A. The Right of Return Under International Law

The right of an individual to return to her country is part of the broader concept of freedom of movement. Freedom of movement encompasses a broad range of human rights that include the right to leave or enter a state, and the right to reside in a state. It is seen as “an indispensable condition for the free development of a person”.Footnote ²² Under international law, the right is based on a number of sources. A number of scholars have asserted that the right of return, of refugees especially, has attained the status of customary international law,Footnote ²³ and as such applies to the Palestinian refugees. In this context, General Assembly Resolution 194 (III)Footnote ²⁴ is widely seen as an affirmation of the existence of the right under customary international law.Footnote ²⁵ Proponents of this view point to state practice as support for their position.Footnote ²⁶ They also point to the fact that this right is expressly recognized in international human rights instruments, state constitutions and local legislation, international humanitarian law, and resolutions of the UN organs.Footnote ²⁷

The flight of the Palestinian refugees occurred during an armed conflict. It was primarily the result of active expulsion by the Israeli army in what can be seen as population transfer or ethnic cleansing.Footnote ²⁸ International humanitarian law, therefore, could be one of the sources for the right of return.Footnote ²⁹ The main source for the right of return under humanitarian law is the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Article 45 of the Convention regulates the temporary transfer of protected persons, and requires their repatriation. Article 49 of the Fourth Geneva Convention explicitly prohibits “individual or mass transfer” of protected persons from an occupied territory to another territory or country. Article 49 also requires the repatriation of displaced persons “as soon as the hostilities in the area in question have ceased”.Footnote ³⁰

International law recognizes the obligation of states to readmit their nationals. This rule is known as the “readmission rule”. States are under an obligation to allow their nationals to return to their territory so that they would not impose a burden on other states hosting them. This obligation is not, however, owed to nationals or refugees. It is invoked in the context of relations between states, and the obligations states owe each other.Footnote ³¹ Accordingly, states cannot prohibit the readmission of their nationals by denationalizing them.Footnote ³² Several commentators have asserted that, according to the law of state succession, and given their habitual residence in the territory which became Israel in 1948, Palestinian refugees had ipso facto acquired the nationality of Israel as a successor state.Footnote ³³ Their en masse denationalization in 1952 is thus a breach of international law, and Israel has an obligation, which is owed to its neighbouring states, to readmit the Palestinian refugees.Footnote ³⁴

International human rights law is the most explicit and elaborate source for the right of return. Human rights law instruments—which include conventions, general comments of the UN Human Rights Committee, the decisions of the Committee in the communications submitted to it, and decisions by human rights courts and tribunals—delineate the content and contours of this right in a more detailed manner than other areas of law. This allows for a deeper and more focused analysis of the right, as opposed to the existence of the right as a broad concept or a general principle in other sources.

A number of human rights law instruments contain a provision that protects the right to return to, or to enter and remain in, the state of origin. The most important of these instruments are the Universal Declaration of Human Rights (UDHR),Footnote ³⁵ the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination.Footnote ³⁶ Regional human rights conventions, such as the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and Protocol No. 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, also recognize a right to return.Footnote ³⁷

Article 13(2) of the UDHR provides that “[e]veryone has the right to leave any country, including his own, and to return to his country”. Article 12(4) of the ICCPR provides that “[n]o one shall be arbitrarily deprived of the right to enter his own country”. Although both provisions essentially deal with the same right, the provisions in both instruments are phrased somewhat differently. The former grants a right to “return”, while the latter grants a right to “enter”. The former states that the place where the individual should be allowed to return to is “his country”, while the latter uses the phrase “one's own country”. These differences are not significant, and it is clear from the travaux préparatoires that by using the term “enter” and the phrase “one's own country”, the drafters of the ICCPR had intended to broaden the scope of the right as compared to the right in the UDHR.Footnote ³⁸

As opposed to the UDHR, which is non-binding and declaratory in nature, and which was adopted as a UN General Assembly Resolution,Footnote ³⁹ the ICCPR is a treaty that was signed and ratified by most states in the world,Footnote ⁴⁰ and is therefore binding on those state parties.Footnote ⁴¹ The ICCPR, which was adopted in 1966, is a more recent source of law than the UDHR, which was adopted in 1948. Article 12(4) of the ICCPR deals with the right to enter one's own country. The right to return could be derived from the right to enter the country, since denying entry or re-entry is the main barrier to return. It is arguable that if a refugee had only one nationality, even if she was stripped of her nationality, she would still have one place where she can call her “own country”, which she should be allowed to enter. The acquisition of a new nationality creates a situation where there is another country that a refugee can call her “own country”. The question then becomes whether the acquisition of a new nationality extinguishes the right to enter and return to the country of origin. This question will be discussed in Section II.

B. A Note on the Time Frame and Relation to Applicable Law

Due to the long period of time since the flight of the Palestinian refugees in 1948, one of the issues that should be addressed at the outset is the question of the effect of time in relation to the law. Two relevant issues should be explored. The first is the temporal applicability of international legal norms: What legal rules or principles apply to the situation of the Palestinian refugees, bearing in mind that the displacement took place in 1948? Here, I will briefly discuss the rule of inter-temporal law and the different views on the state of the law at the relevant time. Second, I will address the issue of the descendants of the refugees, who were expelled in 1947−49, who are now second- or third-generation refugees.

