Category Archives: States general obligations

Government Responses to Human Rights Reports: Claims, Denials, and Counterclaims

Government Responses to Human Rights Reports: Claims, Denials, and Counterclaims
In lieu of an abstract, here is a brief excerpt of the content:Human Rights Quarterly 18.3 (1996) 517-543

I. Introduction

A major part of human rights work is the production of written reports. The report is usually seen as a means to an end. Information is collected, checked, standardized, and disseminated as part of a wider strategy to prevent violations and implement universal standards. Reporting also may become an end in itself: The belief that even without results there is an absolute duty to convey the truth, to bear witness.

There are many types of human rights reports. The major international nongovernmental organizations (such as Human Rights Watch and Amnesty International) produce regular and detailed book-length reports. These are the equivalent of social science research projects, giving a comprehensive account of a particular country’s current human rights record. Then there are the simplest reports — legal or journalistic, rather than social scientific — giving information only on a single case or problem. Other variants include entries in annual world-wide atlases of human rights violations, press releases, regular documentation by regional and national organizations, results of fact-finding missions, publications of academic human rights centers, and official documents from intergovernmental organizations within the UN orbit.

These reports have generated an extraordinary volume of information over the last twenty-five years. This coverage is obviously neither completely comprehensive nor evenly distributed. There are clear reasons for this — both rational (human rights problems are objectively worse in some countries than in others) and contingent (some countries are closed to outside scrutiny, more obscure and less politically interesting to international, especially US-based, organizations). Some countries are more highly scrutinized than others, especially those with a combination of visible violations and open access to media and human rights observers.

Because of such contingencies in reporting, it would be impossible to claim that the human rights problem is “objectively” constructed, in the sense of there being an exact correspondence between the severity, duration, and extent of violations and the amount of attention any particular country receives. For this reason, some government responses to international criticism are justified, even if usually disingenuous or a distraction from the issue: Yes, human rights organizations do report more about Israel than Syria.

Despite this selectivity, though, the cumulative picture produced by all human rights scrutiny is impressive. It would be difficult to find a country or issue which has not been the object of substantial attention. Despite occasional legendary cases of misreporting (such as the dubious incubator babies in Kuwait) and other less dramatic mistakes, this reporting is generally fair and reliable.

What happens to these reports when they are “released?” The resources that organizations devote to compiling all this information are not matched by attention to how reports are disseminated or what impact they might have on target audiences. Much information hardly gets off the shelves. Or it flows only within a closed circuit of other human rights organizations, governments, or intergovernmental bodies. When it does reach the wider public — either directly (through appeals, publicity, campaigns) or through the mass media — its effects remain unknown and unmonitored. Recent refinements in techniques of information collecting, standardized recording, and data-retrieval do not address this issue at all.

I have just completed an enquiry into how human rights information is communicated. Focusing on international organizations, my research considered three target audiences: (1) the official circuit of perpetrator and observer governments; (2) the mass media; and (3) direct appeals to the general public. This article deals only with the first audience — reactions by perpetrator governments. These reactions arise in three settings: (1) within their own country in response to criticism from domestic organizations; (2) within their country in response to international organizations; and (3) in the international arena in response to international organizations. This article concentrates on this third arena.

Perpetrator governments, however, when framing their replies to allegations by human rights organizations have to address other audiences as well — domestic public opinion and media, international public opinion and media, allied or friendly governments, and international bodies. Official reactions, therefore, resonate far beyond the restricted channels of a government press release in response to a critical report. The vocabulary of official reactions draws from the acceptable pool of accounts available…

The nuts and bolts of racial discrimination, Zionist style

http://www.dailystar.com.lb/News/Middle-East/2015/May-11/297484-israels-west-bank-housing-policy-by-numbers.ashx

Israel’s West Bank housing policy by numbers

OCCUPIED JERUSALEM: Since seizing the West Bank in 1967, Israel has held full control over all planning matters for both Palestinians and Jewish settlers in an area covering over 60 percent of the territory.

Although settlers can secure building permits with ease, the opposite applies for Palestinians who are forced to build illegally, with Israel bulldozing hundreds of such structures every year, rights groups say.

Villages vs. settlements Over 60 percent – around 360,000 hectares – of the West Bank is classified as Area C, which Israel aims to retain under any final settlement. This is where Israel has full control over security and also civilian affairs which are managed by the Civil Administration.

U.N. figures show there are an estimated 298,000 Palestinians living in Area C, in 532 residential areas. There are also 341,000 Israelis living in 135 settlements and 100 or so unauthorized outposts.

Less than 1 percent of Area C is designated for Palestinian development, compared to 70 percent which falls within the domain of local settlements, the U.N. says. Palestinian construction in the rest of Area C is subject to severe restrictions and almost impossible to carry out.

Demolition orders vs. permitsSince the 1993 Oslo autonomy accords were signed, Israel has issued more than 14,600 demolition orders, according to Israeli planning rights watchdog Bimkom.

So far, about 2,925 structures have actually been demolished.

Bimkom architect Alon Cohen Lifschitz estimates there are an average of two structures per order, meaning that over the past two decades, Israel has issued demolition notices to nearly 30,000 Palestinian-owned structures.

Last year, Israel issued 911 demolition orders on grounds of a lack of building permits. There are currently more than 9,100 outstanding demolition orders which can be implemented, Bimkom says.

Structures can include anything from a house to an animal shed, a road or fence, foundations, infrastructure, cisterns, cemeteries and solar panels. Since 1996, Israel has granted only a few hundred building permits for Palestinian structures.

According to Amnesty International, there were 76 building permits issued to Palestinians between 1996 and 1999. And from 2000-2014, only 206 building permits were issued, Bimkom says. In 2014, Israel granted a single permit.

Two-tier planning system

In Area C, a two-tier planning system operates based on ethnic-national background: a civil and representative system for Jewish settlers, and a military system without representation for Palestinians, Israeli NGO Rabbis for Human Rights says.

In planning for Palestinian villages, the objectives are to limit land use and encourage dense construction, whereas in the settlements, the trend is often the opposite – to include as much area as possible, producing low density, it says.

The quantum mechanics of Israeli totalitarianism

http://www.aljazeera.com/indepth/opinion/2015/05/quantum-mechanics-israeli-totalitarianism-150507072609153.html

The quantum mechanics of Israeli totalitarianism

To understand how it feels to be a Palestinian, you need to think like a particle physicist, not a social scientist.

Mark LeVine, Al Jazeera, 7 May 2015

With the coalition government formed by Prime Minister Benjamin Netanyahu easily the most ultranationalist and conservative government in Israel’s history, even the most cockeyed optimist would shrink from imagining that Oslo can still be revived, if only the right treatment were concocted.

The problem today is not that anyone but the most self-interested Israeli, Palestinian or US officials still pretends that the peace process is functioning. Rather, it’s that hardly anyone in a position of power can explain precisely when, how and especially why it died. To do so requires moving far more deeply into the dynamics of the endlessly troubled peace process than most policy-makers or commentators are willing to delve, into what I term the “quantum mechanics” underlying Oslo’s fatally flawed structures.

Israel has long claimed uniquely democratic credentials in a region besot with authoritarian regimes.

The unending occupation, the sheer chutzpah with which the Israeli government continues to expand its presence in the West Bank while sieging Gaza, the escalating protests by minorities inside the country’s 1967 borders, and the composition of the new government, all put the lie to such claims today.

Matrix of control

What’s still poorly understood by most non-Palestinians is just how deep the level of control has long been. Even if you’ve spent decades travelling through the West Bank and Gaza, the intensity of that control remains hard to grasp.

As I walked through the Jordan Valley last month near the front-line village of Fasayel, I began to understand how one reason why it’s been so difficult to explain the intensity and all-encompassing scope of Israel’s “matrix of control” over the Occupied Territories is that even its critics don’t use strong enough language to describe it.

Israel is not just an “occupier” or a “coloniser”. However democratic it may (or may not) be inside its 1967 borders, in the Occupied Territories Israel’s rule is nothing short of totalitarian.

In calling Israeli rule totalitarian, I am not arguing that the government mimics the worst policies of thought control and ideological purism practised by the 20th century’s Fascist and Communist states such as Nazi Germany, Stalinist Russia or Maoist China (although Israel’s constant harassment and imprisonment of Palestinian activists does reflect a desire to control how Palestinians think and act, at least publicly).

Rather, I’m talking about a much deeper level of control, at what can only be described as the quantum level of Palestinian daily life.

To understand how it feels to live as a Palestinian today you need to think like a particle physicist, not a social scientist. Moving through the space of Israel/Palestine involves negotiating a host of forces that the average Palestinian has about as much control over as the average electron or proton does of the nuclear and quantum forces determining its path. And it’s through this near total control of the space that Israel is able, in George Orwell’s description of totalitarianism, to “control the past as well as the future”.

Israeli geographer Jeff Halper, founder of the Israeli Committee Against Home Demolitions (ICAHD) coined the “matrix of control” to describe these forces. The name evokes numerous overlapping layers of control, including the physical infrastructure of settlements and their security corridors and zones, bypass roads, closed military areas and even “nature reserves”. The matrix also includes the bureaucratic and legal/planning levels, and the use of large-scale violence and imprisonment to control people’s behaviour and movement.

With its matrix of control, Israel has achieved an unparalleled and uniquely successful synergy of “bio” and “necro”-politics, controlling life and death at most every scale of Palestinian existence. The matrix is continuously adjusted with as much care as Israel has adjusted the caloric intake of Gazans during its periodic intensifications of the Gazan siege.

