“Stripped of my name and identity? On soil I nourished with my own hands?”[1] The words of famous Palestinian poet Mahmoud Darwish do not only apply to Palestinians, but also to people who were born in Lebanon, who grew up in Lebanon, and some of whom have died in Lebanon. These people fall into the category of ‘nationality under study’ [jinsiyya qayd al-dars], an innovation that is in reality a legal monstrosity that has rendered the provisions of Lebanon’s nationality law inoperative by thwarting the possibility of acquiring nationality via jus soli.

The ‘Nationality Under Study’ Innovation

Lebanese laws contain no definition of the term ‘nationality under study’. Nevertheless, court rulings,[2] legal references,[3] General Security departments, and NGO reports[4] relating to nationality in Lebanon all exhibit this category. In the absence of any criteria governing the classification’s use or defining the legal status resulting from it, all we understand of it is that whoever bears it is excluded from having a Lebanese nationality. Hence, they carry the same burdens carried by foreigners.[5] These burdens include payment for a work permit fee,[6] the inability to possess in rem rights of any kind (which applies to “any person who does not possess the nationality of a recognized state”[7]), and the inability to pursue certain jobs and professions restricted to Lebanese persons, such as some of the ‘free’ professions.

The ‘nationality under study’ category of residents in Lebanon emerged after the law regulating entry into, departure from, and residence within the country was issued on July 10, 1962. Created by the General Security departments, the new category encompassed persons in Lebanon who had no nationality whatsoever. The then-minister of interior opposed these practices -which were not based on any law- by issuing two decisions, one (No. 3204) on April 29, 1970 and the other on June 2, 1970. In these decisions, he ordered the General Security departments to cease withdrawing the documents of persons who carried cards identifying them as being of ‘indeterminate nationality’.[8] Some of Lebanon’s residents carried such cards at the time, and the General Security departments had endeavored to withdraw them and replace them with residency cards declaring their nationality as ‘under study’.[9] The label ‘indeterminate nationality’ had been given to people who had lost their original nationality and, having not acquired another one, become stateless. Some of the refugees who had migrated to Lebanon from countries that broke away from the Ottoman state, including Armenians, Syriacs, Chaldeans, and Kurds, had been deemed Lebanese after they proved that they resided in Lebanon on August 30, 1924; but others, unable to prove that they resided in Lebanon on the aforementioned date, had been registered as foreigners of ‘indeterminate nationality’ in the 1932 census,[10] pursuant to article 13 of Decree No. 8837, dated January 15, 1932.

Since the ‘under study’ category was created in 1962, special registers to record the births, marriages, and deaths of the people included within it have been established within the General Security departments. These records closely mimic the records found in the Personal Status departments. Some courts have recognized this situation -and the corresponding classification- by validating the record of a person born to an ‘under study’ father and held in the General Security departments.[11]

The creation of these registers amidst controversy over their legality, as well as the creation of a classification that is attached to a person at birth and transfers to his descendants via heredity, led in practice to the invention, consolidation, institutionalization, and perpetuation of a [new] legal status for a number of people born and living in Lebanon.[12]

The General Security’s decision to expand the scope of the ‘under study’ category via service memorandum No. 73 issued on November 27, 2006, highlights the classification’s consolidation. Persons residing in Lebanon and born to a stateless father were incorporated into the category upon presentation of a document proving lineage, or proving that one of their ancestors possessed an ‘under study’ card.[13] Thus, for a brief period the category encompassed all persons who had inherited statelessness from their fathers, before the General Security departments again constricted it to persons born to ‘under study’ fathers.

The Administration Turns Against the legislature and Renders Inoperative the Right to Acquire Nationality Via Jus Soli

The invention of this category constitutes a coup by the administration against the legislature and Lebanese laws, for the aim of it was to render inoperative the provisions of clauses 2 and 3 of article 1 of Decision No. 15/s, issued on January 19, 1925 (Lebanon’s law of nationality). The first of these clauses deems Lebanese any person born in Greater Lebanon (the official country name at the time) and not proven to have at birth acquired, through filiation, a foreign nationality. The second deems Lebanese any person born in Greater Lebanon to unknown parents or to parents whose nationality is unknown.

