Western Sahara refugees : When work rights don’t lead to employment
Meriem NAÏLI received her Masters from the Amsterdam School of Law in Public International Law and the Grenoble Law Faculty in International Legal Careers. Having both French and Algerian citizenships, she focused her legal studies on Human Rights and Refugees Rights and wrote a paper on the rights of asylum seekers under complementary international law when they are denied refugee status.
By Meriem NAÏLI
When the subject of “stateless refugees” arises, people often think first about Palestinian refugees. However, at least one other large group of such refugees exists: the Sahrawi refugees. The Sahrawi people originate from Western Sahara – a “non self-governing territory” controlled by Morocco, a matter of much international dispute. Sahrawi refugees fled violence over territorial control, to settle primarily in Algeria, as well as in Morocco and Mauritania.
This article will discuss access to safe, lawful employment for the Sahrawi people explaining why Sahrawi refugees remain mostly unemployed and reliant on humanitarian relief.
As of 2012, the Western Sahara population amounts to 523,000 inhabitants . Estimates of the Sahrawi refugee population outside the claimed territory range from 48,000 to 194,000 people depending on sources . Although Sahrawi refugees represent a much smaller population than Palestinian refugees – a group constituting almost 5 million total registered refugees – the Sahrawi people claim a disputed territory that is 44 times as big as the Palestinian territories.
The main issue faced by Sahrawi refugees is the absence of a legally recognized state to return to as a result of long-lasting political conflicts. The United Nations must thus facilitate a peace process while providing assistance to existing refugees. Without a permanent home state, refugees will realistically live in their countries of refuge for prolonged periods.
Human rights norms, and particularly those applying to refugees, include access to lawful employment. Algeria, Morocco and Mauritania have each ratified the 1951 UN Convention relating to the Status of Refugees. Refugees in countries who have ratified the 1951 Convention are entitled to the right to work according to its third chapter on gainful employment (articles 17, 18 and 19). As a party to the Convention and its 1967 Protocol, Algeria may not impose, for the protection of the national labor market, restrictive measures on the employment of Sahrawis who have been in Algeria for three years or more (Article 17(2)(a)).
Despite this legal framework, Sahrawi refugees are not given explicit access to employment under Algerian national law. Instead Algerian law authorises employers to refuse an alien worker if a national can be hired (Article 21 of the Algerian Labor Code). Several other explanations to the lack of employment among Sahrawis are to be put forward further in the article.
Jurisdiction over the Algerian Sahrawi population
The Tindouf Province in southwest Algeria, hosts the largest refugee camp for Sahrawi people as well as the government of the self-proclaimed “Sahrawi Arab Democratic Republic” (SADR), led by the Sahrawi national liberation movement, Polisario Front. The existence of the Polisario Front and SADR within Algerian borders creates an interesting preliminary question as to who owes the Sahrawi people human rights obligations in Algeria.
The Polisario Front was recognized as « the representative of the people of the Western Sahara » by the UN Assembly General in 1979 . In addition, the SADR has been recognized as part of the African Union, although it is not considered as a State per se. Thus, Algeria may argue that it does not owe 1951 Convention rights to the Sahrawi people .
However, the fact remains that the United Nations does not recognize the SADR as a State nor grant it an official status, therefore SADR is not entitled to become a party to international treaties . In response to this issue, in 2006 the Office of the High Commissioner for Human Rights delegation noted,
“notwithstanding Algeria’s delegation of authority to the Polisario, the Algerian government remains ultimately responsible, according to its international legal obligations, for the human rights of all persons in its territory, including in the refugee camps around Tindouf.“
For the purposes of this article, Algeria will be considered to have jurisdiction since it is a State party to relevant international treaties, although the resolution is likely a political one left best resolved by the international community.
Access to government services
Sahrawi refugees receive a great deal of humanitarian support to exist in camps, however, government services relating to labor an employment have been historically limited.
Some Sahrawi refugees receive pensions granted by Spain after being forcibly drafted as soldiers in the Tropas Nomadas (the army of what was called Spanish Sahara between 1930 and 1975). While pension payments in recognition of conscripted military service are admirable, they do not facilitate access to opportunity, and reinforce the idea that Sahrawi refugees should not rely on their skills and labor for sustenance.
The problem of not being “urban”
Sahrawi are not urban refugees and are mostly housed in camps located in remote areas with harsh desert environments. For instance, the Tindouf camp is 1,600 km southwest of Algiers, the hub of economic life in Algeria. The closest camp to the administrative center of the representation of the Western Sahara government is at 30km.
By the end of August 2011, UNHCR had registered only 140 refugees and 670 asylum-seekers living in urban areas in Algeria, that is, less than 0,01% of the whole refugees population . In the Palestinian refugee case for instance, out of nearly 5 million registered refugees, only 1.4 million are known to live in refugee camps according to UN Relief and Works Agency for Palestinian Refugees (UNRWA) .
