Palestine refugees and protection in international law: A speech by Guy S. Goodwin-Gill

A word about citizenship and belonging

As a result of the Arab-Israeli conflict which began in 1948, Palestinian refugees were not only barred from returning to their homes but were also effectively and retroactively deprived of their citizenship. There is some authority in international law for the continuance of certain internal laws upon the cession or abandonment of territory, but Israel had no nationality legislation until 1952. International law is not indifferent to those claimed or disclaimed, but the amount of positive guidance is limited, and much depends upon the context. 

There is thus no obligation in international law to naturalise a resident non-citizen, even though such non-citizen may over time and for certain international law purposes acquire the effective nationality of the State of residence. 

In early decisions, Israeli courts held that with the termination of the Palestine mandate, former Palestine citizens had lost their citizenship without acquiring any other. The Nationality Law of 1952 confirmed the repeal of the Palestine Citizenship Orders 1925-42, retroactively to the day of the establishment of the State of Israel. Former Palestinian citizens of Arab origin might be incorporated in the body of Israeli citizens, provided they met certain strict requirements, but the majority of those displaced by the conflict in 1948 were effectively denied Israeli citizenship. If international law raised a presumption of entitlement to local citizenship for residents at the moment of establishment of the State, subsequent developments have made any such claims redundant. 

The nationality status of Palestinians may have become uncertain from a municipal law perspective, but from that of international law, their ‘link’ to the territory remained. Palestinian refugees were admitted to neighbouring countries on what was expected to be a temporary basis; local citizenship, for the most part, was not available, other than in Jordan. In these circumstances, many Palestinians, not being recognized as a citizen or national of any State, were clearly stateless. 

Today, the formal legal situation remains problematic, notwithstanding the recognition of Palestine by the General Assembly and many States, and notwithstanding the United Nations recognition of the Palestine Liberation Organization as the legitimate representative of the Palestinian people. 

The UNHCR Statute and the 1951 Convention 

As I have already mentioned, Palestine refugees were formally placed outside the protection regime established by the UNHCR Statute and by the 1951 Convention relating to the Status of Refugees. 

UNHCR’s competence under paragraph 6 of its Statute is thus limited by paragraph 7(1), which provides that such competence shall not extend to a person, ‘who continues to receive from other organs or agencies of the United Nations protection or assistance’. 

At the 1951 Conference, it was likewise decided to disqualify Palestinians from the application of the Convention, as persons who are ‘at present receiving from organs of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance’. 

The Third Committee drafted both the UNHCR Statute and a refugee definition for the 1951 Conference, but for reasons which are not clear (but which may have been dictated by time constraints), the draft Convention refugee definition was not amended to bring it into line with the UNHCR Statute before being sent on to the Conference of Plenipotentiaries. In Geneva, however, the Palestine refugee issue was raised almost at once, when the Egyptian delegate remarked that his Government, 

‘considered that so long as the problem of the Palestine refugees continued to be a United Nations responsibility, the Convention should not be applicable to them. Once United Nations assistance ceased, the Palestine refugees should automatically enjoy the benefits of the Convention. The Egyptian Government had no doubt at all that such refugees came under the terms of article 1.’ 

He therefore proposed an amendment, the aim being ‘to grant to all refugees the status for which the Convention provided’. The goal, he said, ‘was to make sure that Arab refugees from Palestine who were still refugees when the organs or agencies of the United Nations at present providing them with protection or assistance ceased to function, would automatically come within the scope of the Convention’. The representative of Iraq added ‘that the amendment represented an agreed proposal on the part of all the Arab States … It was obvious that, if the Egyptian amendment was rejected, the refugees it was designed to protect might eventually find themselves deprived of any status whatsoever’. 

The travaux préparatoires of paragraph 7(c) of the UNHCR Statute and article 1D of the 1951 Convention confirm the agreement of participating States that Palestine refugees were in need of international protection, and that there was no intention to exclude them from the regime of international protection. What was important was continuity of protection; the non-applicability of the 1951 Convention was intended to be temporary and contingent, postponing or deferring the incorporation of Palestine refugees until certain preconditions were satisfied. 

