State practice regarding implementation of bilateral or multilateral mechanisms for repatriation of refugees provides rich
precedent for – and evidence of opinio juris (which is a sense of binding legal obligation on the part of states) regarding – the
existence of a customary norm requiring countries of origin to receive back persons displaced or expelled therefrom.[36] Returns
of mass groups of displaced persons have occurred in conjunction with the express acknowledgment of the international
community – as well as the explicit recognition by the parties to the underlying conflict themselves – that the persons returning
are doing so as a matter of right.
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
(just as the right was phrased in Resolution 194) as being unqualified. Looking at the Dayton Accord, in particular, one notes
immediately that the primary rights accorded to displaced persons in that agreement mirror exactly the three rights articulated for
Palestinian refugees in Resolution 194 – namely: (1) the right of return (repatriation); (2) the right of restitution (repossession);
and (3) the right of compensation.
The sheer magnitude of the numbers of refugees whose voluntary return and
reintegration into their respective places of origin UNHCR has proactively facilitated
as an integral part of crafting durable solutions as part of comprehensive peace
settlements is impressive. “During 1994 and 1995, some three million refugees
returned to their countries, the largest numbers to Afghanistan, Mozambique, and
Myanmar. Late 1996 and early 1997 saw a massive return of over one million
Rwandan refugees who fled during the more than four years of civil war.”[37] During
the 1990’s, an estimated 12 million refugees exercised their right to return to their
homes and places of origin.[38] By comparison some 1.3 million refugees and persons
of concern to the UNHCR were voluntarily resettled during the same period.[39]
Numerous UN resolutions relative to other refugee cases reaffirm the right of return
for displaced persons. The UN Security Council has unambiguously declared that the
right of refugees (and displaced persons) to return to their homes of origin (which is
strikingly similar to the way the right of return is phrased in Resolution 194) is
absolute. In the context of the conflict in Bosnia and Croatia, for example, the
Security Council has issued numerous resolutions affirming this particularly relevant
formulation of the right of return.[40] Similarly, in the case of the conflict in Georgia,
the Security Council again affirmed the right of refugees to return to their homes of
origin. In a further strong resemblance to another important aspect of Resolution 194,
the Security Council specifically stated that in the case of Georgia, the right of the
refugees to return was independent of any final political solution (and therefore could
not be conditioned upon political demands made by any of the parties to the
conflict).[41]
Finally, in another important parallel to the Palestinian case, in both the Bosnia and
Kosovo repatriation schemes devised by the international community, individual and
collective rights were jointly protected. In both Bosnia and Kosovo, “the collective
rights to an independent entity or statehood were preserved, along with a mechanism
for individual refugees to assert their claims to repatriate and obtain restitution and/or
compensation. Each of these situations involved the establishment of claims
commissions as part of a negotiated settlement, but the right of the individual to assert
his/her claim was preserved independently of the outcome of the self-determination
issue.”[42] The General Assembly also has issued resolutions in the context of its
initiative on state cooperation to avert new flows of refugees, which have reaffirmed
“the right of refugees to return to their homes in their homelands.”[43]