Sahrawi refugees typically remain in refugee camps for more than 35 years, making their situation “the longest encamped refugee situation in the world” quoting the Moroccan American Center for Policy . Although Sahrawi refugees are often involved in the administrative tasks of these camps, they still heavily rely on international humanitarian relief just to get by. This long-term encampment policy inhibits the educational and economic opportunity for Sahrawi refugees.
A context with no clear legal solution
One major unanswered issue – that may explain why humanitarian agencies have been reluctant to commit any substantial long-term aid for development projects – is the issue of when and whether the Sahrawi people will be able to return “home.” In the absence of this ability, it is crucial that a first country of refuge provide access to rights and opportunities.
A viable and stable economy fueled with employment opportunities needs a viable and stable framework, constituted by strong institutions and a steady government, in a word, a viable State.
In contrast, until the early 1990s, there was no economy nor circulation of money in Sahrawi refugee camps according to a Forced Migration country guide of 2011 more particularly to section 3.1 on “Aid and development in the Sahrawi refugee camps”. Instead, an informal system of exchange characterized camp economy took place, the Polisario provided for food and housing needs, access to free education and health care. In return, refugees worked without salaries and according to their capacity in the various sectors of camp life.
With the need to prepare for independence it became important to reintroduce and develop an economic system, even a limited one. However the idea of returning to a liberated zone within Western Sahara remains problematic. First, there is a very limited infrastructure, and the logistics of providing food and water for over 129,000 — the number of refugees pre-registered for repatriation — would be a huge burden on the Polisario’s weak resources. Repatriated refugees could have similarly few rights in that context.
Furthermore, the question of landmines in the Western Sahara region remains an long-lasting obstacle to repatriation. After decades of colonial and post-colonial conflict, mines and unexploded weapons flood the territory.
Finally, the Western Sahara territory is made mostly out of deserted land and so desert harsh climate that makes repatriation, infrastructure and facilities even more difficult to consider.
Attention of the international community
Sahrawi refugees are often referred to as the “forgotten ones” as underlined by the United Nations International Children’s Emergency Fund (UNICEF) and the US Committee for Refugees and Immigrants. In 2009, Antonio Guterres became only the second UN High Commissioner for Refugees to ever travel to Tindouf and meet Sahrawi refugees. After his visit, Guterres urged the international community to pay particular attention to the desperation and needs of the entire Sahrawi people, whether identified as refugees or not.
The main solution that has been offered by the international community and the UN is the preparation of a referendum in which the people of Western Sahara would choose between independence and full integration into Morocco. The UN Mission for the Referendum in Western Sahara (MINURSO) was created in 1991 by the Security Counsel to ensure that this referendum takes place in due process. However, after more than 20 years of presence, no referendum has been organized and in 2011 it was even removed from the MINURSO missions which do not even encompass human rights observation and enforcement.
In the case of Sahrawi refugees in Algeria (as well as in Morocco and Mauritania), the right to work must particularly be addressed in order to prevent the Sahrawi people from remaining reliant on international humanitarian relief. In Tindouf, this right has to be ensured by the legal authorities to avoid making the camps a “no right zone” where being an encamped refugee has begun to be a lifetime condition.
 CIA, The World factbook « Country Profile, Western Sahara », estimation July 2012
 90000 refugees in Algeria according to UNHCR Algeria factsheets and the CIA World Factbook « Country Profile Algeria », of September 2011, 45000 on Moroccan government claim according to « Country of origin information report, Algeria » from the UK Border Agency of September 2008 and up to 165000 on Polisario claim.
 It should be underlined that UNHCR works directly with the government of Algeria as the country of asylum/host government on all matters related to the Sahrawi refugee programm.
 UN Assembly General Resolution n°34/37, 21 November 1979
 “While the refugees are present in the territory of Algeria, the authorities reiterated during meetings with the Head of the delegation that despite this presence, the responsibility for human rights and any other related matters lies with the Government of the SADR.” Unpublished report of OHCHR Mission, para. 39: http://www.arso.org/OHCHRrep2006en.pdf
 However the Polisario, which exercises de facto governmental authority within the camps, has signed several regional human rights treaties and has formally declared its adherence as a liberation front to the Geneva Conventions.
 “…The Government of Algeria is obliged to ensure that all rights stipulated in these [human rights and refugee treaties to which it is party] are upheld for all persons on Algerian territory.” Unpublished report of OHCHR Mission, paras. 39 and 40: http://www.arso.org/OHCHRrep2006en.pdf
 ICCPR Article 2. The Human Rights Committee has made clear that “States Parties are required by article 2, para.1, to respectand to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.” General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13 (2004), para. 10. http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocument
 « Palestinian refugee camps in Lebanon, migration, mobility and the urbanization process », 2012, Kamel Dorai, Researcher at the French Institute of the Near East,
 The UNHCR estimates there may be up to 10 millions landmines in Western Sahara and has clearly indicated that without proper prior mine clearance it would be impossible to run a safe repatriation operation according to a Forced migration report, August 2011 ; http://www.forcedmigration.org/research-resources/expert-guides/western-sahara/needs-and-responses