Información al ciudadano

In international law, nationality at birth is accorded based on two principles: jus

sanguinis and jus soli.599 According to jus sanguinis, as a general rule, the person

595

See on the conditions in Palestine during World War II, for example, Esco Foundation for Palestine, op. cit., Vol. II, pp. 956-1076.

596 _{See, e.g., Defence (Entry Prohibition) (Amendment) Regulations, 1940 (Palestine Gazette, No.} 1062, Supplement 2, 9 October 1940, p. 2017); Defence (Entry Prohibition) Regulations, 1940 (Palestine Gazette, No. 1052, Supplement 2, 18 October 1940, p. 1709). During the war, the state of emergency was declared in Palestine and the Palestinian borders were closed. Entering or leaving the country required special permit and arrangements. Most of those entered were illegal Jewish immigrants form Europe. See below text accompanying notes 702-703, 950-980.

597 _{The nationality of these persons is beyond the scope of this present study. Their current status} today and the possibility to include them within the scope of Palestinian refugees deserve a separate legal study.

598 _{The second wave of Palestinian refugees was created during 1947-1949 and afterwards until the} June 1967 war; the third wave came in and after the latter war.

599

For further details, see, inter alia, George D. Collins, “Citizenship by Birth”, American Law

Review, Vol. 29, 1895, pp. 385-394; Henry C. Ide, “Citizenship by Birth—Another View”, American Law Review, Vol. 30, 1896, pp. 241-252 (appraisal to the previous article); Richard

Kleen, “De l’application du jus soli en matière de nationalité”, Revue générale de droit

international public, Vol. III, 1896, pp. 429-434; D.O. McGovney, “French Nationality Laws

Imposing Nationality at Birth”, The American Journal of International Law, Vol. 5, 1911, pp. 325- 354; Richard W. Flournoy, Jr., “International Problems in Respect to Nationality by Birth”,

Proceedings of the American Society of International Law, Vol. 20, 1926, pp. 59-66; James Brown

Scott, “Nationality: Jus Soli or Jus Sanguinis”, The American Journal of International Law, Vol. 24, 1930, pp. 58-64; Durward V. Sandifer, “A Comparative Study of Laws Relating to Nationality at Birth and to Loss of Nationality”, The American Journal of International Law, Vol. 29, 1935, pp. 249-261; Oppenheim, op. cit., pp. 517-519; Weis, op. cit., pp. 97-98; Brownlie, “The Relations of Nationality…”, op. cit., pp. 302-306.

follows his or her father’s nationality at the time of birth. By jus soli, nationality is granted to persons born within the state territory regardless of the father’s nationality. The Palestinian Citizenship Order of 1925 adopted the two principles. A person born to a Palestinian father acquires the father’s nationality, wherever the birth may occur, either within or outside of Palestine. To this effect, Article 3 of the Citizenship Order considered the following persons as Palestinian citizens:

(a) Any person born in lawful matrimony within Palestine whose father at the time of such a person’s birth was a Palestinian citizen.

(b) Any person born in lawful matrimony out of Palestine whose father was a Palestinian citizen at the time of that person’s birth, and was either born within Palestine or had obtained a certificate of naturalisation, or who had acquired Palestinian citizenship under Article 1 or Article 5 of this Order.

These provisions are a clear manifestation of the jus sanguinis principle. In this respect, the Citizenship Order was similar to the Ottoman Nationality Law of 1869.600 It was also in line with Article 1, paragraph (1,b), of the 1914 British Nationality Act, although the latter Act was based chiefly on jus soli.

Obviously, the following phrase of Article 3, Clause (b)—just quoted—of the Citizenship Order is redundant: “either [the father] born within Palestine or had obtained a certificate of naturalisation, or who had acquired Palestinian citizenship under Article 1 or Article 5 of this Order”. The first part of the same clause logically includes all the cases referred to in this phrase; simply, when the father is a Palestinian, his children would be Palestinians too. It seems that the phrase intended to clarify that children of a Palestinian father would be Palestinians, regardless of the way by which the father had become Palestinian citizen.601

600

Ghali, op. cit., p. 62. See also above text accompanying note 108.

