For more than 50 years, Israel has based its refusal to allow
Palestinian refugees to exercise their Right of Return on a number
of key arguments. These include: lack of physical space, the desire
to maintain a demographic Jewish majority, state security and
international law. This article addresses the right of refugees to
return to their homes and properties based on four bodies of
international law. The UN reaffirmed the status of the Right of
Return as a customary norm applicable to Palestinian refugees in UN
resolution 194(III), 1948. The responsibility of the international
community to ensure that Israel immediately and fully implements
the Palestinian refugees' Right of Return has gained even greater
weight over the fifty-plus years since the period of initial
UN General Assembly Resolution 194 (III) and the Right of
UN resolution 194, paragraph 11, establishes the framework for a
solution to the plight of Palestinian refugees. It identifies three
distinct rights that Palestinian refugees are entitled to exercise
under international law - return, restitution and compensation.
Resolution 194 further affirms that those refugees choosing not to
exercise their Right of Return are entitled to be resettled and
receive compensation for their losses. It also instructs the UNCCP
to facilitate repatriation, resettlement, compensation, and
economic and social rehabilitation. The emphasis on repatriation as
the preferred solution for Palestinian refugees reflects several
principles, including the right of displaced persons to return to
their homes, as well as the prohibitions against arbitrary
denationalization and mass expulsion, that were customary norms of
international law by 19483. Several principles are relevant to the
implementation of the right of return as delineated in resolution
First, the resolution clearly identifies the exact place to which
refugees are entitled to return, i.e., to their homes4. Second, the
resolution affirms that return must be guided by the individual
choice of each refugee. According to the UN Mediator's report, it
was an "unconditional right" of the refugees "to make a free choice
[which] should be fully respected"5.
Third, resolution 194 identifies the time frame for the return of
refugees, i.e., "... at the earliest practicable date." The UN
Secretariat concluded that "the Assembly agreed that the refugees
should be allowed to return when stable conditions had been
established. It would appear indisputable that such conditions were
established by the signing of the four Armistice Agreements" in
1949. Fourth, resolution 194 imposes an obligation on Israel to
re-admit the refugees. Finally, resolution 194 was drafted to apply
to all refugees in Palestine. While the first two drafts of
paragraph 11 used the term "Arab refugees" the final draft approved
by the General Assembly on 11 December only used the term
The fact that the General Assembly made Israel's admission as a
member to the UN conditional upon implementation of resolution 194
clearly indicates that the Assembly considered Israel bound to
ensure full implementation of the Palestinian refugees' Right of
Return6. The UN General Assembly has reaffirmed resolution 194
annually without diminution since 1948.
The Right of Return in the Law of Nationality
The law of nationality is a subset of the larger "law of nations,"
which regulates state-to-state obligations. The first major
principle of relevance to the Right of Return is that while states
do have some domestic discretion in regulating their nationality
status (i.e., determining who is a national of their country) such
discretion has clear limits under international law7.
Under the law of nationality, the duty to implement the
individual's right of return is an obligation owed by a state to
all other states. The rule is that states are required to readmit
(i.e., allow to exercise their right of return) their own nationals
- including temporarily displaced persons in cases of state
succession - because to refuse to do so would impose on some other
state an obligation to receive or host the rejected individual.
This is known as the "rule of readmission."
Another customary rule exists under the law of nationality known as
the "prohibition against denationalization." This rule follows as a
natural corollary to the rule of readmission and prevents a state
from using revocation of nationality status as a means of avoiding
its obligation to admit its own nationals. This rule - like the
rule of readmission - attained customary status well before the
events of 19488. Israel's 1952 Nationality Law completely violates
the rule of the law of nationality prohibiting denationalization.
While the 1952 Nationality Law carefully avoids the use of the term
"non-Jew" in describing the narrowly defined9 categories of persons
who might be eligible for Israeli citizenship, it was clearly
intended to apply to non-Jews only, as Jews would be able to enter
Israel under the Law of Return10. The vast majority of Palestinian
refugees are incapable of meeting the strict requirements of
Israel's 1952 Nationality Law and have therefore been effectively
The Law of State Succession
The law of state succession applies whenever one state (a
predecessor state) is followed in the international administration
of a geographical territory by another state (the successor state).
