1 GA Res. 3376. 30 GAOR, Supp. (No. 34) 3, UN Doc. A/10034 (1975)

2 GA Res. 3236. 29 GAOR, Supp. (No. 31) 4, UN Doc. A/9631 (1974).

3 Report of the Committee on the Exercise of the Inalienable .Rights of the Palestinian People [hereinafter referred to as Report of the Committee], 31 GAOR, Supp.(No. 35) 5, UN Doc. A/31/35 (1976).

4 The recommendations of the Committee were submitted to the Security Council in the form of a draft resolution which, however, failed of adoption by the Council because of a U.S. veto. UN Doc. S/PV. 1938 at 62 (1976).

5 See, e.g., Bassiouni, , The “Middle East“: The Misunderstood Conflict, 2 The Arabisraeli Conflict 175 (Moore ed. 1974)Google Scholar; Nakhleh, The Liberation of Palestine is Supported by International Law. and Justice, 1 id. 566; H. Cattan, Palestine, Thearabs and Israel (1969). For a reply to Cattan and the Israeli point of view, see N. Feinberg, on an Arab Jurist's Approach To Zionism and the State of Israel(1971).

6 I. F. Stone, The New York Review of Books (Aug. 3, 1967) at 10, col. 3,reprinted as Holy War in The Israel-Arab Reader 308 (Laqueur ed. 1971). For a reply to Stone, see Syrkin, I. F. Stone Reconsiders Zionism, id. at 327.

7 See, e.g., C. Sykes, Crossroads to Israel 420 (1965). “When the war was over, Arab journalists and broadcasters asserted on several occasions that the exodus was a planned Arab manoeuvre, the main object being to clear the land and thus give freedom of action to the invading armies.”

8 On the “First Arab-Israeli War” and events leading thereto, the following sources were consulted: Sykes, supra note 7; E. O'Ballance, The Arab-Israeli War 1948(1956); Kimche, a Clash of Destinies (1960); J. Bell, the Long War (1969); A.Koestler, Promise and Fulfillment (1949); N. Lorch, Edge of the Sword (1961).

9 GA Res. 181, UN Doc. A/519, at 322 (1947).

10 Sykes, supra note 7, at 395.

11 Bell, supra note 8, at 76 and Koestler, supra note 8, at 154. See also F. Gervasi, the Case for Israel 82 (1967).

12 Bell, supra note 8, at 78; Kimche, supra note 8, at 93; Koestleh, supra note 8,at 153.

13 Bell, supra note 8, at 80; Kimche, supra note 8, at 82; Koestler, supra note 8,at 155; Sykes, supra note 7, at 401.

14 R. Wilson, Cordon and Search 166 (1949) cited in Kimche, supra note 8, at85, and also in Sykes, supra note 7, at 401.

15 The reasons for the failure of the mandatory government to take action against the invaders are discussed by Sykes.

The British insisted that the geographical complication of the North Palestine Frontier made supervision impossible. To some extent the excuse (which was not new) had always been valid, but least so at this time when Great Britian had a large force in the country, capable of dealing swiftly with any except minute secret bands. Nearer to the truth, in all probability, was the remark of the (then Irak Prime Minister in an interview with the Egyptian newspaper Al Misri. “The Arabs ought not to be afraid of the British. I can assure you that the British forces in Palestine would not try to oppose or fight the Arabs, because Britain is a real friend of the Arabs.“Supra note 7, at 401.

Note however the following: British behaviour towards Arabs and Jews during this critical period, could only be explained that the British Government was determined to the last moment to fulfil its obligation to the Jews in helping them to transfer the “national home” into a “state” before they pulled out of the country. (“Britain hands over authority to the Zionists.“)S. Hadawi, Bitter Harvest 101–02 (1961).

16 Koestler, supra note 8, at 157; Lohch, supra note 8, at 51; Sykes, supra note 7,at 402ff.

17 Bell, supra note 8, at 166 and Sykes, supra note 7, at 403–04, 414.

18 Koestler, supra note 8, at 160–61 and O'Ballance, supra note 8, at 46.

19 Kimche, supra note 8, at 122. See also: Gervasi, supra note 10, at 109 ft; O'ballance, supra note 8, at 49–52; Sykes, supra note 7, at 419–20.

