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The International Law Foundations of Palestinian Nationality

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The International Law Foundations of Palestinian Nationality UNIVERSITÉ DE GENÈVE INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES THE INTERNATIONAL LAW FOUNDATIONS OF PALESTINIAN NATIONALITY A Legal Examination of Palestinian Nationality under the British Rule THÈSE présentée à l'Université de Genève pour l'obtention du grade de Docteur en relations internationales (droit international) par Mutaz QAFISHEH (Palestine – France) Thèse N° 745 Genève 2007 THE INTERNATIONAL LAW FOUNDATIONS OF PALESTINIAN NATIONALITY A Legal Examination of Palestinian Nationality under the British Rule © Copyright 2007 by Mutaz Qafisheh UNIVERSITÉ DE GENÈVE INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES THE INTERNATIONAL LAW FOUNDATIONS OF PALESTINIAN NATIONALITY A Legal Examination of Palestinian Nationality under the British Rule THÈSE présentée à l'Université de Genève pour l'obtention du grade de Docteur en relations internationales (droit international) par Mutaz QAFISHEH (Palestine - France) Thèse N° 745 Genève 2007 Mutaz QAFISHEH Sur le préavis de MME Vera GOWLLAND et de M. Andrea BIANCHI, Professeurs à l’Institut et, de Mr. Guy S. GOODWIN-GILL, Professor, Senior Research Fellow, All Souls College, Oxford (UK) le Directeur de l'Institut universitaire de hautes études internationales, agissant au nom de la Commission mixte de l'Université et de l'Institut, composée des Doyens des Facultés de droit, des lettres, et des sciences économiques et sociales, autorise l'impression de la présente thèse sans entendre par là exprimer d'opinion sur les propositions qui y sont énoncées. Genève, le 29 juillet 2007 pour la Commission mixte: Professeur Philippe Burrin Directeur Thèse N° 745 Contents I. Introduction 1 1. Nationality: a definition 2 2. Basic assumption 4 3. Objectives 5 4. Scope 7 5. Gap in existing scholarship 12 A. Early studies 12 B. Recent studies 15 6. Sources 24 7. Division 25 II. Nationality in Palestine under the Ottoman Empire 29 1. A short history 30 2. Ottoman Nationality Law, 1869 31 A. General 31 B. Substance 35 3. Ottoman passports 47 4. Influence of Ottoman nationality in Palestine 50 5. Concluding remarks 55 III. Palestinian nationality in transition, 1917-1925 56 1. Regional context 57 2. Nationality in Palestine under the British occupation, 1917-1922 64 i A. The occupation 64 B. De facto Palestinian nationality 68 3. Nationality after the Palestine Mandate, 1922-1924 74 A. Framework 74 B. Domestic application 80 4. Palestinian nationality after the Treaty of Lausanne, 1924-1925 87 IV. Palestinian Citizenship Order 1925 96 1. Background 97 2. Legal value 102 3. Motives 106 V. Natural Palestinian citizens 110 1. From Ottoman subjects into Palestinian citizens 111 2. Original inhabitants of Palestine residing abroad 122 A. The law 122 B. The practice 134 3. Natural-born Palestinians 141 VI. Naturalization 146 1. Technical aspects 147 2. Practical effects 160 VII. Expatriation: the loss of nationality 169 1. Overview 170 ii 2. By any Palestinian: naturalization abroad 170 3. By naturalized citizens: revocation as punishment 174 4. By marriage 177 5. The declaration of alienage by minors 179 VIII. External aspects of Palestinian nationality 182 1. Recognition of Palestinian nationality by states 183 2. Palestinian passports 191 3. Protection of Palestinian citizens abroad 200 IX. Admission of foreigners into Palestine 205 1. General 206 2. Travellers 208 3. Immigrants 215 4. Note on the admission of Palestinian citizens 224 X. Applicability of international nationality instruments to Palestine 229 1. The Hague Conference 230 2. Procedure 232 3. Substance 239 4. On-going validity? 250 XI. Palestinian nationality in the Partition Plan 252 1. Law versus reality 253 2. Nationality in the post-mandated Palestine: the principle 257 iii 3. Special provisions 260 A. Inhabitants of the Arab and Jewish states 260 B. Inhabitants of Jerusalem 264 4. Evaluation 266 XII. Conclusion 269 Bibliography 281 1. References cited by title 282 2. Treaties 284 3. Legislation 286 A. Palestine 286 B. Nationality legislation of various countries 292 C. Other 294 4. Cases 294 5. Official documents 300 A. League of Nations 300 B. Britain 304 C. British-run Government of Palestine 306 D. United Nations 307 E. Other 308 6. Books 310 7. Articles 322 iv I Introduction 1 1. Nationality: a definition The definition of the concept of ‘nationality’ has been subject to numerous studies. Thus, it is of little benefit to replicate all such scholarship here. For the purpose of this study, however, it is merely sufficient to define and understand the term ‘nationality’ as the legal link between an individual and a sovereign, which has an international