In the case of Palestinian refugees, the predecessor state was the
embryonic state of Palestine11 for which, under international law,
the British Mandate for Palestine constituted a "custodian", and
was succeeded, in part, by the state of Israel. When territory
undergoes a change of sovereignty, the law of state succession
requires that habitual inhabitants of the geographical territory
coming under new sovereignty be offered nationality by the new
state. This rule applies regardless of whether the habitual
residents of the territory so affected are actually physically
present in the territory undergoing the change of sovereignty on
the actual date of the change or not.
This rule was recognized by the legal advisor to the UN Economic
Survey Mission in 194912 and by a Tel Aviv district court in a 1951
case13. The judge came to the conclusion that in the absence of any
law to the contrary (Israel had not yet enacted its 1952
Nationality Law), all Palestinians who remained inside the 1949
armistice lines should automatically be considered nationals of the
state of Israel, through the operation of international law.
The Right of Return in Humanitarian Law
The right is also anchored in humanitarian law, the body of law
regulating what states are permitted to do during war. Both the
1907 Hague and the 1949 Geneva Conventions (to which Israel is a
signatory) provide for the right of return of displaced persons to
their homes following the cessation of hostilities. The provisional
government of Israel (through responsibility for its army and the
Zionist paramilitary forces which preceded it) was fully bound by
the rules of humanitarian law when Zionist forces tried to
establish a state through military means.
Under humanitarian law, there is a general Right of Return, which
applies to all displaced persons, irrespective of how they came to
be displaced during the period of conflict. This rule was first
codified in Article 43 of the Hague Regulations (and incorporated
into all subsequent customary humanitarian law, including the
Geneva Conventions and their related Protocols). According to this
rule, a belligerent occupant must preserve the legal and social
status quo in the occupied territory to the maximum extent
possible, pending the final legal resolution of the conflict (i.e.,
a peace agreement).
The Right of Return in Cases of Forcible (Mass)
There is a second type of Right of Return provided for in
humanitarian law. This applies when persons have been displaced
through a forcible expulsion (at gunpoint, under threat of fire or
through the deliberate military "stampeding" of a population out of
its place of habitual residence). The only appropriate corrective
remedy for forcible expulsion, under international law, is
implementation of the Right of Return.
The Right of Return in Human Rights Law
Human rights law - which confers rights directly upon individuals
and not through states - also contains the right of return. Every
individually-held right recognized under human rights law imposes a
corresponding duty upon states to recognize that enumerated right.
The Universal Declaration of Human Rights (UDHR), which the General
Assembly adopted in 1948 one day prior to Resolution 194, is the
foundation for the right of return in human rights law. Article
13(2) of the UDHR phrases the right of return broadly and simply,
as follows: "Everyone has the right to leave any country, including
his own, and to return to his country."
Article 12(4) of the International Covenant on Civil and Political
Rights (ICCPR) phrases the right of return similarly: "No one shall
be arbitrarily deprived of the right to enter his own country."
Thus, the ICCPR phrasing of the Right of Return would accommodate
the situation of second, third or fourth-generation Palestinian
refugees14. Some commentators have tried to argue that Article
12(4) only applies to individuals, and not to large groups of
people seeking to claim the right simultaneously. This argument
does not make sense, since all rights enumerated in the ICCPR are
granted to individuals, regardless of how many other people might
be seeking to exercise the same enumerated right, and at what point
in time15. Finally, it must be noted that the ICCPR contains a
general non-discrimination provision in Article 2(1), which
categorically prohibits governmental interference with
ICCPR-guaranteed rights based on "race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status." Returning to Israel's two
nationality laws - the 1950 Law of Return (for Jews) and the 1952
Nationality Law (for "non-Jews") - it becomes immediately obvious
that the intended result of these two laws working in tandem is
precisely to use "race, colour,  language, religion, political or
other opinion, national or social origin,  birth or other status"
as filters for administering the conferral of Israeli nationality
The Right of Return in Refugee Law and State Practice (Opinio
The right of return also exists in a special sub-set of human
rights law, which is the law relating to refugees. The primary
instrument governing rights of refugees and states' obligation
towards them is the 1951 Convention Relating to the Status of
Refugees and its related 1967 Protocol. The juridical source of
refugees' right of return in refugee law is human rights law, while
actual implementation of the right of return is through the Office
of the UN High Commissioner for Refugees (UNHCR)16.
