Turkish subjects habitually resident in the territory of Palestine upon the 1stday of August, 1925, shall become Palestinian citizens.
This is what Article 1, Clause (1), of the 1925 Palestinian Citizenship Order
declared with regard to those persons who formed, according to domestic law, the
first ‘Palestinians’.486 As already concluded in Chapter III above, the ‘Palestinian people’ had been defined according to international law on 6 August 1924, the date at which the Treaty of Lausanne was enforced. Hence, the just quoted clause was a mere declaration of pre-existing international law.
This clause refers to the automatic, or ipso facto, acquisition of Palestinian citizenship by those persons resident in Palestine who had replaced their former Turkish, or Ottoman, nationality. Although the term ‘ipso facto’ is not literally employed, it should be easily understood as the clause is a direct application of Article 30 of the Treaty of Lausanne, 1923, which stated that “Turkish subjects habitually resident in territory which… is detached from Turkey will become ipso
facto… nationals…”.487 Thus, Turkish individuals who were covered by this clause became Palestinians by the operation of law without further action.
To qualify for Palestinian nationality in accordance with the above-quoted clause, the person was required to be: (1) a Turkish subject, or citizen; and (2) habitually resident in Palestine. The legal meaning of ‘Turkish’ and ‘habitually resident’ cannot be defined in the abstract, especially as court rulings had already interpreted both terms, as reflected in the Treaty of Lausanne, in other areas outside Palestine. Accordingly, the person was required to be first, and foremost, a Turkish citizen.
486 At the end of the mandate, Palestinian nationality was well-defined. Therefore, the question of a natural change from Turkish to Palestinian nationality, through this Clause, had in fact already been settled.
The status of a Turkish subject was drawn from the facts surrounding the birth or naturalization of such a person in accordance with the Ottoman Nationality Law of 1869.488 To this effect, the Government of Palestine established procedures whereby specific evidence was required to prove Ottoman nationality. These procedures were set forth in a document entitled “Instructions to Immigration Officers”,489 under the heading of “Evidence of Ottoman Nationality”, which was sent by the said Government to both its immigration officials and to British consulates abroad. According to these Instructions, evidence of Ottoman nationality included, inter alia, the possession of an Ottoman passport or birth certificate which indicated clearly that the person was born an Ottoman subject, or the possession of a naturalization certificate demonstrating that the individual had acquired Ottoman nationality.
The status of an Ottoman subject had to have been well-established. This status could, therefore, only be based on original Ottoman nationality which had been acquired by birth or through naturalization by the Ottoman Empire. It follows that, for example, those who acquired provisional Palestinian nationality in order to participate in the legislative election in 1922 would not be regarded as Palestinian citizens under Article 1, Clause (1), of the Citizenship Order (though they were considered under another article, as will be explained later).490 Likewise, stateless persons who might have claimed Ottoman nationality under Article 9 of the 1869 Ottoman Nationality Law491 were not considered as Palestinian citizens. To this effect, the Supreme Court of Palestine held:
488 See above Chapter II, Section 2.
489 Immigration and Travel Section, Instructions to Immigration Officers and Deputy and Assistant
Superintendents of Police, Government of Palestine, January 1930 (hereinafter: ‘Instructions to
Immigration Officers’), p. 41, Appendix X. Marked as ‘confidential’, this document was communicated to the Permanent Mandates Commission of the League of Nations in 1932 (see “Letter from the Chief Secretary of the Government of Palestine, Jerusalem, to the Secretary- General of the League of Nations”, Geneva, 29 February 1932; registered at the League under No. 35668, 9 March 1932—the letter is un-published). This document is a vital source of data relating to Palestinian nationality as it shows the practical or administrative aspects of this nationality. The document, therefore, will be frequently cited hereinafter.
490
See below text accompanying notes 693-696. 491 See below text accompanying notes 110-111.
Art. 1 of the Palestinian Citizenship Order-in-Council, 1925, applies only to Turkish subjects, that is, to those who have acquired Ottoman nationality by birth or naturalisation and not to those who by Art. 9 of the Ottoman Naturalisation Law [i.e. the 1869 Nationality Law] are deemed to be Ottoman subjects and are to be treated as such until their foreign status has been regularly established.492
A foreigner, regardless of his or her length of residence in Palestine before 1925, had no right to acquire Palestinian nationality under Article 1, Clause (1), of the Order. In a case before a special Palestinian tribunal on 28 May 1946,493 one of the parties, Ms. Elena Cattan, who had been residing in Palestine for 36 years, since 1910, was nevertheless considered as a foreigner (she was a Russian citizen). In its reasoning, the tribunal said: “There was no evidence we could accept adduced that she was a Turkish subject on the 1st day of August 1925”. Ms. Cattan, the tribunal concluded, “does not become a Palestinian citizen under that article”.
