3 UCLAJINEL 53
FOR EDUCATIONAL USE ONLY
3 UCLA J. Islamic & Near E. L. 53
(Cite as: 3 UCLA J. Islamic & Near E. L. 53)
UCLA Journal of Islamic and Near Eastern Law
*53 "ISLAMIC LAND": GROUP RIGHTS, NATIONAL IDENTITY AND LAW
Andrew Grossman [FNa1]
Copyright © 2004 Regents of the University of California; Andrew Grossman
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, 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 "[t]he 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
[t]he 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.
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.
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: