Palestinian Refugees' Contributi

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					           Palestinian Refugees’ Contributions to Norm-Creation in the Arab and
                                   Muslim World

 UNRWA At 60 Panel: “UNRWA and Palestine Refugees, A Contribution to peace
                         and development”
                          Susan M. Akram

                           Columbia University, New York City
                                  September 25, 2009

The Arab states are frequently subjected to harsh criticism for their treatment of millions
of Palestinian refugees and displaced persons, pointing to widespread violations of rights,
and particularly to the failure to offer Palestinians permanent status in their territories.
Indeed, much of the criticism has merit, in that the Arab states have often not respected
individual rights of Palestinians as guaranteed in the principal human rights treaties and
the customary norms those treaties embody. However, the critique that Arab states have
failed to grant Palestinians permanent status in their territories is seriously misplaced: it
ignores the fact that Arab states are under no legal obligation to grant permanent status to
Palestinian refugees. In fact, Arab states have actually supported what the refugees
themselves have demanded all along—the right to choose their durable solution, the right
to return to their original lands and homes. It is my contention that the Arab states‟ six
decades of de facto temporary protection to the Palestinians is unprecedented in the
history of protection of refugees, and has been granted at great social, economic and
political cost. The Western world‟s periodic and time-limited temporary protection
programs have never reached the scale of generosity that the Arab states have shown the
Palestinians. Moreover, it is my contention that the effect of UNRWA and the large
presence of Palestinian refugees in the Arab and Muslim world has helped to establish
regional legal norms benefiting not only Palestinians but large numbers of other refugees.
Such norms have not, and could not have been developed through the influence of other
international or human rights treaties, at least not in the Arab or Muslim world. The legal
story is quite different from that most widely told of the effect of Palestinian refugees and
UNRWA —it is neither accurate to heap praise nor opprobrium on the Arab world or
UNRWA for the protracted Palestinian refugee problem.

The Muslim and Arab states have the dubious honor of hosting the two largest and
longest-standing of the global refugee and displaced populations--the Afghans and the
Palestinians—and of hosting more than half of the global population in protracted refugee
situations. Considering the enormous challenges Muslim and Arab states are facing with
millions of refugees and displaced in their territories, one must also recognize the
particular instruments and policies uniquely available for refugee protection in the
Muslim world.

To pinpoint what legal regime addresses the Palestinian refugee problem, we must define
the Arab and Muslim world that hosts not only the Palestinians, but millions of other
displaced and refugees. The Arab world, of course, comprises the 22 Arab states that are
members of the Arab League. The Muslim region, roughly encompassing the 57 member
states of the OIC, by 2006 was providing refuge to approximately 9.4 million of the then-

global figure of 19 million refugees and persons of concern, or 45% of the world‟s
refugees and displaced persons—and that does not include the Palestinians. The majority
of the global population of 9.7 million Palestinians, that include the 4.6 million registered
refugees, remains in the 5 UNRWA areas of operation. These figures must also
incorporate the 2 million refugees and over 2 million internally displaced who have fled
the violence in Iraq to date. All of the Arab states are members of the Arab League, and
are the core states offering Palestinians temporary protection.

The instruments that bind some states in the region are the Refugee Convention and
Refugee Protocol, ratified by only nine states (Algeria, Djibouti, Egypt, Mauritania,
Morocco, Somalia, Sudan, Tunisia, and Yemen.) The African-Arab countries are also
signatories to the 1969 Organization of African Unity (“OAU”) Convention, the 1981
African Charter on Human and Peoples‟ Rights, and the major international human rights
instruments. A few of the international human rights instruments also bind some Arab
states, but only the Convention on the Rights of the Child is widely-ratified in the Arab
world. More critical for the Palestinians, only a handful of states have ratified either of
the two statelessness conventions, and, as I mentioned, only nine Arab states are party to
the Refugee Convention or Protocol. While UNHCR presses continuously for further
adoption of these instruments in an effort to enhance refugee protection, no Arab state
hosting large Palestinian populations are parties, and there are not likely to be new
ratifications of these instruments in the Arab region. The core Arab states, other than
Egypt, which is already a party, are not going to consider ratification of the Refugee
Convention or Protocol as long as the Palestinian refugee situation remains unresolved.

I suggest that rather than look to the failure to ratify the international human rights
instruments, there are unique and particular human rights instruments and norms that
have developed in the region that provide far more important sources of rights on which
to ground refugee protection that have developed because of the Palestinian refugee
population. Muslim and Arab state practice has crystallized to the point of strong and
ongoing state commitment to the norm of non-refoulement, temporary protection both to
refugees and other populations of concern, and an emerging respect for certain basic
rights even in the absence of widespread ratification of the universal human rights
treaties. It is these primarily regional instruments and sources that I wish to discuss in
more detail, focusing on those norms that have developed in particular due to the
presence and influence of UNRWA, and the presence and influence of the Palestinian
refugees. I would like to lay out what are concrete sources of refugee protection, and
barriers to full implementation, both of which are attributable for the most part to the
Palestinian refugee problem of the region.

