Palestinian Have No Legal 'Right' Of Return And Israel Should Stop Pretending They Do

International law does not obligate/recognize the legal right of Palestinian refugees to settle in Israeli territory. Such large-scale return was not standard at the time the problem emerged, and it is not used effectively today. While the issue of the refugees needs to be dealt with seriously, Israel should be careful not to recognize a right of return for refugees under international law, since this may be the basis for new legal obligations.
Jerusalem Post, There is no Palestinian right of return

The alleged right of return of Palestinian Arabs to return to their homes after they left in 1948 is based to a large extent on politics rather than the law--why else would this be treated as some sort of hereditary right that is passed down to children and now grandchildren, keeping the number of Palestinian refugees artificially high.

So, what does the law actually say?

According to the Jerusalem Post article quoted above:

The Primary resolution on which the Palestinians base their claim to a ‘right of return’ is General Assembly Resolution 194 (III) from 1948. A close examination of that resolution, as well as later ones, reveals that these resolutions do not grant Palestinian refugees the right of return to Israeli territory. This was true at the time the resolutions were adopted, and is certainly true now, more than 60 years later, when the number of refugees, together with their descendants, has increased approximately tenfold.

In other words, General Assembly resolutions do not constitute binding international law.
But there are issues of international law that do need to be addressed:

Another important international document on human rights on which the Palestinians rely, is the freedom-of-movement clause in the International Covenant on Civil and Political Rights from 1966. This document did not exist when the Palestinian refugee problem came into being, but in any event, a careful examination of it indicates that it also does not obligate Israel to allow the entrance of Palestinian refugees who were never Israeli citizens or residents.

International citizenship law, refugee law (as defined in the various refugee covenants), humanitarian law and international criminal law do not place any obligation on Israel to admit Palestinian refugees, or grant them citizenship.

Looking deeper into the International Covenant on Civil and Political Rights from 1966, there are mitigating issues when dealing with a Palestinian right of return:

Right of Return for refugees is guaranteed in International law under certain conditions, but these statutes were approved in 1966, many years after the flight of the 1948 refugees. Moreover, the right to self-determination is also guaranteed in international law, and is recognized as jus cogens, which would override other considerations. Return of refugees to Israel would negate the Jewish right to self-determination. If a Palestinian state were created that would allow expression of Palestinian rights, it would seem that symmetrical justice could not abrogate the same rights from Jews. If the Jewish state absorbed Jewish refugees from Arab countries, the Palestinian state could absorb Palestinian refugees. (see Right of Return of Palestinian Refugees in International Law )

There are other legal factors that also contradict the Palestinian interpretation of international law as a blanket permission for all Palestinians to be allowed into Israel:

Palestinian supporters claim that the right of return is recognized in international human rights instruments, such as the Universal Declaration of Human Rights or the 1966 Covenant on Civil and Political Rights. However the applicability of these provisions to Palestinian Arab refugees is in doubt.

According to Article 12(4) of the 1966 Covenant on Civil and Political Rights:

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

To whom does the article apply? Stig Jagerskiold, an early interpreter, wrote:

"This right is intended to apply to individuals asserting an individual right. There was no intention here to address the claim of masses of people who have been displaced as a byproduct 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 Palestinians from what became Israel, or the movement of Jews from the Arab countries. Whatever the merits of various "irredentist" claims, or those of masses of refugees who wish to return to the place where they originally lived, the Covenant does not deal with those issues and cannot be invoked to support the right to "return." These claims will require international political solutions on a large scale." (Freedom of Movement, in The International Bill of Rights 166, at 180 (Louis Henkin ed., 1981).

Likewise, another expert has noted:

"There is no evidence that mass movements of groups such as refugees or displaced persons were intended to be included within the scope of article 12 of the Covenant by its drafters" (Horst Hannum, The Right to Leave and Return in International Law and Practice (1987) p.59)

In international law, with the exception of Palestinian Arabs, refugee status is not heritable. The descendants of refugees are not not refugees. This status is only claimed by the Palestinian Arabs.

Return is no longer practical 

The Arab Palestinian refugee problem has been deliberately perpetuated by the Palestinian Arabs and their supporters for almost 60 years, after which time there is no practical way to return the original refugees, many of whom are no longer alive. Their descendants have married non-Palestinians and non-Arabs, so that many of the people claiming "right" of "return" were never in Palestine, and are descended from people who were never in Palestine. It is highly doubtful that such persons are entitled to "refugee" status under international law.

As a point to be negotiated, the Palestinian right of return is not a legal right according to international law, but rather is a political consideration.

There is nothing wrong with that, but it should recognized for what it is and treated accordingly--a negotiating point that has no special legal force, nor at this point in time any moral force either.

The Arab world looked down its nose at the prospect of repatriating Arab refugees in 1948.
It is unfortunate, but 60 years later when the Arabs in question are the children and grand-children of the original refugees--it is not Israel's job to clean up the Arabs' mess.

And it is time for Israel to stop entertaining the thought that it is.

Technorati Tag: Israel and Palestinians and International Law.