Reinterpreting Palestinian Refugee Rights Under International Law, and a Framework for Durable Solutions

Background The paper presented here is based on a much larger brief produced by two experts in international refugee law, Susan Akram and Guy Goodwin-Gill assisted by a team of law students at Boston University. Both the larger brief and the paper presented here argue for a re-interpretation of the current international refugee law which adequately expresses the principle of heightened protection for Palestinian refugees, a principle which had guided the drafting and consequent approval of international law and UN resolutions. The author argues that the current lack of legal protection of Palestinian refugees derives from the misinterpretation of the existing refugee regime, especially the 1951 Refugee Convention, with regard to the Palestinian case. She proposes a legal reinterpretation which - if widely adopted - could turn international refugee law into an efficient tool for the protection of Palestinian refugee rights, including international protection in the framework of a durable solution based on the Palestinian right of return. The paper also addresses central strategic questions pertaining to legal representation and law enforcement which must be resolved in this context. This paper was prepared for the international conference The Right of Return: Palestinian Refugees and Prospects for a Durable Peace organized by TARI in Boston on 8 April 2000. BADIL Resource Center thanks the organizers for their kind permission for its dissemination. Introduction Palestinian refugees have a status that is unique under international refugee law. Unlike any other group or category of refugees in the world, Palestinians are singled out for exceptional treatment in the major international legal instruments which govern the rights and obligations of states towards refugees: the 1951 Geneva Convention Relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol (Refugee Protocol); the Statute of the United Nations High Commissioner for Refugees (UNHCR); and, specifically with regard to the Palestinians, the Regulations governing the mandate of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Almost all states and international entities have interpreted the relevant provisions in these instruments as severely restricting the rights of Palestinian refugees qua refugees in comparison to the rights guaranteed every other refugee group in the world. As a result, Palestinian refugees have been treated as ineligible for the most basic protection rights guaranteed under international law to refugees in general, further eroding the precarious international legal guarantees that international human rights and humanitarian law currently extends to this population. There are a number of consequences flowing from this unique application of refugee law to the Palestinian refugee situation. First, it affects the question of the type of protection afforded Palestinians under international refugee law, as opposed to the assistance they receive as refugees. Second, it affects the extent to which Palestinian refugees can assert guarantees of international human rights and humanitarian law protections, and whether there are fora available for them to assert such rights. Third, it implicates the issue of what entity or agency has the authority to represent the interests of Palestinian refugees, whether in international bodies such as the United Nations, before other international or domestic legal/political fora, or in negotiations with states such as Israel. Fourth, it raises the complex issue of whether individual human rights recognized under international law can be protected and promoted in the Palestinian refugee case when such rights collide with collective rights under international law—in this case, the right to self-determination. It is the contention of this author that interpreting refugee law principles and instruments as requiring a special and exceptionally weak international human rights regime for Palestinian refugees is an incorrect interpretation of the law. Palestinian refugees are entitled not to reduced protection, but to a heightened protection regime. These conclusions are based on an exhaustive review of the plain language of the relevant provisions, the intentions of the drafters of the instruments, and the purpose and scope of coverage of the instruments themselves. Reinterpreting the instruments in this way dramatically changes the conclusions one draws on each of the issues listed above. This paper addresses in summary form the four issues listed, examines their application under the reinterpreted instruments, and discusses some of their implications for establishing durable solutions for Palestinian refugees