In this paper I intend to show how International Conventions, UN Resolutions and relevant agreements, that deal with who is a refugee and how the international community should deal with such individuals, have played a role in creating customary international law principles that eradicate the right of return for Palestinian refugees and their descendants.
I’ve decided to start this paper by looking at the impact of the 1951 Convention relating to the Status of refugees because despite the efforts that were made by the Arab League to make it inapplicable to Palestinian refugees it continuous to threaten the right of return for many Palestinians. The 1951 Convention defines a refugee as “Any person who…. is outside the country of his nationality [or former habitual residence] and [owing to a well-founded fear of being persecuted] is unable or unwilling to avail himself of the protection of that country.” This Convention places two main criteria’s that an individual must fulfil in order to be recognized as a refugee and that is possessing the nationality and/ or being a former habitual resident of the country that one is unable to return to. The 1951 Convention also goes on to imply that it recognizes the principle of naturalizing refugees when it stated that a refugee who has “acquired a new nationality, and enjoys the protection of the country of his new nationality” is no longer a refugee. This Convention poses a clear threat to the right of return because it is essentially reaffirming the principles promoted within The 1930 Hague Convention which stated “the ideal towards which the efforts of humanity should be directed … is the abolition of all cases … of statelessness and …double nationality.” When we look at the principle of naturalization as a solution to encounter Statelessness and the call for the abolition of double nationality in the context of the right of return for Palestinian refugee’s it becomes clear that both Conventions can be used to strip Palestinian refugees from their right to a Palestinian identity and their right of return. Because the solution they are ultimately promoting is a form of naturalization which will not only strip Palestinians from their status as refugees and consequently from their right of return. But it will also strip Palestinians from the ability to remain Palestinian nationals if and when they acquire a new nationality.
Arab League Members recognized the danger posed by the 1951 Convention relating to the Status of refugees to the right of return for Palestinian refugees and their descendants. Hence they reaffirmed their opposition to the naturalization of Palestinian refugees by adding the following provision to the Convention:
“This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection and assistance.”
This provision protected the identity of Palestinian refugees and their descendants who sought refuge in Arab Countries and fell under UNRWAs mandate. Although UNRWAs mandate didn’t promote the naturalization of Palestinian refugees Arab League Members failed to recognize that UNRWAs mandate didn’t protect all Palestinian refugees and their descendants. This is evident when we find that UNRWA defines Palestine refugees as “…. people whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict.” This definition and the criteria’s that one must fulfil to be eligible for assistant from UNRWA pose a clear threat to the right of return for many Palestinian refugees. Because in addition to excluding assistant for Palestinian refugees who didn’t register with the agency this definition also fails to recognize that Palestinians who were not residents two years preceding the conflict became refugees by the mere fact that they were equally unable to return to their country of origin. Furthermore by implying that residency defined by a set time scale in Palestine dictates who’s deemed a Palestine refugee the agency has created a precedence which legal scholars could use to claim that ‘If Palestinians who fall shorts of the 2 years residency requirement aren’t considered Palestine refugees then how can they even be considered effective nationals of Palestine who have a right of return.’
The process of eradicating the right of return by filtering who can be considered a Palestinian Refugee is also evident when we look at Resolution 194 (III) of 1948 which stated that Palestinian “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.” In addition to failing to establish a right of return for Palestinian refugees who viewed the Zionist regime as an occupier who had to be fought this resolution also placed a criteria that refugees must be able to fulfil in order to be able to argue for a right of return and that is the ability to “return to their homes.” Thus implying that refugees who lack physical homes to return to (including future descendants) can’t use this resolution as a basis for return. Furthermore by suggesting compensation for those choosing not to return the resolution is not only reaffirming the principle of naturalization but it is also implies that the principle of return is one potential solution rather than an obligation that must be fulfilled by the Zionist regime. This analysis is supported by the fact that the principle of naturalization was reaffirmed as an ideal solution to combat Statelessness in the 1954 Convention relating to the Status of Stateless Persons which stated that “Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees [and] make every effort to expedite naturalization proceedings.” And in the 1961 Convention on the Reduction of Statelessness which stated that “[a] Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.” The fact that the 1961 Convention was followed by the 1963 European Convention on the Reduction of Cases of Multiple Nationality also implies that the principle of naturalization was ultimately intended to eradicate the right of return for refugees and their descendants. Because by calling for the end to cases of multiple nationality the Convention was ultimately eliminating the legal basis on which refugees could argue that they continue to be a national of their original country despite acquiring a new nationality.