The second pre-requisite for one to be automatically considered as Palestinian citizen was proof that the person was ‘habitually resident’ in Palestine.
The expression ‘habitually resident’ of Article 1, Clause 1, of the Citizenship Order, which is derived from Article 30 of the Treaty of Lausanne, was the translation of the term ‘établis’ in the French authoritative version of the Treaty. The term had been already interpreted by the Permanent Court of International Justice when Article 2 of the Convention concerning the Exchange of Greek and
Turkish Populations (signed at Lausanne on 30 January 1923,494 which formed, in turn, part of the Treaty peace of Lausanne of 24 July 1923 that applied to Palestine),495 brought for an advisory opinion (Exchange of Greek and Turkish
492 Hausdorff v. Director of Immigration, op. cit.
493
Elena Cattan, widow of Issa Ya’coub Cattan v. Saliba Ya’coub Cattan & 4 Others and Mania
alias Mary, wife of Elias Ayoub v. Saliba Ya’coub Cattan & 4 Others (two connected cases), Special
Tribunal constituted under Article 55 of the Palestine Order in Council—ad hoc tribunal trying personal status matters involving foreigners (Annotated Law Reports, 1946, Vol. II, p. 747).
494
LN Treaty Series, Vol. 32, 1925, p. 76. 495 See Article 19 of the Convention.
Populations)496 on 21 February 1925. The term ‘établis’ of Article 2 of the
Convention was translated into ‘established’ in the English text and, as such, can be extended to mean ‘habitually resident’ as it appeared in Article 30 of the Treaty.497 The international Court concluded that the term ‘établis’ or ‘established’ “embraces two essential factors: residence and stability, i.e. an intention to continue the residence in particular place for an extended period”.498 It “refers to a situation of fact constituted… by residence of a lasting nature”.499
A different interpretation of the expression ‘habitual resident’ was given by the Supreme Court of Palestine on 16 December 1927 in Kattaneh v. Chief
Immigration Officer.500 The Court gave a de facto meaning to the expression; a person was considered as ‘habitual resident’ in the place where he was actually, or physically, present on a particular date even if that presence was temporary.501 As will be noted shortly,502 the Palestinian Court reached its decision based on its own interpretation of the Treaty of Lausanne and by referring to a precedent held by the British Privy Council. This interpretation chiefly affected those Palestine-born Ottomans residing abroad upon the enforcement of the 1925 Citizenship Order.
496 Permanent Court of International Justice, Series B, No. 10 (1925).
497 See ibid., pp. 17-23.
498 Permanent Court of International Justice, Series B, No. 10 (1925), p. 18.
499 Ibid., p. 26.
500
Law Reports of Palestine, p. 215. The Supreme Court of Palestine was sitting as a High Court of Justice. The facts of this case are introduced later in this study within another context; see below text accompanying notes 541-543.
501
See also Stoyanovsky, pp. 265-268, who apparently agrees with this de facto meaning: “Turkish subjects who for one reason or another left Palestine before August 1, 1925… became stateless” (p. 269). In contradiction to this statement, however, Stoyanovsky (ibid.) alleged that “Turkish subject had actually to be resident in Palestine on the above date, ‘habitually’ being added merely for the purpose of preventing the acquisition of such citizenship by those who only happened to be in Palestine on August 1, 1925, or might have come there with the sole intention of acquiring Palestinian citizenship”. If one is of the opinion that residence means actual presence in a place at certain date, all residents in that place at the same date, in the absence of legislative exception, should be treated equally.
In practice, the Government established similar procedures to prove residence in Palestine, to those which had been followed in order to prove Ottoman nationality. Sample evidence included, for instance, the ownership of a house in the country.503
1 August 1925 was fixed as the date for the automatic acquisition of Palestinian nationality by Article 1, Clause (1), of the Citizenship Order. This was the day on which the same Order came into force according to its Article 26. In this regard, it was noticed that the “insertion of a fixed date upon which Turkish nationals had to be ‘habitually resident’ in Palestine in order to be able to acquire or to claim Palestinian citizenship… constitute[d] an additional condition for the acquisition of that citizenship”.504 That is, fixing 1 August 1925 is unnecessary addition to the stipulation of Article 30 of the Treaty of Lausanne that mentioned no date and made it understandable that the commencement of the new nationality legislation is on the date of the Treaty’s enforcement through ratification by the signatory states. In other territories detached from Turkey, the date of nationality change was fixed as the day on which the Treaty came into force. Article 3 of the Iraq Nationality Law of 1924,505 as well as Article 1 of the Trans-Jordan Nationality Law of 1928,506 fixed 6 August 1924 (the day on which the Treaty of Lausanne was ratified by Britain), as the day the habitual Ottoman residents of Iraq and Trans- Jordan would acquire Iraqi and Trans-Jordanian nationalities, respectively. Likewise, Article 1 of the nationality legislation of Syria507 and Lebanon,508 both enacted in 1924 by the French High Commissioner, fixed 30 August 1924 (the day
503
See Instructions to Immigration Officers, op. cit., p. 42, Appendix XI (‘Evidence of Radiance in Palestine’).