Sources of a protection framework

As I mentioned, in the non-African Arab states of the Middle East, there is neither the
prospect of obtaining ratification of the Refugee Convention/Protocol nor of the OAU
Convention—at least as long as the Palestinian problem persists. However, there are two
significant instruments available for the region to ground refugee protection, and a
customary norm of temporary protection that is well-established in state practice of the

last 60 years. The first instrument of significance is the Arab League‟s Protocol on the
Treatment of Palestinians of 1965, known as the Casablanca Protocol. It is the most
important instrument reinforcing the unprecedented protection that the Arab states have
extended towards the Palestinians for the last six decades. In its five articles, the
Casablanca Protocol requires that Palestinians receive the same treatment as nationals of
Arab host states with regard to employment, the right to leave and return to the territory
of the state in which they reside, freedom of movement between Arab states, issuance and
renewal of travel documents, and freedom of residence, work and movement. Although
limited to Palestinians, many of the Casablanca Protocol‟s provisions are far more
generous than the parallel provisions in the Refugee Convention.

Of course, though Casablanca‟s provisions are robust, implementation has been less than
robust, and has fluctuated widely with political winds. On the one hand, we can cite
Syria‟s treatment of Palestinian refugees, which has been exceptional and exemplary; on
the other hand, we can look at Lebanon‟s treatment of Palestinians where the promise of
Casablanca has been illusory. The problem, however, is not with a basis for rights, but
uniform implementation and a mechanism for monitoring and enforcement.

The African-Arab countries are also signatories to several other important instruments
besides the major human rights treaties, notably the 1969 OAU Convention and the
1981African Charter on Human & Peoples‟ Rights. The OAU Convention is a far more
robust source of refugee protection for the realities of the Arab/African and Muslim
regions than the Refugee Convention for very obvious reasons. First, the much broader
definition of „refugee‟ in OAU encompasses the realities of refugee flows in the region
far better than does the Refugee Convention. In defining refugees to include those forced
to leave their habitual residence due to „external aggression, occupation, foreign
domination or events seriously disturbing public order in his country of origin or
nationality,‟ the definition applies to the vast majority of displaced from all the countries
causing the refugee flows of the region that I mentioned. In contrast, the Refugee
Convention definition excludes the vast majority of these refugees. Second, the OAU
covers internally displaced persons, which the Refugee Convention does not. Third, the
OAU does not require individualized refugee determinations, relieving the states
involved of the expensive, inefficient and burdensome process that is undermining the
protection purpose of the Refugee Convention in the West. Developed countries currently
spend at least $10 billion a year to process refugee claims--compare this to UNRWA‟s
current global budget of approximately $1.1 billion for the year. OAU clarifies and
strengthens the non-refoulement obligation, and also explicitly requires member states, in
Art. II(4), to share the asylum responsibility.

These are important considerations, but by far the most important factor in preferring the
OAU is its language on temporary protection. Art. II(5) of the OAU expressly authorizes
states to grant either asylum or temporary protection to an individual or a group meeting
either the individual or the broader OAU definition of refugee. These provisions provide
a better explanation of the generosity of the African Arab and Muslim states both in the
protracted refugee situations I mentioned and in response to large-scale refugee flows that
do not necessarily meet the individualized Refugee Convention criteria.

The second source of refugee rights is the now well-entrenched norm in both the Arab
and non-Arab Muslim world of temporary protection. Whether grounded in OAU, in
Casablanca, in African or Muslim solidarity, there is no doubt that non-refoulement
through time is widely respected and implemented in the Arab/Muslim world towards
virtually all groups of refugees and persons of concern. There is very little removal or
deportation to persecution taking place in the region. The main reasons for the criticism
of temporary protection as a formalized status in the West do not exist in the Arab
world—or exist to a far lesser extent. For one, the critique that temporary protection
undermines refugee protection guaranteed by the Refugee Convention is irrelevant in a
region where few states are parties to that treaty. For another, the critique that temporary
protection eviscerates the obligation to give every putative refugee a status determination
is irrelevant in a region where refugee recognition is almost exclusively on a group, or
prima facie, basis. And finally, the critique that temporary protection in essence
undermines the effort to place greater obligation on states to grant asylum, is irrelevant in
a region where permanent asylum is not an option for the vast majority of refugees--and
certainly as long as there is no prospect of a rights-based solution to the Palestinian
refugee problem.

