Ambiguous citizenship policies: Examining implementation gaps across levels of legislation in Jordan

Abstract

Despite the prevalence of ambiguous citizenship policies that say one thing in law and another in implementing regulations, few studies have focused on systematically studying this type of implementation gap, particularly in contexts beyond North America and Europe. This largely has remained the case despite research on discursive policy gaps, which occur between a policy’s stated objectives and its laws, efficacy gaps, which describe when a policy’s outcomes fail to meet its goals, and compliance gaps, which reflect disparities between a state’s commitments to international law and its corresponding domestic policies. How can we advance conceptualizations of law-regulation implementation gaps? This paper proposes one approach by focusing on the content of domestic laws, on the one hand, and the content of related implementing regulations, on the other. When law-regulation discrepancies occur, they illustrate the agency of senior officials in writing this intentional ambiguity into different levels of legislation, challenging assumptions about institutional weakness and lower-level bureaucratic discretion as chief drivers of implementation gaps. The paper illustrates this concept by analyzing discrepancies between Jordan’s nationality and passports laws and their related implementing regulations, particularly regarding Gaza refugees’ access to passports, investors’ access to nationality, and Palestinian-Jordanians’ subjection to nationality withdrawals. These diverse cases of intentional ambiguity demonstrate that such gaps can serve to partially exclude or include a group and can occur with noncitizen and citizen as well as more or less vulnerable groups.

Introduction

Sitting in a crowded office, a Jordanian journalist glanced over stacks of papers as he explained a prominent legal concern in Jordan: “the regulations depend on ministers…You do not need parliament to release new regulations…How can people defend themselves because it is regulations (تعليمات) not a law (قانون)?”¹ Government officials also are aware of this discrepancy between laws and implementing regulations. As a former minister explained: “The regulations, (التعليمات),² have become more important than the law or bylaw. Regulations are very flexible…No one can see them and criticize them, domestic or international.”³ Essentially, the use of implementing regulations to govern—virtually independent of corresponding domestic laws—represents a type of implementation gap between different levels of legislation, and this gap produces ambiguous policies that say different things in law versus regulations.

Despite the prevalence of such ambiguous policies, particularly in citizenship and migration policies (Natter, 2021; Norman, 2020; Stel, 2020), few studies have focused on conceptualizing and operationalizing them, especially in contexts beyond North America and Europe. The relative absence of studies on law-regulation gaps contrasts with research on “discursive” policy gaps, which occur between a policy’s objectives and its laws (Castles, 2004; Hollifield et al., 2014), and “efficacy gaps,” which describe when a policy’s outcomes fail to meet its stated goals (Arcarazo & Freier, 2015; Czaika & de Haas, 2013). Other areas of study include “compliance gaps,” which reflect disparities between a state’s commitments to international law and its domestic policies (Akram, 2021; Búzás, 2016; Janmyr & Stevens, 2021; Stevens, 2013), and “protection gaps,” which occur when there are no legal rules to govern certain rights, particularly when those rights fall in between different legal frameworks (Akram, 2018; Akram et al., 2015; El-Mufti, 2014; Chatelard, 2002). Another major area is “enforcement gaps,” when street-level bureaucrats do not properly apply laws on the ground (Holland, 2016; Ellermann, 2005; van Der Baaren, 2024), or when the institutional context surrounding the law’s enforcement (e.g., availability of information about the law or attitudes of bureaucrats) contrasts with the law’s content (Huddleston, 2020).

Studies may devote less attention to law-regulation gaps because of assumptions that this gap, particularly in less-developed contexts, reflects institutional weakness and resource shortfalls that policymakers are unaware of or are incapable of resolving (Czaika & de Haas, 2013; Levitsky & Murillo, 2009). Another challenge in studying law-regulation gaps is that regulations, particularly in less-developed and more autocratic contexts, can be difficult to identify and track. In some cases, this can lead scholars to conclude that there is no policy, when instead, the policy is only taking place at the level of opaque regulations within particular ministries. Likewise, an emphasis on the “talk versus the walk of law” can overlook the role of subsidiary legislation, such as regulations, decisions, and instructions, in dictating the “walk” of law (Calavita, 2016, 109). Moreover, it can overlook differences within the “talk” of law when those differences materialize between primary (i.e., laws) and subsidiary legislation.

Overall, there has been much research on legal gaps in citizenship and migration policy, both in and beyond Europe. However, few studies have focused on systematically examining gaps between a domestic law’s provisions and the implementation orders that guide the enforcement of those provisions. Exceptions, as discussed in the next section, include work that mentions potential examples of this gap, without characterizing it as a distinct type of legal gap or concept (e.g., Akram, 2018; Akram et al., 2015; Chatelard, 2002; Janmyr, 2016), studies that are beginning to conceptualize implementation gaps, with law-regulation gaps included as one category (van Der Baaren, 2024), and research that examines ambiguities in migration and citizenship policies that could include law-regulation gaps but do not focus on them (Lori, 2019; Natter, 2021; Norman, 2020; Shevel, 2011; Stel, 2020). Thus, this paper asks: How can we conceptualize gaps between laws and their implementing measures?

