Birth in the Western Sahara during the colonial period and nationality issues (Judgment of the Supreme Court 207/2020, May 29. Plenary Civil Section)

Abstract

Being born in Spain or being born in the Spanish territory for the purposes of the appli-cation of article 17.1 c) of the Civil Code has legal significance if the person concerned was born in the former colony of the Sahara before February 26, 1976, the date on which Spain left that territory. The Judgment 207/2020 of 29 May of the Plenary of the Civil Chamber of the Supreme Court addresses, not without certain doubts and with an individual vote, the question of what nationality the natives of the Sa-hara had before and after Law 40/1975. Taking the doctrine of the 3rd SC in relation to the consideration of statelessness of some Saharans and confirming the position of the DGRN on the consequences of not exercising the right of option under RD 2258/76, the Plenary of the Civil Chamber has lost an excellent opportunity to declare the unconstitutionality of that RD of 1976. What reasons justify the ruling? What other arguments could have been used? This approach addresses our commentary.