Right of return

Last updated on 28 September 2017

The right of return is a principle in international law which guarantees peoples right of voluntary return to or re-enter their country of origin or of citizenship. A right of return based on nationality, citizenship or ancestry may be enshrined in a country's constitution or law, and some countries deny a right of return in particular cases or in general.

The right is formulated in several modern treaties and conventions, most notably in the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights and the 1948 Fourth Geneva Convention. The Geneva Conventions, it has been argued, have passed into customary international law and that the right of return is binding on non-signatories to the conventions.[1]

The right of return is often invoked by representatives of refugee groups to assert that they have a right to return to the country from which they were displaced.

History

The right to leave ones country and return to it are regarded as human rights and based in natural law.[2] In antiquity, the right to return was connected by philosophers with the right of travel.

Ancient precedents

There are various recorded cases in ancient history where people who had been deported or uprooted from their city or homeland were allowed (or encouraged) to return, typically when the balance of military and political forces which caused their exile had changed. However, in these cases the exiled populations were granted the option to return, it was never recognized that they had an inherent right to return.

A well-known example is the return to Zion, when King Cyrus the Great granted the Jews expelled from Judah to the Babylonian Exile to return to their ancestral homeland and rebuild Jerusalem. Recorded in the Hebrew Bible (Book of Ezra and Book of Nehemiah) this case is often cited as a precedent by modern Zionists and also inspired other groups seeking to pursue their own return.

During the Peloponnesian War, Athens expelled and scattered the inhabitants of Melos, Aegina and other cities (some of them being sold into slavery). Following the victory of Sparta, the Spartan general Lysander in 405 BC made a concerted effort to gather these exiles and restore them to their original cities.[3][4]

Magna Carta

The first codified law guaranteeing a Right of Return can be found in the Magna Carta:[5]

In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision.[6]

French Constitution of 1791

Another early example of national law recognizing the Right of Return was the French constitution of 1791, enacted on 15 December 1790:[2]

the freedom of everyone to go, to stay, or to leave, without being halted or arrested unless in accordance with procedures established by the Constitution.

The constitution put an end to the centuries-long persecution and discrimination of Huguenots (French Protestants).

Concurrently with making all Protestants resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that:

All persons born in a foreign country and descending in any degree of a French man or woman expatriated for religious reason are declared French nationals (naturels français) and will benefit to rights attached to that quality if they come back to France, establish their domicile there and take the civic oath.[7]

The Revocation of the Edict of Nantes and expulsion of the Huguenots had taken place more than a century earlier, and there were extensive Huguenot diasporas in many countries, where they often intermarried with the population of the host country. Therefore, the law potentially conferred French citizenship on numerous Britons, Germans, South Africans and others – though only a fraction actually took advantage of it.

Legal understanding of the right

The right of return principle has been codified in a number of international instruments, including:

Hague Regulations (HR), article 20:

20. After the conclusion of peace, the repatriation of prisoners of war shall be carried out as quickly as possible.

It has been argued that if the HR require the repatriation of prisoners, then it is "obvious" that civilians displaced during conflict must also be allowed to repatriate.[8]

Universal Declaration of Human Rights (UDHR), article 13:

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.

International Covenant on Civil and Political Rights (ICCPR) article 12(4):

4. No one shall be arbitrarily deprived of the right to enter his own country.

Fourth Geneva Convention, article 49:

49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. ... Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

Convention on the Elimination of All Forms of Racial Discrimination, article 5d(ii):

The right to leave any country, including one's own, and to return to one's country.

Some controversy exists among scholars on how these articles should be interpreted.

"His own country"

There is some disagreement[9] as to what "his own" and "his country" means in the ICCPR and UDHR. According to the United Nations Human Rights Committee's authoritative interpretation:

The scope of "his own country" is broader than the concept "country of his nationality". It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them.

and

The right of a person to enter his or her own country recognizes the special relationship of a person to that country... It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country.[10]

The landmark Nottebohm case of 1955 is often cited as staking out more criteria as to what "ones country" should be.[9] Among them were "a close and enduring connection", "tradition", "establishment", "interests" and "family ties".

