do refugees have a moral 'right of return

8/11/2019 Do Refugees Have a Moral 'Right of Return'

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Do Refugees Have a

Moral Right of Return?

A dissertation submitted by Gavin Ceallachinto the Department

of Government, the London School of Economics and Political

Science, in part completion of the requirements for the MSc in Political

Theory

September, 2009

Word Count:

10,097


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Abstract

In this dissertation I provide a detailed answer to the question of whether or

not refugees have a moral Right of Return. Although it is commonly claimed that

refugees have a political and legal Right of Return, the moral foundations which

underpin this right have rarely been examined in the realm of political philosophy.

I argue primarily from the interest based approach to rights, as defended by

Joseph Raz, as I believe this is the most coherent approach to take when attempting to

define the moral nature of a right. The dissertation is divided into two chapters. The

first chapter deals with the conceptual issues surrounding the Right of Return and

provides a framework that allows us to understand who may hold such a right, while

the second utilises this framework to examine a number of possible justification

which may be given for the Right of Return. The examination of the various

justifications available leads us to select the concept of ethnogeographic communities

as the basis of a justification of the Right of Return due to its unique satisfaction of

the criteria outlined in the first chapter.

I then conclude the dissertation by providing a comprehensive definition of the

moral Right of Return in light of the preceding discussions. Having shown that

refugees do indeed possess a Right of Return when the stipulations of the definition

are satisfied, I then offer a brief and tentative analysis of the practical implications of

this conclusion.


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Table of Contents

Introduction 4

I. The Possibility of a Right of Return 8

II. Justifying the Right of Return 23

Conclusion 35

Bibliography 38


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Palestinians as registered refugees.4The desire of these Palestinian refugees to return

to their homeland plays a crucial role in any effort to solve the Arab-Israeli conflict

and the failure to address this issue, its marginalization as a final status concern, in

the various peace processes since 1967 has contributed greatly to their ultimate

failure.5

So what precisely is the issue here? The Palestinian refugees claim that they

have a legal Right of Return, and crucially this right applies not only to the refugees

who fled in 1948 or 1967 but their descendants also. They base this claim on Article

11.3 of the Universal Declaration of Human Rights, United Nations General

Assembly Resolution 194 and the 4thGeneva Convention.6The Israeli side typically

claims either that no such legal right exists or, more interestingly for the topic of this

thesis, that the acknowledgement of such a right would deny the Jewish people their

right to self-determination.7The wholesale rejection of the Geneva Initiative in 2004

by the Palestinian people demonstrates the centrality of the Right of Return to the

Palestinians as a prerequisite to a meaningful peace, while its rejection by Israelis

4United Nations Relief and Works Agency for Palestine Refugees in the Near East, Who is a

Palestinian Refugee?, The United Nations Website, http://www.un.org/unrwa/refugees/whois.html.5Farsoun & Aruri (2006), 301-303.

6Wadie Said, The Palestinian Refugees Right of Return Under International Law, The Jerusalem

Fund, http://www.thejerusalemfund.org/ht/display/ContentDetails/i/2152.7Some Israelis have claimed that the Palestinian exodus in 1948 was caused by a series of Arab

broadcasts urging the Palestinians to clear the field ahead of the advancing Arab armies and deny that

Israeli forces took part in any massacres designed to scare the Palestinians in to flight. For a

comprehensive debunking of this claim see Norman Finkelstein,Image and Reality of the Israel

Palestine Conflict, Second Edition (London: Verso, 2003), xii-xv & 51-87. For an example of the

Israeli claim that the Palestinians possess no legal Right of Return see Ruth Lapidoth, Do Palestinian

Refugees Have a Right to Return to Israel?, Jewish Virtual Library,

http://www.jewishvirtuallibrary.org/jsource/Peace/refreturn.html. For an example of the argument that

the acknowledgement of the Right of Return would negate the Jewish Peoples right to self-

determination see Ami Isserof, Right of Return of Palestinian Refugees: International Law andHumanitarian Consideration, Zionism and Israel Information Centre, http://www.zionism-

israel.com/issues/return_detail.html.


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demonstrates a similar refusal to change their stance on the issue in principle even if

the Right of Return was to be limited by the Israeli government. 8

In this thesis I hope to leave aside the legal and political issues in question here

and instead examine the question of whether or not refugees possess a Right of

Return from a moral standpoint.

The conclusions I hope to draw from this discussion, although they will be

informed by the Israeli-Palestinian situation, will be applicable to refugees

universally. This would mean any group that can claim to have been driven from their

land, desire to return there and have not established a permanent settlement elsewhere.

Therefore, the question which must be answered is do refugees, irrespective of their

particular histories, have a moral Right of Return that is intergenerational in

character?

The thesis will be divided into two chapters. The first chapter will deal with

conceptual issues, such as whether the Right of Return should be conceived of as an

individual right or a group right and on whom may the obligations which this right

generates fall. The second chapter will examine a number of justifications which may

be given for the Right of Return, namely; the right to private property; self-

determination; and a justification based on the concept of ethnogeographic

communities.

Having concluded the discussion and ascertained whether or not refugees do

possess a Right of Return, I hope to formulate a definition of the moral right which

may clarify some of the issues which have made the Right of Return such a

contentious political topic. I am not so bold as to believe I will be capable of offering

8Fadi Chahine & Rhonda Roumani, 1948 Refugee Issue Still Plagues Peace Effort,Daily Star,

January 29th

, 2004, http://www.globalpolicy.org/component/content/article/189/38368.html.