The main source articulating the rule of inter-temporal law is the arbitral award in the Island of Palmas Arbitration.Footnote ⁴² Here, Judge Max Huber stated that “a juridical fact must be appreciated in the light of the law contemporary with it”.Footnote ⁴³ Judge Huber then added what is known as the second branch of the rule of inter-temporal law, that:

In the context of the Palestinian refugees and their right of return, Victor Kattan provides an elaborate analysis of the temporal issue.Footnote ⁴⁵ He argues that, in 1947−49, international law norms banned deportations, in addition to a number of practices that triggered the flight of the Palestinian refugees, such as murder, massacre, rape, pillage, and the destruction of property. This, he argues, rendered the expulsions and the acts that caused the flight of the refugees a breach of international law obligations under international law as it was then. Kattan supports his position by reviewing the jurisprudence of the military tribunals in the aftermath of World War II, including the Nuremberg and the Tokyo Tribunals.Footnote ⁴⁶ Kattan draws more support for his position by quoting a report prepared by the British Foreign Office regarding the 1948 war, which found that customary international law did apply to that war. This included the norms found in various conventions on international humanitarian law, even though Israel was not a party to them since most of the rules and principles enshrined in them reflected existing customary international law.Footnote ⁴⁷ Given that the expulsion and the other associated atrocities were illegal at the time they were committed, he argues that Israel committed further violations by the subsequent acts of property confiscation, denationalization, and banning refugees from returning, using violence and other legislative tools, and therefore Israel's actions amounted to a continuous wrongful act. According to the second branch of the inter-temporal law rule, the relevant law that applies when the conflict is resolved is the law as it developed since the violation first occurred. This means that the sources mentioned earlier in this section are all relevant, even though some of them came into force after the displacement. Kattan also draws further support for his position from Article 14 of the International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts. Subsection 2 of this Article deals specifically with breaches of international obligations that have a “continuing character”, and states that such acts are considered breaches “for the entire period during which the act continues and remains not in conformity with the international obligation”.Footnote ⁴⁸ Kattan's position is also supported by state practice in the aftermath of World War II, when the majority of the displaced persons were repatriated, some even forcibly.Footnote ⁴⁹

Contrary to Kattan's position, Andrew Kent argues that Palestinian refugees are not entitled to return because, amongst other reasons, the initial expulsion of 1947−49 was not illegal.Footnote ⁵⁰ Kent argues that the Hague Conventions of 1899 and 1907 did not apply to the war in 1948.Footnote ⁵¹ He further argues that even if Israel was bound by the norms found in the Hague Conventions as part of customary international law, none of the relevant provisions were applicable in the circumstances.Footnote ⁵² The Hague Conventions, Kent argues, did not apply because the Israeli army, and the pre-state military groups, could not be seen as a hostile occupying army, as per the language used in the conventions.Footnote ⁵³ He also adds that the territories from which the refugees were expelled were not part of another hostile state that exercised legitimate authority in the area.Footnote ⁵⁴

There are strong reasons to prefer Kattan's position to Kent's. Kent's arguments suffer from a number of flaws. His reasoning regarding the applicability of customary international law on the laws of armed conflict is very highly formalistic and tries to avoid the substantive legal principles and norms by resorting to a high level of technicality and narrow interpretation. His reasoning is contrary to the spirit of the norms and the texts they are enshrined in, and the manner in which they were applied as early as the 1940s. If taken to their logical conclusion, Kent's arguments in effect mean that none of the norms, rules, conventions, or legal principles that govern armed conflict applied to the situation in Palestine in 1947−48, with the result that Palestine was in some sort of legal vacuum. This was contrary to the reality at the time. Since the second decade of the twentieth century, there has been significant international interest in the legal status of Palestine, and Palestine has been the subject of numerous debates relating to international law, especially in the 1940s. Kent's discussion of whether the expulsions of 1948 amounted to crimes against humanity is equally not compelling.

There are other grounds to prefer Kattan's position. The discussion here is focused on the issue of human rights. Many human rights violations, as in the case of expulsion and prohibiting return, are “continuing acts”. Various human rights bodies and courts have noted that international human rights instruments should be interpreted as “living instruments”, with flexible application of the inter-temporal law rule. These bodies, which include the European Court of Human Rights and the Human Rights Committee,Footnote ⁵⁵ have asserted jurisdiction over, and adjudicated upon, violations that took place prior to the entry into force of various human rights treaties. This was based on the determination that these violations were “continuing acts” which extended over the whole period of time they continued to be in violation of international norms. This has led some scholars to conclude that in the case of human rights violations, the first branch of the inter-temporal principle does not apply, or at least does not apply strictly.Footnote ⁵⁶

The issue of time also arises in the case of the descendants of the first generation of refugees who were not born in the country of origin, in this case Palestine, or, after 1948, Israel. In the context of their right to return, Article 12(4) of the ICCPR uses the term “enter”, which is broader than “return”. The commentary by the United Nations Human Rights Committee provides that the right to enter one's own country “may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person's State of nationality)”.Footnote ⁵⁷ This understanding is also supported by the travaux préparatoires of the ICCPR.Footnote ⁵⁸ This position is also supported by the fact that the nationality legislation that was valid in pre-1948 Mandate Palestine, and the Israeli Citizenship Law-1952 are based on the notion of jus sanguinis (nationality based upon the nationality of the parents). Since the denationalization of the Palestinian refugees was illegal under international law, one could argue that the right to return of their descendants is not extinguished by the fact that they were born abroad, and by the fact that they had never set foot in the country. While the passage of time and the fact that they were not born in the country makes their link weaker than the first-generation refugees, the descendants have maintained strong ties to the area of historic Palestine, as will be explained later in Section III.