Three, four and five dimensions

A look at the group of detailed maps created by ICAHD reveals upwards of two dozen parameters of control that can intersect at any given coordinate on the map. But the map is only a two dimensional representation of a multidimensional and multi-levelled reality. It’s not just various forces meeting on the ground. When you’re walking through the 97 percent of the West Bank that is in Areas B or C and thus under Israel security control, you realise that the matrix extends both under the ground you’re walking on and above your head.

Below ground, Israel controls all the water resources in the West Bank, and for 50 years has systematically taken most every possible well, stream, aquifer or other water source from Palestinians (in direct violation of international law, it must be remembered).

It also controls the airspace above Palestinians’ heads, as the constant buzz of Israeli fighter jets training overhead in the Jordan Valley, and the ubiquitous presence of drones and helicopters almost everywhere at any time, and the prohibitions on building new floors on existing structures makes clear.

In whatever direction Palestinians look or want to step or reach – left or right, forwards or backwards, above or below them – the land, air and water surrounding them is largely outside their permanent control.

Blink of an eye

But it is not just that most of their territory is out of Palestinian hands. The quantum physics of Israel’s matrix of control also has its own Heisenberg, or uncertainty principle.

In quantum mechanics this principle asserts that it is impossible to know with precision the exact state of a particle because the very act of observing it changes its state. In the same way, merely by changing their location Palestinians change the state of territory upon which they are moving.

On the one hand, despite the rockiness of the landscape, the geography of the West Bank can be among the most liquid on earth. It changes as one moves through it, depending on who you are – Jew or Palestinian, settler or refusnik, soldier or international. Spaces that seems open and free can suddenly be surrounded by military forces and closed off, declared off limits for any length of time for a variety of reasons merely because Palestinians moved into and through it or used it for grazing, water, or other normal activities.

Moreover, their very movement through the geography can change it not just for a moment, but permanently. At the same time, the uncertainty principle can also operate with a time lag. If Palestinians decide to walk through a Jordan Valley village, for example, or to plant trees on their land in the hills around Hebron or Jenin, it’s not at all uncommon for the Israeli military to issue demolition or confiscation orders a few days later.

In particular, the movement of Jews has an even more profound effect than Palestinians especially when establishing an outpost or settlement. Once land is claimed even on the flimsiest of pretexts the military usually moves in and declares a still larger area a security zone, making it impossible for Palestinians to access the land for months, years or even decades.

And so, it seems that land in Palestine can change states from liquid to solid almost instantly, freezing in place whatever Israel decides it wants frozen, from people to legal categories. The quantum physics of Palestinian geography can thus produce permanent changes not just in the three normal dimensions of space, but in the conflict’s “fourth dimension” as well, namely time.

But however many dimensions one considers, the goal remains the same: to achieve, in the words of the Palestinian-Israeli hip-hop group DAM, “Maximum Jews on maximum land; minimum Arabs on minimum land.”

Neoliberal policies

There is even a fifth, economic dimension in which the physics of the Israeli-Palestinian conflict operates. The neoliberal policies imposed on the Occupied Territories under Oslo have ensured that when Palestinians aren’t being displaced by Israeli settlers or bombs, they are fixed in place as objects of development, whose economic life is confined to small spaces that remain largely under Israeli control. The possibility of their becoming subjects able to shape their own destinies is, it seems, outside the laws of physics operating in the Holy Land.

It is the changeling nature of the political, physical and economic geographies of the Israeli-controlled Occupied Territories that has made it so difficult for Palestinians and their supporters internationally (including in Israel) to develop effective strategies of resistance, nevermind transcending the occupation.

With Oslo’s final demise, Palestinians don’t just need new strategies for resisting an occupation without end; what’s needed is an entirely new physics as well.

Indeed, it has long been argued that Palestinians are still waiting for their Ghandi. It might well turn out that to overcome decades of totalitarian Israeli rule, a long-dead peace process, and ineptitude, corruption and authoritarianism internally, Einstein would be a far more useful figure.

Mark LeVine is a professor of Middle Eastern History at University of California, Irvine, and a Distinguished Visiting Professor at Lund University.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.
 
Source: Al Jazeera

U.S. Treatment of Homeless Persons Cruel, Inhuman and Degrading Say UN Experts

March 14, 2014

U.S. Treatment of Homeless Persons Cruel, Inhuman and Degrading Say UN Experts

Geneva, Switzerland – On Thursday, March 13, the U.N. Human Rights Committee reviewed U.S. compliance with a major human rights treaty, raising concerns of cruel, inhuman, and degrading treatment for the practice of criminalizing homeless people for performing necessary life functions such as sleeping and eating in public when they have no private alternatives.
 
The criminalization of homelessness in the U.S. is documented in a report, Cruel, Inhuman, and Degrading: Homelessness in the United States Under the International Covenant on Civil and Political Rights, submitted to the Committee by the National Law Center on Homelessness & Poverty (“NLCHP”) and the Allard K. Lowenstein Human Rights Clinic at Yale Law School.

The U.S. review, which takes place periodically under the International Covenant on Civil and Political Rights (the last review was in 2006), follows a U.S. report to the Committee, submitted on December 30, 2011.

“I appreciate that the federal government is acknowledging that the criminalization of people living on the street for everyday life activities, such as eating, sleeping, sitting in particular areas…raises serious human rights concerns…,” said Walter Kaelin, a Swiss member of the Committee, “There are ample reports about how criminalization of the homeless is discriminatory; how, as stressed by several UN Special Rapporteurs, and also federal agencies, how such instances of criminalization often raises concerns of cruel, inhuman, and degrading treatment.”

Kaelin continued with specific questions, “Do you already provide, or do you plan to provide incentives for decriminalization? Do you plan to withdraw funding for local authorities that continue to criminalize the homeless in a discriminatory way, in a way that may amount to inhuman treatment, degrading treatment? Do you plan to sanction criminalization policies, or are your activities really limited just in sensitizing local authorities, something very important, but probably not sufficient.”

Rather than responding to the specific questions, Kevin Washburn, Assistant Secretary for Indian Affairs, US Department of the Interior, responded with a general list of issues being worked on by the US Interagency Council on Homelessness, including efforts to encourage cities not to criminalize homelessness, exactly the sort of efforts the Committee said were “important, but not sufficient”.

“The U.S. government knew these topics would be on the Committee’s agenda since last March, when they put it on their list of issues for discussion, and last July, we held a meeting to discuss specific recommendations for action,” said Jeremy Rosen, Policy Director at NLCHP, in Geneva for the review. “The lack of specificity in the government’s response is pretty disappointing.”

Salt Lake City Mayor Ralph Becker continued on behalf of the U.S. delegation by explaining his city’s more constructive approach of providing housing rather than criminalizing, which has led to a 75% decline in chronic homelessness in the state. The mayor said this makes him “surprised when he hears homeless even in the same breath as criminalization.”

However, as documented in the report submitted to the Committee by NLCHP , Cruel, Inhuman, and Degrading: Homelessness in the United States Under the International Covenant on Civil and Political Rights-one of the “ample reports” of criminalization to which Kaelin referred-the approach demonstrated by Salt Lake City is far from universally implemented.

“As homelessness becomes more visible in American communities, some, like Salt Lake City, have made generally positive responses,” said Mr. Rosen. “Unfortunately, we’ve also seen an increase in communities passing ordinances banning camping or sleeping outdoors, despite providing no alternative, forcing people to make the cruel choice between sleep and being arrested.”

“Sleep deprivation and hunger are widely recognized as techniques that are cruel, inhuman and degrading when used against prisoners. It shouldn’t matter if the prison is bricks and mortar, or one of economic policies and draconian ordinances,” said Eric Tars, Director of Human Rights and Children’s Rights Programs at NLCHP. “As Committee Member Kaelin stated, the federal action on this issue so far is ‘not sufficient,’ and our government must do more to protect homeless people from these policies.”

“We expected more concrete responses from the federal government at this review,” Maria Foscarinis, Executive Director at NLCHP, concluded. “But we look forward to working with the government on additional-and stronger– measures in response to the concerns and questions raised by the Committee.”

The Committee will issue its final recommendations to the U.S. government, called Concluding Observations, on March 26.  
 
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General Comment 24 (Reservations)

Human Rights Committee, General Comment 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994).1


1. As of 1 November 1994, 46 of the 127 States parties to the International Covenant on Civil and Political Rights had, between them, entered 150 reservations of varying significance to their acceptance of the obligations of the Covenant. Some of these reservations exclude the duty to provide and guarantee particular rights in the Covenant. Others are couched in more general terms, often directed to ensuring the continued paramountcy of certain domestic legal provisions. Still others are directed at the competence of the Committee. The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States Parties. Is it important for States Parties to know exactly what obligations they, and other States Parties, have in fact undertaken. And the Committee, in the performance of its duties under either Article 40 of the Covenant or under the Optional Protocols, must know whether a State is bound by a particular obligation or to what extent. This will require a determination as to whether a unilateral statement is a reservation or an interpretative declaration and a determination of its acceptability and effects.

2. For these reasons the Committee has deemed it useful to address in a General Comment the issues of international law and human rights policy that arise. The General Comment identifies the principles of international law that apply to the making of reservations and by reference to which their acceptability is to be tested and their purport to be interpreted. It addresses the role of States Parties in relation to the reservations of others. It further addresses the role of the Committee itself in relation to reservations. And it makes certain recommendations to present States Parties for a reviewing of reservations and to those States that are not yet parties about legal and human rights policy considerations to be borne in mind should they consider ratifying or acceding with particular reservations.

