When History becomes Law: nationality, Latin America and Western Sahara

Spanish nationality law incorporates certain historical, cultural and political ties as criteria for differentiating between foreign nationals, establishing a more favourable regime for access to nationality for people of certain origins. This differentiation does not respond solely to contemporary migration considerations, but is linked to historical processes and to the construction of particular relationships between Spain and other peoples, especially those connected with its colonial past.

Article 22 of the Spanish Civil Code establishes, as a general rule, a ten-year period of residence for acquiring Spanish nationality, five years for those who have obtained refugee status, and two years for nationals of Ibero-American countries, Andorra, the Philippines, Equatorial Guinea or Portugal, as well as for Sephardic Jews. The reduced two-year period was introduced by the Law of 15 July 1954, during the Franco regime, in a context in which Spain sought to construct a particular political conception of Hispanidad and of the Ibero-American community.

This construction was also underpinned by a transatlantic reality consolidated through centuries of colonial relations, Spanish emigration to Latin America and, subsequently, Republican exile. That experience left enduring linguistic, cultural, religious and institutional ties, although they arose from a profoundly asymmetrical relationship.

Following the independence of the American territories in the nineteenth century, this cultural community was progressively reconstructed and gained particular significance after the crisis of 1898. In that context, Hispano-Americanism and, subsequently, the concept of Hispanidad developed in what has been described as a "post-imperial reconversion" (Marcilhacy, 2016).

Nationality as a geopolitical bond

The differentiated treatment of nationals of Ibero-American countries cannot be analysed solely as a contemporary migration policy, but must also be understood in relation to this historical construction. The 1954 reform of the Civil Code transformed that conception into a legal category with concrete effects.

The conclusion of dual nationality agreements with numerous Ibero-American States further reinforced this connection. Subsequently, Article 11.3 of the Spanish Constitution provided that the State may conclude dual nationality treaties with Ibero-American countries and with those that have had or have a "special relationship" with Spain.

The regime was also extended to other countries and groups with specific historical ties. Alongside Ibero-American countries, the Civil Code includes Portugal, Andorra, the Philippines and Equatorial Guinea, and also provides specific treatment for persons of Sephardic origin. The result is a heterogeneous set of historical links producing differentiated effects on access to nationality.

Recognition of democratic memory

Another example is Law 20/2022 on Democratic Memory, which, between October 2022 and October 2025, opened an extraordinary route to acquire Spanish nationality of origin by option for certain descendants of Spaniards affected by exile, for sons and daughters of Spanish women who lost their nationality through marriage before the 1978 Constitution, and for adult sons and daughters of those who had acquired Spanish nationality of origin under historical or democratic memory legislation.

This regime made it possible to apply for nationality from the country of residence, without any prior requirement to reside in Spain, recognising a relationship of belonging based on descent and democratic reparation.

And what about Western Sahara?

The case of Western Sahara provides a particularly significant contrast with the treatment afforded to nationals of Ibero-American countries. Spain exercised colonial rule over the territory until 1975. Celia Martínez Escribano distinguishes three periods: an initial stage of clear colonial differentiation until 1956; a second stage, from 1956 to 1975, characterised by an attempt to assimilate Western Sahara legally to metropolitan territory, particularly after it was regarded as a Spanish province in 1961; and a third stage beginning with Spain's withdrawal and decolonisation.

The designation of Western Sahara as a Spanish province created a particularly complex legal situation, but that administrative assimilation did not subsequently translate into equivalent recognition of Spanish nationality for the Sahrawi population.

Law 40/1975 of 19 November on the decolonisation of Western Sahara formally brought Spain's presence in the territory to an end. Its preamble stated that Western Sahara had "never formed part of the national territory", an assertion that later became relevant in certain judicial decisions and has been questioned in legal scholarship, among other reasons because of the limited legal effect of preambles.

Spain's withdrawal also took place in an international context in which the status of the territory had been considered by the International Court of Justice. In its Advisory Opinion of 16 October 1975, requested by the United Nations General Assembly, the Court concluded that Western Sahara was not terra nullius at the time of its colonisation by Spain. Although it recognised certain legal ties between some tribes in the territory and the Sultan of Morocco, as well as certain links with what it termed the Mauritanian entity, it found that those elements did not establish ties of territorial sovereignty capable of affecting the application of the principle of self-determination.

