Right of return

Legal status of persons
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Nationality
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Immigration
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v t e

The right of return is a principle in international law which guarantees everyone's right of voluntary return to, or re-entry to, their country of origin or of citizenship. The right of return is part of the broader human rights concept freedom of movement and is also related to the legal concept of nationality.^[1] While many states afford their citizens the right of abode, the right of return is not restricted to citizenship or nationality in the formal sense.^[2] It allows stateless persons and for those born outside their country to return for the first time, so long as they have maintained a "genuine and effective link".^[2][3]

The right is formulated in several modern treaties and conventions, most notably in the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights and the 1948 Fourth Geneva Convention. Legal scholars have argued that one or more of these international human rights instruments have attained the status of customary international law and that the right of return is therefore binding on non-signatories to these conventions.^[4][5]

The right of return is often invoked by representatives of refugee groups to assert that they have a right to return to the country from which they were displaced.

History

The right to leave any country and to return to one's own country are regarded as

Ancient precedents

While the right of return was not explicitly recognized in antiquity, exile, being explicitly refused permission to return home, was a common punishment for severe crimes. The topic was discussed extensively by antique writers.^[7] For example, Teles of Megara in his diatribe On Exile wrote "But exiles are not allowed to return home, and this is a severe restriction of their freedom."^[7]

During antiquity, groups of people were frequently deported or uprooted from their cities and homeland, often as part of conquest or as a punishment for rebellion. In some cases they were allowed or encouraged to return, typically after the balance of military and political forces had changed.

A well-known example is the

and also inspired other groups seeking to pursue their own return.

During the

Cotton MS. Augustus II. 106, one of only four surviving exemplifications

of the 1215 text

Magna Carta

The first codified law guaranteeing a right of return can be found in the English charter Magna Carta from 1215:^[10]

In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants – who shall be dealt with as stated above – are excepted from this provision.^[11]

French Constitution of 1791

Another early example of

the freedom of everyone to go, to stay, or to leave, without being halted or arrested unless in accordance with procedures established by the Constitution.

The constitution put an end to the centuries-long persecution and discrimination of

]

Concurrently with making all

Protestants

resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that:

All persons born in a foreign country and descending in any degree of a French man or woman expatriated for religious reason are declared French nationals (naturels français) and will benefit to rights attached to that quality if they come back to France, establish their domicile there and take the civic oath.[12]

The

, the French were unwilling to let Germans of Huguenot origin take advantage of it.

Schleswig plebiscites, 1920

In the aftermath of the

to let these expelled ethnic Danes and their descendants return to Schleswig and take part in the plebiscite. This was granted, though many of the optants had in the meantime emigrated to the United States, and most of these did not actually come back.

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:

20. After the conclusion of peace, the
    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.[13]

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

1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. 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):

Fourth Geneva Convention, article 49:

, article 5d(ii):

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.^[14] 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^[14] 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:

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 ... 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.^[15]

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.^[16]

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:

... [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.^[17]

Hurst Hannum has made a similar argument:

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.^[18]

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".^[19] Bracka has argued similarly:

At any rate, what seems clear is that neither the text nor the

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.^[14]

Eric Rosand, legal advisor to the US

State Department

, used the same argument:

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.[5]

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

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.^[5]

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.^[20]

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:

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.^[21]

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.^[22]

Right of return in case law

Few cases have dealt with the right of return principle. In 1996, the

Greek-Cypriot refugee displaced from Northern Cyprus and prevented from returning by Turkey. The court ruled that Turkey had violated Mrs Loizidou's human rights, that she should be allowed to return to her home and that Turkey should pay damages to her.^[23]

In a similar case, petitioners for the Chagossians asked the ECHR in 2005 to rule about their removal from Diego Garcia by the British government in the 1960s. The court ruled in 2012 that their case was inadmissible and that by accepting compensation, the islanders had forfeited their claim:

The Court notably found that the heart of the applicants' claims under the European Convention on Human Rights was the callous and shameful treatment which they or their antecedents had suffered during their removal from the Chagos islands. These claims had, however, been raised in the domestic courts and settled, definitively. In accepting and receiving compensation, the applicants had effectively renounced bringing any further claims to determine whether the expulsion and exclusion from their homes had been unlawful and breached their rights and they therefore could no longer claim to be victims of a violation of the Convention.^[24]

Non-state groups claiming a right of return

Circassians

Circassians are an indigenous ethnic group originating from the northwestern

conflict in Syria.^[25]

Georgian refugees and internally displaced people

Main article: Ethnic cleansing of Georgians in Abkhazia

During Abkhazia's war of secession in 1992–1993 and the second Abkhazia war in 1998, 200,000–250,000 Georgian civilians became internally displaced people (IDPs) and refugees. Abkhazia, while formally agreeing to repatriation, has hindered the return of refugees both officially and unofficially for more than fifteen years.^[26]

Greek-Cypriots

Further information: Cypriot refugees

During the Turkish invasion of Cyprus, 40% of the Greek-Cypriot population as well as over half of the Turk-Cypriot population of the island were displaced. The island was divided along ethnic lines and most of the Greek-Cypriot displaced people were not allowed to return to their homes in the northern Turk-Cypriot side and vice versa.