3. It is not always easy to distinguish a reservation from a declaration as to a States’s understanding of the interpretation of a provision, or from a statement of policy. Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation. 2 Conversely, if a so-called reservation merely offers a State’s understanding of a provision but does not exclude or modify that provision in its application to that State, it is, in reality, not a reservation.

4. The possibility of entering reservations may encourage States which consider that they have difficulties in guaranteeing all the rights in the Covenant nonetheless to accept the generality of obligations in that instrument. Reservations may serve a useful function to enable States to adapt specific elements in their laws to the inherent rights of each person as articulated in the Covenant. However, it is desirable in principle that States accept the full range of obligations, because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being.

5. The Covenant neither prohibits reservations nor mentions any type of permitted reservation. The same is true of the first Optional Protocol. The Second Optional Protocol provides, in article 2, paragraph 1, that “No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime”. Paragraphs 2 and 3 provide for certain procedural obligations.

6. The absence of a prohibition on reservations does not mean that any reservation is permitted. The matter of reservations under the Covenant and the first Optional Protocol is governed by international law. Article 19(3) of the Vienna Convention on the Law of Treaties provides relevant guidance. 3 It stipulates that where a reservation is not prohibited by the treaty or falls within the specified permitted categories, a State may make a reservation provided it is not incompatible with the object and purpose of the treaty. Even though, unlike some other human rights treaties, the Covenant does not incorporate a specific reference to the object and purpose test, that test governs the matter of interpretation and acceptability of reservations.

7. In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.

8. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant. Although treaties that are mere exchanges of obligations between States allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of Article 14 may be acceptable, a general reservation to the right to a fair trial would not be.

9. Applying more generally the object and purpose test to the Covenant, the Committee notes that, for example, reservation to article 1 denying peoples the right to determine their own political status and to pursue their economic, social and cultural development, would be incompatible with the object and purpose of the Covenant. Equally, a reservation to the obligation to respect and ensure the rights, and to do so on a non-discriminatory basis (Article 2(1) would not be acceptable. Nor may a State reserve an entitlement not to take the necessary steps at the domestic level to give effect to the rights of the Covenant (Article 2(2)).

10. The Committee has further examined whether categories of reservations may offend the “object and purpose” test. In particular, it falls for consideration as to whether reservations to the non-derogable provisions of the Covenant are compatible with its object and purpose. While there is no hierarchy of importance of rights under the Covenant, the operation of certain rights may not be suspended, even in times of national emergency. This underlines the great importance of non-derogable rights. But not all rights of profound importance, such as articles 9 and 27 of the Covenant, have in fact been made non-derogable. One reason for certain rights being made non-derogable is because their suspension is irrelevant to the legitimate control of the state of national emergency (for example, no imprisonment for debt, in article 11). Another reason is that derogation may indeed be impossible (as, for example, freedom of conscience). At the same time, some provisions are non-derogable exactly because without them there would be no rule of law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category. And some non-derogable rights, which in any event cannot be reserved because of their status as peremptory norms, are also of this character – the prohibition of torture and arbitrary deprivation of life are examples. 4 While there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation.

11. The Covenant consists not just of the specified rights, but of important supportive guarantees. These guarantees provide the necessary framework for securing the rights in the Covenant and are thus essential to its object and purpose. Some operate at the national level and some at the international level. Reservations designed to remove these guarantees are thus not acceptable. Thus, a State could not make a reservation to article 2, paragraph 3, of the Covenant, indicating that it intends to provide no remedies for human rights violations. Guarantees such as these are an integral part of the structure of the Covenant and underpin its efficacy. The Covenant also envisages, for the better attainment of its stated objectives, a monitoring role for the Committee. Reservations that purport to evade that essential element in the design of the Covenant, which is also directed to securing the enjoyment of the rights, are also incompatible with its object and purpose. A State may not reserve the right not to present a report and have it considered by the Committee. The Committee’s role under the Covenant, whether under article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation that rejects the Committee’s competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty.

12. The intention of the Covenant is that the rights contained therein should be ensured to all those under a State’s party’s jurisdiction. To this end certain attendant requirements are likely to be necessary. Domestic laws may need to be altered properly to reflect the requirements of the Covenant; and mechanisms at the domestic level will be needed to allow the Covenant rights to be enforceable at the local level. Reservations often reveal a tendency of States not to want to change a particular law. And sometimes that tendency is elevated to a general policy. Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.

13. The issue arises as to whether reservations are permissible under the first Optional Protocol and, if so, whether any such reservation might be contrary to the object and purpose of the Covenant or of the first Optional Protocol itself. It is clear that the first Optional Protocol is itself an international treaty, distinct from the Covenant but closely related to it. Its object and purpose is to recognise the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation by a State party of any of the rights in the Covenant. States accept the substantive rights of individuals by reference to the Covenant, and not the first Optional Protocol. The function of the first Optional Protocol is to allow claims in respect of those rights to be tested before the Committee. Accordingly, a reservation to an obligation of a State to respect and ensure a right contained in the Covenant, made under the first Optional Protocol when it has not previously been made in respect of the same rights under the Covenant, does not affect the State’s duty to comply with its substantive obligation. A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol but such a reservation would operate to ensure that the State’s compliance with that obligation may not be tested by the Committee under the first Optional Protocol. And because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant. A reservation to a substantive obligation made for the first time under the first Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case.

14 The Committee considers that reservations relating to the required procedures under the first Optional Protocol would not be compatible with its object and purpose. The Committee must control its own procedures as specified by the Optional Protocol and its rules of procedure. Reservations have, however, purported to limit the competence of the Committee to acts and events occurring after entry into force for the State concerned of the first Optional Protocol. In the view of the Committee this is not a reservation but, most usually, a statement consistent with its normal competence ratione temporis. At the same time, the Committee has insisted upon its competence, even in the face of such statements or observations, when events or acts occurring before the date of entry into force of the first Optional Protocol have continued to have an effect on the rights of a victim subsequent to that date. Reservations have been entered which effectively add an additional ground of inadmissibility under article 5, paragraph 2, by precluding examination of a communication when the same matter has already been examined by another comparable procedure. Insofar as the most basic obligation has been to secure independent third party review of the human rights of individuals, the Committee has, where the legal right and the subject matter are identical under the Covenant and under another international instrument, viewed such a reservation as not violating the object and purpose of the first Optional Protocol.

15. The primary purpose of the Second Optional Protocol is to extend the scope of the substantive obligations undertaken under the Covenant, as they relate to the right to life, by prohibiting execution and abolishing the death penalty. 5 It has its own provision concerning reservations, which is determinative of what is permitted. Article 2, paragraph 1, provides that only one category of reservation is permitted, namely one that reserves the right to apply the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. Two procedural obligations are incumbent upon State parties wishing to avail themselves of such a reservation. Article 2, paragraph 1, obliges such a State to inform the Secretary General, at the time of ratification or accession, of the relevant provisions of its national legislation during warfare. This is clearly directed towards the objectives of specificity and transparency and in the view of the Committee a purported reservation unaccompanied by such information is without legal effect. Article 2, paragraph 3, requires a State making such a reservation to notify the Secretary General of the beginning or ending of a state of war applicable to its territory. In the view of the Committee, no State may seek to avail itself of its reservation (that is, have execution in time of war regarded as lawful) unless it has complied with the procedural requirement of article 2, paragraph 3.

16. The Committee finds it important to address which body has the legal authority to make determinations as to whether specific reservations are compatible with the object and purpose of the Covenant. As for international treaties in general, the International Court of Justice has indicated in the Reservations to the Genocide Convention Case (1951) that a State which objected to a reservation on the grounds of incompatibility with the object and purpose of a treaty could, through objecting, regard the treaty as not in effect as between itself and the reserving State. Article 20, paragraph 4, of the Vienna Convention on the Law of Treaties 1969 contains provisions most relevant to the present case on acceptance of and objection to reservations. This provides for the possibility of a State to object to a reservation made by another State. Article 21 deals with the legal effects of objections by States to reservations made by other States. Essentially, a reservation precludes the operation, as between the reserving and other States, of the provision reserved; and an objection thereto leads to the reservation being in operation as between the reserving and objecting State only to the extent that it has not been objected to.

17. As indicated above, it is the Vienna Convention on the Law of Treaties that provides the definition of reservations and also the application of the object and purpose test in the absence of other specific provisions. But the Committee believes that its provisions on the role of State objections in relation to reservations are inappropriate to address the problem of reservations to human rights treaties. Such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee’s competence under article 41. And because the operation of the classic rules on reservations is so inadequate for the Covenant, States have often not seen any legal interest in or need to object to reservations. The absence of protest by States cannot imply that a reservation is either compatible or incompatible with the object and purpose of the Covenant. Objections have been occasional, made by some States but not others, and on grounds not always specified; when an objection is made, it often does not specify a legal consequence, or sometimes even indicates that the objecting party nonetheless does not regard the Covenant as not in effect as between the parties concerned. In short, the pattern is so unclear that it is not safe to assume that a non-objecting State thinks that a particular reservation is acceptable. In the view of the Committee, because of the special characteristics of the Covenant as a human rights treaty, it is open to question what effect objections have between States inter se. However, an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant.

18. It necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions. In order to know the scope of its duty to examine a State’s compliance under article 40 or a communication under the first Optional Protocol, the Committee has necessarily to take a view on the compatibility of a reservation with the object and purpose of the Covenant and with general international law. Because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task. The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.