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a comprehensive solution to the Israeli-Palestinian conflict, but hopefully by

clarifying what is at stake morally with regards to the refugees Right of Return I

may make a small contribution to our understanding of the issue.


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I. The Possibility of a Right of Return

In this chapter I will analyse the main conceptual issues with regards to the

Right of Return before moving on to the justificatory issues in the second chapter.

I will begin by outlining the benefits of the Interest Theory of rights, as opposed

to the choice based theory, as I believe this theory more adequately corresponds to our

intuitive understanding of the notion of rights while also offering the conceptual tools

to adjudicate between competing rights claims. Secondly, I will examine whether the

Right of Return should be seen as an individual right, a group right, or perhaps both.

If it is to be seen as a group right I will then need to discuss the merits of both the

collective and corporate model of group rights. Finally, since I hope to proceed using

an interest based theory of rights it will be necessary to show that a refugee, or group

of refugees, interest in returning to the place they were expelled from is sufficient to

generate a moral obligation or duty on someone else, or some other group, to facilitate

this happening.

The Interest Theory of Rights

Interest based theories of rights seek to ground our duties and obligation to

others in their interests. However, this does not mean that any interest can form the

basis of a right. The persons interest must be of sufficient weight to justify holding

some other person to be under a duty. Joseph Raz, a prominent proponent of the

interest theory, offers the following definition of a right and the capacity for

possessing rights:


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X has a right if and only if X can have rights, and, other things being equal,

an aspect of Xs well-being (his interest) is a sufficient reason for holding some

other person(s) to be under a duty.

An individual is capable of having rights if and only if either his well-being is

of ultimate value or he is an artificial person (e.g. a corporation).9

The alternative to the Interest Theory of rights is the Choice Theory put forward

by H.L.A. Hart. This theory is based on the premise that if there are any moral rights

then at least one natural right must be acknowledged: the equal right of all men to be

free. For Hart moral and legal rights are intimately connected as rights essentially

apply to cases where one persons freedom may be limited by anothers. A moral

right then provides one with a justification for limiting the freedom of another simply

because under the circumstances a certain distribution of human freedom will be

maintained if he by his choices is allowed to determine how the other shall act. 10

Hart wishes to break the connection between interests and rights by using the

example of promises and their effects on third party beneficiaries. He describes a

situation where X promises Y that he will look after his elderly mother. In this case,

Hart argues, Xs obligation is to Y and not his mother even though it is her who will

benefit from his actions. This means that it is Y who has a moral right to demand

certain actions of X although he will gain no benefit from them.11The interest theorist

can quite easily refute this claim simply by claiming that Y has an interest in having

9Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 166.

10

H.L.A. Hart, Are There Any Natural Rights? in Theories of Rights, ed. J. Waldron (Oxford:Oxford University Press, 1984), 77-80.11

Hart (1984), 81-82


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his mother looked after. However, it could be questioned whether this is sufficient

enough grounds to generate an obligation amounting to a right.

Raz overcomes this problem by highlighting the fact that two sets of rights are

involved: those of the promisor X and the promisee Y. X has an interest in being able

to make promises in order to be able to form normative bonds with others. For this to

happen it is necessary that he be able to place himself under an obligation to fulfil his

promises. In this case X is both the possessor of the right and the duty bearer. His own

interest in being able to promise is sufficient grounds for holding him under a duty to

promise. The rights of Y, the promisee, stem from his having an interest that promises

made to him will be kept. This holds true even if he loses interest in the content of a

specific promise or if some promises work against his interest. The promisee

invariably has a pro tanto interest that promises given to him be kept. This is rooted

in the same interest in being able to voluntarily form normative bonds with others as

the right of the promisor. This can be thought of as a general interest of all people. 12

The Interest Theory overcomes the question raised by promises and their effects

on third party beneficiaries, and also has other advantages over the Choice Theory.

Choice Theory encounters a serious problem when it tries to deal with the issue

of rights for children and animals. Choice Theory is committed to the thesis that the

sole raison dtre of rights is to foster the exercise of autonomous choice. It follows

from this that only beings capable of autonomy are eligible to hold rights. This would

mean that we could never talk about babies rights, the rights of mentally

incapacitated adults, animal rights and perhaps even group rights as these are not

typically considered to possess the capacity for autonomous choice. This is not to say,

12Raz (1986), 173-176


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however, that there are no moral duties governing the treatment of babies, etc., but

simply that these duties cannot be seen as arising from any rights held by babies,

etc.13

This outcome seems extremely counter intuitive as when we think of rights we

often envisage them as a means of protecting the weaker members of our society, e.g.

children and the mentally ill, or those who have no voice in our society such as

animals. To deny that these groups can possess rights seems to strip the concept of the

very moral force which makes it so compelling.14

The Interest Theory leads to no such counter intuitive conclusions. It is perfectly

capable of assigning rights to babies and animals etc., as it can acknowledge that they

too have interests which are of sufficient reason for holding others to be under a duty.

Jeremy Waldron has identified one potential problem with the Interest Theory

which is of particular importance to this thesis. The Interest Theory can very easily

lead to situations in which rights will be in conflict with each other. It is a fact of

human nature that conflicts of interest will exist between people and there is nothing

in the Interest Theory which prevents these conflicts of interest from generating

conflicting rights and duties. The fear here is that in order to decide which of the

conflicting rights will take precedence it will be necessary to resort to the type of

utilitarian calculus which moral rights are specifically thought to be exempted from. 15

However, Waldron himself offers the solution to this potential issue. If some

interest of an individual is of sufficient importance to generate a duty, then given that

13William A. Edmundson,An Introduction to Rights (Cambridge: Cambridge University Press, 2004),

128.14

H.L.A. Hart is aware of this issue yet is adamant that it is wrong to extend the notion of a right to

proper treatment to animals and babies. See Hart (1984), 82.15Jeremy Waldron,Liberal Rights: Collected Papers 1981-1991 (Cambridge: Cambridge University

Press, 1993), 203-211.