Refugees who are resettled into third countries lose refugee status and acquire a new nationality. They therefore lose the right to return to their country of origin.

Mass displacement

Some disagreement exists on whether the right of return is applicable to situations in which whole ethnic groups have been displaced or not. Ruth Lapidoth from the Jerusalem Center for Public Affairs has argued, by citing Stig Jägerskiöld from his 1966 commentary of ICCPR, that the right was not intended to protect groups of displaced people:

... [it] is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a by-product of war or by political transfers of territory or population, such as the relocation of ethnic Germans from Eastern Europe during and after the Second World War, the flight of the Palestinians from what became Israel, or the movement of Jews from the Arab countries.[11]

Hurst Hannum has made a similar argument:

There is no evidence that mass movements of groups such as refugees or displaced persons were to be intended to be included within the scope of article 12 of the Covenant by its drafters.[12]

Manfred Nowak has argued the opposite position, that the right of return applies "even if masses of people are claiming this right" [13] Bracka has argued similarly:

At any rate, what seems clear is that neither the text nor the travaux préparatoires of the relevant UDHR, ICCPR and CERD provisions actually support circumscribing [the right of] return in this way [to exclude situations of mass displacement]. Firstly, there is no indication that the drafters considered the applicability of the freedom of movement principle to members of displaced populations. And although it may have been assumed at the time that such a scenario would receive discussion in ‘some other body of law’, this is not synonymous with an intention to limit these articles to isolated individuals. Secondly, nowhere in the actual text is the operation of the right of return qualified on the basis of group affiliation. Rather, in each instance, the relevant language refers to ‘everyone’. In addition, the HRC in General Comment 27 affirms this reading in so far as it states: ‘[t]he right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries’. Thirdly, whilst the right of return in art 12(4) of the ICCPR is presented as an individual right, Quigley confirms that ‘this is also true of most rights in international human rights instruments’. Indeed, the movement of people has historically taken on a collective dimension. Accordingly, to deny the availability of human rights simply because individuals form part of a mass group would render those rights illusory.[9]

Right of return in case law

Few cases have dealt with the right of return principle. In 1996, the European Court of Human Rights (ECHR) ruled in a landmark case known as Loizidou v Turkey. Mrs Titina Loizidou was a Greek-Cypriot refugee displaced from Northern Cyprus and prevented from returning by Turkey. The court ruled that Turkey had violated Mrs Loizidou's human rights, that she should be allowed to return to her home and that Turkey should pay damages to her.[14]

In a similar case, petitioners for the Chagossians asked the ECHR in 2005 to rule about their removal from Diego Garcia by Great Britain in the 1960s. The court ruled in 2012 that their case was inadmissible and that by accepting compensation, the islanders had forfeited their claim:

The Court notably found that the heart of the applicants’ claims under the European Convention on Human Rights was the callous and shameful treatment which they or their antecedents had suffered during their removal from the Chagos islands. These claims had, however, been raised in the domestic courts and settled, definitively. In accepting and receiving compensation, the applicants had effectively renounced bringing any further claims to determine whether the expulsion and exclusion from their homes had been unlawful and breached their rights and they therefore could no longer claim to be victims of a violation of the Convention.[15]

Non-state groups claiming a right of return

Circassians

Circassians are an indigenous ethnic group that originates in the northwestern Caucasus Mountains. Throughout the 19th century, the Russian Empire adopted a policy to eradicate Circassians from their ancestral homelands, pushing most surviving Circassians into the diaspora.[16] Many Circassians have expressed an interest in returning to Circassia, particularly Circassians fleeing the conflict in Syria.[16]

