned states has signed or ratified the 1961 convention on the Reduction of Statelessness which means that none of the states are currently displaying responsibility and compliance towards the reduction of statelessness. Algeria, Mauritania, Morocco and Spain have however signed and ratified the 1951 Convention relating to the status of Refugees and Stateless Persons. In addition, all four states have ratified its 1967 protocol as well. Spain is state party to the European Convention for the Protection of Human Rights and Fundamental Freedoms in where all state parties must comply with its articles. The right to life, prohibition of torture, right to liberty and security are rights listed in the convention that could be applicable to the stateless Sahrawi’s living in refugee camps. Spain has changed its attitude towards statelessness and wants to combat it effectively. In the year 2018, with a delay of 57 years, Spain has given its consent to sign and ratify the 1951 UN Convention grating people who are stateless a nationality.66 Algeria is a state party to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and tries to defend the Sahrawi population by aiding the Polisario front in the fight for self-determination. It also tries to limit the human rights violations inflicted by Morocco upon the Sahrawi population. Morocco was known for its violent behavior under the previous king, Hassan II, but has ratified the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment in the year 1993. Under the reign of the new king. Mohammed VI, there were far less crimes committed towards the Sahrawi population. Mauritania and Algeria both have ratified the African Charter on Human and Peoples' Rights. In addition to the above mentioned, the Sahrawi Arab Democratic Republic has ratified the African Charter as well in the year 1986. In the African Charter rights such as the right to health, the right to education, the right to national peace and security are all considered articles of the charter and are therefore obligatory to be endorsed by state parties. Furthermore, it also requires state parties to take part in the promotion of human Rights and the protection of vulnerable groups and their family as is stated in articles 18 and 25.67 All four states have signed and ratified both the convention on the Rights of the Child and the CEDAW convention concerning women’s rights. In the case of the Sahrawi women and children, all four states could be held accountable for non-compliance with the International treaties as the Sahrawi’s live in refugee camps on the territory of the involved states and are deprived of basic Human Rights. It is evident that the four states sign and ratify multiple legal International treaties regarding Human Rights but seem to neglect the Human Right conditions of the Sahrawi’s. Mutual non-compliance should therefore be sanctioned by the UN’s Security Council.

66 Gonzalez, E. (2018). Spain will sign the Convention against Statelessness with 57 years of delay. The Diplomat in Spain, digital newspaper. Accessed on the 15th of May 2018.

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4.7 Conclusion To conclude Algeria, Mauritania, Morocco and Spain need to be held accountable for violating International treaties concerning human rights as all four states have ratified multiple treaties and conventions concerning human rights. In practice it can be concluded that not all states are in full compliance with the ratified or signed treaties. State responsibility needs to be derived from the ratification of the treaties, if responsibility is not taken by the state parties the UN needs to sanction the states. The Security Council needs to strictly monitor the compliance of states to ensure the overall promotion of human rights and the reduction of statelessness. The signing and ratification of the treaties and conventions of all four involved states expresses a form of responsibility towards human rights and the reduction of statelessness but does not directly affect the wellbeing of the Sahrawi population as they are currently still subject to human rights violations. In theory States have to take responsibility to ensure rights for children and all other citizens. However, in practice Sahrawi’s do not want the nationality of another state, they want the Sahrawi nationality to be reality.68 So, in this case even if States are held responsible for statelessness among Sahrawi’s and display genuine responsibility and willingness to resolve the issue, the Sahrawi population would not be willing to acquire the nationality of any of the four involved states. Responsibility needs to be taken to better the situation of the Sahrawi’s, the question in this situation is ‘by whom’?

67 African Commission on Human and Peoples' Rights (2018). The African Charter on Human and Peoples' Rights. Accessed on the 5th of May 2018. 68 Bentveld, M. (2018). De muur: Westelijke Sahara [video file]. Nederlandse Publieke Omroep, BNNVARA. Retrieved from: https://www.npostart.nl/de-muur/02-05-2018/BV_101388194. Accessed on the 5th of June 2018.

