Palestinian Refugees and the Right of Return in International Law
Loureen Sayej 14th May 2018

On this 70th commemoration of the Nakba (catastrophe), Palestinian refugees and their descendants still constitute one of the largest and longest-standing unresolved refugee crises in the world, with 7.54 million refugees in addition to 720,000 internally displaced persons.  Nearly  5.3 million refugees are registered with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) and 1.5 million subsist in 58-refugee camps across Lebanon, Jordan, Syria, and the occupied Palestinian territory (Gaza, West Bank, and East Jerusalem). Palestinian refugees, who were forcibly displaced as a result of 1948 and 1967 wars, are stripped of their UN-mandated Right of Return and face substantial challenges to the full enjoyment of their rights.

The Right of Return is a universally recognized right in international refugee law, human rights law, the law of nationality, and the law of state responsibility. It is also provided for in the Universal Declaration of Human Rights (Article 13),  in major treaties protecting the rights of refugees in times of armed conflicts under humanitarian laws, in core human rights conventions governing states’ obligations and duties, and consistently referred to in UN resolutions.

The Right of Return achieved customary status in 1948 when the UN General Assembly passed Resolution 194(III) affirming the rights of Palestinian refugees to return to their homes and to obtain restitution and compensation. Like never before in the history of the UN, Resolution 194’s consistency with international laws and instruments was reaffirmed by the UN more than 135 times. In the same vein, Resolution 2535 recognized “that the problem of Palestine Arab refugees has arisen from the denial of their inalienable rights under the Charter of the United Nations and the Universal Declaration of Human Rights.” Other seminal UN resolutions include 393, 2452, and 3236, which further strengthen the Right of Return as “indispensable for the solution of the question of Palestine.” In fact, Israel’s admission as a member to the UN was made conditional on its implementation of resolution 194, which it has disregarded on the basis that, according to the Israeli government, compliance would undermine the Jewish character of Israel.

As Israel acceded to conventions, its legal obligations towards Palestinian refugees under international law grew stronger. While, the International Convention on Civil and Political Rights (ICCPR) affirms that “no one shall be arbitrarily deprived of their right to enter his own country” (Article 12), the International Convention on the Elimination of All Forms of Racial Discriminations (CERD) requires State parties to “to prohibit and to eliminate racial discrimination…and guarantee the rights of everyone…in particular [to] the right to leave any country, including one’s own and to return to one’s country ” (Article 5).  Furthermore, Article 1D of the Refugee Convention applies solely to Palestinian refugees and designates special protection and assistance from two separate international agencies: United Nations Conciliation Commission on Palestine (UNCCP) and UNRWA, with an agreed-upon durable solution embodied in Resolution 194.

It is illegal as a matter of international law to deny refugees of a particular race, color, national or ethnic origin the right to return to their homes. Yet,  subsequent Israeli laws barred Palestinian refugees from returning to their homes in what is now Israel and the occupied Palestinian territories (Law of Return), sanctioned mass denationalization laws targeting Palestinian refugees (Nationality Law), and confiscated Palestinian private property and land-holdings (Absentee Property Law and Land Acquisition Law).  While the Right of Return remains the primary remedy, Palestinian refugees are entitled to reparations of their homes and properties based on the UN Principles and Guidelines, ICCPR Article 2, and other instruments. Reparations entail  restitution (including right to return), compensation, rehabilitation, satisfaction of victims, and guarantee of non-repetition.

Despite the continuing inaction of the international community, the Right of Return remains an inalienable and binding universal right, which applies equally to the Palestinian people, and should not be contingent on politics. It is an individual and a collective right intrinsically linked to the exercise of the right to self-determination of all 13 million Palestinians world-wide, and it is one which is currently not being respected. Until it is, the Palestinian people must be protected from further displacement and expulsion.

Author profile

Loureen Sayej is an Mst in International Human Rights Law candidate at Oxford. Born and raised in Palestine, her research focuses on children’s rights in armed conflicts and the Palestinian-Israeli conflict within the framework of international law. She holds a B.A. in International Relations and Human Rights from New College of Florida and has several governmental, inter-governmental, and NGO experiences advocating for Palestinian rights.

Citations

Loureen Sayej, “Palestinian Refugees and the Right of Return in International Law” (OxHRH Blog, 15 May 2018), <http://ohrh.law.ox.ac.uk/palestinian-refugees-and-the-right-of-return-in-international-law> [date of access].

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