A. The Charles E. Stewart v. Canada Communication

The main case that precipitated the General Comment is the decision of the Human Rights Committee in the Charles E. Stewart v. Canada communication.Footnote ⁶¹ In this decision, the Committee decided that the term “one's own country” is broader than the concept of “the country of nationality” and is not limited to nationality in a formal sense. The communication dealt with a situation in which Canada had decided to deport an immigrant, Stewart—a British national—who had lived most of his life in Canada but did not acquire Canadian citizenship, even though there were no impediments to acquiring nationality by immigrants. The Committee decided that Canada could not be seen as “his own country” since Stewart did not apply for formal citizenship, although he was entitled to do so. The Committee thus focused on the fact that he opted not to apply for citizenship. The Committee, however, did not mention the fact that he was holding citizenship in another country as grounds for denying him the right to enter Canada.Footnote ⁶² The Committee stated that:

One could infer from the Committee's statement that an immigrant could possibly regard her country of immigration as “her own country” if she was denied citizenship by unreasonable impediments, regardless of the fact that she still holds another citizenship. One could argue that if special ties and relations to a country are proven, the emphasis would shift to the actions of the individual when given the chance to strengthen her relations to “her own country”. This means that in order to examine the right of return under the ICCPR, three main factors should be examined. First is the presence of special ties to the country one claims to have the right to return to. The second factor, if special ties exist, is the choices that were available to the individual. That is, if the state had given her the choice of, or facilitated the strengthening of, the special ties and relations. The third factor concerns the decisions and actions of the individual in the light of the choices she was given.

It is argued that a similar rule should be applied to refugees. Refugees who had to flee from their countries and who were arbitrarily denied any chance of returning or re-acquiring their nationality still maintain special ties and claims to their country of origin. The emphasis should, therefore, be on the decisions they made on the basis of the choices that were available to them. Could the acquisition of a new nationality in the case of refugees be seen as a choice not to “strengthen the special ties and relations”? This should be examined in view of the options that were available for them. If the refugee is likely to face the same risk of persecution which had engendered their initial flight, it cannot be argued that the refugee has the option of returning. Indeed, in such a situation, if return is not voluntary in nature, it would be seen as a breach of Article 33 of the 1951 Refugees Convention, which prohibits expulsion or return of a refugee to areas where her life or freedom are at risk. For example, in a case of a refugee whose country of origin is still in a state of war, a meaningful option of returning is denied. In such a case, it cannot be argued that this refugee has opted not to strengthen her relations with her state of origin, since this option does not exist in the first place. Another situation is when the reason of the flight does not exist any more, but the government in control of the country of origin is preventing the return of the refugees, as in the case of the Palestinian refugees and the Nepali-speaking refugees from Bhutan. In such an instance, the option for the individual to strengthen the ties with the country does not exist, and therefore the acquisition of a new nationality should not affect her rights to enter her country of origin even if she has lost her formal nationality of that country.

B. The Oppenheim Case

The notion of personal choice in view of the options available to an individual seeking return to her own country is also supported by another decision. In the Oppenheim case,Footnote ⁶⁴ the UK House of Lords, in its application of international law principles and the provisions of German legislation on nationality, decided that an illegal deprivation of nationality may become irreversible if the individual voluntarily establishes herself elsewhere at a point when the resumption of the original citizenship would have been possible. Meier Oppenheim, a German-born Jew who had fled to the UK in 1939, was deprived of his German nationality by a decree from 1941. Given the racist nature of the decree, which was to denationalize only German Jews, the decree was seen as illegal under international law. Oppenheim was subsequently naturalized in Britain. In 1949, as a result of a new provision in German nationality legislation, he was able to reclaim his nationality but opted not to do so. The case dealt with the question of whether Oppenheim was liable to pay UK income tax on certain pension payments, which he had received when he was a British national. According to a tax convention between the German Federal Republic and the UK, such payments would be exempted from tax if Oppenheim were a German national.

Although the deprivation of nationality was illegal under international law, the fact that Oppenheim chose not to reclaim his nationality rendered this illegal act irreversible. In this case, the decisions and the acts of the individual were taken into consideration, in the light of the choices that the individual had. The case emphasizes the possibility of the resumption of the individual's original citizenship. It would be reasonable to argue that, without the ability to resume the individual's nationality, the illegal denationalization would be seen as void, and the individual would still be seen as a national of her state of origin, even if she has subsequently acquired a new citizenship. Brownlie, for example, states that “an illegal deprivation of nationality (for example on a racial basis) may become irreversible if the individual voluntarily establishes herself elsewhere at a stage when ‘resumption’ of the original citizenship would have been possible”.Footnote ⁶⁵ This means that as long as the resumption of the original citizenship is not possible, the irreversibility of the deprivation of nationality, and in turn the rights that nationality entails, is questionable. Once again, the individual's actions in the light of the options she has are the main points of focus in the analysis.

C. The Nottebohm Case and the “Effective Link Theory”

Another area which may assist in the determination of the scope of “one's own country” is nationality as understood and interpreted in the context of diplomatic protection. States may only exercise diplomatic protection in respect of their nationals. This highlights the importance of ascertaining the nationality of individuals before states exercise diplomatic protection. Here, issues similar to the one we are dealing with have arisen, namely where it is not clear what nationality an individual has, or in situations where the individual has dual nationality and there is a need to ascertain which nationality would apply for the purpose of diplomatic protection. The authoritative decision of Nottebohm relied on the “effective link theory”.Footnote ⁶⁶ Subsequent decisions on nationality have relied heavily on the “effective link theory”, making this theory a general norm of international law.Footnote ⁶⁷

Friedrich Nottebohm was German by birth. He settled in Guatemala, where he owned a business enterprise, for thirty-four years. In 1939, he applied for naturalization in Liechtenstein and was granted citizenship. In 1943, he was removed from Guatemala, and subsequently his assets and business were expropriated because he was seen as a national of an enemy state—Germany. In the case brought before the International Court of Justice (ICJ) by Liechtenstein, Liechtenstein claimed damages in respect of acts against Nottebohm, who bore its citizenship. Guatemala argued that the case was inadmissible on a number of grounds, including the claim that Nottebohm appeared to have solicited Liechtenstein nationality fraudulently, and with the sole object of acquiring a nationality of a state which was neutral in World War II, and without having any intention to establish a genuine link to the country.

