(Mis)understanding the “right of return”

Posted: March 16, 2014 by Rex Brynen in being argumentative, factcheck, peace process, right of return

At his Council of Foreign Relations blog, Elliott Abrams warns that recent comments by Palestinian president Mahmud Abbas signal a continuing Palestinian intransigence on the “right of return” that will wreck current US mediation efforts:

So Abbas’s maneuver here, as we approach the Kerry deadline in April, makes a genuine peace agreement unrealistic and in fact impossible. The terms he has just set forth will never be met. Rather than preparing for peace, he is not only making it impossible for himself to sign a deal, but also setting out terms that will make it impossible for his successors  to sign a deal.

In particular he cites recent comments made by Abbas to Fateh activists:

The Right of Return is a personal right. If you are a refugee, your son is a refugee as well. Perhaps you will decide to relinquish this right while your son decides not to, or vice versa. Your son is free to do so. When we say that this is a personal choice, it means that he can decide for himself.

This, he suggests, makes agreement impossible:

By making the “right of return” a personal right for each Palestinian, Abbas is saying the PLO has no right to negotiate over it and no right to sign an agreement that defeats or even limits that “right.” If that’s really the PLO position, there will never be an agreement.

What is interesting about Abram’s piece is the extent to which it misunderstands refugee rights (and, for that matter, all other internationally-recognized rights) altogether.

Put simply, such rights are always individual rights. On this point there is broad consensus among both refugee and international law experts. They cannot be eliminated or withdrawn by states on behalf of their citizens, for if they could do so it would undermine the whole purpose of rights in the first place. In other words, all that Abbas is stating here is almost universally recognized principle of international law. Palestinian negotiators can no more give away Palestinian refugees’ right of return that Israeli negotiators could give away the rights of Israelis (or diaspora Jews) to life, liberty and security of person.

Rather than Abbas’ statement being a position of intransigence, it is probably better seen as an effort to remove the pressure on Palestinian negotiators to obtain explicit recognition of such a right in a permanent status agreement. Implicitly his comments suggest that such recognition is irrelevant, since it exists independently of whatever treaty text Israel and the Palestinians might agree. Of course, this runs counter to Israeli’s oft-expressed interest that any  agreement be an end of all claims against Israel by the Palestinians. However, there is broad agreement here too among experts that while an agreement can substantially narrow the scope and weight of such claims, it cannot prevent all individuals making such claims. After all, why would a Palestinian citizen of the US (for example) somehow be bound by what Palestinian leaders in Ramallah agree to? I doubt very much that Abrams would favour a future Palestinian state be given this sort of extra-territorial power over Americans.

That the “right” might still exist even after an agreement does not mean, however, that significant number of Palestinians would thereby gain access to residence in Israel. I’ve argued before that the “right of return” is a much more ambiguous and contingent right in international law than many Palestinians believe it to be. It is doubtful that it applies to refugees with citizenship, and it certainly fades slowly over succeeding generations. It is also not at all clear that it applies to original homes (in Israel) rather than homeland or “country”—both of much might be reasonably understood to refer to the future Palestinian state. Finally, no Israeli court is ever going top force an Israeli government to accept the return of Palestinian refugees, and no other court would have jurisdiction. While Israeli might accept some symbolic number of refugees (as it proposed in the 2001 Taba negotiations, and again in the 2007-08 Annapolis negotiations), in practice acceptance would likely remain a matter of sovereign discretion (as expressed in the December 2000 Clinton Parameters).

Elsewhere in his blog post, Abrams also expresses concern about Palestinian plans for a referendum on any peace deal that would include the diaspora, worrying that refugees might find the package unacceptable. That is indeed a risk, although the countervailing benefit is that an endorsement would force Hamas to accept a deal too. Abrams is also criticizes Abbas’ position on refugee compensation:

Abbas has every one of those people receiving compensation. Those who move to Palestine get compensation; those who “return” to Israel get compensation; those who move to Canada or stay in Canada get compensation, and so on. So, the young man or woman born in Jordan or Canada and having full citizenship there, and staying there, gets compensation. It’s a nice fantasy for a politician to describe—every Palestinian takes part in this bonanza—but it is just that: a fantasy. Once again, it has nothing to do with actually making the choices peace will require nor with preparing Palestinians for the real future.

This is slightly odd, since the general position Abbas expresses has been the (pre-Netanyahu) Israeli position on compensation too, as evidenced by the Israeli negotiating position at Camp David, Taba, and Annapolis. Compensation may be very difficult to do, and there may be questions about who pays how much to exactly whom, but in the past decade and a half of negotiations there has never been any serious controversy (yet) over whether it should be part of a deal.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s