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5. Who is responsible to resolve the situation of statelessness among the Sahrawi population in the Western Sahara?

In this chapter, the responsibility for resolving statelessness among the Sahrawi population is explained. The delicate and complex situation involving the Polisario and multiple states in the dispute concerning the Western Sahara is long and deep-rooted. The inability of the concerned parties to resolve the issue at hand has led to an impasse. Because of this the issue of statelessness and the subsequent lack of human rights amongst the Sahrawi people has still not been resolved. The involvement of the UN The UN has become involved to regulate and help expedite the negotiations in order to reach a satisfactory political solution. The security council of the United Nations has recently adopted a new resolution (2414) concerning the Western Sahara on the 27th of April 2018. The UN states that the concerned parties and the surrounding countries need to unify and work together in the effort to exert peace and long lasting political stability in the region through dialogue and negotiation in order to facilitate the self-determination of the Sahrawi people in line with the Charter of the United Nations. The MINURSO will also continue its labor according to its instruction and in order to help the personal envoy to safeguard that the parties respect the agreements that have been made in the previous four rounds of talks and to ensure a political solution that is acceptable to all concerned parties while maintaining the peace and status quo. The concerned parties are stimulated to join forces with the United Nations Office of the High Commissioner for Refugees in order to build mutual good faith which will lead to more fruitful political advancement. The UN is highlighting the imperative for the parties to better the state of, and have full regard for, human rights in the Western Sahara and the Tindouf refugee camps in unison with the global community while respecting the requirements under International law. The International community has voiced its concern in the resolution about recent actions of the Polisario that could disrupt the peace process. Motivating the concerned parties to improve the progression and the defense of human rights in the Western Sahara and the Tindouf refugee camps, together with the liberties of association and expression will be done by the United Nations. Additionally, it notes that the humanitarian situation in the Western Sahara and the Tindouf refugee camps must be tended to. The refugees are highly dependent on exterior assistance of humanitarian nature. The International aid concerning nutrition is decreasing, which if not corrected will lead to a humanitarian crisis in which people will be starving resulting in death or health risks. A solution of the abovementioned problems and the improvement of the human rights of the Sahrawi people will lead to an increase in safety, progression, better prospects and job opportunities for de Sahrawi people. In short, the Sahrawi people will at last have renewed access to the basic human rights they were deprived of because of the conflict.69 This however does not resolve statelessness amongst the Sahrawi population, the United Nations expects responding to the self-determination desire of the Sahrawi’s will resolve it.

69 Security Council Resolution 2414. The situation concerning Western Sahara. Accessed on the 5th of May 2018.

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Acknowledgement of roles and responsibility The importance of the commitment of all concerned parties to move forward in the negotiation process of resolution (2414) is stressed by the United Nations, the negotiations will be the fifth round of negotiations since the year 2008. The concerned countries and the Security Council will need to work closely together with the UNHCR to implement policies to safeguard the Sahrawi population. Another important aspect in resolving statelessness in the concerned region is the effective involvement of women and youth in the dialogues, furthermore the recognition that the existing state of affairs in the Western Sahara is unacceptable. All concerned states must acknowledge their role as essential in the resolving of statelessness among the Sahrawi population in order to better the situation of the Sahrawi’s. As of march 2018 a new head of MINURSO has been appointed to ensure the peacekeeping in the region until the 31st of October 2018, all concerned states must support and respect the UN’s peacekeeping mission in the region. All neighboring states must reaffirm the military agreements drafted by MINURSO concerning a ceasefire between parties. Furthermore, all concerned states must cooperate to safeguard security measures implemented by MINURSO and continue to allow free movement and access to all employees of the United Nations. MINURSO on the other hand will continue to better their safeguarding mechanisms and to reduce the risk of violent behavior in the region.