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importance, it is more than likely that it will in fact justify multiple duties. Therefore,

when two rights are in conflict it is not necessarily the case that one right must

triumph over the other. What is more likely is that certain duties implied by both

rights will need to be sacrificed while the rights themselves remain intact. This will

still lead to a trade-off in duties rather than rights, and even though sometimes we

may not be able to discharge what appears to be our primary duty under a certain

right, we will still be able to fulfil other duties to the best of our abilities and work

towards a situation in which all duties can be fulfilled. The moral importance of the

interest which the right protects is never overridden; it continues to justify holding us

to be under a duty (or duties). When attempting to decide which duties to fulfil

Waldron suggests that we use a combination of both a maximizing principle, seeking

to fulfil as many duties as are compatible, and a qualitative ordering (akin to a lexical

priority) based on the internal relationship between groups of moral considerations.

The example Waldron uses to demonstrate this qualitative ordering is a Nazi who

attempts to use his right to free speech in order to undermine the right to free speech

of others. Since the Nazis speeches are in fact calculated to bring an end to the form

of life in relation to which the idea of free speech is conceived the duties owed to the

others by their right to free speech must take precedence. In Waldrons words, we

express our sense of a particular priority in our conception of the interest itself. By

combining the maximizing and qualitative ordering we can still decide between

competing duties without resorting to a brute utilitarian calculation. 16

The importance of this aspect of the Interest Theory of rights as far as this thesis

is concerned becomes obvious when we consider the politically charged nature of the

issue of the Right of Return when articulated by the Palestinian refugees. Israelis

16Waldron (1993), 211-224.


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often claim that if a Palestinian Right of Return was to be recognised this would

lead to the denial of their right to self-determination. However, we can see from the

previous discussion that this is not necessarily the case. Waldron gives us the tools to

find an accommodation between the duties demanded by both rights thus avoiding the

winner takes all type situation that is commonly envisaged. Reaching such

compromises in the moral realm may well be the first step to finding a political

solution.

In summation, I have shown that the Choice Theory fails in its attempts to

remove the connection between interests and rights while at the same time generating

extremely counterintuitive outcomes which the Interest Theory is free of. This alone

may be sufficient reason to choose to proceed with the Interest Theory as the basis of

our discussion of rights in what follows. However, the Interest Theory also has the

added advantage of supplying us with the necessary conceptual tools to deal with

competing rights claims in what is a contentious topic. Although this thesis will not in

itself seek to offer a definitive solution to this issue, the fact that such tools are

available provides added justification for making use of the Interest Theory of rights.

Two major conceptual issues pertaining to the Right of Return now remain to

be addressed: who can potentially be the rights-holder, individuals or a group, and

who may potentially be the duty-bearer given the specific features of the Right of

Return, particularly its historic claims.


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Individual or Group Right?

Article 13.2 of The Universal Declaration of Human Rights states that:

Everyone has the right to leave any country, including his own, and to return

to his country.17

This seems to suggest that the Right of Return should be seen as an individual

right. Conceptually speaking there is very little that is problematic with this. Using the

Interest Theory each refugee, as an individual, is eligible to be a rights-holder.

However, a problem is raised when we consider whether or not an individuals

interest in returning to his country could be of sufficient reason for holding some

other person(s) to be under a duty. A typical claim which a refugee might make is that

they intensely desire to be reunited with family and friends they may have left behind,

that they have a deep and valuable emotional connection with the countryside that

they grew up in or any other number of things which may be able to demonstrate that

their interest in returning is of sufficient reason to hold the state, or citizens of the

state, they left to be under a duty to facilitate their return. In fact it is rare that

individual refugees are intentionally denied this right, it is more commonly the case

that individual refugees do not actively seek to return to their country as they have

become settled in their current home or due to the fact that circumstances which

forced them to leave in the first place still exist.18

17The United Nations, The Universal Declaration of Human Rights, The United Nations Website,

http://www.un.org/en/documents/udhr/.18

In situations where a refugee desires to return home but cannot because the circumstances that forcedthem to leave still exist, he could claim that we are all under an obligation to help rectify the situation

in his home country in order to facilitate his return. However, it seems highly unlikely to me that the


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Although the reasons given above may justify an individual refugees right of

return, the Right of Return with which we are dealing in this thesis claims to be

intergenerational, i.e., it must also apply to the descendants of the refugee(s) although

they themselves will most likely never have set foot in the refugees home country.

As such, the familial and emotional ties which generate the sufficiently strong interest

in the case of the initial refugee(s) will be lacking in subsequent generations and they

will not possess any individual right of return. In fact, their emotional ties are likely to

be to the country in which they currently reside. In order for the Right of Return to

be seen as an individual right we must find a means to connect the moral importance

of the initial refugees interests with that of his successors. One potential way of doing

this would be to view the Right of Return as a derivative right of the right to private

property and I will consider this claim in the following chapter.

If it turns out that we will be unable to justify the Right of Return as an

individual right, what other options remain? United Nations General Assembly

resolution 194, paragraph 11, of December 1948 clearly states with regards to the

Palestinians 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, and

that compensation should be paid for the property of those choosing not to

return and for loss of or damage to property which, under principles of

interests of one refugee could be considered a sufficient reason to hold anyone under such an

obligation.


