Istanbul SummitIslam

Islamic ummah, Muslim land and Arab citizenship-search for identity

“ISLAMIC LAND”: GROUP RIGHTS, NATIONAL IDENTITY AND LAW

Andrew Grossman [FNa1]

Introduction

Much of the discourse concerning Western actions in areas of Muslim interest has centered on the legitimacy of non-Muslim intervention and intrusion in “Islamic land.” In the absence of an articulated theology of land in Islam, “Islamic” or “Muslim” land may be read as territory and population now or recently under Islamic governance, including Lebanon, [FN1] the West Bank and Gaza. [FN2] Some scholars would define the term to comprise “every land which is under the just Islamic rule and in which the benevolent Islamic shari’a prevails”; [FN3] this however confuses the result hoped for in the Islamist struggle with the territorial scope of that campaign. The United States has been a particular target of hostility and reprisal for its perceived enabling of Israeli usurpation of “inalienable” Palestinian territory and for its own intrusion into the “inviolable” Islamic Nation, including its military forces stationed in Saudi Arabia and its relationship and influence over Arab and Muslim governments as well as its cultural hegemony. There is some expediency here and application of a double standard: in the circumstances and in *54 the era in which it is admitted that sovereign title to land may be vested; in recognition of human and individual rights, group rights and a voice in governance by religious minorities; and more specifically in relation to the status and mission of the West’s own growing Muslim communities. The Western state has defined itself in human rights (or constitutional law) terms that may be alien to Islamic thought but by which Muslims and others feel justified in criticizing it. At the same time, for the Islamic state political convenience and public consensus would seem to produce a ratchet effect leading to irreversible steps towards orthodoxy, [FN4] a situation in which Western nations as guarantors of refugee law and as promoters of their liberal form of human rights law may have an interest. [FN5] Among many Muslim intellectuals and activists socialism and secular nationalism have been supplanted by the Islamic awakening. [FN6]

Fair appraisal of the issues is occasionally obstructed by ambiguity, including mistranslation, misrepresentation and quotations selectively chosen, misleadingly edited and taken out of context. [FN7] To this may be added intellectual and political barriers posed by anathemas of idolatry, syncretism, apostasy, blasphemy and heresy. [FN8] To the Islamist tendency, international-law and human-rights norms may be pre-empted by shari’a, and Qur’anic ambiguity may be resolved in ways hostile to the West.

A further challenge for targets of the Islamist tendency is that even those within the Muslim community who reject its strident dictates may admit *55 its religious logic and historical validity. Xenophobia may follow inevitably from certain basic tenets of Islam, jealous territoriality from principles of waqf, jihad, irtidad (apostasy), personal status and Islamic governance. Shari’a may conflict with external public and private international law and human rights precepts, not least because of the Islamist tendency’s arrogation to itself of the right of governance: “wherever an Islamic community exists as a concrete example of the Divinely-ordained system of life, it has a Divinely-given right to step forward and establish political authority.” [FN9] The return to classical norms of Islamic law in the courts of Islamic countries in the post-World War II period seems to equate to an abandonment of accommodation of Western notions of rights and status that occurred in the late 19th and early 20th centuries. [FN10] There are exceptions to the rejection of Western concepts where, pragmatically, such classical views would compromise the exercise of local sovereign power or advancement of Muslims’ collective interests, but this is a matter of practical imperatives. Independently sovereign Muslim communities have been in existence sufficiently long to have created discrete identities, political cultures and interests through education and propaganda, probably an irreversible phenomenon.

With divergent interests elsewhere, the major issue of Muslim consensus is that of Palestine and Israel, for which Islamic law and Muslim interpretations of international law have been mustered. Much of the analysis here is devoted to that region, although the principles discussed apply also to other regions and other matters of conflict and concern, notably including the question of any state’s entitlement to the unconditional allegiance of its citizens. [FN11] This goes beyond religion [FN12] and extends to the broad tolerance of divided loyalty and dual nationality made inevitable by the postwar development of *56 human rights and gender equality in the West, where juridical and political developments promoted the emphasis of rights over obligations in nationality matters. It also reaches the targeting of the West as a perceived obstacle to the realization of Islamic and Islamic-law aims, and it highlights the issue raised by Laski and others who wrote of political pluralism and of alternative loyalties to church and trade union. [FN13]

Open wounds and unsettled grievances in many parts of the world relate to historiography, recent and ancient, real and imagined. Claims for redress may be buttressed by principles of law that are obscure to the uninitiated but which to their proponents define absolute rights and entitlement to justice, and before which diplomacy is irrelevant and compromise impossible. The aim of this study is to highlight points of ambiguity, doubt, dissimulation and dissent among Muslim jurists and writers and to review some principles of Islamic law as they conflict with external jurisprudence. Two particular issues flow from the “Islamic land” discourse: sovereignty over territory and the nature of governance over Muslims, specifically the accusation by Islamists that particular Arab and Muslim governments are dependent upon and responsive to Western interests rather than Muslim authority and Muslim values. As these issues have been aired, the Palestine-Israel dispute has become an expedient focus for Arab and Muslim grievances and a venue for intellectual and physical struggle between dar al-Islam and dar al-harb. Other areas of dispute such as Kashmir, Chechnya and Mindanao do not evoke the same, Western, adversary nor capture the imagination and attention of both the Islamist tendency and the worldwide Muslim masses.

In this article an attempt is made, without any pretense of exhaustiveness, to seek the roots of these conflicts in early Islamic and modern Islamist argument regarding Muslim land and community.

Waqf

Waqf, the Islamic system of pious trust in its three variants, religious, philanthropic and familial, is intrinsic to the Muslim systems of wealth management and charity, [FN14] including the avoidance of normal rules of succession. *57 It, and taxes, were the means of financing jihad and the expansion of the faith. It has come to be accommodated in virtually all societies where substantial numbers of Muslims reside. [FN15] The colonial experience left a substantial case law and legislation dealing with its conflicts with established Western concepts. [FN16] Removal of land from the market in perpetuity in the nature of mortmain has economic consequences that have led repeatedly to governmental control [FN17] or seizure. [FN18] This is not a new problem:

The growing needs of States, either to finance wars or to achieve economic, political and social reform dealt decisive blows to the waqaf: the Ottoman Empire and Egypt imposed greater and greater levies on these institutions to meet budget deficits, depriving at the same time those sectors which most resisted change imposed by central government: the ulemas, the brotherhoods and the Janissaries. [FN19]

In Muslim theology, waqf land may be exchanged for other, comparable property, but it is supposed that income will continue to be devoted to charitable or pious purposes forever. The concept has been sought application in respect of the totality of Israel and Palestine to justify claims for political status as well as in a purely legal sense; one might in fact see a parallel in the claims of certain Zionists to “all of Judea and Samaria” and the Israeli support of settlements in the West Bank and Gaza. The Islamist contention propounded by Hamas and others is that since “all of Palestine is Islamic *58 waqf” [FN20] it is inalienable outside the Muslim community. The assertion is founded upon a proposition that territory conquered in jihad becomes waqf land. The source is the recorded opinion of the Second Caliph, Umar Ibn al-Khattab upon the conquest of Syria and Iraq, [FN21] and the tradition:

If the Imam distributes the lands amongst those who captured them, they become ‘ushr lands, and their previous owners become slaves. If he does not distribute the lands but leaves them in whole, as a trust to the Muslims, then the poll-tax lies on the necks of their owners, who are free, while their lands are charged with kharaj tax. [FN22]

Yet this is far from a clear justification for the Islamist characterization of Palestinian land and could in any event likewise be said of other parts of the early “territory of Islam” . What is known of the peace treaties concluded at the time of the capture of Jerusalem and Syria in the Year 15 is inconclusive. Thus, the letters to the peoples promise that “[n]either they, nor the land on which they stand, nor their cross, nor their property will be damaged.” [FN23] Ifran Mahmud Raana, in his treatise on Umar’s political economy, underlines Umar’s concern to abolish “absentee landlordism” and says that in Syria he “declared all land as public property and left it to the former cultivators on payment of a certain sum annually as land revenue (kharaj). Thus all the lands in Saward, Mesopotamia, Syria and Egypt were declared as public lands which could not be bought and sold.” [FN24] Yet if the latter is deemed to comprise waqf then one might ask why that status should be attributed only to the lands now constituting Palestine and Israel and not to the other conquered lands mentioned. Without prejudice to further research into the subject, the Hamas argument is tenuous, particularly in view of the subsequent history of land use and transmission in the region and the subordination everywhere to civil land law of historical, religious and mythical claims. It does merit further scholarly attention, however, because of its acceptance by many Palestinians and the existence of early material that might shed further light *59 on the question when placed in context. Abu’l-Hasan al-Mawardi discussed the “different statuses of the regions” in his treatise on the laws of Islamic Governance in terms that suggest lack of a 5th Century consensus. [FN25] In matters relating to political Islam and in the absence of clear early authority, doctrinal accuracy may be less influential than popular perception; scientific accuracy less than invented orthodoxy. [FN26]

The relevance to diplomacy and modern courts of ancient Islamic political theory that dates from the Caliphate and has not been subject to rethinking until modern times may be open to question. Claims to territory grounded in religion and in conquest encounter two obstacles beyond those recently established in international law: first, potentially competing claims based on other, conflicting religious doctrine; second, pre-emption by earlier or later conquest. Further, if title or sovereignty over territory cannot today be gained by conquest, [FN27] under what conditions should the validity of title acquired by conquest pre-dating such rule be questioned? And under what circumstances may objection to violent acquisition of sovereignty be waived by treaty or pre-empted by international instrument? Answers to these questions are relevant to many of the border changes of the post-World War II period as well as more recent ethnic disputes. Arcane arguments based on chain of title and power to convey sovereignty lose their force with passage of time, although they may be sufficient to fire the imagination and anger of those sympathetic to the aggrieved and their successors. The Hamas argument goes to the right of the State of Israel to exist and to dictate anything in relation to rights over land. Elihu Lauterpacht wrote that “[t]he right of a State to exist flows from its factual existence–especially when that existence is prolonged, shows every sign of continuance and is recognized by the generality of nations.” [FN28] Mohamed Bedjaoui would counter that “the Arabs are certainly determined to destroy Israel as a state and a political entity established on an Arab *60 land,” [FN29] a phraseology which strongly suggests military, rather than diplomatic or legal argument or action. Bernard Lewis has written exhaustively on the past experience of Jews in Islamdom, [FN30] describing a status that the Jewish polity in Israel is unlikely to countenance as part of any settlement. In any event, an Islamic-law argument such as that based on the principle of waqf is scarcely likely to be entertained in a non-religious forum outside the Islamic world. Even from the standpoint of Islamic law, neither the argument nor the underlying facts are unquestioned or free from ambiguity [FN31] and there has been only limited research into the early history of waqf, an institution that developed in the post-Qur’anic period. [FN32]

Professor Moshe Gil judges that the most important tradition concerning the waqf . . . is that which preserved a saying allegedly uttered by the Prophet to Umar ibn al-Khattab: as Umar received land in Khaybar, the Prophet asked him to make this land habs, i.e., waqf, and use it as sadaqa: in shi’ta habasta aslaha wa-tasaddaqta biha. In simple, modern, terms we interpret this to mean that the title, or legal ownership, of the land should belong to the Muslim community, it having been declared habs. [FN33]

The Qur’an [FN34] and treatises on jihad [FN35] address the issue of booty and its division among the Muslim victors without confirming the notion that conquered lands should become waqf or that any particular territory should be treated *61 differently from any other, Palestine from other former Ottoman lands. It might be presumed from historical experience that the land of conquered peoples who accept Islam and thus become part of the dar al-Islam would be exempt from attribution of waqf rules through conquest. Other mixed territories including India, Lebanon, and various countries of sub-Saharan Africa, have evidenced the tension of a universalist Islam competing with proponents of secular governance. Here, conquest was “incomplete”; there was a heterogeneous population and more pragmatic rules applied. [FN36]

The claim of waqf immutability and inalienability [FN37] in support of the Muslim argument for title to all of Palestine seeks to defeat Israeli claims of right (to any or all land under Israeli control) based on Security Council resolution, [FN38] international recognition, settlement, conquest and purchase. The further argument, largely independent of that based on waqf, contests retention of land seized in battle in the modern era and rejects Israeli sovereignty on that account, although the prior, adverse claim is, itself, based on (ancient) spoils of war. [FN39] As sovereign title to virtually all the world’s land is based upon settlement, discovery, conquest or treaty at some particular date, and as rejection of border changes by force of arms is recent [FN40] and subject to exceptions of pragmatism and expedience, [FN41] it does not appear that reliance on a still-developing international-law rule assists analysis in the case of Palestine as it would depend on retroactive application. [FN42] Muslim as well as *62 mixed states have asserted the power to alter vested waqf rights, and ultimately proponents of the “Palestine as waqf” argument must first effectively challenge Israeli sovereignty itself if that country’s right of eminent domain is to be denied–a circular argument.