The adopted Security Council resolution (2414) highlights the need of a realistic and attainable political solution to the issue of occupied soil and statelessness in the Western Sahara. A political solution will however only be achievable if all concerned states compromise, provide the UN with resources and are aligned with the objectives of MINURSO. The Secretary-General of the UN will supervise the negotiations once they resume this year and will brief the Security Council frequently by drafting a report. In addition to the drafting of a report on the negotiations, the Secretary-General is responsible for taking necessary measures to safeguard compliance with the United Nation’s MINURSO of all concerned states. The number of women working in MINURSO and the United Nations are extremely low and need to be increased to guarantee an affective and inclusive solution towards the problem and the UN’s policy framework. The Secretary-General shall need to effectively increase the number of women and their participation in order to achieve a progressive solution.

Self-determination of the Sahrawi’s The efforts towards a permanent and equally accepted political solution that have been made since the year 2006 will be taken into account by the UN and will in return make the self- determination of the Sahrawi population possible, if the proposed ideologies are aligned with the UN Charter. The UN requests the concerned states to make viable and realistic contributions towards the negotiations and to better the political process. In addition to the contribution of the concerned states, the UN will call upon the assistance of member states to lend assistance in the negotiation process between the concerned states. Also, the need for food programs and other humanitarian needs for the refugees will be provided for by the member states. It is of great importance towards the solution of the problem in the Western Sahara that all concerned states ensure the implementation of Security Council resolutions 1754, 1783, 1813,

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1871, 1920, 1979, and 2044 including one of the latest resolutions from the year 2017 which is resolution 2351.70

The Security Council has frequently voiced their concern on the presence of the Polisario Front near the border between Morocco and Algeria and will have to call for their withdrawal to ensure ceasefire between the concerned parties. The Polisario Front has a reputation of trying to destabilize the negotiations between the concerned states and the UN. To further destabilize the negotiations they have planned to relocate their administrative functions to another city named Bir Lahlou. The Security Council has requested the Polisario Front to withdraw from any action that could jeopardize the negotiations. In result the UN will insure that all concerned parties will be interviewed to better understand the situation and their ideologies.71 In other words, if all negotiations go according to the UN’s liking the Sahrawi population and its liberation front could possibly have a state of their own. The official creation of the Sahrawi Arab Democratic Republic would mean that all stateless Sahrawi’s would have a nationality and would no longer be deprived of any human rights. Sahrawi’s that have fled the region could return in peace without facing prosecution from any state. It would also mean that Sahrawi’s living in other states without the desire to return to their land could have a nationality of their own, freedom to travel the globe and enjoy all other privileges that come with a nationality.

Administrative developments The involved states should assist in resolving the issue of the Sahrawi population by filling gaps in administrative procedures to ensure the registration of newborns. Furthermore, they should assist stateless persons by providing legal aid and support in their naturalization process. They could also raise awareness on statelessness by providing the public with more information on the topic. To effectively ensure the reduction of statelessness the involved states should provide the Sahrawi population with the necessary documentation, for example a birth certificate, to engage in the nationality procedures.72

5.1 Conclusion The answer to the question of who is responsible to resolve the situation in the Western Sahara is both the involved states and the United Nations. The United Nations as a monitoring and facilitating organ leading negotiations between all parties. All four involved states have the responsibility to better the situation for Sahrawi’s and prevent future cases of statelessness. To conclude the UN will take responsibility as was released in Security Council resolution (2414) to attempt to better the situation in the Western Sahara. All concerned states need to fully comply with the UN and redirect resources towards the resolving of the conflict by attending all negotiations. All concerned states need to respect MINURSO and allow them to keep on working in the Western Sahara. In addition to the engaging with MINURSO and the UN, the states and the Polisario front must lay down all

70 Security Council Resolution 2414. The situation concerning Western Sahara. Accessed on the 5th of May 2018. 71 Security Council Resolution 2414. The situation concerning Western Sahara. Accessed on the 5th of May 2018. 72 The UNHCR, (2014). Resolving Existing Major Situations of Statelessness. Good practice paper, action 1. Ending statelessness within 10 years. Accessed on 23 May 2018.