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international law or in equity, should be made good by the governments or

authorities responsible.19

This resolution, which is a central component of the claim made on behalf of the

Right of Return, implies that it is in virtue of their belonging to the class of

refugees that the individuals in question should be allowed to return to their homes

as opposed to Article 13.2 which simply asserted that all individuals, irrespective of

any group membership, had a right to return to their country. This seems to suggest

that the Right of Return in question here may actually be better envisaged as a group

right.

A right can only be considered to be a group right if it is held by the group itself

rather than by its members severally i.e., the shared rights of a group of individuals

cannot add up to a group right even if the right relates to a specific characteristic

which defines them as a group. Group rights must be held by a group qua group. 20

There are two possible ways in which groups rights can be conceived. The first, as

outlined by Raz, is as a collective right. A collective right exists when the stipulations

of the definition given earlier are fulfilled, the interests in question are the interests

of individuals as members of a group in a public good and the right is a right to that

public good because it serves their interest as members of the group (and) the

interest of no single member of that group is sufficient by to itself to justify holding

another person to be subject to a duty.21

19The United Nations General Assembly, UN General Assembly Resolution 194, The United Nations

Website,

http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/043/65/IMG/NR004365.pdf?OpenElement.20

Peter Jones, Group Rights and Group Oppression, The Journal of Political Philosophy 7, no. 4(1999): 354.21

Raz (1986), 207-209.


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We saw earlier that an emotional connection to the homeland and familial ties

are capable of justifying an individual right of return of sorts but that this lacks the

intergenerational character required by our Right of Return. Could this be provided

by reconsidering these in light of our definition of a collective right? Unfortunately

not, this will still only exist in sufficient strength among those members of the group

who have experienced the homeland i.e. the initial refugees. It is unclear how this

right would serve the interests of the succeeding generations as members of the group.

Furthermore, the interest in question is already sufficient by itself to generate a right

of return for the initial refugees individually which seems to rule out tout court the

reformulation of this interest as a group right according to the above definition.

Similarly to the case of the individual right discussed above, one possible way

of avoiding this issue may be to regard the Right of Return as a derivative right of

some other collective right which the group may be said to possess i.e. the right to

self-determination. This is a suggestion that I will examine in the next chapter.

The final alternative available to us is to conceive of the Right of Return as a

corporate right. A corporate right is a right held by the group as a single integral

entity rather than as so many individuals who possess a joint claim. In order to be

eligible to possess a corporate right it is necessary that the group possess an identity

and a standing that exists prior to, and is independent of, the interests it has and the

rights it bears. Essentially a corporate right is equivalent to an individual right that is

bestowed upon an artificial person. As such, it must be demonstrated that the group,

like each person, has an independent moral standing.22

22Jones (1999), 361-364.


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The corporate conception possesses a distinct advantage over the individual and

collective conceptions in that it already has the intergenerational character that we

require. The obligations are generated when the group as a single unit has a sufficient

interest to generate a right and all members of the group are protected by this

regardless of their individual interest or lack thereof. This logically means that the

groups rights will be transferred through successive generations of group members.

However, it seems quite farfetched to speak of a group, as an artificial person,

having, as in the case of the individual refugee, an interest in returning to its country

of origin due to its emotional and familial ties. As such, it will be necessary to identify

an alternative interest which may secure its Right of Return e.g. its interest in self-

determination.

Furthermore, it seems unlikely that the group of people classified as refugees

has the independent moral standing required to possess a corporate right. Under the

corporate conception a group must be sufficiently well defined to enable the

identification of the social entity that possess the right and this identity must be

sufficiently strong to withstand claims that it is subsumed by a larger identity or that

it is a mere amalgam of smaller groups, each of whose separate identity discredits the

larger groups claim to be a morally significant entity. 23 The class of people

considered as refugees is made of members of various ethnic, national, linguistic

and religious groups etc., as well as being geographically dispersed across the globe.

It is impossible that such a group of individuals would possess the characteristics

outlined above. As such, any claim to a corporate right will need to be based on a

group identity possessed by specific groups of refugees, i.e. nationality or ethnicity,

rather than their general classification as refugees.

23Jones (1999), 365.


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In order for us to defend the Right of Return as a corporate right it will

therefore be necessary to outline a distinct identity which may be claimed by specific

groups of refugees and an interest which they may claim provides sufficient reason to

hold others to be under a duty. Again, this will be dealt with in the next chapter.

Whose Duties?

Under the Interest Theory, a right only exists where the interest it serves is

sufficient to establish that a person is under a duty and as such all rights are held

against certain people. Some rights, e.g. the right to personal security, are held against

the world at large while others are held against certain people in virtue of a

relationship between them and the right holder e.g. contractual rights or a childs right

to be maintained by their parents. There are also cases where even though many can

satisfy the interests of the right-holder, these interests may be sufficient to establish a

duty only on some people and not others. However, we may still know of the

existence of a right and the reasons for it without knowing precisely who is bound by

the duties based on it or what precisely are these duties.24

Having said this, the intergenerational character of the Right of Return

requires us to elaborate further on who may potentially be duty bound by it. Since the

right in question is first and foremost a right to return to the place from which the

refugees were forced to flee, the obvious candidates are those who expelled them, or

brought about the situation which caused them to flee, and/or those who now occupy

said place. However, due to the intergenerational character we require in many cases

24Raz (1986), 182-184.


