The Stages of the Development of Palestinian Nationality

Written by: Prof. Hanna Issa

 

What is the Nationality?

As it is known, there are several trends in the definition of nationality in comparative law, including:

“The individual’s affiliation (legally) to the people who make up the state”

“A (political) link between the individual and the state. Accordingly, the individual is considered one of the constituent elements of the state.

“A bond (law and politics) between the individual and the state”.

We note from these definitions that there is a difference in the definition of nationality. A group favored the legal relationship between the individual and the state, another group favored the political aspect, and a third group combined political and legal considerations of nationality. However, everyone considers nationality a bond of the state. Therefore, nationality is based on three essential pillars (the individual, the state, and a relationship between them), in contrast to the type of this relationship.

Perhaps the opinion that prevailed over the legal aspect is the correct one, because only the local law grants, withdraws and defines nationality preferences and its effects, while the political aspect is one of these effects. Also, an individual may be legally affiliated with the nationality of two or more states, but he cannot be politically affiliated with more than one state except within a limited scope.

Although we prefer the legal aspect, we do not see that this aspect is of a political nature. The Nationality Law is a law of a political nature, like the constitutional law.

Nationality is a human right. Every individual has the right to the nationality of a state, and no person may be arbitrarily deprived of a nationality and the right to change it.

There are several types of nationality, the most important of which are: the original nationality, which the individual obtains through the right of blood, which is the dependence of the newborn on the nationality of his parents or one of them. He may also obtain it through the right of the region, that is, by birth on the territory of the state.

The state may follow one or both of the two principles. There is also acquired citizenship. This is through naturalization, marriage, or the transfer of the territory from one sovereignty to the sovereignty of another country.

Nationality expresses the idea of the state’s sovereignty, and entitles the citizen to enjoy political rights, such as the right to vote and nominate, and the right to assume public office, and imposes some duties on it, such as the duty of military service, defense of and loyalty to his state.

An individual may be multinational if he has two or more nationalities. He may be stateless if he does not hold any nationality. Polygamy and absence may result in legal and sometimes political problems. Therefore, there have been many international agreements on polygamy and absence, but it should be emphasized that the issue of nationality in every country is an internal matter.

The difference between nationality, citizenship, domicile and residence:

Some see that there is a difference between nationality and citizenship. Nationality is the state in which an individual becomes a full home in the state and enjoys all the civil and political rights granted by the state to individuals. As for citizenship, it is lower than nationality; it is a preparatory state after which a person becomes enjoying full nationality. Citizenship under which the individual enjoys the nationality of the state, but does not enjoy all rights, such as political rights, for example.

Yet. It seems that the most correct, from my point of view, is that there is no difference between citizenship and nationality. Everyone who holds the citizenship of the state is a citizen, and every citizen holds the nationality of his state.

As for residency: a foreign person spends a period of time on the land of a country other than his own, the matter entitles him to some rights and imposes some duties on him. Residency may be permanent or temporary, and each has an impact on citizenship. Most countries allow a foreigner who resides in their territory for a certain period (such as ten years) to naturalize their nationality if they meet other conditions determined by the law of each country separately.

As for domicile, it has two main definitions:

In countries with the Latin legal system, a citizen is defined as: the place of permanent or ordinary residence of a person or the place of the center of his main business. As for countries where the common law system prevails, domicile is defined as: the country, i.e. the county or state within one country, which is considered the permanent residence. From this we note that domicile is based on the individual’s connection to the “state,” while we saw that nationality is based on the individual’s attachment to the territory of his “state.” The idea of domicile is useful in knowing the applicable law in legal issues, such as personal status.

In some countries, nationality is taken as the basis for determining the applicable law, especially in the countries of the Latin system, where the law is considered the same throughout the state, but in the countries of the Commonwealth, domicile is taken as a basis for determining the applicable law, where nationality is one, but the law differs from one province or state to another. , as is the case in the United States of America, for example.

