The Broadening Protection Gap (b) Whether the Applicant is Considered as a National by the State of Palestine Until recently the question whether individuals of Palestinian origin were considered nationals of (the state of) Palestine had not come up in Belgian case law, as all courts considered Palestine not to be a state in the sense of the 1954 Convention. After the switch in jurisprudence described above however, this question entered the debate, but it has unfortunately not been thoroughly assessed by the courts. The courts of appeal of Ghent 36, Brussels 37 and Antwerp 38 have all ruled that art 1 of the 1954 Convention does not require the existence of detailed nationality legislation, 39 referring to the UNHCR Handbook on the Protection of Stateless Persons. 40 In those cases, the courts drew the conclusion that the applicants were considered nationals by the state of Palestine from documents mentioning Palestine itself — documents issued by the Palestinian Authority (‘PA’), the UNRWA and even the applicants’ former host states (such as Syrian travel documents or Lebanese residence permits). At least, the Courts considered that these documents created a sort of rebuttable presumption of Palestinian nationality and that the applicants had not shown that they were not considered as such. This placed the burden of proof entirely on the applicant and the corresponding focus on this issue meant that not all of the applicants’ arguments were addressed. Appeals challenging this line of jurisprudence are pending in the Court of Cassation. 41 This reasoning is clearly faulty. At first instance, it seems obvious that the mere mention of Palestinian origin, or even nationality, on documents issued by another state or international organisation (such as the UNRWA) cannot create a legal presumption of Palestinian nationality. Clearly the issuing institutions are not competent authorities for Palestinian nationality matters. 42 Secondly, regarding documents issued by the Palestinian National Authority (‘PA’), the 1995 Oslo Accords gave the PA the ‘right’ to issue identity cards and Palestinian passports. 43 These can only be issued to the inhabitants of the West Bank and Gaza, and only after notifying Israel and getting their permission. 44 36 37 38 39 40 41 42 43 44 Application of 18 October 2018 (Belgium, Court of Appeal Ghent) (forthcoming) (in Dutch). App No 2017/FA707, 5 June 2018 (Brussels Court of Appeal) <https://www.agii.be/sites/default/files/20180605_brussel.pdf>. App No 2018/EV/6, 3 October 2018 (Antwerp Court of Appeal) <https://www.agii.be/sites/default/files/20181003_antwerpen.pdf>. Indeed, to date, Palestine has not adopted a nationality law. Handbook on Protection of Stateless Persons under the 1954 Convention on Relating to the Status of Stateless Persons (United Nations High Commissioner for Refugees 2014) (‘UNHCR Statelessness Handbook’) [22], which states The reference to “law” in Article 1(1) should be read broadly to encompass not just legislation, but also ministerial decrees, regulations, orders, judicial case law (in countries with a tradition of precedent) and, where appropriate, customary practice. These matters are not publicly available at the time of writing. UNHCR Statelessness Handbook (n 40) [27]–[30]. Israeli and Palestinian Interim Agreement on the West Bank and the Gaza Strip, Israel– Palestine 36 ILM 551 (signed and entered into force 28 Sep 1995) annex III (‘Protocol Concerning Civil Affairs’) art 28 <https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israelipalestinian%20interim%20agreement%20-%20annex%20iii.aspx#app-28>. Forget About Him, He’s Not Here: Israel’s Control of Palestinian Residency in the West Bank and Gaza (Report, Human Rights Watch February 2012) 22–25. <https://www.refworld.org/docid/4f3374972.html>. 307