Supreme Court ruling: denying Spanish nationality to Saharawis is a historic mistake

A few days ago we learned that the plenum of the Civil Chamber of the Supreme Court, according to ruling 207/2020 of 29 May 2020, considered that Western Sahara was not part of Spain for the purposes of the rule granting nationality to all Saharans residing in the territory of Western Sahara until the departure of Spain from the territory. Despite the fact that this was a colony converted into a province, number 53, by Presidential Decree of 10 January 1958, according to the legislation then in force, the Sahara was national territory for all purposes, since it had that provincial status.

This ruling has generated controversy around the issue, both by the parties concerned and by the assessment that can be made of the ruling. It should be noted that the judgement was supported by the individual votes of three judges who disagreed with the Supreme Court, namely, Mrs Ángeles Parra Lucán, Mr Antonio Salas Carceller and Mr Rafael Sarazá Jimena. This also means that the Saharawi who has been denied Spanish nationality by the Supreme Court, after being recognised by the Balearic Islands Court, could appeal to the Constitutional Court and even to the Strasbourg Court. These three judges maintain that the 1975 law which legalised the withdrawal from the metropolis, and the 1976 decree which sanctioned it, cannot be applied retroactively. The latter decree gave the Saharawis one year to opt for Spanish nationality. But this measure, according to the particular vote, was not valid, not only because it was inapplicable under the Moroccan administration (it is understood that due to the bureaucratic obstacles that those applicants could find in the new scenario), but also because it meant depriving them of citizenship for a reason that was not contemplated by the Civil Code of the time. Therefore, these three judges consider that the 1976 decree should not deprive the Saharawis of a nationality they already had. In that connection, if an application for amparo was lodged with the Constitutional Court, the latter could rely on reversing the effects of the aforementioned 1975 Act and the 1976 decree, seeking their annulment. It should not be forgotten that the decree used by the Supreme Court for the non-granting of nationality to the Saharawis, collides with the current article 11.2 of the current Constitution, which states that "no Spaniard of origin may be deprived of his or her nationality". In this sense, the particular vote of the judge Mr. M.ª Ángeles Parra Lucán in her vote says: "The judgment appealed against does not infringe article 17.1.c) CC and, on the contrary, carries out an interpretation of the domestic law of nationality that is in accordance with the international principles that form part of our system (articles 10 and 96 EC) and that recognize the right to have a nationality from birth. The judgment under appeal is also based on a desirable unitary interpretation of the legal system, since it takes into account the doctrine of the Third Chamber of this Supreme Court which, for the purposes of recognising the right to opt for Spanish nationality for the shortened period of one year of residence for those born on Spanish territory, has repeatedly established that those born in Western Sahara when it was under Spanish authority must be considered to have been born on Spanish territory".

Other controversies have also arisen as a result of the Court's ruling. It should not be forgotten that in 1975, when Spain left the territory, around 75,000 people lived in Western Sahara, who had ID cards, Spanish passports and a valid family book, and who were eligible for civil service posts in the administration and even for combat in the ranks of the army. Similarly, they had their own representatives in the Cortes del Régimen and were even able to vote in the Referendum on the Organic State Law of 1966. On the other hand, a considerable number of them had participated in the civil war and lost their lives in the contest.

Taking into account all above mentioned, it is worth asking what message we are transmitting to children or descendants of those Sahrawis born in the territory, after knowing this verdict, and the image Spain gives through it. The feeling of helplessness that may be lodged by all those officials, military, territorial police, etc., and their respective families, who served under the mandate of the Spanish authorities during the Spanish colonial period for the better functioning and development of the then reconverted into Spanish province.

Article 17.1.c) of the Civil Code recognizes the status of "those born in Spain of foreign parents, if both lack nationality or if the legislation of neither of them attributes a nationality to the child". Therefore, this status should be applied all the more to those of Spanish Saharawi parents. As the cliché goes, court rulings must be respected, especially coming from the Supreme Court. But this sentence, besides being surprising, we can hardly share it and we could even question its morality, as it is disloyal to those who dedicated their days to work for this country under its administration.
While it is true that, during the colonial administration, it was the components of the Polisario Front, when it emerged as a liberation movement, who were the first to reject the presence of Spain and its national attachment to it, it is also true that, after their departure, they have been the most interested in wanting to adopt Spanish nationality. Despite the fact that, in their movements out of the camps, they do so with Algerian documentation. 

But, beyond this, who benefits from this ruling? Starting from the premise that generally the judgments benefit and harm, in this case we find the paradox that this ruling of the Supreme Court has harmed everyone (meaning within the Saharawi population) and has benefited no one. This has been one of the few occasions on which, in the context of the issue at hand, there has been greater unanimity and consensus in the Sahara between all the parties affected by this dispute, however irreconcilable they may be, as the ruling has been rejected by all the parties. In short, this ruling is only detrimental to the Saharawis, whether they live or reside in the place they decide today.

The situation becomes especially painful when the comparative grievance of Spain with respect to other peoples arises. A recent and paradigmatic case is that of the Sephardim, the descendants of the Spanish Jews expelled from the peninsula by the Catholic Kings. In 2015 and after no less than five centuries, Mariano Rajoy's executive returned them Spanish nationality under a series of requirements that were difficult to fulfil given the time that had passed, but which were nonetheless carried out. On the contrary, the Saharawi case, much closer to home, is again and again faced with obstacles to accessing this same right. According to the law of 2015 on the granting of Spanish nationality to Sephardics from Spain, they had a period of three years from the entry into force of this law to formalize their application, a period that was already extended for one year by the Council of Ministers, and which ended on October 1, 2019. Finally, a total of 132,226 Jews of Sephardic origin applied for citizenship in the four years available to them, although there was a final extension covering the whole of 2020.

The dichotomous question that separates both cases is that one comes from a political decision, as it is in the case of the Sephardic, trying to repair an historical outrage, and the other, not less unjust, comes from a judicial decision. In this sense, the only way to correct this comparative damage would be to seek a legal framework, through legislative modifications, as could be the case with the reform of the Civil Code, as in the Sephardic case. Where these did not have to renounce their original nationality, since the Royal Decree that granted them Spanish nationality was approved after the reform of the Civil Code carried out in that sense by Law 12/2015.

A final examination of the above-mentioned judgement might call into question the criteria that the High Court may have followed in promulgating it with a view to "de-provincializing" a region of a territory considered to be national, as it was until 1975, and whether it could provide case law for other possible cases. One might ask what would happen if, for example, in 40 years' time some territory were to be separated from Spain, which would happen to those born in that territory, and if that would lead to some kind of legal uncertainty in that regard for those citizens. All of this in view of the particular interpretation that our highest judicial body has made of this case.

The Sahrawi people deserve recognition in accordance with their history. We cannot now turn a blind eye and generalize the issue under the pretext of the status of statelessness, after more than a century of Spanish colonialism. Although their current situation requires the world's attention in order to resolve the division of a people and achieve their reunification, which is what we have been advocating for more than a decade in the Saharawi Canary Islands Forum, we must not forget that the rights acquired with Spain by this people must not be circumvented.

Only in this way could we put an end to an anomalous and clearly unjust situation, where it is inconceivable that citizens who were born in province nº 53 of our country, today cannot have Spanish nationality due to a historical development in which they could interfere little or not at all.