History of Palestinian nationality

Since the Middle Ages, the Palestinian people have seen their history and heritage as forming part of the collective history of the Arab Nation, a history which is in turn, inextricably linked to the rise of Islam. [Tessler, p. 62.] When Islam was received by the prophet Muhammad in Mecca in 610 CE, Christianity was the major religion of Palestine Fact|date=April 2008, home to many historically attested Arab Christian communities Fact|date=April 2008, such as that of the Ghassanids. Soon after the rise of Islam, Palestine was conquered and brought into the rapidly expanding Islamic empire. The Umayyad empire was the first of three successive dynasties to dominate the Arab-Islamic world and rule Palestine, followed by the Abbasids and the Fatimids. Muslim rule was briefly challenged and interrupted in parts of Palestine during the Crusades, but was restored under the Mamluks.

After toppling the Mamluk state in 1517, the Ottoman Turks took control of most of the Arab world. Palestine existed within the Ottoman Empire as two districts, also referred to as Sanjaks. The legal origin of citizenship in the Middle East was born of the Ottoman Citizenship Law of 19 January 1869 and the Treaty of Lausanne.

Origins of Palestinian nationality

Formal Palestinian citizenship has developed historically through three major stages: the British Mandate era, the Israeli period, and the time following the Oslo Peace process. There has never been a sovereign Palestinian authority to explicitly define who a Palestinian is, this action has been done by foreign actors in the past.

The British Mandate Period

The Treaty of Lausanne came into force on August 6 1924. It stated that the Ottoman nationals who were "habitually residents" of Palestine "will become ipso facto" nationals of that state. [Hurewitz 1956, p. 119] Article 7 of the Mandate for Palestine stipulated that the British mandatory power "shall be responsible for enacting a nationality law". The British authority via the structure of the British Mandate of Palestine was directed to "facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine." Yet Article 15 stated that "No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language. No person shall be excluded from Palestine on the sole ground of his religious belief." [Hurewitz 1956, p. 120]

The first Palestine Citizenship Order was enacted by Britain on 24 July 1925; it was the first official enactment that outlined the legal definition of a Palestinian. Its first article defined a Palestinian as a "Turkish subject habitually resident in the territory of Palestine." It defined the territorial criteria for citizenship, and appeared to be nondiscriminatory legislation, which provided granting of citizenship to an applicant, irrespective of their race, religion or language. This order held until 14 May 1948, when the People's Council, representative of the Yishuv or Jewish Community of Palestine, unilaterally declared the creation of the "Jewish State" of Israel. [Citizenship and the State in the Middle East, p. 203.]

Palestinian Nationality after the creation of Israel

The creation of the State of Israel coincided with the disintegration of the pre-existing non-Jewish polity. This meant that Palestinians had no citizenship, but could be categorized in 4 ways: 1. Palestinians who remained in Israel; 2. Those who became refugees; 3. Palestinians who became citizens of Jordan; and 4. Palestinians who remained in or relocated in the Gaza Strip.Palestinians then ceased to be only Palestinian, but were either Israeli-Palestinians; Jordanian Palestinians, United Nations Relief and Works Agency-Palestinians, and Gaza-Palestinians. [Citizenship and the State in the Middle East, p. 204.]

The first Israeli Nationality Law was passed on the 14 July 1952. From the time that Israel was created to July 1952, Palestinians were "stateless." Israeli courts rendered the former Palestinian citizenship "devoid of substance," "not satisfactory and is inappropriate to the situation following the establishment of Israel" [International Law Report, 1950, 111] . The Israeli Nationality Law effectively denationalized Palestinians. It granted every "Jew" who immigrated to Israel, or, following the 1971 amendment, even expressed the desire to immigrate to Israel, "immediate" Israeli citizenship without taking any formal steps. It retroactively altered the Palestinian Citizenship Orders, stating that they had to be "repealed with effect from the day of the establishment of the State". [Article 18 of Laws of the State of Israel]

In order to obtain Israeli citizenship, Palestinians had to prove that they had a) been registered in the Inhabitants Registration in 1949; had been an inhabitant of Israel on 14 July 1952; had been in Israel or in an area that later came into Israel between the establishment of Israel and July 14, 1952; or had entered legally during that period. These proved difficult for many Palestinians to fulfil because many at the time had no proof of Palestinian citizenship, and those who had identity cards were forced to surrender them to the Israeli army during or soon after the war. [Citizenship and the State in the Middle East, p. 205. ] Attaining status as a Registered Inhabitant was also difficult because there was a "deliberate attempt [by Israeli Forces] to not register many [Palestinian] villages [Citizenship and the State in the Middle East, p. 205.] Those who failed to attain legal status remained in Israel as stateless persons.

An amendment to the Israeli Nationality Law was passed in 1968 [22 Laws of the State of Israel 1968] This amendment stipulated that a Palestinian must apply within 3 years of turning 18 years of age, and had to prove that they had been a resident of Israel for five consecutive years prior to their application. A further amendment was passed in 1980 [34 Laws of the State of Israel] which alleviated the article that has previously required the applicant to have been in Israel between May 1948 and July 1952.

