13 THE RIGHT OF RETURN IN INTERNATIONAL LAW AN

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The Right of Return in International Law: An Israeli Perspective

13


The Right of Return in International Law: An Israeli Perspective

Eyal Benvenisti*


Draft. Please do not cite without author’s permission.



  1. Introduction

Refugees invoke international law as a basis for the individual legal right of any refugee to return to his or her home and the corresponding legal duty on the government in control of the area to respect such individual choice and allow the return and repossession of property. In the context of the Palestinian refugees, this argument is based on three different legal bases. One is the UN General Assembly Resolution 194 of 11 December 1948. The second is general international human rights law, in particular the 1966 Covenant on Civil and Political Rights. Finally, the argument finds support in international precedent. This paper aims at exploring the limitations of this argument. It suggests that Resolution 194 offers a weak support for the claim, that general human rights law does not offer a clear remedy of return in the case of mass transfer of refugees and its applicability to the Palestinian case is doubtful, and that international practice does not support a demand for return in similar cases. Instead of an individual right of each Palestinian refugee, or any refugee,1 to return, international law recognizes the full authority of the relevant governments (including those representing the refugees) to reach any compromise they deem to be just and appropriate. Hence, the paper concludes, international law stipulates that the demand of Palestinian refugees to return must be negotiated by governments, and not be resolved in the courts of law.

Part II discusses Resolution 194, Part III deals with international human rights law, Part IV with international precedent. Part V concludes.


  1. Resolution 194

Although it has the legal status of a recommendation rather than a binding obligation,2 UN General Assembly Resolution 194 of 11 December 19483 is the starting point for the entire debate. The Resolution provides in Section 11:

[The UNGA] Resolves 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 that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;

The Resolution was a product of much debate and negotiations. The intensity of the debate and its outcome can be gleaned by comparing the text of the Resolution to the Report of the United Nations Mediator Count Bernadotte. The recommendation of Bernadotte referred to

“the right of the Arab refugees to return to their homes in Jewish-controlled territory at the earliest possible date… and their repatriation, resettlement and economic and social rehabilitation, and payment of adequate compensation for the property of those choosing not to return…” (my emphasis)4

Thus, in the Resolution, return is presented not as a legal right, but as a demand that is subject to the decision of unidentified decision-makers, presumably the sovereign country who has authority under international law to grant access to its territory. These authorities have discretion, captured by the “should be permitted” to sift through the refugees and admit only “the refugees wishing to return to their homes and live at peace with their neighbours,” and stipulate when this return would be “practicable” (instead of “the earlier possible date” in the Mediator’s Report). Indeed, Resolution 194 was so disappointing to the Arab governments in that it implied the recognition of the State of Israel, by the precondition that only to those who are "ready to live at peace with their neighbors," could be returned. The PLO rejected the resolution, and only in 1988 it impliedly accepted it.5 Israel, on the other hand, expressed its acceptance, in principle, of this Resolution, which it saw as reflecting a policy according to which most refugees would be resettled in the areas beyond Israeli territory.6

This restrictive reading of Resolution 194 was endorsed by the UN. Subsequent Resolutions indicated the understanding, which was also shared by the UN Conciliation Commission for Palestine (CCP),7 that an unrestricted repatriation of refugees was neither a feasible option nor a preferred one. The CCP’s view was that since 1948 the physical conditions in this area have changed considerably. Therefore, every decision on return must be coordinated with the Israeli government rather than imposed on it, and that there should be an upper limit to the number of refugees whose return would be sought:

"The areas from which the refugees came are no longer vacant, and any movement of return would have to be carefully worked out and executed with the active co-operation of the Government of Israel. Therefore it is indispensable that this Government should have definite, concrete figures on which to work, so that it can integrate plans of repatriation into its own economy. On the other hand, it is equally necessary that the refugees who opt to return do so in the full knowledge of the actual conditions under which they would be repatriated."8

This interpretation is further supported by the prevailing policy at that time, a policy that saw ethnic separation in a positive rather than negative light. (see Part IV(1) below).

Parallel to its continued reaffirmation of Resolution 194 (III), the General Assembly centered on programs that would include the resettlement of refugees in Arab countries. Article 4 of Resolution 393(V) of 2 December 1950 considered that, without prejudice to Resolution 194(III),

“the reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement, is essential in preparation for the time when international assistance is no longer available, and for the realization of conditions of peace and stability in the area.”9

Article 5 of the same Resolution instructed UNRWA "to establish a reintegration fund which shall be utilized for projects requested by any government in the Near East ... for the permanent re-establishment of refugees and their removal from relief."

