The right to return of palestinians in international law

Abstract

This article examines the question of whether Palestinian refugees and displaced persons can claim a right to return to either or both Israel and Palestine, assuming the existence of a Palestinian State in the territories of the West Bank and Gaza. After an historical overview, the author first interprets the right to enter one's country enshrined in the International Covenant on Civil and Political Rights, with particular regard to the meaning of the term, 'his own country'. Following an examination of the travaux preparatoires and of the concept of nationality in international law, it is argued that 'his own country' refers not only to the country of de jure nationality, but also to the country with which the claimant has a 'genuine link' similar to that described hi the Nottebohm case. The effect of the passage of time on the 'genuine link' is then analyzed and a set of criteria applicable to claimants of the right to return generally is proposed. These criteria are then applied to potential Palestinian claimants. The second part of the article focuses on the effect of changes of sovereignty in the territories of what was Palestine on the de jure nationality of Palestinian refugees and displaced persons, and thus on their possible claim to return on the basis of nationality. On this basis, it is argued that if nationality follows State succession, then nationals of what was formerly Palestine could claim the right to return to Israel and/or Palestine, in view of their de jure nationality.