This aim is evident from a book about the phenomenon of statelessness by the Frontiers Ruwad Association. The relevant section reads:

“Before 1962, [these people] held “non-identified nationality” identity cards as “in-identified nationalities”[sic]. Most of them were refugees who came to Lebanon at different stages and claimed to be of an unidentified nationality in order to benefit from the ability to claim Lebanese nationality for their children born in Lebanon, pursuant to clause 3 of Article 1 of Regulation no. 15 of 1925. This situation lasted until 1962, when Decree 10188 -related to the regulation of the entry and stay of foreigners in Lebanon and exit from the country- was promulgated. Instructions were issued by the minister of the interior to regulate the residence of various categories of foreigners in Lebanon. Hence, special records were opened at the General Security office for the category of so-called “under study persons” replacing the “unidentified nationality” cards. … The problem for persons falling in the “under study” category is that the procedures for determining whether they hold a foreign nationality, or are stateless or Lebanese, have been pending for more than five decades, which might affect the possibility for their children who were born in Lebanon to benefit from the provisions of the jus soli acquisition of Lebanese nationality.”[14]

A comparison of the circumstances of a number of people before the invention of this category with the circumstances of people in a similar situation after its invention, affirms that the intent behind its creation was to render inoperative clauses 2 and 3 of article 1 of Decision No. 15/s.

For example, a Lebanese woman recorded in the 1932 census and married to a person of ‘indeterminate nationality’ could register, on her own record, any children born in Lebanon as Lebanese. If less than a year had passed since the child’s birth, she could complete this registration administratively pursuant to clause 2 of [article 1 of] the aforementioned decision.[15] If more than a year had passed, she could do so judicially by submitting a memorandum to the single judge who examines personal status cases.[16] Yet it is currently impossible to register a child born to an ‘under study’ father, either administratively or judicially, on the record of its Lebanese mother.

Furthermore, while persons born to two parents of ‘indeterminate nationality’ acquired Lebanese nationality under clause 3 of article 1 of the aforementioned decision,[17] which the Mount Lebanon Appeal Court found applies to them,[18] the applicability of this clause to children born to ‘under study’ parents is a subject of dispute between Lebanon’s various courts.

On the one hand, some Lebanese courts,[19] as well as opinions issued by the Committee of Legislation and Consultation in the Ministry of Justice,[20] have rendered inoperative clauses 2 and 3 of the aforementioned decision in the case of persons born to ‘under study’ parents. They did so by placing intractable conditions of proof on the application of these two clauses. These conditions are as follows:

Firstly, persons who have ‘under study’ cards bear the burden of proving negative facts. They must prove that their “parents are foreign to Lebanon, have no known nationality, and have lost all trace of it with the country from which they hail such that they cannot possibly acquire its nationality”.[21]

Secondly, these persons cannot prove these negative facts by presenting an ‘under study’ card because, according to this jurisprudence, such a card “cannot be considered sufficient evidence that the parents are of unknown nationality or that the children did not, by filiation, acquire a foreign nationality”. Rather, all the card demonstrates “is that the state is in the process of studying their statuses to determine if it can grant them Lebanese nationality”.[22]

Other courts oppose this view on the basis that the burden of proving that a child born to ‘under study’ parents acquired a foreign nationality falls on the Lebanese state. They also hold that the passage of several years since the parents were classified as ‘under study’ and during which the General Security had been unable to discover a foreign nationality is in and of itself evidence that no foreign nationality was acquired.[23] Hence, according to these courts, clause 2 of article 1 of Decision No. 15/s must be applied to grant Lebanese nationality to a child born to an ‘under study’ father and Lebanese mother,[24] and clause 3 of the aforementioned article must be applied to grant Lebanese nationality to children born to two ‘under study’ parents.[25]

Given this discrepancy in jurisprudence, the situation of persons registered as ‘under study’ is unstable, and this instability deters them from resorting to the courts to demand their acquisition of Lebanese nationality pursuant to the aforementioned clauses. Additionally, the majority of these people are unable to cover the expenses of filing the necessary claims. In reality, this situation is causing the cases of statelessness in Lebanon to persist and multiply as a result of procreation. Hence, the state must adopt a decree that regulates a clear mechanism in the Ministry of Interior for submitting and studying applications to deem these people Lebanese based on the law of nationality. Such a mechanism is needed to resolve the statuses of the so-called ‘under study’, a term that has become apparent to mean ‘permanently registered as stateless’.

Youmna Makhlouf is a lawyer and a legal researcher preparing a study on ‘nationality under study’ commissioned by the Frontiers Ruwad Association.

This article is an edited translation from Arabic.

__________

[1] Mahmoud Darwish, Passport.