The option of resettlement in addition to the "repatriation or compensation" option put forward by Resolution 194(III), was reiterated in Resolution 394(V) of 14 December 1950. Subsequent Resolutions treated the two options, namely, repatriation or resettlement, on an equal footing, thereby justifying the program recommended by UNRWA for "the relief and reintegration of Palestine refugees," which entailed large scale investments in the Arab countries that hosted the refugees.10 Later Resolutions requested the "Governments of the area, without prejudice to [Resolution 194(III)], in cooperation with the Director of [UNRWA], to plan and carry out projects capable of supporting substantial numbers of refugees."11 The General Assembly even criticized the refusal of Arab states to implement such projects of resettlement.12

The restrictive reading of the General Assembly’s attitude towards the refugees of 1948 is further highlighted by the different, unequivocal, statement concerning the Palestinians who were displaced as a result of the 1967 War. Resolution 2452A (XXIII) of 19 December 1968 called for the "speedy return" of the displaced Palestinians, and "[c]all[s] upon the Government of Israel to take effective and immediate steps for the[ir] return without delay."13 This definite call with respect to the displaced persons of 1967 underlines the much nuanced approach to the problem of the 1948 refugees, as expressed in the Resolutions of the same period concerning the latter.14

The weakness of the claim for a legal right of return and of repossession is reinforced by United Nations Resolutions concerning the settlement of the refugees problem in the Middle East. Security Council Resolution 242, which is adopted in the DOP, calls for "a just settlement of the refugee problem."15 It is worth noting that, by the time of the adoption of Resolution 242, numerous U.N. Resolutions had reiterated a solution to the refugee problem that did not necessarily include the return of all, or some, of the refugees to Israeli territory.16

In the following years, with the consolidation of the anti-Israeli majority in the General Assembly, the tone of the Resolutions concerning the 1948 refugees changed. Reference to Resolution 394(V) was omitted in Resolution 2792 (XXVI) of 6 December 1971. Starting in 1981, General Assembly Resolutions made reference to the Palestinian refugees' entitlement to their property and the income derived from it.17 In Resolution 38/83J of 15 December 1983, the Assembly referred to an alleged Israeli plan to resettle Palestinian refugees in the West Bank as a violation of the refugees' "inalienable right of return." Note, however, that a much more balanced tone was adopted subsequent to the signing of the Israeli-Palestinian Declaration of Principles (DOP). Resolution 48/158D of 20 December, 1993, concerning "peaceful settlement of the question of Palestine," mentions the "resol[ution] [of] the problem of the Palestine refugees in conformity with [Res. 194(III)] and subsequent relevant resolutions," as one of the principles for comprehensive peace.

It is submitted that the resolutions adopted during the 1970s and the 1980s cannot retroactively influence the interpretation of Security Council Resolution 242. Therefore the call of Resolution 242 for a "just settlement of the refugee problem" should be construed in light of the numerous prior U.N. resolutions that emphasized resettlement and compensation as two major options in lieu of repatriation, and in light of the law that does not support repatriation. In accepting Security Council Resolutions 242 and 338 as the basis for the permanent settlement,18 the 1993 Israeli-Palestinian accords imply a territorial compromise in Palestine/Eretz-Yisrael, and a rejection of a general right to return or to repossess property situated in Israel. While in past years the PLO opposed the 242-based solution, mainly due to this resolution's elusive treatment of the refugees' case,19 the acceptance of this resolution in the DOP may mark a departure from the struggle to return.


  1. Return as a Right under International Human Rights Law?

The claim that the right of return is recognized in international in human rights instruments, such as the Universal Declaration of Human Rights or the 1966 Covenant on Civil and Political Rights, is hotly debated. Therefore, it is yet to be generally accepted as part of customary law.

Article 12(4) of the 1966 Covenant on Civil and Political Rights20 stipulates that "No one shall be arbitrarily deprived of the right to enter his own country." This Article raises a series of questions regarding its intent and scope. The first question relates to its scope: As Stig Jagerskiold, one of its first interpreters, writes:

"This right is intended to apply to individuals asserting an individual right. There was no intention here to address the claim of masses of people who have been displaced as a byproduct of war or by political transfers of territory or population, such as the relocation of ethnic Germans from eastern Europe during and after the Second World War, the flight of Palestinians from what became Israel, or the movement of Jews from the Arab countries. Whatever the merits of various "irredentist" claims, or those of masses of refugees who wish to return to the place where they originally lived, the Covenant does not deal with those issues and cannot be invoked to support the right to "return." These claims will require international political solutions on a large scale."21


Several German scholars supported the other view. As Christian Tomuschat recounts, the support in German legal literature dates back to 1947, following the mass transfers of Germans from Central and Eastern Europe.22 In recent years, several other writers writing in support of the Palestinian cause, also reject Jagerskiold’s restrictive reading.23

