The most important consequences to Palestinians of this singular interpretation of refugee law are: 1) whether Palestinians have international legal protection, as opposed to assistance; 2) whether any entity can represent the interests of Palestinian refugees in international bodies such as the United Nations, before other international or domestic legal/political forums, or in negotiations with states such as Israel; 3) whether there are forums available for Palestinian refugees to assert international human rights; and 4) whether individual (as opposed to collective) human rights recognized under international law can be protected and promoted in the Palestinian refugee case. This brief will address the consequences of this refugee regime as they affect Palestinian claims to property restitution and compensation.

The Palestinian Refugee Regime:

Palestinian refugees have a unique international status. Article 1D of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol has been interpreted to exclude Palestinian refugees from the coverage of those instruments. Paragraph 7(c) of the Statute of the United Nations High Commissioner for Refugees (UNHCR) has been similarly interpreted as precluding that agency from a mandate to protect Palestinian refugee rights. Finally, the dual mechanism set up to guarantee both protection and assistance for Palestinian refugees—the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and the UN Conciliation Commission on Palestine (UNCCP)—failed for historical and political reasons.

UNRWA was only given a basic assistance mandate to provide refugees with benefits such as food, clothing, and shelter. The UNCCP, however, was given a broad legal protection mandate to protect and promote the refugees’ human rights, to safeguard their claims and properties, and to promote the durable solution of choice. For Palestinians, this choice was embodied in UN General Assembly (UNGA) Resolution 194(III), mandating the return of refugees and restitution and compensation for their properties. Yet when the UNCCP discontinued its protection mandate, the fallback mechanism under Article 1D of the Refugee Convention—which was to automatically expand coverage of the Refugee Convention regime to Palestinians if either UNRWA or UNCCP ceased to function—was never implemented. Thus, under almost universal interpretation, these instruments have been found to exclude Palestinian refugees from the international legal rights afforded all other refugees.

There is now substantial evidence that this interpretation is incorrect; in fact, the Palestinian refugee regime was intended to be one of heightened protection. Rather than relegating the functions of protection and assistance of the Palestinians to the Refugee Convention and the UNHCR (as for other refugees), the drafters established two separate agencies (UNRWA and UNCCP) to carry out those functions. In addition, Article 1D was drafted to provide an alternative system of protection and assistance through the 1951 Refugee Convention and the UNHCR if UNRWA assistance or UNCCP protection no longer functioned.

The UN established a heightened protection regime for three reasons. First, it had a direct responsibility for creating the Palestinian refugee problem in passing UNGA 181, sanctioning the partition of Palestine, and permitting Israel to drive out the refugees. Second, while the consensus for refugees at the time was third-country resettlement, the world consensus for the Palestinian refugees required an immediate and unconditional right to return to their homes and lands, and to compensation for property loss. Scores of resolutions embody this consensus, including Resolution 194(III), which the UNGA has reaffirmed over 100 times. Third, the massive Palestinian displacement was directly and deliberately caused by the Zionists—thus prima facie satisfying the “persecution” requirement of the legal definition of refugee incorporated in refugee instruments.

Rights Enforcement and the Final Status Talks:

Incorrectly interpreting the regime applicable to Palestinian refugees has had enormous consequences. First, Palestinian refugees are without international legal protection. Such protection, provided to other refugees under UNHCR’s mandate, ordinarily includes intervening with states to ensure refugees’ basic human rights and to promote agreements to implement durable solutions for refugees.

As to the second and third issues, the current interpretation leaves Palestinians with no agency to raise their claims in any international forum. For other refugees, that agency would be UNHCR. The International Court of Justice (ICJ) ordinarily has jurisdiction over claims that a state has violated provisions of the Refugee Convention. However, only states—and, theoretically, a UN body—can bring claims before the ICJ. With no state to raise their claims, and without a UN body with a protection mandate over them, Palestinian refugees have no access to the ICJ. Although other international bodies can theoretically review such claims, none has enforceable jurisdiction that would permit a decision to be implemented against Israel. Under normal legal rules, claims for property restitution and compensation would be enforced in the domestic courts of the state where the property lies. However, as a matter of law, Israel has precluded such claims from its courts. Therefore, Palestinians currently have neither effective legal representation in the international arena, nor do they have a forum through which their claims can be enforced.

The fourth issue—the clash between individual versus collective rights—is the most urgent with regard to enforcing Palestinian refugee rights in light of the final status talks. The UN resolutions on the Palestine question initially focused on individual rights of the refugees; then, in the 1970s, the resolutions focused on the collective right of self-determination. The explicit basis of Oslo is UN Security Council Resolutions 242 and 338—UN resolutions demanding the collective right to a Palestinian state. If Israel successfully imposes a clause extinguishing refugee claims when a Palestinian state comes into being, then the refugees will have enormous difficulty enforcing their individual restitution and compensation claims. In contrast, in other recent refugee situations (in Bosnia, Kosovo, and Indochina, for example) the collective rights to an independent entity or statehood were severed from the mechanism put in place for individual refugees to assert their claims to repatriate and obtain restitution and/or compensation for property.

Clearly, the Palestinian case is weak in the international arena. There is no international political will demanding that Israel apply the international human rights and refugee law standards required for other refugees. The world appears unable to confront the pervasive discrimination against Palestinians inherent in the Zionist project—the sole intransigent barrier to the return of Palestinian refugees. Yet, these factors could be overcome if minimal legal protections were available to Palestinians. The lack of legal protection is of enormous urgency in the final status negotiations; Palestinians and their advocates must initiate aggressive and effective strategies to use and expand what international legal forums exist to enforce restitution and compensation claims. Otherwise, a just and durable solution to the Palestinian refugee problem cannot be found.

Susan Akram is Associate Professor at Boston University School of Law, teaching Immigration Law, Comparative Refugee Law, and supervising in the Civil Litigation Program. The above text may be used without permission but with proper attribution to the author and to the Palestine Center. This Information Brief does not necessarily reflect the views of the Center for Policy Analysis on Palestine or The Jerusalem Fund.

This information first appeared in Information Brief No. 40, 28 July 2000.