It appears from the foregoing that citizenship and citizenship often come with the same meaning, but citizenship is only for the national person, while the domicile and residence of the citizen and the foreigner together. Also, the residence may be temporary or permanent, and as for the domicile, it constitutes a permanent residence with the intention of continuing.

Is a state required to have a nationality?

We mentioned earlier that one of the basic pillars of citizenship is the existence of a “state”. And if a thing loses one of its pillars, it is considered non-existent, or at least incomplete. The state is the one that grants citizenship, calculates it and determines most of its details.

But is it required that the state be fully sovereign in order to grant citizenship?

It is not required for the state to be fully sovereign in order to grant citizenship, as the state may be subject to the protection system, wills or mandate, yet legally regulates the citizenship of the population, and this was the case in Syria and Lebanon during the era of the French mandate and eastern Jordan during the British mandate, and Tunisia and Marrakesh under the French protection. This was because these regions had a state, and as for the regions that did not have that personality, such as colonies or regions that are annexed to another country, their members do not have an independent nationality, but rather belong to the country of which the region is considered a part, such as Algeria under the French occupation, where it was annexed to France.

However, the nationality issued by countries with lack of sovereignty remains, in our opinion, a derogated nationality, since there is no state in every sense of the word to prevent nationality. The one who issues it is the government of the dominant country, and because nationality here does not entitle all the rights conferred by full nationality in independent countries, the rights of foreigners may be residents The dominant state has more rights than indigenous peoples.

It should be noted that, in our opinion, there is no requirement for the existence of legislation regulating nationality in order for the citizens of the country to be considered as possessing its nationality. In the ancient or Middle Ages, there were often no written laws regulating nationality, yet no one denies the existence of a nationality for the citizens of that country. Likewise, the Ottoman Empire, for example, was between citizens and foreigners before the issuance of a road and it was called foreign privileges, so it is possible if there is a realistic nationality, and also legally without the existence of a nationality law.

The stages of development of Palestinian nationality:

Talking about Palestinian nationality requires talking about its origin and development. This is because its reality and what followed the political and legal developments in Palestine since its separation from the Ottoman Empire until the present time. Nationality can be acquired legally, either through parents or one of them, or through the place of birth. It can also be gained by marriage or staying in a country for a long period, or through collective naturalization, including the acquisition of Palestinians in Jordan, in addition to the laws and regulations of each country, which stipulate some conditions. Thus, the main relationship between the citizen and the state is determined by a legal relationship, despite the fact that Palestine, since 1923 AD, has been living the issue of incomplete sovereignty.

The absence of an independent national government, with the exception of the government of the whole of Palestine, but all of it did not lead to the Palestinians losing their nationality. According to international law, the state lacking sovereignty retains its own entity and ownership of its territory, just as its residents retain their own claim to this territory.

The inhabitants of Palestine lived under the Ottoman rule as citizens, and the Ottoman Nationality Law of 1869 regulated their rights and duties. Officially, during the period between 1917 / 1922, the inhabitants of Palestine remained holding Ottoman citizenship, but after Palestine seceded from the Ottoman Empire, especially after the Treaty of Lausanne, which included Special texts for the change of Palestinian nationality in 1924 AD, and all residents of Palestine acquired Palestinian nationality on the day the treaty came into force on 6/7/1924. The aforementioned law included the rules for obtaining Palestinian nationality and the duties and rights of citizens. The Palestinian population continued to enjoy Palestinian citizenship throughout the period of the British Mandate for Palestine. But after the departure of the British Mandate for Palestine and the establishment of Israel after the 1948 war, part of the Palestinians from the territory of Palestine remained under Israeli military rule as Palestinians on their land until they obtained Israeli citizenship later, which did not give them full citizenship rights until now.

