Published: 20 April 2021 Authors: Stefan Talmon and Anna Dickmann-Peña
In 1947, the United Nations envisaged the creation of two States in the former British Mandate for Palestine: an independent Arab State and an independent Jewish State. While the State of Israel was established on 14 May 1948 and became a member of the United Nations on 11 May 1949, there is still no independent Arab State. On the contrary, the territories that were to form part of the Arab State – the Gaza Strip and the West Bank, including East Jerusalem – have been under Israeli occupation since 1967. At a meeting of the Palestine National Council (PNC) in Algiers on 15 November 1988, the PNC declared “in the name of God and in the name of the Palestinian Arab people the birth of the State of Palestine on our Palestinian soil with Holy Jerusalem as its capital.” The declaration, however, did not change the situation on the ground. Nevertheless, the “State of Palestine” has been recognized over the years by 139 States, but not by Germany. In 2012, “Palestine” was accorded non-member observer State status in the United Nations. Subsequently, the “State of Palestine” acceded to numerous multilateral treaties, including the Rome Statute of the International Criminal Court.
Germany favours a two-State solution with “an independent, democratic and viable Palestinian state existing side by side in peace and security with Israel”. The Federal Government is convinced that this goal can only be achieved by mutual agreement of all involved and on the basis of negotiations between Israelis and Palestinians.
For the last three decades, the question of Palestinian statehood has regularly been addressed by German administrative courts in decisions on applications for asylum. On 2 November 2020, the Freiburg Administrative Court reconfirmed the finding that there was neither a Palestinian State nor a Palestinian nationality. The plaintiffs in this case were Palestinians whose application for asylum had been rejected by the Federal Office for Migration and Refugees. The Court stated:
“aa) The plaintiffs are stateless persons within the meaning of section 3(1) No. 2(b) of the Asylum Act. […]
(1) It must first be noted that there is no Palestinian nationality and that it is therefore irrelevant whether the plaintiffs are regarded and treated as nationals of a Palestinian State by the Palestinian Authority or by other States (such as Jordan, see below). This applies even if the question of the lack of recognition of Palestine by the Federal Republic of Germany and the majority of the other Member States of the European Union, including France, Italy and Spain, as well as the United States and Japan, which must be distinguished from the question of the recognition of passports issued by the Palestinian Authority as identity documents for travel purposes, is irrelevant for the present purpose. The same is true for the fact that in the area of private international law the question of a person’s nationality is determined on the basis of the law of the State whose nationality is in question, in accordance with Article 1(1) of the Convention relating to the Status of Stateless Persons of 28 September 1954 which, of course, is not applicable to refugees under the protection of UNRWA as set out in Art. 1(2)(i). In the area of private international law, this is justified by the fact that, as a starting point, each State determines for itself who it regards as its national.
There is no need to decide whether this approach based on the idea of protecting legitimate expectations in legal transactions, in which the diplomatic recognition of a State by the Federal Republic [of Germany] is irrelevant, can be readily transferred to the question at hand. The determination of nationality on the basis of the laws of another State presupposes that there is another entity that meets the constitutive criteria of statehood (government, people and territory). This is not the case with Palestine. On the contrary, there are only partially autonomous territories, not only factually but also in terms of (international) law. According to the two so-called Oslo Agreements (Israel-Palestine Liberation Organization Agreement of 13 September 1993 [Oslo I]; Israeli-Palestinian Negotiations, Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995 [Oslo II]), authority has not yet been completely transferred to the Palestinian Authority (Article IV Oslo I, Article XI, para. 2 Oslo II: ‘except for issues that will be negotiated in the permanent status negotiations’); rather, Israel continues to be responsible for external security (including the borders to Egypt and Jordan) and for the security of Israelis and settlers in general (Article VIII Oslo I, Article XII Oslo II). The maintenance of foreign relations, at least initially, has likewise not passed to the Palestinian Authority (cf. Article IX, para. 5 Oslo II). Although it is permitted to keep civil status registers and issue documents (Article IX, para. 2 at the end Oslo II), a right of self-determination with regard to nationality has not been expressly transferred.