The right to return to “his own country” raises additional difficulties when it is applied to individuals who have had no physical links to the country nor have been its citizens. The restriction of the right of return to a state's nationals only is emphasized in the International Law Association's Seoul's Declaration of Principles of International Law on Mass Expulsion.24

Then there is the question of retroactivity: Even if we assume that the right to return exists even in the context of mass relocation, the question remains to what extent it applies to those who became refugees before the right took effect. When the refugees problem was created, individuals enjoyed no rights under international law. At that time, individuals were objects of state’s interests but had no standing to sue governments.25

In recent years, support for the applicability of Article 12(4) to cases of mass transfer of populations, and a wide reading of the term “his own country,” has grown.26 This should be read in light of the atrocities committed in the former Yugoslavia between 1991 and 1995. The aim was to reverse the crime of ethnic cleansing. This impetus for invoking the law contributed to lesser attention to the passage of time between the creation of the refugee problem and its resolution. This passage of time requires a more sophisticated approach to remedying the refugee problem than the “individual rights” approach suggests. As we shall see in the following section, the distinction between these two types of problems is recognized under international law, and merit different response.

  1. The Practice of Refugees Return

We have to differentiate between two questions, when we examine state practice in the context of populations exchange. The first question relates to the ex ante decision to create such transfers and the second question relates to the ex post factum decision to react to such transfers after their occurrence. Previous state practice, especially in the wake of the two World Wars of the 20th century, suggested that population transfer was considered to be legal and moral, and indeed the preferred option to deal with inter-ethnic strife. This opinion has since changed. Population transfer is deemed illegal and even a crime. The more important question nowadays is the second question, related to the consequences of the transfer. After a brief description of the prevailing world opinion in 1948, I will address the second question, examining the practice concerning Bosnia-Herzgovina and Cyprus.


(1) The Legality of Populations Transfer: Then and Now

At the time of the creation of the Palestinian refugees problem, the policy of ethnic cleansing was viewed rather favorably. The first population-exchange agreements involved Bulgaria, Greece and Turkey. An agreement concerning populations exchange between citizens of Greece and of Bulgaria was secured in the Bulgaria-Greece Treaty of Nueilly of November 27, 1919, which provided for the relocation of 46,000 Greeks from Bulgaria, and 96,000 Bulgarians from Greece.27 This agreement inspired the Greek and Turkish governments to implement a similar policy but on a greater scale.28 The Greek-Turkish War which followed World-War I ended in 1922 with the devastating defeat of the Greek army in Asia Minor. This defeat, and the ensuing brutal measures of Turks against Greek communities in Turkey, precipitated a large wave of Greek refugees who fled their homes in Turkey. In light of these developments, the two enemy countries, Greece and Turkey, provided in their peace treaty for a mutual exchange of populations. Under the treaty, about 2,000,000 Greeks, who had formerly been Turkish citizens, and about 500,000 Turks, who had formerly been Greek citizens, left or were forced to leave for the other side.29 This solution to potential inter-ethnic violence was later praised as the optimal solution, despite the plight of those individuals who had to bear the burden of relocation, which was exacerbated by hunger, homelessness and unemployment.30

The architects of the post-World-War II world order were impressed by that solution,31 and decided to repeat it with respect to about 15 million Germans who had lived in Eastern Europe, particularly in the Eastern part of Germany, beyond the Oder and Neisse Rivers, which was allotted after the war to Poland.32 The Potsdam Declaration, issued by the Allied Powers at the end of World-War II, provided for the transfer to Germany of German populations remaining in Poland, Czechoslovakia, Hungary and Austria "in an orderly and humane manner."33 Despite the efforts of the Western powers, this mass transfer produced grave human suffering, and caused, according to one estimate, the death of more than two million expellees.34 Other transfer agreements, on a smaller scale, were implemented in certain parts of Central and Eastern Europe, following the redrawing of borders.35

Another policy of population transfer was adopted in 1947 to settle the dispute between Hindus and Muslims in British India. Once inter-religious animosity had proved that the two communities could not co-exist, the option of partitioning the sub-continent into two states -- India and Pakistan -- was chosen, which, in turn necessitated the mass relocation of millions.36

State practice has changed since those days. The mass transfer of populations that took place during the Turkish invasion of Cyprus in 1974 was condemned. In the wake of the atrocities committed in the former Yugoslavia, this condemnation led to the formulation of a term “ethnic cleansing” and its definition as a war crime. Whatever was deemed acceptable if not legal in 1948 is now rejected as illegal.


(2) Return as a Remedy

As all lawyers know, not all wrongs can be remedies by reinstating the status quo ante. Third parties’ expectations and other considerations merit respect. This is also true in the context of mass transfer of populations. Here we can discern two different approaches: one dealing with immediate responses to ethnic cleansing, and another dealing with late responses to already existing problems.


