Resolution 194 recommends, but does not demand
By Akiva Eldar - published in Ha'aretz on August 6, 2002

It seems impossible to remove the debate over the significance of UN Resolution 194 (of 1948) regarding the refugees off the public agenda. Politicians flaunt their academic knowledge on the subject, while sensible academics jubilantly join in slamming anyone who hints that responding to the Palestinian demand - to base a solution to the refugee problem on Resolution 194 - is not tantamount to opening the way for "the right of return."

This is not a debate for amateurs. It is keeping specialists in international law, both in Israel and abroad, busy. Among the most prominent is Prof. Geoffrey Watson of the Catholic University of Washington. Watson was on the U.S. State Department's team of legal experts and specialized in Middle Eastern subjects. His book "The Oslo Accords - International Law and the Israeli-Palestinian Peace Agreements" was published two years ago by the Oxford University Press.

At the start of the chapter on the refugees, Watson expresses some doubts as to whether all the Palestinians outside Israel qualify as "refugees" within the traditional meaning of the term as defined by the Convention on the Status of Refugees of July 28, 1951. He then examines Resolution 194 and notes that, "at first blush, this
provision would seem to support both a right of return and a right of repossession; after all, it speaks of `return to their homes,' not just return to Israel." But, he says, a deeper analysis reveals "a number of holes" in the resolution.

"It is not cast in mandatory language," Watson notes. "It says `should' and not `shall.' It is true that a number of delegates to the General Assembly explained that they were endorsing a `right' of Arab refugees to return to their homes. But international law ordinarily looks to the plain meaning of an instrument and the term `should' is clear on its face; it is hortatory not obligatory," Watson says. "Indeed the word `right' does not appear in the operative paragraph. Moreover, the resolution states that refugees should be `permitted' to return - language which the Palestinian Arab delegation to the Assembly later characterized as inconsistent with a right of return," and then Watson adds: "Finally, the instrument is a resolution of the General Assembly and as such is not legally binding."

Watson them turns to the assembly's resolutions from the 1970s and 1980s that declared a Palestinian "right" of return and to the claim that later resolutions may have some bearing on the interpretation of earlier ones. "None of those later resolutions were any more binding than Resolution 194," he concludes. "Moreover, not every assembly resolution after 194 squarely endorses a right of return." Resolution 513 of 1951 "called on Arab states to resettle displaced Palestinians in their own territory, implying that displaced Palestinians had asmuch a right to resettle in Arab states as to return to Israel."

Watson adds: "Nor has the practice of the Security Council (whose resolutions can bind all states) squarely endorsed a right of return. Security Council Resolution 237 did call on Israel to `facilitate' the return of Palestinians displaced by the 1967 war, but it did not announce a `right of return' on the part of all Palestinian refugees. And Security Council Resolution 242 stops short of declaring a right of return, calling instead for a `just settlement' of the refugee problem."

Watson also relates to the issue of the right of an individual to return home as proclaimed by human rights law. "The strongest argument against applicability of the [Civil and Political] Covenant is that the displaced Palestinians are not seeking return to their `own' country, since they are not Israel nationals," he says. "Most Palestinian refugees probably do not consider themselves Israeli nationals. Israel surely does not."

Watson notes that "Israel conferred Israeli nationality on Palestinian Arabs who remained (and still remain) in the territory of Israel after the 1948 war, but it did not grant citizenship to Palestinians who were present when Israel was declared a state but shortly thereafter fled." Watson explains that "the International Covenant's reference to one's `own' country apparently means one's country of nationality. Israel argues that non-nationals - including displaced Palestinians and Palestinian refugees - have no absolute right to enter or reside in Israel."

It might be difficult to accept this argument, Watson continues, "if there were no Palestinian entity on the horizon, since it would leave large numbers of Palestinians with no `home' to which to return. But the argument does imply that Palestinians will have a right of return to a new Palestinian entity, if and when it is constituted at the close of final status talks."