The paper responds to this question by focusing on the content of domestic laws versus the content of related implementing measures, including regulations, instructions, decisions, and decrees. Discrepancies between these two levels of legal rules can provide a clear manifestation of an implementation gap. I conceptualize this law-regulation divergence as intentional ambiguity because the gap occurs with the full knowledge of state officials. Specifically, the term intentional reflects that policymakers are aware that the subsidiary legislation diverges from the law; it is not a gap that occurs without their knowledge because the gap forms at high-levels of governance (not the street-level).⁴

The next sections elaborate the concept of intentional ambiguity as a type of implementation gap. Then, the paper describes empirical cases of intentional ambiguity by focusing on discrepancies between Jordan’s nationality and passports laws and their related regulations—particularly on policies governing Gaza refugees’ access to passports as well as investors’ and Palestinian-Jordanians’ access to nationality. In each case, senior officials write implementation orders that diverge from the provisions in corresponding laws, producing intentionally ambiguous policies.

Comparing different groups of Palestinians, including those with and without Jordanian nationality, is fruitful for illuminating law-regulation implementation gaps. It also expands existing studies, which tend to analyze Palestinian-Jordanians (Brand, 1988; Massad, 2001) separately from Gaza refugees (El-Abed, 2005; Pérez, 2011) or compare the Palestinian-Jordanians to “native” East Bank Jordanians (Abu Odeh, 1999; Brand, 1995). This reflects a tendency to divide groups based on whether they have legal citizen status (i.e., nationality) and to treat a state’s relations with its citizens as largely distinct from its relations with noncitizens. The case on investors’ access to nationality contributes to pushing past this divide, and it highlights how intentional ambiguity can impact more privileged groups.

Altogether, these cases exemplify intentional ambiguity. They highlight that it can partially exclude or include a group through regulations that deviate from the law and that these gaps can occur with noncitizens and citizens, with more or less vulnerable groups, as well as in different time periods. In addition, they are cases that allow us to explore intentional ambiguity in an authoritarian and “developing” context, where it is relatively more difficult to identify subsidiary legislation. The availability of data reflects both how long-standing these cases of intentional ambiguity are, making them more legible to researchers, as well as my long-term research on citizenship in Jordan.

Since 2016, I have been collecting three main original data sources to study law-regulation gaps. First, archival files from the British National Archives at Kew and the U.S. National Archives at College Park on Jordan’s internal politics from 1946 to 93 to gain an understanding of the circumstances surrounding the adoption of individual policies. Second, 240 interviews I conducted in Jordan with 165 different individuals, including 35 unique current and former ministers,⁵ during 16 months of fieldwork in Jordan from 2016 to 23.⁶ Third, Jordanian legislation—including constitutional provisions, laws, bylaws, regulations, and executive decisions—located using online legal databases, including Qistas, and ministry websites.

Overall, this analysis aims to conceptualize intentional ambiguity as a type of law-regulation implementation gap in citizenship and migration policy. It leverages extensive primary-source data to demonstrate that such implementation gaps can exist and be studied in non-Western, more autocratic, and less-developed contexts, like Jordan. It also reveals that intentional ambiguity can both expand and contract a group’s rights relative to the law, while drawing attention to the agency of executive leaders in shaping implementation gaps.

Conceptualizing law-regulation implementation gaps

This paper proposes an approach to identifying law-regulation implementation gaps by focusing on the content of laws, on the one hand, and the content of related implementing measures, on the other. The term “law” here refers to the constitutional articles and provisions in domestic laws and permanent bylaws a state has adopted that outline a group’s legal access to a right. Law does not include the provisions of international conventions to which a state is party, but it does include bilateral and multi-lateral agreements that the state makes with another country (or countries) or international organization(s).⁷ Laws often are publicly accessible and passed by a parliament with approval from executive leaders. The key traits of laws, as I use the term, are that they legally supersede, are more public than, and are more difficult to change than most legal rules governing implementation.

The term “implementation” refers to the legal rules that translate a law into practice, including regulations, decisions, decrees, and instructions.⁸ Theoretically, this subsidiary legislation follows from and clarifies the law, and it is not necessarily publicly available nor does it typically require parliamentary approval. However, officials can post implementing instructions on government websites or state legal databases. Implementation here is part of Luuk van der Baaren’s (2024, 7–8) “interpretation” of the law because it represents the documents that establish the rules that put primary legislation into effect. Implementation differs from the “application” of the law, which concerns whether bureaucrats apply the primary and subsidiary legislation in practice (van der Baaren, 2024, 8).