[2] See: Beirut Appeal Court, Chamber 6, Decision No. 289, February 25, 1974, published in the Judicial Bulletin, 1974, p. 316; North Governorate Appeal Court, Chamber 1, Decision No. 400, July 3, 1972, published in the Judicial Bulletin, 1974, p. 988; Mount Lebanon Appeal Court, Chamber 1, Decision No. 254, July 31, 1974, published in the Judicial Bulletin, 1974, p. 1029; and, Court of Cassation, Decision No. 146, October 14, 1968, published in Justice, Issue. 4, 1972, p. 424.

[3] Abd al-Munim Bakar, Personal Status and Nationality Cases, 2nd edition, 1987, p. 195; Wadi Rahhal, General Principles of Personal Status, Part 1: Lebanese Nationality Provisions, 1st edition, 1994, p. 126; Sami Abd Allah, Lebanese Nationality: a Comparison with Syrian Arab and French Nationality, 3rd edition, Beirut, 2004, p. 102; and, Fayiz Tah al-Iali, Civil Status Cases and Nationality Cases Before the Justice and Administrative Judiciary, The Modern Foundation for Writers, Tripoli, 2007, p. 355.

[4] Frontiers Ruwad Association, Invisible Citizens: Humiliation and Life in the Shadows: A Legal and Policy Study on Statelessness in Lebanon, September 2011, p. 111 (Arabic version).

[5] Ibid., p. 113 (Arabic version).

[6] Law No. 61, August 12, 1988, which ratified article 26 of Law No. 1/70 on the residency permit fee for non-Lebanese persons.

[7] Article 1 of Decree No. 11614, January 4, 1969, relating to non-Lebanese persons’ acquisition of in rem property rights in Lebanon, and Decision No. 2 issued by the Constitution Council on May 5, 2001 on the challenge to clause 2 of the aforementioned article.

[8] See note 3 above, Sami Abd Allah, op. cit., p. 102-103.

[9] Ibid., p. 102.

[10] See note 3 above, Abd al-Munim Bakar, op. cit., p. 195.

[11] Beirut Court of First Instance, Chamber 3, Decision of November 13, 2003, Justice, Issue 3 and 4, 2004, published in Sader’s database.

[12] Frontiers Ruwad Association, op. cit., p. 120 (Arabic version).

[13] Ibid., p. 120 (Arabic version).

[14] Ibid., p. 100-101 (English version).

[15] See note 3 above, Abd al-Munim Bakar, op. cit., p. 175.

[16] Ibid., p. 175-176, and Baabda Court of First Instance, Decision No. 1731, November 21, 1963, published in ibid. on p. 176.

[17] See note 3 above, Abd al-Munim Bakar, op. cit., p. 176.

[18] Mount Lebanon Civil Appeal Court, Chamber 1, Decision No. 309, July 5, 1969, published in Abd al-Munim Bakar, op. cit., p. 177.

[19] See note 2 above, ibid.

[20] See: Committee of Legislation and Consultation, Opinion No. 9/1973, January 9, 1973, and Opinion No. 426/2003, June 11, 2003, both published in Judge Shukri Sader and Judge Antoine Baridi, Collection of Jurisprudences of the Committee of Legislation and Consultation in the Ministry of Justice, Sader Legal Publications.

[21] Beirut Appeal Court, Chamber 6, Decision No. 289, February 25, 1974, Judicial Bulletin, 1974, p. 316.

[22] Ibid. and Mount Lebanon Appeal Court, Chamber 1, Decision No. 254, July 31, 1974, Judicial Bulletin, 1974, p. 1029.

[23] Court of Cassation, Decision No. 21, March 8, 1972, Hatim part 123, p. 51; Auxiliary judge’s objection, Mount Lebanon Appeal Court, Chamber 1, Decision No. 254, July 31, 1974, Judicial Bulletin, 1974, p. 1029; First Instance Chamber in Matn, Chamber 3, February 23, 2006, published in the al-Musannaf database; and, First Instance Chamber in Matn, Chamber 3, Decision No. 174, June 10, 2010, Justice, Issue 3, 2010, published in the Sader database.

[24] First Instance Chamber in Matn, Chamber 3, February 23, 2006, published in the al-Musannaf database; and, First Instance Chamber in Matn, Chamber 3, Decision No. 174, June 10, 2010, Justice, Issue 3, 2010, published in the Sader database.
[25] Court of Cassation, Decision No. 21, March 8, 1972, Hatim part 123, p. 51; and, Auxiliary judge’s objection, Mount Lebanon Appeal Court, Chamber 1, Decision No. 254, July 31, 1974, Judicial Bulletin, 1974, p. 1029.