Editing Right of return (section)

=== 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"/>}}