Israeli law does recognize the institution of waqf in its traditional role as charitable trust and as custodian of religious sites, but waqf land had been subject to seizure as any other under the absentee property laws. [FN43] The Israeli government and judiciary have often defeated Arab land claims as part of a consistent policy of bias against Muslim land ownership and control and in favor of hebraicization of land and society. [FN44] Such statutory and judicial bias is scarcely unique to the Palestinian context [FN45] and the use of the device of “constructive abandonment”, broadly construed, as criterion for divestiture of title to achieve political aims has been seen elsewhere. [FN46] Inevitably the published analyses tend more towards advocacy than dispassionate conclusion based on consensus norms. It is not obvious that any middle ground exists on the issue of property rights and sovereign control, which returns the issue to the political arena if some compromise, such as division of sovereignty [FN47] or a *63 secular state free of any religious-based law or governance, [FN48] is to be found. The waqf argument, then, would appeal to those otherwise convinced of the correctness of an exclusively Muslim or Arab control of Palestine, and is used in support of the claim of inalienability of title. It is unlikely to influence those with real power and control over the territory and the secular law. That the issue is a matter of sovereignty, military capacity and politics rather than philosophy and legal theory is suggested by the fact that land purchased by the Jewish National Fund is held, in principle, in perpetuity in the name and for the use of “the Jewish people” [FN49]: the reciprocal of the waqf argument.

Jihad

The argument for Palestine as waqf depends upon on the territory’s ancient conquest in jihad. Much of the debate on jihad concerns the distinction between “greater” and “lesser” jihad–i.e., whether it necessarily involves confrontation with dar al-harb or whether the major battle is with spiritual hindrances rather than unbelievers. [FN50] A good part of this is dissimulation and Alfred Morabia, in his treatise on jihad, finds it a “false quarrel”: “each deprives jihad of its evolved perspective, in refusing to see in it the military force of the umma against all that stands in the way of its march forward. And this is not always the ‘infidels’–far from it.” [FN51] The latter comment reminds us of the aggressive internal dissent and the philosophy for which Sayyid Qutb was put to death by the Egyptian government: that “[h]ukm, power to legislate, belongs only to God . . . whoever claims to possess it will in fact be denying God one of His fundamental rights . . . [and] is clear *64 apostasy beyond any doubt.” [FN52] Similarly aggressive interpretations of a politicized Islam were put forth by Sayyid Mawdudi in Muslim India, and, from a Shiite perspective, Ruhollah Khomeini (1902-1989) in Iran. For Qutb, exponent of the Muslim Brotherhood, jihad was a permanent situation of armed conflict. He argued that while strategic compromise may be necessary where the Islamic community is the weaker party, the ultimate focus must be a struggle against the jahiliyyah (using the term for the pre-Islamic time of ignorance) surrounding Muslims even today and even at home.

Since the objective of Islam is a decisive declaration of man’s freedom, not merely on the philosophical plane but also in the actual life, it must employ jihad. It is immaterial whether the homeland of Islam–in the true Islamic sense, dar al-Islam–is in a condition of peace or whether it is threatened by its neighbors. When Islam calls for peace, its objective is not a superficial peace requiring only that the part of the earth where the followers of Islam are residing remain secure. The peace of Islam means that din (i.e., the law of the society) be purified for Allah, that all people should obey Allah alone, and every system that permits some people to rule over others be abolished. [FN53]

The new Twentieth Century political Islam claimed a purist, literalist ancient Islam for its own while dismissing early sources and conclusions that failed to support its political aims. Islamists’ politics related not just to their own lands, or even the umma, but to all the world’s population, expressing the universal vocation of Islam. Their populist arguments were based on a selective reading and strained interpretation of the early Islamic scholars, notably Ibn Taymiyya. [FN54] The uncontrolled aggression in support of which particular scholars may interpret the law, the nature of any fatwa decreed and the targets of their campaigns may be incidental to an overall political and religious agenda. Islamist enlistment of shari’a seems to be a matter of advocacy and justification and the underlying argument lacks rigorous analysis. Particular schools of thought, including the Deoband School [FN55] and the Wahhabi/*65 Salafist movement [FN56] and their followers, [FN57] have accepted and promoted the most aggressive interpretations of Islamic law including the rules of jihad, and a certain bellicosity and confrontation are inevitable; terror merely another tactic of unfettered struggle. Yet not all scholars find support in ancient documents for an expansive and hostile definition of jihad and treatment of non-members of the community. [FN58] Particular movements, it is argued, have grounded political ideology on spurious theology. [FN59] However, so long as a selective and literalist interpretation of Islam is accepted by significant numbers of non-activist (or passive, modernized) Muslims as the “correct” or “ideal” and orthodox religious norm, anti-Western activists will have a ready source of moral and material support. [FN60]

Religious doctrine is rarely a defense to criminal prosecution, domestic or international, [FN61] nor to noncompliance with treaty obligations. Yet, a number of states which declare shari’a to be paramount national law have ratified treaties which fix norms that they now say are inconsistent with (and therefore inapplicable in the context of) religious norms. In some cases, but not always, reservations highlight the discrepancy. [FN62] There may be a genuine *66 conflict of laws. Here is the essence of the dual allegiance problem: it is not unknown for governments to claim the loyalty of their ressortissants living abroad, including nationals of the host country. [FN63] This creates a particular problem where such a government supports the implementation abroad by private parties of a death sentence pronounced by religious authorities, as in the Salman Rushdie affair. In the non-criminal context ordre public that refuses recognition to status may fail to be applied where the conduct or status in question, typically polygamous marriage, has its effects outside the jurisdiction. [FN64] Western norms scarcely any longer allow critical review of allegiance beyond the obligations of citizens and residents relating to taxation, military service and treason. [FN65] The essence of jihad, however, would seem to imply a continuing struggle to supersede, or to overthrow, Western norms from inside and outside; but a Western response would need to be predicated upon some overt act, an incitement to criminal activity. This is part of the asymmetry of human rights in matters concerning even the security of the state and especially where those rights touch upon freedom of thought and *67 expression. Some crime or knowledge of its undertaking or at least an administrative irregularity needs to be alleged to proceed against an individual known or believed to sympathize with the enemy. The potential response of the liberal state to political disaffection or to disloyalty by a minority group is limited. Mass denaturalization and expatriation is today impossible in the West. [FN66]

Sovereignty, the state, allegiance and personal status

Three characteristics of the Muslim-Western dialog have impeded rational discourse: the Islamic insistence that shari’a preempts any other source of law, [FN67] sometimes noted in reservations to treaties and constitutional provisions; official mistranslation of Arabic source material; [FN68] and revisionist history supported by confused references. [FN69] With respect to Palestine, there is on the Palestinian side an emphasis upon demands to right historical wrongs and a refusal to attribute relevance to de facto status. Western experience, Western institutions and Western solutions, alien to Arab tradition and to Muslim doctrine, are non-responsive to their demands. This is unsurprising: the concept of the modern state and its secular civil law system are themselves foreign to Islam, for which sovereignty is reserved to God, sole legitimate *68 source of legal authority and norms, [FN70] and believers constitute a single brotherhood. [FN71] Adherents of other recognized religions co-existed in Muslim-controlled territory only as dhimmi, sometimes precariously, with lesser status.

Until the modern era, arguably until the latter stages of the Ottoman Empire, civil and religious law were indistinguishable in Muslim countries. Nationality, unknown to Islam except as membership in the umma, could not exist in the European sense: [FN72] Islam sufficed for civil as well as religious bond. [FN73] Sovereignty was a divine reserve and could be possessed by no state; organs of a state could have no supreme power and functional parameters depended upon holy writ. [FN74] There inevitably developed tension between pan-Arab ideology founded in Muslim concepts and political reality. It began to be felt as religion gave way to politics in practical dealings with outsiders, and as European states began to claim vested interests in the Middle East, interests first defined in the capitulations. [FN75] The rights of non-Muslims within the Ottoman Empire came to be determined by secular law and not solely by the words of the Qur’an. [FN76] The law of January 19, 1869 [FN77] began the process of defining Ottoman nationality in modern terms and with a view to the avoidance of conflict of nationalities in respect of persons who might be claimed as their nationals by states beneficiaries of capitulations. [FN78] The westernization and laicization of status was completed with the promulgation of the Turkish nationality law of 1928. [FN79] Yet even today nationality, firmly established *69 in the practice of the governments of states successors to the Ottoman Empire and caliphate and of other predominantly Muslim postwar sovereign units, cohabits uneasily with shari’a jurisprudence and the Muslim, or Arab, solidarity it has commonly evoked. [FN80]

Paul Ghali, in his study of nationality in former Ottoman countries, juxtaposed a laicized Iraqi concept of nationality and the religious nationality concept of Ibn Saoud [FN81] which of all Oriental legislation, has remained the closest to Muslim law. Based in effect upon religious principles, it has shown itself welcoming to Muslims and gives substantial importance to filiation, by which the religion is supposed to be transmitted. It is inspired also by theories of perpetual allegiance, that Turkey had included in its law of nationality. [FN82]

Article 7 of its 1926 law would pronounce anathema the Hedjaz native who, without government consent, entered military service abroad: he would be subject to banishment. Ghali looked behind statutory drafting to take account of the fact that Saudi Arabia is entirely Muslim. Then as now, in Constitutional terms:
The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital. [FN83]
Citizens are to pay allegiance to the King in accordance with the holy Koran and the tradition of the Prophet, in submission and obedience, in times of ease and difficulty, fortune and adversity. [FN84]

If the Islamic concept of umma engendered resistance to the introduction of the civil-law notion of statehood and nationality after World War I, [FN85] following World War II independence and partition of India and the massive migration of Muslims to Western countries necessitated a re-evaluation by Muslims generally of what constituted the Islamic Nation. The implicit state of hostility with a dar al-harb would be logically incompatible for of members of a minority community of believers, citizens of a non-Muslim state.

*70 The disappearance of the institution of the Caliphate, the emergence of many Muslim States–articulated as Islamic (Saudi Arabia, Iran, Pakistan, Sudan, Afghanistan) or as secular democracies (Turkey, Egypt, Malaysia, Indonesia)–and the rapid globalization of the nation state as a result of decolonization have allowed many new terms to be invented within Muslim discourses on international relations. These are words like dar-ul-aman (house of order) and dar-ul-kufr (house of unbelief). [FN86]

Other nomenclature for distinguishing relationships between Muslims and non-Muslims included dar al-ahd (house of peace treaty), dar al-iman (house of true faith), all juxtaposed to ahl al-shawka, people in rebellion. One can detect from these concepts the constant reminder of difference and apartness; but it was accepted at least by some that a community of Muslims in the West could still be part of the dar al-Islam. Islam might, through its disdain of kingship and its procedures for appointment of a caliph or imam and its provisions for consultation be consistent, philosophically, with democracy; but one might question whether it could tolerate an outcome in any consultative or elective process that differed from the Islamic and Islamist ideal. [FN87] Ibn Taymiyya wrote of ikhtiyar, popular election of rulers, but in a sense that must be deduced from its context and times. Political and diplomatic affinity might be matters of convenience; again Taymiyya was influenced by his early experience of the Mongol invasion, and in a way that foreshadowed the disdain of Qutb (1906-1966) and Mawdudi (1903-1979) for Muslim rulers who compromised with their interpretation of antiquity he would find defects in their embrace of Islam (specifically, their failure to apply shari’a) sufficient to deem them kufr. Further, Islam demanded perpetual allegiance; and there could be conflict between the demands of Islam and those of a secular state, and more especially of a jurisdiction which does not admit of Islamic personal law. If apostasy by the Muslim is tantamount to treason, then even a tenuous link to the Muslim Nation may, in the mind of the believer, create obligations which could conflict with those to state of residence. A dual national may be charged with treason by one country for acts undertaken on *71 behalf of the other; [FN88] an expatriate remains under obligation to the country of nationality. [FN89]

The notion, most notably in traditional English [FN90] and Islamic [FN91] law, of nationality as allegiance serves to highlight its aspect as obligation. The more recent recognition of nationality as a human right has, in the light of judicial condemnation of Nazi expatriations and denaturalizations [FN92] led to attempts to restrain states’ capacity to revoke nationality unilaterally. [FN93] External limits on state freedom of action in this regard are however limited; [FN94] it is the giving of effect to that action transnationally that is principally in question. [FN95] In the territories of Israel and Palestine (i.e., the settlements) one may object to the use of religion as criterion for immigration and nationality, although that is *72 not unprecedented in law, [FN96] and even less so in fact. Not infrequently have countries divested emigrants and expellees of nationality [FN97] even to the point of rendering them stateless, although the Chagos Islanders [FN98] case may be an avatar of change at least insofar as mass denaturalization and expatriation is concerned. While it is questionable whether sovereignty depends upon external recognition for its existence, [FN99] widespread recognition may stabilize and reinforce it. The overthrow of a recognized state may so threaten the international order as to lead to foreign intervention, as in the case of Iraq’s invasion of Kuwait. Governments which supported the British defense of the Falklands invasion were similarly concerned not to allow as precedent a reward of sovereignty for armed aggression and conquest.

