Weaponization of citizenship: two wrongs won’t make a right (or respect rights)

Bronwen Manby (European University Institute)

Neha Jain calls both for existing international law norms on nationality to be beefed up and enforced, and for nationality law to be transformed so that state discretion is further constrained. She urges that attention should be paid not only to deprivation of nationality and statelessness but also to the establishment of principles to evaluate “what types of conduct would constitute valid individual consent for the purposes of extraterritorial nationality attribution”.  The reason for this focus is especially the Russian invasion of Ukraine, and Russian ‘passportization’ of Ukrainian citizens, in which Russia has carried out a mass naturalization of those resident in the occupied territories – nominally voluntary, but in practice under forms of coercion whose details will no doubt emerge over time.

It is hard to disagree with these calls – even if, like the other contributors to this forum, we despair of the likelihood of success. But in this piece, I want to warn also about unintended consequences of non-recognition of nationality that has been imposed in violation of (even existing) international law, with particular reference to the Moroccan nationality attributed to residents of the former Spanish territory of Western Sahara, occupied by Morocco since 1975 in defiance of rulings from a range of international bodies, starting with the International Court of Justice.

Imposition of nationality in international law

In some ways, Neha Jain is returning to the origins of international norms on nationality. Before the institution of the post-war legal regime under the UN Charter, international law was more concerned about questions of wrongful attribution of nationality than it was about deprivation of nationality or statelessness. The principal concern was that a state’s imposition of nationality on individuals that it could not reasonably claim as its own would infringe on the sovereignty of other states.

This indeed was the issue considered in the 1923 Advisory Opinion requested by Britain and France from the Permanent Court of International Justice on the Nationality Decrees issued in Tunis and Morocco, which established the first limits to state discretion in nationality matters. At that time, Tunis and Morocco were French protectorates, established by treaty in 1881 and 1912 respectively. In 1921, in agreement with France, the monarchs of the two territories under French ‘protection’, adopted laws regulating questions of nationality, in which it was stated that a person born in either Tunis or Morocco of one parent also born there would acquire nationality of that protectorate automatically. This rule of ‘double ius soli’ – which would not raise an eyebrow among international lawyers today – was considered by Britain to be an infringement on the rights of the children of British subjects born in the territories, imposing on them a nationality against their will. The PCIJ opinion was the first authoritative statement that there were limits to national discretion in nationality matters. These limits related to the obligations undertaken by France towards other states in the treaties establishing the protectorates. The principle that other states would recognize nationality laws only in so far as they are “consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality” was then enshrined in Article 1 of The Hague Convention of 1930 on Certain Questions Relating to the Conflict of Nationality Laws.

The recognition of these limits did not at that time encompass any hint of concern about the rights of the individual people attributed nationality. Thus, Rudolf Graupner could write in 1946 that in nationality matters “at most the States concerned may have rights and duties against each other, the individuals merely being the objects of international law”. At the time Paul Weis was writing his foundational text on nationality and statelessness in international law – first published in 1956 and updated in 1979 – the view remained much the same.  In general, “the acquisition of a new nationality must contain an element of voluntariness on the part of the individual acquiring it, [and] must not be conferred against the will of the individual” (Weis, 1979, p.110). The remedy, however, remained only in the hands of the states concerned: if nationality was compulsorily imposed against these norms, it was the state of the person’s original nationality that would have the right to intervene on that person’s behalf.

Nationality and state succession

Aside from the attribution of nationality to children, which only the most radical authors have suggested should not be automatic in any circumstances, the most egregious non-voluntary acquisitions of citizenship occur in the context of state succession, where sovereignty over a territory is transferred by agreement or by conquest. Even in these cases, international law has historically recognized some element of voluntariness. Although the basic rule was understood to be that (subject to other agreement between the parties) nationality was acquired on the basis of habitual residence at the time of transfer of sovereignty, those former residents not physically present within the territory were generally not automatically affected.  Others who wanted to reject the new nationality were also able to do so by leaving the territory – although at the cost of statelessness if another nationality was not accessible. These were the basic principles followed in the agreements on nationality after the first and second world wars; nonetheless, the right of option was respected in some cases (Hudson, 1952).

The especially egregious manipulation of citizenship law by the Nazi regime in Germany provoked more concern. Decrees imposing German nationality on persons living in territories occupied by Germany during the Second World War were regarded as “obviously inconsistent with international law” (Hudson, 1952, p.8).  Following the war, both German and other courts also paid attention to the will of the person concerned and the avoidance of undesired outcomes (McDougal, Lasswell & Chen, 1974, p.920; Weis, 1979, p.142).

In 1999, the International Law Commission (ILC) adopted Articles on Nationality of Natural Persons in Relation to the Succession of States, which moved the needle a degree further towards a consideration of the wishes of those impacted by transfers of territory. The ILC articles endorse the starting principle of attribution after state succession based on habitual residence (rather than former nationality), but also propose the possibility of an option, and that “States concerned shall give consideration to the will of persons concerned.” The Council of Europe treaties on nationality adopted in 1997 and 2006 follow the same pattern. These instruments apply, however, only to “the effects of a succession of States occurring in conformity with international law and, in particular, with the principles of international law embodied in the Charter of the United Nations” (Article 3 of the ILC Articles). How should we consider their relevance to the imposition of nationality in Ukraine?

