France's highest administrative court has denied statelessness status to a Sahrawi-born individual residing in the country since 2013. The decision, based on procedural grounds and a narrow interpretation of statelessness, raises important questions about the imposition of nationality by occupying powers, the right to self-determination, and the role of international law in protecting stateless individuals. This article examines the details of the case, highlights the legal arguments put forth, and discusses the broader implications for stateless people in similar situations around the world.
EH was born in Western Sahara in 1978 and has lived in France since 2013. In December 2022, the Conseil d'Etat, the highest administrative Court in France, issued a final decision refusing his stateless status application. The applicant applied for asylum in France in 2014, but his application was refused by the French Protection Office of Refugees and Stateless People (OPFRA) and on appeal.
Although he was involved in the Gdeim Izik protest camp, the Court found, among other reasons, that EH did not bring enough evidence of his personal political activism, and therefore his individualized persecution. He subsequently applied for stateless status, but OFPRA refused that application in 2017. EH appealed against the refusal of his statelessness application, but both the Administrative Court and later the Administrative Appellate Court reject his case.
The case was then brought to the Conseil d'Etat, which overturned the appellate court ruling for procedural reasons. They heard the case on the merits but eventually confirmed the Administrative Court ruling. The Conseil d'Etat rarely issues decisions on statelessness, and case precedent in this area is fairly rare in France.
- EH was born in 1978 in Laâyoune to a Sahwari mother and Sahwari father. (EH’s father *had* a Spanish passport but his citizenship was disputed). Three years after Spain withdrew from Western Sahara and two years after the Sahrawi Arab Democratic Republic (“SADR”) was proclaimed by the Polisario Front.
- Morocco controls about 80 % of Western Sahara, which is surrounded by the Western Sahara Wall (“Berm”) of about 2 700 kilometers running north to south.
- Polisario Front controls the remaining 20 % of Western Sahara, East of the Berm.
- Laâyoune is part of the occupied territory and is known as the administrative capital of SADR.
- From his initial asylum claim, EH identified himself as Sahrawi and stated that he was involved in and supported the Polisario Front.
None of these facts were disputed, yet the applicant was still denied statelessness status, and the Conseil d'Etat refused to refer the case for a preliminary ruling.
Forced imposition of nationality and renunciation of nationality
Statelessness status litigation in France mainly deals with applicants whose citizenship is not recognized by any state and/or whose nationality has been stripped. EH’s statelessness arises from circumstances that differ from many other statelessness cases. He doesn't identify as Moroccan but possesses a birth certificate which records his nationality as Moroccan.
EH claimed that this citizenship was imposed on him illegally, violating international laws. He further argued that he did not fulfill the requirements of the Moroccan Nationality Code, as he was not born in Morocco, and his parents were not of Moroccan citizenship.
Finally, EH raised that he had renounced Moroccan citizenship and could not claim protection from Moroccan authorities as he was politically involved in defending Western Sahara's independence and Sahrawi rights.
Western Sahara, occupation, and the right to self-determination
As listed in the article 73 of the UN Charter, Western Sahara is a non-self-governing territory and not legally recognized under international law as part of Morocco. Within this framework, EH requested the Administrative Court to refer a prejudicial question to the Court of Justice of the European Union (CJEU) to assess the lawfulness of OFRPA’s decision to reject a stateless status application solely because Morocco had granted citizenship to a Sahrawi applicant.
The key question in EH’s case was whether statelessness exists when citizenship has been attributed to a person by virtue of their birth in an occupying State. EH reminded the Conseil d'Etat that the United Nations and international community do not recognize Moroccan sovereignty over Western Sahara even though the Kingdom of Morocco is occupying part of the territory. Thus, he argued that the Moroccan citizenship recorded on his birth certificate is not valid under international law.
In this regard, the advisory opinion of the International Court of Justice delivered on October 16, 1975 is highly relevant. It states: "the materials and information presented to -the Court- do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity." Furthermore, the UN Resolution of November 21, 1979 (34/37) reaffirmed the inalienable right of the Sahrawi people to self-determination and independence and deplored the "occupation" of Western Sahara by Morocco.
The word "occupation" was used here to fall within the meaning of article 42 of the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to the territory where such authority is established and in a position to assert itself." The imposition of citizenship by an occupying power must be assessed through the lens of international humanitarian law.
Article 45 of the Hague Convention forbids an occupying power to "compel the inhabitants of occupied territory to swear allegiance to the hostile Power." Furthermore, Article 51 of the Fourth Geneva Convention forbids an occupying power to compel protected persons to serve in the armed forces of the occupying power.
It is noteworthy that Morocco has a mandatory military service for their citizens (reinstated in 2019). The Office of the UN High Commissioner for Human Rights has addressed similar issues in relation to Russia’s occupation of Crimea in 2014. Their report addressed various questions, including the imposition of citizenship by an occupying power (page 11, point 57). It states as follows: "Imposing citizenship on the inhabitants of an occupied territory can be equated to compelling them to swear allegiance to a power they may consider hostile, which is forbidden under the Fourth Geneva Convention. In addition to being in violation of international humanitarian law, the automatic citizenship rule raises a number of important concerns under international human rights law."