601 _{The quoted phrase refers to four means by which the father might have acquired Palestinian} nationality: (1) by being a naturally-born citizen; (2) by having held Ottoman nationality and made the automatic change; (3) through naturalization; (4) or through a declaration made under Article 5 of the 1925 Citizenship Order which concerned those who had become Palestinians with the purpose of voting for the 1922 legislative election.

It is not clear, however, why the said phrase excluded those born to a father who had become Palestinian citizen under Article 2 of the 1925 Citizenship Order.602 This indicates that the Order’s drafters had not seriously contemplated the possibility of facilitating the acquisition of Palestinian nationality by Palestine- natives whose residence was abroad. It appears to be the case that children of such persons were presumed to be naturalized Palestinians and, therefore, included under the same phrase implicitly.

The 1925 Citizenship Order partially recognized the jus soli principle. In defining Palestinian citizens by birth, Article 3, Clause (c), of the Order provided:

Any person born whether in or out of lawful matrimony within Palestine who does not by his birth or by subsequent legitimation acquire the nationality of any other State or whose nationality is unknown.

This clause regarded as Palestinians those children born to: (1) a stateless father; (2) an unknown father; or (3) unknown parents, i.e. a foundling child. It follows that the Order did not confer Palestinian nationality by the mere fact of birth in Palestine. Thus, the Order adopted the jus soli principle in the “exceptional case[s] of persons who otherwise would have been stateless”.603 This exceptional adoption of the principle was similar to the position of the 1869 Ottoman Nationality Law.604

A child born to a foreign father was considered to be a foreigner even if his mother was a Palestinian citizen because, as Article 6 of the Citizenship Order put it exclusively, “minor children shall follow the nationality of their father”. It might be relevant here to note, however, that Article 36 of the Treaty of Lausanne stated that the status of children would be governed by “that of their parents”;605 it did not say that children’s status would follow that of their ‘father’ only. But the status of a married woman, according to the same article, was governed by “that of her

602 _{On Article 2 of the Palestinian Citizenship Order of 1925, see above Chapter V, Section 2.}

603

Stoyanovsky, op. cit., p. 275. 604

See above text accompanying notes 109-111. 605 _{Emphasis added.}

husband” (i.e. both women and children are dependant on the husband/father in so far as their nationality was concerned). In this respect, the Palestinian Citizenship Order made clearer reference to the woman/mother, albeit less favourably, than that of the Treaty. In Yohannanoff v. Commissioner for Migration and Statistics,606 despite the fact that the petitioner had been born in Jerusalem to a Palestinian mother, the Supreme Court of Palestine held that “a minor can have no other nationality than that of its father” (who was, in this instance, a Russian citizen). By establishing itself upon jus sanguinis, the 1925 Palestinian Citizenship Order departed from the basic principle of the British law, which grants nationality to any person born on British soil. Article 1(1) of the 1914 British Nationality Act deemed “any person born within His Majesty’s dominions and allegiances” as a natural- born British subject. More generally, the Order differed from the English Common Law system, which is based mainly upon jus soli.607 It is obvious, then, that conflict was likely to arise between the Palestinian law and the nationality laws of

jus soli countries. Put concretely, a child born to a Palestinian father in New York,

for example, where jus soli applied, would be considered a Palestinian citizen based on the Citizenship Order while, at the same time, the child would be deemed an American national according to the United States law.

The position of the Palestinian Citizenship Order, which had adopted the two internationally recognized principles of nationality, was similar to the situation in many countries of the world. In a research conducted in 1929 by the Harvard Law School, it was concluded:

From an examination of the nationality laws of the various States it appears that seventeen are based solely on jus sanguinis, two equally upon jus sanguinis and jus soli, twenty-five principally upon jus sanguinis but partly upon jus soli, and twenty-six principally upon jus soli and partly upon jus sanguinis. The nationality law of no

606 op. cit. 607

See, e.g., Piggott, op. cit., pp. 41-56; Davies, op.cit., pp. 253-260; Jones, British Nationality Law

country is based solely upon jus soli. A combination of the two systems is found in the laws of most countries.608

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