Georgian refugees and internally displaced persons

During Abkhazia's war of secession in 1992-1993 and the second Abkhazia war in 1998, 200,000-250,000 Georgian civilians became internally displaced persons (IDPs) and refugees. Abkhazia, while formally agreeing to repatriation, has hindered the return of refugees both officially and unofficially for more than fifteen years.[17]

Greek-Cypriots

During the Turkish invasion of Cyprus, 40% of the Greek-Cypriot population as well as over half of the Turk-Cypriot population of the island were displaced. The island was divided along ethnic lines and most of the Greek-Cypriot displaced persons were not allowed to return to their homes in the northern Turk-Cypriot side and vice versa.

Plans for a solution of the conflict has centered around bilateral agreements of population exchange, such as the Third Vienna Agreement reached in 1975 or the proposed Annan Plan of 2004. In these plans, the right of return was to be severely limited with respect to Greek-Cypriot internally displaced persons/refugees to districts such as Kyrenia, Morphou, Famagusta, and parts of Nicosia, despite judgements of the European Court of Human Rights in cases such as Loizidou v. Turkey, and numerous UN resolutions recognizing the right of return (such as SC 361 and GA 3212). Two referendums on the Annan Plan were held in April 2004, separately along ethnic lines. The Annan Plan was overwhelmingly rejected in the Greek-Cypriot referendum.

The right of return continues to remain a stumbling block to the settlement of the Cyprus problem.

Diego Garcia Chagossians

The Chagossians, an ethnic group residing on the island of Diego Garcia in the Indian Ocean, were expelled to Mauritius in the 1960s, in connection with the erection of an American strategic military installation on the island. Ever since, the Chagossians have been conducting a persistent political and legal struggle to return to Diego Garcia. As of 2007, their right to return was recognised by several British courts but the UK government failed to actually implement it (see Chagossians, Depopulation of Diego Garcia, Order in Council#United Kingdom).

Palestinians

Palestinian refugees argue that international law guarantees them a right to return to their former homes in Mandatory Palestine and a right to property they left behind in what is now Israel.[18] Israel's Defense Minister, Avigdor Lieberman, was reported as saying in June of 2017 that his government will not allow any Palestinians to settle in the lands claimed by them and currently part of Israeli territory.[19]

Countries with laws conferring a right of return

Armenia

Article 14 of the Constitution of the Republic of Armenia (1995) provides that "[i]ndividuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure."[20] This provision is consistent with the Declaration on Independence of Armenia, issued by the Supreme Soviet of the Republic of Armenia in 1989, which declared at article 4 that "Armenians living abroad are entitled to the citizenship of the Republic of Armenia".

Estonia

Article 36 (3) of the Constitution of Estonia states that "Every Estonian is entitled to settle in Estonia."[21]

Germany

German law allows (1) persons descending from German nationals of any ethnicity or (2) persons of ethnic German descent and living in countries of the former Warsaw Pact (as well as Yugoslavia) the right to "return" to Germany and ("re")claim German citizenship (Aussiedler/Spätaussiedler "late emigrants"). After legislative changes in late 1992 this right is de facto restricted to ethnic Germans from the former Soviet Union. As with many legal implementations of the Right of Return, the "return" to Germany of individuals who may never have lived in Germany based on their ethnic origin or their descent from German nationals has been controversial. The law is codified in paragraph 1 of Article 116 of the Basic Law for the Federal Republic of Germany, which provides access to German citizenship for anyone "who has been admitted to the territory of the German Reich within the boundaries of December 31, 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person".[22] In those territories lived a Polish minority, which also had German citizenship and after World War II lived in Poland. Those Polish people are also Aussiedler/Spätaussiedler and came especially in the 1980s to Germany, see Emigration from Poland to Germany after World War II (examples: Lukas Podolski, Eugen Polanski, among others)[23] Paragraph 2 of Article 116 also provides that "Former German citizens who between 30 January 1933 and 8 May 1945 were deprived of their citizenship on political, racial or religious grounds, and their descendants, shall on application have their citizenship restored".[22]