20 The British War Office in London reacted to the Arab defeat in Jaffa by ordering General Mac Millian, G.O.C. Palestine, to “[r]e capture Jaffa, and hand it back to the Arabs.” Quoted in Bell, supra note 8, at 113. See also Koestler, supra note 8, at161; Lorch, supra note 8, at 111; and O'ballance, supra note 8, at 61–62. Here, too the Arab version regarding the role played by the British frequently differs:

It is an historical fact that prior to the month of April, 1948, Palestine Arabs were winning the fight against the Jews throughout the country…. The British then carried out their part of the bargain by supplying Jews with all types of the most modern weapons, including Centurion tanks. British forces disarmed Arabsin every city, town and village throughout Palestine. The British military forces took part in battles between Jews and Arabs, insuring victory for the Jews. Nakhleh, supra note 5, at 570.

21 Figures for the number of refugees are taken from D. Peretz, Israel and Thepalestine Arabs 95 (1958). Exact figures for the number of casualties incurred during this phase of the conflict, December 1, 1947 to May 14, 1948, do not exist but a general idea is provided by a UN report of February 16, 1948. In the two-month period between December 1, 1947 and February 1, 1948, there were a total of 2,778casualties including 1,462 Arabs, 1,106 Jews, and 181 British. (UN Doc. A/AC.21/9,at 5 (1948) cited in F. Khouri, The Arab-Israeli Dilemma 59 (1968).) Given a total Palestine population in 1948 of some 2,000,000, the number of casualties incurred during this two-month period would be equivalent to casualties of approximately 300,000 for a country like the United States with a population above 200,000,000.

22 For example: The Israelis have also attempted to disclaim liability for the exodus of the Palestinians by alleging that the refugee problem was the result of the war between the Arab States and Israel. There is nothing farther from the truth…. In fact, the exodus had already reached considerable proportions before the outbreak of the war. It was estimated that before the out break of the Arab-Israeli war on 15 May 1948 the number of Palestine refugees had reached about 300,000. As Anthony Nutting has remarked: “it would be truer to say that the refugees were the cause of the first Arab-Israeli war and not the result.” ‘H. Cattan, Palestine and International Law 105 (1973).

See also, Tomeh, : “Before any Arab soldier set foot on the soil of Palestine, 400,000 Arabs had fled their Palestinian homeland in terror.” Legal Status of Arab Refugees, 33 L. & Contemp. Prob. 122 (1969)Google Scholar reprinted in 1 The Arab-Israeli Conflict, supra note 5, at 679.

23 Khouri, supra note 21, at 69.

24 The London Times of this period reported the following regarding Arab plans for Palestine: “The Arab League Council met again today to discuss further military measures to resist the formation of a Jewish State in Palestine…. At the meeting of the Arab League Council on Thursday night it was thought that preparations should be made for military action against the Jews and it was decided to ask Arab States to mobilize forces on the frontiers of Palestine.” (Oct. 11, 1947, at 4, col. 6); “The Lebanese Prime Minister announced that the heads of the Arab States had already made decisions and would meet as soon as possible to execute the liberation plans for Palestine.” (Dec. 6, 1947, at 4, col. 3); “According to Al Misry, the Syrian guerrilla leader, Fauzi Kawakji, will lead the first detachment of 2,000 Arab volunteers into Palestine next week.” (Dec. 15, 1947, at 4, col. 3.); “The ‘war council’ of the Arab League which had been meeting in Cairo for the past 10 days announced that the Arabs are determined ‘to enter the battle against the United Nations’ decision to partition Palestine, and by the will of God to carry it to a successful conclusion.’ “ (Dec.18, 1947, at 4, col.5.)

25 Sykes, supra note 7, at 393.

26 Kimche, supra note 8, at 109.

27 Bell, supra note 8, at 127.

28 Id. at 59.

29 In their study of samples of 1967 refugees, Dodd and Barakat found that, in addition to direct “situational” causes of flight, there were indirect causes connected with the social structure and values of the communities from which the refugees departed. See, P. Dodd & H. Bahakat, River Without Bridges (1969), cited in E. Buehrig, The Un and the Palestinian Refugees 33 (1971).

