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Palestinian Nationality and Citizenship Current Challenges and Future Perspectives

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Palestinian Nationality and Citizenship Current Challenges and Future Perspectives PALESTINIAN NATIONALITY AND CITIZENSHIP CURRENT CHALLENGES AND FUTURE PERSPECTIVES ASEM KHALIL CARIM Research Reports 2007/07 Cooperation project on the social integration of immigrants, migration, and the movement of persons Co-fi nanced by the European University Institute and the European Union (AENEAS Programme) EUROPEAN UNIVERSITY INSTITUTE, FLORENCE ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Palestinian Nationality and Citizenship Current Challenges and Future Perspectives ASEM KHALIL CARIM EURO-MEDITERRANEAN CONSORTIUM FOR APPLIED RESEARCH ON INTERNATIONAL MIGRATION RESEARCH REPORT, CARIM-RR 2007/07 BADIA FIESOLANA, SAN DOMENICO DI FIESOLE (FI) © 2007, European University Institute Robert Schuman Centre for Advanced Studies This text may be downloaded only for personal research purposes. Any additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the Robert Schuman Centre for Advanced Studies. Requests should be addressed to [email protected] The European Commission supports the EUI through the European Union budget. This publication reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.carim.org/Publications/ www.cadmus.eui.eu CARIM The Euro-Mediterranean Consortium for Applied Research on International Migration (CARIM) was created in February 2004 and has been financed by the European Commission. Until January 2007, it referred to part C - ‘cooperation related to the social integration of immigrants issue, migration and free circulation of persons’of the MEDA programme, i.e. the main financial instrument of the European Union to establish the Euro- Mediterranean Partnership. Since February 2007, CARIM has been funded as part of the AENEAS programme for technical and financial assistance to third countries in the areas of migration and asylum. The latter programme establishes a link between the external objectives of the European Union’s migration policy and its development policy. AENEAS aims at providing third countries with the assistance necessary to achieve, at different levels, a better management of migrant flows. Within this framework, CARIM aims, in an academic perspective, to observe, analyse, and predict migration in the North African and the Eastern Mediterranean Region (hereafter Region). CARIM is composed of a coordinating unit established at the Robert Schuman Centre for Advanced Studies (RSCAS) of the European University Institute (EUI, Florence), and a network of scientific correspondents based in the 12 countries observed by CARIM: Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Palestine, Syria, Tunisia, Turkey and, since February 2007, also Libya and Mauritania. All are studied as origin, transit and immigration countries. External experts from the European Union and countries of the Region also contribute to CARIM activities. The CARIM carries out the following activities: - Mediterranean migration database; - Research and publications; - Meetings of academics; - Meetings between experts and policy makers; - Early warning system. The activities of CARIM cover three aspects of international migration in the Region: economic and demographic, legal, and socio-political. Results of the above activities are made available for public consultation through the website of the project: www.carim.org For more information: Euro-Mediterranean Consortium for Applied Research on International Migration Robert Schuman Centre for Advanced Studies-EUI Villa Malafrasca Via Boccaccio, 151 50133 Firenze (FI) Italy Tel: +39 055 46 85 878 Fax: + 39 055 46 85 755 Email: [email protected] Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies (RSCAS) was founded at the European University Institute to develop inter-disciplinary and comparative research and to promote work on the major issues facing the process of integration and European society. Research at the Centre is organised around a set of core themes, each of which is home to a number of research programmes and projects. The results of the Centre's research are disseminated in the form of academic publications, working and policy papers, and research reports. Details of this and other research can be found at: www.eui.eu/RSCAS/Research/ The EUI and the RSCAS are not responsible for the opinion expressed by the author(s). I Presenting the problem A nation is constituted by the belief of belonging together, accompanied by a strong solidarity among its members. Nations, where they exist, are the product of a nation-building process. The concept of nation-building presupposes two elements: a common identity and concerted political action. Belonging to a particular nation is also related to a pre-existent common identity based on objective criteria. In the case of statehood, it is the people forming the whole citizenry who define ‘national belonging’. In other words, the state is the outcome of the political action of a