Convention Relating to the Status of Refugees (28 July 1951)
International refugee law and international human rights law mutually reinforce each other on the right to return. International refugee law affirms the right to return through the emphasis it places on voluntary repatriation as the preferred durable solution to refugee situations.
The basis for the right to return under international refugee law can be found in the 1951 Convention Relating to the Status of Refugees (hereafter referred to as the Refugee Convention) and its 1967 Protocol. Support is also found in various regional refugee instruments, UN Resolutions, and the Conclusions of UNHCR's Executive Committee (ExCom).
Article 1.C of the Refugee Convention stipulates that international protection for refugees ceases only under the following conditions:
These clauses, known as the "cessation clauses", provide for a cessation of international protection and the voluntary repatriation of refugees to their own country where they can once again avail themselves of the protection of that country.
The concept of "country" in the cessation clauses is important and correlates closely with the concept of "own country" in Article 12 (4) of the ICCPR, as articulated in the General Comment on this article by the Human Rights Committee. First, it is significant that the Refugee Convention uses the term "country" rather than state. The notion "country" is broader and more inclusive than that of state of nationality; it is not restricted to de jure nationality and takes into account the ties and connections that an individual may have with a certain territory. (2) Second, the Refugee Convention explicitly recognizes that return is not restricted to a refugee's country of nationality, but also to the country that the refugee "left or outside which he remained." By recognizing the term "country" to mean actual land or territory with which an individual has special ties, the Refugee Convention specifically makes provision for refugees to return to the territory that they left, regardless of whether they possess citizenship of that territory or it is located in a different political entity from the one they left. Finally, the Refugee Convention recognizes the right of stateless persons to return to their country of "former habitual residence", again an affirmation that formal nationality is not necessarily a criterion to enable refugees to return.
The right of return, as defined in human rights and refugee law, is determined by laws dealing with freedom of movement. While it encompasses the right to enter, to settle and to leave, it does not include a clear state obligation to bestow nationality. It is possible to hold a different nationality from that of the country to which the person is returning and settling as a resident, although the granting of citizenship to returnees should be encouraged.
- once a refugee has "re-availed himself of the protection of the country of his nationality",
- or "having lost his nationality, he has voluntarily re-acquired it",
- or he has "voluntarily re-established himself in the country which he left or outside which he remained",
- or "being a person who has no nationality he is, because of the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence"(1) (Emphasis added)
(1) 1951 Refugee Convention, Article 1.C
(2)See General Comments of the Human Rights Committee on article 12.4
- The Universal Declaration of Human Rights (10 December 1948)
The right to return has a solid foundation in international law. Article 13(2) of the Universal Declaration of Human Rights (UDHR) states,
"Everyone has the right to leave any country, including his own, and to return to his country". More..
- The International Covenant on Civil and Political Rights
The right to return is most clearly enshrined in the 1966 International Covenant on Civil and Political Rights (ICCPR) under its provisions on the right to freedom of movement (Article 12). More..
- Convention Relating to the Status of Refugees (28 July 1951)
International refugee law and international human rights law mutually reinforce each other on the right to return.
- United Nations General Assembly Resolution 194 (III) of 11 December 1948
11. 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,.. More..
- The Human Rights Committee General Comment on Article 12 of the International Covenant on civil and Political Rights (November 1999)
In November 1999 the HRC, the authoritative U.N. body for interpreting the ICCPR, produced a thorough and comprehensive commentary on Article 12. More..
- Treatment and Rights in Arab Host States
- Rights Under Israeli Occupation and the Palestinian Authority