States expected that the Palestine refugee problem would be resolved on the basis of the principles laid down in UNGA resolution 194 (III), particularly through repatriation and compensation in accordance with paragraph 11, and that protection under the 1951 Convention would ultimately be unnecessary. However, they also sought to provide for a situation of no settlement, and to avoid a lacuna in the provision of international protection.

The refugee character of the protected constituency was never in dispute; in the absence of settlement in accordance with relevant General Assembly resolutions, no new determination 5 of eligibility for Convention protection or finding of a well-founded fear of persecution would be required, and Palestinians would ‘ipso facto/de plein droit’ benefit from the Convention regime. 

On the one hand, article 1D premises disqualification from the Convention regime on the continuing receipt of protection or assistance; on the other hand, it premises entitlement to the benefits of the Convention on the cessation ipso facto of protection or assistance, without the situation of such persons having been resolved, for example, through legal provision for and recognition of an independent State with its own nationality. 

For States party to the 1951 Convention, one question is whether article 1D is limited to those Palestinian refugees who were receiving protection or assistance on 28 July 1951 (the date on which the 1951 Convention was opened for signature), or some other contemporaneous date; or whether it also includes the descendants of such Palestinian refugees and Palestinians displaced by later events; and, if it does so apply, with what legal consequences. 

Palestinian refugees who leave UNRWA’s area of operations, being without protection and no longer in receipt of assistance, would seem to fall by that fact alone within the Convention. 

In practice, however, many States have resisted providing automatic Convention protection, and consider that the key issue is not so much the status of Palestinians as refugees, but whether they are able to return to their (former) State or territory of residence (be it Lebanon, Jordan, the West Bank or Gaza), or are, as stateless persons, claiming to be refugees as against that country. Article 1D, however, is not so much an ‘exclusion’ clause, as a contingent inclusion clause; it recognises the refugee character of Palestinian refugees as a group, but makes their inclusion within the Convention regime contingent upon certain events and ensures that such protection or assistance will continue automatically, although in what circumstances is not entirely clear. 

Protection under the 1951 Convention

It is against the historical background to the UN’s institutional arrangements, programmes, and policies that the various provisions touching on Palestinian refugees in the UNHCR Statute, the 1951 Convention (and also the 1954 Convention relating to the Status of Stateless Persons) have to be understood, each being drafted at a time when the Palestine refugee problem was high on the international agenda and an early solution was still expected. The primary consideration was the desire of Arab States, concurred in by other States, to maintain the special status of Palestinian refugees for whom the UN was seen to bear a particular responsibility. A secondary consideration was to provide a protection safety net for such refugees, should protection or assistance otherwise cease; it was essential that the continuity of protection be ensured. 

An immediate question is, who is a ‘Palestine refugee’ within the scope of article 1D? First, there is no definition of Palestine refugee in the UNHCR Statute, the 1951 Convention, or in the constituent instruments of UNRWA. Second, there is nevertheless some relevant practice that UNRWA (and UNHCR) have employed over the years. UNRWA’s area of operations is limited geographically as previously mentioned, and within this area UNRWA has applied General Assembly resolutions adopted in 1949 and 1967, among others, in determining the scope of its assistance programmes, plus a criterion of need, which has tightened over time in light of funding shortfalls. For its part, and wherever called for when Palestine refugees have sought its protection outside UNRWA’s operational area, UNHCR has also applied the cessation and exclusion provisions of the 1951 Convention. 

Moreover, the question of entitlement to Convention protection has been litigated over the years, as Palestine refugees have sought refuge and protection outside the area. The five cases are illustrative, and I apologise for the legally ‘heavy’ content of what I will say next. 

First, UNHCR’s 2017 Guidelines confirm that ‘Palestine refugees’ include: (1) those within the terms of General Assembly resolution 194 (III), whose normal place of residence was Palestine, who were displaced as a result of the 1948 conflict, and who lost both home and livelihood; (2) those within the terms of General Assembly resolution 2252 (ES-V) and subsequent resolutions, who were displaced as a result of the 1967 conflict and are unable to return; and (3) their descendants. 

In El-Ali, the court held that the first paragraph of article 1D applied only to those Palestinians who were receiving protection or assistance on 28 July 1951 (the date on which the Convention was opened for signature), and that the cessation of protection or assistance could only mean the end of UNRWA itself. 