Page | 40 weapons and ensure a ceasefire between both parties. All previously made efforts between the states and the Polisario front towards a mutually agreed upon political solution will be taken into account by the UN to realize a realistic solution. Furthermore, in the drafted resolution the UN acknowledges the self-determination rights of the Sahrawi population and ensures the creation of the Sahrawi Arab Democratic Republic state. The drafting of the resolution is the UN’s attempt to create a safe environment for the Sahrawi population and to resolve the issue revolving around the Western Sahara.

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6. Discussion of research

In this chapter the researcher’s personal reflections and opinions will be used to critically discuss the findings in regard to the research questions. In addition, the strengths and limitations of this bachelor’s thesis will be discussed and suggestions will be given to further the research on the topic of stateless amongst the Sahrawi population.

Difference in research For this research it was particularly difficult to find useful and accurate sources. As most sources focus just on the political conflict in the Western Sahara while other researches focuses on statelessness among the Sahrawi’s. The research on the stateless of Sahrawi’s is often researched isolated from the conflict which is one of the main reason why the Sahrawi population is stateless in the first place. The Sahrawi population is always examined as part of the entire stateless community, this basically means that there were no individual researches conducted on statelessness amongst the Sahrawi population in the Western Sahara. This research differs from all other conducted researches because it focuses solely on the Sahrawi population in the Western Sahara but does not exclude the conflict and the self-determination desire of the Sahrawi’s. It further examines the attitude of all involved states towards statelessness and how the states deal with statelessness in order to reduce and prevent it in the future. Secondly, this research looks at the responsibility of the involved states and the United Nations and their efforts to resolve the issue in the Western Sahara. In short, this research differs from all previously conducted researches because it takes a broader look at the situation of the Sahrawi’s in occupied Western Sahara. The strength of this research is that the issue is examined from multiple angles and approaches. This ultimately leads to a broader sense and knowledge on the issue of the Sahrawi’s.

Limitation of research The limitations of this bachelor thesis includes the fact that no case law of any Sahrawi national exists in the region that is being examined, with the exception of Spain. The desire to fully examine Sahrawi court cases could not effectively be exercised. The absence of the case law resulted in incomplete and unclear comparison between the four examined countries. The reason for the absence of any case law in the neighboring states of the Western Sahara is the pride and the desire for self-determination of the Sahrawi population. The absence of case law forced the researcher to look at the issue of the Sahrawi population from a different angle namely the relevant nationality laws and human rights violations that are applicable to the researched group. Multiple Sahrawi children are born from stateless parents each day on territories of neighboring states, which also means that the number of stateless persons increases every day. Another limitation of this research is the fact that countries such as Algeria, Mauritania and Morocco do not explicitly name or mention statelessness in their nationality laws or in their constitutions. In addition, in Morocco’s case the not signing or ratifying of International treaties concerning statelessness makes it difficult to establish an idea of the countries’ attitude towards statelessness. I acknowledge that these limitations have made the research less reliable as the

Page | 42 comparisons between the four concerned states were not compared thoroughly enough due to the lack of existing information.

Improvement suggestions Suggestions to improve future research on the research topic are to look at the issue from a broader sense using multiple research techniques which is called Triangulation. Triangulation ensures that the validity and reliability of the research becomes more reliable. To improve the research one must have access to legal documentation of Sahrawi court cases in which a stateless person attempts to acquire the nationality of the state that is being researched. To improve future researches on the Sahrawi population one must find adequate and reliable sources. This research is based on the study of literature and other literary sources. However, to enlarge the knowledge of statelessness amongst the Sahrawi’s interviews could be conducted to make it a qualitative research and to create more insight into their daily lives and the human rights they lack.

The findings The findings of this research are valuable because they display the responsibility of the four involved states. The responsibility shifts from all four states to the neighboring states whom with the help of the United Nations are attempting to resolve the conflict and statelessness of the Sahrawi population. The creation of statelessness in the Western Sahara is highlighted by the political conflict in the region. The newly adopted Security Council Resolution (2414) perfectly describes, also in chapter 5, in what way the states can reduce and prevent statelessness amongst the Sahrawi population.

