CYIL vol. 11 (2020)

CYIL 11 (2020) CONSTITUTION AND PRIVATE INTERNATIONAL LAW… to identify, analyse, and mitigate many social and legal risks posed by Jordanian laws so that those practitioners may better protect their clients’ interests. Moreover, the article will merely highlight two main issues that might involve the conventional subjects of private international law. The first concerns: The status of the foreigners in the Constitution, 5 including the nationality of a child born to a Jordanian women married to a non-Jordanian (1). The second concerns: The subordination of the rules on conflict of laws to the substantial principles provided in the Constitution, including the status of international treaty law, and the constitutionality of the foreign law before the Jordanian courts (II). 1. The status of foreigners in the Constitution With the increasing number of incoming foreigners, Jordan places itself in an increasingly assertive migration dynamic, traditional country of transit or settlement of forced and regulated migrant populations, and also a country that receives a large number of foreign workers , 6 and students of various nationalities. 7 In addition, the foreign investors are subject to a special regime. 8 There are several aspects to be questioned in this context: Is the foreigner treated as the national(1); The nationality of the foreign spouse married to a Jordanian woman and their children(II) 1.1 The status of the foreigners in Jordanian private international law In Nottebohm case (Liechtenstein v. Guatemala ) 9 , the International Court of Justice in 1955 defined ‘Nationality’ is “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties”. “It is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection”. Nationality also confers a required legal status entailing the exercise of many civil and political rights, as well as, Nationality is an extraneous element widely embraced by the Jordanian rules on conflict of laws, which makes such a justiciable private international dispute subject to private international law mechanisms, especially in the area of personal status. The Jordanian legislator has adopted an extensive concept of the term (personal status). It includes in addition to family matters, (civil status, capacity 10 , the marriage, the matrimonial 5 Article 2 of the Law on residence and foreign affairs N 24 of 1973 provides that: a ‘foreigner’ refers to the legal status of a person who does not have Jordanian nationality. The law refers to ‘refugees’ in some of its Articles without considering them as a separate category. 6 According to Françoise de Bel-Air, the use of international emigration was a strategy of political and social stabilization; this strategy responded to the forced migration movements of 1948 and1967 from Palestine, but also to that of 1990–1991, resulted from the Gulf War, and more recently, due to the wars in Iraq and Syria. Françoise de Bel-Air, ‘Migrations internationales et politiques en Jordanie’, Revue européenne des migrations internationales , 19,3 (2003): 9-41. 7 Declaration of the Prime Minister during the session of The Jordanian Gulf Economic Forum 2015. 8 Jordan has a legal framework for foreign investment. Article 10(B) of the Law on Investment No 30 of 2014 affirms the equal treatment between Jordanian and foreign investors. 9 International Court of Justice I.C.J., Judgment of April 6th, 1955. 10 Article 12(1) of Civil Code provides that: “The law of the state of which a person has the nationality shall apply to the civil status and competence of such person but nevertheless in financial dealings transacted in the kingdom the results of which carried out therein, if one of the parties is an alien of defective capacity and the

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