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Article Excerpt
Abstract
This article considers Australia's treatment of stateless Palestinian asylum seekers and discusses whether that treatment discharges Australia's legal and/or moral obligations towards the individuals in question. The conclusion drawn is that it does not.
Resume
L'article prend en consideration le traitement que l'Australie reserve aux demandeurs d'asile palestiniens apatrides et demande si ce traitement decharge l'Australie de ses obligations juridiques et/ou morales envers les individus en question. La conclusion etablit qu'il n'en est rien.
Introduction
The primary function of the state is to protect its associated people (its nationals) from Hobbes's "war of all against all." Unfortunately, there are about nine million people worldwide who are in the situation of being "cast adrift from the global political system of nation states." (1) These people are "not considered as a national by any State under the operation of its law" and hence are de jure statdess. (2) Refugees, by contrast, may well possess the nationality of some country, but find themselves persecuted rather than protected in their country of nationality. (3) Some stateless persons are unlucky enough to be refugees as well, meaning that they find themselves faced with persecution in their country of habitual residence.
In an earlier era than our own, not much distinction was drawn between stateless persons and refugees because what was considered significant was what they had in common--their lack of state protection. (4) However, the trend since World War II has been that the international community has focused less and less on the fact that an individual lacks state protection and more and more on the reasons for the lack in determining whether or not to provide substitute protection. Those who lack state protection for reasons other than the reasons set out in the Convention Relating to the Status of Refugees (Refugee Convention) (5) have found themselves increasingly marginalized. In particular, while there is a Convention Relating to the Status of Stateless Persons (Statelessness Convention) (6) only 57 states (7) are parties to it compared to the 145 states (8) that are parties to the Refugee Convention and/or Refugee Protocol.
This article considers the plight of the approximately 3,723,036 Palestinians who are not formally nationals (citizens) of any country, (9) i.e. are de jure stateless. It then considers the extent to which these individuals are able to rely for protection on the two treaty regimes specified above and on the more general body of international human rights law. The article next considers whether Australia's treatment of stateless Palestinians complies fully with all of its obligations under the Refugee Convention, the Statelessness Convention, and the general body of international human rights law and concludes that it does not. Finally, the article argues that Australia not only has international legal obligations towards stateless Palestinians but also moral obligations incurred through past action. It suggests that in order to discharge these moral obligations Australia should not only meet its strict legal obligations to stateless Palestinians but also give serious consideration to conferring its own nationality on stateless Palestinians in Australia who have nowhere else to turn.
The Palestinians
For as long as the three great monotheistic religions have been in existence, the territorial entity now described as Palestine has had a distinct identity derived from those religions. It is the Holy Land. (10) The Jews settled Palestine about one thousand years before the birth of Christ. However, by the end of the seventh century most of the population of Palestine was Arab and Muslim and in 1516 it became part of the Ottoman Empire. (11) From about 1882, Jews began migrating or returning (depending on your point of view) to the Holy Land. From about 1904-5, most of the migrants were angry young men and their goal was to make "Palestine become as Jewish as England is English." (12) In other words, they were Zionists.