The ICJ decided that there was no bond of attachment between Nottebohm and Liechtenstein. The Court explained that nationality is:

Based on the existence of a “genuine” and “effective” link, the ICJ stated that preference should be given to the “real and effective” nationality. On the question of what is the individual's “real” nationality, the ICJ answered:

The ICJ found that Nottebohm had no bond or attachment to Leichtenstein, because his naturalization there was for the sole purpose of “coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life”.Footnote ⁷⁰ On the other hand, the ICJ concluded that he had a long-standing connection with Guatemala, although he did not carry its nationality, a connection which was not weakened by naturalization elsewhere. On an overall assessment of the case, and the principles that the case applies, it is safe to conclude that the focus for the determination of nationality is on the individual's “genuine” connection. The genuineness of the connection does not necessarily mean nationality in the formal sense, but is assessed according to the quality and significance of the individual's links to a given country. When naturalization—which is essentially the acquisition of citizenship—is involved, the ICJ placed special emphasis on the purpose and circumstances of the naturalization. Naturalization is not seen as evidence of the relinquishment of links with other countries that individuals have strong links with.

If such principles were adopted in the case of ascertaining nationality for the purpose of providing diplomatic protection, similar principles can arguably be used in order to ascertain the individual's “own country” according to the ICCPR, since both cases rely on the connection between the individual and the country. Yet such adoption of principles and rules should be done with caution. The determination of nationality for the sake of diplomatic protection should not be the same in international human rights law. Diplomatic protection falls within the realm of relations between states: the determination of nationality is in order to determine whether a state has the right to protect the individual, for example, by representing her in a legal action in an international forum, or by bestowing diplomatic immunity. On the other hand, the determination of nationality, or “one's own country” in international human rights law, falls within the realm of relations between the individual and the state. States are treated as equals in their relations with each other; yet in the relations between the individual and the state, the balance of power always leans towards the state, hence the need for human rights protection for the individual. Any analogy with other areas of law should be done with this asymmetry in mind, and in order to strengthen the protection of the individual's human rights. In accomplishing this, the broad principle of “real or genuine link” can be adopted more generally.

D. “One's Own Country” and the Palestinian Refugees

This section of the paper has thus far demonstrated that the notion of “one's own country”, or even nationality, at least in the context of the ICCPR, is not limited to the formal sense, but is built on the link between the individual and the territory, and the nature of this link. Emphasis is placed on the strength of the link, the ability to strengthen this link, and on the decisions that the individuals have made, given the options they had. How do these conclusions apply to the issue of the Palestinian refugees, who were displaced in 1948 from Palestine, which no longer exists as a legal entity? In 1948, the new state of Israel was formed, and with the end of the war in 1949, Israel controlled all of the areas the refugees were expelled from, which became Israeli sovereign territory. This raises the question: What is the “country of origin” of these refugees?

A number of observations will be helpful in determining the “country of origin”. While Palestine as a legal entity under the Mandate no longer exists, the geographical area or “the country”—present-day Israel—still exists. In this regard, international law on state succession,Footnote ⁷¹ the Mandate nationality legislation in Palestine which was repealed only in 1952,Footnote ⁷² and to some extent, some Israeli authorities up to the enactment of the 1952 Citizenship Act,Footnote ⁷³ support the assertion that these refugees should be entitled to Israeli citizenship. Even under Israeli law, the idea of “return” does exist and is enshrined in the Law of Return-1950, and does not require any strong links to the country but merely belonging to the Jewish faith.Footnote ⁷⁴ The idea of return is even a major constitutional principle.Footnote ⁷⁵ In this sense, the Palestinian refugees still have a strong link to the country which is now Israel, as the successor state of Mandate Palestine, which they see as their “own country”. Despite the long period of time since their displacement, most of them, even those who have been naturalized in host countries, still see themselves as Palestinian and many still hope to return to their country of origin. Even though many changes have taken place since 1948, and the social, political, and economic situations today differ considerably from the situation in the Palestine of 1948, this does not mean that the refugees today do not have links to the country of Israel. Most of them still hold ownership deeds over the land that they were expelled from. Some even still have the keys to their houses they left in 1948. Most of them still identify with the town or village they or their parents used to live in, and many of them have family members from whom they were separated in 1948. The attachment to Palestine as a geographical area that Palestinians see as their homeland, which is now under Israeli sovereignty, has played an important role in the shaping and development of the Palestinian national identity.Footnote ⁷⁶

On the other hand, some commentators, such as Yaffa Zilbershats, have argued that any link that the Palestinian refugees have with Israel is artificial and is superseded by links to the countries they reside in.Footnote ⁷⁷ This argument, however, ignores the fact the about twenty percent of the population of Israel are Palestinian, many of whom still maintain strong links with the Palestinian refugees, many of whom belong to the same families. It also ignores the fact that the links were weakened due to Israeli official policies and decisions and not because of choices that the refugees made. So far, Israel has been categorically denying the refugees the right to return to their country,Footnote ⁷⁸ and, therefore they cannot be seen as having the ability to strengthen their links with their country, which is now Israel.