Immediate Responses: The first and most conspicuous precedent that support the claim of a remedy of the nature of a legal right to individual return can be found in the Dayton agreement of 1995.37 Its Annex 7 stipulates in Article 1:

“All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.”38

This unqualified message stands out as the clear resolution of the international community to undo the ethnic cleansing policy implemented in Bosnia-Herzegovina between 1991 and 1995, which led to more than 2 million refugees and displaced persons from all sides.39 It is backed by elaborate institutional apparatus that oversees the implementation of this policy.40 Thanks to the heavy involvement of this apparatus, refugees began a slow process of return to their homes.41 This process faces many obstacles put up by the ethnic majorities in control of the local governmental institutions, which included local legislation that confiscated the property left behind by those who fled the region.  Such measures legalized the allocation of property along ethnic lines,42 which consolidated ethnic cleansing and provided a major obstacle to the repossession of property following the conflict. The result was that at the end of the conflict, Bosnia was composed of three mostly mono-ethnic areas in the two entities that comprise Bosnia.43

Only after extensive external pressure did the parties agree to adopt legislation that rescinded the confiscations and facilitated the return of property to the original owners.44 This legislation was bolstered in 1999 with strong institutional mechanisms, mixing local and foreign commissioners, to overcome strong local resistance to the return.45 While return and repossession of property still underway, the real test still awaits the communities of Bosnia: this is the question of reintegrating hostile communities into one society, overcoming discrimination and strong separatist sentiments.46


Late Responses: The Dayton precedent carries little weight in the context of the Palestinian refugees. The time frame of the problem exacerbates the problem, and other Considerations complicate the decision on the choice of remedies. Precedents like the 1992 unification of Germany (with respect not to physical return but to repossession of property), or the efforts to resolve the conflict in Cyprus, serve as much more direct and relevant demonstrations of state practice.


Germany post unification: In this context we refer only to claims for repossession of lost property situated in formerly East Germany (GDR). The government of unified Germany in fact rejected such claims. The German Unification Treaty of 199047 provides that the vast amount of property of Germans expropriated by the Soviet occupation forces in the GDR between 1945 and 1949 is not to be returned to its original owners. In lieu of restitution, the Treaty recognizes the original owners' right to monetary compensation.48 The Unification Treaty is guided by similar concerns with respect to property taken by GDR authorities after 1949. Although the treaty nominally approves the right of restitution of such property that belonged to FRG citizens, it provides for very significant exceptions to restitution, thereby securing the interests of GDR citizens who had settled in such property. According to the Joint Declaration of June 15, 1990, property would not returned if it would prove impossible, impractical or inequitable, or if it were "honestly" acquired by third persons. An aquisition would be "dishonest" if it was inconsistent with the law or administrative practice of the GDR and the acquirer knew or should have known about this inconsistency.49 Another exception to restitution concerns property that is needed for investment uses that would yield general economic benefit.50 This scheme was challenged before the German Federal Constitutional Court as unconstitutional. The Court, however, upheld the constitutionality of this arrangement. It invoked the FRG conflict-of-laws rules, and thereby recognized the validity of the Soviet orders.51


Cyprus: The most recent case of forced mass transfer took place in Cyprus. In this case it was the Turkish invasion, not a prior agreement, which prompted the mass relocation of populations. This conflict arose from the inability of the Greek-Cypriots and the Turkish-Cypriots to share power under a unitary system of government. In 1974, after eleven years of civil strife, Turkey invaded Cyprus and occupied the northern part of the island.52 In the course of a few weeks, more than 200,000 Cypriots fled or were transferred across the "Attila Line," established by the Turkish forces. Greek-Cypriots evacuated the Turkish-occupied zone, while Turkish Cypriots moved northwards and settled in the houses left by their Greek-Cypriot owners.53 The Greek-Cypriot refugees have since been resettled in the southern part of the island, some of them on Turkish-Cypriot property.54 The right to property and the right to return have since become two of the major stumbling blocks on the road to conciliation.55

In 1992, the U.N. Secretary-General, Dr. Boutros-Ghali, has formulated a "Set of Ideas on an Overall Framework Agreement on Cyprus," with the aim of providing a basis for negotiations between the leaders of the two communities.56 This set of ideas, which has been endorsed by the Security Council,57 strove to strike a balance between the interests of the displaced persons and the goal of creating homogeneous communities. It proposed a territorial separation between the communities following ethnic lines. Two zones would have been created, each "administered by one community which will be guaranteed a clear majority of the population and of the land ownership in its area."58 It provided also for a limited return of refugees, and for a compensation scheme to those who would not return.