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the original culprits of the expulsion may no longer be alive and the people who

occupy the areas once held by the refugees may have acquired it by entirely legitimate

means and may now be as deeply attached to the land as the initial refugees once

were. Rather than making a claim against certain individuals, the refugees must make

their claim against some other intergenerational grouping(s), be this a state and its

citizens, an ethnic group or religious group etc., which can be identified as those that

forced them to flee or those that currently occupy the land.

This may still conflict with our moral intuitions as we generally consider it

wrong to hold people responsible for an action with which they were not involved and

the subsequent generations of whichever group we identify as being the cause of the

refugees expulsion are likely to have played no part at all in it. Jana Thompson has

proposed a theory of historical obligations which provides us with a solution to this

problem. Thompsons theory is rooted in the morality of promising and the unique

moral character of intergenerational groups such as nations, states and religions. She

notes that we generally allow such groups to enter into agreements with other groups

which are binding on future generations. If the current members of the group wish to

be able to make such agreements, and generally they do given the advantages that can

be gained from this, then they must recognise the validity of the agreements which

previous generations of their groups made. Such recognition also involves taking

responsibility for any breaches of these agreements. Furthermore, for

intergenerational groups to be able to make such commitments it is essential that

they respect each other and are worthy of respect. This is demanded by the idea of

good faith implicit in any binding agreement. Since the commitment that we are

imposing on ourselves and our successors is, above all, a commitment to maintaining

relations of respect and as such we are also required to make reparations for past


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acts of disrespect (even when these are not related to any specific agreement), where

this is to maintain or re-establish these relations.25

This demonstrates that the present generation of intergenerational groups may

be held responsible for the groups past actions. Therefore, the successors of those

groups responsible for the plight of the refugees may be held accountable for it.

However, this does not prove that it is necessarily them who will be placed under a

duty should a Right of Return exist, it merely proves that they can legitimately be

considered as potential duty-bearers. As was mentioned at the beginning of this

section, it is not necessary for us to know the exact nature of the duty bearers, nor of

the duties generated by a right, for us to know of the existence of the right.

In this chapter we have seen, using the Interest Theory of rights, that all

individuals possess a right of return yet this is incapable of grounding the Right of

Return, due to its trans generational features, unless it is to be viewed as being

derived from a different right such as the right to private property. Similarly, we

concluded that Right of Return cannot be viewed as a collective right unless it is

derived from another collective right such as the right to self-determination. The

corporate conception of rights, due to its inherently intergenerational nature,

overcomes this difficulty yet leaves us in a position where it is necessary to identify a

group with independent moral standing (which refugees are not) that can act as the

rights-bearer and an interest that the group may have which is a sufficient reason to

hold others to be under a duty.

25Jana Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice (Cambridge:

Polity Press, 2002), 3-37.


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II. Justifying the Right of Return

In this chapter I will examine a number of possible justifications for the Right

of Return. While doing this it is important to bear in mind that the Right of Return

is first and foremost a right of return. As we have conceived it, it is the right of

refugees and their descendants to return to the home they were expelled from or

forced to flee. This can be understood in a strict sense, as a right to return to the actual

physical homestead they, or their forebears, left or it can be interpreted more loosely

as a right to return to the country from which they fled. As we are using the Interest

Theory of rights it will be necessary when considering if an interest is a sufficient

reason to hold a person(s) to be under a duty to be aware of whether it is the loose or

strict interpretation of the Right of Return that we have in mind. Under the strict

interpretation we will be making a claim that the present occupants of the homesteads

must vacate them to facilitate the return of the refugees, whereas under the loose

interpretation we are simply making a claim that the returning refugees must be

accommodated within the country.

The first justification we shall examine is based on the property rights of the

initial refugees and as such it will use the stricter interpretation. By attempting to base

the claim on property rights we are necessarily making the case that the refugees have

a right to return to the actual property from which they were expelled. The second and

third justifications, based on self-determination and ethnogeographic communities

respectively, need only apply the looser interpretation although it may turn out that

they can justify the stricter interpretation.


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Property

In the previous chapter we noted that although each initial refugee possessed a

right of return this lacked the intergenerational character required by the Right of

Return. One possible solution to this problem is to consider the Right of Return to

be a derivative right of the initial refugees right to private property. A derivative right

is a right which is grounded in another right. To show that the derivative right exists

we must demonstrate it by the use of a sound argument, which includes a statement

entailing the existence of the core right from which it is derived, but also provides a

justification for the derivative right. For example, if I buy all the houses on a street it

will be correct to say that I now have a property right in the street. However, my

ownership of any house on the street is not derived from my ownership of the entire

street. In order to justify my ownership of the street I must refer to the individual

transactions which led to my owning of every house on the street. Therefore, my

ownership of the street is derived from my property right in each house. If I had in

fact inherited the street from my grandfather the process would be reversed, my

ownership of the street would justify my property rights in the individual houses, and

my ownership of each house would be derived from my core property right in the

street as a whole.26

In order for the Right of Return to be a derivative of the right to private

property it will be necessary to justify the right to private property and then

demonstrate how this justifies the Right of Return. Unfortunately however, I do not

have the space here to go into much detail on the right to private property itself and

will simply assume the existence of such a right based on the Nozickian framework of

26Raz (1986), 168-170.


