The Palestine-Israel Journal is a quarterly of MIDDLE EAST PUBLICATIONS, a registered non-profit organization (No. 58-023862-4).
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Editorial Board

Hisham Awartani

Danny Rubinstein

Sam'an Khoury

Boaz Evron

Walid Salem

Ari Rath

Zahra Khalidi

Daniel Bar-Tal

Ammar AbuZayyad

Galit Hasan-Rokem

Khaled Abu Aker

Galia Golan

Nazmi Ju'beh

Gershon Baskin

Edy Kaufman

Ata Qaymari

Benjamin Pogrund

Nafez Nazzal

Simcha Bahiri

Nadia Naser-Najjab

Dan Jacobson

Jumana Jaouni

Dan Leon

Anat Cygielman

Khuloud Khayyat Dajani

Izhak Schnell



Vol.9 No.2 2002 / Right of Return

Focus

Palestinian Refugees and the Right of Return in International Law

The Right of Return in the context of international law

     by Badil

For more than 50 years, Israel has based its refusal to allow Palestinian refugees to exercise their Right of Return on a number of key arguments. These include: lack of physical space, the desire to maintain a demographic Jewish majority, state security and international law. This article addresses the right of refugees to return to their homes and properties based on four bodies of international law. The UN reaffirmed the status of the Right of Return as a customary norm applicable to Palestinian refugees in UN resolution 194(III), 1948. The responsibility of the international community to ensure that Israel immediately and fully implements the Palestinian refugees’ Right of Return has gained even greater weight over the fifty-plus years since the period of initial displacement.

UN General Assembly Resolution 194 (III) and the Right of Return2
UN resolution 194, paragraph 11, establishes the framework for a solution to the plight of Palestinian refugees. It identifies three distinct rights that Palestinian refugees are entitled to exercise under international law - return, restitution and compensation. Resolution 194 further affirms that those refugees choosing not to exercise their Right of Return are entitled to be resettled and receive compensation for their losses. It also instructs the UNCCP to facilitate repatriation, resettlement, compensation, and economic and social rehabilitation. The emphasis on repatriation as the preferred solution for Palestinian refugees reflects several principles, including the right of displaced persons to return to their homes, as well as the prohibitions against arbitrary denationalization and mass expulsion, that were customary norms of international law by 19483. Several principles are relevant to the implementation of the right of return as delineated in resolution 194.
First, the resolution clearly identifies the exact place to which refugees are entitled to return, i.e., to their homes4. Second, the resolution affirms that return must be guided by the individual choice of each refugee. According to the UN Mediator’s report, it was an “unconditional right” of the refugees “to make a free choice [which] should be fully respected”5.
Third, resolution 194 identifies the time frame for the return of refugees, i.e., “... at the earliest practicable date.” The UN Secretariat concluded that “the Assembly agreed that the refugees should be allowed to return when stable conditions had been established. It would appear indisputable that such conditions were established by the signing of the four Armistice Agreements” in 1949. Fourth, resolution 194 imposes an obligation on Israel to re-admit the refugees. Finally, resolution 194 was drafted to apply to all refugees in Palestine. While the first two drafts of paragraph 11 used the term “Arab refugees” the final draft approved by the General Assembly on 11 December only used the term “refugees.”
The fact that the General Assembly made Israel’s admission as a member to the UN conditional upon implementation of resolution 194 clearly indicates that the Assembly considered Israel bound to ensure full implementation of the Palestinian refugees’ Right of Return6. The UN General Assembly has reaffirmed resolution 194 annually without diminution since 1948.

The Right of Return in the Law of Nationality
The law of nationality is a subset of the larger “law of nations,” which regulates state-to-state obligations. The first major principle of relevance to the Right of Return is that while states do have some domestic discretion in regulating their nationality status (i.e., determining who is a national of their country) such discretion has clear limits under international law7.
Under the law of nationality, the duty to implement the individual’s right of return is an obligation owed by a state to all other states. The rule is that states are required to readmit (i.e., allow to exercise their right of return) their own nationals - including temporarily displaced persons in cases of state succession - because to refuse to do so would impose on some other state an obligation to receive or host the rejected individual. This is known as the “rule of readmission.”
Another customary rule exists under the law of nationality known as the “prohibition against denationalization.” This rule follows as a natural corollary to the rule of readmission and prevents a state from using revocation of nationality status as a means of avoiding its obligation to admit its own nationals. This rule - like the rule of readmission - attained customary status well before the events of 19488. Israel’s 1952 Nationality Law completely violates the rule of the law of nationality prohibiting denationalization. While the 1952 Nationality Law carefully avoids the use of the term “non-Jew” in describing the narrowly defined9 categories of persons who might be eligible for Israeli citizenship, it was clearly intended to apply to non-Jews only, as Jews would be able to enter Israel under the Law of Return10. The vast majority of Palestinian refugees are incapable of meeting the strict requirements of Israel’s 1952 Nationality Law and have therefore been effectively denationalized.