legal personality and is normally (but not exclusively1) an independent state. This link makes an individual citizen of that sovereign; any person who does not possess that sovereign’s nationality is a foreigner.2 Throughout this study, ‘nationality’ and ‘citizenship’ are treated as being synonymous.3 Hence, the following terms will be used as synonyms: ‘citizen’, ‘national’ and ‘subject’, unless otherwise indicated. Although certain states distinguish between various classes of citizens based mainly on the individual’s 1 On a recent survey regarding the nationality of various political entities, especially non- independent states, see Andrew Grossman, “Nationality and the Unrecognized State”, The International and Comparative Law Quarterly, Vol. 50, 2001, pp. 849-867. 2 This statement stems, to a large extent, from the definition of nationality by the International Court of Justice (ICJ) in the Nottebohm case: “[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties” (Liechtenstein v. Guatemala, Judgment, Second Phase, 6 April 1955—ICJ Reports, 1955, p. 23). On the concept of ‘nationality’, in its legal sense, see, inter alia, W.W. Willoughby, “Citizenship and Allegiance in Constitutional and International Law”, The American Journal of International Law, Vol. 1, 1907, pp. 914-929; Robert Redslob, “Le principe des nationalités”, in Recueil des cours, Académie de droit international (The Hague), 1931-III, Librairie du Recueil Sirey, Paris, Vol. 37, 1932, Vol. 37, pp. 1-82; L. Oppenheim, International Law, Longmans, London/New York/Toronto, 5th ed. (by H. Lauterpacht), 1937, Vol. I, pp. 511- 513; J. Mervyn Jones, British Nationality Law and Practice, Oxford University Press, Oxford, 1947, pp. 1-26; P. Weis, Nationality and Statelessness in International Law, Stevens & Sons Limited, London, 1956, pp. 1-13, 31-35; Ian Brownlie, “The Relations of Nationality in Public International Law”, The British Year Book of International Law, 1963, pp. 284-289; Majid Alhalawani, Private International Law, Literature and Science Press, Damascus, 1965 (Arabic), Vol. I, pp. 84-110; Jose Francisco Rezek, “Le Droit international de nationalité”, in Recueil des cours: Collected Courses of the Hague Academy of International Law, Marrtinus Nijhoff, Dordrecht/Boston/London, Vol. 203, 1987-III, , pp. 344-345; Ruth Donner, The Regulation of Nationality in International Law, Transnational Publishers, New York, 1994, pp. 1-120; Yaffa Zilbershats, “Reconsidering the Concept of Citizenship”, Texas International Law Journal, Vol. 36, 2001, pp. 689-734. 3 On discussion relating to the definition of nationality in Palestine under the British rule, see below text accompanying notes 325-329, 439-442. 2 capacity to enjoy civil and political rights, such a distinction is irrelevant from the viewpoint of international law.4 The link of ‘nationality’, in its legal sense, aims to establish rights and duties between an individual and a state. The law recognizes this link and places it over other considerations such as race, common origin, language or religion. Such considerations, either separately or jointly, might constitute ‘race’, ‘identity’ or the ‘political’ relationship between a ‘person’ (albeit not necessarily a ‘citizen’) and a ‘nation’ (albeit not necessarily a ‘state’).5 While these considerations are often 4 See Weis, op. cit., pp. 6-7. 5 See in this respect, among others, René Johannet, Le principe des nationalités, Nouvelle librairie nationale, Paris, 1918; W.B. Pillsbury, The Psychology of Nationality and Internationalism, D. Appleton and Company, New York/London, 1919; John Oakesmith, Race and Nationality: An Inquiry into the Origin and Growth of Patriotism, Frederick A. Stokes Company, New York, 1919; Sydney Herbert, Nationality and its Problems, Methuen & Co., London, 1920; Bernard Joseph, Nationality: Its Nature and Problems, George Allen & Unwin Ltd., London, 1929; Robert Redslob, “The Problem of Nationalities”, Problems of Peace and War, Vol. 17, 1932, pp. 21-34; Frederick Hertz, Nationality in History and Politics: A Psychology and Sociology of National Sentiment and Nationalism, Routledge & Kegan Paul Ltd., London, 1951; Boyd C. Shafer, Le Nationalisme: Mythe et Réalité, Payot, Paris, 1964; S. James Anaya, “The Capacity of International Law to Advance Ethnic or Nationality Rights Claims”, Human Rights Quarterly, Vol. 13, 1991, pp. 403- 411; Gidon Gottlieb, “Nations without States”, Foreign Affairs, Vol. 73, 1994, pp. 100-112; André Liebich, ed., Citizenship East and West, K. Paul International, London/New York, 1995; Rodney Bruce Hall, National Collective Identity: Social Constructs and International Systems, Columbia University Press, New York, 1999; Hegen Schulze, States, Nations and Nationalism from the Middle Ages to the Present, Blackwell
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