30 Bell, supra note 8, at 104; Khouri, supra note 21, at 123; Sykes, supra note 7,at 415.

31 The Palestine Jewish community had over the years created its own quasi-governmental institutions and therefore was better prepared than the Arab community to maintain essential public services in the wake of the British withdrawal. See Peretz, supra note 21, at 6–7; also Khouri, supra note 21, at 68.

32 The Deir Yassin massacre was itself followed by an Arab reprisal three days later. On April 12, a Red Cross convoy travelling to the Jewish Hadassah Hospital and the Hebrew University was ambushed and seventy-seven doctors, nurses, teachers, and students were killed. See Bell, supra note 8, at 113–14 and Sykes, supra note 7, at417.

33 At a press conference in Cairo, Azzam Pasha, then Secretary-General of the Arab League boasted: “This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades.” B.B.C. News broadcast, May 15, 1948, quoted in Bell, supra note 8, at 118; Gebvasi, supra note 10, at94; Sykes, supra note 7, at 416.

34 Bell, supra note 8, at 105–06 and Sykes, supra note 7, at 417–18. But see Gervasi, supra note 10, at 87, who quotes the following from Al Urdun (April 9,1953) by a former inhabitant of Deir Yassin:

The Jews never intended to hurt the population of the village, but were forced to do so after they met enemy fire from the population, which killed an Irgun commander. The Arab exodus from other villages was not caused by the actual battle, but by exaggerated descriptions spread by Arab leaders to incite them to fight the Jews.

35 Sykessupra note 7, at 417.

36 State of Israel Proclamation of Independence, in The Israel-Arab Reader, supranote 6, at 127.

37 G. Kibk, The Middle East 1949–50 at 264 (1954). See also Sykes, supra note7, at 419.

38 Cattan, supra note 22, at 102.

39 Bell, supra note 8, at 106.

40 Sykes supra note 7, at 419.

41 Id. at 420. See also Kimche, supra note 8, at 227–28 and O'ballance, supranote 8, at 147 & 172.

42 Sykessupra note 7, at 422. The case of Nazareth—today the largest Arab city in Israel—is cited by Sykes as evidence of the effect that the presence of Arab leadership might have had in Palestine. When Nazareth fell to Jewish forces, its Arab mayor was not easily intimidated and succeeded in keeping his people together. But in Nazareth, Sykes notes, “there was what was lacking almost everywhere else: a leading man of public spirit.” Arab writers, too, have called attention to the lack of effective Arab leadership and its responsibility for the resulting catastrophe:

Four months passed … while most of the rich families and those of the leaders were quitting the country for tranquility in Egypt, Syria and Lebanon, leaving the burden of struggle and sacrifice to the workers, villagers and middle class…. These factors, the collective fear, moral disintegration and chaos in every domain, were what displaced the Arabs from Tiberias, Haifa, Jaffa and scores of cities and villages.1 W. Al Qamhawi, Disaster and Construction in the Arab Fatherland 69–70 quoted in Y. Harkabi, Palestinians and Israel 4 (1974).

43 Peretz, supra note 21, at 55.

44 Dated at Geneva, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

45 Only one reference to Geneva Convention No. IV as authority for a right of return for “old” as well as “new” refugees could be found, that by Quincy Wright:

The Arab states appear to have a good claim under international law to repatriation or compensation for the Arab refugees from Palestine resulting from the hostilities of 1949 [sic?] and 1967…. The rules of war of humanitarian character designed to protect “human rights” are applicable to all de facto hostilities, and require the occupant to spare the civil population. Refusal to allow repatriation or compensation would therefore violate the law of war. The Middle East: Prospects for Peace 24 (Background Papers and Proceedings of the Thirteenth Hammarskjold Forum, 1969), reprinted in 2 the Arab-Israeli Conflict, supra note 5, at 119. A slightly different version appears as Wright, , Legal Aspects of the Middle East Situation, 33 L. & Contemp. Prob. 5 (1969)Google Scholar.

Although Professor Wright purports to defend the “good claim under international law” of the Arab states, he in fact understates that claim which is not one merely for “repatriation or compensation” but one rather for repatriation as an absolute right, with compensation as an alternative only for those not insisting on a right to return. This is also, apparently, the view adopted in the Report of the Committee: The opinion was expressed that whatever the modalities or procedure were envisaged for the implementation of the right of return of the Palestinians … that right should be absolute for every Palestinian and must have priority over any other form of substitute arrangements, such as compensation. Supra note 3, at 5.