I acted for UNHCR as ‘Intervener’ in the case, and argued that the object and purpose of the 1951 Convention required that the phrase ‘at present receiving’ be interpreted in historical context. This meant that due regard should be paid to the fact that States in 1951 did not anticipate a protracted refugee situation, but also with a view to adopting the interpretation most likely to result in effective protection for the one group of refugees which the United 7 Nations and its Member States have consistently recognised over time as their special responsibility. 

The words ‘persons at present receiving’ should therefore be understood to mean ‘persons who were and/or are now receiving’ protection or assistance. Although not accepted by the Court of Appeal in El-Ali, this approach appears now to have a solid foundation in Europe and in other jurisdictions, as shown in the cases of Bolbol, El Kott, Alheto and AD (Palestine); in the felicitous phrasing adopted by the New Zealand Immigration and Protection Tribunal, considered alongside article 1A(2), article 1D is simply ‘another pathway’ to being a refugee. 

Subsequent developments

The original intent – continuity of protection – was to ease the way to Convention benefits by avoiding the necessity for certain Palestinians to overcome the status determination hurdle of article 1A(2)—after all, they were already accepted as refugees. However, as Palestinians continued to seek solutions outside the region or were barred from re-entry, other interpretative obstacles began to emerge, including the meaning of ‘shall not apply’, ‘at present receiving’, ‘has ceased for any reason’, ‘definitively settled’, and ‘ipso facto... entitled’. 

The European Union has incorporated article 1D almost verbatim into article 12 of both the 2004 and the recast 2011 versions of the Qualification Directive. The net result of a succession of judgments is a considerable reading down of the text, but if the claimant meets the CJEU’s criteria, then he or she will be entitled, ipso facto, to the benefits of the Directive/Convention. It is a moot point, however, which decision-making framework is better oriented to that continuity of protection that the drafters were aiming for; and to what extent this evolutive interpretation is consistent with the terms of the Convention. 

In Bolbol, the first reference on article 12 of the Qualification Directive put several questions to the Court. First, it was asked whether ‘receiving protection or assistance’ required that the refugee actually take the benefit, or needed only to be entitled to receive it; secondly, whether the cessation of protection or assistance for any reason included the consequences of residing outside UNRWA’s area of operations, or the end of the agency itself, or the possibility of protection or assistance, or any other ‘objective obstacle’. 

The Court acknowledged the importance of ensuring continuity of protection to Palestinians, and rejected the conclusion as to the applicable date adopted by the Court of 8 Appeal in the El Ali case. However, the Court limited the coverage of article 12/article 1D, and therefore the ipso facto applicability of the Directive/Convention, to those who had actually availed themselves of UNRWA protection or assistance. Palestinians who were merely eligible for UNRWA services did not qualify, although the fact of registration was accepted as sufficient evidence of receiving protection or assistance. 

A further reference on these questions followed in the El Kott case, when the Court was also asked first to clarify whether, in EU terms, the ‘benefit of the Directive’ meant recognition as a refugee or, for example, the grant of refugee status or subsidiary protection at the choice of the Member State. Second, the Court was asked to clarify the meaning of ‘cessation of protection or assistance’. 

On the first point, the Court was adamant: refugee status was called for – article 12 was based on the Convention and ipso facto meant ‘as of right’. On the second point, Advocate General Sharpston was no less clear in emphasising, as she had done also in Bolbol, that the reason why the refugee was no longer receiving protection or assistance was crucial, requiring a distinction between those ‘who remove themselves voluntarily from the UNRWA zone and thereby from UNRWA’s assistance and those who find that external events beyond their control have meant that UNRWA ceases to continue to provide assistance to them’. 

The Court agreed, rejecting the argument that simple residence outside UNRWA’s area of operations was enough, or that UNRWA itself would have to come to an end. Instead, and in-between, the Court held that protection or assistance to an ‘eligible’ Palestinian refugee would need to have ceased for a reason beyond the control and independently of the volition of the individual concerned, for example, when he or she was forced to leave UNRWA’s area of operations because their personal safety was at risk. 