Subsequently, Royal Decree 2258/1976 recognised the right of certain natives of Western Sahara to opt for Spanish nationality within a period of one year, subject to certain documentary requirements. The circumstances surrounding the withdrawal - war, flight to the Tindouf camps and the loss of documentation - nevertheless made this route difficult to access for a significant part of the Sahrawi population.

A complex body of case law on nationality and statelessness subsequently developed. Supreme Court Judgment 207/2020 of 29 May held that persons born in the former Spanish Sahara could not be regarded as Spanish nationals by origin merely by virtue of having been born there, because the territory was not considered Spanish territory for these purposes. The judgment has been the subject of substantial academic debate.

Spain's withdrawal left a large part of the population of the former Spanish Sahara in a particularly complex legal situation. Displacement to the Tindouf camps contributed to a situation of legal vulnerability which, in certain cases, has led Spanish courts to recognise stateless status. The case law has also recognised that Algerian passports issued to Sahrawi refugees in Algeria essentially constitute travel documents and do not, in themselves, establish Algerian nationality.

The contrast with Latin America is particularly significant. While Spanish legislation has transformed historical ties with Ibero-American countries into a criterion of legal proximity, reflected in reduced residence periods, dual nationality arrangements and even routes to Spanish nationality from outside Spanish territory, the colonial relationship with Western Sahara has not produced an equivalent regime. Decolonisation instead resulted in a legal rupture that left part of the Sahrawi population in a position of particular vulnerability with regard to nationality.

The singularity of the Sahrawi case also lies in the fact that this debate about the historical relationship with Spain concerns a territory whose decolonisation process remains legally unresolved and whose people continue to be recognised under international law as holders of the right to self-determination.

The contrast with the legal treatment afforded to Spain's other historical ties raises a central question: not all links deriving from Spain's colonial past have been incorporated into the legal order in the same way. Some have been transformed into privileged bonds of belonging and proximity, while others have remained associated with a legal and political rupture.

The continuing unresolved nature of the decolonisation process has also been reiterated in recent European case law. In its judgments of 4 October 2024 concerning the fisheries and agricultural agreements between the European Union and Morocco, the Court of Justice of the European Union confirmed that Western Sahara has a separate and distinct status from Morocco and that the Sahrawi people, as the holder of the right to self-determination, must be regarded as a third party in relation to agreements concluded between the European Union and Morocco where those agreements are intended to apply to the territory. The Court found that the agreements at issue had been concluded without validly obtaining the consent of the people of Western Sahara, in breach of the principles of self-determination and the relative effect of treaties.

Although these judgments do not address the nationality of the Sahrawi population or the obligations that may arise for Spain from its former status as administering Power, they do demonstrate that, half a century after Spain's withdrawal, the international legal status of the territory and the exercise of the right to self-determination remain unresolved.

This historical conflict may now be approaching a turning point. The Spanish Parliament is considering a legislative initiative intended to establish specific nationality rights for Sahrawis and their descendants. At the time of writing, the initiative has not completed the parliamentary process, and its final outcome therefore cannot be anticipated.

Irrespective of the outcome of this process, a fundamental question remains: if the Spanish legal order has recognised certain historical ties and relationships of belonging in order to establish privileged routes to nationality - as it has for nationals of Ibero-American countries and for certain descendants of Spaniards affected by exile and the Franco dictatorship - should the ties arising from the historical relationship between Spain and Western Sahara not be given particular consideration?

The issue takes on particular significance given that Western Sahara was Spain's last colony in Africa and that part of its population was subject to Spanish administration for nine decades. The debate over Sahrawi nationality therefore raises not only a legal question, but also one of historical coherence: which ties from the past the Spanish State recognises as a basis for belonging, which it transforms into rights, and which it leaves outside that framework. The specific way in which the legislature chooses to translate that historical relationship into routes to nationality is, therefore, a separate question that merits specific analysis.

About the author

Viviana Echeverría Pascual. Chief Executive Officer at Echeverría Abogados / Lawyer. Specializing in immigration law and international mobility, she advises highly qualified professionals, executives, investors, and entrepreneurs on tailored immigration strategies to relocate to Spain. Her practice encompasses end-to-end residence permit management, family residence planning, and Spanish citizenship applications.