Under refugee law, the principle of refugees' absolute right of
return on a voluntary basis to their place of origin (including to
their homes of origin) is central to the implementation of durable
solutions designed by the international community to address
refugee flows. Of the three durable solutions - voluntary
repatriation (i.e., return), voluntary host country integration,
and voluntary resettlement - the UNHCR considers voluntary
repatriation to be the most appropriate solution to refugee
State practice regarding implementation of bilateral or
multilateral mechanisms for repatriation of refugees provides rich
precedent for - and evidence of opinio juris regarding - the
existence of a customary norm requiring countries of origin to
receive back persons displaced or expelled therefrom18.
Prominent examples include the 1994 Bosnia agreement, the 1995
Dayton Accord, the 1995 Croatia agreement, and the 1994 Guatemala
agreement. All four agreements describe the right of refugees and
displaced persons to return to their homes of origin (as in
resolution 194) as being unqualified19.
Discussion of the implementation of the Right of Return of
Palestinian refugees raises many questions regarding the nature of
the state of Israel and the legality of its actions towards
Palestinian refugees. The refugees' Right of Return, however, has
gained even greater weight with the intervening passage of more
than fifty years since the period of initial displacement of the
Palestinian refugees. The Right of Return, as set forth in
resolution 194, conforms with binding principles, codified in the
four separate bodies of international law as explained above,
strengthening its relevance as a durable solution for Palestinian
refugees. Implementation of the Right of Return - and the other
associated rights enumerated in resolution 194 (i.e., restitution
and compensation) - is, therefore a logical necessity for a just
and legal peace agreement between Israel and the Palestinians,
under international law.
1 This article is a summary of a longer legal analysis
written by Gail J. Boling, BA entitled The 1948 Palestinian
Refugees and the Individual Right of Return: An International Law
Analysis and published by BADIL (January 2001).
2 This section is based on unpublished research by Terry Rempel,
Coordinator of Research and Information, BADIL Resource
3 Customary norms are legally binding upon all states, and states
are, therefore, legally obligated to follow the rules codified by
4 See Analysis of Paragraph 11 of the General Assembly Resolution
of 11 December 1948, Working Paper Prepared by the UN Secretariat,
UN Doc. A/AC.25/W.45, 15 May 1950.
5 See Paolo Contini, Legal Aspects of the Problem of Compensation
to Palestine Refugees, 22 Nov. 1949, attached to Letter and
Memorandum dated 22 November 1949, Concerning Compensation,
received by the Chairman of the Conciliation Commission from Mr.
Gordon R.. Clapp, Chairman, UN Economic-Survey Mission for the
Middle East. UN Doc. W/32, 19 January 1950.
6 See UN resolution 273 (1949) of 11 May 1949.
7 This principle is universally recognized. See,Tunis and Morocco
Nationality Decrees advisory opinion, PCIJ, Series B, No. 4 (1923)
at 24; Convention on Certain Questions relating to the Conflict of
Nationality Laws, League of Nations Treaty Series, vol. 179, 89
(1930), art. 1.
8 See, e.g., Research in International Law, Harvard Law School,
"Nationality, Responsibility of States, Territorial Waters: Drafts
of Conventions Prepared in Anticipation of the First Conference on
the Codification of International Law, The Hague, 1930".
9 See Nationality Law, 5712/1952, 93 Official Gazette 22 (1952),
10 4 Laws of the State of Israel 114 (1950). The law casts a wide
arc, to grant Israeli citizenship to the largest number of Jews
11 The League of Nations, as early as 1919, "provisionally"
recognized Palestine's "existence" as a fully sovereign
"independent nation" in Article 22 of its Covenant.
12 See Paolo Contini, Legal Aspects of the Problem of Compensation
to Palestine Refugees, supra 6.
13 A.B. v. M.B., 17 ILR 110 (Tel Aviv District Court, 6 April 1951,
14 Article 12(4) of the ICCPR uses the phrase "his own country" to
specify the destination or location where the right of return is to
15 Respected commentators have rejected the concept that the
Article 12(4) cannot apply to large groups of people. See, e.g.,
Manfred Nowak, UN COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR
COMMENTARY 220 (1993).
16 The status of Palestinian refugees under the 1951 Convention and
the protection function of the UNHCR have been addressed in
previous Briefs by BADIL.
17 See eg, Executive Committee Conclusion No. 18 (XXXI) 1980,
Voluntary Repatriation; Executive Committee Conclusion No. 40
(XXIX) 1985, Voluntary Repatriation.
18 Rosand, 1091.
19 See Susan M. Akram and Terry Rempel, "Recommendations for
Durable Solutions for Palestinian Refugees: A Challenge to the Oslo
Framework," Palestine Yearbook of International Law (forthcoming
volume for 2000-2001).