Following the 1980 amendment to Israel's Nationality Law, Palestinians were strictly legal citizens of the State of Israel. They have "passport citizenship" rights, but are excluded from several aspects of the Jewish welfare state, and are therefore denied equal "democratic citizenship". While enjoying the fruits of Jewish civil rights, such as access to courts of law and private property; and political rights, access to the ballot and to government; they are denied social rights and economic rights in the form of social security, education and welfare, or access to land and water resources of the State. [Davis 1995, 28]

Palestinians living in the West Bank

The citizenship of Palestinians living on the West Bank, within the Hashemite Kingdom of Jordan, also went through three stages. After the creation of the state of Israel and before the passing of a new Jordanian Citizenship Law in 1954, Palestinians were incorporated into the Kingdom of Jordan. In 1949, the Jordanian Council of Ministers added an article to their Citizenship Law of 1928 that read

"All those who at the time when this Law goes into effect habitually reside in Transjordan or in theWestern part [of the Jordan] which is being administered by [the Kingdom] , and who were holders of Palestinian citizenship, shall bedeemed as Jordanians enjoying all rights of Jordanians and bearing all the attendant obligations."

[Citizenship and the State in the Middle East, p. 210.]

A new Citizenship Law was passed in 1954. It granted Jordanian citizenship to the Palestinians living in the West Bank and refugees that had fled during the war. The third stage of citizenship for Jordanian-Palestinians began on the 31 of July 1988 when Jordan severed its relationship with the West Bank, they now decreed all those residing in the West Bank as "Palestinians".

UNRWA Palestinians

Following the war of 1948, the General Assembly of the United Nations established the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA). It was created to give direct aid to the Palestinians that had fled from the war. These refugees were placed in 5 neighbouring Arab states, and these countries granted Palestinians traveling documents, which granted them few rights. The Casablanca Resolution of 1965, which was passed by the League of Arab States, resolved to grant the Palestinians living in the host countries the right to work in, travel from and return to the country of their residence, obtain traveling documents and receive entry visas to the Arab countries as any other national. [Citizenship and the State in the Middle East, p. 215.]

Palestinians in Lebanon

When Palestinians first arrived in Lebanon in 1948 they were warmly received. In 1959 the Palestinian Refugees Department was created. This body was charged with dealing with refugee affairs, namely issuing travel documents, regulating personal status affairs such as birth and death certificates, locating sites for refugee camps, and so on. Palestinian refugees were issued travel documents that allowed them to travel abroad and to return to Lebanon. Refugees were also allowed, like Lebanese citizens, to travel between Syria and Lebanon without having their travel document.

In 1995, the minister of interior issued Decree No. 478 which provided that Palestinians who have been refugees in Lebanon since 1948 have to apply for an exist visa from Lebanon and an entry visa in order to return to Lebanon.

The right to work in Lebanon was also granted to Palestinians, as outlined in the Labour Law of 1962. This decreed that a foreigner is allowed to work in Lebanon provided that his country allows Lebanese to work in that country, and that he obtains in advance a work permit. The first half of that regulation proved problematic for Palestinians due to the lack of th principle of reciprocity, no state of Palestine existed to enact a reciprocity rule. As for the second half of the rule, the Lebanese authorities issued a list of 60 activities that excluded workers with permits, this list excluded almost all menial jobs. The result of this law has been that more than one-half of the Palestinian refugees currently live below the poverty line. [Citizenship and the State in the Middle East, p. 216.]

Palestinians in Egypt

Palestinians who lived in the Gaza Strip when Israel came into being were issued with Egyptian travel documents which allowed them to move outside of the Gaza Strip, and Egypt. Their status as refugees has been deteriorating rapidly since the 1970s. After 1948 they were allowed rights similar to Egyptian nationals, and in 1963 they were allowed to own agricultural land, nor did they have to acquire work visas. In 1964 the government decreed that Palestinian refugees had to obtain an exit visa, an entry visa or a transit visa. In 1976 a law was passed stating that no foreigners could own real property, although Palestinians were later granted the right to own agricultural land. In 1978 the ability of Palestinians to work in the civil service was revoked. Gradually the process of attaining travel documents for Palestinians has become more difficult. [Citizenship and the State in the Middle East, p. 218. ] Jordanian Palestinians who hold two year passports are now required to obtain entry and exit visas to travel to Egypt.

Palestinians in Syria

Syria afforded Palestinians refugees all rights of residence, travel, work, business, and ownership on a temporary basis in 1948. In 1956 this status was cemented in the Law No. 260. Its first article states that all Palestinians residing in Syria at the date of its issuance shall be considered as Syrians in areas of employment, labour, trade,a nd national service provided they keep their Palestinian Citizenship. They thus enjoy equal rights in all aspects. They have equal rights of employment, in both public and private sectors, and are entitled to social security benefits, labour benefits, residence, education and travel. With regards to travel, the Syrian government issued Palestinian refugees with travel documents.