Personal opinion The self-determination of the Sahrawi population is a highly sensitive subject due to the fact that in present-day Morocco and Algeria tensions are high between both governments and the Sahrawi population. The Sahrawi’s desire for a sovereign state which is not dependent on Morocco or Algeria. The self-determination desires of the Sahrawi’s is a subject I gained more insight into by conducting this research. In my personal life I hear both sides of the conflict, on the one side I hear that the Western Sahara is Moroccan and on the other side I hear that the Sahrawi’s deserve a state of their own. As a Moroccan Sahrawi living in the Netherlands, I do not get to see the human rights violations carried out by Morocco with my own eyes nor did I ever experience any altercations with the Moroccan law enforcement. To be completely honest, my family is divided between the two fronts. One front being completely supportive of the Moroccan government and the other front being supportive of the Polisario front. I am currently still looking for the front that I belong to, my views are that the Sahrawi’s have suffered enough and that they deserve a state of their own. However, I acknowledge that living conditions for the Sahrawi’s would be better if the Moroccan government stays invested in the region. To conclude, more research is needed from to fully develop an opinion on the matter of self-determination of the Sahrawi population. I however, fully agree with the UN’s Security Council on the matter of responsibility of the involved states and how their assistance is required in bettering the situation of the Sahrawi’s. All neighboring states must adapt their nationality laws to fit the requirements

Page | 43 for naturalization of the stateless Sahrawi’s. Furthermore, I believe that all concerned states must raise awareness on the subject of statelessness.

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7. Conclusion

The objective of this research is to explain the issue of statelessness amongst the Sahrawi population in Algeria, Mauritania, Morocco and Spain. The four countries that contributed to the creation of the stateless Sahrawi’s have been investigated on grounds of their legal framework concerning nationality, their compliance under International law and the responsibility they hold for resolving the statelessness issue of the Sahrawi population. This thesis emphasizes the aspect of prevention and reduction of statelessness amongst the Sahrawi population by all four involved countries. Firstly, the results of this research have shown that all four involved countries have ratified important International legal treaties concerning statelessness and human rights such as the CRC, the CEDAW and the 1951 Convention relating to the Status of Refugees. However, on the basis of the four involved countries being state parties to important legal treaties and conventions it can be concluded that none of the involved countries has been held accountable for its role the creation of the stateless Sahrawi population. Non-compliance to International documents is currently not monitored strictly enough by the United Nation’s Security Council which result in the states not taking responsibility in order to attempt to resolve the issue. Secondly, it can be concluded that the internal policies concerning nationality laws of the four concerned countries do not directly deal with the existence of stateless persons. The nationality laws of all four involved states do not specifically mention nor name the cases of stateless persons on their territory attempting to acquire citizenship. Furthermore, conditions for naturalization are general conditions that could possibly be fulfilled by a stateless Sahrawi, but only if they have a birth certificate. However, since the conditions do not state whether a person is required to have a nationality or nationality document prior to the application for nationality is not stated in any nationality laws of the four involved states. Thirdly, on the basis of the conducted research it can be concluded that none of the four involved states have managed to successfully reduce or prevent statelessness amongst the Sahrawi population on their own territories. Nor have they taken the responsibility to resolve the statelessness among the Sahrawi population. Fortunately, the United Nations has stepped in and taken responsibility to ensure full cooperation of all four involved states in the resolving on the issue in the Western Sahara. According to Security Council resolution (2414) the UN will ensure a collaboration of all four states and will additionally ensure the creation of the Sahrawi Arab Democratic Republic resulting in a win-win situation for all involved parties. The creation of the Sahrawi Arab Democratic Republic will ultimately resolve the issue of statelessness amongst the Sahrawi due to the fact that they will have their own nationality and state. To conclude, statelessness amongst the Sahrawi population will hopefully in the future be resolved with full compliance of the involved states and the aid of the United Nations. The self- determination desire of the Sahrawi population, the main objective for war with Morocco, will be satisfied and the Sahrawi Arab Democratic Republic and its documentation will be recognized by the International community. More importantly, the Western Sahara will cease to be a blank space on the world map.

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