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International Law Foundations of Palestinian Nationality: A Forgotten Basis for the Resolution of the Palestinian Refugee Question

The question of the Palestinian refugees from 1948 onwards is often righteously seen at the crux of the Israeli-Palestinian conflict, and the discussion surrounding this issue is too often politicised to the degree that there is no sight of the actual applicable international legal framework. Professor Mutaz Qafisheh presently a professor of international law at the Al-Quds University, has recently published his doctoral thesis on ‘The International Law Foundations of Palestinian Nationality:  A Legal Examination of Nationality in Palestine under Britain’s Rule’ (Martinus Nijhoff, Hague, 2008). This relatively new publication is worthy of attention due to the novel and ingenious legal arguments that it presents through a comprehensive and unexplored normative legal framework of Palestinian nationality, specifically from the legal perception of nationality and territorial change.

The work devises that the legal framework for the determination of Palestinian nationality consists of three main sources: principles of the international law of state succession (inter alia, the ICJ case on the status of West-Sahara 1955, when Morocco invoked the historical link to the region and the Court upheld the relevant laws to be those of the Spanish rule in 1882), international legal documents of the League of Nations on the definition of Palestinian nationality, and British mandatory legislation, namely two principal laws enacted in 1925, the Palestine Order in Council and the Immigration Ordinance. The Zionist/Israel argument that came into play around the late 1940’s has little to no effect on this international legal framework and does not come to alter it in any way. The same goes for the arguments put forward by the Jordanian Waqf, who at the time claimed ownership over the whole of Palestine.

The reason why this historical account is of critical importance is found in the crucial role that it plays in the determination of the present-day solution to the status of Palestinian refugees around the world. Namely, the international legal framework that defines a Palestinian national provides the de jure definitions of such individuals. Notably, the documents that Qafisheh surveys in his work have not been presented by any other research before.

Most importantly, the de facto effects that came about as a result of the establishment of the State of Israel in 1948, have been given the most attention but serve no purpose when it comes to determining the status and rights of Palestinian refugees. Notably, Resolution 181 and the UN Partition Plan of 1947, adopted the mandatory framework for the definition of Palestinian nationality and did not alter in any manner the preexisting legal framework. Thereby, this legal basis, legislated by the British mandate and the international governing body of the League of Nations, represents an international status that cannot be legally altered, except in accordance with international law.

This legal reality is often challenged by the facts on the ground of the present-day situation in the region and the developments that took place since it was established in the 1920’s. Nevertheless, such facts, as the work asserts, do not propose a solution to the situation of hundreds of thousands of Palestinian refugees worldwide. Facts on the ground only serve to reinforce the politicisation of this pivotal issue at the heart of the Israeli-Palestinian conflict. Understandably, the application of these specific international legal instruments may arguably be tempered to a certain degree for the purpose of arriving at a just compromise. Nevertheless, whilst taking into account the evident discrepancies between law and reality, any future consideration of the status of the individuals who once held Palestinian nationality through the lens of a human rights discourse cannot be based on political perspectives and alternatives, and therefore can only be substantiated on the solid international legal grounds that Qafisheh defines in his work.

UPDATE: The introduction and the conclusion of the book can be accessed online.

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