19. Reservations must be specific and transparent, so that the Committee, those under the jurisdiction of the reserving State and other States parties may be clear as to what obligations of human rights compliance have or have not been undertaken. Reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto. When considering the compatibility of possible reservations with the object and purpose of the Covenant, States should also take into consideration the overall effect of a group of reservations, as well as the effect of each reservation on the integrity of the Covenant, which remains an essential consideration. States should not enter so many reservations that they are in effect accepting a limited number of human rights obligations, and not the Covenant as such. So that reservations do not lead to a perpetual non-attainment of international human rights standards, reservations should not systematically reduce the obligations undertaken only to the presently existing in less demanding standards of domestic law. Nor should interpretative declarations or reservations seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only insofar as they are identical, with existing provisions of domestic law. States should not seek through reservations or interpretative declarations to determine that the meaning of a provision of the Covenant is the same as that given by an organ of any other international treaty body.

20. States should institute procedures to ensure that each and every proposed reservation is compatible with the object and purpose of the Covenant. It is desirable for a State entering a reservation to indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the Covenant obligation reserved; and to explain the time period it requires to render its own laws and practices compatible with the Covenant, or why it is unable to render its own laws and practices compatible with the Covenant. States should also ensure that the necessity for maintaining reservations is periodically reviewed, taking into account any observations and recommendations made by the Committee during examination of their reports. Reservations should be withdrawn at the earliest possible moment. Reports to the Committee should contain information on what action has been taken to review, reconsider or withdrawn reservations.


Footnotes

1. Adopted by the Committee at its 1382nd meeting (fifty-second session) on 2 November 1994.

2. Article 2(1) (d), Vienna Convention on the Law of Treaties 1969.

3. Although the Vienna Convention on the Law of Treaties was concluded in 1969 and entered into force in 1980 – i.e. after the entry into force of the Covenant – its terms reflect the general international law on this matter as had already been affirmed by the International Court of Justice in The Reservations to the Genocide Convention Case of 1951.

4. Reservations have been entered to both article 6 and article 7, but not in terms which reserve a right to torture or arbitrary to deprive of life.

5. The competence of the Committee in respect of this extended obligation is provided for under article 5 – which itself is subject to a form of reservation in that the automatic granting of this competence may be reserved through the mechanism of a statement made to the contrary at the moment of ratification or accession.

 

 

 

General Comment 15, Art. 2 (ICCPR) (Right of aliens)

Human Rights Committee, General Comment 15, The position of aliens under the Covenant (Twenty-seventh session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,
U.N. Doc. HRI/GEN/1/Rev.1 at 18 (1994).



1. Reports from States parties have often failed to take into account that each State party must ensure the rights in the Covenant to “all individuals within its territory and subject to its jurisdiction” (art. 2, para. 1). In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.

2.. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee’s experience in examining reports shows that in a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations that cannot always be justified under the Covenant.

3.. A few constitutions provide for equality of aliens with citizens. Some constitutions adopted more recently carefully distinguish fundamental rights that apply to all and those granted to citizens only, and deal with each in detail. In many States, however, the constitutions are drafted in terms of citizens only when granting relevant rights. Legislation and case law may also play an important part in providing for the rights of aliens. The Committee has been informed that in some States fundamental rights, though not guaranteed to aliens by the Constitution or other legislation, will also be extended to them as required by the Covenant. In certain cases, however, there has clearly been a failure to implement Covenant rights without discrimination in respect of aliens.

4.. The Committee considers that in their reports States parties should give attention to the position of aliens, both under their law and in actual practice. The Covenant gives aliens all the protection regarding rights guaranteed therein, and its requirements should be observed by States parties in their legislation and in practice as appropriate. The position of aliens would thus be considerably improved. States parties should ensure that the provisions of the Covenant and the rights under it are made known to aliens within their jurisdiction.

5. .The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.

6.. Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the Covenant.

7.. Aliens thus have an inherent right to life, protected by law, and may not be arbitrarily deprived of life. They must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment; nor may they be held in slavery or servitude. Aliens have the full right to liberty and security of the person. If lawfully deprived of their liberty, they shall be treated with humanity and with respect for the inherent dignity of their person. Aliens may not be imprisoned for failure to fulfil a contractual obligation. They have the right to liberty of movement and free choice of residence; they shall be free to leave the country. Aliens shall be equal before the courts and tribunals, and shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law in the determination of any criminal charge or of rights and obligations in a suit at law. Aliens shall not be subjected to retrospective penal legislation, and are entitled to recognition before the law. They may not be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. They have the right to freedom of thought, conscience and religion, and the right to hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association. They may marry when at marriageable age. Their children are entitled to those measures of protection required by their status as minors. In those cases where aliens constitute a minority within the meaning of article 27, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language. Aliens are entitled to equal protection by the law. There shall be no discrimination between aliens and citizens in the application of these rights. These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant.

8.. Once an alien is lawfully within a territory, his freedom of movement within the territory and his right to leave that territory may only be restricted in accordance with article 12, paragraph 3. Differences in treatment in this regard between aliens and nationals, or between different categories of aliens, need to be justified under article 12, paragraph 3. Since such restrictions must, inter alia, be consistent with the other rights recognized in the Covenant, a State party cannot, by restraining an alien or deporting him to a third country, arbitrarily prevent his return to his own country (art. 12, para. 4).

9.. Many reports have given insufficient information on matters relevant to article 13. That article is applicable to all procedures aimed at the obligatory departure of an alien, whether described in national law as expulsion or otherwise. If such procedures entail arrest, the safeguards of the Covenant relating to deprivation of liberty (arts. 9 and 10) may also be applicable. If the arrest is for the particular purpose of extradition, other provisions of national and international law may apply. Normally an alien who is expelled must be allowed to leave for any country that agrees to take him. The particular rights of article 13 only protect those aliens who are lawfully in the territory of a State party. This means that national law concerning the requirements for entry and stay must be taken into account in determining the scope of that protection, and that illegal entrants and aliens who have stayed longer than the law or their permits allow, in particular, are not covered by its provisions. However, if the legality of an alien’s entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with article 13. It is for the competent authorities of the State party, in good faith and in the exercise of their powers, to apply and interpret the domestic law, observing, however, such requirements under the Covenant as equality before the law (art. 26).

10. Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried out “in pursuance of a decision reached in accordance with law”, its purpose is clearly to prevent arbitrary expulsions. On the other hand, it entitles each alien to a decision in his own case and, hence, article 13 would not be satisfied with laws or decisions providing for collective or mass expulsions. This understanding, in the opinion of the Committee, is confirmed by further provisions concerning the right to submit reasons against expulsion and to have the decision reviewed by and to be represented before the competent authority or someone designated by it. An alien must be given full facilities for pursuing his remedy against expulsion so that this right will in all the circumstances of his case be an effective one. The principles of article 13 relating to appeal against expulsion and the entitlement to review by a competent authority may only be departed from when “compelling reasons of national security” so require. Discrimination may not be made between different categories of aliens in the application of article 13.

General Comment 12, Art. 1 (ICCPR) (Respect of self-determination)

Human Rights Committee, General Comment 12, Article 1 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 12 (1994).



 

1. In accordance with the purposes and principles of the Charter of the United Nations, article 1 of the International Covenant on Civil and Political Rights recognizes that all peoples have the right of self-determination. The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.

2. Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely “determine their political status and freely pursue their economic, social and cultural development”. The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law.

3. Although the reporting obligations of all States parties include article 1, only some reports give detailed explanations regarding each of its paragraphs. The Committee has noted that many of them completely ignore article 1, provide inadequate information in regard to it or confine themselves to a reference to election laws. The Committee considers it highly desirable that States parties’ reports should contain information on each paragraph of article 1.

4. With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right.

5. Paragraph 2 affirms a particular aspect of the economic content of the right of self-determination, namely the right of peoples, for their own ends, freely to “dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence”. This right entails corresponding duties for all States and the international community. States should indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of this paragraph and to what extent that affects the enjoyment of other rights set forth in the Covenant.

6. Paragraph 3, in the Committee’s opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. The general nature of this paragraph is confirmed by its drafting history. It stipulates that “The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”. The obligations exist irrespective of whether a people entitled to self-determination depends on a State party to the Covenant or not. It follows that all States parties to the Covenant should take positive action to facilitate realization of and respect for the right of peoples to self-determination. Such positive action must be consistent with the States’ obligations under the Charter of the United Nations and under international law: in particular, States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination. The reports should contain information on the performance of these obligations and the measures taken to that end.

7. In connection with article 1 of the Covenant, the Committee refers to other international instruments concerning the right of all peoples to self-determination, in particular the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 (General Assembly resolution 2625 (XXV)).

8. The Committee considers that history has proved that the realization of and respect for the right of self-determination of peoples contributes to the establishment of friendly relations and cooperation between States and to strengthening international peace and understanding.

The nature of States parties obligations (General Comment no. 3)

 The nature of States parties obligations (Art. 2, par.1)

14.12.1990.

                                     CESCR General comment 3

 

(Office of the High Commissioner for Human Rights, U.N., Fifth Session, 1990)

 

1. Article 2 is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by States parties to the Covenant. Those obligations include both what may be termed (following the work of the International Law Commission) obligations of conduct and obligations of result. While great emphasis has sometimes been placed on the difference between the formulations used in this provision and that contained in the equivalent article 2 of the International Covenant on Civil and Political Rights, it is not always recognized that there are also significant similarities. In particular, while the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes various obligations which are of immediate effect. Of these, two are of particular importance in understanding the precise nature of States parties obligations. One of these, which is dealt with in a separate general comment, and which is to be considered by the Committee at its sixth session, is the “undertaking to guarantee” that relevant rights “will be exercised without discrimination …”.

