Editing Right of return (section)

== Legal understanding of the right ==
The right of return principle has been codified in a number of international instruments, including:

[[Hague Regulations]] (HR), article 20:

{{ordered list|start=20|  After the conclusion of peace, the [[repatriation]] of [[prisoners of war]] shall be carried out as quickly as possible.}}

It has been argued that if the HR require the repatriation of prisoners, then it is "obvious" that civilians displaced during conflict must also be allowed to repatriate.<ref name="badil-brief">Boling, Gail J. [https://www.badil.org/phocadownload/Badil_docs/bulletins-and-briefs/Brief-No.8.pdf Palestinian Refugees and the Right of Return: An International Law Analysis], ''BADIL - Information & Discussion Brief Issue No. 8'', January 2001</ref>

[[Universal Declaration of Human Rights]] (UDHR), article 13:

# Everyone has the right to freedom of movement and residence within the borders of each State.
# Everyone has the right to leave any country, including his own, and to return to his country.

[[International Covenant on Civil and Political Rights]] (ICCPR) article 12(4):

{{ordered list|start=4| No one shall be arbitrarily deprived of the right to enter his own country.}}

[[Fourth Geneva Convention]], article 49:

{{ordered list|start=49|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.<br><br>Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. ... Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.}}

[[Convention on the Elimination of All Forms of Racial Discrimination]], article 5d(ii):

{{blockquote|The right to leave any country, including one's own, and to return to one's country.}}

Some controversy exists among scholars on how these articles should be interpreted.

==="His own country"===
The landmark [[International Court of Justice]] case the [[Nottebohm case]] of 1955 is often cited as staking out more criteria as to what "one's country" should be.<ref name="bracka"/> The court ruled that there needed to be a "genuine and effective" link between the individual and the country. Among the criteria listed for such a link were "a close and enduring connection", "tradition", "establishment", "interests" and "family ties". The 1955 ruling has been supplanted by more recent conventions and court rulings.

There is some disagreement<ref name="bracka">Bracka, Jeremie Maurice. [http://law.unimelb.edu.au/__data/assets/pdf_file/0005/1681169/Bracka.pdf "Past the Point of no Return? The Palestinian Right of Return in International Human Rights Law"], ''Melbourne Journal of International Law'', Melbourne, 2005</ref> as to what "his own" and "his country" means in the ICCPR and UDHR. According to the [[United Nations Human Rights Committee]]'s authoritative interpretation from 1999:

{{blockquote|The scope of "his own country" is broader than the concept "country of his nationality". It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The right of a person to enter his or her own country recognizes the special relationship of a person to that country&nbsp;... It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country.<ref name="hrc27">UN Human Rights Committee (HRC), ''[http://www.refworld.org/docid/45139c394.html HRC in General Comment 27 CCPR General Comment No. 27: Article 12 (Freedom of Movement)]'', 2 November 1999, CCPR/C/21/Rev.1/Add.9</ref>}}

According to Agterhuis, the record of negotiations - the [[travaux préparatoires]] - of the ICCPR reveals that the wording of article 12(4) was changed from "the right to ''return'' to one's country" to "the right to ''enter'' one's country" was made in order to include nationals or citizens born outside the country and who have never lived therein.<ref name = "agterhuis">{{cite web|url=https://prrn.mcgill.ca/research/papers/agterhuis.pdf|title=The right to Return and its Practical Application|author=Sander Agterhuis}}</ref>

=== Mass displacement ===
Some disagreement exists on whether the right of return is applicable to situations in which whole ethnic groups have been forcibly displaced. [[Ruth Lapidoth]] from the [[Jerusalem Center for Public Affairs]] has argued, by citing [[Stig Jägerskiöld]] from his 1966 commentary of ICCPR, that the right was not intended to protect groups of displaced people:

{{blockquote|... [it] is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a by-product of war or by political transfers of territory or population, such as the relocation of ethnic Germans from Eastern Europe during and after the Second World War, the flight of the Palestinians from what became Israel, or the movement of Jews from the Arab countries.<ref name="JCPA">{{Cite web |url=http://www.jcpa.org/jl/vp485.htm |title=Legal Aspects of the Palestinian Refugee Question |author=Ruth Lapidoth |publisher=[[Jerusalem Center for Public Affairs]] |date=September 1, 2002}}</ref>}}

[[Hurst Hannum]] has made a similar argument:

{{blockquote|There is no evidence that mass movements of groups such as refugees or displaced persons were to be intended to be included within the scope of article 12 of the Covenant by its drafters.<ref>Hurst Hannum, ''The Right to Leave and Return in International Law and Practice'', p.59</ref>}}

