Notes on international law and the right of return

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My thanks to Ahmed Moor for his continuing efforts to advance the search for political solutions in Israel-Palestine, and I offer my apologies for my extended absence from the discussion. I hope to respond to his latest proposals in the near future, but first I’ll answer a question that Adam Horowitz raised in response to my  previous post discussing the Palestinian right of return. The question was, “what is the relation of international law to the right of return?” I’ll refer to some long answers and short answers to that question before providing my own medium-length response. 

My analysis will focus primarily on the most weighty and controversial element of the right of return, which is the right of the descendants of the original 1948 Palestinian refugees to move to and live within the internationally recognized, pre-1967 borders of the State of Israel.  The rights of the 1948 refugees themselves, while no less (and probably more) compelling, apply only to a small and dwindling number of individuals, and the rights of 1967 refugees from the Occupied Territories to return to those areas can be realized by the creation of a Palestinian state.  It is the right of descendants of 1948 refugees to live in Israel that poses the toughest problem. 

Many lengthy, complex and detailed answers to the question can be found in articles and position papers written by law professors and political activists.  A fair sample of that literature might include, on the Palestinian side, Badil’s brief and bulletin, the Center for Policy Analysis on Palestine’s information paper, and the Human Rights Watch position; and on the Israeli side, articles by professors Eyal BenvenistiRuth Lapidoth, and Yaffa Zilbershatz, and by journalist Matthew Kalman

Readers with the patience and fortitude to study that literature will learn a great deal about international treaties and UN resolutions, but in the end they are likely to arrive at the following bottom line: Given the lack of effective mechanisms for interpreting and applying international law regarding the right of return, it makes more sense to seek political rather than legal solutions.  In other words, unless and until some legal forum is empowered to decide, authoritatively, what international law regarding the right of return requires, and some executive body is empowered to enforce that decision, the competing claims of activists and professors will remain largely academic, without much practical effect. 

If I nonetheless put myself in the position of a lawyer wishing to advocate for the right of return through legal action, I have to ask myself at least four pertinent questions:  What legal standards should I invoke?  By what authority do they bind the State of Israel?  And again, What legal forum can apply those legal standards, and What executive body can enforce its decision? 

Regarding the legal standards, a review of international treaties governing armed conflict, refugees, migration and nationality – four areas with great relevance to the Palestinian refugee problem – unfortunately provides little or no support for the right of return.  While various provisions of such treaties are occasionally cited by right of return advocates, on examination they generally turn out to be designed for different types of situations, or advisory rather than compulsory, or both. 

More commonly cited by right of return advocates are UN resolutions, particularly General Assembly (GA) Resolution 194, resolving that “the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date,” and international human rights law, especially Article 12 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “no one shall be arbitrarily deprived of the right to enter his own country.” 

The numerous UN-GA resolutions addressing the right of return reflect the shifting emphasis of politics at different points in history.  A fair sampling of the seminal resolutions would include 194, adopted in 1948, which made a relatively strong statement in favor of repatriation; 393 and 394, adopted in 1950, as it became clear that near-term repatriation was unlikely to occur, and which therefore put additional emphasis on resettlement and compensation; 2452, adopted in 1968, the first of a series of resolutions strongly supporting the right of return of 1967 refugees to the Occupied Territories; and 3236 (1974), 37/120(E) (1982) and 38/83(J) (1983) – adopted as Israel’s standing and support began to decline due to the ongoing Occupation and the invasion of Lebanon – which expressed renewed support for the right of return of 1948 refugees. 

However, there are at least three serious obstacles to enforcing UN-GA resolutions.  First, they lack specificity and consistency.  Second, the GA’s powers, delineated in Chapter IV and other parts of the UN Charter, are advisory, not compulsory.  By way of contrast, Chapter VII of the Charter empowers the Security Council (SC) to make binding decisions and even to use military force to enforce them; however, the SC resolutions relevant to the right of return, like 237 and 242, are general and advisory. 

Third, the UN’s judicial arm, the International Court of Justice (ICJ), whose jurisdiction is defined in Chapter 14 of the Charter and in an annexed statute, may deliver a judgment binding a member state only if that state has consented to the proceedings.  The ICJ may also deliver advisory opinions without a state’s consent, as it did regarding Israel’s Separation Wall, but no advisory opinion has been delivered regarding the right of return. 

Article 12 of the ICCPR was enacted to protect the individual’s freedom of movement, including his right to leave and enter his own country.  In the wake of a number of refugee crises in the 1990’s, the UN Human Rights Committee issued an official comment applying Article 12 to refugee situations.  The general language of the comment seems to support a fairly strong claim for many 1948 and 1967 refugees, and perhaps a weaker claim for their descendants.  Again, though, the ICJ lacks jurisdiction to provide binding interpretation and application. 

If a court did assume jurisdiction to define and implement the right of return, I think the most relevant precedent, which it could distinguish but probably not ignore, would be the body of law arising from the claims of Greek Cypriot refugees from the northern part of Cyprus. 

