Return, in the context of repatriation, is not a legal right according to the present development of international law. It is not enshrined in general human rights law, the law of nationality, the law of refugees or humanitarian law. Accordingly, Palestinians cannot speak of a “right” to return based on international law.
Palestinians can neither base a right to repatriate on international law documents which deal specifically with the Palestinian problem. These documents are General Assembly or Security Council Resolutions which are not binding legal sources, but merely offer recommendations. The content of the resolutions is controversial and they offer alternative solutions to repatriation, such as resettlement and a “just solution.”
Any negotiations between Israel and the Palestinians should take into consideration that repatriation of Palestinians to the State of Israel is not imposed upon Israel by international law.
- Universal Declaration
- Gaza Strip
- Geneva Convention
- Security Council Resolution
- Habitual Residence
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I would like to thank Prof. Shlomo Avineri for his helpful comments and Prof. Yedidia Z. Stern, Dr. Gidon Sapir and Dr. Shachar Lifshitz for reading the article and supporting my arguments. Thanks to Nimra Goren, Rahel Rimon and Ruth Ben-Zvi for all their assistance. I would likewise wish to express my gratitude, for the referencing of historical sources, to Dr. Shelly Fried, who unfortunately passed away before the finalisation of this publication.
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A/RES/194 (III) of 11 December 1948.
Article 38 para. 1 of the Statute of the International Court of Justice, <http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm>. See also Restatement of the Law (Third) The Foreign Relations of the U.S. 1986, Vol. I, § 102, 24 et seq.
According to Article 38 para. 1 (b) of the Statute of the International Court of Justice, ibid., custom is defined as “evidence of a general practice accepted as law.” See also Restatement, ibid., comments (b) and (c), 25, and reporters’ note 2, 26.
See M.N. Shaw, International Law, 1997, 4th ed., 89 et seq.; I. Brownlie, Principles of Public International Law, 1990, 4th ed., 10; M. Akehurst, Akehurst’s Modern Introduction to International Law, 1997, 7th ed., 47 et seq.; R. Jennings/A. Watts (eds), Oppenheim’s International Law, 1992, 9th ed., 29.
See Article 38 para. 1 of the Statute of the International Court of Justice, see note 2, and Restatement, see note 2, comment (g) and reporters’ note 3, 26 et seq.
See Akehurst, see note 4, 378; Shaw, see note 4, 89 et seq.; Brownlie, see note 4, 14, 699.
See Jennings/Watts, see A. Watts (eds), Oppenheim’s International Law, 1992, 9th ed. note 4, 48 et seq.; Akehurst, ibid., 40; Shaw, ibid., 75 et seq., 90 et seq.; Restatement, see note 2, comment (i), 26, and reporters’ notes 5, 7. In the Nicaragua case, ICJ Reports 1986, 14 et seq. (99-100, para. 188), the court noted that: “... opinio juris may, though with all caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly Resolutions, and particularly Resolution 2625(xxv) entitled ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the UN.’”
Akehurst, ibid., 41–42; the Nicaragua case, ibid., p. 98, para. 186.
See note 6.
See K.R. Radley, “The Palestinians Refugees, The Right to Return in International Law”, AJIL 72 (1978), 586 et seq., 599 et seq.; R. Lapidoth, “Israel and the Palestinians: Some Legal Issues”, Die Friedens-Warte, Journal of International Peace and Organization 76 (2001), 211 et seq., 235; M. Klein, “Between Right and Realization: The PLO Dialectics of the ‘Right to Return’”, Journal of Refugee Studies 11 (1998), 1 et seq.; D.E. Arzt/K. Zughaib, “Return to the Negotiated Land: The Likelihood and Legality of Population Transfer Between Israel and a Future Palestinian State”, Journal of International Law and Politics 24 (1992), 1399 et seq., 1437; J. Singer, “No Palestinian ‘Return’ to Israel”, Human Rights Brief 8 (2001), 5 et seq. See also the UN Study, “The Right of Return of the Palestinian People”, 1 November 1978, ch. V, ST/SG/SER.F/2. There is a Palestinian allegation that Aba Eban, Permanent Representative of Israel to the UN made a statement in the UN where he agreed to Resolution 194 (III). This is inaccurate, see the statement he made on the issue of the refugees on 4 May 1949, in Y. Rosenthal (ed.), Documents on the Foreign Policy of Israel, Vol. 4, 1986, 15 et seq.
