CYIL vol. 11 (2020)

ABDULLAH ALDMOUR CYIL 11 (2020) The legislature’s appreciation power of defining the rules concerning foreigners, based generally on the principle of sovereignty, in many field such as the acquisition of nationality, their personal status, their entry and stay on the territory, or their business and investments, is not an absolute power of appreciation. This power should meet the constitutional requirements and the respect of the international standards and commitments. Therefore, the legislator must respect the fundamental rights to all those residing in the territory of the country. Similarly, and in order to guarantee a due procedure for detained foreigners subject to deportation orders and measures, we consider that any restrictions to the exercise of such a judicial recourse against these measures is unconstitutional, because any foreigner should have the right to an effective justice in the right time and the right place. 1.2 The nationality of the foreign spouse married to a Jordanian woman and their children As a general rule international law grants to any sovereignty the power to determine the modalities of obtaining nationality, either by birth, parentage (under the principles of ius soli and ius sangiunis), naturalization, marriage etc. Nonetheless, the regulations pertaining to the acquisition and withdrawal of the nationality, is framed by several principles developed by international law, including the obligation to avoid or reduce the statelessness, the prohibition of arbitrary deprivation of nationality; and the general obligation of non-discrimination. In Jordanian private international law, the inequality of status based on nationality raises many questions. Inequality becomes even more evident when considering granting of the Jordanian nationality to the foreign spouses, and their children born to a woman of Jordanian nationality. Discrimination between men and women therefore persists on two fronts: the civil registration and the transmission of nationality to children. Recent debates accompanied the creation of the Constitutional Court have fuelled this problem. In Jordan, according to Article 5 of the constitution, the acquisition and loss of the nationality is subject to the special law. The Nationality Act of 1954 generates real discrimination against Jordanian women. Under the provisions of this law, the Jordanian nationality is transmitted only by the father. Jordanian woman married to a foreigner has not the right to grant the nationality to her husband nor to her children. Hence, Article 9 of the Nationality Act provides that the children of a Jordanian citizen (male) are Jordanians regardless of their place of birth. This problem highlights the controversy between justice and politics. This controversial issue has led to many difficult situations and negative impacts on thousands of married and children deprived of the right to Jordanian nationality and, as a result, deprived many families and persons of the social and economic benefits such as the right to residence, housing, work, the right to access health and public education, the right to travel (driver’s license) and, of course, multiple civil rights. Despite several provisions adopted by the constitution, the marginalization of Jordanian women in relation to question of the nationality is clearly established. The arguments usually made in favor of this situation are of political in nature, mainly linked to the Arab-Israeli conflict and the flow of migrants coming from the West Bank and Gaza by encouraging them not to leave their home land by making Jordan as an “alternative homeland”, especially Jordan is the only country in the region to have granted the largest number of the Palestinian refugees the Jordanian nationality. Some views justify this differentiated treatment by the

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