discussion in the General Assembly concerning the draft resolutions indicates that the
term “Arab refugees” was initially used simply because most of the refugees were in
fact Palestinian Arabs. By using the broader term “refugees,” however, the General
Assembly indicated that the rights reaffirmed in paragraph 11 were to be applied on a
non-discriminatory basis.
The fact that the General Assembly made Israel's admission as a member to the
United Nations conditional upon implementation of Resolution 194 clearly indicates
that the Assembly considered Israel to be fully bound to ensure full implementation of
the Palestinian refugees’ right of return.[12] The UN General Assembly has reaffirmed
Resolution 194 annually without diminution since its original promulgation in 1948.
The right of return, as set forth in Resolution 194, continues to conform with binding
norms of international law as explained below, strengthening its relevance as a
durable solution for Palestinian refugees.
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 law. The domestic
discretion of states to regulate their nationality status will only be recognized at the international level to the extent that it
complies with international law.
This principle is universally recognized and has been reaffirmed by a 1923 advisory opinion rendered by the Permanent Court of
International Justice, in the authoritative 1930 Hague Convention on Certain Questions relating to Conflict of Nationality Laws,
and by the International Court of Justice in 1955.[13] It has also been clearly formulated by various United Nations bodies,
including the General Assembly’s Sixth (Legal) Committee and the UN High Commissioner for Refugees.[14] Under the law of
nationality, states are limited in their domestic discretion to regulate their own nationality status by several additional binding
obligations under international law, as described in the following section.
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 Palestine[15] for which, under international law, the British Mandate for Palestine constituted a “stand-in,”
“custodian” or “guarantor,” 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. Furthermore, 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 represents a customary norm of international law and is binding upon all states.
Article 14(2) of the Articles on Nationality of Natural Persons in Relation to the Succession of States[16] drafted by the
International Law Commission and adopted verbatim by the General Assembly, specifically enumerate a right of return in the
law of state succession for all habitual residents of a territory undergoing a change in sovereignty.[17] Three aspects of Article 14