LEGAL ASPECTS OF THE RIGHT TO RETURN
The right to return to one’s own country, including the right to return of the Palestinians, does have solid foundations in international law. The right to return to one’s own country is addressed in three of the major pillars of international law, which complement and reinforce one other: human rights law, refugee law, and resolutions and declarations by international bodies and authorities that affirm or clarify rules of international law. One principle emphasized by all three is that the right to return to one’s own country is to be enjoyed without discrimination of any kind. In practice, States and intergovernmental organizations do invoke the right to return as a legal right in situations of mass displacement. They also implement the right to return in situations where territories have changed hands and even when the originating facts (those that created the displacement of the populations, for example) precede the existence of the specific legal norms addressing the right to return.
It would be useful to review some of the human rights legal sources and other references on the right to return to one’s own country, in order to help clarify the different dimensions of this human right, to demonstrate how and why it is internationally recognized, and to explain why it is a valid legal principle applicable to the situation of the Palestinian refugees. This memo also includes some recent examples of practice by states or intergovernmental organizations in relation to the right to return, and suggests some general principles we should take into account when venturing into the field of legal interpretation.
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_Human rights law
The Universal Declaration of Human Rights (UDHR), proclaimed by the UN General Assembly in 1948, sets out the guiding principles of the human rights movement. The rights and principles enshrined in the UDHR have been elaborated and codified in subsequent legally binding international human rights treaties, as well as in national constitutions and laws. The right to return is among these Afirst principles@; the UDHR states that: “Everyone has the right to leave any country, including his own, and to return to his country.@[1] Although there is some controversy among scholars about the juridical status of the UDHR, no one questions its moral force. The governments represented at the first Aglobal conference@ on human rights, held in Iran in 1968, agreed that Athe Universal Declaration of Human Rights constitutes an obligation for the members of the international community.@[2] Moreover, it is not contentious to say that at least some of provisions of the Declaration reflect norms that are binding on all States.[3]
International treaties give force to the rights proclaimed in the UDHR. Becoming Aparty@ to international human rights treaties is one of the main means by which States accept legal obligations to promote and protect the rights enumerated in the treaty. One of the most important human rights treaties is the 1966 International Covenant on Civil and Political Rights (ICCPR). It affirms the right to return, stating that: “No one shall be arbitrarily deprived of the right to enter his own country.@[4]
Technically speaking, the right to return to one=s own country is a component of the right to freedom of movement. It differs from other components of this right -- such as the right to leave any country including one=s own B in that the right to return cannot be subject to limitations because of “national security, public order , public health or morals or the rights and freedoms of others.”[5] The right to return is Aderogable@, meaning that its enjoyment can be partially suspended in cases in which there is a Apublic emergency which threatens the life of the nation@. However, for this Aderogation@ to be legitimate, it cannot go beyond what is Astrictly required by the exigencies of the situation@, and the measures taken by the State to resolve the situation cannot be Ainconsistent with their other obligations under international law” or Ainvolve discrimination solely on the ground of race, colour, sex, language, religion or social origin.@[6] Briefly, under international human rights law, the right to return to one=s own country is a very strong right which accepts few qualifiers. Without suggesting a hierarchy of different human rights, one could say that in the ICCPR the right to return is Aweaker@ than the right to be free from torture, which cannot be derogated from even under circumstances that threaten the life of a nation,[7] but it is Astronger@ than freedom of expression, which can be limited for reasons of national security, the rights and freedoms of others, etc.