The Law of State Succession
The law of state succession applies whenever one state (a predecessor state) is followed in the international administration of a geographical territory by another state (the successor state). In the case of Palestinian refugees, the predecessor state was the embryonic state of Palestine11 for which, under international law, the British Mandate for Palestine constituted a “custodian”, and was succeeded, in part, by the state of Israel. When territory undergoes a change of sovereignty, the law of state succession requires that habitual inhabitants of the geographical territory coming under new sovereignty be offered nationality by the new state. This rule applies regardless of whether the habitual residents of the territory so affected are actually physically present in the territory undergoing the change of sovereignty on the actual date of the change or not.
This rule was recognized by the legal advisor to the UN Economic Survey Mission in 194912 and by a Tel Aviv district court in a 1951 case13. The judge came to the conclusion that in the absence of any law to the contrary (Israel had not yet enacted its 1952 Nationality Law), all Palestinians who remained inside the 1949 armistice lines should automatically be considered nationals of the state of Israel, through the operation of international law.

The Right of Return in Humanitarian Law
The right is also anchored in humanitarian law, the body of law regulating what states are permitted to do during war. Both the 1907 Hague and the 1949 Geneva Conventions (to which Israel is a signatory) provide for the right of return of displaced persons to their homes following the cessation of hostilities. The provisional government of Israel (through responsibility for its army and the Zionist paramilitary forces which preceded it) was fully bound by the rules of humanitarian law when Zionist forces tried to establish a state through military means.
Under humanitarian law, there is a general Right of Return, which applies to all displaced persons, irrespective of how they came to be displaced during the period of conflict. This rule was first codified in Article 43 of the Hague Regulations (and incorporated into all subsequent customary humanitarian law, including the Geneva Conventions and their related Protocols). According to this rule, a belligerent occupant must preserve the legal and social status quo in the occupied territory to the maximum extent possible, pending the final legal resolution of the conflict (i.e., a peace agreement).

The Right of Return in Cases of Forcible (Mass) Expulsion
There is a second type of Right of Return provided for in humanitarian law. This applies when persons have been displaced through a forcible expulsion (at gunpoint, under threat of fire or through the deliberate military “stampeding” of a population out of its place of habitual residence). The only appropriate corrective remedy for forcible expulsion, under international law, is implementation of the Right of Return.

The Right of Return in Human Rights Law
Human rights law - which confers rights directly upon individuals and not through states - also contains the right of return. Every individually-held right recognized under human rights law imposes a corresponding duty upon states to recognize that enumerated right. The Universal Declaration of Human Rights (UDHR), which the General Assembly adopted in 1948 one day prior to Resolution 194, is the foundation for the right of return in human rights law. Article 13(2) of the UDHR phrases the right of return broadly and simply, as follows: “Everyone has the right to leave any country, including his own, and to return to his country.”
Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) phrases the right of return similarly: “No one shall be arbitrarily deprived of the right to enter his own country.” Thus, the ICCPR phrasing of the Right of Return would accommodate the situation of second, third or fourth-generation Palestinian refugees14. Some commentators have tried to argue that Article 12(4) only applies to individuals, and not to large groups of people seeking to claim the right simultaneously. This argument does not make sense, since all rights enumerated in the ICCPR are granted to individuals, regardless of how many other people might be seeking to exercise the same enumerated right, and at what point in time15. Finally, it must be noted that the ICCPR contains a general non-discrimination provision in Article 2(1), which categorically prohibits governmental interference with ICCPR-guaranteed rights based on “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Returning to Israel’s two nationality laws - the 1950 Law of Return (for Jews) and the 1952 Nationality Law (for “non-Jews”) - it becomes immediately obvious that the intended result of these two laws working in tandem is precisely to use “race, colour, [] language, religion, political or other opinion, national or social origin, [] birth or other status” as filters for administering the conferral of Israeli nationality status.