46 Article 44 reads as follows: In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.

In drafting Article 44, the Diplomatic Conference had in mind the many Jewish refugees of World War II who, though de jure nationals of Axis powers, were expatriates no longer having a connection with their state of origin. See 4 J. Pictet, Commentary (Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949) 263 (1958).

47 Id, at 196.

48 Id. at 266. See also, P. Van Panhuys, the Role of Nationality in Internationallaw (1956) and sources cited therein at 56; J. Stone, Legal Controls of international Conflict 446 n.187 (1954). Also Article 31 of the Convention relating to the Status of Stateless Persons; done Sept. 28,1954, 360 UNTS 117, permits expulsion on grounds of “national security or public order.”

49 Professor Stone points out that the heading, “Aliens in the Territory of a Party to the Conflict” is somewhat misleading since[b]y definition … all “protected persons” are aliens vis-à-vis the Power against whom they are protected. The distinction … is not between aliens and other protected persons, but as to where the alien protected persons are found. Stone, supra note 48, at 688 n.31.

50 The difficulty of applying many of the provisions of the Convention in a civil war context was one of the objections raised at the Diplomatic Conference to full and unconditional extension of the Convention to internal conflicts. It was pointed out that many of the articles could not be applied in case of civil war or would at least have to be modified to a considerable extent. See 4 Pictet, supra note 46, at 43. On the subject of international regulation of civil conflict and problems pertaining thereto, see generally: International Aspects of Civil Strife (Rosenau ed. 1968); the International regulation of Civil Wars (Luard ed. 1972).

51 See G. Von Glahn, the Occupation of Enemy Territory: a Commentary on the Law and Practice of Belligerent Occupation 273 (1957); D. Graber, The development of the Law of Belligerent Occupation 64–89 (1949).

52 Referring to the difficulty of applying many of the provisions of the Convention in a civil war context, Pictet suggests that those dealing with “Occupied Territories” might apply (see infra note 53) but those relating to “Aliens within the Territory of a Party to the Conflict” would be more difficult, since “in a civil war the struggle takes place in a territory whose citizens are all of the one nationality.” Supra note 46, at 43.But uniform nationality can be assumed only where the parties in a civil conflict do not themselves disagree as to national identity. Agreement is most likely to be the case where the civil conflict arises out of political or ideological differences, e.g., the Angolan civil war. But where the internal conflict is itself over the question of nationality (e.g., the Biafran war, the Bangladesh war, and the Arab-Jewish war in Palestine in 1947–48)to assume that the parties are of the same nationality is arbitrarily to choose the majority or present government's view of the conflict. Moreover the use of the term “aliens” in “Aliens in the Territory of a Party to the Conflict” would not appear to be significant as meaning “aliens as opposed to nationals,” since it can be fairly assumed that there is no intention here to protect persons from their own government. (This contrasts with provisions under the heading “General Protection of Populations Against Certain Consequences of War” which do include the relationship of a belligerent to its own citizens. R. Miller, The Law of War 73–74 (1975).) The thrust then of Article 45 is not to distinguish between aliens and nationals as such for purposes of expulsion, but rather to acknowledge the right of a party to protect itself from the threat of an internal enemy. For an analysis of the term “alien enemy” and a criterion thereof in terms of “permanent allegiance,” see A. Mcnair & A. Watts, the Legal Effects of War 77 (1966).

53 Pictet suggests an ad hoc distinction drawing upon the concept of belligerent occupation in internal conflicts where “each of the Parties is in possession of a portion of the national territory, and there is … some sort of front.” Supra note 46, at 36.One might imagine such a possibility in connection with, for example, the Biafran and Bangladesh conflicts. However, the demographics peculiar to Palestine in 1948,where Jewish and Arab communities were intermingled within what was itself a relatively small area, would seem to rule out such a distinction even as a practical matter. For a demographic survey of Palestine in 1947, see Report of the UN Special Committee on Palestine, 2 GAOR, Supp. (No. 11), UN Doc. A/364 (1947).

54 4 Pictet, supra note 46, at 36.