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a principle of justice in acquisition and a principle of justice in transfer. According to

Nozick we are entitled to our property so long as we acquire it in accordance with

these two principles. No one is ever entitled to property accept by the voluntary and

repeated application of these two principles27and a property right in X means that we

are free to do whatever we wish with X so long as this is not in breach of the rights of

anyone else.28This approach is squared with the Interest Theory of rights by viewing

our specific entitlements as derived from a general human interest in the institution of

private property which is sufficient to hold others to be under a duty not to interfere

with our property.29

Assuming that all initial refugees were property owners, that they were entitled

to that property and that the property will be bequeathed to their descendants on their

death is there now a case to be made for the Right of Return based on the refugees

(including descendants) continued legitimate claim to their property? The refugees

property claims will most likely be in conflict with the property claims of those who

currently inhabit the land they once did. The current occupiers will most likely believe

that they have acquired their holdings through legitimate means even when this is not

27For more detail on Nozicks theory of property rights and the principles of justice in acquisition and

transfer in particular see Robert Nozick,Anarchy, State and Utopia (New York: Basics Books, 1974),150-152.28

Nozick (1974), 171. I have chosen to use the Nozickian conception of property due to its stringent

nature. If the absolute property rights entailed by this cannot provide a justification for the Right of

Return it seems unlikely that any alternative conception of property rights would be able to do so.

Similarly I have simply assumed the existence of western style individual property rights rather thancommunal property in the belief that a collective or corporate conception of property rights would

make little difference to how the argument proceeds. The issues involved in group property claims

have been discussed by Jana Thompson in relation to Sioux Indian claims, see Thompson (2002), 54-

69. She concludes that any group claim based on an historical entitlement enters a very murky area

where essentially one is trying to defend the position that first comers gain moral authority while there

is usually evidence to show that the group making the claim is not in fact the initial occupier of the area

claimed. Any restoration of the Sioux to their ancestral land would need to be based on the principle of

respect for nations rather than a property claim, and would be tempered by the rights of those areas

current inhabitants. Where the rights and needs of current inhabitants prevent restoration, adequate

compensation and an acknowledgement of guilt on the part of the deposers ought to be sufficient for

reconciliation.29

This argument could take a number of forms based on how private property serves our interest in

living autonomously, living in a democratic society or promotes moral virtues etc., see JeremyWaldron, The Right to Private Property (Oxford: Oxford University Press, 1988), 16-24. For a critique

of Nozicks theory and of stringent entitlement theories more generally see Ibid., 253-283.


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the case. At first glance the Nozickian conception of property would seem to support

the right of the refugees, and their descendants, to return to the property as its

legitimate owners. However, the current occupiers can reinforce their claim with

justifications external to property rights. They may claim, like the initial refugees in

Chapter I, that they have developed an emotional attachment with the land and the

people in the area since they came to be the occupiers, or that the return of the

refugees would deny them their right to self-determination. We do not need to go into

great detail here to realise that what exists is a situation where the legitimate rights of

some individuals may be in conflict with those of others. As we saw in the previous

chapter when rights are in conflict we do not need to decide which right takes

precedence over the other as we can still fulfil a number of duties generated by the

rights even if we cannot fulfil what we consider to be the primary duty associated

with the right. There is no reason to assume that respect for the property rights of the

refugees means that anyone is under a duty to allow them to return to that property.

The duties generated by the refugees property rights could just as easily be

discharged through monetary compensation for the property and any additional costs

associated with settling elsewhere. When the refugees property rights are in conflict

with the rights of the current occupiers, this seems to be the most just and amicable

solution. The strict interpretation of return demanded by the use of property rights as

a justification leads to a position in which the interest of the refugee in returning to his

actual property will be unable to hold the current occupier to be under a duty to

facilitate this return.

This, combined with the potential difficulties that may exist with using the

notion of inheritance to pass the right on to the refugees descendants, 30 makes it

30See Thompson (2002), 110-112.


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extremely difficult to consider the Right of Return to be derived from the right to

private property. The property rights of the refugees only justify a right to

compensation and if we consider the fact that this much is only true when we begin

from the disputable assumption that such property rights exist in the first place it

becomes clear that property rights are unlikely to provide a justification for the Right

of Return.

Self-Determination

In Chapter I we noted that the right to self-determination as a core right could

perhaps provide a justification for a derivative Right of Return under the collective

conception of group rights. Joseph Raz explains that, Yasser Arafat does not have a

right to Palestinian self-determination. Self-determination is a typical collective

good. Arafats interest by itself cannot justify imposing the far reaching duties

related to self-determination on so many other people. Only the interests of the

Palestinian people taken together can impose such duties, therefore it the Palestinian

people as a collective that have a right to self-determination.31

The concept of self-determination as a right is typically deployed as a right to

national32self-determination and as such will only apply to refugees where they can

be seen to constitute a national group. The right to national self-determination can be

justified in terms of protecting the cultural characteristics of a people i.e. their

31Raz (1986), 207-208.

32The concept of a right to national self-determination is, like private property rights, disputable yet for

the sake of brevity we will here need to assume that such a right does exist. For an overview of some of

the difficulties with this concept, particularly the assumptions about national identity and culturalgroups on which it relies, see Chandran Kukathas, Are There Any Cultural Rights?, Political Theory

20, no. 1 (February, 1992): 105-139.


