International human rights law also incorporates the general prohibition against
forcible expulsion (mass or otherwise) from one’s home or place of origin. Forcible
expulsion violates a vast host of specifically enumerated rights contained in the broad
corpus of human rights law generally, and specifically violates the protection of
freedom of movement. “[Any] form of forced population transfer from a chosen place
of residence, whether by displacement, settlement, internal banishment, or
evacuation,” states a UN report to the Sub-commission on the Prevention of
Discrimination and Protection of Minorities, “directly affects the enjoyment or
exercise of the right of free movement and choice of residence within States and
constitutes a restriction upon this right.”[31] Similarly, the UN Sub-commission has
invoked both Article 12(4) of the ICCPR and Article 13(2) of the UDHR regarding
the inadmissibility of mass expulsions.[32] Finally, General Comment No. 27
specifically states that ICCPR Article 12(4) applies in cases of “enforced population
transfers or mass expulsions” and, therefore, reinforces Article 12(4)’s applicability to
large groups of people as discussed above.
The Right of Return in Refugee Law and State Practice (Opinio Juris)
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 (see above for the foundation of the right of
return in human rights law), while actual implementation of the right of return is
through the Office of the UN High Commissioner for Refugees (UNHCR). Article 1
of the 1950 Statute of the UNHCR delineates the mandate of the Agency as being to
“facilitate the voluntary repatriation of [] refugees, or their assimilation within new
national communities.”[33]
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 problems.[34] Only voluntary repatriation
represents a right accorded to the individual (and a corresponding obligation on
the part of the country of origin, from which the refugee flow was generated).
The other solutions are neither rights of refugees nor obligations of receiving
states. According to the former High Commissioner for Refugees, Ms. Sadako
Ogata:
the ultimate objective of the international protection of refugees is not to
institutionalize exile, but to achieve solutions to refugee problems. Voluntary
repatriation, whenever possible, is the ideal solution. [This is why] … I have
stressed the refugees’ right to return home safely and in dignity.[35]