504 Stoyanovsky, op. cit., pp. 268-269.
505 Op. cit.
506
This article is identical with Article 1, Clause (1), of the Palestinian Citizenship Order except that the effective date of the acquisition of Trans-Jordanian’s nationality was 6 August 1924.
507 Ordinance Concerning Turkish Subjects Established in Syria, op. cit. The preamble of this Ordinance referred to Articles 30-36 of the Treaty of Lausanne.
508
Ordinance Concerning Turkish Subjects Established in Lebanon, op. cit. The preamble of this Ordinance referred to the same articles of the said Treaty.
on which the same Treaty of Lausanne was ratified by France), as the day for the commencement of the Syrian and Lebanese nationalities.
However, it may well be said that Article 30 of the Treaty of Lausanne speaks of the acquisition of nationality based on “conditions laid down by the local law”. This therefore allowed for the authorities in “the State to which such territory is transferred”, to fix at its discretion the date on which nationality could be activated. In any case, it is a well-established fact that 1 August 1925 was the date of the automatic change from Ottoman to Palestinian nationality. The validity of this date had been repeatedly confirmed by Palestinian courts.509 Yet the Citizenship Order oddly contemplated another date (6 August 1924), as the date on which those persons who were born in Palestine and then resided abroad, had acquired Palestinian nationality.510
On 23 July 1931, the Palestinian Citizenship Order of 1925 was amended.511 Article 1(1) of this amendment considered those Ottoman subjects habitually resident in Palestine on 6 August 1924, and those residing abroad on 1 August 1925, as Palestinian citizens, providing that they had not acquired another nationality. This amendment covered only those who were resident in Palestine on 6 August 1924, not those persons who were residing abroad on this date; no reference was made to those Palestine-born residing abroad on 6 August 1924. The amendment therefore only altered the date of Article 1 of the Citizenship Order (i.e. 1 August 1925) regarding the automatic acquisition of nationality by a particular group of Palestine’s inhabitants. It seems that the purpose of this amendment was to comply with Article 30 of the Treaty of Lausanne.
509 See, for example, Nabiha Salim Zahwa v. 1. Attorney General, 2. Inspector General of Police
and Prisons, Supreme Court of Palestine sitting as a High Court of Justice, 27 March 1944
(Annotated Law Reports, 1944, Vol. I, p. 347); Yohannanoff v. Commissioner for Migration and
Statistics, Palestine Supreme Court sitting as a High Court of Justice, 27 March 1947 (Annual
Digest, 1947, p. 108). 510
See below text accompanying note 533.
At this historical juncture of Palestinian nationality, it might be relevant to review some facts relating to the population of Palestine and their nationality. This will define those individuals who constituted ‘Palestinians’ and thereby enjoyed the first-ever Palestinian nationality at the domestic level as from 1 August 1925 in accordance with Article 1, Clause (1), of the Citizenship Order.
It should be noted, from the outset, that this study is concerned with the legal aspects of nationality and does not, as such, intend to provide statistical data. Available statistics will be nevertheless consulted in order to illustrate or support certain legal conclusions. The reference to Turkish subjects of Jewish religion, who then became Palestinian citizens, is of a particular significance since the main objective of the 1925 Citizenship Order was designed with a view of conferring Palestinian nationality on foreign Jews who immigrated to Palestine.512
It should be further noted that only the official figures relating to the population as provided by the Government of Palestine will be relied upon here. These figures were derived either by census, conducted in 1922 and again in 1931, or based on the rates of annual increases in population. Such statistics were also subject to international monitoring by the Permanent Mandates Commission of the League of Nations through the annual reports submitted by Britain on its administration of Palestine, under Article 24 of the Mandate. The publications of the Government’s Department of Statistics in the years 1932-1946, which offer similar official figures, will be occasionally consulted as well. Data relating to immigration and to the population of Palestine was carefully compiled by the aforementioned Government in 1946, in a two-volume document entitled “A Survey of Palestine”.513 Other semi-formal sources (notably reports of the Jewish Agency on the immigration of Jews into, and their settlement in, Palestine), will be only cited for the purpose of comparison or clarification.514
512 See above Chapter IV, Section 3.
513
Op. cit., pp. 140-164 (‘Population’) and pp. 165-224 (‘Immigration’). 514
The aforementioned method and sources will be used not only in this chapter, but also wherever relevant in this study.
