Published: 5 September 2023 Author: Stefan Talmon
Despite the fact that ‘Palestine’ was accorded non-member observer State status in the United Nations in 2012, enjoyed bilateral recognition from 139 States, and acceded to numerous multilateral treaties, Germany did not recognize a State of Palestine. German courts also regularly ruled that there was no Palestinian State and no Palestinian nationality. In an order of 19 January 2022, the Higher Regional Court of Berlin accepted for the first time ‘Palestine’ as a State of origin and – albeit indirectly – a Palestinian nationality for the limited purposes of private international law.
During a birth registration process, the question arose whether the child’s Palestinian mother had been validly divorced from her first husband – also a Palestinian – so that her second husband could be registered as the child’s father. The Berlin registry office refused the registration because the Berlin department of justice had not established that the prerequisites for recognition of the mother’s divorce decree by a Sharia court in the West Bank had been fulfilled. The parents challenged the registry office’s decision. On appeal, the Higher Regional Court of Berlin decided that a divorce decree concerning two Palestinians living in the West Bank at the time of the divorce was to be considered a ‘State of origin decision’ whose recognition was not dependent upon such an establishment by the Berlin department of justice. State of origin decisions are decisions of a court or public authority of a State whose sole nationality the parties had at the date of the decision. The finding of a State of origin decision thus indirectly required that the spouses held Palestinian nationality. The Court stated:
bb) The divorce of the first marriage … qualifies as a State of origin decision in the aforementioned sense.
(1) This finding does not conflict with the fact that the German Federal Government does not recognize Palestine as a State under international law. This does not mean that all actions by the Palestinian Authority should be considered irrelevant. Otherwise it would not have been possible to grant the [woman] a visa using solely her Palestinian passport and thus enable her to enter the Federal Republic of Germany.
This passport issued by the Palestinian Authority is also a passport recognised by the Federal Ministry of the Interior (cf. General Decree on the Recognition of Foreign Passports and Travel Documents in Lieu of a Passport of 6 April 2016, BAnz AT of 25 April 2016).
(2) Whether both spouses were nationals of the State, where the divorce was decreed, depends on that State’s nationality law.
The prerequisite under international law for the application of a State’s nationality law is its existence; that is, its recognition under international law. Due to the lack of recognition of Palestine by the Federal Government, persons living in the West Bank who are recognised as Palestinians by the Palestinian Authority should be considered stateless unless they have another nationality. This is in line with Article 1(1) of the United Nations Convention Relating to the Status of Stateless Persons of 28 September 1954 (Convention on Statelessness). … Palestinians are stateless within the meaning of Article 1(1) of the Convention on Statelessness unless they have acquired another nationality.
If the marriage of two Palestinians in this sense is dissolved in the West Bank by a court or a public authority, this qualifies as a State of origin decision. This follows from the concept underlying Article 12(1) of the Convention on Statelessness and Article 5(2) of the Introductory Act to the Civil Code, according to which the law at the place of domicile or residence is decisive.
This result is also consonant with the view that, within the framework of private international law, the determination of nationality does not depend on the recognition under international law of a government that actually exercises jurisdiction in a certain area.
The Court found that the divorce of the first marriage took place in the West Bank which was administered by the Palestinian Authority and that the Palestinian Authority regarded the spouses as ‘Palestinians’, as evidenced by their passports, birth certificates and national identification numbers. That it was the spouses Palestinian nationality that was considered relevant, rather than their domicile or residence, is shown by the fact that the Court positively established that both spouses were regarded as ‘Palestinians’ by the Palestinian Authority.
The question of Palestinian nationality had previously arisen only in cases concerning applications for asylum and naturalisation before the administrative courts. In these cases, a Palestinian nationality was rejected, and Palestinians were treated as stateless. This was the first time that a civil court had to deal with the question of a Palestinian nationality.
The Berlin Higher Regional Court rightly distinguished between the concepts of statehood and nationality in public international law and in private international law. The recognition of a certain nationality is incompatible with the non-recognition of the State of nationality only to the extent that the recognition of nationality implies recognition of State sovereignty. This is the case whenever nationality indicates the formal legal bond between a person and a State to which international law attaches certain rights and duties in international relations such as the right to diplomatic protection or consular assistance and the obligation to take back one’s own nationals.
The concept of nationality in private international law, on the other hand, functions as a connecting factor to a certain legal order. It is based not on State sovereignty but on the exercise of jurisdiction; that is, the capacity to make and enforce law. It does not govern the relations between States but the legal relations between private individuals. The conflict of laws rules on nationality, consequently, serve a different purpose than the rules on nationality in public international law. One therefore distinguishes between nationality as a legal status in public international law and functional nationality in private international law. As Alexander Makarov aptly noted: ‘This notion [of functional nationality] has been employed in domestic practice in cases where adherence to general legal nationality would lead to consequences contrary to the object and purpose of the law.’ The purpose of the conflict of laws is precisely to apply the law to which a person is subject.
Applying the local law and recognising the decisions of local courts does not necessarily imply recognition of a certain State. The applicable legal order in a territory is a question of fact, while the question of whether a certain entity qualifies as a sovereign State is a question of law. This distinction also allowed the German courts to apply the local law and recognise the decisions of the local courts in territories whose illegal annexation had not been recognised by the Federal Government. In this respect, the decision recognising Palestine as the State of origin of the divorce decree and – indirectly – a Palestinian nationality for private international law purposes was in line with earlier case-law.
Category: Nationality and Statelessness