It is important here to recall that the expulsion and the denial of return were part of a racially motivated policy that translated into acts of expulsion and legislative measures to block the return of the refugees in order to maintain a strong Jewish majority in Israel. This goal of a Jewish majority could not have been possible without widespread expulsions, especially since at the time the UN had recommended the partition of Palestine in late 1947 there were more Palestinian Arabs than Jews in the area designated as the Jewish state.Footnote ⁷⁹ After the displacement, Israel enacted laws in order to freeze the demographic situation at the time, which reduced the Palestinians to a minority of thirteen percent. These included the Absentee Property Act-1950, which confiscated all of the property of the refugees; the Citizenship Act-1952, which officially denationalized all of the Palestinian refugees (even those who were internally displaced); and the Prohibition of Infiltration Ordinance-1954, which was meant to facilitate the expulsion of those refugees who had managed to make their way back to their homes.Footnote ⁸⁰ This policy was accompanied by discriminatory policies against the Palestinian minority in Israel in almost all areas of life. Many of these policies still persist today, and have even intensified in some areas.Footnote ⁸¹ For example, in 2003, Israel enacted the Citizenship and Entry to Israel Act (temporary provision)-2003, which effectively makes family reunification between Palestinians who are Israeli citizens and other Palestinians almost impossible.Footnote ⁸² The idea of creating and maintaining a Jewish majority is one of the main manifestations of Israel's definition as a Jewish state, and it is seen as one of the cornerstones of the constitutional edifice.Footnote ⁸³ The policy has a strong racial emphasis, and the Committee on the Elimination of Racial Discrimination has found policies of a similar nature to be a violation of international law. The Committee emphasized that “any attempt to change or to uphold a changed demographic composition of an area against the will of the original inhabitants, by whatever means, is a violation of international law”.Footnote ⁸⁴

After Israel occupied the West Bank and the Gaza Strip in 1967, it extended its racial policies to these areas. Although the occupation was not accompanied by large-scale expulsions, as in 1948, many people left the West Bank and Gaza Strip, and were denied return.Footnote ⁸⁵ Israel also embarked on a large-scale colonization process by settling its population in Jewish settlements in breach of Article 49 of the Fourth Geneva Convention. The settlements and the wall that was constructed to protect them led to further waves of displacement.Footnote ⁸⁶ In 2004, the ICJ issued its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, declaring the wall and the settlements illegal, and added that they violated the right of the Palestinians to self-determination.Footnote ⁸⁷ This strong emphasis on the racial aspects of Israel's policy has led some scholars to argue that the situation should be more accurately described as apartheid.Footnote ⁸⁸ Given the policy of racial discrimination, the demographic policies, the ongoing and even increasing violations, and the obstacles that Israel has mounted in the way of those who want to return, the refugees’ naturalization in the country of refuge or in a third country does not, absent the existence of the option to return to Israel, nullify their right of return.

It is important here to highlight that despite the fact that issues of migration and nationality are matters of local law, they are still governed by principles of international law.Footnote ⁸⁹ Israel cannot rely on its internal legislation, and even its constitutional basic laws that emphasize the idea of the Jewish state in order to evade its obligations under international law.Footnote ⁹⁰ In any event, these issues are not expected to be addressed in any local Israeli court; instead, they are expected to be discussed in negotiations between Israel and the Palestine Liberation Organization, as the political representative of the refugees, and they therefore have to be decided in accordance with international law. Indeed, according to the Oslo Agreement, the question of the refugees is one of the issues to be discussed in the “permanent status” negotiations.Footnote ⁹¹

In this context, it is worthwhile noting the circumstances under which some Palestinian refugees have acquired a new citizenship. As a result of the displacement of 1948, Palestinian refugees fled mainly to neighbouring countries, such as Jordan (which after the war included the area known as the West Bank of the Jordan River, which in 1967 was occupied by Israel), Syria, Lebanon, Egypt (including the Gaza Strip which was under Egyptian occupation), and Iraq. Out of these countries, only Jordan granted citizenship to the Palestinians who resided in the Kingdom after the 1948 war. This category included refugees (who fled to Jordan and the West Bank) and non-refugees (residents of the West Bank).Footnote ⁹² In 1988, Jordan renounced its claim for sovereignty over the West Bank and severed its legal and administrative links with it, and as a result Palestinians residing there lost their Jordanian citizenship, and Palestinian refugees residing in Jordan were able to maintain their Jordanian citizenship.Footnote ⁹³ This is the biggest category of Palestinian refugees who now hold citizenship of a third state, and they number about 1.75 million.Footnote ⁹⁴ Another significant group of Palestinian refugees who were given citizenship were wealthy Christian Palestinians in Lebanon. The Lebanese government gave them citizenship in the 1950s in an attempt to maintain the demographic balance between Christians and Muslims in that country.Footnote ⁹⁵ In the other host countries mentioned above, and other countries that some Palestinian refugees have immigrated to or sought asylum in—mainly Europe, North America, and Australia—the grant of citizenship was done on an individual basis as part of the naturalization process.Footnote ⁹⁶

A. Palestinian Refugees and the 1951 Convention

Before proceeding with the analysis of the cessation clauses of the 1951 Convention, one should examine the special situation of the 1948 Palestinian refugees under international law, and the applicability of the 1951 Convention. This discussion is needed because opinions on when and how the 1951 Convention applies to Palestinian refugees vary.

