A legal Point of View: Compiled and Written by: Mahmoud Hanfi for the Palestinian Return Centre (PRC) and The Palestinian Organization for Human Rights (Shahid). The Universal Declaration of Human Rights was ratified on the 10th of December 1948. December is also the anniversary of UN Resolution 194, calling for and protection the return of Palestinian refugees. The month is also very special for Palestinians as it marks the establishment of UNRWA in 1949.
This year, The Palestinian Organization for Human Rights (Shahid) and the Palestinian Return Centre (PRC) are issuing this report analyzing UN Resolution 194 and its future application.
This report proposes a number of questions and attempt to answer them.
1- What is the Future of Palestinian Refugees? Are they going to return to the future Palestinian State established on the lands of 1967? Will Israel allow this? Or will their fate remain uncertain?
2- Will Palestinian refugees become nationals of the State of Palestine in the host countries? This would mean they will be granted passports issued by the future Palestinian state after which they will pay annual residence fees? What about the fate of the Palestinian camps, will they stay as they are?
3- What is status of UNRWA? What will be the future of UNRWA? Will the declaration of a Palestinian state lead to the discontinuation of its services? Will the UNRWA legal status remain as it is now?
4- What is the fate of International Resolutions, especially 194 resolutions passed by the General Assembly concerning the Return of Palestinian Refugees to their original Homeland?
5- Will the declaration of the state at the UN lead to more Political and Legal uncertainties for Palestinian Refugees? Will it case further marginalization of those Refugees? Are the Palestinian Liberation Organization (PLO) ready to answer all these questions? Has the PLO studied its steps scientifically and systematically?
The report will attempt to answer the above questions by discussing 3 following ares:
First: The Legal Definition of the Right of Return
Second: The Legal Definition of 194 Resolutions
Third: the Legal Definition of Declaring a Palestinian State and its repercussions
First: The Legal Definition of the Right of Return
The right of Return for an individual to their own country is a basic part of Human Rights. Article 13 of the International Declaration for Human Rights passed on 1948 states the follows:
1- Everyone has the right to freedom of movement and residence within the borders of each State.
2- Everyone has the right to leave any country, including his own, and to return to his country.
Article 12 of the International Covenant on Civil and Political Rights passed on 1966 suggests that:
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No one shall be arbitrarily deprived of the right to enter his own country.
The above items of article 12 clearly mentioned their Homeland and not State; this is to protect their right of return to their original homeland.
The International Humanitarian Law, especially the Fourth Geneva convention passed in 1949 concerning protecting civilians at the time of War; clearly and conclusively resolved the issue of right to return to the original home.
The provisions and rules of international humanitarian law, particularly the Fourth Geneva Convention for the Protection of Civilians at the time of war is of a peremptory norm that should not be violated via any other contractual agreements. Thus, the non-refoulement and the need to return to the original place of the individual are considered as an essential element of the International pillars of legitimacy of international human rights and international humanitarian law. The right to return is a natural right supported by natural laws. It is an inalienable right that cannot be denied by an individual or even group of individuals. Additionally, any elected or not elected, or any party or entity or government can’t dispose these rights. Also, not any contractual agreement shall cancel this right.
Second: The Legal Definition of 194 Resolutions
The UN Resolution 194, passed in 1948 didn’t come to establish the fact that the Palestinian Refugees should return to their original home. Yet, it was passed to reaffirm the existing resolutions and charters that are concerned with the Right of Return. The resolution provided an additional force to the Right of Palestinians to return to their original cities and villages. It dealt with the Right of Return as a collective right (Palestinian Refugees) and not an individual right only. The resolution affirmed on the Right of Return for Refugees to their homes (original places) even if their houses are within an independent state or under an occupied territory.
Despite the fact that it was passed by the UN General Assembly (GA) which is of unbinding status; the Resolution attained binding status. According to International law experts, it became binding as it’s related to international peace and security. As the General Assembly passed the resolution without any amendment to its content, many times and with landslide majority; a global consensus was formed to that upheld all the content of the resolution and demands made by it.
Resolution 194 has a very special reading that comes from the fact that Israel pledged, according to Lausanne Protocols, which prepared for the establishment of Israel on 12 May 1949, to accept the Return of Palestinian Refugees. This commitment and pledge binds Israel to implementing 194 and allowing the return of Palestinian Refugees to return without any conditions.
But Israel continues in refusing to implement the resolution. This raises the question about the illegality and illegitimacy of Israel's ascension to the United Nations body. By revoking the return of refugees Israel is nothing short of an imposter within the UN body.
To sum up, UN resolution 194 is legally binding in general. It confirms a basic human right which is the Right of Return. It is a legal asset in the Arab-Israeli conflict that should not be compromised or relinquished. It should not be diluted or overlooked because the issue of Palestinian refugees is the key component of the Palestinian cause. The Palestinian Refugees represent more than two thirds of the Palestinian people.