In April 1, 2003, the current Secretary General of the UN, Mr. Kofi Annan, issued another plan, described in his “report on his mission of good offices in Cyprus.”59 The report details Annan’s efforts to find a compromise between the two warring communities. In his report, Annan makes a clear distinction between “the positions adopted recently by the United Nations and the international community in the former Yugoslavia,” and the Cyprus conflict. He emphasizes the time factor, namely “the fact that the events in Cyprus happened 30 to 40 years ago and that the displaced people have had to rebuild their lives and their economies during this time,” and acknowledges the “legitimate claims” of both the refugees and those who currently reside in their property. His compromise envisions a limited and gradual return. Each municipality or village will not absorb more than 20% of its population. Over all, each of the two political entities will admit back refugees consisting of not more than 10% of its population. Significant economic incentives will be offered to those who choose compensation in lieu of return.

The fact that the Turkish side ultimately rejected the plan is immaterial to the Israeli-Palestinian context. Crucial to this context is the UN position. This position reflects the UN’s reading of international law, as can be seen by the endorsement of the Annan plan by the UN Security Council.60

The UN position is based on two premises. The first premise is that governments have the authority under international law to negotiate away individual rights in the context of a peace agreement. The second premise is that the lapse of time, as well as demography, are relevant considerations for the negotiating governments. This position clearly rejects the reading of international law as a system that provides each individual refugee with the unqualified right to return. This position rejects the demand of the Palestinians to return due to both the time lapse and the fact that Israel is already a multi-ethnic community with a Palestinian minority of about 20% of its population.


  1. Conclusion

This paper questions the claim that individual Palestinian refugees have the unqualified right to return to their homes or to other places in what is now Israel. Neither UN Resolution 194, nor international human rights law, not even international practice support their claim. To the contrary, the analysis of these three potential sources leads one to the conclusion that such a right does not exist, and instead this is a matter for negotiation between the respective governments.

* Professor of Law, Tel Aviv University Faculty of Law, Director of the Cegla Center for Interdisciplinary Research of the Law. I thank Renana Kedar for her excellent research assistance.

1

 This paper does not examine the question of “who is a refugee.” Arguably, Jews who resided in the West Bank and Gaza before 1948 and were driven out by force or fear may also qualify as refugees. Resolution 194 (infra) refers to “refugees” and not to “Arab refugees” (as had been previously suggested) and hence does not exclude Jews from its purview.

2 The status of the Resolution is of a recommendation, since the General Assembly has no authority to legislate or put forward binding obligations on states. See Ruth Lapidoth, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, 16 Is.Yb.H.R. 103 (1986).

3.GAOR, 3rd Session part I, 1948, Resolutions, p. 21-24.

4 Progress Report of the United Nations Mediator on Palestine, UN Doc. A/648 (18 September, 1948).

5 On the evolving attitude of the PLO see Rashid I. Khalidi, Observations on the Right of Return 21(2) Journal of Palestine Studies 29, 33-35 (1992).

6 See Israel’s representative at the UN, Mr. Abba Eban’s speech at the UN, in the session devoted to the application of Israel for admission to membership in the United Nations (A/818) A/AC.24/SR.45, 5 May 1949, Sec. 3:“[T]he Government of Israel contended that resettlement in neighbouring areas should be considered as the main principle of solution. Israel, however, would be ready to make its own contribution to a solution of the problem. It was not yet ascertainable how many Arabs wished to return under conditions that might be prescribed by the Assembly or how many Arabs Israel could receive in the light of existing political and economic considerations.”

7. This Commission was established by the General Assembly in Resolution 194(III).

8 . CCP Progress Report, p. 5, sec. 32.

9 Resolution 393(V) of 2 December 1950…

10. Article 2 of Resolution 513(VI) of 26 January 1952. This program envisaged the expenditure of $US 50 million for relief and $US 200 million for reintegration. On the refusal of the Arab countries to implement this program see Don Perez, Israel and the Palestinian Arabs 19-32 (1958).

11. See Article 3 of Resolutions 818(IX) of 4 December 1954; Resolution 916(X) of 3 December 1955; and Resolution 1018(XI) of 28 February 1957; Article 5 of Resolution 1191(XII) of 12 December 1957.

12. In Resolution 2154(XXI) (of 2 December 1966) it "Note[d] with deep regret that repatriation or compensation of the refugees as provided for in paragraph 11 of General Assembly Resolution 194(III) has not been effected, that no substantial progress has been made in the program endorsed in paragraph 2 of Resolution 513 (VI) for the reintegration of refugees either by repatriation or resettlement and that, therefore, the situation of the refugees continues to be a matter of serious concern."

13. In the Resolution, the Assembly noted that it was "convinced that the plight of the displaced persons would best be relieved by their speedy return to their homes and to the camps which they formerly occupied; emphasizing, consequently, the requirement for their speedy return."