The Court went further, however, underlining that Palestine refugees did not have an ‘unconditional right to refugee status’. Rather, they needed still to submit an application for refugee status, which the national authorities should consider with regard, not to whether the applicant had a well-founded fear of persecution, but to whether (a) he or she had actually sought assistance from UNRWA; (b) that assistance had ceased for reasons beyond the applicant’s control or volition; and (c) the applicant was not otherwise to be refused protection, for example, by reference to articles 1C, 1E, or 1F of the Convention. 

A further reference concerned a Palestinian who had been refused asylum in Bulgaria on the ground that she had failed to establish a well-founded fear of persecution within the meaning of article 2 of the Qualification Directive/article 1A(2) of the Convention. The 9 CJEU confirmed that this was not necessary, and that Member States are obliged to transpose article 12/article 1D of the Qualification Directive into national law, both sentences in article 12(1)(a) having direct effect and constituting a lex specialis. 

Unless otherwise disqualified, a Palestinian registered with UNRWA will be entitled ipso facto to the benefit of the Convention without having to demonstrate a well-founded fear if, following an assessment of all the relevant evidence, it is found that their personal safety is at serious risk, that UNRWA is unable to guarantee living conditions compatible with its mission, and that the refugee has been compelled to leave its area of operation owing to circumstances beyond their control. However, the Court also considered whether such a refugee might be sufficiently protected in a third State, other than that in which they were registered with UNRWA, by analogous application of article 35 (first country of asylum) or article 38 (safe third country) of the 2013 Asylum Procedures Directive (recast). 

The Court was prepared to accept that UNRWA might, ‘be able to provide a person registered with it with living conditions in Jordan that meet the requirements of its mission after that person has fled the Gaza Strip’. If the requirements of article 35 and/or article 38 of the EU’s Asylum Procedures Directive were satisfied, then an application for protection in the EU could be refused. 

However, it must still be shown that the refugee will be readmitted to the country in question; that he or she benefits there from effective protection or assistance from UNRWA; that UNRWA is recognised or regulated by the third State; and that the competent Member State authorities where protection is sought are certain that the third State supports the principle of non-refoulement and that the refugee will be able to stay ‘in safety under dignified living conditions for as long as necessary in view of the risks’ in the area in which the refugee was formerly resident. 

Looking ahead 

Amidst this often-confusing jurisprudence, a number of legal questions still remain outstanding (not to mention the big political ones...). Absent a clear definition of Palestine refugee, there is a clear tension between ‘actually availing of assistance’ and being ‘eligible’ for assistance, and a potential protection gap is opening up between Palestinians in search of protection. There are also many reasons why Palestinian refugees may be unable or unwilling to return to the area of UNRWA operations where they were formerly resident; in a frequently volatile situation, they may be exposed to threats to physical safety or freedom, or other serious protection-related problems. In addition, they may have reasons other than personal security for leaving UNRWA’s area of operations, but, because of decisions taken by the occupying power in particular, can find themselves unable to return to Gaza or the West Bank or to renew their travel documents; they will need international protection, if they are to avoid immigration detention, for example, or a precarious existence in limbo. Recently, Palestinians displaced to Lebanon as a consequence of the war in Syria have been unable to establish eligibility for resettlement, owing to the ‘competing’ mandates of UNRWA and UNHCR. 

The developing interpretation of article 1D is generally consistent with the ordinary meaning of the words and with the intentions of the drafters, as disclosed in the travaux préparatoires. Its construction tends to conform to the object and purpose of the Convention and with the complementary measures undertaken to ensure the protection of Palestinian refugees, pending a definitive settlement of their situation. Such a purposive approach is both possible and justified by the goal of protection and assistance pending a lasting solution. 

In many respects, the legal situation of Palestinians with respect to the 1951 Convention continues to become more complex, first, as a result of the 1993 Declaration of Principles on Interim Self-Government Arrangements in the West Bank and Gaza; secondly, because of the withdrawal from Gaza and the continuing uncertainty regarding the international standing of that territory, the West Bank, and the inhabitants; and thirdly, by reason of the evident lack of progress towards statehood and an effective Palestinian nationality. Notwithstanding the changed and changing political situation, the General Assembly has continued to reaffirm UNRWA’s competence with respect to those who left Palestine as a result of the 1948 conflict, their dependants and descendants, as well as those who fled by reason of later conflicts. UNHCR also continues to have protection responsibilities for Palestinians outside UNRWA’s operational area, and article 1D and the extent of State obligations under the 1951 Convention will likely raise further problems of interpretation and application. 