Due to the circumstances that led to the creation of the Palestinian refugee problem, Palestinian refugees are treated in a unique manner under the international refugee regime.Footnote ⁹⁷ With the mass exodus of refugees in 1948 and 1949, the UN General Assembly created two UN bodies to deal with the issue. The first body, created in 1948, was the United Nations Conciliation Commission on Palestine (UNCCP). Its mandate included, inter alia, the promotion of “a peaceful adjustment of the future situation in Palestine”Footnote ⁹⁸ and:

Thus, the UNCCP is supposed to have the mandate of protecting Palestinian refugees.Footnote ¹⁰⁰ In 1949, the UN created the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). UNRWA's mandate was to provide assistance by carrying out a “direct relief and works programme”.Footnote ¹⁰¹ UNRWA's mandate was restricted to assistance, while protection fell within the mandate of UNCCP.Footnote ¹⁰² Although the UNCCP still exists officially, it has been defunct since the 1960s, and has ceased to fulfil its protection mandate.Footnote ¹⁰³ This has left the Palestinian refugees with very little protection, creating “a protection gap”.Footnote ¹⁰⁴

According to Article 1D of the 1951 Convention, the Convention does not apply to refugees who receive protection or assistance from other UN agencies other than the United Nations High Commissioner on Refugees (UNHCR).Footnote ¹⁰⁵ Since other UN bodies deal with the issue of Palestinian refugees, the applicability of the 1951 Convention to Palestinian refugees is unclear. The way this Article applies to Palestinian refugees can be interpreted in a number of ways.Footnote ¹⁰⁶ Lex Takkenberg, for example, argues that the first sentence of Article 1D, known as the “exclusion clause”, means that the 1951 Convention applies to Palestinian refugees falling under the mandate of UNRWA as long as they have the possibility of receiving assistance from UNRWA. Takkenberg's emphasis here is on the possibility of receiving assistance, and not the actual receipt of assistance. He asserts that the second clause, also known as the “inclusion clause”, applies only when the possibility of getting assistance from UNRWA ceases to be available.Footnote ¹⁰⁷ In such situations, Palestinian refugees, as a category, will be entitled to the benefits of the 1951 Convention without making any determination of whether the refugees meet the criteria of Article 1A(2).Footnote ¹⁰⁸ The UNHCR offers a somewhat different interpretation. According to its Revised Note from 2009,Footnote ¹⁰⁹ the UNHCR considers the 1948 Palestinian refugees, who are inside the area of operations of UNRWA, to fall within the exclusion clause in Article 1D, and if a refugee leaves the area of operation of UNRWA for any reason, the refugee will be included in the inclusion clause of Article 1D, without having to pass a new assessment under Article 1A, regardless of her ability to return to the area of operations of UNRWA.Footnote ¹¹⁰

Susan Akram and Terry Rempel, on the other hand, argue that the most appropriate interpretation of Article 1D is to view it as a contingent inclusion clause, which will be triggered by the cessation of either protection or assistance by the two UN agencies, UNRWA and UNCCP. Since the UNCCP ceased to fulfil its mandate in the 1950s, the 1951 Convention and all of the guarantees and the rights it provides should apply to Palestinian refugees under the inclusion clause in Article 1D.Footnote ¹¹¹ Akram and Rempel further argue that Palestinian refugees should be entitled to the benefits under Article 1D of the 1951 Convention until their position is “being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations”, as per the requirement of Article 1D, which in this case means that they are given the option to exercise their rights to return and compensation according to UN General Assembly Resolution 194(III).Footnote ¹¹²

To sum up this point, different opinions have been voiced on the question of the applicability of the 1951 Convention to the Palestinian refugees, and the extent and limits of its applicability. Nevertheless, in the absence of a definitive answer on this issue, the 1951 Convention and the cessation clause remain relevant.

B. International Refugee Law and the Focus on Protection

The main international law instruments that deal with refugees and refugee status are the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. The Statute of the Office of the United Nations High Commissioner on Refugees is also relevant.Footnote ¹¹³ The definition of refugee in Article 1A of the 1951 Convention includes three key components: fear of persecution, being outside the country of nationality or habitual residence, and lack of protection.Footnote ¹¹⁴ Refugee law is meant to deal with these three components. The principle of non-refoulement prohibits states from returning individuals who face an actual or well-founded fear of persecution. The other two components, alienage and the lack of protection, are addressed by the international community, which is working collectively to achieve durable solutions for refugees. Durable solutions are meant to provide options for refugees whereby the refugees can find permanent residence and enjoy the protection of a state and cease to be a refugee. This obliges the international community to devote resources to deal with the problems created by the influx of people who are essentially aliens. International law, therefore, sees refugees as a problem for the international community, one that the international community should co-operate in resolving.Footnote ¹¹⁵ Refugee status should be seen as temporary, since it is a problem that should be resolved. It should be seen as an exception to the rule that people should enjoy the protection of their countries. How does cessation affect the other rights of the refugee, especially the right to return to the country of origin? Does cessation terminate or limit that right? In order to answer this question, one needs to examine the meaning of “cessation” and situate the discussion within the objectives and rationale of International Refugee Law (IRL). The interaction between the right of return and IRL should also be examined for inconsistencies and contradictions.