Palestinians in Iraq

Those who fled to Iraq enjoy equal rights concerning residence, work, and ownership of residential areas. They also have the right to join the civil service, with all the subsequent benefits. Given the current economic and political situation in Iraq, the quality of life for Palestinian refugees residing there is markedly lower than in other countries.

Palestinian Nationality after the Oslo Peace Process

The Palestinian Nationality Authority defines 'Palestinian'

The Palestinian National Authority drafted a piece of legislation in 1995 outlining its Citizenship Law. Article 7 of this legislation defines a Palestinian as anyone who "(1) was a holder of Palestinian citizenship (other than Jews) before 15 May 1948; (2) was born to a Palestinian father; (3) was born in Palestine to a Palestinian mother even if the citizenship of the father is not known; (4) was born in Palestine to unknown parents; and (5) was born outside of Palestine to a Palestinian mother and to a father whose nationality was not known – provided that this person opts for Palestinian citizenship within one year after reaching maturity, that he notifies the minister of interior of his intention to become a Palestinian citizen, that he becomes habitually a resident of Palestine, and that the minister does not object to this applicant within one year from the time he receives the notice from the applicant. [Draft circulated by the Council for Opinion and Legislation as cited in "Citizenship and the State in the Middle East", p. 219.]

This Draft law does not take into account those Palestinians living in their diaspora. The PNA’s draft Citizenship Law does not address the criteria in terms of which the UNRWA-Palestinians could attain citizenship. The PNA’s concept of citizenship, when combined with their Election Law, incorporates the concepts of jus soli, jus sanguinis and naturalization.

The Doctrine of Return

Resolution 194 of the UN General Assembly in 1948, "refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so." This has since been converted into customary international law, enshrined as 'the right of return'. Those entitled to return, should be able to gain Palestinian citizenship simply due to its basis on geographical boundaries as opposed to religious beliefs. But this 'right of return' is not the equivalent of the Israeli Law of Return (1950) which grants citizenship to any Jewish person and their family wishing to enter Israel.

Citizenship Regulation

The PNA's draft Citizenship Law bestows the executive branch the right to grant, annul, or withdraw citizenship.

Citizens without a State

Social Citizenship, T.H. Marshall's utopian stage of development of nationality, is inconceivable without an established political citizenship (and an industrial economy), and political citizenship presupposes civil citizenship. [Butenschon, Nils. A Ed. "Citizens and the State in the Middle East", p. 8.] To apply Marshall's standards of citizenship to the Middle East citizens, or Palestinians more specifically, is difficult. Citizenship requires the institutionalization of social and political rights within the framework of a given state, which the Palestinians do not have. Palestinians remain unable to access constituent demos in nearly every country they have come to reside in.

References

*Badi, J. Ed. "Fundamental Laws of the State of Israel" (New York: Twayne Publishers, 1961)
*Bentwich, Norman De Mattos. "Nationality In Mandated Territories Detached From Turkey". British Yearbook Of International Law, Vol. 7 (1926): 97-103.
*Butenschon, N.A. Ed.; Davis, U. Ed.; Hassassian, M. Ed. "Citizenship and the State in the Middle East: Approaches and Applications" (Syracuse, N.Y.: Syracuse University Press, 2000)
*Davis, U. "Jinsiyya" versus "Muwatana": The Question of Citizenship and the State in the Middle East-The Case of Israel, Jordan, and Palestine." in "Arab Studies Quarterly" 17, nos. 1-2, 1995.
*Hurewitz, J.C. "Diplomacy in the Near and Middle East: A Documentary Record 1914-1956" (New York: Praeger, 1956)
*Khalidi, R. "The Iron Cage: The Story of the Palestinian Struggle for Statehood" (Boston: Beacon Press, 2006)
*Lauterpacht, Sir H., Ed. "International Law Reports 1950" (London: Butterworth & Co., 1956)
*Shehadeh, R. "Occupier's Law: Israel and the West Bank" (Washington, D.C.: Institute for Palestine Studies, 1985)
*Tessler, M. "A History of the Israeli-Palestinian Conflict" (Indianapolis: Indiana University Press, 1994)

External links

* [http://www.un.org/unrwa/english.html UNRWA]
* [http://www.jmcc.org/research/series/basic1.html Palestinian National Authority Draft Law]
* [http://www.ariga.com/humanrights/index.shtml Palestinian Human Rights Groups]
* [http://www.ipcri.org/ Israel-Palestine Centre for Research]
* [http://palestineremembered.com/ Palestine Remembered]
* [http://www.btselem.org/index.asp Israel Information for Human Rights in the Occupied Territories]

Passport pictures from Mandate period

* [http://www.palestineremembered.com/Gaza/Barbara/Picture3400.html]
* [http://www.palestineremembered.com/Gaza/al-Khisas/Picture9517.html]
* [http://www.palestineremembered.com/Gaza/al-Khisas/Picture9515.html]
* [http://www.palestineremembered.com/Gaza/al-Khisas/Picture9519.html]