At the time Jewish migration commenced, the Holy Land had a permanent population of about 462,000 persons. Most of these inhabitants were Arab Muslims, some were Arab Christians, and about 15,000 were Jews. (13) By 1914, the population of Palestine had increased to over 720,000 of whom about 60,000 were Jews and the rest Arab. (14)
During World War I, the Ottoman Empire allied itself with Germany and in the course of the war Britain and France occupied its territories. Just before Armistice in 1918, those two countries announced that they intended "the complete and definitive liberation of the peoples so long oppressed by the Turks and the establishment of national Governments and Administrations drawing their authority from the initiative and free choice of the indigenous populations." (15) What they in fact did after World War I was to follow through on a secret plan to carve up former Ottoman territory between themselves. (16) Palestine, Jordan and Iraq went to Britain. (17)
In place of straight out colonial rule, Britain and France had themselves appointed as League of Nations Mandatories of the territories they acquired during the war. Mandatories were given supervision and control of mandated territories, but not sovereignty over them. (18) Article 22 of the Covenant of the League of Nations (the Covenant) provided:
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by people not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the wellbeing of such people form a sacred trust of civilization ... The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations ... and that this tutelage should be exercised by them as Mandatories on behalf of the League. (19)
As David Abernethy points out, this "acknowledgement by colonial powers that they had a moral and legal responsibility to foster the well-being of colonized people on behalf of the larger international community was an important break from the past." (20) The Arab inhabitants of Palestine were unimpressed. They believed for a start that Britain had reneged on the promise of liberation made just before Armistice. Moreover, it was evident to them that the terms of the Palestine Mandate were geared not towards giving effect to the principles set out in Article 22 of the Covenant but rather towards giving effect to the Balfour Declaration of November 1917 in which Britain had supported "the establishment in Palestine of a national home for the Jewish people." Article 22 of the Covenant stated:
Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.
Yet, as Omar Dajani points out,
in contrast to its numerous explicit commitments to the establishment of a "Jewish national home" in Palestine, the Mandate referred to the indigenous Arab population of the country, which in 1922 represented almost 90% of Palestine's total population, primarily in contradistinction to the Jewish population. The Mandate, therefore, transformed the "independent nation" provisionally recognized by the Covenant into an assortment of "non-Jewish communities" that happened to reside within the borders of the territory of Palestine. (21)
Article 2 of the Palestine Mandate at least provided that in addition to "placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home," the Mandatory was responsible for "the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion." (22) However, Britain did not in fact allow the Palestinians to develop self-governing institutions for fear that this would jeopardize the establishment of a Jewish homeland in Palestine. (23) By contrast, during the mandate period, the Zionists managed to put in place a 'continuum of "Jewish territory"' and a parallel Jewish polity in Palestine. (24)
During the interwar period, 100,000 European Jews migrated to Palestine. Many were, of course, refugees fleeing the spread of Nazism. (25) However, Arab Palestinians focused on their own dispossession and responded to Jewish settlement with an armed uprising which commenced in 1936 and was finally put down by the British in 1939. (26) By then war was looming in Europe and British Prime Minister Neville Chamberlain took the view that it was more important to have the Arabs on-side than the Jews. (27) In order to placate the Arabs, Britain placed restrictions on Jewish immigration and promised that Palestine would be given independence within ten years. (28)
Immediately after World War II, Palestine had an Arab population of approximately 1.06 million people and a Jewish population of approximately 554,000 people. (29) In other words, the Arabs outnumbered the Jews two to one. The Zionist movement, through an organization known as the Jewish Agency, demanded that Britain allow the 100,000 Jews displaced by World War II to migrate to Palestine. (30) Britain, which was preparing to give independence to Palestine, decided to continue with the quota of 1,500 Jewish migrants per month that it had imposed in 1939. (31) The military arm of the Jewish Agency, Haganah, and two underground Zionist organizations responded by waging an undeclared war or campaign of terror (again, depending on your point of view) against British authorities in Palestine. (32)
