Briefing on the right to a nationality of children born to Palestinian parents in Belgium February 2024 Palestinian statelessness under international law While it is important to acknowledge and respect Palestinians’ connection to Palestine and the right to self-identify as Palestinian nationals, under international law, Palestinians who have not acquired the nationality of any state should be considered not only refugees but also stateless persons. Indeed, many Palestinians consider themselves to be Palestinian nationals in view of their long-standing ties to the areas currently known as Israel, Gaza, the West Bank, and Palestine, as well as their ethnicity, and shared political and cultural affinity. However, the forced displacement and population transfer of Palestinians initiated by the creation of Israel in 1948 (and continuing subsequently), the denial of nationality by Israel,17 the negation of Palestinians’ inalienable rights to self-determination and return,18 and the lack of Palestinian sovereignty and a Palestinian nationality law, has resulted in the de-nationalization and protracted, transgenerational statelessness of most Palestinians. This is in line with the international definition of a stateless person as defined by Article 1 of the Convention Relating to the Status of Stateless Persons (1954 Convention), which forms part of customary international law and is applied in Belgium as it has direct effect in national law:19 “the term ‘stateless person’ means a person who is not considered as a national by any State under the operation of its law”.20 Due to the abovementioned reasons, including that Palestine remains under occupation by Israel, does not have full sovereignty, does not have full control over issuance of official documentation or entry and exit to its territory, and because attempts to enact a Palestinian nationality law have failed, Palestinians should be recognised as stateless under the 1954 Convention, unless they hold another nationality. This is regardless of whether a country recognises Palestine as a State and does not negate the fact that Palestinians have an entitlement to Palestinian nationality under international law. In applying the 1961 Convention to determine whether a child is entitled to nationality because they would otherwise be stateless, or whether a person would be rendered stateless by a deprivation decision, authorities should apply the same definition from Article 1 of the 1954 Convention. 17 Palestinians are not considered nationals of Israel by operation of Israeli law, even though many have a right under international law to Israeli nationality. Some (relatively few) Palestinians have acquired Israeli “citizenship”, but Israeli law reserves “nationality” to Jewish people, who have superior property and other rights compared to Palestinian “citizens” of Israel. Israel de-nationalised most Palestinians under its nationality law of 1952. In 2018, Israel passed its Nation State Basic Law, which expands on previous discriminatory laws and defines Israel as a State of and for Jewish people, and explicitly declares that the right of national self-determination in Israel is “unique to the Jewish people”. Further, the Israeli Government does not recognise Palestine as a State and considers Palestinians living in the occupied Palestinian territory to be “non-citizen residents”. For more information, see Basic Law: Israel - The Nation State of the Jewish People (2018) 57782018 <https://main.knesset.gov.il/EN/activity/Documents/BasicLawsPDF/BasicLawNationState.pdf>; and Susan M Akram, ‘Palestinian Nationality and “Jewish” Nationality: From the Lausanne Treaty to Today’ in Farsakh, Leila (ed) Rethinking Statehood in Palestine: Self-Determination and Decolonization Beyond Partition (University of California Press 2021) <https://www.ucpress.edu/book/9780520385627/rethinking-statehood-in-palestine> 18 The right of return is a right enshrined in international law, including in Article 13(2) of the Universal Declaration of Human Rights and Article 12(4) of the International Covenant on Civil and Political Rights. The right of return of Palestinian refugees specifically has also been established in international law, including in UN General Assembly Resolution 194(III) of 1948 and UN Security Council Resolution 237 of 1967. Furthermore, given that the right to right to enter, re-enter and reside in the territory of the State of one’s own nationality is “considered as the essence of nationality as a matter of public international law”, a State’s denial of this right “could be interpreted as that State effectively denying that the individual is its national”, see Alice Edwards and Laura Van Waas (eds), Nationality and Statelessness Under International Law (Cambridge University Press 2014), pg. 40-41. 19 ILC Draft Articles on Diplomatic Protection with commentaries (2006) 2(2) Yearbook of the International Law Commission <https://legal.un.org/ilc/texts/instruments/english/commentaries/9_8_2006.pdf> 20 Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 U.N.T.S., art 1 (emphasis added) <https://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.24_convention%20stateless.pdf>