Overall, implementation measures tend to be more flexible and easier to change than laws. The main traits of implementation measures here are that they are legally subservient to, less public than, and easier to change than laws. Table 1 offers a breakdown of the sources of information used to define and code a law versus implementation.

Table 1 A policy’s law and implementation components

With these definitions in mind, the term policy has a narrow meaning here. A policy refers to the provisions of a law regarding a particular right and the regulations issued to implement that right. This definition does not focus on discourses about what the policy is or on the daily practices of bureaucrats in following regulations. In addition, I do not use policy to reference the broad reception of a group in a state or to the aggregated myriad of rights a group has. Instead, it focuses on the two legal outputs that state officials produce to stipulate a specific right and that we often assume match (Brunsson, 2019).

Intentional ambiguity as a law-regulation gap

This paper focuses on intentional ambiguity as a key law-regulation gap. With intentional ambiguity, executive leaders (e.g., presidents, prime ministers, ministers, top executive advisors, etc.) knowingly allow the provisions in the law governing a right to diverge from those in the implementation orders governing that right. Leaders can do so because they draft, or oversee and approve the drafting, of at least the policy’s subsidiary legislation. That policymakers are aware of and allow or enable this divergence reflects the intentional part of the term. In addition, with intentional ambiguity, the right offered in law is not necessarily unclear, nor is the right offered in implementation, but what is unclear is whether the law or implementation specifies that right. This uncertainty about what a group’s right is reflects the ambiguity part of this term.

The focus on laws versus regulations accentuates the agency of executive policymakers in deciding whether to issue implementing measures that complement laws. This is especially the case in more authoritarian states and in certain policy areas, such as citizenship and migration (Hammar, 1985), where executive leaders often essentially draft laws as well as implementing legislation. High-level officials’ involvement differentiates intentional ambiguity from other implementation gaps that stem from limited resources, lack of capacity, or low-level bureaucratic noncompliance (Czaika & de Haas, 2013).

When looking at a policy’s law and implementation components, there are four different types of intentionally ambiguous policies.⁹ These are based on whether state officials create this divergence by: (1) introducing a new law and new regulations (signaling), (2) only issuing new regulations that contrast with an existing law (hidden), (3) only adopting a new law that contrasts with existing regulations (performative), or (4) deciding not to change a preexisting disconnect between a law and its regulations (persistent). These types, summarized in Table 2, highlight how intentional ambiguity relates to different forms of ambiguity in citizenship and migration policies in existing studies.

Table 2 Forms of intentional ambiguity

For example, Oxana Shevel (2011) discusses a form of legal ambiguity in Russia, where the state uses vague wording in laws to satisfy different objectives and groups without solving the contradictions of existing nation-building discourses. This “purposefully ambiguous” approach is rooted in the phrasing of laws. Purposeful ambiguity can be similar to signaling intentional ambiguity if the vague wording in the law primarily satisfies one set of actors, and then policymakers satisfy another major set of actors through divergent implementing legislation. However, unlike purposeful ambiguity, the core source of ambiguity in intentional ambiguity is not the law’s content, but the disconnect between the law’s content and its implementation.

In addition, Noora Lori (2019) emphasizes the ambiguous legal statuses that a state can create by not accepting a group as citizens yet. This “precarious citizenship” examines formal legal statuses that are ambiguous because they place a group between citizens and foreigners without knowing when that status will end. Thus, the ambiguity is not in the content of the law, but in the ambiguous status that the law creates. Intentionally ambiguous policies could be, but are not necessarily, a part of precarious citizenship. For example, they could be when such “in-between” groups lack access to passports, work, or education in law but have this access according to implementation orders.

Further, Kelsey Norman (2020) examines state decisions to use “strategic indifference” to avoid direct engagement with migrant groups and instead allow international or domestic organizations to provide services to migrants. The absence of state policies and engagement can make it difficult to identify what access to rights and services migrants have, which generates policy ambiguities due to state inaction and inattention. Indifference in Norman’s “policy outputs” could be an example of hidden intentional ambiguity when a state does not issue a new law governing a right but does issue new divergent regulations. Likewise, indifference in Norman’s “policy outcomes” could overlap with performative intentional ambiguity if state officials adopted a new divergent law governing a group’s rights, but did not change its accompanying implementation (Norman, 2018). However, indifference cannot align with signaling intentional ambiguity because signaling involves state officials actively adopting a new law and regulations.