Third: the Legal Consequences of Declaring a Palestinian State and its repercussions
1- The conditions to accept a state as a UN member:
There are certain conditions to accept a state as a member at the United Nations that is based on the UN Rules of procedure of the Security Council and the General
Assembly which are as follows:
A. A state submits membership request to the General Secretary in which it explains the reasons for joining the United Nations. The state will also point out that it will accept the conditions of acceptance/affiliation of the UN.
B. General Secretary proposes the request directly to the Security Council which has to look into the request in 35 days from the date of the regular session of the General Assembly.
C. Security Council chair then transfer the request to the committee of acceptance of new members.
D. The committee discusses the application and request examining the conditions that should be met.
E. Presenting a report to the Security Council.
F. Security Council then decides to accept the membership or not.
G. To accept the recommendation of the Security Council there has to be 9 votes out of 15 with the additional condition that none of the five permanent members( Russia, China, France, UK and the US) do not veto the move. As we know, the US has threatened to use the Veto against the Palestinian Statehood bid many times.
H. Then, Security Council issues a recommendation for the General Assembly to vote on that membership request. At the General Assembly if the two third majority is achieved then the state is recognized.
I. If the Security Council proposes a negative recommendation regarding the membership, the General assembly could decide to take a different course. The GA can call on the UN declaration 377 "Uniting for Peace”. According to the resolution the General Assembly can bypass the Security Council refusal as the issue can be defined as a "threat to international peace and security." This however is very unlikely.
This study is not large enough to look into the details of the state requirements and the conditions that must be met for its full acceptance.
So, the International recognition at the General Assembly would not necessarily establish a Palestinian state. The majority vote at the GA will not guarantee that the state will be a full member of the United Nations. The United Nations membership is tied with the UN charter which states in its 4th articles that “to accept any state at the UN it should be decided by the General Assembly upon a recommendation from the Security Council.”
2- State Declaration endangers the Right of Return for Palestinian Refugees to their homeland.
The Palestinian step for Statehood Bid has some risks that could harm the Right of Palestinian Refugees, grimmer than what happened in Oslo accord.
The outcome sought by the leadership of Palestinian Liberation Organization (PLO) through the step of Statehood bid is not equal in any way with the possible harm to the general cause and fatal risk in particular to the right of return.
The legal confrontation/battle that the PLO intends to wage against Israeli occupation is tied with the balance of power and interests. Declaring a Palestinian state as a member at the United Nations will not change the power balance.
The UN Security Council is subject to American influence. Yet, at the General Assembly the scope of work is open to the Palestinians without the need to declare the state. The relationship of the Palestinian Authority, particularly its security with the Israeli occupation does not suggest - at least in part - that there is a state of hostility between the parties where there is prosecution of Israeli officers and soldiers at international courts.
Achieving the goal of a permanent member of the United Nations (which is unlikely for several reasons) constitutes a threat to the right of return and could gravely affect Palestinian Rights which they have been calling for since 1948.
- It will harm the image of the Palestinian cause which is clearly a cause for human rights and justice.
- The declaration of a Palestinian state ( if it happened) could lead the serious risk of more settler Jews coming from all over the world to create more settlements.
- There is a good chance that Palestinians who hold Israeli citizenship will be put under great pressure to leave and move to a new state.
- The declaration of Palestine State would result in legal repercussions for the status of Palestinian Refugees. This is due to the fact that they will obtain the status of citizens associated with their state. This will pose several problems; the first is what kind of documents (passports, IDs and other papers) they will obtain from the state of Palestine? What will be the effect of these documents as Israel will refuse them, especially if those refugees will attempt to go back? The other problem is the legal treatment of the host countries when return to be “Resident communities of other state”.
The formulation of UNRWA by the General Assembly in 1949 based on resolution 302 was not expected to last for over 63 years. The declaration of a Palestinian state will harm the UNRWA. The mandate given to the UNRWA will be in-complete and will make some donor countries give up on giving funds to UNRWA.
The declaration of the state indeed, has some benefits but they do not outweigh the disadvantages. PLO leadership and PA officials failed in managing a self-governing government on every level, on finance, politics, legal, local, regional and international levels.
Recommendations:
1- PLO must review its step and specify their priorities and options clearly.
2- International Humanitarian Law and International Rights law with all their components and regulations form the legitimate base for the Palestinian cause. Israeli occupation realizes this clearly. Yet, diluting these laws will jeopardize Palestinians rights guaranteed under international law.
Report prepared by the Palestinian Return Centre (PRC) and
The Palestinian Organization for Human Rights (Shahid)
Compiled and Written by: Mahmoud Hanfi
