Fourth, the argument is raised that Resolution 194 has somehow been superceded,
amended or annulled by Security Council Resolution 242, which calls for “a just
settlement of the refugee problem” without specifying exactly what would constitute a
just settlement. The obvious response here is that Resolution 194 – since it preceded
Resolution 242 and because it spelled out in such specificity exactly what legal
remedies would be required for a just settlement of the refugee problem (i.e., return,
restitution and compensation) – is necessarily incorporated into Resolution 242 and
must be read as part of it. Given the binding customary status of the legal norms
contained in Resolution 194, it is logically impossible to attempt to argue that
ignoring its terms could somehow constitute a “just settlement” to the plight of
Palestinian refugees. Further proof that Resolution 194 has not been diluted is
evidenced by the extremely strong parallels, which exist between the remedies
articulated in Resolution 194 and the very same remedies, which have been
articulated in numerous other peace agreements.
The Palestinian refugees’ right of return has not diminished since the UN
General Assembly adopted Resolution 194 in December 1948 but rather, has, on
the contrary, gained even greater weight with the intervening passage of more
than fifty years since the period of initial displacement of the Palestinian
refugees. The right of return, as set forth in Resolution 194, conforms with
binding principles, codified in the four separate bodies of international law as
explained above, strengthening its relevance as a durable solution for Palestinian
refugees. Implementation of the right of return – and the other associated rights
enumerated in Resolution 194 (i.e., restitution and compensation) – is, therefore
a logical necessity for a just and legal peace agreement between Israel and the
Palestinians, under international law.
[1]
While many useful analyses have been written about the individually-held “right of
return” of the 1948 Palestinian refugees, several contributions stand out in particular
for their invaluable insights into the juridical (legal) bases in international law of this
right. For the most important among these, see, e.g., John Quigley, “Displaced
Palestinians and a Right of Return,” Harvard International Law Journal, Vol. 39, No.
1 (Winter 1998) 171; John Quigley, “Mass Displacement and the Individual Right of
Return,” British Yearbook of International Law, Vol. 68 (1997) 65; W.T. Mallison
and S. Mallison, “The Right to Return,” 9 Journal of Palestine Studies 125 (1980);
W.T. Mallison & S. Mallison, AN INTERNATIONAL LAW ANALYSIS OF THE
MAJOR UNITED NATIONS RESOLUTIONS CONCERNING THE PALESTINE
QUESTION, U.N. Doc. ST/SG/SER.F/4, U.N. Sales #E.79.I.19 (1979); W.T.
Mallison & S. Mallison, THE PALESTINE PROBLEM IN INTERNATIONAL
LAW AND WORLD ORDER 174-188 (1986); Kathleen Lawand, “The Right to
Return of Palestinians in International Law,” International Journal of Refugee Law,
Vol. 8, No. 4 (October 1996) 532.
[2]
[3]
G.A. Res. 194, U.N. GAOR, 3rd Sess., U.N. Doc. A/810 (1948).
See, e.g., A Study on Stateless, U.N. Doc. E/1112 (1949), reprinted in I THE
COLLECTED TRAVAUX PREPARATOIRES OF THE 1951 GENEVA