Moreover, scholars who study the legal status of refugees or other migrants in a receiving state can provide diverse examples of implementation gaps, including, but not focused on, intentional ambiguity. For instance, Maja Janmyr (2016) elaborates the legal challenges Syrian refugees have faced in Lebanon. Some of the examples reflect compliance gaps between Lebanese state practices and international law, such as Lebanese violations of non-refoulement when authorities deport refugees to Syria (Janmyr, 2016, 62, 72). Others emphasize protection gaps, where the Lebanese state or international organizations do not provide a legal framework to govern certain rights. The absence of a Lebanese state policy to respond to the initial influx of Syrian refugees is an instance of the former, and debates about whether UNHCR could process Syrians under Lebanon’s preexisting MOU with UNHCR is an instance of the latter (Janmyr, 2016, 60–62, 64). Still other examples could reflect intentional ambiguity. For instance, Lebanon’s introduction of regulations to govern Syrian refugees in December 2014 could represent hidden intentional ambiguity if those regulations specified rights that differed from those Syrians had in preexisting laws, such as the law regulating foreigners or 1993 bilateral agreement with Syria.

Lastly, this typology highlights which types of intentional ambiguity are more likely in different political regimes. For example, signaling and performative would be more likely in a more autocratic context because they require that executive policymakers draft, or oversee and approve the drafting, of primary (not just subsidiary) legislation. These forms are possible in more democratic contexts, but it would require executive control over citizenship policies. In contrast, hidden and persistent intentional ambiguity are more feasible across regime types because they only necessitate that executive policymakers control subsidiary legislation—though they also require enough centralization that high-level executive leaders at least oversee and approve such legislation.¹⁰ Regardless, it may be more difficult for more democratic regimes to sustain intentionally ambiguous policies when there is a free press, robust civil society, and balance of powers that can track subsidiary legislation and hold the executive accountable when it contradicts the law.

Overall, this typology of intentional ambiguity helps to advance conceptualizations of legal ambiguity and implementation gaps. It also helps to unite existing studies by recognizing that intentionally ambiguous policies can govern citizen as well as noncitizen groups. In doing so, this analysis advances work challenging the legal boundaries of citizenship—including studies on postnational citizenship (e.g., Soysal, 1994), denizenship (e.g., Joppke, 1999; Turner, 2016), semi-citizenship (Cohen, 2009), paper citizenship (Sadiq, 2009), and noncitizenship (Tonkiss & Bloom, 2015)—and it acknowledges the statuses, rights, duties, and senses of belonging of groups who lack nationality in a state.

Examples of intentional ambiguity in Jordan

The following cases illustrate intentional ambiguity by focusing on different cases in Jordan. They highlight how state officials can knowingly adopt a policy where the law and regulations say two different things. This paper does not focus on why officials adopt intentionally ambiguous policies, which is the focus of other work¹¹; instead, it elaborates the concept of intentional ambiguity and demonstrates that it is a type of implementation gap.

Jordan has been a major refugee host state for almost its entire existence. Starting in the mid-nineteenth century, the Ottoman Empire resettled refugees, such as Circassians, Chechens, and Armenians, on the territory that would become Jordan (Hamed-Troyansky, 2017). Since 1946, Jordan has received waves of Palestinian, Lebanese, Iraqi, and Syrian refugees, as well as smaller numbers from other countries, such as Sudan, Somalia, and Yemen. Jordan’s policies toward refugees have never materialized in a domestic refugee law or international refugee conventions because Jordan, like most countries in the region, has not signed the 1951 Refugee Convention or its 1967 Protocol (Janmyr & Stevens, 2021).

Instead, different Jordanian domestic laws and implementing measures constitute refugee policies. Thus, a key trait that differentiates Jordan’s refugee groups is whether they have access to Jordanian nationality. Essentially, all the groups that arrived prior to 1954 received Jordanian nationality (Frost, 2022), but the groups that arrived after 1954—with the exception of the displaced Palestinian refugees arriving from Jordan’s West Bank to its East Bank after the 1967 War¹²—have not. Jordanian nationality is valuable because it signifies being a Jordanian citizen and it provides all the legal rights associated with citizen status, including rights to vote, run for office, work in all sectors, attend public schools, and own property (Frost, 2021).

Jordan has not always adopted intentionally ambiguous policies toward its refugees. Before 1967, Jordan largely adopted “unambiguous” policies. However, once Jordan lost the West Bank to Israeli occupying forces during the 1967 War and as Palestinian nationalism grew and challenged Jordan’s claims to represent Palestinians, it politically became more difficult for Jordan to adopt unambiguous inclusive policies toward new Palestinian refugees. The Gaza refugees are an exemplary case for this development because they received no rights in law but received many in implementation, as described below.