The third source of refugee rights in the Muslim Arab region is the Arab Charter on
Human Rights, recently revised and adopted by the Arab League in 2004. The Charter
incorporates, in articles 27, 28 and 29, the guarantees of the U bill of HR to leave and
return, to seek asylum, to a nationality, and not to be expelled, individually or
collectively, to persecution. In addition, filling the deficit from lack of widespread
ratification of the international hr conventions, the Charter includes an impressive catalog
of rights encompassing both the civil and political, and the economic, social and cultural
rights. With its first version adopted by the Arab League in 1994, the 2004 Arab Charter
has good prospects. With eight state signatories thus far, it entered into force in 2008.
Most important, the Charter has the only semi-enforcement mechanism for refugee and
individual rights in the region in its periodic reporting system. The 2004 Arab Charter,
however, has a great deal to commend it as a source of state obligations towards refugees
and a source of individual rights, and reflects a consensus in the region that the Refugee
Convention and Protocol do not have.

Significant Barriers to Refugee Protection in the Region

The critical barrier to more robust ratification and implementation of refugee protection
in the Arab/Muslim world is not the failure of the Arab states to respect Palestinian
refugee rights, but the failure of the non-Arab states to respect those rights. In other
words, it is the non-resolution of the Palestinian refugee problem under international
legal norms that prevents further implementation of individual human rights in the
region. This particular refugee flow is unique in the world for a number of reasons, as
well as unique to the region. Why is the Palestinian problem so intractable and yet so
critical to resolution of other refugee flows of the Arab/Muslim world? I will sum this up
through a set of contrasts: While everywhere in the world, refugees are able to return to
their places of origin (and original homes) post-conflict, Palestinian refugees are denied

that right. While everywhere in the world the international community is engaged in
implementing property restitution to refugees post-conflict, there is no such recognition
of the right to restitution of Palestinian property. While everywhere in the world
compensation and retributive justice are seen as critical elements of post-conflict
remediation, there is no recognition of such rights attaching to Palestinian refugees.
While everywhere in the world, the international community is engaged in some form of
pressure against the main state actors causing the persecutory acts preventing refugee
solutions, in the Palestinian case, international coercion is against the refugees
themselves--the victims of the conflict--and not the main persecuting state. In a nutshell,
the rights-based frameworks that have developed over the last 60 years in mass refugee
flows are completely absent from the discourse, the negotiations, and international
engagement, in regard to Palestinian refugees.

Because of the exceptionalist treatment of this refugee population at the international
level, the Arab states will not ratify the Refugee Convention or Protocol, nor fully engage
with UNHCR. As long as the international community is perceived as negating the rights
of Palestinian refugees, Arab states will not accept that they must enforce the rights of
other refugees. As long as the international community is perceived as denying
Palestinian refugees their rights to return to their homes and lands, property restitution
and compensation—the very rights demanded for all other refugees—the Arab states will
not endorse these rights on a universal basis. This is at the heart of the dilemma of
refugee protection in the Arab and Muslim world. It is the linchpin to wider respect and
enforcement of refugee rights in the entire region.

The presence of Palestinian refugees and UNRWA has had a tremendous impact on the
Arab/Muslim region; but what is cited as a failure of these states to respect legal rights is
virtually the opposite. It is the Arab states‟ surprising respect for the core refugee rights
of Palestinians that is the remarkable story, while the rest of the world and international
community have turned those rights on their head. No doubt there have been serious
abuses of refugees, both in the past and today. The Arab states have not promoted
ratification of rights instruments that would implement refugee protection in a more
meaningful way, particularly not the Refugee Convention or Protocol. However, the
Muslim and Arab world has produced more robust foundations for refugee rights in the
regional temporary protection regime that has been most evident with regard to the
Palestinians. But temporary protection is also clearly in place for a much broader refugee
and refugee-like population in the region on par with those included in the OAU
Convention 1969. The fear that Palestinian refugees will not be allowed to exercise their
rights of return to their original homes and lands has been an impediment to permanent
resettlement or asylum. But there are many creative ways to build on this solid
foundation of temporary protection, such as borrowing from the Mexico Declaration and
Plan of Action language that provides that the grant of asylum is consistent with an
individual‟s ongoing right to return to their place of origin—language now incorporated
into Brazil and Venezuelan law. In similar fashion, the many other barriers to more
effective protection can be addressed with closer attention to the remarkable regional
agreements, such as the Casablanca Protocol and the 2004 Arab Charter on Human

Rights. Working through the Arab League and the OIC, these instruments can be more
widely ratified and implemented, and make the region more of a model of refugee
protection than it is today. And then we can profoundly thank the Palestinians and
UNRWA for their contribution.


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