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An Appraisal of the Right of Return and Compensation AN APPRAISAL OF THE RIGHT OF RETURN AND COMPENSATION OF JORDANIAN NATIONALS OF PALESTINIAN REFUGEE ORIGIN AND JORDAN’S RIGHT, UNDER INTERNATIONAL LAW, TO BRING CLAIMS RELATING THERETO, ON THEIR BEHALF TO AND AGAINST ISRAEL AND TO SEEK COMPENSATION AS A HOST STATE IN LIGHT OF THE CONCLUSION OF THE JORDAN-ISRAEL PEACE TREATY OF 1994 Submitted in the fulfilment of the requirements of the degree of Ph.D. (Laws) Bisher Hani Khasawneh January 2007 The Department of Law, The London School of Economics and Political Science Supervisor: Professor Christopher Greenwood UMI Number: U61BB63 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U613363 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 I o \ ° \ % o ABSTRACT This thesis is concerned with examining the right of return and compensation, under international law, of Jordanian nationals who are of Palestinian refugee origin exclusively and Jordan’s right as their state of nationality to bring claims on their behalf to and against Israel. It does not concern itself with other categories of Palestinian refugees who are not Jordanian nationals although the two rights of return and compensation arguably apply to all Palestinian refugees. The thesis also aims at examining Jordan’s right as a host country, under international law, to bring compensation claims to and against Israel for creating the Palestinian refugee problem. It examines the legal bases for such a right, under international law in the context of State Responsibility for wrongful acts along with relevant provisions of the 1994 Jordan-Israel Peace Treaty. The thesis attempts to critically assess, analyze and examine major claims that Jordan can bring to and against Israel against principles of international law both on behalf of its nationals of Palestinian refugee origin and in relation to the right of return and compensation and claims of its own as a host state to and against Israel. It also critically assesses and examines the procedures and mechanisms available for the pursuit of such claims that are available to Jordan in the context of the 1994 Jordan-Israel Peace Treaty along with non Peace Treaty based procedures and mechanisms. 2 SELECTED ABBREVIATIONS AJIL American Journal of International Law BYIL B ritish Yearbook of International Law CPAP Center for Policy Analysis on Palestine ECHR European Convention for the Protection Of Human Right and Fundamental Freedoms EJIL European Journal of International Law GAOR United Nations General Assembly, Official Records GILJ Georgetown Immigration Law Journal HILJ Harvard International Law Journal HRLJ Human Rights Law Review HRQ Human Rights Quarterly ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICRC International Committee of the Red Cross IJRL International Journal of Refugee Law ILM International Legal Materials ILR International Law Reports IMR International Migration Review IPS Institute for Palestine Studies Iran-US CTR Iran-United States Claims Tribunal IYHR Israeli Yearbook on Human Rights JPS Journal of Palestine Studies LNTS League of Nations Treaty Series MEF Middle East Forum MEI Middle East International MEJ Middle East Journal MER Middle East Review MES Middle Eastern Studies NILR Netherlands Yearbook of International Law PCIJ Permanent Court of International Justice PIJ Palestine-Israel Journal PLO Palestine liberation Organization PYIL Palestine Yearbook of International Law RSQ Refugee Survey Quarterly SJIL Stanford Journal of International Law TILJ Texas international Law Journal UDHR Universal Declaration of Human Rights UNTS United Nation Treaty Series TABLE OF CONTENTS ABSTRACT ,2 SELECTED ABBREVIATIONS................................................................................3 TABLE OF CONTENTS........................................................................................... 4 INTRODUCTION........................................................................................................7 CHAPTER (1): THE EXPULSION AND DISPLACEMT OF PALESTININAS 20 a. Political and Historical Background .................................................................... 21 b. Causes of the Expulsion of Palestinians..............................................................30 (i) The 1947-1949 Conflict..........................................................................................30 (ii) The 1967 War and its aftermath ........................................................................... 35 c. Numbers of Palestinians who sought refuge and who were forced to leave....39 (i) Displacement: Some Global Figures...................................................................... 39 (ii) Displacement in 1947-1949 ...................................................................................40 (iii) Displacement after June 1967........................................................................... 41 d. Israeli Policy and Practice Post-Flight and/or Expulsion................................41 d (1) Preventing Return of Refugees...................................................................... 42 (i) Evidence of Historical Intent...................................................................................42 (ii) The Intention to Expel: From Words to Actions 1948 Onwards..........................45 d (2) Changing the Demographic and Physical Character of Palestine...........50 (i) Destruction of Villages............................................................................................ 50 (ii) Takeover and allocation of Palestinian land ......................................................... 52 (iii) Establishment of Settlements .................................................................................53 (iv) Palestinian-Israeli Citizenship.................................................................................54 (v) Palestinian-Jordanian Citizenship........................................................................... 56 (vi) Palestinian Travel Documents................................................................................59 e. The Hashemite Kingdom of Jordan and Palestine..............................................59 CHAPTER (2) THE RIGHT OF RETURN AND COMPENSATION FOR PALESTININIAN REFUGEES OF JORDANIAN NATIONALITY AND JORDAN’S RIGHT TO BRING CLAIMS ON THEIR BEHALF TO AND AGAINST ISRAEL AND ITS RIGHT AS A HOST STATE TO COMPENSATION.......................................................................................................... 69 a. The Right of Return and Compensation for Palestinian Refugees ............... 71 (i) The Recognition of the Right of Return and Compensation of Palestinian refugees by the United Nations ............................................................................................................ 75 (ii) The Right of Return in the Law Nationality...........................................................95 4 1- States’ Domestic Discretion to Regulate Nationality Status is Limited By International Law............................................................................................................. 95 2- The Law of State Succession...................................................................................99 (iii) The Right of Return Under Human Rights L aw ................................................ 107 (iv) The Right of Return Under International Humanitarian L aw ........................... 116 (v) The Right of Palestinian Refugees to Compensation........................................120 b. Bases of Jordan’s Right to Bring Compensation Claims, On Behalf of Its Nationals who are of Palestinian Refugee Origin, To and Against Israel and to Seek to Implement the Right of Return and Its Right to Seek Compensation as a Host Country.......................................................................................................................... 126 (i) State Responsibility................................................................................................128 1- Nationality of Claims.............................................................................................132 2- Exhaustion of Local Remedies...............................................................................146 (ii) The Jordan-Israel Peace Treaty.............................................................................150 CHAPTER (3): LEGAL ASSESSMENT OF MAJOR CLAIMS THAT JORDAN CAN MAKE..................................................................................................................155 a. Injury and Loss Arising Out of the Events of 1947-1949.................................158 (i) Expulsion of Palestinian Population.......................................................................159 1- Coerced Expulsions in International Law............................................................. 160 2- Israel’s Responsibility for Acts of various Entities
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