Austrian human rights lawyer [[Manfred Nowak]] has argued the opposite position, that the right of return applies "even if masses of people are claiming this right".<ref>Manfred Nowak, ''U.N. Covenant on Civil and Political Rights: CCPR Commentary'', p.220, 1993</ref> Bracka has argued similarly:

{{blockquote|At any rate, what seems clear is that neither the text nor the {{lang|fr|[[travaux préparatoires]]}} of the relevant UDHR, ICCPR and CERD provisions actually support circumscribing [the right of] return in this way [to exclude situations of mass displacement]. Firstly, there is no indication that the drafters considered the applicability of the freedom of movement principle to members of displaced populations. And although it may have been assumed at the time that such a scenario would receive discussion in "some other body of law", this is not synonymous with an intention to limit these articles to isolated individuals. Secondly, nowhere in the actual text is the operation of the right of return qualified on the basis of group affiliation. Rather, in each instance, the relevant language refers to "everyone". In addition, the HRC in General Comment 27 affirms this reading in so far as it states: "[t]he right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries". Thirdly, whilst the right of return in art 12(4) of the ICCPR is presented as an individual right, [[John Quigley (academic)|Quigley]] confirms that "this is also true of most rights in international human rights instruments". Indeed, the movement of people has historically taken on a collective dimension. Accordingly, to deny the availability of human rights simply because individuals form part of a mass group would render those rights illusory.<ref name="bracka"/>}}

Eric Rosand, legal advisor to the US [[State Department]], used the same argument:

{{blockquote|Although political negotiations and the issue of self-determination may be appropriate in situations involving mass displacement, nothing in the text or travaux préparatoires of the relevant provisions of the UDHR, ICCPR, or ICERD limits the application of the right of return to individual instances of refusals to repatriate. In fact, based on a close review of these documents, one could conclude that the drafters did not intend to except mass movements of refugees and displaced persons from this right, particularly since the UDHR, the ICCPR, and the ICERD do not indicate that the right to return should be linked to one's group status. In each instance, the relevant language refers to "everyone" having a right to return.<ref name = "rosand"/>}}

Rosand discusses the views of scholars who do not consider the right of return to be applicable under mass displacement but concludes:

{{blockquote|In the final decade of this century, however, the world now condemns such population transfers, which, along with mass expulsions, are deemed to violate important principles of international law. ... Moreover, the 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. ... Although the actual return of these groups may, in the end, be determined by political feasibility, this should not prevent the international community from grounding their return in international law. ... In short, there is a difference between acknowledging that a right to return exists although in certain instances it may not be implementable due to the unresolved political situation and declaring that the issue of the return of large groups is beyond the scope of international law and resolvable only as part of ongoing political negotiations.<ref name = "rosand"/>}}

=== Resettled refugees ===
According to Masri, refugee status is independent of right of return. Thus, refugees who acquire new nationalities in their host countries do not necessarily lose their right to return to the countries they left. Masri argues that the resettlement "weakens the link" between the refugee and the source country but that this weakening is not enough to automatically lead to the deprivation of rights.<ref name = "masri">{{cite journal|journal=Asian Journal of International Law|title=The Implications of the Acquisition of a New Nationality for the Right of Return of Palestinian Refugees|first=Mazen|last=Masri|year=2015|volume=5|issue=2|pages=356–386|doi=10.1017/S2044251314000241|doi-access=free}}</ref>

=== Regional treaties ===
The right of return is also found in many regional treaties, such as article 12(2) of the [[African Charter on Human and Peoples' Rights]]:
{{blockquote|Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.<ref name = "achpr">{{Cite web|url=https://www.achpr.org/legalinstruments/detail?id=49|title=African Charter on Human and Peoples' Rights|access-date=2020-07-25|archive-date=2022-05-09|archive-url=https://web.archive.org/web/20220509235021/https://www.achpr.org/legalinstruments/detail?id=49|url-status=dead}}</ref>}}

The right is also found in article 3(2) of the [[European Convention on Human Rights]]; "[n]o one shall be deprived of the right to enter the territory of the state of which he is a national" and article 22(5) of the [[American Convention on Human Rights]]: "[n]o one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it." In these conventions the word "national" is used which is considered narrower than "his own country" in article 12(4) of the ICCPR.<ref name = "ejil">{{cite web|url=https://www.ejiltalk.org/the-right-to-enter-his-or-her-own-country/|title=The right to enter his or her own country|author=Rutsel Martha|author2=Stephen Bailey|date=23 June 2020 }}</ref>