Introduction
For more than fifty years, Israel has based its refusal to allow Palestinian refugees to
exercise their right of return on a number of key arguments. These include: the lack of
physical space, the desire to maintain a demographic Jewish majority, state security,
and international law. This Brief addresses the right of return in international law.[1]
While supporters of the Israeli position try to attack the right of return as articulated in
General Assembly Resolution 194(III)[2] – for example, by attempting to argue that
the right of return is not mandatory, that it does not apply to mass groups and that it is
only reserved for “nationals” of Israel - these claims, in fact, have no basis in
international law.
The right of refugees to return to their homes and properties – sometimes referred to as their place of last habitual residence - is
anchored in four separate bodies of international law: the law of nationality, as applied upon state succession; humanitarian law;
human rights law; and refugee law (a subset of human rights law which also incorporates humanitarian law). The right of return
applies in cases where persons have been deliberately barred from returning after a temporary departure and in cases of forcible
expulsion (on a mass scale, or otherwise). In the latter case, the obligation of the state of origin under international law to receive
back illegally expelled persons is even stronger. Any type of governmental policy designed to block the voluntary return of
displaced persons is strictly prohibited.
Historically speaking, the right of return had achieved customary status in international law by 1948.[3] Customary norms are
legally binding upon all states, and states are, therefore, legally obligated to follow the rules codified by these norms. The United
Nations reaffirmed the status of the right of return as a customary norm applicable to Palestinian refugees in General Assembly
Resolution 194. The obligation of the United Nations to uphold the rule of law and to ensure the immediate and full
implementation of the right of return is even greater due to the role that the UN played (for example, through General Assembly
Resolution 181 proposing “partition” of Palestine) in the chain of events that led to the creation of the Palestinian refugee
situation in the first place. Israel, however, as the sole “state of origin,” is the only state with the binding obligation under
international law to receive back the 1948 Palestinian refugees.
This Brief examines the right of return of Palestinian refugees as grounded in the four relevant bodies of international law. The
first section of the Brief examines the right of return as set forth in UN Resolution 194. After reviewing each relevant body of
international law, the Brief reviews Resolution 194 once more, in light of international law principles and state practice. The
conclusion demonstrates that the responsibility of the international community to ensure that Israel immediately and fully
implements the Palestinian refugees’ right of return has not diminished but has, on the contrary, gained even greater weight with
the intervening passage of more than fifty years since the period of initial displacement.
UN General Assembly Resolution 194 (III) and the Right of Return[4]
In December 1948, the UN General Assembly established a mechanism, the United
Nations Conciliation Commission (UNCCP), to facilitate implementation of durable
solutions for refugees in Palestine, based on recommendations of the UN Mediator
Count Folke Bernadotte.[5] UN General Assembly Resolution 194, paragraph 11, sets
forth the framework for a solution to the plight of Palestinian refugees. Resolution
194, paragraph 11, sub-paragraph 1, by its express terms, 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