The Palestinians only began to move towards the acceptance of the UN resolutions during the mid-1980s (in 1985, in an agreement between the PLO and Jordan it was agreed to solve the refugee problem in accordance with the UN resolutions). See Klein, ibid., 4 et seq.; and Arzt/Zughaib, ibid., 1433 et seq.
Resolution 194 (III) spoke of “refugees” and not only “Arab refugees,” whereas the text of the Report of the UN Mediator Count Bernadotte of 18 September 1948, referred only to “Arab refugees.” See E. Benvenisti, The Right to Return in International Law: An Israeli Perspective, 2003, 2, note 4, <http://www.tau.ac.il/law/ members/benvenisti/work.html>.
Count Bernadotte spoke of “right.” See Benvenisti, idem.
See Radley, see note 10, 600.
This statement was made by Prime Minister David Ben Gurion at the meeting of the United Nations Conciliation Commission for Palestine on 7 April 1949. See Y. Freundlich (ed.), Documents on the Foreign Policy of Israel, Vol. 2, 1984, 561; and see also Radley, ibid., 610; Y. Tadmor, “The Palestinians Refugees of 1948: The Right to Compensation and Return”, Temp. Int’l & Comp. L. J. 8 (1994), 403 et seq., 424, notes 203, 204; UN Study, see note 10, ch. V, note 2 and ch. VI, note 6.
See Tadmor, ibid., 424; UN Study, ibid., ch. V, text accompanying note 4.
See G.J. Boling, The 1948 Palestinian Refugees and the Individual Right to Return, An International Law Analysis, 2001, 13, note 36.
See Boling, ibid., 10 et seq.; J. Quigley, “Displaced Palestinians and a Right to Return”, Harv. Int’l L.J. 39 (1998), 171 et seq., 211 et seq.
A/RES/393 (V) of 2 December 1950, emphasis added.
A/RES/513 (VI) of 26 January 1952, 6 GAOR, Suppl. (No. 20) 12, UN doc. A/2119(1951), id.
See Klein, see note 10, 2.
A/RES/2535 (XXIV) A-C of 10 December 1969; A/RES/2672 (XXV) of 8 December 1970; A/RES/2792 (XXVI) A-E of 6 December 1971; A/RES/2963 (XXVII) A-F of 13 December 1972.
A/RES/3089 (XXVIII) A-E of 7 December 1973.
A/RES/3236 (XXIX) of 22 November 1974.
S/RES/233 (1967) of 6 June 1967.
S/RES/242 (1967) of 22 November 1967.
S/RES/338 (1973) of 22 October 1973.
See Arts A3, A4 of the Peace Treaty between Israel and Egypt, 1978, UNTS Vol. 1138 Nos 39–45; Article 8 of the Peace Treaty between Israel and Jordan, 1995, ILM 34 (1995), 43–66; Declaration of Principles on Interim Self-Government Arrangement between Israel and the Palestinians, 1993, ILM 32 (1993), 1525–1544.
See Lapidoth, see note 10, 238; Singer, see note 10, 2.
See Preamble and Article XXX para. 9 of the Israel-Palestine Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995, <http://www.israel. org/mfa/go.asp?MFAH00qa0>.
Arts 1 para. 3, 55, 56 of the UN Charter, 1945, <http://www.un.org/aboutun/charter/index.htmlgt;.
Universal Declaration of Human Rights, 1948, A/RES/217 of 10 December 1948.
Convention Relating to the Status of Refugees, 1951, UNTS Vol. 189 No. 137. The UN High Commissioner for Refugees draws his power from the Stat ute of the General Assembly Resolution 428 (V) of 14 December 1950, <http://www.unhcr.ch/cgi-bin/texis/vtx/home?page=search>.
Article 13 para. 2 of The Universal Declaration of Human Rights, see note 33, and Article 12 para. 2 of The African Charter on Human and Peoples’ Rights, 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, reprinted in: I. Brownlie, Basic Documents on Human Rights, 1992, 3rd ed., 556.
Article 12 para. 4 of The International Covenant on Civil and Political Rights, 1966, UNTS Vol. 999 No. 171; Article 3 para. 2 of the Fourth Protocol of the European Convention of Human Rights, 1950, reprinted in: Brownlie, ibid., 347; Article 22 para. 5 of The American Convention on Human Rights, 1969, reprinted in: Brownlie, ibid., 504.