The 1970 war between the Jordanian army and militants associated with the Palestine Liberation Organization (PLO) shifted Jordan’s perspective toward refugees from the West Bank, who the government viewed as PLO sympathizers (Brand, 1988, 168–177). In this context, domestic security imperatives urged more exclusionary policies toward this group in implementation, but popular opinion, economic concerns, and regime goals to regain the West Bank prevented the adoption of more exclusionary laws. By 1988, numerous political changes occurred that pushed King Hussein to rescind Jordan’s claims to the West Bank (Abu Odeh, 1999, 224–229), and after announcing this disengagement, new challenges arose in dealing with refugees and other migrants who had moved (often forcibly) from the West to the East Bank since 1967. The large number of these Palestinians, as well as uncertainties about how permanent the disengagement would be,¹³ militated against adopting more exclusionary policies toward them in law; however, domestic security and diplomatic concerns pushed for excluding more of them from the Jordanian citizenry, as described in the nationality revocations case below.

Jordan’s gradual introduction of intentionally ambiguous policies toward Palestinian refugees has informed its policies toward other refugee and migrant groups. For example, like the Gaza refugees, Jordan did not adopt new laws governing any waves of Iraqi refugees. Instead, the rights they received reflected implementing measures, such as those preventing Iraqi deportations (Chatelard, 2002, 12; Stevens, 2013, 12). This approach of extending rights in implementation but not law also comes across in Jordan’s nationality-by-investment policies, as described below. On the other hand, Jordan’s labor policies toward Syrian refugees after the 2016 Jordan Compact highlight a case where the state promised to issue 200,000 Syrians work permits in law but found ways to sidestep this in implementation, including by using unions as proxy employers and issuing individuals multiple work permits (Lenner & Turner, 2018, 50).

Overall, the intentional ambiguity in the cases analyzed here are not exceptions to Jordan’s citizenship policies toward refugee and migrant groups, but they are more obvious examples of it. This makes them more feasible to study in an authoritarian, “developing” context where there are substantial challenges to accessing data on implementation. Thus, they are diverse cases of intentional ambiguity that help to illustrate what intentional ambiguity is.

Gaza refugee passports

Gaza refugee access to Jordanian passports reflects how intentional ambiguity can extend a group’s rights. These refugees—who are Palestinian refugees that were displaced from the Gaza Strip to Jordan’s East Bank in the context of the 1967 Arab–Israeli War¹⁴—received access to Jordanian passports in implementation but not law, even though they never received Jordanian nationality in law or implementation. Their rights contrast with Palestinian refugees who arrived in Jordanian-held territories after the 1948 Arab–Israeli War, who did receive access to Jordanian nationality and passports in law and implementation (Frost, 2022).

Almost immediately after the Gaza refugees were displaced to Jordan, the government issued Jordanian passports to some of them, despite the absence of such noncitizen passports in law. In 1967 and 1968, the existing passports law of 1942 (last amended in 1964) gave Jordan’s King Hussein expansive discretion in distributing passports in Article 3.1 and did not include a provision concerning passports for non-Jordanians.¹⁵

Regardless, in 1967, Jordan started issuing passports to Gaza refugees in implementation. The government issued the first of these passports—a case of hidden intentional ambiguity—on a limited basis to Gaza refugees with jobs abroad but insufficient travel documents. U.S. officials speaking with Jordan’s Under Secretary of Interior, Sami Judeh, and King Hussein’s private secretary, Zaid Rifai, reported:

“Both have advised us that with [the] exception of one group of 87 Gazan teachers who several months ago were issued Jordanian passports, no Gazan has gotten a Jordanian passport…The group of 87 had contracts to return to teaching positions in Libya but the Libyan authorities had refused to accept them unless they travelled on a Jordanian passport.”¹⁶

The Jordanian government also distributed another round of passports to Gaza refugees with jobs in the Arab Gulf. An American report from June 1968 describes their distribution:

“A four-man Jordanian delegation headed by Deputy Minister of Interior Junaidi and Director of Passports Tharwat Talhouni visited Bahrain, Qatar, and the Trucial States last week…the trip was to execute King Hussain’s promise…[to] help facilitate travel of stateless Palestinian refugees working in the area.