At the heart of refugee law, and as its underlying rationale, lies the principle of protection. Refugee law is meant to determine when refugee status begins—a status which is triggered by alienage and the lack of protection by the state of origin. Once the status is determined, refugee law determines what kind of protection a refugee should be entitled to, the rights of the refugee, and the obligations of the host state until the status ceases.Footnote ¹¹⁶ James Hathaway has put it clearly and succinctly when he said that the main purpose of refugee law:

Since refugee law sees refugee status as a problem, which is also a temporary phenomenon, it seeks to find permanent solutions for the refugee problem, which would ensure that refugees or former refugees enjoy the necessary protection.Footnote ¹¹⁸

International law envisages three solutions for the refugee problem that would bring the refugee status to an end: integration in the country of refuge, resettlement in a third country, or voluntary repatriation, with the last being the most desirable solution.Footnote ¹¹⁹ The emphasis is on bringing refugee status to an end by providing a place of residency and protection. None of these instruments explicitly grants refugees the right to return to their own countries or homes. Refugee law mainly calls upon the relevant states to facilitate a solution, be it repatriation or assimilation within new national communities.Footnote ¹²⁰ Out of the three durable solutions, only repatriation represents an absolute obligation on a state, that is, the state of origin. No state is obliged to grant permanent status or citizenship to anyone other than “persons born in its territory who otherwise would be stateless”.Footnote ¹²¹ Resettlement and absorption, therefore, represent discretionary grants of “grace” by the state, not a state obligation, while repatriation is a state obligation.Footnote ¹²² The fact that return is seen as the most desirable solution does not mean that refugee law is the sole source of that right. It is merely a reflection of what is usually seen as the desires of the refugees and the international community.Footnote ¹²³

Even in the search for permanent solutions for refugees, the focus is mostly on protection. In the area of voluntary repatriation, for example, the focus is on two main points: the voluntary nature of the repatriation,Footnote ¹²⁴ and the refugee's return in safety and with dignity. Safe return encompasses legal safety, such as “amnesties and personal safety, integrity, non-discrimination and freedom from fear of persecution or punishment upon return”.Footnote ¹²⁵ It also includes physical and material security.Footnote ¹²⁶ These are all elements of protection. In the area of resettlement and the acquisition of a new nationality, two main points are important to note: the voluntary nature of the acquisition of the new nationalityFootnote ¹²⁷ and the effectiveness of the nationality, that is, that it confers protection and rights that are fundamental to nationality.Footnote ¹²⁸ The voluntary nature of the acquisition of the nationality is important, as involuntary acquisition of nationality does not result in the cessation of the refugee status.Footnote ¹²⁹

Refugee law, as such, does not explicitly create a right to return which is specific to refugees, but it assumes its existence a priori. Since it already exists under international law, the role of refugee law regarding return is merely to induce the relevant parties to facilitate the voluntary repatriation of the refugees. Therefore, in the absence of any explicit provision, international refugee law instruments cannot be seen as sources of authority to abrogate that right. In fact, the trend that can be identified in the area of refugee law is deference to general human rights law. To this end, the UNHCR Executive Committee has stated that “[s]tates must continue to be guided, in their treatment of refugees, by existing international law and humanitarian principles and practice, bearing in mind the moral dimensions of providing refugee protection”.Footnote ¹³⁰ This is also consistent with the view that sees refugee rights as part of general international human rights law.Footnote ¹³¹ As Hathaway has put it: “[r]efugee rights do not exist as an alternative to, or in competition with, general human rights. Nor, however, has the evolution of a broad-ranging system of general human rights treaties rendered the notion of refugee-specific rights redundant.”Footnote ¹³²

Article 1C(3) of the 1951 Convention provides that the application of the Convention will cease if the refugee acquires a new nationality and enjoys the protection of the country of nationality. Again, we see that the emphasis is on the protection and the extent to which the new nationality can provide protection. This reinforces the assertion that the main focus in the 1951 Convention is on protection, and that the cessation of the refugee status only examines and deals with the protection and its quality.Footnote ¹³³ Other paragraphs of Article 1C also highlight the issue of protection. For example, paragraph 1 states that the re-availment of the refugee of the protection of her country of nationality will bring the refugee status to an end. Paragraph 5 provides that compelling reasons, arising out of previous persecution, for the refugee's refusal to avail herself of the protection of the country of nationality are an exception for the cessation of the refugee status because of the change of circumstances in the country of nationality. A similar exception also exists in paragraph 6, which deals with refugees who do not carry the nationality of their country of origin, but who are only habitual residents. Paragraph 2, which focuses on the re-acquisition of nationality, also implicitly deals with protection, since nationality and the re-acquisition of nationality constitute the supreme manifestation of the re-availment of protection of the country of origin.Footnote ¹³⁴ It is clear that the underlying rationale behind this clause is to determine when a refugee ceases to be in need of international protection, and when the “refugee problem” comes to an end. It is not intended to have any implications on the rights the refugee had before becoming a refugee.

C. Interpretation of the 1951 Convention and the ICCPR: Contradiction or Harmony?

As opposed to the 1951 Convention, which deals with the relationship between the refugee and the country of refuge, Article 12(4) of the ICCPR deals with a right that is triggered by the arbitrary action of the refugee's state of origin, which denies the refugee the right to enter the country. The Article's focus is on the issue of freedom of movement and the relationship between the individual and the country she resides in, and the obligations that are imposed on states as a result of this link. The right, in this situation, is invoked vis-à-vis the state of origin. It is therefore clear that the 1951 Convention and the ICCPR are meant to serve different objectives and functions, and protect different interests, although there may be some, albeit minimal, overlap between them. Therefore, there is no contradiction in asserting that an individual retains the right to return even if her refugee status has been terminated. It may be the case that the lack of any apparent contradiction is the reason why authors who have written in support of the applicability of Article 12(4) of the ICCPR did not feel compelled to examine the impact of the cessation on the right of return. On the other hand, an argument can be made that the acquisition of a new citizenship terminates the right of return of the former refugee to her country of origin. Lewis Saideman argues, based on his perceived contradiction between two treaty provisions, that:

From the outset, it should be explained that, as shown above, there is no conflict between Article 12(4) of the ICCPR and Article 1C of the 1951 Convention, since the 1951 Convention contains no provision abrogating the right of return. Nevertheless, even if a conflict does exist, does the interpretation that Saideman offers, which terminates the right to return, adhere to the rules of interpretation of treaties under international law? As shown in the analysis below, the answer is “no”.