14. See Resolution 2452B of the same date concerning the 1948 refugees, which inter alia recalls Resolutions 393(V) and 513(VI) (which mention the option of resettlement in lieu of repatriation), and regrets their non-implementation.

15. On the Resolution and its reference to the refugee problem see the recent article of Ruth Lapidoth, Security Council Resolution 242 at Twenty Five, 26 Is.L.Rev. 295 (1993).

16. Kurt Rene Radley The Palestinian Refugees: The Right to Return in International Law, 72 AJIL 586, 603-04 (1978): "For many years following the adoption of Resolution 194 in 1948, the focus of the General Assembly attention with respect to the Palestinian problem drifted from repatiation toward resettlement as a solution. [...] Beginning in 1969, the General Assembly's approach to the Palestinian problem took a new turn."

17. See e.g., Resolution 36/146C of 16 December, 1981; Resolution 37/120H of 16 December 1982; Resolution 38/83H of 15 December 1983.

18. DOP, Article I.

19. Khalidi, id.

20 (which is similar for our purposes to Article 13(2) of the 1948 Universal Declaration on Human Rights)

21 Freedom of Movement, in The International Bill of Rights 166, at 180 (Louis Henkin ed., 1981).See also Hurst Hannum, The Right to Leave and Return in International Law and Practice (1987) p.59: "There is no evidence that mass movements of groups such as refugees or displaced persons were intended to be included within the scope of article 12 of the Covenant by its drafters" (and see accompanying note 175); Yoram Dinstein, Book Review, 17 Is. Yb. H.R. 318, 319 (1987) ("one's own country" is generally construed narrowly, in any case does not include mass movement of refugees); Ruth Lapidoth, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, 16 Is.Yb.H.R. 103 (1986); Kurt Rene Radley The Palestinian Refugees: The Right to Return in International Law, 72 AJIL 586, 612-613 (1978).

22 Christian Tomuschat recounts the support in German legal literature of the right of refugees to return, as well as the right to a homeland, as dating back to 1947, following the mass transfers of Germans from Central and Eastern Europe: Christian Tomuschat, Das Recht auf die Heimat: Neue rechtliche Aspekte, in Des Menschen Recht zwischen Freiheit und Verantwortung 183, 184-186 (Juergen Jekewitz et al., eds., 1989). See also Manfred Nowak, The Covenant on Civil and Political Rights: CCPR Commentary (1993) 220 (Article 12(4) of the 1966 Covenant on Civil and Political Rights is applicable even if masses of people are claiming this right); Alfred-Maurice de Zayas, Population, Expulsion and Transfer, in Encyclopedia of Public International Law (instalment 8, Rudolph Bernhardt, ed. 1985) 438, 442-43 (discussing the applicability of the Universal Declaration and the 1966 Covenant to mass transfer of refugees). On p. 443 de Zayas points out that the implementation of the right to return would necessarily conflict with the interests of the existing population: "There are conflicting interests and conflicting rights, the balancing of which must be undertaken in the name of peace. Perhaps the current development toward greater interdependence in the world may eventually lead to the increased permeability of national frontiers and allow the settlement and coexistence of these neighbours."

23 See Lawand, Quigly.

24 (62 Conference Report 13-18 (1987) (Articles 1, 2, 3, 7 which refer to a state's expulsion of "its own nationals"); see also the Strasburg Declaration on the Right to Leave and Return, adopted on November 26, 1986 by a group of experts on the right to leave and return, (Appendix F to Hannum's book, supra note 171) which specifies in Article 8 that "On humanitarian gounds, a state should give sympathetic consideration to permitting the return of a former resident, in particular a stateless person, who has maintained strong bona fide links with that state."

Louis B. Sohn and Thomas Buergenthal, in their book The Movement of Persons Across Borders (1992) differentiate between the duty of a state to admit its nationals (at 39 et seq.) and the state's discretion in addmitting aliens, subject to the state's laws (at 49 et seq.).

25 Christian Tomuschat Reparation for Victims of Grave Human Rights Violations 10 Tul. J. Int'l & Comp. L. 157 (2002).

26 See the Human Rights Committee, General Comment 27 (1999) (Doc. No. CCPR/C/21/Rev.1/Add.9).

27. Convention Between Greece and Bulgaria Respecting Reciprocal Emigration, signed at Neuilly-sur-Seine, on November 27, 1919, 1 L.N.T.S. 68-72. This Convention implements Article 56(2) of the Treaty of Peace between the Allied and Associated Powers and Bulgaria, signed on the same date in the same place (reproduced in 2 Carnegy Endowment for International Peace, The Treaties of Peace 1919-1923, 1036 (1924)). On this Convention on reciprocal emigration see Stephen P. Ladas, The Exchange of Minorities: Bulgaria, Greece and Turkey (1932) at pp. 27 et seq..