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national identity. It is argued that individuals have a powerful interest in living in an

environment that promotes their wellbeing, of which national identity is a constitutive

element.33This can only be achieved through the existence of a communal domain

which reflects ones national identity and when the national group is recognised by

members and non-members as a source of autonomous political life free from

interference.34Alternatively it can be justified in terms of social justice whereby it is

said that the obligations involved in welfare provisions, the redistribution of wealth,

depends on our fellow feeling for our compatriots. Therefore, political units ordered

along national lines are most likely to achieve social justice. 35Such claims to national

self-determination necessarily imply a territorial claim, and more than likely the piece

of territory claimed will already be claimed by some other nation. 36

To claim that the Right of Return is derived from the right to self-

determination we must show that the justifications for the right to self-determination,

cultural protection or social justice, in the case of the refugees are dependent on their

returning to the territory from which they were expelled and which is more than likely

now claimed by some other nation. There is no reason I can think of to assume that

the a groups right to self-determination will be better served by that right being

exercised on one particular piece of territory rather than another. In fact, the example

of New World settler states such as the U.S. and Australia demonstrate how self-

determination is not dependent on a particular piece of land. The national identities

forged by the settlers in such places also demonstrates how the importance of a

33Cecil Fabre,Justice in a Changing World (Cambridge: Polity Press, 2007), 78.

34Yael Tamer,Liberal Nationalism (Princeton: Princeton University Press, 1993), 72-77.

35

David Miller, On Nationality (Oxford: Oxford University Press, 1995) 82-85.36Allen Buchanan,Justice, Legitimacy and Self-Determination (Oxford: Oxford University Press,

2003), 209 & 235.


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specific piece of territory to a group often comes about as a result of its being

sovereign there.37

If the refugees do in fact constitute a national group then self-determination, and

its supposed benefits, can be achieved by granting them a level of political

sovereignty over the areas their camps currently occupy if they are concentrated. If

they are currently dispersed then an area of unoccupied land could be found to

accommodate them. Morally speaking, an interest in self-determination does not

automatically override the interest of others in a piece of territory. Arguments based

on liberal nationalist claims that a certain piece of land may be seen as the nations

cradle and thusly constitutive of the national identity fail to account for situations

such as the Israel-Palestinian conflict, where both sides claim the same land as their

birth right.38

Once again we face a situation where two sets of rights, interests and duties are

in conflict. The only interests tying the refugees to a given piece of territory is their

emotional attachment to it and as has already been discussed this is not capable of

generating a right in that territory for subsequent generations and as such cannot form

the basis of the Right of Return. The current occupiers of the territory will have a

similar interest in said territory and there is no reason why the interest of the initial

refugees should give their descendants a right to overturn these when they themselves

lack such interest. The first occupancy claims of the refugees, as well as being

almost impossible to prove conclusively historically in most parts of the world due to

continuous migration, do not generate any clear identifiable interest in possessing the

territory which relates specifically to them alone and not to the current occupiers.39

37Avery Kollers,Land, Conflict and Justice: A Political Theory of Territory (Cambridge: Cambridge

University Press, 2009), 37.38Fabre (2007), 82-84

39Fabre (2007), 92-93.


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The refugees interest in national self-determination, although possessing the

intergenerational character we require, lacks the means to tie this right to any specific

piece of territory forcing us again to fall back on claims of emotional attachment.

These have already been demonstrated to be insufficient to ground an

intergenerational right of return. As such, the Right of Return cannot be derived

from the right to self-determination.

Ethnogeographic Communities

In the previous chapter we discussed what would be necessary to show that the

Right of Return exists as a corporate right. We concluded that it would be necessary

to ascertain whether or not a group of refugees could be classed as a well-defined

group with independent moral standing and discover an interest such a group may

have which would be a sufficient reason to hold others to be under a duty to facilitate

their return to the country from which they were expelled or forced to flee. The

concept of ethnogeographic communities offers a potential solution to these problems

that possess both the intergenerational character and the connection to a specific piece

of territory that a successful justification of the Right of Return requires.

Furthermore, the identification of ethnogeographic communities and the claims to

territory they may make are based on empirical facts rather than alleged primordial

identities.40This avoids the numerous problems associated with attempting to identify

distinct cultures or nations that can act as rights-bearers.41

40Kollers (2009), 167.

41See Kukathas (1992).


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Avery Kollers defines an ethnogeographic community as a group of people

with 1) densely and pervasively interacting land-use patterns, and 2) a shared

ontology of land. 1) Is satisfied when the manner in which people use the land means

that the various uses rely on each other for their possibility or viability, and they

structure their whole way of life. 2) Is satisfied when all people accept and endorse a

shared conception of land, or live as if they do. Ethnogeographies are shared due to

their power to recruit people into participation in their daily lives. That is to say that,

although I may intellectually endorse a different ethnogeography, full participation in

the society in which I find myself requires that I live by the material relationships

associated with the dominant ethnogeography.42

Ethnogeographic communities are thus well defined and exist independently of

whether or not their members recognise their existence giving them the

intergenerational character we require so long as conditions 1) and 2) are met. The

independent moral standing of ethnogeographic communities is demonstrated by the

fact that they have an identity and standing that is prior to, and independent of any

interest or rights they may have.

Ethnogeographic communities are intimately connected to specific pieces of

land. The group and the land interact mutually formative way as they are defined by

their land-use as much as that use shapes the very land they live on. This relationship

is the essence of ethnogeographic communities as they rely on no other ascriptive

characteristics. Unlike in liberal nationalist theories, land is a constitutive element of

the groups definition rather than simply and additive feature. 43 Ethnogeographic

communities may make a claim on a piece of territory by demonstrating their

attachment to it through the use of the concept of plenitude, rather than the

42Kollers (2009), 86-87.

43Kollers (2009), 90-93.


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unsatisfactory criterion of emotional attachment which has been discussed previously.