The interpretation of treaties is governed by the Vienna Convention on the Law of Treaties.Footnote ¹³⁶ The treaty is seen, more or less, as a restatement of customary international law,Footnote ¹³⁷ and is ratified by 108 states.Footnote ¹³⁸ Article 31(1) of the Vienna Convention provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Article 31(2) stipulates that the context for the purpose of interpretation shall include, inter alia, the text, the preamble, and the annexes. The context of the ICCPR, as can be understood from its text and the preamble, is the guarantee, protection, and promotion of human rights in general, with a special emphasis on civil and political rights. Also, another leading principle in the interpretation of human right treaties, especially the ICCPR, is that provisions permitting derogations from rights and limitations on rights, should be construed in a strict and narrow manner.Footnote ¹³⁹ So even if the cessation clause is treated as a limitation clause, its scope and interpretation should be construed in a strict and narrow manner.

With respect to the 1951 Convention, apart from the fact that it does not contain any provision indicating that cessation of refugee status can affect the right of return of the refugee, the preamble of the Convention begins by considering the “principle that human beings shall enjoy fundamental rights and freedoms without discrimination”.Footnote ¹⁴⁰ It also considers the fact that the UN has “endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms”.Footnote ¹⁴¹ This emphasis on human rights shows that the object of the Convention is to provide humans with further rights, or create refugee-specific rights, but not to abrogate rights already in existence. Therefore, Article 1C of the 1951 Convention should not be construed in a way that limits and restricts human rights that were granted by other international law instruments.Footnote ¹⁴²

Saideman further elaborates on this issue, and argues that even if a refugee is seen as having two nationalities, the acquisition of a new citizenship brings to an end the right of return to the state of origin. His argument is based on the assertion that international law does not compel recognition of dual citizenship, and even tries to limit it.Footnote ¹⁴³ He further argues that “the increasing phenomenon of toleration of dual citizenship does not indicate a widespread subjective sense of legal obligation on the part of states, but appears to be a gratuitous gesture by willing nations”.Footnote ¹⁴⁴ Saidemen concludes that since recognition of dual citizenship is only permissible under international law and is not a right, “Article 12(4) of the ICCPR ought to be interpreted to grant an individual a right to call only one country ‘his own’ ”.Footnote ¹⁴⁵ He does not, however, provide any reason as to why dual citizenship should not be recognized under the ICCPR, even though it is permissible under international law. In addition, this argument seems to be outdated, and ignores the fact that nationality in the context of international human rights law is not nationality in the formal sense, but an effective and genuine link between the country and the individual. His assertions regarding dual citizenship do not reflect a rule of general international law. Although some treaties regard the restriction of the ability to have more than one nationality as desirable, and strive to reduce multiple nationalities,Footnote ¹⁴⁶ there are other treaties that tolerate multiple nationalities, and others that even encourage dual nationality.Footnote ¹⁴⁷ Thus, the treaties, which seek to restrict multiple nationalities, are seen as particular international law,Footnote ¹⁴⁸ and cannot be seen as a rule of general international law. International law on this point appears to be neutral. The argument, therefore, that the right of return can only be limited to one state because international law does not create an obligation to recognize multiple citizenship is not supported by the recent trends in the area. Such an interpretation also ignores the human rights context. The argument becomes even harder to sustain given that Israel itself tolerates multiple citizenship.

In conclusion, the interpretation that Saideman provides cannot stand. The method of interpretation used, and the assertions and assumptions made, are contrary to universally accepted rules of interpretation, and contrary to the principles and objectives of both Conventions. In fact, the proposed interpretation (which supposedly would result in greater harmonization of international law) comes with many risks. Refugee law aims at providing protection to refugees until their “refugee problem” is solved. It is also seen as a temporary status, until the “refugee problem” is solved and adequate protection is provided. To this end, the reduction of the number of refugees in the world by offering durable solutions is described as one of the goals of the UNHCR.Footnote ¹⁴⁹ At the same time, many refugees insist on returning to their state of origin, and refuse any other option that would risk their right to return. Harmonization in the manner proposed by Saideman may deter such refugees, who desire to return to their homes, from seeking to improve their situation and give up their status as refugees by acquiring a new nationality because this would compromise their ability to return to their country of origin.

If, for the sake of harmonization, refugees who wish to acquire a new nationality would be deprived of their right to return to the state of origin, many refugees may opt not to acquire a new nationality, and thus preserve their status as refugees, a status that is seen as “a problem” and that international law aims at eradicating. Harmonization in this manner would decrease the number of refugees who would opt to terminate their refugee status, which would be at odds with the object of the 1951 Convention itself. This kind of harmonization would punish the refugee for attempting to improve her situation. It is also in contradiction with the principles and goals of the international refugee law system. In addition, the position suggested is flawed because it ignores the other different sources of law of the right of return.Footnote ¹⁵⁰