In Abu Dhabi, Junaidi and Talhouni…stated that a total of over 1,000 passports had been issued to Palestinian refugee residents of Lebanon, Syria, Gaza, and Egypt…Former Palestinian residents of Egypt and Gaza, who for the most part are victims of the June, 1967, fighting, were issued only one-year temporary Jordanian passports with no grant of nationality. Issuances to the latter constituted about 90 per cent of the total” (emphasis in original).¹⁷

Despite this evident passport distribution, Gaza refugees’ access to Jordanian passports became more exclusionary in law. In 1969, the government issued a new passports law, and Article 3 stated that “Jordanian passports are given to applicants who are Jordanian, having the established (الثابتة) nationality originally or after obtaining the nationality or naturalization certificate.”¹⁸ Although Article 13 created a category of passports for non-Jordanians, it was not for “temporary” passports but for ordinary passports in “special cases (حالات خاصة).”¹⁹ The law did not link the “special case” passports to the Gaza refugees, nor did it reference “temporary” passports as a type of special case. The same is true for archival files from this period. For example, U.S. officials summarized Jordanian orders concerning travel policies for crossing between the West and East Banks, stating “Gazans with temporary Jordanian passports will be accorded [the] same treatment as West Bankers.”²⁰ They did not use the term “special case” to characterize Gaza refugee passports. Thus, the new law did not grant Gaza refugees access to passports, while government regulations continued to provide this access, marking a case of performative intentional ambiguity.

Moreover, government officials themselves do not describe the Gaza refugee temporary passports as special case passports. Instead, they reference them as connected to regulations and decisions and emphatically not to the passports law.²¹ This perspective aligns with official accounts that more Gaza refugees gained access to “temporary” (مؤقتة) passports on October 3, 1971, in accordance with Ministry of Interior (MOI) decision number 10/2/B2385,²² rather than based on changes to the passports law—marking another case of hidden intentional ambiguity. Overall, intentional ambiguity characterizes the gap between Gaza refugees’ access to Jordanian passports in law versus implementation, with exclusionary access in law but inclusive access in implementation throughout each policy change.

Investment nationality

Investors’ access to Jordanian nationality demonstrates how intentional ambiguity can extend, but not formalize, a privileged group’s rights. Although investors can access Jordanian passports in law (and implementation), they do not have a right to Jordanian nationality in law. Instead, investors’ access to nationality stems from implementation regulations issued by senior officials.

In July 1999, Jordan adopted new investment nationality regulations five months after King Abdullah II assumed office.²³ These implementation measures, entitled “Basic rules and procedures for the award of Jordanian nationality through investment,” enabled Arab investors to obtain Jordanian nationality through three paths, which involved depositing large sums in the Central Bank and/or fostering an investment project that created jobs for Jordanians (CARIM-South Project, n.d.). However, they did not correspond to a change in the nationality law, marking a case of hidden intentional ambiguity.

These regulations were updated (but still absent from the law) after a large wave of Iraqi refugees came to Jordan following the U.S. invasion of Iraq in 2003. One former minister, familiar with this issue, claimed that “with the Iraqis, for example, there was a clear policy, clear directives, but it…was limited to the Minister of Interior at that time.”²⁴ Likewise, another former minister, well-acquainted with this topic, stated that there was an explicit initiative to give Iraqi investors passports that granted them nationality through the MOI.²⁵ However, the same former minister noted that changes in the cabinet as well as public attention to the issue halted these efforts.²⁶ He observed that “it is hard to give out national numbers in front of the public.”²⁷ Another former minister, recalled that although the “national number had been stopped,” there had been a policy during the Iraq war where investors could get a national number.²⁸ Thus, hidden intentional ambiguity once again characterized nationality-by-investment.

The next update to the nationality-by-investment policy occurred in 2018, though again, only through a Cabinet decision and not an amendment to the nationality law. This policy enables individuals to secure Jordanian nationality through one of five ways. These routes are similar to the 1999 options but add schemes to buy treasury bonds or securities or to invest in small- and medium-enterprises (Jordan Times, 2018).

The 2018 nationality-by-investment program expanded in 2021 (Jordan Times, 2021). Although the regulations for obtaining nationality by investment have not changed on the Jordan Investment Commission website, there seem to be new regulations based on a Cabinet decision that year. For example, the overall investment required by one route decreased from 1.75 to 1.5 million dollars (Da‘ja, 2021).²⁹ These changes highlight that implementation orders from the Cabinet shifted, and that these orders govern this policy, despite the absence of a nationality-by-investment provision in the nationality law.

Moreover, senior officials are at the center of issuing the regulations for this policy. One high-level official, well-aware of this policy, explained that investment nationality is governed by decisions because they are more flexible than the law.³⁰ Likewise, a former minister, with experience in this issue, remarked that “the nationality law is too hard to amend; if you touch it, then the discussion is all about the alternative homeland,”³¹ which refers to the political challenges of raising such reforms in more public settings, such as the parliament. Similarly, another high-level official, who had worked on these policies, observed that “you cannot imagine the negativity in the media about this [policy]…I was against having it in the media;” the same official stated that the policy is “not even a bylaw, it is regulations (تعليمات) it is not a law” because “it does change often, if you put it in the law, it is not easy to change it.”³² Overall, hidden intentional ambiguity has characterized nationality-by-investment policies in Jordan.