They can either demonstrate empirical plenitude, how they currently fill and make use

of the land, or intentional plenitude, how they plan to fill and use the land once they

acquire it. Plenitude is judged in relation to the group own ethnogeography, thus an

urban group may demonstrate plenitude with skyscrapers and mass transit while

nomadic groups would point to watering holes and grazing grounds. 44Expressions of

plenitude, empirical or intentional, demonstrate how a group may have an interest in a

specific piece of territory which may be a sufficient reason to hold other to be under a

duty to allow them to continue with, or achieve, said plenitude.45

Up to now we have seen how ethnogeographic communities can fulfil the

criteria require for the Right of Return, yet it still remains to be seen whether refuges

can fulfil the criteria required to be considered an ethnogeographic community with

an interest in returning to a specific place. Kollers has examined this issue in detail

with regard to the Palestinian refugees. The claims of the refugees depend largely on

whether or not their ethnogeography has evolved to their new surroundings, for those

refugees who have escaped the camps and made new lives elsewhere this is

undoubtedly the case and as such they would lack a Right of Return. In the camps,

to this day, the Palestinians have managed to maintain their empirical plenitude in

their lost homeland by inscribing the camps with the features of their lost villages thus

helping to maintain their original ethnogeography. With time though this empirical

plenitude is dissipating due to the continual disruptions they face and the dying off of

the older generations who actually remember Palestine. However, their intentional

plenitude has never been focused on the camps themselves. The intentional plenitude

44

Kollers (2009), 112-120.45Of course there can be cases where competing plenitude claims exist. For a comprehensive account

of how such claims should be dealt with see Kollers (2009), 176-189.


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of the Palestinians has always applied to their lost lands and as such they still

maintain their claims to it.46

We can thus conclude that the Palestinians do have an interest in returning to the

country from which they were expelled which is a sufficient reason to hold others to

be under a duty to facilitate that return. The same would apply to any other group of

refugees that fulfilled the criteria. Therefore, the concept of ethnogeographic

communities is capable of forming the basis of a justification of the Right of Return.

In this chapter we have examined three possible justifications for the Right of

Return. Firstly, we attempted to use the right of private property as a basis for the

justification of an individual Right of Return but this proved to be capable merely of

producing a right to compensation when faced with competing rights claims.

Secondly, we examined the possibility that a right to self-determination could work as

a justification, yet this could not demonstrate a sufficient interest in a given piece of

territory to form the basis of the Right of Return. Finally, we examined the concept

of ethnogeographic communities and found that this could be used to fulfil all the

criteria required by a corporate conception of the Right of Return. Following from

that we also showed how it could be used to justify the claims of refugees, the

Palestinians in particular, to have an interest in a specific piece of land which could be

a sufficient reason for holding others to be under a duty to facilitate their return to that

country.

46Kollers (2009), 204-207.


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In light of this the conclusion which follows will attempt to provide a definition

of the moral Right of Return based on the concept of ethnogeographic communities

and examine the practical implications of such a definition.


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Conclusion:

Defining the Right of Return

Every people in the world lives in a place,

except the Palestinians.

The place lives in them.

Danny Rubinstein,The People of Nowhere, the Palestinian Vision of Home, 1991.47

In Chapter I we discussed a number of conceptual issues pertaining to the Right

of Return and outlined a framework which allowed us to discern who could possess

such a right, and on whom the obligations generated by such a right may fall. In

Chapter II we discussed a number of potential justifications for the Right of Return

in light of this framework. This discussion showed that the Right of Return should

be understood as a corporate right which is justified by reference to the properties of

ethnogeographic communities and their interest, exhibited through plenitude, in a

given piece of land. The concept of ethnogeographic communities provided us with

the intergenerational character, connection to a specific territory and an interest which

could be seen as a sufficient reason to hold others to be under an obligation to

facilitate the return of the refugees to their homeland that were required by the

framework outlined in Chapter I.

The refugees moral Right of Return can now be defined as follows:

Refugees, and their descendants, possess as a group, where the group

constitutes a distinct ethnogeographic community, a moral right to return to

47Quoted in Salaman Abu-Sita, The Right of Return: Sacred, Legal and Possible, in Palestinian

Refugees: The Right of Return, ed. Naseer Aruri (London: Pluto Press, 2001), 195.


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their original country when they can demonstrate continued plenitude, either

empirical or intentional, in the land that constitutes that country.

I believe that the above definition adequately fulfils the required criteria outlined

in Chapter I and due to its basis in the concept of ethnogeographic communities has,

when its conditions are met, adequate justificatory force to show that the interests of

the refugees are sufficient to hold others to be under a duty to facilitate their return to

their country of origin.

I will now examine the application of this understanding of the moral Right of

Return to the Israeli-Palestinian conflict in order to demonstrate how it could

potentially affect our practical political reasoning. By applying the definition above

and the criteria of plenitude it contains we can come to reach a tentative solution

between the competing claims for territory of Israelis and Palestinians. The Israelis

have valid territorial claims in much of the disputed territory due to their own

empirical plenitude yet in vast areas of the state of Israel such plenitude does not exist

and it so happens that these areas are where the refugees originated. Any competing

Israeli claim to these areas based on self-determination or property rights is therefore

invalid as only plenitude can generate valid territorial claims.48

The refugees interest in returning to these areas can therefore be said to be a

sufficient reason to hold the Israelis to be under a duty to facilitate their return to these

areas. As such the Palestinian refugees have a prima facie moral right to return to

these areas and to exercise territorial jurisdiction over them.

48Kollers (2009), 206-210


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This dissertation has demonstrated both how and why refugees have a moral

right of Right of Return. We have seen how the concept of ethnogeographic

communities can form the basis of a justification for the Right of Return while also

allowing us to adjudicate between competing territorial claims. As such, I believe that

we can conclude that refugees do have a moral Right of Return.


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do refugees have a moral 'right of return

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