Although the Russian policy is to offer facilitated naturalization rather than impose its nationality unilaterally, it has been argued that “individualized naturalizations are illegal under international law if the affected persons’ consent is not free”. Others consider that, while this argument goes beyond the current state of international law, the Ukraine case raises “the possibility of non-recognition [of Russian nationality acquired in this way] based on breach of recognized international norms”, because the grant of nationality is associated with an act of aggression.

The decades-old occupation of Western Sahara by Morocco and attribution of nationality to those resident there provides a frame through which to consider the impact of these views in the longer term.

Western Sahara

The status of the former Spanish territory of Western Sahara has been disputed between the Kingdom of Morocco and the Polisario Front independence movement for almost 50 years. When Spain finally agreed to apply the principle of self-determination to the previously Spanish territory in 1975, the UN Security Council referred the situation to the International Court of Justice (ICJ), the successor to the PCIJ. In its 1975 Advisory Opinion, the court rejected the claims of both Morocco and Mauritania to the territory, meaning that an option for independence had to be put to referendum. Just days after the ICJ ruling, Moroccan armed forces crossed the border and occupied most of the northern part of the Western Sahara territory; followed by a ‘green march’ of tens of thousands of Moroccan civilians to ‘reclaim’ the region for Morocco.  Mauritania subsequently withdrew its claim, leaving the territory in the control of Morocco. Since 1991, a UN mission has had the brief to organize a referendum on the status of Western Sahara, but, despite some overtures from time to time, there is no agreement on terms – in particular on who should have the right to vote.

While this dispute has remained unresolved, with Morocco in occupation of the territory, tens of thousands of former residents of the territory and their descendants, known as Sahrawis, have lived as refugees in Algeria; while the descendants of those who remained in Western Sahara are now outnumbered four-to-one by people who have moved to the territory from within the internationally recognised borders of Morocco. Only a narrow strip in the east is under the control of the Polisario’s Sahrawi Arab Democratic Republic (SADR), which also administers perhaps 100,000 people living in camps near the southern Algerian oasis town of Tindouf. The population in the area of Western Sahara under Moroccan administration is assessed by the Moroccan authorities at around half a million people. Morocco considers the great majority of these residents (those who do not have another nationality) to be Moroccan nationals, and issues identity documents and passports accordingly. The refugees are generally not able to acquire Algerian nationality, although they may for some purposes be issued Algerian passports as travel documents, on the request of the SADR authorities. 

Neither Moroccan sovereignty nor status as ‘administering power’ of the territory under the legal framework for non-self-governing territories have been recognized by the UN or the Organisation of African Unity/African Union. In 2018, the Court of Justice of the European Union, ruling in the context of a challenge to a fisheries agreement with Morocco, affirmed that “the territory of Western Sahara is not covered by the concept of “territory of Morocco””.

In this context, what do we consider to be the nationality of the inhabitants of the territory of Western Sahara, whether originating from within the internationally recognised borders of Morocco or tracing ancestry to Western Saharan territory from before 1975? Should the attribution of Moroccan nationality be recognised? 

According to the historical assumptions on the attribution of nationality on succession of states, only those who left the territory would be regarded as having rejected Moroccan nationality. The immediate assumption from the perspective of those calling for non-recognition of citizenship granted in ‘weaponized’ contexts would seem to be that the attribution of Moroccan nationality even to those Sahrawis who remained – and potentially of all those now living in the territory – should also be unrecognised by other states. As stated by the ICJ in its 1971 advisory opinion on the South African administration of Namibia: ‘A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence’.  However, the ICJ went on to say in the same opinion that some documents should be recognised by other states as valid, even if the status of the authority issuing the document is challenged:

“In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the [League of Nations] Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”

Should this exception also be applied to the recognition of identity documents and passports? 

Avoiding unintended consequences

If the Moroccan nationality of those resident in Moroccan-administered Western Sahara and issued Morocco identity documents and passports were not recognised by other states, the consequences for those affected would be severe. Above all, their international freedom of movement would be significantly constrained; but other rights within Morocco might potentially also be affected, should Morocco choose to take punitive action against those seeking alternative travel documents. There is already fluctuating but significant harassment of those supporting independence for the territory – including confiscation of Moroccan passports to prevent international travel.

International denial of the Moroccan nationality of those resident in the territory of Western Sahara would be against their interests. Moroccan passports issued to residents of the territory are indeed recognised by other states, despite the fact that the annexation is in violation of international law. In the case of Ukraine, however, the European Council has followed the lead of the Ukrainian government itself in deciding not to recognize Russian passports issued to Ukrainian nationals.

Eleanor Knott argues that “the lens of passportization denies agency to those assumed to have been passportized”. But does non-recognition of Russian passports issued in what is arguably a violation of even the existing principles of international law not inflict further damage on those same individuals, for the purpose of making a point against Russia? Clearly it is in the interests of those affected for Ukraine to continue to consider them to be Ukrainian, disregarding the alleged acquisition of Russian nationality. But the response of other states should consider not only the violation of international law represented by occupation of the territory by Russia, but also the rights of the individuals affected, whether their acceptance of Russian nationality is voluntary or not.