Palestinian-Jordanians’ nationality revocations

Unlike the previous examples, Palestinian-Jordanian access to nationality reflects how intentional ambiguity can reduce a group’s rights. Since Jordan’s disengagement from the West Bank in 1988, Palestinian-Jordanians that were displaced from the West to the East Bank after the 1967 War, whom I call the 67ers, have been subject to nationality revocations according to regulations that contradict the nationality law. The disengagement occurred on July 31, 1988, when King Hussein announced that Jordan was “dismantling the legal and administrative links” between the East and West Banks (Hussein Bin Talal, 1988). This announcement reduced Jordan to the East Bank alone and ended the Unity of the Banks that King Abdullah I oversaw in 1950. Although Israel had occupied the West Bank since the 1967 War, Jordan had maintained its legal, administrative, and political connections to the territory (Kingdom of Jordan, 1988b).

However, the nationality law did not change in 1988,³³ and the 1954 nationality law (and its amendments through 1987) continued to govern nationality acquisition and withdrawal. First, Article 3.2 stated that “Every non-Jewish person who carried Palestinian nationality before May 15, 1948 and whose typical residence was in the Hashemite Kingdom of Jordan during the period between December 20, 1949 until February 16, 1954” is entitled to Jordanian nationality.³⁴ Second, Article 18 stipulated that nationality revocation could occur when someone entered the military or civil service of a foreign state, without the prior permission of the Cabinet, and refused to leave, as well as when someone “enters the service of an enemy state” or “commits or attempts to commit an act deemed to endanger the peace and security of the state.”³⁵ Article 18 also only gives the Cabinet, with approval of the King, the power to revoke nationality.

Regardless, after 1988, regulations governed 67er nationality revocations. These regulations expanded the conditions under which Palestinian-Jordanians could lose Jordanian nationality. The first regulations were publicly available (Kingdom of Jordan, 1988a), but subsequent regulations were not (and instead were internal to the MOI).³⁶ The initial, publicly available regulations added residence on the West Bank before July 31, 1988 as a condition for losing nationality. They also stated that the colored identity documents issued in 1983 to track Palestinian movement between the East and West Banks would remain valid. According to this system, those living on the West Bank received green “bridge cards,” while those living on the East Bank received yellow cards. The continued use of the bridge-crossing cards would enable government officials to claim that all green card holders should lose their Jordanian nationality.

Thus, the next, more secretive, disengagement regulations added holding a green bridge-crossing card as a condition for nationality revocation.³⁷ These secret regulations came from the MOI’s Follow-Up and Inspection Department, which was created to enforce the disengagement. Although one could argue that the green cards represented West Bank residency, the problem is that not all holders of green cards had lived on the West Bank. Since the government started distributing these cards in the early 1980s, as a rough indicator of population movement, officials were not concerned with the yellow or green distinction and sometimes people received the wrong color card. For example, if the office ran out of yellow cards, it would distribute green cards to everyone that day.³⁸

A second major example of the secret disengagement regulations concerns Palestinian-Jordanians who were not residing on the East or West Bank in July 1988.³⁹ For instance, many Palestinian-Jordanians lived in the Arab Gulf, North America, and Europe. Depending on when they left Jordan, some of these individuals received a green or yellow card, based on where they left from, and others had not received a card.⁴⁰ The publicly available disengagement regulations did not specify how to treat this group.⁴¹ As such, secret MOI regulations instructed staff to withdraw Jordanian nationality from Palestinians who were not living on the East Bank in 1988, rather than only from those living on the West Bank in 1988.

Lawyer, Ayman Halaseh (2016), summarizes the “secret” disengagement regulations governing nationality revocation. These include removing Jordanian nationality from:

“- Any person that has a Palestinian ID and works for the Palestinian National Authority;

Any person that has a valid or expired Israeli occupation ID card;

[Bridge-crossing] Green Card holders;

Anyone who left Palestine between 1967 and 1988 and holds an Israeli ID card, among those covered by the census which was carried out by the Israeli occupation after 1967; and

Anyone holding Arab identification documents.”

A high-level government official confirmed that there has been “literally a checklist of things to look for to pull citizenship.”⁴²

Despite efforts to compile these secret regulations, it is difficult to ascertain them at a given time without being subjected to them. As one former minister stated, who held ministerial portfolios in the 1990s, these regulations “have been changing,” and “the Minister of Interior plays a role in dictating these policies.”⁴³ Moreover, officials often do not inform individuals that they lost their nationality until they interact with the MOI during routine transactions, such as registering a birth (Human Rights Watch, 2010, 3). Although there are no clear figures on how many individuals have been affected, one lawyer stated that about 10,000 Palestinian-Jordanians lost their nationality after the disengagement.⁴⁴ A former minister suggested that there were 4,000–6,000 nationality revocations total,⁴⁵ while another former minister indicated that there were about 1600–1700 of these revocations a year.⁴⁶ Regardless of the numbers, hidden intentional ambiguity clearly characterizes this gap between 67ers’ access to Jordanian nationality in the law and implementation.

