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 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: |
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"