The process of reducing the number of individuals who could be considered Palestinian refugees continued further when Security Council Resolution 237 of 4 June 1967 came about as a result of the Six-Day War in 1967. This Resolution called upon the government of Israel “to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities.” By only being applicable to inhabitants this resolution clearly failed to affirm the right of return for Palestinians who where abroad before the 4th of June 1967. In fact when we look at Security Council Resolution 242 of 22 November 1967 we find that the right of return was even reduced for Palestinian inhabitants when the Resolution affirmed “the necessity… for achieving a just settlement of the refugee problem.”
According to the Conventions reviewed earlier a just settlement would likely be interpreted as a call for naturalizing refugees in the areas in which they sought refuge. The most important and oft-cited case which illustrates the threat that the customary international law principle of naturalization has on the right to a Palestinian identity and consequently the right of return for Palestinians is evident when we look at the decision that was taken by the International Court of Justice in 1955 in the case of Nottebohm. This case was brought by Liechtenstein against Guatemala. Liechtenstein argued that Guatemala was treating Mr Nottebohm, who is a national of Liechtenstein, contrary to international law. The Court upheld the principle of ‘effective nationality’ and dismissed the case on the basis that a genuine and effective link between a State and an individual which confers upon the state the opportunity to afford diplomatic protection was lacking in the case of Nottebohm. Because the principle of effective nationality as described in Nottebohm is often cited in definitions of the concept of nationality.
The case of Nottebohm can be used in the future by political leaders and legal scholars to argue against recognizing Palestinians within and beyond the UNRWA scenario as Palestinian nationals who had a right of return on the basis that both groups lack a genuine link with a future State of Palestine. This dangerous argument would be supported by the 1997 Council of European Convention on Nationality which recognized that 10 years habitual residency in a country was a basis for the grant of nationality. This recognition poses a genuine threat to the right to a Palestinian identity because the set time scale for one to be eligible for naturalization can be used to argue that Palestinians who did not reside in Palestine before or after the occupation have become naturalized by the virtue of the time they have lived outside their country of origin and that therefore they cannot be considered effective citizens of a future Palestinian State. Put simply the principle of habitual residence in nationality rules increases the rights of the Zionist occupiers over the land while eradicating the right of return for Palestinian refugees.
Overall the Conventions we looked at in this paper and the case of Nottebohm can be used to pressure Arab League Members to naturalize Palestinian refugees in their territories and to de-recognize Palestinians who have acquired a new citizenship. Arab League Members will find it hard to argue against such demands because their opponents can argue that Arab League Members have played a key role in eradicating the right of return for ALL Palestinian Refugees and their descendants. This argument would be supported by the 1978 Camp David agreement in which Egypt agreed that representatives from Egypt, Israel, Jordan, and Palestinians would “decide by agreement on the modalities of admission of persons displaced from the West Bank and Gaza” in 1967. Put simply Egypt accepted that the issue has moved from the 1948 refugees to include only the problem of the 1967 refugees. This was reaffirmed in the 1993 Declaration of Principles on Interim Self-Government Arrangements and in the Treaty of Peace between Israel and Jordan of 1994 which confirmed that the problem of refugees the 1967 refugees will be resolved “in accordance with international law.” The above agreements not only failed to establish a right of return for all Palestinian refugees to the places and homes from which they were expelled but they have also played an active part in watering down who will be able to return out of the 1967 category. Hence illustrating how relevant agreements signed by Arab League Members have played a role in eradicating the right to a Palestinian identity and consequently the right of return for many Palestinians.