Exactly one month prior to the enforcement of the Palestinian Citizenship Order in 1925, the British-run Government of Palestine estimated that the total population of the country was 847,238 individuals.515 This figure incorporated Ottoman citizens and foreigners who had registered as immigrants, i.e. permanent residents. Unfortunately, there was no available data relating to the population’s nationality. In effect, the population of Palestine was officially classified along religious lines throughout the mandate period. In 1946, the said Government explained the reason behind this religious classification:
The classification by religious communities, viz. Moslems, Jews, Christians and others, had been adhered to throughout the [mandate] period. It is a classification socially necessary by reason of the complete jurisdiction enjoyed by religious communities in matters of the personal status of their members. In the current life of Palestine, however, the further distinction between ‘Arabs’, ‘Jews’ and ‘Others’, which may be described as racial or national, has been found to be necessary.516
Most Muslim and Christian residents in Palestine were Arabic-speakers and commonly known as ‘Arabs’. They overwhelmingly possessed Ottoman nationality. ‘Jews’, including some Arabic-speakers, were chiefly immigrants from various European countries who had resided in Palestine from the mid-nineteenth century.517 A number of Jews, notably those who belonged to the Allied states, were Ottoman subjects upon whom naturalization was imposed by the Ottoman Government during World War I in Palestine and elsewhere in the Empire.518
In the absence of data on the inhabitants’ nationality at the time of the enactment of the 1925 Palestinian Citizenship Order, one might reach fairly accurate figures on Ottoman subjects by deducting the available number of foreigners from the overall population. The total number of foreigners who registered as immigrants in
515 Survey of Palestine, Vol. I, p. 141.
516 Ibid., p. 140.
517
Ibid., p. 144. 518
See, for example, Robinson v. Press and Others, op. cit.; Nahum Razkovsky v. Leonine
Palestine from 1920 to 1925 was 79,368 persons, of all religions.519 Another number of foreign residents should be also subtracted from the general total of Palestine’s population mentioned above; that number is the 37,997 individuals who acquired provisional Palestinian naturalization certificates in September 1922 for the purpose of voting in the legislative election.520 The remaining number of Palestine’s inhabitants constituted Ottoman subjects.
The result of this calculation indicates the total number of Ottoman subjects, from all religions, residing in Palestine in 1925 as being:
847,238 – (79,368 + 37,997) = 729,873 persons.
These 729,873 persons formed the bulk of inhabitants in Palestine who acquired Palestinian nationality by the natural change from the previous Ottoman nationality according to Article 1, Clause (1), of the Palestinian Citizenship Order 1925.
As to the Arab and Jewish Ottomans of Palestine,521 another calculation is required.
The number of ‘Arabs’ of the total population in mid-1925 was 717,006 inhabitants (641,494 Muslims and 75,512 Christians).522 In addition, there were 8,507 persons classified as ‘Others’.523 These ‘Others’ were mainly Druzes, Bahais and Samiries who were overwhelmingly Arabic-speakers and residing in Palestine as Ottoman subjects.524 Hence, ‘Others’ were in fact ‘Arabs’. The number of immigrant Arabs
519 Survey of Palestine, Vol. I, p. 185. This figure is calculated based on the number of immigrants to Palestine from 1920 to 1925.
520
See above text accompanying notes 366-373.
521 The division of Palestinian citizens into ‘Arabs’ and ‘Jews’ generated significant legal consequences relating to nationality, particularly towards the end of the mandate. See below Chapter XI, Section 1.
522 See Survey of Palestine, Vol. I, p. 144.
523 Ibid., p. 141.
524
The ‘Others’ class is separately mentioned here only because it was classified as such by the British officials who dominated the Government of Palestine and for the sake of coherence. It seems that there were no immigrants registered from ‘Others’ class at the period under consideration.
who entered and registered in Palestine from 1920 to 1925 was 2,783 persons (mostly Christians).525
Thus, the net number of Arabs who were Ottomans, and then acquired Palestinian nationality by natural change, was as follows:
(717,006 + 8,507) – 2,783 = 722,730 ‘Palestinian Arabs’526 (or nearly 99%).
On the other hand, the number of Jews within the total population of Palestine, during this period, stood at 121,725 persons.527 Of these, there were 76,585 foreigners: 37,997 individuals who acquired provisional Palestinian naturalization certificates in 1922, as just mentioned, and 76,585 registered immigrants who entered Palestine from 1920 to 1925.528
Thus, the net number of Jews who were Ottomans and then became Palestinian