In 1974 Greek Cypriots launched a military coup against the government of Cyprus, and shortly thereafter Turkish forces invaded the northern part of the island.  More than 150,000 Greek Cypriots fled their homes in the north, while tens of thousands of Turkish Cypriots fled their homes in the south.  In 1983 the Turkish Republic of Northern Cyprus (TRNC) declared its existence as an independent state, which however was recognized only by Turkey, not by any other countries.  In 1985 the TRNC enacted a constitution which purported to expropriate the property deserted by Greek Cypriot refugees.  In addition, Turkey began to foster the migration of settlers from mainland Turkey to the TRNC. 

However, since Turkey had previously agreed to be bound by the decisions of the European Court of Human Rights (ECHR), Greek Cypriot refugees were able to assert their rights in that forum.  In a series of decisions, most notably Loizidou v. Turkey (1996) and Cyprus v. Turkey (2001), the ECHR ruled that Greek Cypriot refugees retained legal title to their property and were also entitled to be paid damages for deprivation of its use. 

The UN had previously adopted a number of resolutions supporting the rights of Cypriot refugees to return to their homes (SC 361, GA 3212, and others), but the ECHR did not rely on those resolutions, nor did it rely on ICCPR Article 12 regarding freedom of movement.  Instead, the ECHR relied primarily on a protocol to the European Convention on Human Rights that protects property rights.  The court held that since the TRNC was not recognized as a sovereign state, its laws purporting to expropriate refugee property were of no effect. 

Over time, the ECHR’s rulings created problems both for itself and for the TRNC.  The ECHR was flooded with thousands of similar lawsuits, while as a practical matter it was unable to enforce the declared rights of refugees to return to their homes.  Meanwhile, the TRNC faced ever-growing damages liability, and the legal validity of its title to refugee property was undermined.  Under those pressures, the ECHR and TRNC worked out a compromise arrangement over the last decade whereby the TRNC enacted a law and created a commission to process refugee claims, then amended its process in accordance with the ECHR’s recommendations.  Eventually the TRNC began processing claims, paying damages, and in some case returning refugee property or exchanging it for refugee property in the south, while the ECHR began requiring claimants to exhaust the remedies provided by the TRNC before appealing to the ECHR. 

Understandably, many Greek Cypriot refugees protested the ECHR’s diversion of their claims to an organ of the TRNC, where many would have to accept compensation rather than restitution of their property.  However, the court, in the Demopoulos case decided last March, held that while the refugees were entitled to legal redress, after 35 years they could not expect to return to the status quo ante, nor would it be proper to force the eviction of large numbers of people who had come to live on refugee property.  The court also acknowledged that it lacked the resources to handle all the pending claims and, of course, the power to engineer a political solution to the Cyprus conflict. 

However, there’s one additional wrinkle. In a parallel development, a British couple purchased refugee property in northern Cyprus and built a house there, whereupon the original owner sued them in a Cypriot court and received a judgment requiring them to pay him damages and demolish the house.  The owner then attempted to enforce his judgment against the couple in a UK court, which in turn asked the European Court of Justice (ECJ), which hears civil cases and operates parallel to the ECHR, whether it should hear the case.  The ECJ gave the green light.  Last January, the UK Court of Appeal, in Apostolides v. Orams, ruled that in light of the ECJ decision and ECHR precedent – and despite concerns that civil litigation of this kind might interfere with diplomatic efforts to broker a political solution to the ongoing Cyprus dispute – the UK courts would enforce the judgment of the Cypriot court. 

Does that mean that the door is now open for a 1948 Palestinian refugee from West Jerusalem to sue a London resident who purchased his former home?  Maybe.  Since Israel is a sovereign state, UK courts would probably apply the “act of state” doctrine, according to which the courts of one state, for diplomatic reasons, almost always decline to hear civil claims where a decision would require the court to pass judgment on the validity of another state’s action – in this case, Israel’s expulsion of refugees and expropriation of their property.  However, there have been exceptions to the rule, which readers can explore in the House of Lords decisions in Kuwait Airways v. Iraqi Airways and Oppenheimer v. Cattermole

Sometimes surprising results can be achieved by a creative lawyer appealing to a sympathetic judge.  And, of course, experienced litigators may think of many other approaches that I haven’t imagined.  Legal efforts sometimes have a significant political impact, which is why lawyers and human rights activists are reportedly preparing to file a wave of lawsuits based on the IDF’s destruction of Palestinian property during Operation Cast Lead. 

I’ve taken a legalistic approach to this topic rather than focusing on the declaratory moral force of international law, because when international law is invoked for moral suasion rather than legal enforcement, it becomes a political rather than a legal tool.  It looks like the Israeli-Palestinian impasse will be broken primarily by political rather than legal means, and I hope to return to the sphere of political action in my next post.

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