 

2. The other is the undertaking in article 2 (1) “to take steps”, which in itself, is not qualified or limited by other considerations. The full meaning of the phrase can also be gauged by noting some of the different language versions. In English the undertaking is “to take steps”, in French it is “to act” (“s’engage à agir”) and in Spanish it is “to adopt measures” (“a adoptar medidas”). Thus while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.

 

3. The means which should be used in order to satisfy the obligation to take steps are stated in article 2 (1) to be “all appropriate means, including particularly the adoption of legislative measures”. The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable. For example, it may be difficult to combat discrimination effectively in the absence of a sound legislative foundation for the necessary measures. In fields such as health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9, legislation may also be an indispensable element for many purposes.

 

4. The Committee notes that States parties have generally been conscientious in detailing at least some of the legislative measures that they have taken in this regard. It wishes to emphasize, however, that the adoption of legislative measures, as specifically foreseen by the Covenant, is by no means exhaustive of the obligations of States parties. Rather, the phrase “by all appropriate means” must be given its full and natural meaning. While each State party must decide for itself which means are the most appropriate under the circumstances with respect to each of the rights, the “appropriateness” of the means chosen will not always be self-evident. It is therefore desirable that States parties’ reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most “appropriate” under the circumstances. However, the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make.

 

5. Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable. The Committee notes, for example, that the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies. Indeed, those States parties which are also parties to the International Covenant on Civil and Political Rights are already obligated (by virtue of arts. 2 (paras. 1 and 3), 3 and 26) of that Covenant to ensure that any person whose rights or freedoms (including the right to equality and non-discrimination) recognized in that Covenant are violated, “shall have an effective remedy” (art. 2 (3) (a)). In addition, there are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain.

 

6. Where specific policies aimed directly at the realization of the rights recognized in the Covenant have been adopted in legislative form, the Committee would wish to be informed, inter alia, as to whether such laws create any right of action on behalf of individuals or groups who feel that their rights are not being fully realized. In cases where constitutional recognition has been accorded to specific economic, social and cultural rights, or where the provisions of the Covenant have been incorporated directly into national law, the Committee would wish to receive information as to the extent to which these rights are considered to be justiciable (i.e. able to be invoked before the courts). The Committee would also wish to receive specific information as to any instances in which existing constitutional provisions relating to economic, social and cultural rights have been weakened or significantly changed.

 

7. Other measures which may also be considered “appropriate” for the purposes of article 2 (1) include, but are not limited to, administrative, financial, educational and social measures.

 

8. The Committee notes that the undertaking “to take steps … by all appropriate means including particularly the adoption of legislative measures” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question. The Committee also notes the relevance in this regard of other human rights and in particular the right to development.

 

9. The principal obligation of result reflected in article 2 (1) is to take steps “with a view to achieving progressively the full realization of the rights recognized” in the Covenant. The term “progressive realization” is often used to describe the intent of this phrase. The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.

 

10. On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties’ reports the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

 

11. The Committee wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints. The Committee has already dealt with these issues in its General Comment 1 (1989).

 

12. Similarly, the Committee underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes. In support of this approach the Committee takes note of the analysis prepared by UNICEF entitled “Adjustment with a human face: protecting the vulnerable and promoting growth, 1/ the analysis by UNDP in its Human Development Report 1990 2/ and the analysis by the World Bank in the World Development Report 1990 3/ .

 

13. A final element of article 2 (1), to which attention must be drawn, is that the undertaking given by all States parties is “to take steps, individually and through international assistance and cooperation, especially economic and technical …”. The Committee notes that the phrase “to the maximum of its available resources” was intended by the drafters of the Covenant to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance. Moreover, the essential role of such cooperation in facilitating the full realization of the relevant rights is further underlined by the specific provisions contained in articles 11, 15, 22 and 23. With respect to article 22 the Committee has already drawn attention, in General Comment 2 (1990), to some of the opportunities and responsibilities that exist in relation to international cooperation. Article 23 also specifically identifies “the furnishing of technical assistance” as well as other activities, as being among the means of “international action for the achievement of the rights recognized …”.

 

14. The Committee wishes to emphasize that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. The Committee notes in particular the importance of the Declaration on the Right to Development adopted by the General Assembly in its resolution 41/128 of 4 December 1986 and the need for States parties to take full account of all of the principles recognized therein. It emphasizes that, in the absence of an active programme of international assistance and cooperation on the part of all those States that are in a position to undertake one, the full realization of economic, social and cultural rights will remain an unfulfilled aspiration in many countries. In this respect, the Committee also recalls the terms of its General Comment 2 (1990).

 

Notes

 

* Contained in document E/1991/23.

 

1/ G.A. Cornia, R. Jolly and F. Stewart, eds., Oxford, Clarendon Press, 1987.

 

2/ Oxford, Oxford University Press, 1990.

 

3/ Oxford, Oxford University Press, 1990.

U.S. denies private cause of action for violations of ICCPR

U.S. denies private cause of action for violations of ICCPR

(source: Wikipedia)

The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[21] Some have noted that with so many reservations, its implementation has little domestic effect.[22] Included in the Senate’s ratification was the declaration that “the provisions of Article 1 through 27 of the Covenant are not self-executing”,[23] and in a Senate Executive Report stated that the declaration was meant to “clarify that the Covenant will not create a private cause of action in U.S. Courts.”[24]

Prominent critics in the human rights community, such as Prof. Louis Henkin[25] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust[26] (“Rarely has a treaty been so abused.”) have denounced the United States’ ratification subject to the non-self-execution declaration as a blatant fraud upon the international community, especially in light of its subsequent failure to conform domestic law to the minimum human rights standards as established in the Covenant over the last fifteen years.

Indeed, the United States has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant. See Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002) (noting that Congress has not done so). Its subjects are not permitted to sue to enforce their basic human rights under the Covenant, as noted above. It has not ratified the Optional Protocol. As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials’ insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its subjects of the “effective remedy” under law the Covenant is intended to guarantee…

Palestinian Right of Return: International Law Analysis

BADIL – Information & Discussion Brief

Issue No.8 , January 2001

Palestinian Refugees and the Right of Return: An International Law Analysis

Gail J. Boling

BADIL-Briefs aim to support the Palestinian-Arab and international debate about strategies for promotion of Palestinian refugees’ right of return, restitution, and compensation in the framework of a just and durable solution of the Palestinian/Arab – Israeli conflict.


Background

Brief No. 8 is the first of three Briefs (covering the right of return, restitution, and compensation), that examine the basis in international law for a framework for durable solutions for Palestinian refugees. This Brief examines the individual right of return of Palestinian refugees displaced in 1948 as set forth in UN General Assembly Resolution194 (III) of 11 December 1948 as grounded in international law. It is important to note that the individual right of return is completely separate from any collective right of return. However, individual and collective rights are not mutually exclusive under international law but rather supplementary and complementary; the exercise of one right can never cancel out the exercise of another and should never be viewed as doing so.

In this Brief, the author argues that the right of refugees to return to their homes and properties had already achieved customary status (binding international law) by1948 . UN Resolution194 , therefore, simply reaffirms international legal principles that were already binding and which required states to allow refugees to return to their places of origin, and prohibited mass expulsion of persons – particularly on discriminatory grounds. UN Resolution194 ‘s consistency with international law and practice over the past five decades further strengthens its value as a normative framework for a durable solution for Palestinian refugees today.

NOTE: Brief No. 8 is based on a longer legal analysis prepared by Gail J. Boling, Coordinator of BADIL?s Legal Unit. To make the subject of this Brief accessible to the widest possible audience, we have chosen a summarized format with minimal legal citations. The full legal analysis with a complete set of legal citations is available from BADIL upon request.  

Introduction

For more than fifty years, Israel has based its refusal to allow Palestinian refugees to exercise their right of return on a number of key arguments. These include: the lack of physical space, the desire to maintain a demographic Jewish majority, state security, and international law. This Brief addresses the right of return in international law. While supporters of the Israeli position try to attack the right of return as articulated in General Assembly Resolution 194 (III) – for example, by attempting to argue that the right of return is not mandatory, that it does not apply to mass groups and that it is only reserved for “nationals” of Israel – these claims, in fact, have no basis in international law.

The right of refugees to return to their homes and properties – sometimes referred to as their place of last habitual residence – is anchored in four separate bodies of international law: the law of nationality, as applied upon state succession; humanitarian law; human rights law; and refugee law (a subset of human rights law which also incorporates humanitarian law). The right of return applies in cases where persons have been deliberately barred from returning after a temporary departure and in cases of forcible expulsion (on a mass scale, or otherwise). In the latter case, the obligation of the state of origin under international law to receive back illegally expelled persons is even stronger. Any type of governmental policy designed to block the voluntary return of displaced persons is strictly prohibited.

Historically speaking, the right of return had achieved customary status in international law by 1948. Customary norms are legally binding upon all states, and states are, therefore, legally obligated to follow the rules codified by these norms. The United Nations reaffirmed the status of the right of return as a customary norm applicable to Palestinian refugees in General Assembly Resolution 194. The obligation of the United Nations to uphold the rule of law and to ensure the immediate and full implementation of the right of return is even greater due to the role that the UN played (for example, through General Assembly Resolution 181 proposing “partition” of Palestine) in the chain of events that led to the creation of the Palestinian refugee situation in the first place. Israel, however, as the sole “state of origin,” is the only state with the binding obligation under international law to receive back the 1948 Palestinian refugees.