See H. Hannum, The Right to Leave and to Return in International Law and Practice, 1987, 56.
Article 22 para. 5 of The American Convention of Human Rights, see note 37, provides: “No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it.”
J. Ingles, Special Rapporteur: Study of Discrimination in Respect to the Right of Everyone to Leave Any Country, Including His Own and to Return to His Country, UN Sales No. 64 XIV 2, UN Doc. E/CN/4 Sub.2/220/Rev.I (1963); P. Sieghart, The Lawful Rights of Mankind, 1985, 115.
M. Nowak, CCPR Commentary — U.N. Covenant on Civil and Political Right, 1993, 219 et seq.
Hannum, see note 38, 59.
UN Doc. CCPR/C/21/Rev.1/Add 9, 2 November 1999, 5 et seq. In the Nottebohm case (Liechtenstein, Guatemala)(second phase), ICJ Reports 1955, 4 et seq. (23), the court defined nationality as “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] juridical expression of the fact that the individual upon whom it is conferred is more closely connected with the population of the conferring State than with any other State.”
See K. Lawand, “The Right to Return of Palestinians in International Law”, International Journal of Refugee Law 8 (1996), 532 et seq., 556.
See Lapidoth, see note 10, 235; Benvenisti, see note 12, 5; Lawand, ibid., 542 and notes 43–45; Quigley, see note 18, 211 et seq., notes 232–229; S. Jagerskiold, “The Freedom of Movement”, in: L. Henkin (ed.), The International Bill of Rights, 1981, 166, 180.
See Lawand, ibid., 543, notes 47–49. Lawand notes that even though the right of return is an individual right, at the end it may be a massive return of many individuals. Therefore there is no reason why not to apply it in the case of a large-scale return. See also Quigley, ibid., 213 et seq., 233 et seq.
Article 16 para. 3 of the Universal Declaration on Human Rights, see note 33; Article 10 para. 1 of the International Covenant of Economic, Social and Cultural Rights, 1966, UNTS Vol. 993 No. 3; Article I 16 of the European Social Charter, 1961, ETS No. 035, §I, Art.16; Arts 18 para. 1, 27 para. 1 of the African Charter on Human and People’s Rights, see note 36.
International Covenant of Civil and Political Rights, see note 37.
The Declaration on Emergency State of 15 May 1948 went on until 1997. Beginning with 1997, according to Article 49 of the Basic Law: the Government, 1992, S.H. 1396, 214, and the Basic Law that substituted it (Article 38 of the Basic Law: The Government, 2001, S.H. 1780, 158), a state of emergency should be declared every year — and so it is practically done.
See Nowak, see note 41, 219; Y. Zilbershats, The Human Right to Citizenship, 2002, 48.
See Zilbershats, idem; Lawand, see note 44, 547 et seq. It should be noted that “arbitrary” in Article 12 para. 4 of the Covenant of Civil and Political Rights is considered a narrower limitation than the limitation on the right to leave any country and the right to liberty of movement within a state, that is provided in Article 12 para. 3 of this covenant.
A. Zimmermann, “The Nationality of the Inhabitants of the Palestinian Autonomous Territories”, in: M. Tabory / A. Shapira (eds), New Political Entities in Public and Private International Law: with special reference to the Palestinian entity, 1999, 231, 233 et seq., 234, note 16; Quigley, see note 18, 208 et seq.
See Quigley, ibid., 210. Zimmermann, idem, analyses the Palestinian citizenship but does not necessarily come to the same conclusion as Quigley does. See Boling, see note 17, 21.
See Boling, ibid., 24, notes 75–79.
Ibid., 24 et seq., notes 80–81; Lawand, see note 44, 555.
These two terms are considered to have the same meaning and may be used interchangeably. See Zilbershats, see note 50, 4 et seq.
H.F. Van Pamhys, The Role of Nationality in International Law, 1959, 222; P. Weis, Nationality and Statelessness in International Law, 1979, 198–199; J.M.M. Chan, “The Right to a Nationality as a Human Right”, HRLJ 12 (1991), 1 et seq.
ETS No. 105.
See note 37.
See note 34.
UNTS Vol. 360 No. 117.