28. On the background of the Greek-Turkish agreement see Kalliopi A. Koufa and Constantinos Svolopoulos, The Compulsory Exchange of Populations Between Greece and Turkey: The Settlement of Minority Questions at the Conference of Lausanne, 1923, and its Impact on Greek-Turkish Relations in Ethnic Groups in International Relations, Vol. V 275 (Paul Smith ed., 1991).

29. Convention Concerning the Exchange of Greek and Turkish Populations, of July 30, 1923, reproduced in 2 The Treaties of Peace, at 653. On the Convention, its background and implementation see Ladas, at pp. 335 et seq..

30. In his conclusion, Ladas comments: "It may be asserted that as a result of the exchange the problem of the protection of minorities between the two countries has disappeared, to the great advantage of peaceful relations between the two countries and of greater stability." (supra, at 725-726).

31. The British Prime Minister, Winston Churchill, commented favorably on this proposed solution in his speech before the House of Commons (Parliamentary Debates, House of Commons, 15 December, 1944, vol. 406, col. 1484). He relied on the positive experience of the Turkish-Greek population exchange, which he viewed as a success.

32. On this expulsion see Alfred M. de Zayas, Nemesis at Potsdam (3rd ed., 1988). For the figure of 15 million see id., at pp. xix, xxv, and note 1 on p. 187. See also Eugene M. Kulischer, Europe on the Move 282-286 (1948).

33. Potsdam Conference Protocol, 2 August 1945, Section XII, reproduced in John A.S. Grenville & Bernard Wasserstein, The Major International Treaties Since 1945 32, 37 (1987).

34. de Zayas, id..

35. Kulisher, , at 287-294.

36. Chaudhri Muhammad Ali, The Emergence of Pakistan (1967); Russell Brines, The Indo-Pakistani Conflict 18-48 (1968). Estimates as to the number of relocated people, run between 12 million to more than 30 million: Ali, id., at 274, Brines, id. at 43.

37 The General Framework Agreement for Peace, otherwise known as the Dayton Peace Agreement (DPA) were signed in Paris on 14 December 1995 and ended the conflict by establishing The Republic of Bosnia and Herzegovina (BiH) consisting of two entities, the Federation of Bosnia and Herzegovina (the Federation), and the Republika Srpska (RS). The parties to the DPA are the Republic of BiH and its two entities.

38 Chapter One, Article I(1) of Annex 7, General Framework Agreement for Peace in Bosnia Herzegovina, Dec. 14, 1995, 75 I.L.M. 138, reprinted in Office of the High Representative, Bosnia and Herzegovina, Essential Texts 16 (2d ed. 1998), available at http://www.ohr.int/docu/d951208a.htm. The U.N. Security Council welcomed the Dayton Accord on December 15, 199, U.N. Doc. S/Res/1031 (1995), available at http://www.un.org/Docs/scres/1995/9540526e.htm.

39 "Refugees" are those who have left their homes and fled to a country outside of Bosnia, whereas "displaced persons" are those who fled their homes but remained in Bosnia.

40 The DPA created the Office of High Representative (OHR) to oversee the civilian implementation of the agreement. Along with the OHR, other international organizations - the U.N. High Commissioner for Refugees (UNHCR), the U.N. Mission in Bosnia Herzegovina (UNMIBH), and the Organization for Security and Cooperation in Europe (OSCE), and eventually the Commission for Real Property Claims (CRPC)- played a significant operational role in the return of refugees and displaced persons to their prewar property. For a review of the role of the international organizations in the implementation of Property Laws, see: Lynn Hastings, “Implementation of the Property Legislation in Bosnia Herzegovina”, 37 Stan. J. Int’l L. 221 (2001).

41 Since the signing of the agreement and until recent days more than 428,000 refugees and 515, 000 displaced persons have returned to their pre-war homes, from which 401,000 are minority returns (i.e. return of those who now belong to an ethnic minority to their pre-war places of residence which are now being dominated by a majority ethnic group). For full information on refugee returns, see the United Nations High Commissioner for Refugees’ (UNHCR) mission to BiH website at: http://www.unhcr.ba. There is great difficulty to determine accurate numbers as there are refugees and displaced persons who returned to their pre-war homes, but chose not to report it to the local authorities, or on the other hand those who have claimed their pre-war property, but de facto continue to live and work where they left to during the war.

