Filling the gap? a survey of Palestinian case law on migration

Abstract

Since its establishment in 1994, the Palestinian Authority has shown great interest in changing the Palestinian legal system through direct legislative intervention, despite its limited territorial, functional and personal jurisdiction. Yet for migration issues, the legislative intervention has been the exception rather than the rule. Such legislative stagnation was accompanied by lack of policies for migration issues in general. The lack of such legislative intervention as much as the absence of clear policies in migration issues is the ‘gap’ the title of this paper refers to. This paper questions the role of Palestinian courts in filling the gap, whether by making new laws or even by contributing to the formulation of new policies. Two cases in particular will be discussed: the status of UNRWA and the rights it has inside refugee camps; and the way Palestinian courts dealt with foreign courts’ decisions, determining indirectly what is national. An analysis of a research sample on migration-related cases shows clearly that the Palestinian judiciary do not seem to be playing (or to be willing to play) the role of rule- or policy-maker in migration issues. This gap is not necessarily disturbing as there is no legal vacuum. Palestinian judges always find their way through the existing laws inherited from previous regimes, still in force in the West Bank and the Gaza Strip. The decisions analyzed in the research sample, though reduced numerically, are rich in meanings and indicators. They reflect the changes the Palestinian Authority had introduced to the legal system of the West Bank and the Gaza Strip and demonstrate how Palestinians are moving towards an understanding of their identity that evolve around a territorial state-like entity.