UNTS Vol. 660 No. 195.
ETS No. 166. Article 5 para. 1 of the convention provides: “The rules of a State Party on Nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin.”
Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930, L.N.Doc.C.24M.13 1931 V; Convention on Nationality of Married Women, 1957, UNTS Vol. 309 No. 65; Convention on the Reduction of Statelessness, 1961, UNTS Vol. 989 No. 175; Article 3 of Declaration of the Rights of the Child, 1959, A/RES/1386 (XIV) of 20 November 1959; Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973, UNTS Vol. 1015 No. 243; Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, UNTS Vol. 1249 No. 13; Arts 7, 8 of the Convention on the Rights of the Child, 1989, UNTS Vol. 1577 No. 3.
Harvard Draft Convention on Nationality, 1929, AJIL 23 (Special Suppl. 1929), 11; Convention on the Reduction of Statelessness, 1961, ibid.
Report of the International Law Commission, 1999, ch. IV, <http://www.un.org/law/ilc/reports/1999english/chp.4.htm>.
A/RES/55/153 of 12 December 2000.
See note 34.
Article 33 of the Refugee Convention, ibid.
Arts 32 and 33 of the Refugee Convention, ibid.
E. Rosand, “The Right to Return Under International Law Following Mass Dislocation: The Bosnia Precedent”, Mich. J. Int’l L. 19 (1998), 1091 et seq., 1116 et seq.; J. Hathaway, “The Meaning of Repatriation”, International Journal of Refugee Law 9 (1997), 551 et seq., 551 et seq.; S. Takahashi, “UNHCR Handbook on Voluntary Repatriation, The Emphasis of Return over Protection”, International Journal of Refugee Law 9 (1997), 593 et seq., 597 et seq.
Protocol Relating to the Status of Refugees, 1967, <http://www.unhchr.ch/html/menu3/b/o_p_ref.htm>.
See note 34.
James Hathaway comments that there should be a mandatory duty upon refugees to repatriate to their state of origin. He advocates a clear rule stating that asylum be temporary and that refugees be required to return to their state of origin because in the last decade of the 20th century, states ceased to consider refugees as immigrants or, more accurately, were reluctant to allow refugees asylum for fear that they would stay permanently in the state. No right of return practice exists, and therefore no rules about how to implement the right exist either. There are no answers to basic questions regarding the right, such as when is the proper time to return, what safeguards must exist, who will supervise the implementation of those safeguards, what happens if the refugee refuses to return etc. See Hathaway, see note 79, 554 et seq. See also Takahashi, see note 79, 601 et seq.; S. Bagshaw, “Benchmarks or Deutschmarks? Determining the Criteria for the Repatriation of Refugees to Bosnia and Herzegovina”, International Journal of Refugee Law 9 (1997), 566 et seq., 573 et seq., 591.
M. Zieck, “UNHCR’ special Agreement’”, in: I. Klabbers/ R. Lefebre (eds), Essays on the Law of Treaties — a Collection of Essays in Honour of Bert Vierdag, 1998, 171, 182 et seq.; see also Arzt/Zughaib, see note 10, 1450.
Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, USTS 539, AJIL 2 (1908), Supp. 90.
Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS Vol. 75 No. 287.
Article 20 of Hague Regulations, see note 84; Article 118 of Geneva Convention (IV), ibid.
Article 134 of IV Geneva Convention (IV), ibid.
See Radley, see note 10, 597 et seq.
See Peace Treaty between Israel and Egypt, see note 29; Peace Treaty between Israel and Jordan, ibid.; Declaration of Principles on Interim Self-Government Arrangement between Israel and the Palestinians, ibid. See also J.R. Weiner, “The Palestinian Refugees ‘Right to Enter’ and the Peace Process”, Boston College International and Comparative Law Review 20 (1997), 1 et seq., 3 et seq.; G. Halley, “Issues Confronting the Return of Palestinian Arab Refugees after the 1993 Declaration of Principles on Interim Self-Government Arrangements”, Geo. Immigration Law Journal 8 (1994), 149 et seq., 152 et seq.
Article 6 (c) of The Charter of the International Military Tribunal (IMT) in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 August 1945, UNTS Vol. 82 No. 280.
See note 84.
Article 2 of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of the International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, S/RES/827 (1993) of 25 May 1993.