55 GA Res. 194, UN Doc. A/810, at 21 (1948).

56 Peretz, supra note 21, at 33. But Khouri, supra note 21, at 127, indicates that as early as June 16, 1948, Prime Minister Ben-Gurion took the position before the Israeli cabinet that “no Arab refugee should be admitted back.”

57 Progress Report of the UN Mediator, 3 GAOR, Supp. (No. 11) 27–28, UN Doc.A/648 (1948). According to Peretz, supra note 21, at 35, the Israeli Foreign Ministerunofficially told the UN Mediator that, while Israel was unwilling to accept a mass Arab return before peace, it would consider repatriation of certain categories of individuals who deserved special treatment, including members of broken families. Seealso infra note 66.

58 In October 1966, Mr. Al-Ghouri, chairman of the Palestine Arab Delegation, invited for the first time to attend meetings of the Special Political Committee of the UN General Assembly, categorically rejected Resolution 194 in his address before the Committee:

He [Al-Ghouri] wished to make clear the views of the Palestine Arab delegation on the implementation of paragraph 11 of General Assembly resolution 194 (III)of 11 December 1948. It considered the implementation of that paragraph tantamount to an acceptance of the partition resolution 181 (II) and the liquidation of the Palestine problem, which it had always rejected…. The indigenous Arab people of Palestine had an inalienable right to return to their homes and homeland. That right could never be a matter of option or permission, nor could it be waived or bartered away (emphasis added).21 GAOR, Special Political Committee (501st mtg.) 23, UN Doc. A/SPC/SR. 501(1966). See also the more recent statement by the PLO representative in 28 GAOR, Special Political Committee (882d mtg.) 124, UN Doc. A/SPC/SR. 882 (1973).

59 Henry Labouisse, then Director of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), reported in February 1957 that the situation respecting the Palestine refugees was almost unchanged. The reason, he said, did not, lie simply in the field of economics. UNRWA can, to be sure, enable some hundreds of refugees to become self-supporting each year … But it cannot over come the fact that the refugees as a whole insist upon the choice provided for them in the General Assembly resolution [of December 11, 1948], that is repatriation or compensation. In the absence of that choice, they bitterly oppose anything which has even the semblance of a permanent settlement else where. Quoted in Waines, The Unholy War 128–29 (1971).

60 Tomeh, supra note 22, at 687. In accord with Tomeh's interpretation is General Assembly Resolution 3089 D: ”… enjoyment by the Palestine Arab refugees of their right to return to their homes and property, recognized by the General Assembly in resolution 194 (III) of 11 December 1948 …. ” For text of Resolution 3089 D, see28 GAOR, Supp. (No. 30) 27, UN Doc. A/9030 (1973). Resolution 194 is also cited as authority for a Palestinian right of return in the Report of the Committee, supra note 3, at paras. 19, 29, 66, and 69.

61 See the statement by Al-Ghouri, supra note 58, condemning Resolution 194 for its use of the term “permitted.”

62 Peretz, supra note 21, at 38.

63 On the work of the Conciliation Commission for Palestine, see generally Peretz, supra note 21, and Buehric, supra note 29, at 10–38.

64 It is often said that by making the question of repatriation dependent upon a final settlement, Israel linked two issues that had no moral connection. But if Israel drew a connection between its security and a Palestinian return, the connection was not lost on Arab leaders either. In 1949, Mohammed Sala el Din Bin Bey, then Foreign Minister of Egypt, declared that “it should be known and well understood that in demanding the return of the refugees to Palestine the Arabs mean their return as master of their country and not as slaves. More clearly, they envisage the liquidation of Israel.” Al Misri (Oct. 11, 1949) quoted in Gervasi, supra note 10, at 115 and in Talmon, Israel and the Arabs, The Israel-Arab Reader, supra note 6, at 284. Stilllater, Egyptian President Nasser was quoted as saying: “If the Arabs return to Israel, Israel willl cease to exist.” Zürcher Woche (Sept. 1, 1961) quoted in The Israel-Arabreader, supra note 6, at 331.