Members of the Arab League who haven’t signed agreements with the Zionist regime might argue that the decisions taken by Egypt and Jordan have no bearing on them. Such an assumption in the context of Customary International Law is very naïve because it fails to recognize that international standards are developed in bilateral and multilateral Treaties. And that therefore the decisions taken by Jordan and Egypt have an impact on all members within the League because they suggest that Arab League Members who are committed to the right of return for all Palestinian Refugees are working against international standards. Hence it is important for Arab League Members who are committed to the right of return for ALL Palestinian refugees to respond appropriately to any agreements that a Member of the Arab League enters with the Zionist regime because all Members will find themselves having to face the consequences of such actions.
Furthermore Arab League Members must also be aware of the kind of Nationality Laws that they adopt because they can be used as a tool to force Arab League members to naturalize Palestinians in the near future. This threat becomes evident when we find that although the Hague Convention of 1930 states that “Each State shall determine under its own law who are its nationals” it nonetheless confirms that nationality laws adopted by each sovereign State “shall be accepted… in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognized with regard to nationality law.” This last point confirms that nationality principles that support the Customary International principle of naturalization can be used to support the argument for naturalizing Palestinians. Unfortunately despite the fact that the majority of Arab League Member States continue to defend the right to a Palestinian identity and consequently the right of return for Palestinian refugees they have nonetheless adopted Nationality Laws that suggest their agreement with the principles that have played a role in eradicating the right of return for Palestinian refugees and their descendants. This argument is supported by the fact that the majority of Arab League Members recognize the principle of involuntary loss of nationality. By recognizing this principle they are automatically recognizing that a future Palestinian State can determine under its domestic nationality law who its nationals are. This means that Arab League Members accept in principle that Palestinian Refugees can involuntary lose their rights to Palestinian identity and consequently the right of return. The imminence of this threat was confirmed in the Oslo Agreement of 1993 which empowered the Palestinian Authority to only issue Passports to Current residents of the West Bank and Gaza and Palestinian Refugees returning to PA territories. In addition to clearly excluding refugees who didn’t accept the terms set by the Oslo Agreement this agreement also illustrates how agreed upon definitions referring to who is a Palestinian refugee have come to dictate the kind of relationship that must exist between the state and the individual within the development of PA nationality Laws.
The principle of dual nationality isn’t mentioned within the categories that define whose eligible for a PA passport. Nonetheless the mere fact that the majority of Arab League Members don’t recognize the principle of dual nationality and accept that involuntary loss of citizenship can take place if a person acquires a new citizenship does implies that they accept in principle that Palestinian refugees who have acquired a new nationality are no longer Palestinian nationals and as a result can’t argue for a right of return. Furthermore by recognizing the principle of involuntary loss of citizenship it could be argued that the majority of Arab League Members accept in principle that descendants born from Palestinians who have acquired a new citizenship have no right to a Palestinian identity. This is evident when we find that although the majority of Arab League Members recognize within their nationality Laws that descendants have a right to acquire the citizenship of their Father regardless of their country of birth they nonetheless attach rigid criteria’s that limit the extent to which descendants can exercise this right. Key Examples:
1. Bahrain: For a minor to be eligible for a Bahraini Citizenship the father must be a citizen on or after the declaration of independence + the loss of citizenship extends to minors and that.
2. Sudan: the father or grandfather must be a resident in the country of origin in order for a descendent to be eligible
3. Lebanon: descendants must be registered with the embassy of Lebanon when they are born
If and when Arab League States recognize how their foreign policies and domestic nationality laws are playing a role in eradicating the right to a Palestinian identity it will be too late to withdraw because whether they realize it or not they have played an active role in forging a regional pattern of nationality provisions that support the customary international principles that eradicate the right of return for Palestinian Refugees and their descendants.
In conclusion this short paper has shown international conventions, major UN resolutions and relevant agreements have eradicated the right to a Palestinian identity and consequently the right of return for Palestinians and their descendants. the international community should deal with such individuals, have played a role in creating customary international law principles that eradicate the right of return for Palestinian refugees and their descendants.