42 Hastings, at 226.

43 For a review of the various Abandoned Property Laws that were enacted during the war see: Paul Prettitore, The Right to Housing and Property Restitution in Bosnia and Herzegovina: A Case Study, BADIL Resource Center for Palestinian Residency & Refugee Rights - Working Paper 1 (2003); Eric Rosand, “The Right to Return Under International Law Following Mass Dislocation: the Bosnia Precedent?”, 19 Mich. J. Int'l L. 1091 (1998).

44 Article I(3) to Annex 7 of the DPA explicitly obliges the Parties to, among other things, take the necessary steps to prevent any activities which would impede safe return of refugees and displaced persons. Most importantly Section (a) of this Article specifically obliges the Parties to undertake “the repeal of domestic legislation and administrative practices with discriminatory intent or effect.”

45 “The continuing Challenge of Return in Bosnia & Herzegovina” , ICG Balkans Report 137 (2002).

46 “Property Law Implementation is Just One Element of Annex 7”, OHR Press Releases (27.2.03) available at: http://www.ohr.int/hor-dept/presso/pressr/default.asp?content_id-29347.

47. Agreement with respect to the Unification of Germany, August 31, 1990, translated and reprinted in 30 ILM 457 (1991).

48. The decision on this issue was included in the "Joint Declaration on the Regulation of Open Property Question," issued on June 15, 1990, and later appended to the Unification Agreement as Annex III; Article 41(3) provided that the Federal Republic will not make any future legal changes that would contradict the rules of the Joint Declaration. On the negotiations over this issue See Peter E. Quint, The Constitutional Law of German Unification, 50 Md. L. Rev. 475 (1991); Dorothy Ames Jeffress, Note: Resolving Rival Claims on East German Property Upon German Unification, 101 Yale L. J. 527 (1991). Note that the Declaration did not specify the level of compensation to be paid.

49. The Statute on the Regulation of Open Property Questions, Annex II, chapter III (B) of the Unification Agreement. See Quint supra at 550-554.

50. Article 41(2) of the Unification Treaty. See Quint, id., at 550-554.

51. "Land Reform" Decision of April 23, 1991, 1991 Neue Juristische Wochenshrift 1569, summarized in 85 AJIL 690 (1991), by Charles E. Stewart. For commentaries on this issue see Quint, supra, at 544-47; Jeffress, supra note 155. On the Court's discussion of the constitutionality of the compensation scheme see infra text accompanying note 208.

52. On this occupation see Eyal Benvenisti, The International Law of Occupation, 177-181 (1993).

53. Robert McDonald, The Problem of Cyprus, Adelphi Paper No. 23449-50 (1989). This policy of allocating Greek-Cypriot property to Turkish-Cypriot was considered by the English Court of Appeals and the House of Lords in the Hesperides litigation: Hesperides Hotels Ltd. v. Aegean Turkish Holidays Ltd. [1978] Q.B. 205, [1978] 1 All E.R. 277 (A.C); Hesperides Hotels v. Muftizade, [1978] 3 W.L.R. 378 (H.L.).

54. For a sensitive account of the plight of the Greek-Cypriot refugees, from a socio-anthropological point of view, see Peter Loizos, The Heart Grown Bitter: A Chronicle of Cypriot War Refugees (1981).

55. The Turkish-Cypriot side has since claimed that the two parties had agreed on this population exchange, in what they termed as "The Exchange of Populations Agreement of 2 August 1975." (see Necati M. Ertekuen, The Cyprus Dispute 267-272 (1984). The Turkish-Cypriots base their claim for rejecting the Greek-Cypriot demand for the return of the refugees on this "agreement". The U.N. General Assembly "called for respect of the human rights of all Cypriots and the institution of urgent measures for the voluntary return of the refugees to their homes in safety." (General Assembly Res. 34/30 of 19 November, 1979); Resolution 37/253 of 13 May 1983, reiterated this call, adding specific reference to the refugees' freedom of movement and the right to property, among their human rights.

56. Annex to the Report of the Secretary-General to the Security Council S/24472, of August 21, 1992, at pp. 9-25.

57. Resolution 744 (1992) of August 25, 1992.

58. From the opening statement of the U.N. Secretary-General, Mr. Perez de Cuellar of June 29, 1989, reproduced (as Appendix 10) in Zaim M. Necatigil, The Cyprus Question and the Turkish Position in International Law, 433 (2nd ed., 1993).

59 Report of the Secretary-General on his mission of good offices in Cyprus, 1 April 2003, (S/2003/398).

60 Resolution 1475 (2003), 14 April 2003, Sec. 4. “Gives its full support to the Secretary-General’s carefully balanced plan of 26 February 2003 as a unique basis for further negotiations, and calls on all concerned to negotiate within the framework of the Secretary-General’s Good Offices, using the plan to reach a comprehensive settlement as set forth in paragraphs 144-151 of the Secretary-General’s report;”


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