Despite all of the above, the Conseil d'Etat found that EH was not stateless. It declined to refer the case to the CJEU, on the basis that no EU law was at issue. An incomplete understanding of Article 1 of the 1954 New York Convention lies beneath the Conseil d’Etat decision. That Convention defines a stateless person as one “who is not considered as a national by any State under the operation of its law.”
This definition establishes the State as the main actor of statelessness. If a person is not considered a national by any State under the operation of its law, then they are stateless. Under the Conseil d’Etat’s interpretation, if a State recognies someone as its national, then they are not stateless, no matter how the state came to grant citizenship. Therefore, according to the Court, as Moroccan citizenship was recorded on the applicant’s birth certificate, the applicant shall not be considered stateless.
The Conseil d’Etat argued that no international laws negate the application of the 1954 New York Convention definition of statelessness, and none of the above sources stated explicitly that an occupying state was not allowed to grant citizenship to the inhabitants of the occupied territory.
The public rapporteur - an independent member of the Conseil d’Etat who analyzes the case and provides a legal opinion to the Court which is not bound to it - states that assessing the legality of Morroco’s imposition of citizenship on people born in Western Sahara under international law would “interfere with French diplomatic relations”. In his legal opinion, Moroccan citizenship can apply to a Sahrawi from the occupied part of Western Sahara. In addition, he considered that EH had not adequately challenged the nationality recorded on his birth certificate.
The public rapporteur differentiated two situations regarding statelessness for Sahrawis: Sahrawis born in the “liberated territory” who could still apply for stateless status “in specific circumstances” and Sahrawis born in the “occupied territory” whose stateless status in France seems now closed, or at least much harder to establish.
In this regard, it seems like the Conseil d’Etat turned a blind eye to the fact that Morocco is occupying Western Sahara but is not a sovereign state in this territory. It also ignored EH’s argument that he does not fulfill the conditions to receive Moroccan citizenship based on jus sanguinis under the Moroccan Nationality Code given that his parents’ citizenship is also disputed.
Although international law recognizes that state sovereignty means that states normally have the right to decide who their nationals are, this prerogative must comply with international law and a state’s human rights obligations, as the right to a nationality is a fundamental human right. Where a state’s interpretation of its nationality law conflicts with international law (as in circumstances of occupation), that nationality should not be recognized by other states.
In other words, when the Conseil d'Etat rejected the statelessness application based on the annotation of "Moroccan citizenship" on the birth certificate of a Sahrawi applicant it indirectly validated the sovereignty of Morocco over Western Sahara. The Conseil d’Etat’s concerns about interfering with French diplomatic relations should not have swayed the Court’s decision. (France has had an ambiguous position regarding Moroccan’s occupation of Western Sahara, despite its official position in favor of negotiations towards a “mutually acceptable political solution for the region” https://press.un.org/en/2022/sc15081.doc.htm).
As for the lack of protection from the Moroccan authority and the voluntary renunciation of citizenship, based on the fear and threats the claimant had due to his political beliefs and involvements, the Conseil d’Etat states that unilateral renunciation of nationality is not considered adequate grounds to acquire stateless status in France, if the main goal of the applicant is to lose their citizenship. In the applicant’s case the Conseil d’Etat argued that, based on the CNDA’s ruling, the applicant didn’t establish the risk of persecution he would face if he was to request Moroccan citizenship.
In doing so, the Court did not assess the fear of persecution, indirectly upholding the CNDA's ruling denying the claimant's refugee status and upheld the Administrative Court rejecting the statelessness application on this ground.
This case addresses important questions of international law and imposition of nationality by an occupying power. (See Pr. Catherine Teitgen-Colly “Les personnes d'origine sahraouie qui ont la nationalité marocaine ne peuvent se voir reconnaître la qualité d'apatride” [Persons of Sahrawi origin who have Moroccan nationality cannot be recognized as stateless) February 9, 2023, Editions législatives, La Veille Permanente]). These questions have a wider context – similar issues arise, for example, in relation to Russia’s imposition of its nationality on people in occupied areas of Ukraine, and the need for European governments to recognize the statelessness of Palestinian persons from the occupied Palestinian territories.
The Conseil d'Etat’s decision in this case is based on a very restrictive interpretation of nationality and state sovereignty and gives undue weight to a birth certificate which records Moroccan citizenship for a Sahrawi person born in an occupied territory.
International law and norms were raised before the Conseil d’Etat, pointing out that Moroccan citizenship was wrongfully imposed on the applicant. Yet, the Conseil d'Etat chose to ignore these arguments, and instead validated what looks like forced naturalization of occupied Sahrawi people by Morocco.