The Right of Return in Refugee Law and State Practice (Opinio Juris)
The right of return also exists in a special sub-set of human rights law, which is the law relating to refugees. The primary instrument governing rights of refugees and states’ obligation towards them is the 1951 Convention Relating to the Status of Refugees and its related 1967 Protocol. The juridical source of refugees’ right of return in refugee law is human rights law, while actual implementation of the right of return is through the Office of the UN High Commissioner for Refugees (UNHCR)16.
Under refugee law, the principle of refugees’ absolute right of return on a voluntary basis to their place of origin (including to their homes of origin) is central to the implementation of durable solutions designed by the international community to address refugee flows. Of the three durable solutions - voluntary repatriation (i.e., return), voluntary host country integration, and voluntary resettlement - the UNHCR considers voluntary repatriation to be the most appropriate solution to refugee problems17.
State practice regarding implementation of bilateral or multilateral mechanisms for repatriation of refugees provides rich precedent for - and evidence of opinio juris regarding - the existence of a customary norm requiring countries of origin to receive back persons displaced or expelled therefrom18.
Prominent examples include the 1994 Bosnia agreement, the 1995 Dayton Accord, the 1995 Croatia agreement, and the 1994 Guatemala agreement. All four agreements describe the right of refugees and displaced persons to return to their homes of origin (as in resolution 194) as being unqualified19.

Conclusion
Discussion of the implementation of the Right of Return of Palestinian refugees raises many questions regarding the nature of the state of Israel and the legality of its actions towards Palestinian refugees. The refugees’ Right of Return, however, has gained even greater weight with the intervening passage of more than fifty years since the period of initial displacement of the Palestinian refugees. The Right of Return, as set forth in resolution 194, conforms with binding principles, codified in the four separate bodies of international law as explained above, strengthening its relevance as a durable solution for Palestinian refugees. Implementation of the Right of Return - and the other associated rights enumerated in resolution 194 (i.e., restitution and compensation) - is, therefore a logical necessity for a just and legal peace agreement between Israel and the Palestinians, under international law.


1 This article is a summary of a longer legal analysis written by Gail J. Boling, BA entitled The 1948 Palestinian Refugees and the Individual Right of Return: An International Law Analysis and published by BADIL (January 2001).
2 This section is based on unpublished research by Terry Rempel, Coordinator of Research and Information, BADIL Resource Center.
3 Customary norms are legally binding upon all states, and states are, therefore, legally obligated to follow the rules codified by these norms.
4 See Analysis of Paragraph 11 of the General Assembly Resolution of 11 December 1948, Working Paper Prepared by the UN Secretariat, UN Doc. A/AC.25/W.45, 15 May 1950.
5 See Paolo Contini, Legal Aspects of the Problem of Compensation to Palestine Refugees, 22 Nov. 1949, attached to Letter and Memorandum dated 22 November 1949, Concerning Compensation, received by the Chairman of the Conciliation Commission from Mr. Gordon R.. Clapp, Chairman, UN Economic-Survey Mission for the Middle East. UN Doc. W/32, 19 January 1950.
6 See UN resolution 273 (1949) of 11 May 1949.
7 This principle is universally recognized. See,Tunis and Morocco Nationality Decrees advisory opinion, PCIJ, Series B, No. 4 (1923) at 24; Convention on Certain Questions relating to the Conflict of Nationality Laws, League of Nations Treaty Series, vol. 179, 89 (1930), art. 1.
8 See, e.g., Research in International Law, Harvard Law School, “Nationality, Responsibility of States, Territorial Waters: Drafts of Conventions Prepared in Anticipation of the First Conference on the Codification of International Law, The Hague, 1930”.
9 See Nationality Law, 5712/1952, 93 Official Gazette 22 (1952), sect. 3.
10 4 Laws of the State of Israel 114 (1950). The law casts a wide arc, to grant Israeli citizenship to the largest number of Jews possible.
11 The League of Nations, as early as 1919, “provisionally” recognized Palestine’s “existence” as a fully sovereign “independent nation” in Article 22 of its Covenant.
12 See Paolo Contini, Legal Aspects of the Problem of Compensation to Palestine Refugees, supra 6.
13 A.B. v. M.B., 17 ILR 110 (Tel Aviv District Court, 6 April 1951, Zeltner, J.).
14 Article 12(4) of the ICCPR uses the phrase “his own country” to specify the destination or location where the right of return is to be exercised.
15 Respected commentators have rejected the concept that the Article 12(4) cannot apply to large groups of people. See, e.g., Manfred Nowak, UN COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 220 (1993).
16 The status of Palestinian refugees under the 1951 Convention and the protection function of the UNHCR have been addressed in previous Briefs by BADIL.
17 See eg, Executive Committee Conclusion No. 18 (XXXI) 1980, Voluntary Repatriation; Executive Committee Conclusion No. 40 (XXIX) 1985, Voluntary Repatriation.
18 Rosand, 1091.
19 See Susan M. Akram and Terry Rempel, “Recommendations for Durable Solutions for Palestinian Refugees: A Challenge to the Oslo Framework,” Palestine Yearbook of International Law (forthcoming volume for 2000-2001).








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