By 1947, Britain had had enough and asked the United Nations to sort out the problem. The United Nations established an eleven-member Special Committee on Palestine (UNSCOP), which reported to the United Nations General Assembly in August 1947. The majority (seven members) (33) recommended the partition of Palestine into a Jewish state comprising 56 per cent of the territory and an Arab state comprising 43 per cent of the territory. It also recommended the internationalization of Jerusalem, since the city was holy to Jews, Christians, and Muslims. (34) A minority (three members) recommended that independent Palestine be established as a federal state. (35) The eleventh member (Australia) chose to abstain from making any recommendation. (36) The Zionists were pleased with the majority recommendations. The Arabs were not, since what was being recommended was that a minority of the population get the majority of the territory. Nevertheless, on 29 November 1947, the United Nations General Assembly passed a resolution which endorsed the partition recommendation by a two-thirds majority. (37)
According to the historian Tom Segev, "No one believed in the UN's map, everyone knew there would be war." (38) However, Britain was determined to wash its hands of Palestine. (39) The British High Commissioner and the last British troops left Palestine on 14 May 1948, the very day that the mandate terminated. (40) On that day, David Ben-Gurion, the head of the Jewish Agency, declared that the state of Israel had come into being. Palestine's Arab neighbours responded by sending in their troops. By the end of 1948, the Israeli forces had routed them all. (41) In the first part of 1949, Israel signed a series of armistice agreements with its neighbours, i.e. with Egypt, Jordan, Lebanon, and Syria. Under the agreements Israel got to keep considerably more territory than it would have received under the United Nations partition arrangement (77 per cent of mandatory Palestine). (42) Jordan and Egypt respectively were left in control of those parts of mandatory Palestine known as the West Bank and the Gaza Strip (the remaining 23 per cent of mandatory Palestine). (43)
On 27 January 1949, Britain and Australia announced their recognition of Israel. (44) Australia also moved the formal resolution recommending Israel's admission as a member of the United Nations. (45) On 18 May 1949, Israel's application for United Nations membership was approved. At the beginning of 1950, the new state of Israel had a population of one million Jews and about 150,000 Arabs. This was because on the one hand Jewish immigration to Israel continued while on the other most Arabs inhabitants had fled or been expelled during the 1948 war. (46) The extent to which displacement was caused by the latter rather than the former is the subject of bitter contestation, (47) since even at the time mass expulsion was regarded as a war crime and a crime against humanity. (48) In any event, the displaced Arabs are not regarded as Israeli nationals under Israeli law. (49) Moreover, they are not permitted by Israel to return to the homes they left. Whether Israel's position on nationality and/or return is defensible under international law is, unsurprisingly, the subject of further controversy. (50)
After the 1948 war, 470,000 displaced Palestinians settled in camps in the West Bank and Gaza Strip. (51) Over 280,000 more Palestinians also displaced during the 1948 war dispersed to neighbouring countries, with most going to Jordan, Lebanon, or Syria. (52) During the Six Day War of 1967, in the course of which Israel fought with Egypt, Syria, and Jordan, further displacement occurred with 800,000 West Bank inhabitants and 150,000 Gaza Strip inhabitants fleeing into Jordan. (53)
After the 1967 war, those who remained in the West Bank and Gaza Strip found themselves living under Israeli rule though still without Israeli nationality. (54) Pursuant to the 1994 Gaza-Jericho Agreement and the 1995 Interim Agreement, Israel transferred responsibility for civil governance of some parts of the occupied territories to the Palestinian Authority. (55) However, the non-Jewish inhabitants of the occupied territories remain de jure stateless (56) and, far from being protected by either Israel or the Palestinian Authority, are subjected to serious human rights abuses by both. These abuses include arbitrary deprivation of life; torture and other cruel, inhuman, or degrading treatment or punishment; arbitrary arrest and detention; arbitrary interference with privacy, family, and home; and denial of freedom of movement. (57)
All Palestinians living in Jordan, except those who fled from the Gaza Strip in 1967, have been permitted to acquire Jordanian citizenship and enjoy the rights which go with citizenship. (58) However, most Palestinian refugees in Syria and Lebanon (including the descendants Of the original refugees) are unable to acquire the citizenship of their host country. (59) In Syria they at least enjoy many of the same rights as Syrian citizens do. (60) However, in Lebanon they have extremely limited work rights, have no access to social assistance, are denied freedom of movement, and have, in fact, been persecuted at various times by state and non-state actors. (61)
Palestinians and International Protection
Asylum
Reference is often made to the fact that Article 14(1) of the United Nations Universal...
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