The historic context for Article 116 was the eviction, following World War II, of an estimated 9 million foreign ethnic Germans from other countries in Central and Eastern Europe. Another 9 million German nationals of various ethnicities from former eastern German provinces, over which Joseph Stalin and eastern neighbour states extended military hegemony in 1945, were expelled as well. These expellees and refugees (known as Heimatvertriebene) were given refugee status and documents, and - as to foreign ethnic Germans - also the German citizenship (in 1949), and resettled in Germany. The Discussion of possible compensation continues; this, however, has been countered by possible claims for war compensation from Germany's eastern neighbours, pertaining to both Germany's unconditional surrender and the series of population transfers carried out under the instruments of Potsdam.

Greece

Various phenomena throughout Greek history (the extensive colonization by classical Greek city states, the vast expansion of Greek culture in Hellenistic times, the large dominions at times held by the Greek-speaking Byzantine Empire, and the energetic trading activity by Greeks under the Ottomans) all tended to create Greek communities far beyond the boundaries of modern Greece.

Recognizing this situation, Greece grants citizenship to broad categories of people of ethnic Greek ancestry who are members of the Greek diaspora, including individuals and families whose ancestors have been resident in diaspora communities outside the modern state of Greece for centuries or millennia.[24]

"Foreign persons of Greek origin", who neither live in Greece nor hold Greek citizenship nor were necessarily born there, may become Greek citizens by enlisting in Greece's military forces, under article 4 of the Code of Greek Citizenship, as amended by the Acquisition of Greek Nationality by Aliens of Greek Origin Law (Law 2130/1993). Anyone wishing to do so must present a number of documents, including "[a]vailable written records ... proving the Greek origin of the interested person and his ancestors."

Albania has demanded since the 1940s that Greece grant a Right of Return to the Muslim Cham Albanians, who were expelled from the Greek region of Epirus between 1944 and 1945, at the end of World War II – a demand firmly rejected by the Greeks (see Cham issue).

Hungary

In 2010, Hungary passed a law granting citizenship and the right of return to descendants of Hungarians living mostly on the former territory of the Hungarian Kingdom and now residing in Hungary's neighbouring countries. Slovakia, which has 500,000 ethnic Magyar citizens (10% of its population) objected vociferously.[25]

Israel

The Law of Return is legislation enacted by Israel in 1950, that gives all Jews, persons of Jewish ancestry up to at least one Jewish grandparent, and spouses of Jews the right to immigrate to and settle in Israel and obtain citizenship, and obliges the Israeli government to facilitate their immigration. Originally, the law applied to Jews only, until a 1970 amendment stated that the rights "are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew". This resulted in several hundreds of thousands of persons fitting the above criteria immigrating to Israel (mainly from the former Soviet Union) but not being recognized as Jews by the Israeli religious authorities, which on the basis of halakha recognize only the child of a Jewish mother as being Jewish. Moreover, some of these immigrants, though having a Jewish grandparent, are known to be practicing Christians. People who would be otherwise eligible for this law can be excluded if they can reasonably be considered to constitute a danger to the welfare of the state, have a criminal past, or are wanted fugitives in their countries with the exception of persecution victims. Jews who converted to another religion can also be denied the right of return. Since 1950 2,734,245 Jews have immigrated to Israel.[26]

Lithuania

From the Constitution of Lithuania, Article 32(4): "Every Lithuanian person may settle in Lithuania."[27]

Poland

From the Constitution of Poland, Article 52(5): "Anyone whose Polish origin has been confirmed in accordance with statute may settle permanently in Poland."[28]

Portugal

On April 12, 2013, the Portuguese parliament approved unanimously an amendment to its nationality laws which would permit the descendants of Jews expelled from Portugal in the 16th century to become Portuguese citizens.[29]