Winding up 

Palestinian refugees were excluded from the competence of UNHCR, and later also from the 1951 Convention. Political reasons were partly responsible, as was the necessity to delimit formally the mandates of UNCCP, UNRWA and UNHCR. At the time, both protection and assistance for Palestinian refugees fell within institutional arrangements that included UNCCP and UNRWA. Solutions, repatriation, or compensation were also expected to eventuate; the General Assembly, for example, intended UNCCP to take on, ‘in so far as it considers necessary in existing circumstances, the functions given to the United Nations 11 Mediator on Palestine by resolution 186(S-2).’ Those functions had in turn been defined to include the use of: 

‘[g]ood offices with the local and community authorities in Palestine to 

(i)Arrange for the operation of common services necessary to the safety and well-being of the population of Palestine… 

(ii)(iii) Promote a peaceful adjustment of the future situation of Palestine.’

UNCCP was instructed to ‘facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation’, and by resolution 394(V) of 14 December 1950, to ‘continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees’. But already the effectiveness of UNCCP, contingent upon the cooperation and political will of the States concerned, was in doubt; the summary of debate in the General Assembly is brief but eloquent testimony to the fundamental differences between the parties, upon whom depended a solution to the refugee problem. To one side, the objective of a peaceful settlement required direct negotiations; to the other, direct negotiations were contingent on full recognition of the rights of the Arabs to Palestine and to their own homes. 

With the passing of the years, the General Assembly’s repeated requests to the Conciliation Commission to continue its efforts became increasingly formal, almost ritualistic. The prospects for repatriation, resettlement, rehabilitation, and compensation waned, UNCCP became irrelevant to the protection needs of Palestinian refugees, and UN institutional mechanisms were unable to bridge the gap. UNRWA’s role continued as the provider of international assistance to Palestinian refugees, save that with the beginnings of the intifada movement in 1989, it came in practice also to exercise a significant protection role on behalf of Palestinians. 

In 1951, the Palestinian refugee question was seen as a temporary phenomenon, but over time its refugee dimensions have been overtaken by the aspirations of the Palestinian people to self-determination and statehood. The remoteness of a political solution has led some to query the value of UNRWA and to argue that, insofar as it allegedly perpetuates the ‘refugee’ question, it is part of the problem. Some commentators have also suggested that the refugee aspects would be better handled by UNHCR and have wondered, with little regard to history, why UNRWA’s ‘refugee definition’ should not be aligned with UNHCR’s. 

In this way, it is thought, the numbers of refugees would be reduced, supposedly because UNHCR (and the 1951 Convention) do not recognise the transmissibility of status to successive generations. UNHCR is also said to be readier and more able to promote solutions, such as resettlement and local integration. At base, this is a political issue, not a legal, definitional one, and critical dimensions that distinguish the Palestinian question tend to be ignored, such as the fact that Palestinian refugees were recognised as such before debate even began on the UNHCR Statute or the 1951 Convention; that the contours of the Palestinian State remain contested; and that the interests of countries presently hosting Palestinian refugees will need to be brought into alignment. 

From another perspective, it might be argued that refugee status was never meant to be permanent, or to be handed down to the Nth generation. The cessation clauses and the duty under the 1951 Convention to facilitate the naturalisation of refugees provide some support for the general idea, and commentators may be tempted to apply Convention concepts backwards, to political issues predating the treaty, and for which it was not designed. The practice of States is also very much to the contrary. There is no consensus on a finite notion of ‘temporary’, let alone on the modalities by which a durable solution ‘shall’ be brought about; hence, the number of protracted refugee situations. States of refuge do not tend to see themselves as unilaterally responsible for solving problems that are international by definition, and Palestinian and other refugees must commonly turn to the Convention if they are to find a minimum of protection. 

For Palestinians, and for many actors in the region and beyond, whatever settlement is proposed and adopted will need to meet the requirements of successive General Assembly resolutions; that remains a distant prospect, and despite funding difficulties, UNRWA will likely remain an important actor in providing protection and assistance.