nation, but it is also be a creator of a new nation. Nations are composed of human beings with their own history, language and culture. The legitimacy of the state depends on its respect of the nation’s historical and human dimension and the degree to which its structure and institutions reflect the will of its constituencies. Once a state exists, it should not use these elements to discriminate against citizens who are not part of its cultural heritage. The challenge for contemporary states is their being multi in terms of the nations, cultures, languages and ethnicities within their borders. All constituent groups and individuals should be able to consider the state as their own, and should be able to identify with its constitution in order to preserve the unity of the state. Those who belong to a particular nation (being French, German, Hungarian, Egyptian, Jordanian nationals etc.) may coincide with parts of the citizenry of a particular state (France, Germany, Hungary, Egypt, Jordan etc.), but they do not necessarily coincide with the totality of the citizens of that state, nor are they limited to its borders. Thus, one still talks of ‘Algerians’ living in France, although they have been French citizens for at least two generations. For the same reason, Germany facilitates citizenship for German nationals living abroad who apply for citizenship. In other words, since we no longer live in the era of nation-states, being French, German, Jordanian or Egyptian nationals does not mean necessarily being French, German, Jordanian, or Egyptian citizens, and vice versa. This distinction applies in particular way to Palestinians. Self-determination can be expressed in statehood, and a Palestinian state may exist when the organs that represent the (indigenous or ‘artificial’) people exercise sovereign powers over a territory. Once the state exists, the constituent power is enacted.1 The constituent power is related to popular sovereignty. As such, it cannot be enacted outside the state, since it is the expression and reflection of popular sovereignty. When a state exists, popular sovereignty refers to the people who, as demos, hold the political rights, and exercise them through the state’s institutions. In the words of Lerner (2004: 12–13) In the context of the legitimacy issue, a paradox of constituent power is evident: constitutions on the one hand draw their legitimacy from the sovereign power of the people, yet on the other hand define who ‘the people’ is and how its will is to be expressed. If constitutional legitimacy stems from the principle of popular sovereignty, then the source of political legitimacy of a democratic constitution is not clear: Is it prior to the constitution, resting on the factual will of a presumably homogenous political entity which has the capacity to act as a collectivity; or does constitutional 1 Constituent Power is the power to frame a constitution (original Constituent Power), or to amend an existing one (derived constituent Power). Original constituent power can be enacted in a legal void that existed or is created. Derived constituent power is exercised within the limits provided by the constitution itself. Palestine cannot be classified using either definition and proves that classical theory of constituent power no longer fits the realities of states in the twenty- first century. In the Palestinian case constitution-making is conceived as a step towards statehood, not a consequence of it. Statehood is not now the outcome of a factual reality but is the summation of a negotiated solution of a conflict between Israel and the Palestinians. Moreover, regime change may cause a legal vacuum. In the Palestinian case, there is no new regime, but there would be a new state for a pre-existing people that had been subject to occupation. On the other hand, it is not a derived constituent power, since there is no precedent constitution in force. The draft constitution is an original one for a new state with no prior existence. CARIM-RR No. 2007/07 © 2007 EUI-RSCAS Asem Khalil legitimacy derive from the constitution itself, i.e. from the legal order which itself serves as the source of the shared identity, so that ‘the people’ are in effect formed through the making of the constitution? A ‘people’ (as ethnos) has the right to self-determination; the right to self-determination may lead to sovereignty; sovereignty is the prerogative of the ‘people’ (as demos); the latter is entitled to ‘constituent power’; and constituent power decides who constitutes the ‘people’ (as demos and as ethnos). The problem then is to understand the kind of relationship that exists between the people as demos and the people as ethnos. Once the Palestinian state is created, the relationship between Palestinian nationals and Palestinian citizens will need to be defined. Those entitled to constituent power are those who reflect the totality of Palestinian nationals, but they are not necessarily the same as those who effectively exercise constituent power, that is, the Palestinian citizens and the institutions that represent them.
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