This Brief examines the right of return of Palestinian refugees as grounded in the four relevant bodies of international law. The first section of the Brief examines the right of return as set forth in UN Resolution 194. After reviewing each relevant body of international law, the Brief reviews Resolution 194 once more, in light of international law principles and state practice. The conclusion demonstrates that the responsibility of the international community to ensure that Israel immediately and fully implements the Palestinian refugees’ right of return has not diminished but has, on the contrary, gained even greater weight with the intervening passage of more than fifty years since the period of initial displacement.

UN General Assembly Resolution 194 (III) and the Right of Return

In December 1948, the UN General Assembly established a mechanism, the United Nations Conciliation Commission (UNCCP), to facilitate implementation of durable solutions for refugees in Palestine, based on recommendations of the UN Mediator Count Folke Bernadotte. UN General Assembly Resolution 194, paragraph 11, sets forth the framework for a solution to the plight of Palestinian refugees. Resolution 194, paragraph 11, sub-paragraph 1, by its express terms, identifies three distinct rights that Palestinian refugees are entitled to exercise under international law – return, restitution, and compensation. Resolution 194 further affirms that those refugees choosing not to exercise their right of return are entitled to be resettled and receive compensation for their losses. Paragraph 11, sub-paragraph 2, then instructs the UNCCP to facilitate implementation of the complete set of solutions to the plight of the refugees. These include, in order of reference, repatriation, resettlement, compensation, and economic and social rehabilitation.

Of primary relevance to this Brief is the right of return. Paragraph 11, sub-paragraph 1 of Resolution 194 states the right of return clearly, declaring that the General Assembly:

     Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.” 

The emphasis on repatriation as the preferred solution for Palestinian refugees reflects several principles, including the right of displaced persons to return to their homes, as well as the prohibitions against arbitrary denationalization and mass expulsion (explained in the sections below), that were customary norms of international law by 1948. This is reflected in the language of the UN Mediator’s recommendation for a solution to the plight of the refugees, which acknowledges the fact that no new rights were being created. “The right of the Arab refugees to return to their homes in Jewish controlled territory at the earliest possible date should be affirmed by the United Nations”.” (emphasis added).

The UN Mediator’s recommendation was subsequently incorporated into Resolution 194. Commenting on the original draft of paragraph 11, the representative of the United States acknowledged that the General Assembly was creating no new rights, stating that paragraph 11 “endorsed a generally recognized principle and provides a means for implementing that principle”. By contrast, it is important to note that sub-paragraph 1, which delineates the rights of the refugees, does not include resettlement. Resettlement is only included in sub-paragraph 2, which instructs the UNCCP to facilitate implementation of the rights affirmed in sub-paragraph 1 according to the choice of each individual refugee. The emphasis on repatriation was consistent with the mandates of several international agencies established to facilitate solutions for other groups of refugees predating the events of 1948.

The UN Mediator clearly regarded the right of return as the most appropriate remedy to correct the mass expulsion of Palestinians and the massive violation of their fundamental human rights. “The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumors concerning real or alleged acts of terrorism, or expulsion,” wrote Count Bernadotte in his September 1948 report. “There have been numerous reports from reliable sources of large-scale pillaging and plundering, and of instances of destruction of villages without apparent necessity”. It would be an offence against the principles of elemental justice,” Bernadotte concluded, “if these innocent victims of the conflict were denied the right to return to their homes”.”

Several principles are relevant to the implementation of the right of return as delineated in Resolution 194 . First, the Resolution clearly identifies the exact place to which refugees are entitled to return – i.e., to their homes. The drafting history of this provision is instructive. In choosing the term “to their homes,” the UN Secretariat stated that the General Assembly clearly meant the return of each refugee specifically to “his house or lodging and not [just generally to] his homeland.”The General Assembly rejected amendments that referred generally to “the areas from which they [i.e. the refugees] have come.”

Second, the Resolution affirms that return must be guided by the individual choice of each refugee. According to the UN Mediator’s report, it was an “unconditional right” of the refugees “to make a free choice [which] should be fully respected.” Reviewing the drafting history of Resolution 194, the UN Secretariat stated that paragraph 11 “intended to confer upon the refugees as individuals the right of exercising a free choice as to their future.” The legal advisor to the UN Economic Survey Mission reached the same conclusion: “The verb ‘choose’ indicates that the General Assembly assumed that the principle [i.e., the right of return] would be fully implemented, and that all the refugees would be given a free choice as to whether or not they wished to return home.” The principle of refugee choice had also recently been incorporated into the mandate of the International Refugee Organization, established in 1947 to facilitate solutions for WWII refugees in Europe, and would subsequently become a key principle governing durable solutions to refugee flows.

Third, Resolution 194 identifies the time frame for the return of refugees – i.e., “at the earliest practicable date.”  That the General Assembly intended for Israel to repatriate the Palestinian refugees immediately, and without waiting for any final peace agreement with the other parties to the conflict, is indicated by the chosen phrasing of paragraph 11. Based on the drafting history and debate, the UN Secretariat concluded that “the Assembly agreed that the refugees should be allowed to return when stable conditions had been established. It would appear indisputable that such conditions were established by the signing of the four Armistice Agreements in 1949.

Fourth, Resolution 194 imposes an obligation on Israel to re-admit the refugees. The UN Secretariat held the view that Israel was obligated under the provisions of Resolution 194 to create the conditions that would facilitate the return of the refugees. Reviewing the meaning of the phrase that refugees wishing to return to their homes “should be permitted to do so,” the UN Secretariat noted that the injunction imposed an obligation “to ensure the peace of the returning refugees and protect them from any elements seeking to disturb that peace.”

Finally, Resolution 194 was drafted to apply to all refugees in Palestine. While the first two drafts of paragraph 11 used the term “Arab refugees” the final draft approved by the General Assembly on 11 December only used the term “refugees.” The discussion in the General Assembly concerning the draft resolutions indicates that the term “Arab refugees” was initially used simply because most of the refugees were in fact Palestinian Arabs. By using the broader term “refugees,” however, the General Assembly indicated that the rights reaffirmed in paragraph 11 were to be applied on a non-discriminatory basis.

The fact that the General Assembly made Israel’s admission as a member to the United Nations conditional upon implementation of Resolution 194 clearly indicates that the Assembly considered Israel to be fully bound to ensure full implementation of the Palestinian refugees’ right of return. The UN General Assembly has reaffirmed Resolution 194 annually without diminution since its original promulgation in 1948. The right of return, as set forth in Resolution 194, continues to conform with binding norms of international law as explained below, strengthening its relevance as a durable solution for Palestinian refugees.

The Right of Return in the Law of Nationality

The law of nationality is a subset of the larger “law of nations,” which regulates state-to-state obligations. The first major principle of relevance to the right of return is that while states do have some domestic discretion in regulating their nationality status (i.e., determining who is a national of their country) such discretion has clear limits under international law. The domestic discretion of states to regulate their nationality status will only be recognized at the international level to the extent that it complies with international law.

This principle is universally recognized and has been reaffirmed by a 1923 advisory opinion rendered by the Permanent Court of International Justice, in the authoritative 1930 Hague Convention on Certain Questions relating to Conflict of Nationality Laws, and by the International Court of Justice in 1955. It has also been clearly formulated by various United Nations bodies, including the General Assemblx’s Sixth (Legal) Committee and the UN High Commissioner for Refugees. Under the law of nationality, states are limited in their domestic discretion to regulate their own nationality status by several additional binding obligations under international law, as described in the following section.

The Law of State Succession

The law of state succession applies whenever one state (a predecessor state) is followed in the international administration of a geographical territory by another state (the successor state). In the case of Palestinian refugees, the predecessor state was the embryonic state of Palestine for which, under international law, the British Mandate for Palestine constituted a “stand-in,” “custodian” or “guarantor,” and was succeeded, in part, by the state of Israel. When territory undergoes a change of sovereignty, the law of state succession requires that habitual inhabitants of the geographical territory coming under new sovereignty be offered nationality by the new state. Furthermore, this rule applies regardless of whether the habitual residents of the territory so affected are actually physically present in the territory undergoing the change of sovereignty on the actual date of the change or not. This rule represents a customary norm of international law and is binding upon all states.

Article14 (2) of the Articles on Nationality of Natural Persons in Relation to the Succession of States drafted by the International Law Commission and adopted verbatim by the General Assembly, specifically enumerate a right of return in the law of state succession for all habitual residents of a territory undergoing a change in sovereignty. Three aspects of Article 14 are significant in clarifying the rules the mandatory obligation of the successor state (Israel) to implement the right of return of Palestinian refugees in this specific context of state succession. First, irrelevant to (in other words is not a required element for) for habitual residents of a territory undergoing a change of sovereignty to have a right to return to that geographical area. Second, Article 14(2)’s right of return applies by its express terms to all habitual residents of a given territory undergoing a change of sovereignty even if they were actually outside the geographical territory concerned on the actual date of succession. Third,mandatory for all successor states, as is indicated by use of the word “shall” in Article14 (2). Article 5 reiterates the rule of Article 14(2).

Under these rules, the presumption that habitual residents of a territory undergoing a change of sovereignty will acquire the nationality status of the successor state can only be rebutted by nationality procedures, which are themselves in conformity with international law. This rule was recognized by the legal advisor to the UN Economic Survey Mission in 1949 and by a Tel Aviv district court in a 1951 case, in which the judge’s opinion expressly stated that international law and the rules of the law of state succession, in particular, were specifically relied upon. The judge came to the conclusion that in the absence of any law to the contrary (and since the opinion was rendered in 1951, Israel had not yet enacted its 1952 Nationality Law), all Palestinians who remained inside the 1949 armistice lines should automatically be considered nationals of the state of Israel, through the automatic operation of international law. The law of state succession requires the same result as well for all Palestinian refugees who were temporarily outside the territory on the date of succession.

