International Human Rights Law

A Tool for the Promotion of Palestinian Refugee Rights?
Frustrated by the lack of international political support for the rights and demands of the Palestinian people in general, and refugees in particular, Palestinians and their supporters have begun to re-examine international law as a potential source for protection and enforcement of Palestinian refugee rights. The weak position of the PLO in the final status negotiations with Israel, and the lack of an enforcement mechanism for UN General Assembly Resolution 194, has accorded a strong sense of urgency to these efforts.

Reference to international law to legitimize international interventions in recent refugee problems in Africa and Europe, as well as petitions and restitution claims raised in international human rights fora by other dispossessed and displaced groups and individuals worldwide, have served as encouraging examples for Palestinians and their supporters. While awareness raising and lobbying for the Palestinian right of return and restitution has become a common advocacy strategy of Palestinian and international actors, several issues remain yet to be resolved, before international law can be transformed into an efficient tool for actual protection and enforcement of Palestinian refugee rights.

Establishing the Appropriate Legal Framework: International Refugee Law: International Humanitarian Law (i.e., Geneva Conventions) is widely used to monitor and protest Israeli human rights violations in the 1967 occupied West Bank and Gaza Strip. International Human Rights instruments (i.e., The Universal Declaration of Human Rights, Covenant on Social, Economic, and Cultural Rights; Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Racial Discrimination, etc.) have also been used by Palestinians in the homeland and in exile. While these instruments provide a framework and advocacy tool for universal humanitarian and human rights, they do not adequately address rights specific to Palestinian refugees. International Refugee Law, part of the body of International Human Rights Law, must be adopted by Palestinian and international actors for this purpose.

Establishing Consensus about the Special Protection and Assistance Regime Applicable to Palestinian Refugees: Efforts to reinterpret status and rights of Palestinian refugees in the context of International Refugee Law have only just begun. Two important facts have thus remained widely overlooked: A. The fact that - based on recognition of the direct responsibility of the United Nations for the creation of the Palestinian refugee problem (UN Partition Resolution 181 of 1947) - a special regime for Palestinian refugees was established in 1948/49.
The regime was to provide both protection (UN Resolution 194 and establishment of the UN Conciliation Commission on Palestine/UNCCP) and assistance (UN Relief and Works Agency/UNRWA) in the context of the durable solution defined in UN Resolution 194.

Refugee Protection

According to the 1950 Statute of the Office of the UN High Commissioner for Refugees, protection of refugees includes:
 Promoting the conclusion and ratification of international conventions for the protection of refugees and supervising their application;  Assisting governmental and private efforts to promote and implement, based on the choice of each individual refugee, voluntary repatriation or assimilation with new national communities;  Representation of refugee rights and interests in the framework of negotiations for durable solutions to refugee flows.


B. The fact that International Refugee Law (i.e., 1951 Refugee Convention and the 1967 Protocol to the Convention, Statute of the Office of the UN High Commissioner for Refugees/UNHCR) includes special provisions for the Palestinian refugee case. These provisions guarantee protection and assistance for Palestinian refugees. In the case that either the assistance agency (UNRWA) or the protection agency (UNCCP) fail, protection or assistance would be provided by the UNHCR (Article 1D of the 1951 Refugee Convention). Establishing a consensus about the status and rights of Palestinian refugees under international refugee law is urgently required. Since the early-1950s, the protection mandate of the UNCCP has been limited to refugee property documentation.

Assistance for Palestinian refugees has been subject to severe austerity measures due to a chronic budget crisis in the Agency. UN Resolution 194 has been excluded from the framework of the current Middle East peace process and lacks an enforcement mechanism. Moreover, the 1951 Refugee Convention is widely interpreted as excluding Palestinian refugees.

Reaching Clarity about Representation for Protection: Two international agencies (UNCCP and UNHCR) were mandated to provide protection for Palestinian refugees, including representation of refugee interests in the context of finding a durable solution. At present, Palestinian refugees do not receive protection from either agency. Experts must clarify advantages and disadvantages of lobbying each of these international bodies to take an active role for the protection of Palestinian refugees.

Once the appropriate agency is identified, the international system of refugee protection could be used to strengthen the PLO (representing all diverse interests of the Palestinian people) by adding the dimension of a special legal representation mandated to safeguard the specific interests of Palestinian refugees.

Identification of Proper Fora for Palestinian Return and Restitution Claims: Palestinian refugees do not at present have any fora immediately available to enforce voluntary repatriation or to file claims for restitution and compensation for losses sustained as a result of their expulsion from their lands and homes in 1948. The forum in which such claims would ordinarily be made is the place of origin, i.e, Israel. Israeli law has essentially foreclosed avenues for Palestinians to make such claims. However, there are possible fora in which claims can be made for establishing and furthering the principles of return, restitution and compensation and for raising public awareness of such rights for Palestinians.

International fora include "supranational fora" such as the International Court of Justice (ICJ), International War Crimes Tribunal, and the UN Human Rights Commission (UNHRC); "regional fora" such as the European Court of Human Rights (ECHR); and, fora created under the auspices of international conventions, or treaty-based bodies. The latter include the Human Rights Committee, Committee on Economic, Social, and Cultural Rights, Committee Against Torture, Committee on the Rights of the Child, and the Committee on the Elimination of All Forms of Racial Discrimination.  Other fora include domestic fora and a loose category referred to as "Negotiated Agreements or Resolutions"