The right of return is a principle in international law which guarantees peoples' right of return to, or re-entry to, their country of citizenship. The right of return is part of the broader human rights concept of freedom of movement and is also related to the legal concept of nationality. 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. It allows stateless persons and for those born outside their country to return for the first time, so long as they have maintained—subject to the legal concept of laches—a "genuine and effective link".
The right is formulated in several modern treaties and conventions, most notably in the 1948 Universal Declaration of Human Rights,Article 13 the 1966 International Covenant on Civil and Political RightsArticle 12 and the 1948 Fourth Geneva Convention.IHL Treaties - Geneva Convention (IV) on Civilians, 1949 Article 134 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.
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 human rights and are founded on natural law.J.D. Inglés (1963), Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including His Own, and to Return to His Country, Geneva, UN, UN Sales no. 64.XIV.2, UN Doc E/CN.4/Sub.2/220/Rev.1
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. 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."
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 return to Zion, by which King Cyrus the Great granted the Jews expelled from Judah to Babylon the option to return to their ancestral homeland and rebuild Jerusalem. Recorded in the Hebrew Bible (Book of Ezra and Book of Nehemiah) this case is often cited as a precedent by modern Zionists and also inspired other groups seeking to pursue their own return.
During the Peloponnesian War, Athens expelled and scattered the inhabitants of Melos, Aegina and other cities (some of them being sold into slavery). Following the victory of Sparta, the Spartan general Lysander in 405 BC made a concerted effort to gather these exiles and restore them to their original cities.Xenophon. Hellenica, 2.2.9: "Meantime Lysander, upon reaching Aegina, restored the state to the Aeginetans, gathering together as many of them as he could, and he did the same thing for the Melians also and for all the others who had been deprived of their native states."Plutarch. Life of Lysander, 14.3: "But there were other measures of Lysander upon which all the Greeks looked with pleasure, when, for instance, the Aeginetans, after a long time, received back their own city, and when the Melians and Scionaeans were restored to their homes by him, after the Athenians had been driven out and had delivered back the cities."
Magna Carta The first codified law guaranteeing a right of return can be found in the English charter Magna Carta from 1215:Bradley, Megan: "Liberal Democracies' Divergent Interpretations of the Right of Return: Implications for Free Movement", Democratic Citizenship and the Free Movement of People, 2013
French Constitution of 1791 Another early example of national law recognizing the Right of Return was the French constitution of 1791, enacted on 15 December 1790:
The constitution put an end to the centuries-long persecution and discrimination of Huguenots (French Protestants).
Concurrently with making all Protestants resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that:
The revocation of the Edict of Nantes and expulsion of the Huguenots had taken place more than a century earlier, and there were numerous Huguenot emigrants to other countries, where they often intermarried with the population of the host country (see Edict of Potsdam). Therefore, the law potentially conferred French citizenship on numerous Britons, Germans, South Africans and others – though only a fraction actually took advantage of it. This option for Huguenot descendants to gain French citizenship remained open until 1945, when it was abolished – since after the occupation of France, the French were unwilling to let Germans of Huguenot origin take advantage of it.
Schleswig plebiscites, 1920
In the aftermath of the Second Schleswig War of 1864, the previously Danish-ruled territory of Schleswig became part of Imperial Germany. A significant number of inhabitants, known as "optants", chose to retain their Danish citizenship and refused to take up a German one. Consequently, they were expelled from the area by Prussian authorities. Half a century later, following the German defeat in the First World War, a plebiscite was held in 1920 to determine the future of the area. The Danish government asked the Allied Powers 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:
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.Boling, Gail J. Palestinian Refugees and the Right of Return: An International Law Analysis, BADIL - Information & Discussion Brief Issue No. 8, January 2001
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):
Fourth Geneva Convention, article 49:
Convention on the Elimination of All Forms of Racial Discrimination, article 5d(ii):
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. 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 disagreementBracka, Jeremie Maurice. "Past the Point of no Return? The Palestinian Right of Return in International Human Rights Law", Melbourne Journal of International Law, Melbourne, 2005 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:
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.
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:
Hurst Hannum has made a similar argument:
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".Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, p.220, 1993 Bracka has argued similarly:
Eric Rosand, legal advisor to the US State Department, used the same argument:
Rosand discusses the views of scholars who do not consider the right of return to be applicable under mass displacement but concludes:
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.
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:
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.
Right of return in case law Few cases have dealt with the right of return principle. In 1996, the European Court of Human Rights (ECHR) ruled in a landmark case known as Loizidou v Turkey. Mrs Titina Loizidou was a 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.Enrico Milano, Unlawful territorial situations in international law, p.143
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:
Non-state groups claiming a right of return
Armenians from Nagorno-Karabakh (Artsakh)