65 In a strongly worded note to Ben-Gurion on May 21, 1949, President Truman expressed his “deep disappointment” at the failure of Israel to make concessions on the refugee issue and insisted on tangible concessions as a condition for a general settlement. The note threatened, further, that “the United States would reconsider its attitude toward Israel.” See Peretz, supra note 21, at 41 and Khouri, supra note 21,at 127.

66 On an individual basis, the Israel Government considered appeals made by Arabs still in Israel for the return of family members. The number of officially approved reunions totaled about 8,000. In addition, an estimated 20,000 to 30,000 infiltrators were unofficially granted permission to stay. See Peretz, supra note 21, at 50–56 and Buehrig, supra note 29, at 15.

67 6 GAOR, Supp. (No. 20) 12, UN Doc. A/2119 (1951).

68 For a study of the phenomenon of “re-citation,” the citation of previous resolutions in later resolutions of the General Assembly, see Bleicher, , The Legal Significance of Re-Citation of General Assembly Resolutions, 63 AJIL 444 (1969).Google Scholar

69 21 GAOR, Special Political Committee (501st mtg.) 24, UN Doc. A/SPC/SR.501(1966).

70 22 GAOR, Special Political Committee (587th mtg.) 257, UN Doc. A/SPC/SR.587(1967); id. (589th mtg.) 271, UN Doc. A/SPC/SR.589 (1967); id. (590th mtg.) 276,UN Doc. A/SPC/SR. 590 (1967).

71 See, e.g., 23 GAOR, Special Political Committee (620th mtg.) 2 (Libya), UN Doc. A/SPC/SR.620 (1968); id. (621st mtg.) 36 (Syria), UN Doc. A/SPC/SR.621(1968).

72 24 GAOR, Supp. (No. 30) 25, UN Doc. A/7630 (1969).Note the attempt here to preempt the principle, stated in Security Council Resolution242 (22 SCOR, Res. & Dec. 8 (1967)), of the necessity “[f]or achieving a just settlement of the refugee problem,” which in General Assembly Resolution 3089D[supra note 60] becomes “the enjoyment by the Palestine Arab refugees of their right to return … is indispensable for the achievement of a just settlement of the refugee problem…. “

73 25 GAOR, Supp. (No. 28) 36, UN Doc. A/8028 (1970).

74 GA Res. 2792D. 26 GAOR, Supp. (No. 29) 47, UN Doc. A/8429 (1971) and GA Res. 2963E. 27 GAOR, Supp. (No. 30) 29, UN Doc. A/8730 (1972).

75 Supra note 60.

76 Supra note 2.

77 On the issue of the legal competence of the General Assembly, see Sloan, , The Binding Force of a “Recommendation” of the General Assembly of the United Nations, 25 Brit. Y. B. Int. Law 1 (1948)Google Scholar; Johnson, The Effect of Resolutions of the General Assembly of the United Nations, 32 id. at 97 (1955–56); R. Higgins, the Developmentof International Law Through the Political Organs of the United Nations(1963); J. Castaneda, Legal Effects of United Nations Resolutions(1969). For a recent study of Article 2(7) of the UN Charter with broad implications on the issue of General Assembly competence generally, see Watson, , Auto interpretation, Competence, and the Continuing Validity of Article 2(7) of the UN Charter, 71 AJIL 60 (1977).Google Scholar

78 Some recognition of this problem is given in the Report of the Committee, supra note 3, at para. 29:

It was suggested that certain legal questions could be clarified through an advisory opinion of the International Court of Justice; more specifically … (a)Whether the recognition by the General Assembly of the inalienable right to return of the displaced Palestinians and the demand by the General Assembly that they be permitted to return were, in fact, an infringement of Israel's sovereignty …. The Report suggests, though, that Israel's sovereignty might be limited “in light of the provisions of General Assembly resolution 181 (II) recommending the Plan of Partition, with its built-in safeguards for the rights of the Palestinian Arab inhabitants of the then proposed Jewish State…. ” (id.).