The operation of parallel Islamic or Arab notions of allegiance and ethnic solidarity is illustrated by its transposition into law in the provisional constitution of March 5, 1958 of the United Arab Republic: “Shall be considered as an ‘Arab Citizen’ any member of the Arab Nation, even if he does not reside in an Arab country and does not bear the nationality of any Arab State.” [FN100] This article reflects, however, a commingling of modern political ideas with those of Islam:

The notion of nationality did not exist in Islamic law; it did not exist because it could not exist: neither the person, as individual, subject of law, nor the State in the classic sense of the term, was considered or regulated by Islamic law. Only the concept of community, umma, covered, implicitly, the two notions.” [FN101]

*73 Still, it has had an echo elsewhere: “Any Arab habitually resident in Jordan for more than fifteen consecutive years may obtain Jordanian nationality if he renounces his original nationality by a written statement, provided his country’s law permits it . . . .” [FN102]

Thus Abd-el-Hakim could claim in 1902, “it is, in effect, Islam, that constitutes in some manner the common fatherland . . . of which Muslim States are only parts, and there has never been a diplomatic representation of one Muslim State to another”, an argument nevertheless rejected by the Seine tribunal. [FN103] Abd-el Hakim was trying to articulate a common status of members of the Muslim Nation, and specifically of the inhabitants of Morocco and Tunisia. The court ruled, however, that “the Treaty of Bardo further compromised Qur’anic law, subjected Tunisia to European international law and specifically established a Tunisian nationality.” [FN104] Professor Elgeddawy restates the point: Islam knows no nationality and there is not, consequently, any “Muslim nationality” . [FN105] Muslim countries have adopted Western notions of sovereignty and nationality to the degree necessary and convenient for participation in the world community of states. This was perhaps an inevitable result of the encounter between Muslim societies and Western political thought beginning in the late Eighteenth Century. [FN106] The loyalty of their present and former citizens may reflect, however, less the international-law aspect of nationality than the religious concept of membership in Dar al-Islam.

Notwithstanding (political) concern on the part of governments of Muslim states to legitimize their power by reference to Islamic doctrine and authority inherited or transmitted from the Prophet, in fact the enacted nationality laws of Muslim states, like those of all states, manifest secular state interests which may well be adverse to those of other countries, Muslim or not. Whatever a state’s pretensions with respect to perpetual allegiance, its coercive power can only be enforced abroad with the consent of other states, by voluntary compliance of individuals, by threat of force or by terror. Nationality was and is the only means that Arab states individually or collectively *74 could establish legal bonds with their citizens cognizable in international law. Laicization of nationality in the Middle East was inevitable following the collapse of the Ottoman Empire as independent states developed competing interests.

Laicization, however, went only so far. There remains an Islamic approach to territory and territoriality and a collective appreciation of the “Muslim world”: loss of Islamic territory is only with difficulty contemplated in Muslim thought. [FN107] On the other hand, international law has no answer to the question of whether open-market purchases of property by private parties, as distinct from governmental purchase from another state [FN108] or exchange by treaty, [FN109] can serve as a basis for change in sovereign title through self-determination of the inhabitants or otherwise. Furthermore, while recognition by other states may facilitate participation in international political and economic affairs, it is questionable whether recognition is relevant to the personal status of the inhabitants of the unrecognized state. [FN110] On the other hand, irregularities in the formation of a state and the incorporation of territory may detract from the state’s status as actor under international and diplomatic law, as in the cases of Rhodesia and the Turkish Republic of Northern Cyprus. Procedural defects, human rights violations and democratic deficit in incorporation of territory may be cured by passage of time. Governmental admissions concerning the diplomatic machinations leading to incorporation of Hawaii [FN111] into the United States and the repudiation of treaty obligations towards Native Americans [FN112] posed no threat to the established legal order and the sovereign prerogatives of the U.S. federal government. Those incidents occurred, however, long ago; the more recent forced incorporation by Indonesia of East Timor was unrecognized except by Australia and its subsequent independence had less to do with non-recognition than domestic Indonesian politics.

Arab grievances have included arguments on the invalidity of Israeli land purchases, seizures and incorporation, taking land out of Arab hands. It *75 was a Zionist aim to approach sovereignty through open-market purchases of land; [FN113] the Jewish National Fund was established following the Fifth Zionist Congress in Basel in 1901 for that purpose. The Fund [FN114] and various private interests [FN115] have undertaken land-purchase and construction projects, sometimes in competition with Arab-financed organizations engaged in similar strategic projects to influence the ethnic character of East Jerusalem neighborhoods. Overall within Israel and the Territories not only access to finance but both jurisprudence and administrative practice disadvantaged Arab inhabitants and brought about demographic change. [FN116]

The problems of addressing demographic changes, subsequent good-faith arms-length transactions, longstanding vested interests and offsetting reciprocal claims may overwhelm moral arguments. There are parallels with other population flights and property losses in ethnic conflicts, notably in Cyprus and the Balkans. The status of individuals and their descendants, involuntarily displaced, is equally unclear. Historically, individual hardship and ancestral grievances give way to national interests. Population movements [FN117] after World Wars I and II, the repeated displacement of persons at times of racial and religious strife in Asia and Africa and the transfer of population during the Cyprus crisis of 1974 have yielded no helpful legal rules. Nationality and “right of return” [FN118] constitute further thorny issues.

Beyond sovereignty and title to land, there is no international forum available to hear complaints about the definitional scope of a nation’s nationality *76 law, [FN119] even if other states are not bound to accept that determination (at least with respect to persons who did not acquire the nationality in infancy) for all purposes. [FN120] Greek practice between the end of World War II and 1999 was to revoke the Greek nationality of its ethnic Slav and ethnic Turkish nationals who resided abroad and whom it deemed had “abandoned” Greek domicile. [FN121] On the other hand, the decision of the Divisional Court, London in the Chagos Islanders case, [FN122] considering the situation of involuntary displacement of population as a deliberate act of state with the evacuated land kept vacant (except for Diego Garcia, leased to the U.S. military), held that nationality and residence rights (in the event, relating to former inhabitants of the British Indian Ocean Territory) could not be abridged and that the enforced absence from their land by the Islanders did not diminish their collective rights in respect of it. The argument over the nature of population movements into and out of Palestine, and from member states of the Arab League to Israel in 1947 and later, has found no consensus. [FN123] There is dispute over the circumstances of the post-1947 departure of refugees from Israeli territory [FN124] although the recent opening of archives may lead to some *77 consensus among independent historians. There remain problems with establishing a blanket rule that could be applied to refugees generally and a likely refusal of Israel to alter the character of the established state and its social order. As Yoav Gelber has said, hindering any settlement of the grievances of displaced Palestinians and their Arab supporters is the historical difference in treatment of refugees: while European displacement of ethnic groups has been permanent and European refugees have generally been resettled, previous war refugees in the Middle East commonly returned home at the end of hostilities. The European–and Israeli– expectation is compromise and concession; the Palestinian is “justice” without regard to compromise or counterclaim [FN125] and this without regard to issues of security. This underlines what, with regard to the occupied territories, Professor Weiler has called the “cleavage between legal norms and reality.” [FN126] Arguments on both sides tend to be tainted with polemic and theological arguments, neither of which have external juridical value. A further unresolved issue is whether the use of terror can lead to rights and, more specifically, whether concessions granted by states under duress may ever be vested. [FN127]

A review of the public legal argument reveals the inability to come to grips with the irreconcilable world views of the two sides; much of the record is tainted with error of fact and error of law. [FN128] The problem with many pronouncements of the U.N. General Assembly and the Committee on the Exercise of the Inalienable Rights of the Palestinian People is their apparent contrivance for the purpose of condemning Israel rather than to establish generally applicable equitable rules or to consider what is diplomatically feasible. [FN129] Another is the identity of the universe of persons within the meaning *78 of “Palestinian People” . [FN130] Parallel conflicts of national inclusion due to population movement exist at other sites of Muslim territorial controversy, including Cyprus and Kosovo. While most Arabs resident in Israel at the time of independence, and their descendants, possess Israeli nationality, there are several other categories of Palestinian Arabs: (1) residents of East Jerusalem who have elected Israeli nationality (about 8,000 in number), [FN131] (2) Palestinian nationals, documented by the Palestinian Authority under criteria established in Oslo II, (3) other Palestinian Arabs, resident in the West Bank and Gaza, possessing either refugee documents or Jordanian passports that do not denote citizenship, (4) stateless Palestinians resident in other countries, (5) natives of Palestine who have acquired the nationality of a foreign country.

It is worth pointing out the tension between “group rights” furthering the collective interests of the group as a whole, and individual rights including the right to dissociate oneself from the group. This is an issue addressed frequently with respect to indigenous peoples. [FN132] In the context of Palestine the maintenance of obstacles to integration and the perpetuation of poverty and refugee-camp living have furthered the interests of at least some political actors. Meanwhile, the departure from the Levant and Palestine of large numbers of Christians has altered the demography. [FN133] Individual migrants and their families have a right to opt for assimilation or to retention of their culture of origin; this is implicit both in European Union law [FN134] and international *79 refugee law [FN135] even if no state is obliged to accord its nationality to any particular individual. It is true whether they are classed as minorities or not. Still, given a new sensitivity as regards forced assimilation some classes of minorities have achieved recognition for their claim to retention of culture, language and religion. Specific commitments were made in the Minorities Treaties, [FN136] and domestic legislation and international human rights law have strengthened those claims. Such voluntary, if politically driven, action is exemplified by the Welsh Language Act, 1993 in Britain and the Native Hawaiian Family-Based Education Centers law and the Declaration of Policy with respect to Native American Languages [FN137] in the United States. However, recently-arrived immigrant groups, as aliens, would seem to lack a legal claim to state protection as minorities except insofar as anti-discrimination laws otherwise apply. The aspirations and group allegiance of each category may differ.

Arabs, including Palestinians, settled in the West have limited rights abroad to public subsidy in maintaining their ancestral identity. Entitlement to external aid for preservation as a distinct group is particularly unclear in respect of recent, voluntary movements of individuals who have made personal choices with a view to economic advancement and not as refugees. This is all the more so where the cultural group retains a stable existence in a country of origin. [FN138] Yet, such groups of migrants, one or two generations removed, may create a distinct hybrid culture within the receiving state that, itself, could be self-sustaining and in due course support a claim to certain moral rights, even that of preservation as a new, distinct community. This may be so of the Turks in Germany about whom there is a substantial literature. It has a possible echo also with respect to certain Europeanized and hence liberalized communities grown foreign to the culture of the country of *80 origin and, perhaps, less susceptible to irredentist tendencies developing there, arguably the case of many Algerians in France. There is a parallel argument for those who have been beneficiaries of political refuge based on facts of colonial history and independence conflicts, such as the Moluccans evacuated to the Netherlands in 1951 [FN139] and the Hmong evacuated to the United States from Southeast Asia following the Vietnam War. [FN140] The issue here is the responsibility of the state for a group that it has, in the past, co-opted for its own political and military purposes. Notably, there has been within the Palestinian rhetoric occasional reference to a potential similar obligation of Western nations towards Israeli Jews in the light of events between 1933 and 1948, although this rhetoric ignores the Jews who fled to Israel from Arab countries. Complicating the equation is the fact that the destination countries of most non-Arab migrants in the period prior to 1970 accorded nationality on the basis of jus soli: locally-born offspring would have local nationality. With the exception of Jordan, most countries of residence of Palestinian migrants did not allow many Palestinians to acquire their nationality.

Transplanting an alien group does not necessarily divert the allegiance of the group’s members to the new sovereign; [FN141] and indeed it implies no more than asylum and safe haven. That the state has an obligation to a group of aliens does not necessarily translate into a mutual wish for social and political integration. Such decisions are made based on a combination of social, economic, political and legal factors. Whatever the standards established in a relevant country for naturalization and for the grant of nationality to offspring of immigrants, it will be observed that persons of different national origin have differing propensities to exercise their option. Whether individuals have entered a country as asylum seekers, presumptively temporary residents, or under formal labor recruitment programs or by way of supra-national market integration, long-term stay inevitably reduces the chance of repatriation, particularly of offspring. A 1993 sociological study of Dutch naturalization motivations [FN142] shed some light on specific cultural aspects of nationality choices, especially with respect to nationals of Muslim countries. *81 Out of this study it appears that relevant elements of individual choice in naturalization decisions are: (1) eligibility for family reunification; (2) eligibility for social welfare benefits; (3) access to the benefits of European Union non-discrimination legislation; (4) residual family and cultural ties with the nationality of origin among generations born in the receiving country; (5) dual nationality rules in sending and receiving countries; (6) specific cultural implications of rupturing the link with the country of origin. The last category includes allusion to the status of the Muslim state as proxy for the Khilafa: Islam knows no state, but the state may claim to act its name and to demand the perpetual allegiance of the faithful. In that light, violation of Islam’s duty of allegiance is both treason and apostasy. There may well be a disparity between Islamic thought and the expectations of the Muslim or Arab community in the East and the true allegiance of the Westernized Muslim, citizen of a Western country.