Thus, this occupation affected the Palestinian nationality, whether for those who remained in their lands in 1948 or for those who were displaced from it and became refugees. These refugees have different nationalities from one country to another. For example, refugees who settled in the West Bank and Jordan have Jordanian citizenship, while in Syria, Lebanon and Iraq they hold documents Traveling to these countries and at the same time they do not hold the citizenship of these countries and are treated as foreigners. As for the Gulf states, they treat the Palestinians as foreigners and do not give them travel documents. It treats them according to the travel document of the country in which the refugees reside. The United Nations, in its Resolution 194 issued by the United Nations General Assembly in 1948, affirmed the right of return for refugees wishing to return to their homes and live in peace with their neighbours, and the obligation to pay compensation for the property of persons who do not wish to return.

The General Assembly of the United Nations confirmed once again the return and compensation of refugees on November 22, 1974 by Resolution No. 3236, which affirmed in its second article the inalienable right of the Palestinians to return to their homes and property from which they were displaced. In return, the refugees’ nationality is in international law according to conventions Relevant international organizations that these people are stateless and therefore do not enjoy the rights enjoyed by the homeland, but it should be noted that the International Organization for Human Rights considers nationality as a human right and therefore no person may be forced to give up his nationality.

As for Palestinian citizenship in the West Bank and Gaza, in the years that followed Israel’s occupation of part of the Palestinian territory, Jordanian citizenship was applied to the residents of the West Bank, and the residents of the Gaza Strip continued to enjoy Palestinian citizenship, but Israel forced the residents of the West Bank and Gaza to hold Israeli identities. As for the citizenship of the Palestinian citizen in Jerusalem, they continued to enjoy Jordanian citizenship, and Israel kept Jordanian passports in the possession of the citizens there. Despite Jerusalem’s annexation of Israel and considering it a unified capital, Israel did not grant the citizens their citizenship, but it gave them Israeli identity cards that give them the right to residency. As for the displaced and those who left their homes by an act In the 1967 war, they enjoyed Jordanian citizenship with regard to the residents of the West Bank and Palestinian citizenship with regard to the residents of Gaza, but all of them lost the right of residence in these two areas and only a small part of them returned to what is known as family unification.

As for the Palestinian citizens residing in the West Bank after the legal and administrative disengagement between the West Bank on 7/31/1988, they were considered citizens of Palestine, especially those residing before that date. Therefore, Jordan issued temporary passports for a period of two years to Palestinian citizens in the West Bank.

At the present time, especially after the establishment of the Palestinian National Authority on some parts of the West Bank and Gaza Strip, the Palestinians residing on the Palestinian territories, in addition to the cadres of the Palestine Liberation Organization, who obtained a national number that qualifies them to return to the West Bank and Gaza, were granted Palestinian passports and identities, which confirm the Palestinian nationality of the holder and Ghani About saying that the Palestinian residents of Jerusalem cannot obtain Palestinian documents, even though they participated in the recent presidential and legislative elections. We have seen that since the Treaty of Lausanne, through the separation of the territory of Palestine from the Ottoman Empire, the imposition of the Mandate on it by Britain, the occupation of some parts by Israel in 1948, Jordan’s annexation of the West Bank, Egypt’s administration of the Gaza Strip, and Israel’s occupation in 1967 of the rest of the territories, and consequently the establishment of the Palestinian National Authority on some parts From the West Bank and Gaza, all of this and that affected the Palestinian nationality due to the inheritance of an existing nationality until the establishment of an independent Palestinian state, which eventually comes to a solution that would end decades of inheritance of Palestinian nationality and a kind of stability on the level of nationality.

 

Some thorny issues regarding citizenship / Palestinians:

• The continued interference of the occupation in identities, passports and birth certificates. Withdrawal and granting of identities, closures, movement bans, closures of bridges, airports, borders, and more.
• Not granting the National Authority passports for refugees, displaced persons and residents in Arab countries or the diaspora in general. The non-return of refugees and displaced persons, and offering settlement instead of return and compensation.
• The slow transition to civilian life due to the presence of the occupation on parts of the West Bank and Gaza.
• The situation is unstable in terms of citizenship.