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| Pâ•qidꞋ Yi•rᵊmᵊyâhꞋu |
2003.08.24 excerpts from Yaffa Zilbershats, Vice-Dean of the Faculty of Law at Bar-Ilan University in Tel Aviv and an expert in international and constitutional law; The Jerusalem Post, 2003.08.22, p. B1-2 – “In fact, the legal situation does not support the assumption of … a right of return… The law that governs these issues is international law. International law is based on either treaties between states or on customary rules which are evidenced by the general practice of states accepted as law. When speaking about their right of return, the Palestinians point to UN Resolution 194 (III) of 1948.12.11…
But whatever is provided in resolution 194 (III) is not legally binding. UN resolutions are neither treaties nor international customs. They are considered recommendations only, thus in recent years there has been a tendency to assert that a massive repetition of a norm in a series of UN resolutions establishes a customary international norm. But no customary norm will emerge if the repetition is not identical or if states persistently object to the norm…”
“In the case of Resolution 194 (III), the repetition in future UN resolutions was not identical… In addition, one should bear in mind that in 1948, when the resolution was adopted, neither Israel nor the Palestinians agreed to abide by it and neither party saw themselves as obliged to adhere to its recommendations… Moreover, the content of the resolution is not clear, while the scope of the alleged obligations imposed by it is widely debatable.
This all leads to the conclusion that Resolution 194 (III) did not create any legal right or obligation according to international law.
Palestinians refer to various human rights treaties to assert their right of return… A careful study of those sources leads to a very clear conclusion that none of them imposes a legal obligation upon Israel to repatriate the Palestinian refugees.
…the Palestinian refugee problem arose in 1948 after the British left the area… Up to that point, international law assigned a very low profile to issues of human rights. Consequently, it is obvious that all human rights that the Palestinians refer to as international legal sources according them the right to repatriate to Israel, were not binding legal norms in 1948.
It should also be stressed that in 1948, the transfer of populations as a consequence of political change was not considered wrongful as a matter of international law. [He cites here examples immediately before 1948 in Greece and Turkey, Europe, and India.] … So in effect what took place in 1948 was a transfer of populations [Jewish refugees from Arab countries as well] spurred by the political changes in the region and the war. Such a process was not contradictory to international law applying at that date. [emphasis added]
The reality in 1948 was one of population transfer, [not] the Arab refugees’ narrative… of forcible expulsion. Moreover, nowhere in international law is there a provision that a state is obliged to remedy the wrong caused to expellees by enabling repatriation.
Further, even the examples cited by Arabs apply only when there is a limited number of years between the flight of the refugees from their homes and their proposed return. There is no precedent in international law for repatriation because neighboring countries refuse to lift their refugee status for 55 years and counting. UN Secretary-General Kofi Anan has confirmed this in distinguishing the case of Cyprus refugees from Bosnia-Herzegovina, explaining restitution and repatriation did not apply to Cyprus because “… events in Cyprus happened 30 to 40 years ago and the displaced people… have had to rebuild their lives and their economies during this time.”
Palestinians do not have a legal right to return to Israel… The sole right possessed by the Palestinians is to obtain compensation…
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