Apostasy

Islam’s stringent prohibition on departure from the faith, and the penalties imposed, have meant that conversions are few and collective abandonment of Islam particularly rare. [FN143] Most dissociation of Islam with territory has been the result of population movements, notably in Europe. The classical Islamic imposition of the death penalty for apostasy [FN144] has been attenuated at particular times and in particular places. The Ottoman Empire, under pressure from the Christian West, came to tolerate instances of abandonment of Islam for Christianity. [FN145] Secular India, like the secular West, protects personal autonomy in matters of religion. [FN146] The mixed tribunals of a prior era also enforced freedom of conscience:
*82 The prohibition enunciated at a time now long past forbidding Muslims to abjure their faith under penalty of death can not be considered effective today in Egypt; especially since the promulgation of the country’s Constitution, which guarantees all the inhabitants of the territory absolute freedom of conscience, as a legal hindrance to freely converting from one religion to another . . . . [FN147]

Such liberty is, however, anathema to the classical Islamic regime given the shari’a equation of statal and religious allegiance. This has given rise to harsh sentences in the secular courts of such states. [FN148] Apostasy applies only to individuals who have accepted Islam or who are of Muslim paternity [FN149]; however, laws of blasphemy have been applied more broadly, indeed extraterritorially. To some extent they may be used to suppress, or to seek to suppress, dissent or divergence from the orthodox norm, and to reject compromise. [FN150] At least in principle, potential prosecution for apostasy may ground a petition for political asylum. [FN151]

Insofar as uncompromising, illiberal notions of religious hierarchy, preference and supremacy over norms common in non-Islamic jurisdictions are sought, recognition and enforcement in Western legal systems today are bound to come into conflict with ordre public. In a predominantly Muslim *83 country such as Egypt and Sudan, the norms of the “better religion” may be applied in conflict of laws cases as a matter of judicial interpretation. Aldeeb Abu-Sahlieh explains this: “According to Islam, religions are classed by degrees of preference as follows: Islam, Judaism, Christianity, Zoroastrianism . . . and in last place polytheists. The minor with one Christian and one Jewish parent is deemed Jewish.” [FN152] It should be noted that such a preference for the dominant religion of the ruling and judging class existed too in the imperial era, notably in relation to validity of marriage. [FN153] In general, the native of a colony, [FN154] of a protectorate, [FN155] of a mandate [FN156] or of a trusteeship territory [FN157] possessed a separate and inferior personal status.

It goes without saying that in addition to creating particular problems in cross-border child abduction cases such assignment of religion by the state ignores the conflict with Jewish law, under which religion is only acquired through the mother or by conversion; [FN158] but here we are concerned with the effects of Islamic public policy. This is illustrated by the Zoghby-Hallaq [FN159] *84 case. The Hallaq spouses, Greek Catholics married according to the rites of their faith, separated, and the daughter remaining with her mother. To avoid his child support obligations the father converted to Islam. The shari’a court awarded him custody of the child, declaring that the child must follow whichever of her parents professed the “better religion”, and that she risked learning from her mother elements of apostasy. The Greek Catholic court pronounced judgment in the opposite sense; the Egyptian Government was left to intervene. Although Law 462/1955 had suppressed shari’a courts, Egyptian civil courts scarcely changed the orientation of Egyptian law in the matter: Islamic norms would pre-empt any others in direct conflict with them, and the court adopted the shari’a decision. [FN160]

Canon law, [FN161] like Islamic law, punishes apostasy and to the degree that the state adopts religious law as its own, the objections of ordre public and fraude à la loi would seem to merge, disallowing resort to a rejected norm. Most Muslim and many African countries, following the patrilineal sense of Islamic and much customary law, have ignored the principle of gender equality that has elsewhere become an important factor in the assignment of nationality status. [FN162] It is excluded in Islam that a Muslim woman should, in the absence of his conversion to Islam, marry a non-Muslim man, or a Muslim man any but a Muslim woman or one whose religion possesses a scripture predating the Muslim era, i.e. a Christian or Jew, or a Zoroastrian. [FN163] As a result, one cannot expect to find case law of Muslim countries recognizing such marriages and their effects. On the other hand, Islamic courts, it appears, will not look behind conversions of convenience intended at validating *85 marriages, any more than they will do so with relation to divorces. [FN164] One may readily join the umma, but one attempts to leave it at one’s peril.

The recognition in particular laws, explicitly [FN165] or implicitly, [FN166] of Muslim solidarity and unified “citizenship” is a reflection of cultural and sociological fact [FN167] rather than legal rights actually afforded to those within its purview. It may reflect as well the concept, principal object of review here, of inalienability of Muslim land. The distinction between nationality of a dar al-Islam and of a dar al-harb has significant meaning to the Muslim migrant. [FN168] The law of the dar al-Islam but not that of the dar al-harb will implicitly recognize the religious distinction which, even if it is absent from the nationality code itself, must be inherent in the minds of those who interpret it. For this reason social fact melds into jurisprudence without being easily subject to objective analysis, although Elgeddawy and others have attempted to do so in the context of private international law.

It is beyond the scope of this study to do more than suggest in this connection that the relationship between Muslim migrants and Islamic states of origin differs from that of Muslim migrants with pluralist states of origin having large Muslim populations, such as India, Lebanon and Nigeria. For some the Muslim state may be a proxy for the Islamic Nation, and rejection of the claims of perpetual allegiance tantamount to apostasy may account for *86 reluctance by some migrants to seek the nationality of a non-Muslim state. [FN169] The 1995 study by Sahil and Ostby for EUROSTAT of European naturalizations showed different propensities to naturalize by migrants of different states of origin, but did not draw firm conclusions as to the reasons. [FN170] One can only note that there is an apparent reluctance of some migrants from certain states to sever links with the land of birth, and an apparent division of allegiance between economic interests in the receiving state and the economic and cultural-religious interests of the sending state. Such tendencies may be reinforced by both law and politics in the two states concerned. Western nations have responded variously with respect to naturalization and to grant of nationality at birth. Yet, the matter of allegiance in the sense of personal loyalty, linked in this case to religion, is one of human rights and personal autonomy for which no criticism is permissible. In the absence of judicial transparency in most countries of origin we may be left to make assumptions from statistics and to generalize from occasional insights in Western legal materials. [FN171]

Conclusion

Conflict between religious and civil law and activism to bring the latter into conformity with the former is scarcely unique to the Muslim experience. Neither is the perversity of democracy in matters of human rights and legitimacy of government, [FN172] an issue of some concern since increased reliance upon shari’a in the Islamic world is bound to produce greater conflict with the West: in private and public international law, human rights law and, indeed, refugee law. . . . [FN173] Insofar as Islam asserts a jealous territoriality and *87 its most politically active or politically successful adherents derive an anti-Western mission from shari’a, the foundation for that mission will be found among the legal principles discussed here. No higher norms, no jus gentium from outside shari’a will be admitted. Discourse is further limited by the fact that the development of those international law norms postdates by many centuries the freezing of shari’a norms. Views of Orientalists, [FN174] international lawyers and diplomats are scarcely likely to be seen as relevant by those whose convictions most need to be influenced. On the other hand, nothing impedes the introduction into Islamic practice of international cooperation and of new principles not inconsistent with accepted doctrine, including the criminal prosecution of terrorism. [FN175]

The law is, ultimately, founded upon consensus and upon acceptance of the juridical structure by which it is interpreted. Islam has long accommodated situations of military insufficiency and minority status by compromise and patience. Islamists have countenanced learning the scientific and technological discoveries of the West from non-Islamic sources until such time as qualified observant Muslim teachers are available. [FN176] Insofar as those elements that undertake terrorism find theoretical support in the principles discussed here, it may be that a universal commitment to treat terrorism as piracy could be effective. For that, however, the potential counter-weapon of oil may need to be neutralized: in the absence of an adoption of antitrust theory, no principle of international law will exist to counter a refusal to trade in oil promoted, should they control substantial sources of petroleum, by Islamic literalists committed to opposing Western presence in Muslim land.

The conundrum for the West is that just as there are those who would use the democratic process to extinguish democracy there are those would declaim human rights violations by others while themselves committing them. Militant Islamists, and indeed governments of Muslim states holding to Islamic perspectives of allegiance and apostasy, may demand the loyalty of expatriate Muslims. The 1951 Refugee Convention provides for an exception to refugee status in the case of violators of underlying Convention principles. [FN177] Constitutional norms are most at risk when the state and its institutions are under threat; this is the essence of the terror paradigm. The present *88 struggle is between the West and its “intrusive surrogates”, Israel and those perceived as client rulers, even if Muslim, in Arab land–and a disparate community including some in the Muslim diaspora with history and claims perhaps partly invented (in the sense of Benedict Anderson [FN178] and Ernest Gellner [FN179]), but a community solidified nonetheless in opposition and in frustration. That Islam may not have a precise, defined concept of Muslim land is unlikely to prevent use of the concept as a focus of resentment and reaction. Gelber correctly detects no real room for accommodation between those who claim vested interests and historical rights and those who seek a vaguely defined “justice” and who direct their anger most particularly against the West. [FN180] Repetitive use of terms such as inalienable, inviolable and divine may frustrate, as perhaps they are intended to, dialog and attempts at compromise. Revisionist history, an expansionist, doctrinal notion of Muslim land and abandonment to the extremist tendency within Islam of the task of defining foreign-policy issues leave little scope for Western and International law as they developed in the second half of the twentieth century. For those, “Islamic land” includes all of Palestine and all of Israel. Should that territory be regained other formerly Muslim lands, less urgent targets now, could be claimed.

Extremism within the Israeli polity completes the blockage. Within Israel, inherently discriminatory provisions disadvantage not only alien Palestinian Arabs but to a significant extent citizen Israeli Arabs in access to land, and effectively, to the full panoply of citizens’ rights. These may, at least, be negotiable as part of the democratic process as they are elements of civil, not religious, law. They have not heretofore been part of the Palestine discourse except implicitly, insofar as there is demand for repatriation of refugees and restoration of property. Muslim adherence to principles of infallible, unalterable shari’a: persistent jihad, irreversible waqf, punitive irtidad and a concept of sovereignty grounded in religion pose intractable problems for a West committed to personal autonomy and civil management of family relationships and property title, and opposed in general to perpetual trusts and religious intrusion in public affairs. To the extent that Islamic-law notions alien to Western understanding motivate not only Islamists but (if indeed they do) a silent majority of Arabs and Muslims, Western precedent, Western argument and International law norms seen as extensions of “Western” law lose force. The commonly accepted norms of human rights reject, *89 however, relativism and claim universality: to that degree they are equally as uncompromising as the dictates of shari’a. The Palestine conflict is in that light only a microcosm of the broader one between Islam and the West.


FOOT NOTES

[FNa1]. Andrew Grossman is a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Algiers and Geneva. He holds the degrees of B.A. in Economics (Clark), LL.B. (Columbia), M.A. in L.I.S. (University College London) .

[FN1]. Rania Maktabi, The Lebanese Census of 1932 Revisited. Who are the Lebanese?, 26 Brit. J. Middle E. Stud. 219 (1999). For an interesting comment about Rashid Rida’s argument that Lebanon and Syria were not part of the dar al-Islam, see Khaled Abou el Fadl, Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries, 1 Islamic L. & Soc. 141, 185 (1994).

[FN2]. Joseph Courbage, Reshuffling the Demographic Cards in Israel/Palestine, 28 J. Palestine Stud. 21 (1999). The CIA World Factbook 2001 reports the Muslim proportion of the population of the Gaza Strip as 98.7% and of the West Bank as 75% (inclusive of Israeli settlements).

[FN3]. Abdul Rahman Abbad, The Theology of the Land: An Islamic Perspective, 9/10 Al-Liqa J. 71, 75 (1997).

[FN4]. See Mahmood Monshipouri, Reform and the Human Rights Quandary: Islamists vs. Secularists, 41 J. Church & State 445 (1999); see also Natan Lerner, Group Rights and Discrimination in International Law (1991).

[FN5]. There are also tort law implications. See Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27 (D.D.C. 2001); Ungar v. Palestinian Authority, 153 F.Supp. 2d 76 (D.R.I. 2001); Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27 (D.D.C. 2001); Eisenfeld v. Islamic Republic of Iran, 127 F. Supp. 2d 1 (D.D.C. 2000); Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (D.D.C. 2000); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107 (D.D.C. 2000); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62 (D.D.C. 1998); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998); Doe v. Islamic Salvation Front, 993 F. Supp. 3 (D.D.C. 1998); Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 Am. J. Int’l L. 470 (1999); Richard K. Milin, Suing Terrorists and Their Private and State Supporters, N.Y.L.J., Oct. 29, 2001 at S1.

[FN6]. Khaled Hroub, Hamas: Political Thought and Practice 38 (2001).

[FN7]. See generally Sami Awad Aldeeb Abu-Sahlieh, Les mouvements islamistes et les droits de l’homme (1998) (selective and misleading use of Qur’anic verses). As one particular example, one must consider in each case whether a user of the term “occupied territories” is referring to territories occupied by Israel since 1967 or “all of Palestine” including the State of Israel.

[FN8]. Donna E. Arzt, Heroes or Heretics: Religious Dissidents Under Islamic Law, 14 Wis. Int’l L.J. 349 (1996) (discussing international human rights instruments).

[FN9]. Sayyid Qutb, Milestones 62 (1991).

[FN10]. See Ann Elizabeth Mayer, Law and Religion in the Middle East, 35 Am. J. Comp. L. 127 (1987), which argues that “[a]gainst a different historical background, the borrowing of Western law might not have become associated in the popular mind with Western imperialism, setting the stage for the contemporary association of Islamic law with nationalistic reactions to the former.”