Plans for a solution of the conflict has centered around bilateral agreements of

Annan Plan of 2004. In these plans, the right of return was to be severely limited with respect to Greek-Cypriot internally displaced people/refugees to districts such as Kyrenia, Morphou, Famagusta, and parts of Nicosia, despite judgements of the European Court of Human Rights in cases such as Loizidou v. Turkey, and numerous UN resolutions recognizing the right of return (such as SC 361 and GA 3212). Two referendums on the Annan Plan were held in April 2004, separately along ethnic lines. The Annan Plan was overwhelmingly rejected in the Greek-Cypriot

referendum.

The right of return continues to remain a stumbling block to the settlement of the Cyprus problem.

Diego Garcia Chagossians

The Chagossians, an ethnic group residing on the island of Diego Garcia in the Indian Ocean, were expelled to Mauritius in the 1960s, in connection with the erection of an U.S. Military strategic military installation on the island. Ever since, the Chagossians have been conducting a persistent political and legal struggle to return to Diego Garcia. As of 2007, their right to return was recognised by several British courts but the UK government had failed to implement it.^{[citation needed]}

Palestinians

Main article: Palestinian right of return

Palestinian refugees argue that international law guarantees them a right to return to their former homes in Mandatory Palestine and a right to property they left behind in what is now Israel.^[27]

Countries with laws conferring a right of return

Abkhazia (self-declared)

The law on the repatriation of self-declared Republic of Abkhazia[28] gives the right of return to the ethnic Abkhaz and Abazins who are the descendants of the refugees who left Abkhazia due to the 19th-century conflicts.^[29] The State Repatriation Committee provides support to the repatriates.^[30]

Armenia

Further information: Repatriation of Armenians

Article 14 of the Constitution of Armenia (1995) provides that "[i]ndividuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure."^[31] This provision is consistent with the Declaration on Independence of Armenia, issued by the Supreme Soviet of the Republic of Armenia in 1989, which declared at article 4 that "Armenians living abroad are entitled to the citizenship of the Republic of Armenia".^{[citation needed]}

Austria

Under Section 58c of the Austrian Citizenship Act (German: Staatsbürgerschaftsgesetz), Austrians and their descendants who were persecuted or feared persecution by Nazi Germany can become Austrian citizens. While Austria does not allow dual citizenship in most circumstances, people who receive citizenship under § 58c may keep their previous citizenship. However, if they later receive another country's citizenship, they must renounce their Austrian citizenship and may not re-apply.^[32]

Finland

People of Finnish origin may receive citizenship by declaration, which is faster and cheaper than naturalization and has fewer requirements. People of Finnish origin can be: 1) children, born abroad, of a Finnish father; 2) 12–17-year-old adopted children; 3) former Finnish citizens; 4) citizens of another

Soviet passport (or post-Soviet passport) where the ethnicity was marked as Finnish. This allowed the immigration of Ingrian Finns and other Finns who had remained in the Soviet Union. People who served in the Finnish Defence Forces

or Finnish people evacuated by German or Finnish authorities from occupied areas to Finland during World War II also qualified as returnees. However, these options are no longer available, and applicants must qualify for ordinary naturalization instead.

France

Another early example of

national law recognizing the Right of Return was the French constitution of 1791, enacted on 15 December 1790:^[6]

the freedom of everyone to go, to stay, or to leave, without being halted or arrested unless in accordance with procedures established by the Constitution.

The constitution put an end to the centuries-long persecution and discrimination of

Protestants

resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that:

All persons born in a foreign country and descending in any degree of a French man or woman expatriated for religious reason are declared French nationals (naturels français) and will benefit to rights attached to that quality if they come back to France, establish their domicile there and take the civic oath.[12]

The

Occupation of France, the French were unwilling to let Germans of Huguenot origin to take advantage of it. In October 1985, French President François Mitterrand issued a public apology to the descendants of Huguenots around the world.^[34]

Germany

See also:

German Citizenship Project

Ghana

Ghana allows people with African ancestry to apply for and be granted the right to stay in Ghana indefinitely.^[39]

Greece

Various phenomena throughout Greek history (the extensive colonization by classical Greek city states, the vast expansion of Greek culture in Hellenistic times, the large dominions at times held by the Greek-speaking Byzantine Empire, and the energetic trading activity by Greeks under the Ottomans) all tended to create Greek communities far beyond the boundaries of modern Greece.

