Palestinians are the largest and most long-suffering refugee population in the world. There are more than 3.7 million Palestinians registered as refugees by the United Nations Relief and Work Agency (UNRWA), the U.N. agency responsible for them.

During the 1948 war, these people and their descendants were expelled or fled from their homes in what is now Israel. Their future and the status of their right of return has become one of the most contentious issues in the effort to find a lasting peace between Palestinians and Israelis.

The right of refugees to return to their homes is embedded deeply in customary international law and the most fundamental human rights instruments. According to prominent legal scholars Mallison and Mallison, "Historically, the right of return was so universally accepted and practiced that it was not deemed necessary to prescribe or codify it in a formal manner."

Perhaps the most basic expression of the right, however, is contained in the Universal Declaration of Human Rights (Declaration), Article 13, which states that "Everyone has the right to leave any country, including his own, and to return to his country."

It is a generally recognized principle of international law that when sovereignty or political control over an area changes hands, there is a concurrent transfer of responsibility for the population of that territory.

Therefore it cannot be argued that Palestinians, who were expelled or fled from what became Israel during a period of conflict, no longer had any rights with regard to the country in which they had lived simply because of a change in the nature of the state or government in that territory.

Moreover, where expulsion or prevention from return results in denationalization and statelessness, Article 15 of the Declaration, which stipulates that, "Everyone has the right to a nationality," becomes a further relevant protection of the right of return.

And certainly, where a population has been forcibly expelled, as Lex Takkenberg, the chief of Field Relief and Social Services for UNRWA, points out, "the right of return derives from the illegality of the expulsion itself," because "those expelled clearly have the right to reverse an illegal act, that is to return to their homeland."

The four Geneva Conventions assume the right of return in numerous articles and provisions. For example, all four Conventions provide that any formal denunciation of one state by another for violating provisions of the Conventions "shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation," and in the case of Convention IV, Article 158, re-establishment "of the persons protected by the present Convention have been terminated."

The underlying assumption of these provisions, and the numerous prohibitions in international law against involuntary repatriation under conditions of danger, can only be that of an absolute and universally accepted right of return.

In 1948, the United Nations adopted Resolution 194, which specifically applies the right of return to the Palestinian refugees.

Paragraph 11 states "that the refugees wishing to return to their homes and live at peace with their neighbors 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 international law or in equity, should be made good by the Governments or authorities responsible."

The United Nations has reaffirmed this resolution practically every year since its adoption with near unanimity.

It is sometimes argued by opponents of the right of return that because Resolution 194 is a General Assembly resolution, rather than a Security Council resolution, it is "non-binding."

However, the general principle of when and if a General Assembly resolution can be "binding" need not be debated to invalidate this argument. Israel's admittance to the United Nations as a member state, through Resolution 273, was conditioned on acceptance and implementation of Resolution 194. Therefore, Israel is bound, as a condition of membership in the United Nations, to implement 194 and to facilitate the return of the Palestinian refugees.

Despite this commitment, Israel has consistently denied the right of return. In the late 1940s and early 1950s, Israel passed laws forbidding the return of refugees and expropriating their property. Israel also routinely killed in cold blood Palestinians who attempted to cross its borders in order to return to their homes.

Resolution 194 is particularly noteworthy in that it provides for the return of the refugees not simply to "their country" or homeland, but to "their homes." The former U.N. Mediator for Palestine, Count Folke Bernadotte, recommended in his Progress Report of 16 September 1948, submitted the day before he was murdered by the Stern Gang, that "the right of the Arab refugees to return to their homes in Jewish controlled territory at the earliest possible date should be affirmed by the United Nations..."

His report was the basis for much of the text of Resolution 194 and, as Takkenberg points out, "It should be noted that the U.N. mediator recommended that the right to return be affirmed rather than be established. Although the issue is not explicitly addressed in the report, Count Bernadotte was apparently of the opinion that the right of refugees to return already formed part of existing international law."

These assumptions (that the right of refugees to return is an established and universally accepted principle of international law and that this right is linked to homes and property, not just to a country or homeland) formed the basis for much of the discourse of the United States, NATO and the U.N. during the Kosovo conflict in 1999.

During the Kosovo crisis, on 6 April 1999, former U.S. President Bill Clinton declared that, "We cannot say, well, we'll just take all these folks and forget about their rights to go home. The refugees belong in their own homes on their own land. Our immediate goal is to provide relief. Our long-term goal is to give them their right to return."

NATO spokesman Jamie Shea told reporters at an 24 April 1999, briefing that, "What is absolutely clear are our key preconditions which we are not going to negotiate on, which is the right to the return of refugees, access to humanitarian organizations, withdrawal of Serb forces, deployment of a very robust international force, and a political process."

On 5 April 1999, Shea told the press that, "The most important thing is that at the end of the day that those people should be able to exercise their right to return."

The work of the Clinton Administration's deputy treasury secretary, Stuart Eizenstat, with regard to the property rights of refugees and other victims of the Nazi Holocaust in Europe has great significance for the property rights of Palestinian refugees.

Moreover, because the right of return is so intimately linked to property rights and original homes, the principles laid out by Eizenstat have profound implications for the right of return as well as property rights.

Eizenstat's testimony before the Commission on Security and Cooperation in Europe (Commission) in March 1999 is of particular relevance. He told the Commission that "the basic principle that wrongfully expropriated property should be restituted (or compensation paid) applies to them all [every country in Eastern and Central Europe], and their implementation of this principle is a measure of the extent to which they have successfully adopted democratic institutions, [and] the rule of law with respect to property rights."

Obviously, if the property rights of Jewish Europeans survive after more than 56 years following expropriation, those of Palestinian refugees must similarly survive after 53 years or less.

We have to start the discussion from a point that can lead to a settlement with which both Israelis and Palestinians can live, that meets the requirements of justice, and respects refugees' human rights.This article is extracted from the original, which appeared in the latest issue (volume 8, issue 2, winter, 2001) of Human Rights Brief, a quarterly publication of Washington College of Law at American University, in Washington, DC.