[FN11]. This is not a new issue and it is scarcely limited to Muslims: In re Jensen, (1976) 67 D.L.R.(3d) 514 (Can.), 69 I.L.R. 194 (naturalization oath); Roncarelli v. Duplessis, [1959] S.C.R. 121 (use of public facilities); Watch Tower Bible and Tract Society v. Mount Roskill Borough, [1959] N.Z.L.R. 1236 (S.Ct.) (reversing finding of “subversive”); Walsh v. Lord Advocate, [1956] 3 All E.R. 129 (H.L. 1956) (conscription); Adelaide Company of Jehovah’s Witnesses v. Commonwealth, [1943] 67 C.L.R. 116 (Austl.) (prejudicial to conduct of war). For a case that did involve a Muslim, see In re Kassas, 788 F. Supp. 993 (M.D. Tenn. 1992) (naturalization refused to petitioner who would not “bear arms against an Islamic country”).

[FN12]. Specifically to Kashmir, where the issues relate to demands for Islamic governance and merger with a Muslim state (i.e., the “Islamic Nation”).

[FN13]. See Harold J. Laski, Law and the State, in Studies in Law and Politics 237, 246-47 (1932), reprinted in The Pluralist Theory of the State 197, at 205 (Paul Q. Hirst ed., 1989).

[FN14]. See Colin Imber, Ebu’s-su’ud: The Islamic Legal Tradition 139-63 (1997); Joseph Schacht, An Introduction to Islamic Law 125-26 (1986); Amy Singer, A Note on Land and Identity: From Ze’amet to Waqf, in New Perspectives on Property and Land in the Middle East, 161, 161-73 (Roger Owen ed., 2000); Jeffrey A. Schoenblum, The Role of Legal Doctrine in the Decline of the Islamic Waqf: a Comparison With the Trust, 32 Vand. J. Transnat’l L. 1191 (1999); Miriam Hoexter, Huquq Allah and Huquq Al-Ibad as Reflected in the Waqf Institution, 19 Jerusalem Stud. Arabic & Islam 133 (1995); Aapeli Saarisalo, The Turkish Waqf, 19 Studia Orientalia No. 10 (1954).

[FN15]. India: Mussalman Wakf Validating Act, No. 6 of 1913; Mussalman Wakf Validating Act, No. 32 of 1930. The North American Islamic Trust was established in 1971 by the Muslim Students Association of the U.S. and Canada to serve as umbrella organization for holding waqf assets of Islamic communities in North America. Four awqaf (or charities recorded as such) appear among the organizations registered with the Charity Commission for England and Wales.

[FN16]. E.g., Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry, (1894) 22 I.A. 76 (P.C.).

[FN17]. Thus East Pakistan State Acquisition and Tenure Act 1950 (Act XXVII of 1951) (control of land rents); Province of East Pakistan v. Mehdi Ali Kahn, [1958] 10 D.L.R. 96 (Can.); Jibendra Kishore v. Province of East Pakistan, P.L.D. 1959 S.C. 387 (Pak.) 9; Muhammad Nazmul Hoque, Critique of the Law of Waqf in Bangladesh (1982) (unpublished thesis, School of Oriental and African Studies) (on file with author).

[FN18]. Timur Kuran, The Provision of Public Goods under Islamic Law: Origins, Contributions, and Limitations of the Waqaf System (2001) (unpublished Research Paper No. C01-13), (on file USC Center for Law, Economics & Organization); Decree of 1854 of Mehmet Ali, Pasha of Egypt 1806-1847.

[FN19]. Le waqf dans le monde musulman contemporain (XIXe-XXe siècles) 11 (Faruk Bilici ed., 1994) (author’s translation).

[FN20]. Covenant (Mithaq) of the Islamic Resistance Movement, Aug.18, 1988, (Hamas Covenant), art. 11; Andrea Nüsse, Muslim Palestine: The Ideology of Hamas 47-48 (1998) (citing Filastin al-Muslima, April 1990 at 25).

[FN21]. But see also Imad ad-din al-Isfahani, Conquête de la Syrie et de la Palestine par Saladin 92-101 (Henri Massé trans., 1972) (conquest of Jerusalem in 1187 C.E.).

[FN22]. A. Ben Shemesh, Taxation in Islam 24 (1965) (translation of Part 7 of Qudama ben Ja’far (d. circa 932), Kitab al-Kharaj); Paul L. Heck, The Construction of Knowledge in Islamic Civilization: Qudama b. Ja’far and his Kitab al kharaj wa-sina’at al-kitaba (2002).

[FN23]. 12 Muhammad ibn Jarir Tabari, The Battle of al-Qadisiyyah and the Conquest of Syria and Palestine 191 (Yohanan Friedmann trans., 1992).

[FN24]. Ra Ana Irfan Mahmud, Economic System Under Umar the Great 12-14, 85 (1977).

[FN25]. Abu’l-Hasan al-Mawardi, Al-Ahkam as-Sultaniyyah [The Laws of Islamic Governance] 227-51 (Asdullah Yate trans., 1996); id. at 248-49 (“Abu As’ id al-Astakhri among many others, is of the opinion that ‘Umar, may Allah be pleased with him, made [the Sawad] a waqf for all the Muslims and left it in the hands of its (previous) owners in return for the kharaj, imposed as a mark of their (temporary) purchase and paid as a kind of rent every year, although the period was not stipulated on account of the general interest involved”). The Sawad (“black”) refers to part of Iraq.

[FN26]. Emmanuel Sivan, Radical Islam: Medieval Theology and Modern Politics (1985).

[FN27]. Ian Brownlie, Principles of Public International Law 138-45 (4th ed. 1990); Nguyen Quoc Dinh et al., Droit international public §§ 317-321 (5th ed. 1994); see also U.N. Security Council Res. 242, Nov. 22, 1967 (“Emphasizing the inadmissibility of the acquisition of territory by war …”).

[FN28]. Elihu Lauterpacht, Jerusalem and the Holy Places 19 (1968).

[FN29]. Seminar of Arab Jurists on Palestine, Algiers, Jul. 22-27, 1967, The Palestine Question 203 (1968).

[FN30]. Bernard Lewis, The Jews of Islam 189-90 (1984) (“conversion of the Arab Jews to Zionism was a direct result of persecution”); cf. Yusuf al-Qaradowi, Non-Muslims in the Islamic Society (1985).

[FN31]. On internal conflicts and ambiguity in the sources of Islamic law, see Mir Wali Ullah, Muslim Jurisprudence and the Quranic Law of Crimes 3-39 (1982).

[FN32]. Joseph Schacht, Early Doctrines in Waqf, 60 Dogum Yili Münasebetiyle Fuad Köprülü armagani 444 (1953); C. Cahen, Réflexions sur le waqf ancien, 14 Studia Islamica 38 (1961).

[FN33]. Moshe Gil, The Earliest Waqf Foundations, 57 J. Near E. Stud. 125, 126 (1998); cf. Sahih Muslim, Book 13, “The Book of Bequests” (Kitab Al-Wasiyya), Book 013, No. 4006: “Umar acquired a land at Khaibar. He came to Allah’s Apostle (may peace be upon him) and sought his advice in regard to it…..”

[FN34]. Qur’an, 8:39-42.

[FN35]. See Bassam Tibi, War and Peace in Islam, in Islamic Political Ethics 175, 179 (Sohail H. Hashmi ed., 2002) (“The current dissention about the concept of jihad dates from the rise of political Islam and the eruption of sectarian religious strife.”); Reuven Firestone, Jihad: The Origin of Holy War in Islam (1999); Rudolph Peters, Jihad in Classical and Modern Islam (1995); Alfred Morabia, Le gihad dans l’Islam medieval: le “combat sacré” des origins au XIIe siècle (1993); Majid Khadduri, War and Peace in the Law of Islam (1955); al-Mawardi, supra note 25, at 57-97.

[FN36]. Khaled Abou El Fadl, Muslim Minorities and Self-Restraint in Liberal Democracies, 29 Loy. L.A. L. Rev. 1525 (1996).

[FN37]. The constant juxtaposition of “inalienable” with “rights of the Palestinian people” would appear to be a politico-diplomatic, rather than a juridical, statement to the extent that the Israel-PLO Agreement signed at Washington, Sept. 28, 1995 (“Oslo II”) constituted an attempt to compromise the claims of those same rights in exchange for eventual sovereign recognition and other benefits. For an analysis of Oslo II, see Yoram Dinstein, The International Legal Status of the West Bank and the Gaza Strip–1998, 28 Isr. Y.B. Hum. Rts. 37 (1999). “Inalienable” has also been used to describe the right of the inhabitants of East Timor to self-determination, U.N. Security Council Resolution No. 384, Dec. 22, 1975 1869th mtg.

[FN38]. U.N. Security Council Resolution No. 242, Nov. 22, 1967 1382nd mtg.; No. 338, Oct. 22, 1973 1747th mtg.

[FN39]. Battle of Yarmouk, Aug. 2, 636. The legitimacy of the Turkish Republic of Northern Cyprus has not entered this discourse although it has been argued at length elsewhere.

[FN40]. Gary Goertz & Paul F. Diehl, Territorial Changes and International Conflict 3-56 (Ch. 2, “A Territorial History of the International System”) (1992); compare comments of Chief Justice Taney in Fleming v. Page, 50 U.S. 603 (1850) and J.J. Burlamaqui, The Principles of Politic Law, Pt. IV, Ch. VIII (1748).

[FN41]. Case concerning East Timor (Portugal v. Australia), 1995 I.C.J. 90 (June 30) (Australia having recognized Indonesian annexation of East Timor).

[FN42]. Compare Julius Stone, Israel and Palestine: Assault on the Law of Nations (1981) and Henry Cattan, Palestine and International Law (1973). See also Sharon Korman, The right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996).

[FN43]. U.N Conciliation Commission for Palestine, Absentee Property Law 5710-1950 (5710 No. 20, 4 L.S.I. 68) and amendments (5711 No. 29, 5 L.S.I. 64; 5716 No. 23, 10 L.S.I. 31; 5725 No. 23, 19 L.S.I. 55; 5727 No. 51, 21 L.S.I. 136; 5727 NO. 52, 21 L.S.I. 136); and see Alisa Rubin Peled, Towards autonomy? The Islamist movement’s quest for control of Islamic institutions in Israel, 55 Middle E.J. 378 (2001); Nachman Tal, The Islamic Movement in Israel, 2 Strategic Assessment 6 (Jaffee Center for Strategic Studies, Tel Aviv University), Feb. 2000, available at .

[FN44]. Alexandre Kedar, The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948-1967, 33 N.Y.U. J. Int’l L. & Pol. 923 (2001); Question of Palestine: Legal Aspects (Document 4), A compilation of papers presented at the United Nations seminars on the question of Palestine in 1980-1986 (UN Doc. 1992); David Kretzmer, The Legal Status of the Arabs in Israel 49-76 (Ch. 4, “Control of Land”) (1990); Daniel Williams, Another Arab Population Grows Angry at Israel, Washington Post, Mar. 20, 2002, at A23 (Bedouin land claims); Oren Yiftachel, “Ethnocracy”: The Politics of Judaizing Israel/Palestine, 6 Constellations 364 (1999) (settler society ethno-nationalism).

[FN45]. Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110 Yale L.J. 549 (2001) (intestate succession, partition action, land speculation have diminished Black ownership of agricultural land in the U.S.A.).

[FN46]. Thus, Algerian Ordinance No. 62,020 of Aug. 24, 1962 concerning the protection and the management of vacant properties.

[FN47]. Compare, e.g., Agreement between the Government of Great Britain and Northern Ireland and the Governement of Ireland, April 10, 1998, U.K.-Ir., especially art. 1(vi) (The two Governments “recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both”).

[FN48]. But see Izhak Englard, Law and Religion in Israel, 35 Am. J. Comp. L. 185, 204 (1987) (noting that secular Zionists have concurred in reception of traditional Jewish law as a matter of “national renaissance”).

[FN49]. Basic Law: Israel Lands, 5720-1960 No. 31, July 19, 1960, 14 L.S.I. 48 and Israel Lands Administration Law 5720-1960, No. 33, July 25, 1960, 14 L.S.I. 50. Cf. Jordanian law of 1973 “for Preventing the Sale of Immoveable Property to the Enemy”, (repealed as to Jordan by Law of 1995) applied also by the Palestinian Authority to land under their control (Human Rights Watch Report v. 13, No. 4, Justice Undermined: Balancing Security and Human Rights in the Palestinian Justice System at 24 (2001)). For prior law see Abraham Granott (Granovsky), The Land System in Palestine (1952).

[FN50]. See, e.g., Abu Fadl, Greater and Lesser Jihad, 26 Nida’ul Islam (1999), available at .

[FN51]. Alfred Morabia, Le Gihad dans l’Islam medieval 337 (1993) (informal translation). Compare Abul Ala al-Mawdudi, Tafhim al-Qur’an [Towards Understanding the Qur’an, 1988] 169 (1950) (Jihad is not qital (war); it has wider connotations embracing every kind of striving in the way of Allah).

[FN52]. Quoted and translated in Bustami Muhammad Khir, Concept of Sovereignty in Contemporary Islamic Movements, 1 Encounters 5, 22-23 (1995).