Article 3 of Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of the International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 Jan. 1994 and 31 Dec. 1994, S/RES/955 (1994) of 8 November 1994.
Article 7 of Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9, ILM 37 (1998), 999.
See Radley, see note 10, 589 et seq.; Lawand, see note 44, 536 et seq.; L. Takkenberg, The Status of Refugees in International Law, 1998, 334; Weiner, see note 89, 15 et seq.; Arzt/Zughaib, see note 10, 1421 et seq.
Encyclopaedia Judaica, Vol. 2, 1971, 335–336.
Convention Concerning the Exchange of Populations, 30 July 1923, Greece-Turkey, LNTS Vol. 28 No. 11, reprinted in 2 The Treaties of Peace, 1919–1923, 1924, 653. See Benvenisti, see note 12, 7; and E. Benvenisti/E. Zamir, “Private Claims to property Rights in the Future Israeli-Palestinian Settlement”, AJIL 89 (1995), 295 et seq., 321 et seq.; and Rosand, see note 79, 1115 et seq.
The Berlin (Potsdam) Conference Protocol, 1 August 1945, section XII, reprinted in: C.I. Bevans, Treaties and Other International Agreements of the United States of America 1776–1949, Vol. 3, 1969, 1207, <http://www.yale.edu/lawweb/avalon/decade/decade17.htm>; see Benvenisti, ibid., 7 et seq.; and Benvenisti/Zamir, ibid., 322; and A. De Zayas, Nemesis at Potsdam, 1990, chs. 1, 5–6.
See Benvenisti, ibid., 8; Benvenisti/Zamir, ibid., 323.
This is based on the principles of the IMT, see note 90.
Here lies the idea of individual responsibility, additional to state responsibility. This means that the performers will stand trial. The basis for this principle lies in the IMT, Article 6, ibid.
See note 12.
General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995, UN Doc/1995/999, Ch. 1, Article I para. 1 of Annex 7, <http://www.ohr.int/docu/d951208a.htm>.
J. Quigley, “Repairing the Consequences of Ethnic Cleansing”, Pepperdine Law Review 22 (2001), 33 et seq., 33 et seq.; Rosand, see note 79, 1098, 1131 et seq. For the call for return see for example Security Council Resolution 1034 (1995) which states in Article 18: “Also urges all the parties to the conflict in the territory of former Yugoslavia to fully cooperate with these efforts with the view to create conditions, conductive to the repatriation and return of refugees and displaced persons in safety and dignity.” Security Council Resolution 1491 (2003), dealing with the former Yugoslavia, emphasises in the preamble that “... a comprehensive and coordinated return of refugees and displaced persons throughout the region continues to be crucial to lasting peace.” Security Council Resolution 1239 (1999) dealing with refugees from Kosovo, reaffirms in Article 4 “the right of all refugees and displaced persons to return to their homes in safety and in dignity.” In connection with the Republic of Tajikistan too, the Security Council in Resolution 999 (1995), Article 14, “[w]elcomes the obligation assumed by the Government of the Republic of Tajikistan to assist the return and reintegration of refugees as well as the obligations by the parties to cooperate in ensuring the voluntary return, in dignity and safety, of all refugees and displaced persons to their homes.” A similar attitude may be found in recent decisions of the Security Council regarding Georgia. See Resolution 1462 (2003), S/RES/1462 (2003) of 30 January 2003, Article 14, and Resolution 1494 (2003), S/RES/1494 (2003) of 30 July 2003, Arts 9, 10, 14, 15, 17.
Rosand, see note 79, 1101 et seq., 1111; M. Cox, “The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia and Herzegovina”, ICLQ 47 (1998), 599 et seq.; Bagshaw, see note 82, 573 et seq.
UNHCR General Report 2002 on the Federal Republic of Yugoslavia including Kosovo, on Croatia and on Bosnia and Herzegovina, <http://www.unhcr.ch/cgi-bin/texis/vtx/home>.
Report of the Secretary-General on his mission of good offices in Cyprus, 1 April 2003, S/2003/398, <http://www.un.org/Docs/sc/sgrep03.html>.
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Zilbershats, Y. (2007). International Law and the Palestinian Right of Return to the State of Israel. In: Benvenisti, E., Gans, C., Hanafi, S. (eds) Israel and the Palestinian Refugees. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 189. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68161-8_7
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