Conclusion

These examples highlight that implementation gaps can materialize in clear divergences between a policy’s law and its corresponding regulations. Further, they demonstrate that senior policymakers oversee and enact this type of implementation gap, accentuating that it is not accidental, but is intentional. Although this paper does not focus on why intentional ambiguity emerges, I theorize in other work, that the role of competing pressures and constraints on executive leaders, from influential actors interested in the policy, is key to motivating this law-regulation gap.⁴⁷ Essentially, intentional ambiguity enables leaders to respond to contradictory imperatives by satisfying one in law and another in regulations, as long as the hypocrisy costs of doing so are low.

Jordan has long-faced contradictory pressures and constraints due to the unresolved Palestinian-Israeli conflict and uncertain future of a Palestinian state. At times, this has materialized in Jordan’s efforts to maintain backchannels with Israeli leaders, often with the hope of regaining more Palestinian territory, while publicly aligning with Arab sentiments that demand Israeli concessions before entering negotiations and that emphasize Palestinian (not Jordanian) sovereignty over the West Bank. At others, the contradictions manifest in Jordan’s identity as an Arab state, accepting of fellow Arabs fleeing conflict, versus Israeli efforts to send more Palestinians to Jordan, thereby demanding that Jordan adopt an exclusionary response, at least publicly, to stem the further displacement of Palestinians from their homes. Unfortunately, the latter tension remains painfully relevant in 2024 as Jordan refuses to accept more refugees from Gaza, despite the catastrophic humanitarian situation there, because Israeli precedent suggests they will not be allowed to return.

In addition to the causes, the implications of intentional ambiguity are also important. When individuals do not know what their rights are, it is difficult to defend them. Likewise, hidden intentional ambiguity can transfer exceptional power to line ministers, producing unstable policies that street-level bureaucrats and other executive leaders have trouble tracking. In other work, I examine the effects of intentional ambiguity on those the policy governs as well as on policymakers and enforcers.⁴⁸

Although this paper focused on Jordanian cases, intentional ambiguity could occur in other “developing” refugee host states. Secondary sources suggest that it is common for these states to say one thing and do another in their refugee policies. For example, other host states, including Uganda, Tanzania, Ghana, and Kenya, have offered refugee groups access to nationality in law, while simultaneously denying them or diminishing this access in implementation (Dick, 2002; Hovil & Lomo, 2015). On the other hand, other states, including India, Thailand, Sudan, and Côte d’Ivoire, have prohibited refugee groups from accessing nationality and citizen rights in law, while granting these refugee groups rights in implementation that are the same or similar to citizen rights, including access to certain work sectors, education, and healthcare (Fielden, 2008; Kuhlman, 2002; Lui, 2007). Future research would benefit from assessing whether these law-regulation gaps are cases of intentional ambiguity.

In addition, intentional ambiguity may characterize some migration policies in the global north. For example, accounts of family separations on the southern U.S. border highlight similarities between these policies and intentional ambiguity. Specifically, the Trump administration repeatedly denied that a family separation policy existed (Cordero, 2018), even as government insiders told journalists that it did exist and provided details about the ways Border Patrol agents implemented it (Jordan & Dickerson, 2019). This discrepancy points to a parsing apart of law and regulations in U.S. migration policies (Calavita, 2016, 118–120). Future research would benefit from exploring these apparent similarities and the conditions under which intentional ambiguity could emerge in democratic regimes.

Lastly, intentional ambiguity may characterize law-regulation gaps in other policy areas. For example, interviewees in Jordan pointed out similar dynamics in the government’s handling of women’s rights reforms, where policy changes took place in law but not in implementation. Economic reforms as part of International Monetary Fund restructuring packages represent another area where policies seem to change more in law than implementation. However, the extension of intentional ambiguity beyond citizenship and migration policies could be limited to more autocratic regimes, where executive leaders tend to control policymaking in most areas.

Overall, intentional ambiguity represents an important type of law-regulation gap. In addition to conceptualizing a critical phenomenon in citizenship and migration policy, it restores agency to policymakers in “developing” contexts as well as emphasizes how active they can be in migration management, even if such activity is not apparent in law or more public-facing institutions. Intentional ambiguity shines light on how leaders can govern in the shadow of the law as well as undermine the implementation of new laws. Likewise, it reveals patterns in the governance of citizen and noncitizen groups that open further avenues for research on how citizenship operates across residents in a state, as well as on the conditions under which intentional ambiguity is possible.