[FN53]. Qutb supra note 9 at 51; Robert Worth, The Deep Intellectual Roots of Islamic Terror, N.Y. Times, Oct. 13, 2001, at A13 (“A minority Islamic tradition with a wide following and a deep history.”)

[FN54]. Umsalama Muhammad Salih, The Political Thought of Ibn Taymiyya (1980) (unpublished thesis, Edinburgh); Sivan, supra note 26 at 21-28, 94-102 (“The genius of Qutb consisted in his grounding his argument in the thought of a prominent medieval thinker, Ibn Taymiyya (1268-1328), and of some of his votaries, through an act of ‘creative interpretation,”‘ Id. at 94).

[FN55]. Barbara Daly Metcalf, Islamic Revival in British India: Deoband, 1860-1900 (1982); Celia W. Dugger, Indian Town’s Seed Grew Into the Taliban’s Code, N.Y. Times, Feb. 23, 2002, at A3; Julian West & Jo Knowsley, British Muslims Ordered to Adopt Taliban teachings, Sunday Telegraph (London), July 27, 1997, at 13 (Deoband adherents, 20% of Britain’s 1.5 million Muslims, “given to issuing fatwas … regulating tiny details of behaviour”).

[FN56]. Nawaf E. Obaid, The Power of Saudi Arabia’s Islamic Leaders, 6 Middle East Quarterly 51, (1999); Usha Sanyal, Are Wahhabis Kafirs? Ahmad Riza Khan Barelwi and His Sword of the Haramayn, in Islamic Legal Interpretation 24 (Muhammed Khalid Masud et al. eds., 1996). On the Salafiyya, see Michael Scott Doran, Somebody Else’s Civil War, 81 Foreign Affairs, Jan.-Feb. 2002, at 106 published by the Council on Foreign Affairs.

[FN57]. Robert Irwin, Is This the Man Who Inspired Bin Laden?, The Guardian (London), Nov. 1, 2001, sec. G2, at 8.

[FN58]. Abou el Fadl, supra note 1.

[FN59]. Gilles Kepel, Jihad: The Trail of Political Islam 23-42 (Anthony F. Roberts trans., 2002).

[FN60]. Peter Ford, Listening for Islam’s Silent Majority, Christian Science Monitor, Nov. 5, 2001, at 1. Thus: Executive Order 13224: Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49079, Sept. 23, 2001.

[FN61]. Lawrence Rosen, The Justice of Islam: Comparative Perspectives on Islamic Law and Society 200-15 (2000), Ch. 12, “Islam and Islamic culture in the courts of the United States”; Michael Detmold, Provocation to Murder: Sovereignty and Multiculture, 19 Sydney L. Rev. 1 (1997). A defense of shari’a is scarcely of help in a prosecution for terrorist activity, e.g.: United States v. Bin Laden, 92 F. Supp. 2d 225 (S.D.N.Y. 2000); United States v. Salameh, 152 F.3d 88 (2d Cir. 1998); People’s Mojahedin Organization of Iran v. Department of State 182 F.3d 17 (D.C.C. 1999). On religious defense to civil restraints and criminal prosecution, see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); United States v. Bauer, 84 F.3d 1549 (9th Cir. 1996).

[FN62]. Thus, the reservations and declarations of states signatories to the Convention on the Elimination of All Forms of Discrimination against Women. 1249 U.N.T.S. 13, No. 20378 (1981); and note U.N., International Law Commission, Report on the Work of its Fifty-third Session (2001), UNGAOR, 55th Sess., Supp. No. 10 (A/56/10), Chapt. 6, “Reservations to Treaties” . Article 24 of the 1990 Cairo Declaration of Human Rights, declares that “All rights and freedoms mentioned in this statement are subject to the Islamic Shari’a” .

[FN63]. President Mohammad Khatami, Speech to Iranian-Americans at the United Nations, (Sept. 20, 1998) (reported by the Associated Press, Sept. 20, 1998 at 4:25 p.m. EDT); Yucel Yesilgoz, Double Standard: The Turkish State and Racist Violence, in Racist Violence in Europe 179-93 (Tore Björe & Rob Witte, eds. 1993); Charte nationale algérienne, 1976; Diasporas: A World of Exiles, Economist, Jan. 2, 2003, at 31.

[FN64]. France-Algeria Social Security Convention, 1298 U.N.T.S. 25, No. 23722 (1983), art. 42; Baaziz v. Baaziz, Cass. 1e civ., Feb. 17 1982, 72 Rev. crit., 1983, p. 275, note Lequette (Fr.), 110 Clunet 606 (1983), note Kahn. (prosecution of Algerian for bigamy); Bambose v. Daniel, [1955] A.C. 107 (P.C., Nig.) (succession of children of nine wives of Nigerian); B v. B, & D v. C, Cass. 1e civ., Jan. 3, 1980 & Dec. 18, 1979, 1980 Dalloz. Jur., p. 549, obs. Poisson-Drocourt (Fr.); 107 Rev. du not. belge 514 (1981); R. v. Department of Health, ex parte Misra, Times Law Rep., Apr. 15, 1995; Estate of Bir, 83 Cal. App. 2d 256, 188 P.2d 499 (1948). For an exhaustive analysis, see Béatrice Bourdelois, Mariage polygamique et droit positif français (1993). For a case where the shari’a rule on child custody was displaced by African customary law see Cameroon Supreme Court, Case No. 2/L, Oct. 10, 1985, Juridis Info. 1991, No. 8, p. 53, obs. F. Anoukaha, comment Brigitte Djuidje, Pluralisme législatif cameroonais et droit international privé at 16 (1999). Cf. the doctrine of ordre public atténué in the enforcement of foreign judgments where the underlying law might, if the case were being decided on its merits, have conflicted with the enforcing jurisdiction’s public policy, 1 Henri Batiffol & Paul Lagarde, Droit international privé §§ 360-361 (8th ed. 1993); Bernard Audit, Droit international privé §§ 309, 466 (1992); Yvon Loussouarn & Pierre Bourel, Droit international privé §§ 259-261 (5th ed. 1996).

[FN65]. But see Act of Settlement, 1701 12 & 13 Will. III, c. 2 (Eng): the heir to the British throne may not be, nor marry, a Roman Catholic.

[FN66]. Cf. Co-operative Committee on Japanese Canadians v. Attorney General for Canada, [1947] A.C. 87. A total of 3,964 persons of Japanese race, including Canadian nationals, were deported from Canada beginning May 31, 1946; Klapprott v. United States, 335 U.S. 601 (1949) (a German American Bund case).

[FN67]. As to conflict of human rights norms, see John Strawson, A Western Question to the Middle East: “Is There a Human Rights Discourse in Islam?”, 19 Arab Stud. Q., Winter 1997, at 31 (“Western discourses on human rights have become increasingly bold during the last two decades in claiming an exclusive Western heritage for human rights, which, it is argued, is located in ‘Western civilization”‘); Abdelwahab El-Affendi, Islam and Human Rights: The Lessons from Sudan, 91 Muslim World 481 (2001) (“double standards are being applied”); Ann Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash With a Construct?, 15 Mich. J. Int’l L. 307 (1993); Yash Ghai, Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims, 21 Cardozo L.R. 1095 (2000).

[FN68]. Sami Awad Aldeeb Abu-Sahlieh, Les mouvements islamistes et les droits de l’homme 7-8 (1998).

[FN69]. Viz. Ambiguity in the use of the term “al Aqsa”, Qur’an, 17:1 (“to the remote mosque of which We have blessed the precincts”), the al Aqsa Mosque in Jerusalem having been constructed in 715 A.D; see Martin Gilbert, Jerusalem: A Tale of One City, The Competing Claims as Seen Through History, New Republic, Nov. 14, 1994, at 17. See also “On the Beginning of the Building of the Mosque al-Aqsa,” The Book of Arousing Souls, Charles D. Matthews, Palestine, Mohammedan Holy Land 2-4 (1949); and cf. Nüsse, supra note 20 at 39 and n. 100, citing also Filastin al-Muslima, July 1990, at 31.

[FN70]. Qur’an, 5:120, 39:6 (inter alia); Bernard Lewis, The Political Language of Islam 30 (1988); and see, e.g., Constitution of Iran of Oct. 24, 1979, art. 2. See, on the adoption by Hamas of the non-Muslim concepts of watan and wataniyya (nation and nationalism) Nüsse supra note 20 at 49, citing Hamas Covenant, art. 12; Hillel Frisch, The Case of Religious Emulation: The Nationalization of Universal Religious Doctrine in the Palestinian Fundamentalist Movement, 12 Middle East Focus, Fall 1990, at 18-25.

[FN71]. Qur’an, 49:10; Farooq Hassan, The Concept of State and Law in Islam 40 (1981); Hassan Afchar. “The Muslim Conception of Law”, The Different Conceptions of the Law, 2 International Encyclopedia of Comparative Law, The Legal Systems of the World: Their Comparison and Unification 84, 98-99 (1974).

[FN72]. Abdelouahed Belkeziz, La nationalité dans les Etats arabes 3-4 (1963).

[FN73]. Jean S. Saba, L’Islam et la nationalité 45 (1931).

[FN74]. Farooq Hassan, The Concept of State and Law in Islam, 36 (1981).

[FN75]. Jean S. Saba, L’Islam et la nationalité 65-80 (1931).

[FN76]. Hatti Cherif of Gul Hanné, Nov. 3, 1839, & Hatti Humayun of Feb. 18, 1856, reprinted in George Young, Corps de droit ottoman vol. 1 at 29 & vol. 2 at 3 (1905).

[FN77]. Text reprinted at 1907 Rev. du dr. internat. 27.

[FN78]. Pierre Arminjon, De la nationalité dans l’empire ottoman et spécialement en Egypte 14-67 (1903).

[FN79]. Law No. 1312, Resmi-Gazeta No. 904, June 4, 1928, M.E. Salem, La loi nouvelle sur la nationalité turque, 1929 Rev. du dr. internat. 25.

[FN80]. Louis Milliot, La conception de l’Etat et l’ordre légal dans l’Islam, 75 Rec. des cours 591 (1949 II).

[FN81]. Law of Sept. 24, 1926 in the Hejaz, now Western Saudi Arabia.

[FN82]. Paul Ghali, Les Nationalités detachées de l’Empire Ottoman à la suite de la Guerre 192 (1934) (informal translation).

[FN83]. Constitution of Saudi Arabia, Mar. 1992, art. 1.

[FN84]. Id., art. 6.

[FN85]. Abdelouahed Belkeziz, La Nationalité dans les États arabes (1963); Nawaf A. Salam, The Emergence of Citizenship in Islamdom, 12 Arab L.Q. 125 (1997).

[FN86]. M.A. Muqtedar Kahn, American Muslims and the Moral Dilemmas of Citizenship, Wash. Rep. Middle E. Affairs, May 2000 at 61; Gilles Kepel, Jihad: The Trail of Political Islam 185-204 (2002); Abou el Fadl, supra note 1 at 52 .

[FN87]. See e.g., Abu-Hasan al-Mawardi, al-Ahkam as-Sultaniyyah [The Laws of Islamic Governance], (Asadullah Yate trans., 1996); Earl I.J. Rosenthal, Political Thought in Medieval Islam: an Introductory Outline (1962); A.K.S. Lambton, Islamic Political Thought, in Legacy of Islam 404 (Joseph Schact ed., 2d ed. 1974). On the Islamist vision of democracy, see Nüsse, supra note 20, 75-78.

[FN88]. Kawakita v. United States, 343 U.S. 717 (1952) (Japanese-American POW guard convicted of capital treason); Joyce v. Director of Public Prosecutions, [1946] A.C. 347 (Eng.) (conviction under the Treason Act, 1351 for participation in Nazi propaganda activities); In re Mittermaier, Cass. ital., 2 May 1946, 13 Ann. Dig. 60, 69-I Foro italiano 137 (1944) (conviction for treason; option for German nationality under the Treaty of St-Germain did not divest the accused of his obligation to Italy).

[FN89]. Blackmer v. United States, 284 U.S. 421, 437 (1932) (Writ of certiorari; fines imposed on a U.S. citizen resident in France for disobeying a subpoena to testify in a criminal case); Albert Gouffre de Lapradelle, Affaire Henry M. Blackmer extradition (1929); United States v. Lansky, 496 F.2d 1063 (5th Cir. 1974).

[FN90]. R. v. Aeneas MacDonald, (1747) 18 St. Tr. 858.

[FN91]. Ottoman nationality code of Jan. 19, 1869, reprinted at 2 George Young, Corps de droit ottoman 223 (1905).

[FN92]. F.A. Mann, The Present Validity of Nazi Nationality Laws, 89 L.Q. Rev. 89, 194 (1973); Oppenheim v. Cattermole, [1976] A.C. 249 (H.L.); Allied Control Council (Kommandatura), Law No. 1 of Sept. 20, 1945 Official Gazette of the Control Council for Germany, 1945, No. 1, at 3; also Law No. 12 of Nov. 17, 1949, Official Gazette, No. 4, at 36 on the nullity of certain provisions of National-Socialist legislation relative to natives of France and Luxembourg.

[FN93]. Afroyim v. Rusk, 387 U.S. 253, 268 (1967).