79 The competence of the General Assembly under the Charter to make “recommendations“(Arts. 10, 11, 13, 14, 58, 64, 105) is quite broad but not unlimited. In general, the scope of Assembly resolutions is circumscribed by the Principles and Purposes of the Organization set forth in Chapter I, Articles 1 and 2 of the Charter. Article 2, paragraph 1, states that “[t]he Organization and its members … shall act in accordance with the following principles” among which is “the principle of the sovereign equality of all its members.” Although the principle of “sovereign equality” in the Charter is not without its ambiguity, the following clarifying statement appears in the Report of the Rapporteur of Committee 1 to Commission 1, approved ultimately by the Commission and the San Francisco Conference in Plenary Session:

The Committee voted to use the terminology “sovereign equality” on the assumption that it includes the following elements:

(1) that states are juridically equal;

(2) that each state enjoys the right inherent in full sovereignty;

(3) that the personality of the state is respected, as well as its territorial integrity and political independence (emphasis added).

(4) that the state should, under international order, comply faithfully with its international duties and obligations. Doc. 944,1/1/34 (1), 6 UNCIO Docs. 446, 457 (1945).

80 Resolution 3236, (supra note 2), the text of which refers only to “the rights of the Palestinian people in Palestine,” would appear to be entirely consistent with the Palestine Liberation Organization's idea of a “democratic secular” Palestinian state to replace Israel. But the Report of the Committee, supra note 3, at para. 18, suggests a more “moderate” solution when it states that,

the exercise of the individual right of the Palestinian to return to his homeland [is]a conditio sine qua non for the exercise by this people of its rights to self-determination, national independence and sovereignty.

Repeated references in the Report to the partition plan, Resolution 181 (II), as well as acknowledgement of Israel itself, suggests that a Palestinian state along the lines proposed in the plan of partition of 1947 is envisaged, and thus only a partial dismantling of the Israeli state.

81 Supra note 72.

82 See, e.g., UN Doc. A/PV.2296 (1974) Denmark at 66; Bolivia at 82; Canada at91; Federal Republic of Germany at 93–95.

The right to exist has always been the most fundamental right of every state, so much so that explicit reference to this right was excluded by the International Law Commission in its Draft Declaration on the Rights and Duties of States. Most of its members “deemed it to be tautological to say that an existing State has the right to exist; that right is in a sense a postulate or presupposition underlying the whole draft Declaration.”

Report of the International Law Commission to the General Assembly, 4 GAOR, Supp. (No. 10) 9, UN Doc. A/925 (1949), reprinted in [1949] Y. B. Int. L. Comm.289, UN Doc. A/CN.4/SER.A/1949.

83 UN Doc. A/PV.2296 (1974) Argentina at 7; Liberia at 11; Cyprus at 106.

84 Id. Thailand at 103; Bhutan at 88.

85 Id. at 68.

86 Id. at 16.

87 Id. Cyprus at 106; Philippines at 92.

88 Id. at 58.

89 Done July 28, 1951, 189 UNTS 137.

90 Dimitrijevic, , Legal Position of Palestine Refugees, 19 Rev. of Int. Affairs 18 (1968).Google Scholar

91 Bassiouni, supra note 5, at 177. See also Bassiouni, , The Palestinians: Refugeesor a People, The Catholic World 252–62 (Sept. 1970)Google Scholar.

92 J. H. Simpson, the Refugee Problem 232 (1939) quoted in 1 A. Grahl-Madsen,the Status of Refugees in International Law 77 (1972). In fact, with the exception of those refugees who enjoy Jordanian citizenship, the displaced Palestinians fit the definition of “stateless person.” See Convention Relating to the Status of Stateless Persons, done Sept. 28, 1954, 360 UNTS 117.

93 It should be noted, though, that the Refugee Convention does not as such apply to the Palestinian refugees since Article I (D) excludes “persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.” The Palestinians, of course, have since 1949 been under the protection of the UNRWA. According to Grahl-Madsen, however, “[t]here can be no doubt that the Arab refugees from the [sic]Palestine are truly refugees in a general sense, they may even, as a group, prima facie satisfy the requirement of Article I A(2) of the Convention.” 2 Grahl-Madsen, supra note 92, at 141.

94 Dimitrijevic, supra note 90, at 18.

95 See 1 Grahl-Madsen, supra note 81, at 78 & 83.

96 Id. at 94.

97 After World War II, the issue of repatriation arose most prominently in connection with refugees from the Soviet Union and the Eastern European states. Repatriation was not then urged by the refugees, but rather by the governments of the states from which the refugees had fled. These governments interpreted repatriation in terms equivalent to forcible return. See 1 L. Holborn, Refugees: A Problem of Ourtime: the Work of the United Nations High Commissioner for Refugees 325 ff. (1975).