Recognizing this situation, Greece grants citizenship to broad categories of people of ethnic Greek ancestry who are members of the Greek diaspora, including individuals and families whose ancestors have been resident in diaspora communities outside the modern state of Greece for centuries or millennia.^[40]

"Foreign persons of Greek origin", who neither live in Greece nor hold

nor were necessarily born there, may become Greek citizens by enlisting in Greece's military forces, under article 4 of the Code of Greek Citizenship, as amended by the Acquisition of Greek Nationality by Aliens of Greek Origin Law (Law 2130/1993). Anyone wishing to do so must present a number of documents, including "[a]vailable written records ... proving the Greek origin of the interested person and his ancestors".

Albania has demanded since the 1940s that Greece grant a right of return to the Muslim Cham Albanians, who were expelled from the Greek region of Epirus between 1944 and 1945, at the end of World War II – a demand firmly rejected by the Greeks (see Cham issue).

Hungary

In 2010, Hungary passed a law granting citizenship and the right of return to descendants of Hungarians living mostly on the former territory of the Kingdom of Hungary and now residing in Hungary's neighbouring countries. Slovakia, which has 500,000 ethnic Magyar citizens (10% of its population), objected vociferously.^[41]

Ireland

Present Irish nationality law states that any person with a grandparent born on the island of Ireland can claim Irish nationality by enrollment in the Foreign Births Register. Additionally, the law permits the Minister of Justice to waive the residency requirements for naturalization for a person of "Irish descent or Irish associations".

Israel

The

Latvia

According to the law passed in 2013, any person who themself or whose parent or grandparent had Latvian or Livonian ethnicity, did not voluntarily chose a different ethnicity and lived on Latvian territory between 1881 and 17 June 1940, may register Latvian citizenship upon providing proofing documents and passing a language exam.^[43]

Poland

From the Constitution of Poland, Article 52(5): "Anyone whose Polish origin has been confirmed in accordance with statute may settle permanently in Poland."^{[44][citation needed]}

Portugal

On April 12, 2013, the Portuguese parliament unanimously approved a measure that allows the descendants of

Romania

Romanian citizenship can be regained or granted to individuals who were Romanian citizens and who lost it for reasons beyond their control or whose citizenship was revoked involuntarily. This legal provision also applies in the case of descendants of former Romanian citizens up to the third degree. [46]

Russia

The Russian Federation offers citizenship to individuals descended from Russian ancestors who can demonstrate an affinity for Russian culture and, preferably, speak Russian. Concern about Russia's shrinking population prompted the program.^[47] This has had a positive effect because this has not only reversed Russia's population decline but has also increased the birth rate.^{[citation needed]} Officials estimate that 25 million members of the Russian diaspora are eligible for nationality. The Foreign Ministry has sent emissaries to countries around the world to urge the descendants of Russian emigrants to return home.^[47] The majority of these emigrants have returned from Ukraine, many of them young men looking for better education and job opportunities.^{[citation needed]}

Spain

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were expelled from Spain in 1492. Despite the requirement by general rule for obtaining Spanish nationality after five years of residence in Spain, by royal decree on 20 December 1924, Sephardi Jews can obtain Spanish nationality with two years of residence in Spain. From 1924 until 2015 Sephardi Jews living abroad could also ask the Spanish Government for a conferment of Spanish nationality, but the Government enjoyed full discretion as to the decision whether to grant Spanish nationality. On 24 June 2015, the Spanish Parliament approved the 12/2015 Act, the Law Granting the Nationality to Sephardi Jews, that grants the Spanish nationality automatically to Sephardi Jews living abroad, provided they can prove that they are descendants of the Sephardi Jews expelled in 1492.

In 2007, the Spanish Parliament approved the 57/2007 Act, the Law of Historical Memory. The 57/2007 Act provides for the descendants of Spaniards living abroad that left Spain because of political persecution during the Civil War and Franco's dictatorship – that is the period between 1936 and 1975 – to obtain Spanish nationality.

Finally, following the

]

See also

• Voluntary return
• Diaspora politics
• Freedom of movement
• Nationality law
• Jus sanguinis
• Canadians of convenience
• Internally Displaced Persons
• Rastafari movement
• Law of Return
• Overseas Citizenship of India, a scheme allowing foreign citizens with ancestral origins in British India to obtain permanent residency in India
• Birthright Armenia
• Right of asylum
• Right to homeland

References

External links

• Wall Street Journal, War Echo: Ousted by Poland in 1945, Germans Want Homes Back, August 11, 2004
• Let Them Return – The Chagos People's Homeland Campaign Archived 2011-07-13 at the Wayback Machine
• Law of Return, 1950—Government of the State of Israel
• The Right of Return in International Law by Eyal Benvenisti
• The problem is how to become Israeli – Amon Rubenstein,
  Ha'aretz
• Do Palestinian Refugees Have a Right to Return to Israel? by Ruth Lapidoth
• International Law and the Arab-Israeli Conflict by Julius Stone
• The Feasibility of the Right of Return by Salman Abu-Sittah
• Palestinian Refugees and the Right of Return: An International Law Analysis by Gail J. Boling
• The Palestinian Refugees and the non-existence of the Right of Return, Ben-Dror Yemini