The International Convention on the Elimination of All Forms of Racial Discrimination is another treaty that establishes legal obligations for the States parties. It says: “In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to¼ guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (d) Other civil rights, in particular: ii) The right to leave any country, including one's own, and to return to one's country.” [8]
Israel is a State party to both of these treaties.[9]
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In becoming parties to a human rights treaty, States pledge to cooperate with the bodies that monitor the implementation of the treaty. The treaties mentioned above created bodies specifically mandated to monitor state compliance with their provisions. These bodies are the Human Rights Committee (HRC) for the ICCPR and the Committee on the Elimination of Racial Discrimination (CERD) for the respective Convention. Each Committee is composed of independent experts who are persons of high moral character and recognized competence in the field of human rights, and who are representative of different legal systems and traditions. The treaty bodies report annually to the UN General Assembly but they do not take specific instructions from any UN body or country. Under the treaties, States parties submit regular reports explaining what they have done to give effect to the rights recognized in the treaty and to guarantee the enjoyment of these rights to the people under their jurisdiction. These reports are examined by the treaty bodies in public meetings, and at the end of the examination the committees issue their Concluding Observations, where they express their concerns and make recommendations. The committees also issue General Comments that are not addressed to any particular government. The General Comments are used by the treaty bodies to interpret and clarify the meaning and content of the treaties, when necessary. The General Comments are also a useful means of establishing jurisprudence and are agreed by consensus by the members of the monitoring bodies. The role of the treaty monitoring bodies as guardians of their respective covenants is not in doubt.
Through its General Comment 27, the Human Rights Committee has given authoritative interpretation to the language of Art 12.4 of the ICCPR, which spells out the right to return. The HRC says: “The right to return is of the utmost importance for refugees seeking voluntary repatriation.” In relation to disputed territories or territories that have changed hands the General Comment includes unambiguous language; it says that individuals have the right to return to their own country even when their “country ofnationality has been incorporated to another national entity whose nationality is being denied to them.”
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The General Comment also explains the meaning of the expression "his own country" and gives examples of who is entitled to return to “his own country.” The HRC states that the idea of “his own country” “is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.” It has been questioned whether the descendants of those who were originally expelled or fled Palestine in 1948 or 1967 also have this right. On this theme, General Comment 27 says that the wording of art 12.4 “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).”[10]
The position adopted by the Human Rights Committee follows the well established concept that lasting connections between individuals and territory may well exist independently of the formal determination of nationality (or lack thereof) held by the individuals and even if those affected had never before been in a particular territory. Among the criteria which should be taken into account when determining whether or not an individual is a “mere alien” in relation to a given country are: language, religion, lasting residence, and race, as well the origin of the individual’s ancestors. The idea of the “genuine and effective links” between an individual and a country was first established by the International Court of Justice in the landmark Nottebohm case. These links are based on “a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties”, and are constituted by factors such as “the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.”[11]
It has also been suggested that General Comments do not have the same legal value as the HRC=s individual decisions. In the case of General Comment 27, however, the relevant wording was taken verbatim from the legal reasoning of an individual decision in a case against Canada.[12] Moreover, General Comments are widely recognized as a valuable tool in the implementation of the binding norms of human rights treaties. In February 2000, for example, the UN General Assembly declared that it “welcomes the continuing efforts of the Human Rights Committee and the Committee on Economic, Social and Cultural Rights to strive for uniform standards in the implementation of the provisions of the International Covenants on Human Rights, and appeals to other bodies dealing with similar human rights questions to respect those uniform standards, as expressed in the general comments of the Committees.”[13]
A ratione temporis objection has also been raised. It was argued that since the events that created the Palestinian diaspora took place before Israel became a state party to these international human rights instruments (and indeed, before the instruments were even written), neither the relevant provisions of these human rights treaties, nor the authoritative interpretations made by the treaty bodies, apply to Israel. However, it is well established in international human rights law that if a “¼fact persists after the entry into force of the Covenant [and a fortiori any other international human rights treaties] its effects have to be examined, without regard to their original cause,” provided that the effects constitute human rights violations in themselves.[14] This is known as the doctrine of the “continuing violation.” In the case we discuss it means that Israel could not be held retroactively accountable under the ICCPR for the expulsion or exclusion of Palestinians from their territories. However, the right of the Palestinians to return persists, and continues to be violated, and Israel is bound to respect their right to return as a result of the obligations it undertook when it became a party to the treaty in 1991. Other international human rights bodies such as the European Court of Human Rights have also endorsed the concept of a “continuing violation.”[15]
In July 1998 the HRC examined Israel=s report on the implementation of the ICCPR, that is, how Israel ensures the rights contained in the ICCPR to those persons subjected to its jurisdiction. The Committee addressed only partially the right to return of the Palestinians while commenting on the restrictions on freedom of movement suffered by individuals who live in the Occupied Territories: “...the Committee notes with regret the continued impediments imposed on movement, which affect mostly Palestinians travelling in and between East Jerusalem, the Gaza Strip and the West Bank, and which have grave consequences affecting nearly all areas of Palestinian life,@ and urged Israel Ato respect the right to freedom of movement provided for under article 12, including the right to return to one's country.”[16]
In August 1996 the Committee on the Elimination of Racial Discrimination issued a General Comment dealing specifically with refugees and internally displaced persons and the right to return.The CERD emphasized that: “(a)¼refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety; © ¼refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them ¼” [17] This General Comment obviously addresses both situations of mass displacement and those in which territory has been disputed.
