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Durable Right of Return |
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International Law The right of refugees and displaced persons to return to their homes of origin is anchored in several bodies of international law. Under the law of nationality, as applied upon state succession, newly emerging successor states are obligated to accord nationality status to all habitual residents of the territory undergoing the change in sovereignty, and to allow them to exercise their right of return to their homes or place of origin, regardless of where they may have been on the actual date of succession. Under the law of nationality states may not denationalize their own nationals in an attempt to cast them out. Specifically, states are required to readmit their own nationals. Under humanitarian law, there is a general right of return, which applies to all displaced persons, irrespective of how they came to be displaced during the period of conflict. A military occupant must let the occupied population continue its normal existence with a minimum of interference. This includes a requirement that the local population be permitted to remain in or return to their place of origin following the cessation of hostilities. Deliberate, forcible expulsion - especially when carried out on a mass scale - is expressly prohibited under humanitarian law. The right of return is also a customary norm of international human rights law and is found in a vast array of international conventions, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as regional human rights treaties. International human rights law also incorporates the general prohibition against forcible expulsion. Forcible expulsion from one's home of origin violates a vast host of specifically enumerated rights contained in the broad corpus of human rights law. Finally the right of return exists as a special subset of human rights law known as refugee law. The principle of refugees' absolute right of return to their place of origin (including their homes) is central to the implementation of durable solutions. Voluntary return is considered the most durable solution for refugees. According to UNHCR Executive Conclusion No. 40, "(a) The basic rights of persons to return voluntarily to the country of origin is reaffirmed and its is urged that international cooperation be aimed at achieving this solution and should be further developed." UN Resolutions The right of refugees and displaced persons to freely return to their homes of origin is also reaffirmed in United Nations resolutions. This includes resolutions relating to refugee flows from Algeria, Rwanda, Cyprus, Namibia, Cambodia, Afghanistan, Bosnia-Herzegovina, Georgia, Croatia and Kosovo. Some refer to return as an unconditional right, as an imprescriptible right, or as an inalienable right. Many recognize the right of refugees to return, specifically, to their places of origin. General Assembly Resolution 8 of 1946 states that "the main task concerning displaced persons is to encourage and assist in every possible way their early return to their countries of origin." Assembly Resolution 36/148 concerning mass refugee flows also emphasizes the right of refugees to return to their homes in their homelands. UN human rights bodies also affirm the right of refugees and displaced persons to return to their homes of origin. The UN Sub-Commission on the Promotion and Protection of Human Rights reaffirms (Resolution 2002/30) the right to return voluntarily in safety and dignity, as established in international human rights law. It also confirms that all refugees and displaced persons have a right to return to their original homes or places of habitual residence or to settle voluntarily elsewhere. The Sub-Commission also states that the adoption or application of laws by states that retract the right to reside in a particular place are serious impediments to return and reconciliation. The right of return is also affirmed in resolutions related to freedom of movement and self-determination. General Assembly Resolution 194(III) reaffirms the right of Palestinian refugees displaced in 1948 to return to their homes of origin. Paragraph 11(a) states: “refugees wishing to return to their homes … should be permitted to do so.” The resolution also affirms the right of refugees to return to their homes of origin. The General Assembly clearly meant the return of each refugee to “his[her] house or lodging and not to his[her] homeland.” The Assembly rejected two separate amendments that referred in more general terms to the return of refugees to “the areas from which they have come.” Assembly Resolution 3236(XXIX) reaffirms the "inalienable right" of Palestinian refugees to return to their homes and properties. UN Security Council Resolution 237 calls upon Israel to facilitate the immediate return of Palestinian refugees. Peace Agreements Most peace agreements that prescribe permanent solutions for refugees and displaced persons recognize their right to return to their homes of origin. This includes agreements in Macedonia, Kosovo, Croatia, Bosnia-Herzegovina, Tajikistan, Georgia, Burundi, Rwanda, Liberia, Sierra Leone, Mozambique, Cambodia, and Guatemala. Additionally, many agreements affirm refugees’ right to choose their place of residence within the country of origin free from arbitrary interference. The voluntary character of the return process is also stressed. In order to ensure the voluntary character of return, agreements state that refugees should be given as much information as possible so that they can make an informed choice on their future. Agreements also specify that refugees should return under conditions of safety - personal, physical, and material - and dignity.
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Refugee Rights |
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