(2) […] the Court is convinced that the plaintiffs do not possess Jordanian nationality. […]
(b) […] For Palestinians residing [in the West Bank], the Court assumes the following with regard to Jordanian nationality:
Both the West Bank and the area east of the Jordan River (East Bank, Transjordan) were part of the Ottoman Empire until the end of the First World War and were placed under a British mandate after its defeat in the First World War. As early as 1923, however, the administration of the East Bank was detached from the administration of the West Bank, and in 1946 Transjordan, which lies east of the River Jordan, became the present Hashemite Kingdom of Jordan. After the First Arab-Israeli War, in connection with the creation of Israel, Jordan initially took over the administration of the West Bank and, in April 1950, incorporated it into its territory. At that time, all Palestinians living in the then Kingdom of Jordan – that is, both in the area east and west of the Jordan River – received Jordanian nationality. Moreover, Palestinians also fled to Jordanian territory from the areas that belonged to Israel. When Israel occupied the West Bank after the Six-Day War in 1967, again thousands of Palestinians who held Jordanian nationality fled further east across the Jordan River. Despite Israeli occupation, the Kingdom of Jordan initially continued to maintain its claim to sovereignty over the West Bank and, consequently, also granted Jordanian nationality to the Palestinians living there.
This only changed in July 1988, when the Jordanian King Hussein decreed the separation of the West Bank from Jordan. As a result of this decision, Palestinians in the West Bank lost Jordanian nationality in one fell swoop. […]
[…] Following King Hussein’s decision to detach the West Bank from the Kingdom of Jordan, the subsequent Disengagement Rules specified in Article 2: ‘Every person residing in the West Bank before the date of 31/7/1988 will be considered as a Palestinian citizen and not as Jordanian.’ […]
This means that Palestinians like the first plaintiff who lived in the West Bank in 1988 have lost their previously held Jordanian nationality. This loss […] led not only to mere de facto statelessness, but to de jure statelessness, because what matters in the present case is how the State in question understands its own nationality law. If German courts have to apply foreign law, its content must be determined as it actually applies abroad. This must apply mutatis mutandis to the similar question of who a State regards as a national under the operation of its law. The highest Jordanian courts have ruled that the royal decision of 1988, including the decrees specifying the detachment, are removed from their jurisdiction as an act of the sovereign which is not subject to judicial review. Against this background, it is irrelevant that the compatibility of these measures, by which the Palestinians living in the West Bank were excluded from the Jordanian State, with the Jordanian Constitution and international law has been questioned.”
The decision of the Freiburg Administrative Court is in line with previous decisions of other administrative courts which all found that there was no “State of Palestine” and thus no Palestinian nationality. For the decisions of the German courts, it was not decisive that the Federal Government did not recognise the “State of Palestine” but that it did not fulfil the requirements of statehood in international law. While the status of the “State of Palestine” in the context of certain international treaties may have given rise to disputes, there seems to be widespread agreement that the entity does not (yet) fulfil the objective criteria of statehood in international law.
The Jordanian decision to deprive Palestinians living in the West Bank of their Jordanian nationality has been questioned by human rights organisations with regard to international human rights law. According to Article 15(2) of the Universal Declaration of Human Rights, “no one shall be arbitrarily deprived of his nationality.” However, the Declaration itself is not a legally binding instrument and there is little evidence that the provision has become part of customary international law. In particular, there is no equivalent provision in the International Covenant on Civil and Political Rights. The Convention on the Reduction of Statelessness provides in Article 8(1) that a “Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.” The obligation is, however, not without its exceptions. More importantly, the Convention has only 76 parties, and Jordan is not one of them. Other international treaties that deal with questions of nationality, such as the Convention on the Rights of the Child, entered into force only after the adoption of the Jordanian Disengagement Rules. Even if the Jordanian Disengagement Rules were contrary to Jordan’s obligations under international law, it would not be for the German courts to declare Palestinians to be Jordanian nationals. Such a move would not only be illegal in terms of international law, as it is not for Germany to impose certain persons as “nationals” upon Jordan, it would also be without any practical effect. In particular, Palestinians whose claim for asylum is denied could not be deported to Jordan without that State accepting the person to be deported as its national. The Freiburg Administrative Court was thus correct to treat the plaintiffs as “stateless persons”; that is, as persons “who are not considered as a national by any State under the operation of its law.”
Category: Nationality and statelessness
DOI: 10.17176/20220627-172909-0