The CERD has also referred to the right of return in relation to specific countries. For example in 1996, when dealing with Russia=s report on the implementation of the Convention, the CERD expressed deep concern at the situation of large numbers of Ingush exiles who were “being denied by the North Ossetian authorities the right to return freely to their regions of origin¼”[18]
In March 1998 the CERD examined the report presented by Israel. In its Concluding Observations the CERD left no doubt as to the obligations of Israel under the Convention in relation to the right to return of the Palestinians. It stated: It stated: “The right of many Palestinians to return and possess their homes in Israel is currently denied. The State party should give high priority to remedying this situation. Those who cannot repossess their homes should be entitled to compensation.” [19]
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Israel is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR).[20] Compliance by State parties with the provisions of the ICESCR is monitored by the Committee on Economic, Social and Cultural Rights. This Committee was established in 1985 by the (UN) Economic and Social Council (ECOSOC). It is comprised of 18 experts with recognized competence in the field of human rights, who are independent and serve in their personal capacity, not as representatives of governments. The Committee performs the same monitoring functions as the CHR and the CERD.
In December 1998 the Committee examined Israel=s report on compliance with the ICESCR. The ICESCR contains no specific provision on the right to return to one=s own country. However, the impact of the denial of the right to return to Palestinians was deemed by the Committee to have important effects on the enjoyment by the Palestinians of those rights effectively protected by the Covenant. The Committee noted “with concern that the Law of Return, which allows any Jew from anywhere in the world to immigrate and thereby virtually automatically enjoy residence and obtain citizenship in Israel, discriminates against Palestinians in the diaspora upon whom the Government of Israel has imposed restrictive requirements which make it almost impossible to return to their land of birth.” The Committee recommended that: “In order to ensure respect of article 1 (2) of the Covenant and to ensure equality of treatment and non-discrimination, the Committee strongly recommends a review of re-entry policies for Palestinians who wish to re-establish their domicile in their homeland, with a view to bringing such policies level with the Law of Return as applied to Jews.”[21]
It has also been asserted that a consistent pattern of violations of the right to return to one’s country constitutes a violation of the customary international law of human rights, which is established when states follow general and consistent practices out of a sense of legal obligation to protect human rights, whether or not those practices are reflected in legal texts. “A ‘consistent pattern of gross violations’ generally refers to violations of those rights that areuniversally accepted and that no government would admit to violating as state policy.” Among these are : “¼denial of freedom to leave a country; denial of the right to return to one’s country; mass uprooting of a country’s population; denial of freedom of conscience and religion; denial of personality before the law; denial of basic privacy such as the right to marry and raise a family; and invidious racial and religious discrimination. A state party to the Covenant on Civil and Political Rights is responsible even for a single, isolated violation of any of these rights; any state is liable under customary law for a consistent pattern of violations of any such right as state policy.”[22]
UN Declarations, Resolutions and Studies
_UN Declarations, Resolutions and Studies