are significant in clarifying the rules the mandatory obligation of the successor state (Israel) to implement the right of return of
Palestinian refugees in this specific context of state succession. First, nationality status is completely irrelevant to (in other
words is not a required element for) for habitual residents of a territory undergoing a change of sovereignty to have a right to
return to that geographical area. Second, Article 14(2)’s right of return applies by its express terms to all habitual residents of a
given territory undergoing a change of sovereignty even if they were actually outside the geographical territory concerned on the
actual date of succession. Third, implementation of Article 14(2) is mandatory for all successor states, as is indicated by use of
the word “shall” in Article 14(2). Article 5 reiterates the rule of Article 14(2).
Under these rules, the presumption that habitual residents of a territory undergoing a
change of sovereignty will acquire the nationality status of the successor state can
only be rebutted by nationality procedures, which are themselves in conformity with
international law. This rule was recognized by the legal advisor to the UN Economic
Survey Mission in 1949[18] and by a Tel Aviv district court in a 1951 case,[19] in which
the judge’s opinion expressly stated that international law and the rules of the law of
state succession, in particular, were specifically relied upon. The judge came to the
conclusion that in the absence of any law to the contrary (and since the opinion was
rendered in 1951, Israel had not yet enacted its 1952 Nationality Law), all Palestinians
who remained inside the 1949 armistice lines should automatically be considered
nationals of the state of Israel, through the automatic operation of international law.
The law of state succession requires the same result as well for all Palestinian
refugees who were temporarily outside the territory on the date of succession.
There are two more provisions of the Articles on Nationality, which are extremely
relevant to the case of the Palestinian refugees: Article 15, which prohibits
governments from practicing discrimination in the conferral of nationality status; and
Article 16, which requires that adequate due process safeguards be provided in the
determination of nationality status. Israel has violated Article 15 by drafting its 1952
Nationality Law for “non-Jews” (explained in the section on the prohibition against
denationalization below) in such a way as to effectively denationalize Palestinian
refugees, while allowing Jews from anywhere in the world to acquire “nationality”
status through the much more generous terms of Israel’s Law of Return for Jews (also
explained below). Israel has violated Article 16 by failing to allow Palestinian
refugees to re-enter Israel, thereby denying them the basic opportunity to be heard in a
court of law to challenge the legality – particularly under international law – of
Israel’s 1952 Nationality Law.