[FN94]. Inter-American Court of Human Rights, Jan. 19, 1984, No. OC-4/84, Amendments to the naturalization provisions of the Constitution of Costa Rica Advisory Opinion, 5 Human Rights L.J. 161 (1984); Written question No. 788/90, O.J.E.C., Dec. 24, 1990, C 325, at 42. The Council again emphasized its incompetence in matters of the grant and withdrawal of nationality, even in the face of Community provisions on the free movement of citizens, in response to question No. 628/92, Jul. 3, 1992, O.J.E.C., Aug. 10, 1992, C-202/58.

[FN95]. Levita-Mühlstein v. Dépt. féd. de justice et police, Trib. féd., June 14, 1946, 72-I A.T.F. 407 (1946) and Rosenthal v. Eidg. Justiz- und Polizeidepartment, Trib. féd., Oct. 8, 1948, 74-I A.T.F. 346 (1948); and compare, on the revocation of Soviet nationality, Tcherniak v. Tcherniak, Trib. Féd. (2d Civ. Sect.), June 15, 1928, 54-II A.T.F. 225 (1928), 4 Ann. Dig. 62, 56 Clunet 208 (1929), note Noël-Henry, reasoning rejected in Lempert v. Bonfol, 60 Déc. de la Cour féd. suisse 67 (1934), 7 Ann. Dig. 290.

[FN96]. Vatican: Legge sulla cittadinanza ed il soggiorno, June 7, 1929, 21 Acta Apostolicae Sedis Supplemento 14 (1929), France: Ordonnance No. 62-825 of July 21, 1962 as modified, Journal Officiel, July 22, 1962 & July 11, 1965 (status of Français Musulmans).

[FN97]. E.g., Syria (Human Rights Watch, Memorandum to the UN Human Rights Committee, 57th Sess., Apr. 2001) and see UN Sub-Commission: The right of everyone to leave any country, including his own, and to return to his own country-final report prepared by C.L.C. Mubanga-Chipoya UN Doc. E/CN.4/Sub.2/1988/35 (June 20, 1988); Cf. Universal Declaration of Human Rights, Dec. 10, 1948, art. 15(2): “No one shall be arbitrarily deprived of his nationality”; UN Commission on Human Rights res. 1998/48, Apr. 17, 1998, and 1999/28, Apr. 26, 1999, on arbitrary deprivation of nationality. Zadvydas v. Davis, 533 U.S. 678 (2001) concerned specimen cases where alien convicts susceptible to deportation were refused recognition as nationals of the countries from which they had departed.

[FN98]. R. v. Secretary of State for the F.C.O., ex p. Bancoult, [2001] Q.B. 1067 (D.C.).

[FN99]. Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution (1999).

[FN100]. § 7. Eugene Cotran, Some Legal Aspects of the Formation of the United Arab Republic and the United Arab States, 8 Int’l & Comp. L.Q., 346, 382 (1959).

[FN101]. Jacqueline Bendeddouche, Notion de nationalité et nationalité algérienne 126 (thesis, Algiers, 1971, pub. 1982) (informal translation); see Louis Gardet, La cité musulmane: Vie sociale et politique (4th ed. 1976) for the definition of umma as framework for the community in spiritual and social terms.

[FN102]. Jordanian Law No. 7 of 1963, amending the Jordanian Nationality Law, No. 6 of 1954.

[FN103]. Abd-el-Hakim, 12 Rev. internat. dr. internat. publique 550 (1905), 32 Clunet 1035 (1905), 1908-II Sirey 121, note de Boek; comment, Jean S. Saba, L’Islam et la nationalité 81-82 (1931) (informal translation).

[FN104]. Saba, Supra note 103 at 562.

[FN105]. A. Kessmat Elgeddawy, Relations entre systèmes confessionnel et laïque en droit international privé 46 (1971).

[FN106]. Nawaf A. Salam, The Emergence of Citizenship in Islamdom, 12 Arab L.Q. 125, 134 (1997).

[FN107]. Abou el Fadl, supra note 1, at 150-51.

[FN108]. Louisiana Purchase Treaty, Apr. 30, 1803, U.S.-Fr., 8 Stat. 200, T.S. 86; Alaska Cession Treaty, Mar. 30, 1867, U.S.-Russ. 15 Stat. 539, T.S. 301.

[FN109]. Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary, Nov. 23, 1970, U.S.-Mex. T.I.A.S. 7313, 23 U.S.T. 371.

[FN110]. Andrew Grossman, Nationality and the Unrecognised State, 50 Int’l & Comp. L.Q. 849 (2001).

[FN111]. 103 P.L.150, 107 Stat. 1510 (1993).

[FN112]. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977) (treaty obligations); Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) (rights in land).

[FN113]. Bibliography at .

[FN114]. Joel Greenberg, A Group Uproots Arabs to Plant Jews, N.Y. Times, Aug. 2, 1998, sect. 1, at 18.

[FN115]. Notably the Jerusalem Reclamation Project and Aterim Cohanim settler association. See Elli Wohlgelernter, Moskowitz plans donors’ visit to boost the Right, Jerusalem Post, Jan. 1, 1999, at 1.

[FN116]. Alexandre Kedar, The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948-1967, 33 N.Y.U. J. Int’l L. & Pol. 924 (2001); but see H.C. 6698/95, Qaadan v. Israel Lands Authority, 54(1) P.D. 258 (2000) and Alexandre Kedar, “A First Step in a Difficult and Sensitive Road”: Preliminary Observations on Qaadan v. Katzir, 16 Bull. Isr. Stud. 1 (2000), available at ; but see, Terry Rempel, The Significance of Israel’s Partial Annexation of East Jerusalem, 51 Middle E.J. 520 (1997) (regarding the legal structure of annexed East Jerusalem).

[FN117]. Stelio Séferiadès, L’échange des populations, 24 Rec. des cours 308 (1928 IV).

[FN118]. Justus R. Weiner, The Palestinian Refugees’ ‘Right to Return’ and the Peace Process, 20 B.C.L. Rev. 1 (1997); K.R. Radley, The Palestinian Refugees: The Right to Return in International Law, 72 Am. J. Int’l L. 586 (1978); Guy S. Goodwin-Gill, The Refugee in International Law 91-93 (2d ed. 1996).

[FN119]. Tunis and Morocco Nationality Decrees, 1423 P.C.I.J., Ser. B, No. 4; Convention on Certain Questions Relating to the Conflict of Nationality Laws, Apr. 12, 1930, L.N. Doc. C. 24 m. 13, 1931, 179 L.N.T.S. 89, No. 4137 (1937).

[FN120]. Liechtenstein v. Guatemala (Nottebohm case) (2d phase), ICJ, at 4. (1955),

[FN121]. Decree-law No. 3370 of Sept. 20/23 1955, modified by laws No. 4532 of Aug. 17, 1966, No. 481 of July 23/24, 1968, No. 610 of Aug. 17/21, 1970, No. 1250 of Apr. 5, 1982, No. 1438 of Mar. 5/6, 1984. art. 9(14), Law No. 2623 of June 24, 1998 abrogated art. 19 of the Nationality Code which permitted such administrative annulment of nationality of persons who not of “Greek ethnicity” . Cf.case of Moustafa Tsolak, Greek national resident in Germany for more than ten years when he was deprived in 1981 of his nationality for “refusal of military inscription”, a case over which the European Council declined competence. Written question No. 1788/90, O.J.E.C., Dec. 24, 1990, C-325/42. The Council emphasized its incompetence in matters of the grant and withdrawal of nationality, even in the face of Community provisions on the free movement of citizens, in response to question No. 628/92, July 3, 1992, O.J.E.C., Aug. 10, 1992, C-202/58; and that of Hussein Ramadanoglou, divested of his Greek nationality in 1992 on the basis of departure from the country without the intent to return, under circumstances where he had taken advantage of his Community right of establishment in Germany, Press release of June 12, 1996 of Greek Helsinki Monitor & Minority Rights Group.

[FN122]. R. v. Secretary of State for the F.C.O., ex p. Bancoult, [2001] Q.B. 1067 (D.C.).

[FN123]. Michael Curtis, International Law and the Territories, 32 Harv. Int’l L.J. 457 (1991), in which the author attacks for “selective and intemperate language” and “animus that exceeds the usual boundaries of scholarly discourse” the article by Richard A. Falk & Burns H. Weston, The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada, 32 Harv. Int’l L.J. 129 (1991).

[FN124]. Lex Takkenberg, The Status of Palestinian Refugees in International Law 12-18 (1998) (overview); Yoav Gelber, Palestine 1948: War, Escape and the Emergence of the Palestinian Refugee Problem 7-9, 74-83, 138-54, 162-63 (2001) (new appraisal from Western and Israeli archives); Elias Sanbar, Palestine 1948: l’expulsion 147-91 (1984) (Palestinian argument); Efraim Karsh, Were the Palestinians Expelled?, 110 Commentary, Jul.-Aug. 2000, at 29.

[FN125]. Gelber, Palestine 1948 298-302 (2001).

[FN126]. Joseph H.H. Weiler, Israel, the Territories and International Law: When Doves are Hawks, in Israel Among the Nations: International and Comparative Law Perspectives on Israel’s 50th Anniversary 381 (Alred E. Kellerman et al. eds., 1998).

[FN127]. This issue was debated in relation to concessions granted to George Speight following his overthrow of the Fiji government in 2000.

[FN128]. See The Arab-Israeli Conflict (John Norton Moore ed., 1974), published by Princeton U. Press.

[FN129]. Julius Stone, Israel and Palestine: Assault on the Law of Nations (1981); cf. Chairman’s statement, U.N. Committee on the Exercise of the Inalienable Rights of the Palestinian People, 220th Meeting, U.N. Doc. A/AC.183/SR.220 (1996) (“Contrary to the views of certain delegations, the Committee had never shown any bias in its evaluation of the Palestinian problem.”)

[FN130]. Muhammad Y. Muslih, in The Origins of Palestinian Nationalism (1988) argues that “the fragmentation of the Arab nationalist groups in Faysal’s Arab government in Damascus between 1918 and 1920 was a major factor which significantly contributed to the split of the Arab nationalist movement along provincial lines in 1920.” He maintains that it was land ownership and government service that had distinguished the great notable families of Palestine. These are attributes that were largely lost with the creation of the State of Israel. Until Oslo II no Palestinian entity possessed the educational and propaganda facilities used by other former Ottoman territories to inculcate national identity.

[FN131]. Number provided in a communication from the Israeli Ministry of Foreign Affairs (1999). The Israeli Statistical Yearbook of Jerusalem for 2000 reports the Arab population of East Jerusalem as 208,700. On the status of East Jerusalem and its inhabitants, see Esther Rosalind Cohen, Human Rights in the Israeli-occupied Territories, 1967-1982 38-42 (1985).

[FN132]. Thus: Indian Child Welfare Act of 1978, Pub. L. 95-608, title I, Sec. 101, Nov. 8, 1978, 92 Stat. 3071, 25 U.S.C. § 1911 (2000); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989); In the Matter of the Guardianship of Q.G.M., a minor, 808 P.2d 684 (Okl. 1991).

[FN133]. Robert Fisk, Exodus: Christians of the Arab world flee their Biblical homeland, Independent (London), Sept. 24, 1997, at 11.

[FN134]. Education provisions: Commission Regulation 1612/68, 1968, OJ, English Special Edition 1968 (II), at 475), Casagrande v. Landeshauptstadt München, 1974 E.C.R. 773, Gravier v. City of Liège, 1985 E.C.R. 593; Forcheri v. Belgian State, [1983] E.C.R. 2323; Blaizot v. Université de Liège, 1988 E.C.R. 379; Echternach & Moritz, 1989 E.C.R. 723; Commission v. Belgium, 1996 E.C.R. I-4307; Landesamt für Ausbildungsförderung Nordrhein-Westfalen v. Gaal, 1995 E.C.R. I-1031; Di Leo v. Land Berlin, 1990 E.C.R. I-4185; Brown v. Secretary of State for Scotland, 1988 E.C.R. 3205.

[FN135]. Refugee Convention, Geneva, July 28, 1951, 189 U.N.T.S. 137, No. 2545 (1954), art. 12-24; James C. Hathaway & Anne K. Cusick, Refugee Rights are not Negotiable, 14 Geo. Immigr. L.J. 481, 485 (2000) (socio-economic rights).

[FN136]. Jacob Robinson, Were the Minority Treaties a Failure? (1943).

[FN137]. Native Hawaiian language promotion under Pub. L. 89-10, 79 Stat. 27, amended by Pub. L. 103-382, 108 Stat. 3800, 20 U.S.C. § 7905 (2000); Native American language policy, Pub.L. 101-477, 104 Stat. 1155, 25 U.S.C. § 2903 (2000).

[FN138]. Compare the mass emigration to the United States of Hmong tribe members from Laos, supporters of the U.S. during the Vietnam War. On their difficulty assimilating in U.S. society, see Tim Weiner, Many Laotians in U.S. Find Their Hopes Betrayed, N.Y. Times, Dec. 27, 1997, at A1.

[FN139]. Aponno v. Netherlands (Amboinese Soldiers’ case), H.R., 22 Jan. 1951, N.J. 217, 17 I.L.R. 199 (Neth.); cf. In re Hehanussa, Ct. App. The Hague, Nov. 6, 1952, 19 I.L.R. 337 (Amboinese resident in Netherlands and renouncing Indonesian nationality held not entitled to Dutch nationality under terms of independence agreement).