See also

References

  1. ^ "United Nations Audiovisual Library of International Law". legal.un.org. Retrieved 2017-03-15.
  2. ^ a b J.D. Inglés (1963), Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including His Own, and to Return to His Country, Geneva, UN, UN Sales no. 64.XIV.2, UN Doc E/CN.4/Sub.2/220/Rev.1
  3. ^ Xenophon. Hellenica, 2.2.9: "Meantime Lysander, upon reaching Aegina, restored the state to the Aeginetans, gathering together as many of them as he could, and he did the same thing for the Melians also and for all the others who had been deprived of their native states."
  4. ^ Plutarch. Life of Lysander, 14.3: "But there were other measures of Lysander upon which all the Greeks looked with pleasure, when, for instance, the Aeginetans, after a long time, received back their own city, and when the Melians and Scionaeans were restored to their homes by him, after the Athenians had been driven out and had delivered back the cities."
  5. ^ Bradley, Megan: "Liberal Democracies' Divergent Interpretations of the Right of Return: Implications for Free Movement", Democratic Citizenship and the Free Movement of People, 2013
  6. ^ http://www.bl.uk/learning/timeline/item95692.html
  7. ^ André Encrevé, French Protestants, in Rainer Liedtke, Stephan Wendehorst, eds., Emancipation of Catholic Jews: Minorities and the Nation-State in Nineteenth-Century Europe, Manchester University Press, 1999, p.66
  8. ^ Boling, Gail J. Palestinian Refugees and the Right of Return: An International Law Analysis, BADIL - Information & Discussion Brief Issue No. 8, January 2001
  9. ^ a b c Bracka, Jeremie Maurice. Past the Point of no Return? The Palestinian Right of Return in International Human Rights Law, Melbourne Journal of International Law, Melbourne, 2005
  10. ^ UN Human Rights Committee (HRC), HRC in General Comment 27 CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9
  11. ^ Ruth Lapidoth (September 1, 2002). "Legal Aspects of the Palestinian Refugee Question". Jerusalem Center for Public Affairs.
  12. ^ Hurst Hannum, The Right to Leave and Return in International Law and Practice, p.59
  13. ^ Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, p.220, 1993
  14. ^ Enrico Milano, Unlawful territorial situations in international law, p.143
  15. ^ Chagos islanders’ case inadmissible because they accepted compensation and waived the right to bring any further claims before the UK national courts
  16. ^ a b Wiley, Mason. Circassian Right of Return: “Putin The Terrible or Putin The Enlightened?. American University Washington College of Law 2015.
  17. ^ Gregory F. Treverton, Dividing Divided States, p.41
  18. ^ Lawand, Kathleen (1996). "The Right to Return of Palestinians in International Law". International Journal of Refugee Law. 8 (4): 532–568. doi:10.1093/ijrl/8.4.532.
  19. ^ O'Connor, Tom (23 June 2017). "Israel Will Not Accept A Single Palestinian To Old Borders, Says Defense Minister". Newsweek. Retrieved 24 June 2017.
  20. ^ "ICL - Armenia - Constitution". Retrieved 7 February 2015.
  21. ^ "The Constitution of the Republic of Estonia – Riigi Teataja". Retrieved 15 July 2016.
  22. ^ a b Basic Law
  23. ^ "GIBT ES EIN OBERSCHLESISCHES ETHNIKUM?". Retrieved 15 July 2016.
  24. ^ US Embassy in Athens
  25. ^ Pandora's Passport, Hungary extends citizenship beyond its borders, Slovakia retaliates," The Economist, June 5, 2010, p. 60.
  26. ^ "Inside The Jewish Agency". Retrieved 15 July 2016.
  27. ^ "ICL - Lithuania - Constitution". Retrieved 15 July 2016.
  28. ^ "ICL - Poland - Constitution". Retrieved 15 July 2016.
  29. ^ "Descendants of Jews who fled persecution may claim Portuguese citizenship". Retrieved 15 July 2016.

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