98 Id. at 163.

99 Id. at 158–59.

100 Quoted in Feinberg, supra note 5, at 89–90. Cattan (supra note 22, at 107) cites the Bangladesh experience, where some twelve million refugees from East Pakistan eventually returned, as precedent for a principle of repatriation. The return of these refugees, though, was not accomplished through repatriation but as a result of India's successful armed intervention in the conflict. Had the Arab states been similarly successful in their invasion of Palestine in 1948, the Palestine Arab refugees would have presumably also returned.

101 GA Res. 217. UN Doc. A/810, at 71 (1948).

102 Article 13, paragraph 2, of the Universal Declaration, is cited as authority for a Palestinian right of return by Dimitrijevic, supra note 90, Hadawi, , The Arab Refugees, in Crescent and Star 201 (Alexander, and Kittrie, eds. 1973)Google Scholar; Seminar of Arab Jurists on Palestine, in 1 The Arab-Israeli Conflict, supra note 5, at 363; Wright, supra note 45, at 120 n. 91; Report of the Committee, supra note 3, at para. 19.

103 The relationship between Article 13(2) and Article 29(2) was elaborated upon in a study of Article 13(2) commissioned by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities as follows:

[f]or purposes of our study … we shall regard as permissible limitations to the right of everyone to leave any country, including his own, and to return to his country, only those which are provided by law and which are necessary to protect national security, public order, health or morals, or the rights and freedoms of others.

J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, including His Own, and to Return to His Country. UN Doc. E/CN.4/Sub.2/220/Rev. l, at 38 (1963).

The phrase “national security” is used above in its narrow rather than broad sense. Id. at 39 & 40.

104 Bleicher, supra note 68, at 459.

105 There is a certain amount of contradiction in the Arab position regarding the effect that a refugee return would have on Israel's security. On the one hand, it is taken as axiomatic that the refugees on the whole insist on returning. But when the question of Israeli security is raised, the number of refugees who would return if given the choice is minimized. For example, Khouri (supra note 21, at 137) stresses that:

UNRWA reports repeatedly emphasized that the refugees’ desire to return to their homes had not only not “diminished,” but that it had actually been “strengthened and encouraged by the General Assembly's resolutions on repatriation.‘

Similarly, he states that:

[s]ince for 2,000 years the jews had been able to keep alive their hope of returning to Israel, it should not have been difficult for them to understand the Arab refugees’ unquenchable yearning to return to their homes ….(at 163).

The above, though, is followed by the statement that,[m]ost authorities agreed that Israel's acceptance of repatriation would not inevitably have brought about, as Israelis frequently had contended, a sudden mass movement into Israel of one million hostile refugees determined to undermine her social and political structure and her security (at 165).

106 Ingles ; supra note 103 passim.

107 Israel's nationality laws are themselves a subject of controversy, particularly Israel's “Law of Return” of July 5, 1950 which grants to every Jew in the world the right to claim Israeli citizenship and residence. The Israeli state, though, is not wholly unique in granting citizenship as of right based on ethnicity. The law of the German Federal Republic also provides for the admission of “ethnic Germans,” though they may have never set foot on German territory, to full citizenship. 1 Gesetz zur Regelungvon Fragen der Staatsangehörigkeit of February 22, 1955 (1955 BGB1. i.65). It can be observed also that Article 1 of the International Convention on Certain Questions relating to the Conflict of Nationality Laws, adopted at The Hague on April 12,1930 (179 LNTS 89), provides that “it is for each State to determine under its own law who are its nationals.” Article 2 provides, further, that “any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.”

108 Dimitrijevic, supra note 90.

109 Interestingly enough, the “right of return” of Article 13(2) was regarded by its drafters as important as a way of assuring the “right to leave,” rather than being significant in itself. Thus the words, “and to return to his country” at the end of paragraph 2 were added much as an afterthought by a Lebanese amendment which was adopted without opposition and which, according to its sponsor, was submitted so that, ”… the right to leave a country, already sanctioned in the article, would be strengthened by the assurance of the right to return. Such was the object of [the]amendment.” See supra note 103, at 87.