X and X v Prosecutor

Supreme Court, X and X v Prosecutor, Nr. C.20.0482.N, 26 February 2021

In this case, two applicants instituted an appeal in cassation against a judgement of the Ghent Court of Appeal of 28 March 2019 denying their request for recognition as stateless persons. According to the Court of Appeal the applicants could not be regarded as stateless persons because they were considered as Palestinian nationals by the State of Palestine in accordance with applicable law. As the Palestinian law referred to was not specified in the judgment itself, the Court of Cassation quashed the judgment because of an inadequate statement of reasons.

AGENTSCHAP INTEGRATIE & INBURGERING, “HvC verbreekt arrest dat naar Palestijnse nationaliteitswetteving verwijst”, 2021, www.agii.be/nieuws/hvc-verbreekt-arrest-dat-naar-palestijnse-nationaliteitswetgeving-verwijst.

X {Ex parte}

Liège First Instance Tribunal, X, Nr. 20/770/B, 5 February 2021

The Tribunal assessed wether a man of Palestinian origin, as well as his underage children, could be recognized as stateless persons. According to the Tribunal, the inconsistent Belgian case-law on the question whether Palestine qualified as a State rendered it necessary to refer to the position of the organ constitutionally competent in the matter, i.e., the Belgian federal government. In light of the government’s refusal to recognize Palestine as a State, any attempt at indirect recognition of Palestinian statehood by the judiciary was in vain. The Tribunal accordingly confirmed the applicants should be regarded as being stateless in the sense of the 1954 New York Convention.

A.N.H. {Ex parte}

Supreme Court, A.N.H., Nr. C.18.0400.N, 18 February 2019

The Court holds that a ‘State’ can be said to exist when the criteria laid down in the 1933 Montevideo Convention are fulfilled, and that the creation of a State is, in principle, not contingent on its recognition by other States. In light hereof, the Ghent Court of Appeal did not err in regarding the claimant as a Palestinian national, rather than a Stateless person. In particular, the Supreme Court rejects the claimant’s argument that Palestine could not be qualified as a State due to a lack of recognition by the international community.


G v. Kingdom of Belgium

Brussels First Instance Tribunal, G. v. Kingdom of Belgium, 19 December 2018

This case concerns a mother suing the Belgian state to enable the children she had with an Islamic State fighter during her stay in Syria, to travel to Belgium. The mother, who is detained in Turkey, used to have the Belgian nationality but currently only holds the Algerian nationality. The children were born in Syria but are living in Turkey and are de facto stateless.

According to the Court, the children had a sufficient connection with neither Syria, Turkey, nor Algeria. By contrast, there was a factual connection with Belgium. Furthermore, while it could be argued that, pursuant to the Convention of 1954 Concerning the Status of Stateless Persons, the claim to obtain travel documents should be directed to the Turkish government, this could not be expected to happen in practice.

Furthermore the Court ruled that, even if there was no specific legal ground obliging the Belgian State to provide the requested travel documents, the State nonetheless had an enforceable legal obligation to act, in light a range of commitments made, such as the general principle of aid and assistance to one’s own nationals, articles 50 and 75 of the Belgian Consular Code, the Convention of 1954 Relating the Status of Stateless Persons, the Convention on the Right of the Child, and article 8 of the ECHR. The Court accordingly ruled the claim to be well-founded and granted the requested provisional measures.


Prosecutor v X

Brussels Court of Appeal, X v Prosecutor, Nr. 2017/FA/707, 5 June 2018

The Brussels Court of Appeal states that according to article 1.1° of the 1954 Statelessness Convention, a person who is not considered a national by any State constitutes a stateless person. In assessing the statehood of Palestine, the Court takes into account the four criteria established in the 1933 Montevideo Convention and holds that, in accordance with the declaratory theory, the political existence of a State is not contingent on its recognition by other States. The Court determines that, based on these elements, Palestine must be considered as a ‘State’ hic et nunc.

According to the Court, the alleged absence of a Palestinian nationality legislation does not imply that the defendant ought to be regarded as a stateless person. Instead, what matters is that the State of Palestine considers the defendant as a Palestinian citizen by virtue of applicable national law. In particular, the defendant’s UNRWA Registration Card indicates Palestinian descent, whereas individuals of Palestinian origin and their descendents who sought refuge in Lebanon following the establishment of the State of Israel are recognized as nationals by the Palestinian National Authorities. It follows that the defendant is not a stateless person in the sense of the 1954 Convention.