There are two more provisions of the Articles on Nationality, which are extremely relevant to the case of the Palestinian refugees: Article 15, which prohibits governments from practicing discrimination in the conferral of nationality status; and Article 16, which requires that adequate due process safeguards be provided in the determination of nationality status.  Israel has violated Article 15 by drafting its 1952 Nationality Law for “non-Jews” (explained in the section on the prohibition against denationalization below) in such a way as to effectively denationalize Palestinian refugees, while allowing Jews from anywhere in the world to acquire “nationality” status through the much more generous terms of Israel’s Law of Return for Jews (also explained below).  Israel has violated Article  16 by failing to allow Palestinian refugees to re-enter Israel, thereby denying them the basic opportunity to be heard in a court of law to challenge the legality – particularly under international law – of Israel’s 1952 Nationality Law.

Implementing the Right of Return Is an Obligation Owed by a State to All Other States

Under the law of nationality, the duty to implement the individual’s right of return is an obligation owed by a state to all other states. The rule is that states are required to readmit (i.e., allow to exercise their right of return) their own nationals – including temporarily displaced persons in cases of state succession – because to refuse to do so would impose on some other state a resulting obligation to receive, or to host, the rejected individual. This principle is known as the “rule of readmission.”  The rule rests upon the premise that a state may not choose to reject, or leave stranded, a national outside its borders by refusing readmission because such an action would impose an unacceptable corresponding burden upon another (receiving) state to accept the stranded individual. Under international law, states may not burden each other in this way.

The Prohibition against (Mass) Denationalization

There exists another customary (binding) rule under the law of nationality known as the  “prohibition against denationalization.”  This rule follows as a natural corollary to the rule of readmission, already discussed above.  The prohibition against denationalization prevents a state from using revocation of nationality status (i.e., denationalization) as a means of avoiding its obligation to admit its own nationals. This rule – like the rule of readmission, which is its “sister” rule in the law of nationality – had attained customary status well before the events of 1948. The prohibition against denationalization exists in an authoritative draft international convention dating from 1930, various regional declarations (such as the 1986 Strasbourg Declaration on the Right to Leave and Return), in resolutions by UN organs, and numerous respected commentators have written of the prohibition against denationalization as a binding norm of customary law since as early as 1927. The entry for “Population, Expulsion and Transfer” in the authoritative Encyclopedia of Public International Law puts the rule categorically, stating that nationals may not be denied re-admission on the rationale that they are no longer nationals.

Denationalization is prohibited under international law in the case of a single instance affecting a single person. The prohibition against denationalization is therefore much stronger when denationalization is implemented on a mass scale and is intended by the government so acting, to cast out a whole large class of nationals from the body politic of the state. Israel’s 1952 Nationality Law (for “non-Jews”) completely violates the rule of the law of nationality prohibiting denationalization. While the 1952 Nationality Law carefully avoids the use of the term “non-Jew” in describing the narrowly defined categories of persons who might be eligible for Israeli citizenship thereunder, it was clearly intended to apply to non-Jews only because Jews would obviously avail themselves of the easier terms and procedures under the Law of Return (for Jews). The vast majority of Palestinian refugees are factually incapable of meeting the strict requirements of Israel’s 1952 Nationality Law and have therefore been effectively denationalized.

The Right of Return in Humanitarian Law

The right of return is also anchored in humanitarian law, the body of law regulating what states are permitted to do during war. Both the Hague Regulations annexed to the 1907 Hague Convention Respecting the Laws and Customs of War on Land (which are universally recognized, including by Israel, to have achieved customary status by 1939) and the 1949 Geneva Civilians Convention (to which Israel is a signatory) provide for the right of return of displaced persons to their homes following the cessation of hostilities.  The provisional government of Israel (through responsibility for its army and the Zionist paramilitary forces which preceded it) was fully bound by the rules of humanitarian law when Zionist forces unilaterally embarked upon the enterprise of trying to establish a state through military means. Palestinian communities were progressively displaced in 1948 as Zionist/Israeli forces established successive “zones of military occupation” as they gained control over specific geographical areas. 

The “general” Right of Return in Humanitarian Law

Under humanitarian law, there is a general right of return, which applies to all displaced persons, irrespective of how they came to be displaced during the period of conflict. This rule was first codified in Article 43 of the Hague Regulations (and incorporated into all subsequent customary humanitarian law, including the Geneva Conventions and their related Protocols). According to this rule, a belligerent occupant must preserve the legal and social status quo in the occupied territory to the maximum extent possible, pending the final legal resolution of the conflict (i.e., a peace agreement). The content of the rule of Article 43, which is broader in the official (French) version than in the unofficial English translation, means, in practical terms, that a belligerent occupant must let the population continue its normal existence with a minimum of interference. This would logically include a requirement that the local population be permitted to remain in, or return to, their place of origin following the cessation of hostilities.

While the Hague Regulations do not specifically articulate the obligation of a state to repatriate (i.e., allow to exercise their right of return) civilian residents of the territory who may have become temporarily displaced during the conflict, the entire purpose of the Hague Regulations – as is clearly stated in the Preamble to the Hague Convention – and indeed of all humanitarian law generally is to mitigate the severity of war as much as possible and to spare the local inhabitants to the maximum extent possible. Accordingly, it must be logically obvious that the rule of humanitarian law requiring the repatriation of prisoners of war following the cessation of hostilities (which is stated in Article 20 of the Hague Regulations) must necessarily include a rule requiring the repatriation of civilian residents to their place of origin following the cessation of hostilities. 

The sources of the right of return in the Fourth Geneva Convention are Article 4, Article 6(4) and Article 158(3). Article 4 defines protected persons who are covered by the Convention. The definition of protected persons covers all habitual residents of a territory who may have become temporarily displaced from their place of origin during the conflict (for whatever reason), and provision for their repatriation has been made in two separate articles of the Convention. The first repatriation provision appears in Article 6(4), which covers the end dates of the applicability of the Convention.  Specifically, Article 6(4) states that the Convention shall remain in effect, even after the cessation of hostilities, for those protected persons in need of repatriation. The second repatriation provision appears in Article 158, which covers the procedures whereby a state may “denounce” the Convention.  Specifically, Article 158(3) states that a denunciation may not take effect until after the repatriation of protected persons has occurred.

The Right of Return in Cases of Forcible (Mass) Expulsion

There is a second type of right of return provided for in humanitarian law. This applies when persons have been displaced through a forcible expulsion (for example, at gunpoint, under threat of fire or through the deliberate military “stampeding” of a population out of its place of habitual residence). The involuntary transfer of even a single individual – e.g., through deportation – is conclusively prohibited under humanitarian law. Deliberate, forcible expulsion – when carried out on a mass scale – is therefore even more strongly prohibited under humanitarian law. The only appropriate corrective remedy for forcible expulsion, under international law, is implementation of the right of return.

The prohibition against forcible expulsion has its basis in Article 46(1) of the Hague Regulations. Pierre Mounier, an assistant prosecutor for the Allies in the criminal prosecution of the Nazi leaders in the International Military Tribunal (IMT) at Nuremberg, stated in his opening arguments on November 20, 1945 that deportation violated Article 46 of the Hague Regulations, as well as customary international law in general. For that reason, the Charter of the International Military Tribunal included deportation in the definition of both “war crimes” (in Article 6(b) of the IMT Charter) and “crimes against humanity” (in Article 6(c) of the IMT Charter). Barring the return of forcibly expelled persons was similarly condemned as illegal.

The prohibition against forcible expulsion – and the related remedy of repatriation (the right of return) – appear in three articles of the Fourth Geneva Convention. Article 45 strictly limits the circumstances under which protected persons may be temporarily transferred (i.e., only to the care of another state party to the Fourth Geneva Convention) and categorically requires repatriation of protected persons to their (habitual) residence following the cessation of hostilities. Article 49 prohibits forcible expulsion in quite express terms: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”  Like Article 45, Article 49 also requires immediate repatriation “to their homes” of all persons (including those temporarily evacuated during extreme necessity) following the cessation of hostilities.

Article 147 of the Fourth Geneva Convention defines “grave breaches” of the Convention, which are violations of humanitarian law of such egregious severity that they are required to be made subject to penal (criminal) sanctions by all other “Contracting Parties” to the Convention (i.e., states which have signed the Convention).  Deportation and forcible population transfer are classified as grave breaches. Under the theory developed by the prosecutors at the IMT in Nuremberg, deliberately blocking the right of return of persons forcibly expelled also falls well within the scope of a grave breach of the Fourth Geneva Convention. Yet another prohibition against forcible expulsion appears in Article 17 of Protocol II to the Fourth Geneva Convention, which applies in cases of non-international armed conflict.

The Right of Return in Human Rights Law

Human rights law – which confers rights directly upon individuals and not through states – also contains the right of return. Every individually-held right recognized under human rights law imposes a corresponding duty upon states to recognize that enumerated right. The right of return is a customary norm of international human rights law and is found in a vast array of international and regional human rights treaties. The Universal Declaration of Human Rights (UDHR), which the General Assembly adopted in 1948 one day prior to Resolution 194, is the foundation for the right of return in human rights law. Article 13(2) of the UDHR phrases the right of return broadly and simply, as follows: “Everyone has the right to leave any country, including his own, and to return to his country.” Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) phrases the right of return fairly similarly: “No one shall be arbitrarily deprived of the right to enter his own country.” Israel has signed and ratified the ICCPR and has not made any reservations to Article 12(4), containing the right of return.