[FN140]. The U.S. accepted no continuing obligation to accept Hmong asylum seekers: Yang v. INS, 79 F.3d 932 (9th Cir. 1996) (denying asylum because of prior firm resettlement in France).

[FN141]. Compare “temporary allegiance”: The Pizarro, 15 U.S. (2 Wheat.) 227, 246 (1817).

[FN142]. R.F.A. van den Bedem, Motives for Naturalization (1993).

[FN143]. Exceptions include two cases of indigenous groups converted to Catholicism, the first those recruited by Cardinal Lavigerie at Sainte-Monique and at Saint-Cyprien-des-Attafs during the famine of 1865-1868, the second the Kabyles of Beni Ouadias (Djurdjura) converted by the White Fathers. 1 Charles-André Julien, Histoire de l’Algérie contemporaine 440-42 (1964).

[FN144]. “Whoever changes his Islamic religion, kill him.” Sahih Al-Bukhari, 9:57. For exegesis of this hadith in relation to Qur’an 2:256 (“no compulsion in Islam”) see S. A. Rahman, Punishment of Apostasy in Islam 16-25 (1972); Mohamed S.El-Awa, Punishment in Islamic Law: A Comparative Study (1982); Sami A. Aldeeb Abu-Sahlieh, Salman Rushdie et l’iceberg: consequences pénales et politiques de l’apostasie en droit musulman et arabe, in Festschrift für Jan Stepan 255 (Jarmila Bednarikova & Frank C. Chapman eds., 1994).

[FN145]. 2 George Young, Corps de droit ottoman 11-12 (1905).

[FN146]. Constitution of India, Nov. 26, 1949, art. 25-28; 1 H.N. Seervai, Constitutional Law of India: A Critical Commentary, 1259-1308 (4th ed. 1999); Tahir Mahmood, Islamic Law and State Legislation on Religious Conversion in India, in Islam and Public Law 159 (Chibli Maslatt ed. 1993).

[FN147]. Tewfik v. Elias, Trib. mixte d’Egypte, C.A. (3d Ch.) Dec. 18, 1923, Gaz. trib. mixtes, XIV, at 171 (informal translation) (Succession of a Coptic Christian converted to Islam in order to marry a second wife; after having repudiated her he reconverted to Christianity).

[FN148]. Rudolph Peters & Gert J.J. de Vries, Apostasy in Islam, 17 Die Welt des Islams 1 (1968); Abdullahi Ahmed An-Na’im, The Islamic Law of Apostasy and its Modern Applicability, 16 Religion 197 (1986) (conviction and execution in the Sudan of Mahmoud Muhammad Taha); David F. Forte, Apostasy and Blasphemy in Pakistan, 10 Conn. J. Int’l. L. 27 (1994); Donna E. Arzt, Religious Human Rights in Muslim States of the Middle East and North Africa, 10 Emory Int’l L. Rev. 139 (1996); but compare Minister for Home Affairs v. Jamaluddin bin Othman, [1990] L.R.C. (Const.) 380 (professing Christianity in Malaysia held not a violation of Internal Security Act, 1960).

[FN149]. Recalling that adoption does not exist in Islam and has been recognized under the laws of only one Muslim jurisdiction, Tunisia, Law No. 58- 27 of Mar. 4, 1958.

[FN150]. Thus rendering all the more shocking and threatening to the religious establishment recent discoveries of early Qur’anic fragments, which could, by revising history and destabilizing the principle of ijtihad, weaken the foundations of the doctrine of immutability. Christoph Luxenberg, Die syro-aramäische Lesart des Koran: ein Beitrag zur Entschlüsselung der Koransprache (2000); The Origins of the Koran (Ibn Warraq ed., 1998); Alexander Stille, Scholars Are Quietly Offering New Theories of the Koran, N.Y. Times, Mar. 2, 2002, at A1; Toby Lester, What Is the Koran, Atlantic Monthly, Jan. 1999, at 43.

[FN151]. Bastanipour v. Immigration and Naturalization Service, 980 F.2d 1129 (7th Cir. 1992) (granting petition of Iranian convert); cf. R. v. Home Secretary ex p. Kazmi, [1994] Imm. A.R. 94 (denying petition of Pakistani convert to Christianity based on Home Office finding that instances of Pakistani discrimination were “not commonplace”).

[FN152]. Sami Awad Aldeeb Abu-Sahlieh, L’impact de la relgion sur l’ordre juridique, cas de l’Egypte, non-musulmans en pays d’Islam 256 (1979) (informal translation); similarly, Joseph Schacht, An Introduction to Islamic Law 131-32 (1964).

[FN153]. In re Marriage of Red Fox, 23 Or. App. 393, 542 P.2d 918 (1975) (Native American); Dame N’Guyen Thi An v. N’Guyen Can, Seine, (1st Ch.), Oct. 26, 1967, 96 Clunet 406 (1969), note Ph. K.; District Stanleyville, Sept. 21, 1953, J.T.O., 1954, at 136, note G.M.; Johan M. Pauwels, Répertoire de droit coutumier congolais 70 (1970); but see Aning v. Kingful, [1980] G.L.R. 404 (Ghana, distinguishing between customary and civil marriage); In re Bethell, (1887) 38 Ch.D. 220, 234 (Chancery 1887) (Eng.) (Bechuanaland, mixed marriage; rejected); Cousin de Lavallière v. de la Bernardie, Req., Mar. 14, 1933, 1934-I Sirey 161, report Pilon, note Solus (Guinea, mixed plural marriage; rejected).

[FN154]. Christian Bruschi, La nationalité dans le droit colonial, 18 Procès, Cahiers d’analyse pol. et jur. 29 (1988).

[FN155]. E.g., Decree of July 29, 1887, J.O.R.F., Aug. 25, 1887; decree of Oct. 3, 1910, J.O.R.F., Oct. 8, 1910 (Tunisia); decree of Apr. 29, 1920, J.O.R.F., May 2,1920 (Morocco). Natives of a protectorate could be considered nationals of the protecting state for some purposes, National Bank of Egypt v. Austro-Hungarian Bank, Anglo-Austrian Mixed Trib., July 13, 1923, III Rec. (1924), at 236, 2 Ann. Dig. 23.

[FN156]. Shaíban v. Commissioner for Migration and Statistics, Palestine Sup. Ct. sitting as H.C.J., [1945] 12 P.L.R. 551, 12 Ann. Dig. 15.

[FN157]. Decree of Nov. 7, 1930, J.O.R.F., 13 Nov. 1930 (Togo and Cameroon).

[FN158]. The question of conversion under Jewish law, where only halachic conversion according to strict Orthodox tradition will be universally recognized, arose in Miller v. Ministry of the Interior, H.C. 230/86, P.D. 40(4) 436, 9 Jewish L. Ann. 265 (1991) (conversion by Reform rabbi; the court rejected the proposition from the Ministry to include the notation “convert” in the margin of the identity certificate); also Naamat v. Ministry of Interior, Bagatz 5070/95, Bagatz 2901/97, A.C. 392/99 (S. Ct., Feb. 20, 2002).

[FN159]. Damanhour, Egypt, Oct. 21, 1956, S. Hanafi, Recueil de jurisprudence de statut personnel, Moassassit al-Matbouat al-Haditha, Alexandria, undated (in Arabic), vol. 2, at 88, discussed in Sami Awad Aldeeb Abu-Sahlieh, L’impact de la relgion sur l’ordre juridique, cas de l’Egypte, non-musulmans en pays d’Islam 256-57, n. 29 (1979). Similarly, Farida Fouad Nakhla v. Sameer Ameer, [1957] S.L.J.R. 21 (C.A. Khartoum).

[FN160]. See also Ahmed Seif al-Islam Hamad, Legal Plurality and Legitimation of Human Rights Abuses, A Case Study of State Council Rulings Concerning the Rights of Apostates, in Legal Pluralism in the Arab World 220 (Baudouin Dupret et al. eds., 1999).

[FN161]. 1983 Code C. 1364.

[FN162]. E.g., art. 6 of the Algerian Nationality Code: “The following possess Algerian nationality by descent: (1) the child born of an Algerian father; (2) the child born of an Algerian mother and an unkown father; (3) the child born of an Algerian mother and a stateless father.” (informal translation)

[FN163]. See Circular of 5 Nov. 1973 of Tunisian Ministry of Justice prohibiting solemnization of marriages between female Tunisian Muslims and non- Muslims, Université catholique de Louvain, Documentation sur le statut juridique des Musulmans en Belgique 311 (1990); Qur’an 2:21 (“And do not marry the idolatresses until they believe”); Taushihul Masa’el, § 2406 (Shia compilation; “A Muslim woman cannot marry a non-Muslim, and a male Muslim cannot marry a non-Muslim woman who is not Ahlul Kitab [ahl al-kitab, person of scripture]”).

[FN164]. Unpublished Egyptian case, 27 Feb. 1934, cited in A. Kessmat Elgeddawy, Relations entre systèmes confessionnel et laïque en droit international privé 165 (1971); cf. Barak v. Muslim Religious Court, (1987) 41(ii) P.D. 745, 23 Isr. L. Rev. 525 (1989), at 525; Philippine Civil Code, Art, 93 (public officials may not inquire into the bona fides of religious profession of applicants for marriage solemnization). Reconversion from Islam is not, however, cognizable by the Egyptian civil courts, which will enforce the shari’a prohibition, State Council case 20/29, Apr. 8, 1980, discussed in Ahmed Serf Al-Islam Hamad, Legal Plurality and Legitimation of Human Rights Abuses: A Case Study of State Council Rulings Concerning the Rights of Apostates, in Baudouin Dupret et al., Legal Pluralism in the Arab World. 219, 222 (1999).

[FN165]. Provisional Constitution of Mar. 5, 1958 of the United Arab Republic, art. 7, Cotran, Eugene, Some Legal Aspects of the Formation of the United Arab Repuglic and the United Arab States The International and Comparative Law Quarterly 382 (1959); Universal Islamic Declaration of Human Rights, Islamic Council, Paris, Sept. 19, 1981, art. XXIII(a): “In view of the fact that the World of Islam is veritably Ummah Islamia [world Muslim community], every Muslim shall have the right to freely move in and out of any Muslim country.”

[FN166]. Abd-el-Hakim v. Ministere des Aaffaires Estrangeres, 12 Rev. Internat. dr. Internat. Publique 550 (1905), 32 Clunet 1035 (1905), 1908-II Sirey 121.

[FN167]. Bruce Maddy-Weitzman, The Crystallization of the Arab State System, 1945-1954, (1993).

[FN168]. Werner Menski, Nationalité, citoyenneté et Musulmans en Grande-Bretagne, in Islams d’Europe intégration ou insertion communautaire? 133-40 (Robert Bistolfi & François Zabbal eds., 1995).

[FN169]. Epoux Djebbar, Cons. d’Etat, Jul. 25, 1986, 1986 Rec. Lebon 214 (Algerian dual nationality rule; plea of mistake); Jacqueline Costa-Lascoux, L’immigration algérienne en France et la nationalité des enfants d’algériens, 1981 Ann. de l’Afrique du Nord 298.

[FN170]. EUROSTAT, “Acquisition of Citizenship by Naturalization in the European Union–1993”, Statistics in Focus Population and Social Conditions, 1995/11, Cat. No. CA-NK-95-011-EN-C, which suggests that failure to naturalize may be due to the lateness of the relevant migration. Germany and Turkey only recently altered their nationality laws to facilitate naturalization, attribution of nationality at birth and dual nationality of Turks resident in Germany.

[FN171]. The BCCI litigation and Parliamentary and Congressional testimony provided such insight into transnational ethnic solidarity with economic and political significance: Report of Lord Justice Bingham, Inquiry Into the Supervision of the Bank of Credit and Commerce International, Oct. 22, 1992; 102th Cong., 2d Sess., U.S. Senate Committee on Foreign Relations, The BCCI Affair, Sept. 30 1992.

[FN172]. Brad R. Roth, Governmental Illegitimacy in International Law (1999).

[FN173]. Cf. tolerance by and towards Islamized and Muslim customary law regimes: Brigitte Djuidje, Pluralisme législatif camerounais et droit international privé 30-58 (1999).

[FN174]. “We ought not to be deceived or embarrassed by the attacks of the Orientalists on the origin of jihad …”, Qutb, supra note 9 at 59.

[FN175]. League of Arab States, draft Arab Convention for the Suppression of Terrorism, Cairo, April 1998.

[FN176]. Qutb, supra note 9 at 95

[FN177]. Convention Relating to the Status of Refugees, Geneva, July 28, 1951, art. 1(F)189 U.N.T.S. 137, No. 2545 (1954).

[FN178]. Benedict Anderson, Imagined Communities (1994).

[FN179]. Nations and Nationalism (1983). Similarly, Kai Freese, Hijacking India’s History, N.Y. Times, Dec. 30, 2002.

[FN180]. Thomas L. Friedman, The Core of Muslim Rage, N.Y. Times, Mar. 6, 2002, at A21.


SOURCE: UCLA Journal of Islamic and Near Eastern Law
Fall/Winter 2003-2004

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