Sahrawi nationality law (also romanized as Saharawi) is the law of the Sahrawi Arab Democratic Republic's (SADR) governing nationality and citizenship. The SADR is a partially recognized state which claims sovereignty over the entire territory of Western Sahara, but only administers part of it. The SADR also administers Sahrawi refugee camps.
When Spain relinquished Spanish Sahara, there was no internationally recognized succession of states agreement that defined the terms of the transfer of authority to a new nation-state. Sovereignty has been disputed for nearly fifty years by the SADR and Morocco, which were engaged in open warfare until 1991 and have engaged in a more limited war since 2020.
Despite a negotiated United Nations-administered 1991 ceasefire that included a settlement of the state succession issue via a referendum that was agreed to by the parties to the dispute, the legal status of the territory has not been resolved since the referendum has yet to be held. As such, Morocco, whose administration of Western Sahara is considered by the United Nations to be a foreign occupation, does not have the legal authority to grant nationality or citizenship to the Sahrawi people. Therefore, because the people of Western Sahara have not been able to exercise a referendum on self-determination in a manner recognized by international law, neither the nationality law of Morocco nor that of any other sovereign nation can be imposed upon them. On the other hand, the SADR has never passed an actual nationality law which governs the acquisition of nationality or citizenship for the Sahrawi people.
As a result, Sahrawis who do not live under the authority of the SADR can only gain the rights of citizenship by becoming a national of a foreign state. Under international law, other Sahrawi people are in a legal limbo of statelessness.
International law applicability
Under international law, the four elements that are involved in succession are 1) a defined territory, with 2) a permanent population, and 3) a government that is 4) capable of entering into agreements with other states. Typically, the principle of uti possidetis juris, which holds that successor states should retain the integrity of the borders preceding state, underpins the transferring policies of the United Nations and has typically been used in Africa.
Closely tied to those rights and obligations are the consent of the people involved to accept their change in jurisdiction or governance. In 1923, a precedent was established by the International Court of Justice in The Hague that a nation cannot impose its nationality upon foreign nationals without their agreement. Later, the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted on 14 December 1960, specified that persons inhabiting a colonial territory had the right to self-determination and free choice over their independence.
Nationality differs from the domestic relationship of rights and obligations between a national and the nation, known as citizenship. Nationality describes the relationship of an individual to the state under international law; citizenship is the domestic relationship of an individual within the nation. Some nations use the terms nationality and citizenship as synonyms, despite their legal distinction. Nationality is typically obtained under the principle of jus soli, i.e. birth in the territory, or jus sanguinis, i.e. descent from someone who is a national of the country. However, it also can be granted to persons with an affiliation to the country or a national, such as through marriage, or to a permanent resident who has lived in the country for a given period of time through naturalization or registration. When new states are established, typically nationality is extended to all those who were born (or descend from someone born) in the territory of the new state, those who were lawfully resident in that territory for a specified period before the establishment of the new state, or those who habitially reside there and would otherwise become stateless upon the withdrawal of nationality by the preceding state.