The phrasing of the right of return under Article 12(4) of the – which uses the term “enter” rather than “return” – is broader than the phrasing of the right under the UDHR.  Thus, the ICCPR phrasing of the right of return would accommodate the situation of second-, third- or fourth-generation Palestinian refugees. Article 12(4) of the ICCPR uses the phrase “his own country” to specify the destination or location where the right of return is to be exercised. [According to] General Comment No. 27 […] Article12(4) establishes that the phrase “his own country” applies to a much broader group of persons than merely “nationals” of a state. The language is intended to include: “nationals of a country who have been stripped of their nationality in violation of international law, […] individuals whose country of nationality has been incorporated in or transferred to another entity, whose nationality is being denied them [and] stateless persons arbitrarily deprived of the right to acquire the nationality of the country of [their long-term] residence.”

Understanding the precise intent of the ICCPR drafters in incorporating the word “arbitrarily” into the formulation of the ICCPR Article 12(4) is critical to understanding the scope of right guaranteed because “arbitrarily” is the only […] Analysis of the drafting history is useful, and the commentators are in uniform agreement that the word arbitrarily refers to only one specific factual instance, that of the use of exile as a penal sanction (i.e., sentencing a person charged with a criminal offense to exile or banishment). Otherwise, the right of return as articulated in Article 12(4) is absolute, subject only to the general qualification provisions of Article 4(1) of the ICCPR (which themselves only permit derogations which are “not inconsistent with other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin?). qualification on the right of return listed in Article 12(4).

Some commentators have tried to argue that Article 12(4) only applies to individuals, and not to large groups of people seeking to claim the right simultaneously. This argument does not make sense logically, since all rights enumerated in the ICCPR are granted to individuals personally, regardless of how many other people might be seeking to exercise the same enumerated right, and at what point in time.  Respected commentators have rejected the concept that the Article 12(4) cannot apply to large groups of people. Additionally, various UN organs, including the UN High Commissioner for Refugees, have expressly found that large groups of people do have a right of return that is explicitly grounded in both Article 12(4) of the ICCPR and its “mother” article, Article 13(2) of the UDHR. As one commentator has noted, “[T]he right to return in both the UDHR and the ICCPR was the basis for guaranteeing this right in recently signed peace agreements in order to resolve conflicts in Rwanda and Georgia, both of which produced hundreds of thousands of refugees and displaced persons.”

Finally, it must be noted that the ICCPR contains a general non-discrimination provision in Article 2(1), which categorically prohibits governmental interference with ICCPR-guaranteed rights based on “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Returning to Israel’s two nationality laws – the 1950 Law of Return (for Jews) and the 1952 Nationality Law (for “non-Jews”) – it becomes immediately obvious that the intended result of these two laws working together in tandem is precisely to use “race, colour, language, religion, political or other opinion, national or social origin, birth or other status” as filters for administering the conferral of Israeli nationality status.  Such a blatant use of ICCPR-prohibited criteria to screen in and screen out prospective nationals – particularly when the millions of persons thus screened out already should have been considered nationals of Israel (the successor state) by automatic operation of international law as detailed above – constitutes prima facie discrimination expressly prohibited by the ICCPR and a violation of Israel’s treaty obligations under the ICCPR.

Another major international human rights convention, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), similarly incorporates the right of return in its Article 5 (d)(ii), phrasing it as “[t]he right to leave any country, including one’s own, and to return to one’s country.” Israel has signed and ratified CERD and has made no reservation to this Article. CERD also lists the right of return as an enumerated right subject to the categorical non-discrimination rule of the opening paragraph of Article 5: “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights.” Israel’s use of prohibited criteria to confer its nationality status therefore also violates its treaty obligations under CERD.

International human rights law also incorporates the general prohibition against forcible expulsion (mass or otherwise) from one’s home or place of origin. Forcible expulsion violates a vast host of specifically enumerated rights contained in the broad corpus of human rights law generally, and specifically violates the protection of freedom of movement. “[Any] form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation,” states a UN report to the Sub-commission on the Prevention of Discrimination and Protection of Minorities, “directly affects the enjoyment or exercise of the right of free movement and choice of residence within States and constitutes a restriction upon this right.” Similarly, the UN Sub-commission has invoked both Article 12(4) of the ICCPR and Article13 (2) of the UDHR regarding the inadmissibility of mass expulsions.Finally, General Comment No. 27 specifically states that ICCPR Article 12(4) applies in cases of “enforced population transfers or mass expulsions” and, therefore, reinforces Article 12(4)’s applicability to large groups of people as discussed above.

The Right of Return in Refugee Law and State Practice (Opinio Juris)

The right of return also exists in a special sub-set of human rights law, which is the law relating to refugees. The primary instrument governing rights of refugees and states’ obligation towards them is the 1951 Convention Relating to the Status of Refugees and its related 1967 Protocol. The juridical source of refugees’ right of return in refugee law is human rights law (see above for the foundation of the right of return in human rights law), while actual implementation of the right of return is through the Office of the UN High Commissioner for Refugees (UNHCR). Article 1 of the1950 Statute of the UNHCR delineates the mandate of the Agency as being to “facilitate the voluntary repatriation of  refugees, or their assimilation within new national communities.”

Under refugee law, the principle of refugees’ absolute right of return on a voluntary basis to their place of origin (including to their homes of origin) is central to the implementation of durable solutions designed by the international community to address refugee flows. Of the three durable solutions – voluntary repatriation (i.e., return), voluntary host country integration, and voluntary resettlement – the UNHCR considers voluntary repatriation to be the most appropriate solution to refugee problems. Only voluntary repatriation represents a right accorded to the individual (and a corresponding obligation on the part of the country of origin, from which the refugee flow was generated). The other solutions are neither rights of refugees nor obligations of receiving states. According to the former High Commissioner for Refugees, Ms. Sadako Ogata:

the ultimate objective of the international protection of refugees is not to institutionalize exile, but to achieve solutions to refugee problems.  Voluntary repatriation, whenever possible, is the ideal solution.  [This is why] “I have stressed the refugees” right to return home safely and in dignity.

State practice regarding implementation of bilateral or multilateral mechanisms for repatriation of refugees provides rich precedent for – and evidence of opinio juris (which is a sense of binding legal obligation on the part of states) regarding – the existence of a customary norm requiring countries of origin to receive back persons displaced or expelled therefrom. Returns of mass groups of displaced persons have occurred in conjunction with the express acknowledgment of the international community – as well as the explicit recognition by the parties to the underlying conflict themselves – that the persons returning are doing so as a matter of right.

Prominent examples include the 1994 Bosnia agreement, the 1995 Dayton Accord, the 1995 Croatia agreement, and the 1994 Guatemala agreement.  All four agreements describe the right of refugees and displaced persons to return to their homes of origin (just as the right was phrased in Resolution 194) as being unqualified. Looking at the Dayton Accord, in particular, one notes immediately that the primary rights accorded to displaced persons in that agreement mirror exactly the three rights articulated for Palestinian refugees in Resolution 194 – namely: (1) the right of return (repatriation); (2) the right of restitution (repossession); and (3) the right of compensation.

The sheer magnitude of the numbers of refugees whose voluntary return and reintegration into their respective places of origin UNHCR has proactively facilitated as an integral part of crafting durable solutions as part of comprehensive peace settlements is impressive. “During 1994 and 1995, some three million refugees returned to their countries, the largest numbers to Afghanistan, Mozambique, and Myanmar.  Late 1996 and early 1997 saw a massive return of over one million Rwandan refugees who fled during the more than four years of civil war.”During the 1990’s, an estimated 12 million refugees exercised their right to return to their homes and places of origin. By comparison some 1.3 million refugees and persons of concern to the UNHCR were voluntarily resettled during the same period.

Numerous UN resolutions relative to other refugee cases reaffirm the right of return for displaced persons. The UN Security Council has unambiguously declared that the right of refugees (and displaced persons) to return to their homes of origin (which is strikingly similar to the way the right of return is phrased in Resolution 194) is absolute.  In the context of the conflict in Bosnia and Croatia, for example, the Security Council has issued numerous resolutions affirming this particularly relevant formulation of the right of return. Similarly, in the case of the conflict in Georgia, the Security Council again affirmed the right of refugees to return to their homes of origin. In a further strong resemblance to another important aspect of Resolution 194, the Security Council specifically stated that in the case of Georgia, the right of the refugees to return was independent of any final political solution (and therefore could not be conditioned upon political demands made by any of the parties to the conflict).

Finally, in another important parallel to the Palestinian case, in both the Bosnia and Kosovo repatriation schemes devised by the international community, individual and collective rights were jointly protected. In both Bosnia and Kosovo, “the collective rights to an independent entity or statehood were preserved, along with a mechanism for individual refugees to assert their claims to repatriate and obtain restitution and/or compensation.  Each of these situations involved the establishment of claims commissions as part of a negotiated settlement, but the right of the individual to assert his/her claim was preserved independently of the outcome of the self-determination issue.” The General Assembly also has issued resolutions in the context of its initiative on state cooperation to avert new flows of refugees, which have reaffirmed “the right of refugees to return to their homes in their homelands.”

Conclusion

Discussion of the implementation of the right of return of Palestinian refugees raises all sorts of questions regarding the nature of the state of Israel and the legality of its actions vis-