Right of return

There are various recorded cases in ancient history where people who had been deported or uprooted from their city or homeland were allowed (or encouraged) to return, typically when the balance of military and political forces which caused their exile had changed. However, in these cases the exiled populations were granted the option to return, it was never recognized that they had an inherent right to return.

A well-known example is the return to Zion, which King Cyrus the Great granted the Jews expelled from Judah to the Babylonian Exile to return to their ancestral homeland and rebuild Jerusalem. Recorded in the Hebrew Bible (Book of Ezra and Book of Nehemiah) this case is often cited as a precedent by modern Zionists and also inspired other groups seeking to pursue their own return.

During the Peloponnesian War, Athens expelled and scattered the inhabitants of Melos, Aegina and other cities (some of them being sold into slavery). Following the victory of Sparta, the Spartan general Lysander in 405 BC made a concerted effort to gather these exiles and restore them to their original cities.[3][4]

Cotton MS. Augustus II. 106, one of only four surviving exemplifications of the 1215 text

The first codified law guaranteeing a Right of Return can be found in the Magna Carta:[5]

In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision.[6]

Another early example of national law recognizing the Right of Return was the French constitution of 1791, enacted on 15 December 1790:[2]

the freedom of everyone to go, to stay, or to leave, without being halted or arrested unless in accordance with procedures established by the Constitution.

The constitution put an end to the centuries-long persecution and discrimination of Huguenots (French Protestants).

Concurrently with making all Protestants resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that:

All persons born in a foreign country and descending in any degree of a French man or woman expatriated for religious reason are declared French nationals (naturels français) and will benefit to rights attached to that quality if they come back to France, establish their domicile there and take the civic oath.[7]

The Revocation of the Edict of Nantes and expulsion of the Huguenots had taken place more than a century earlier, and there were extensive Huguenot diasporas in many countries, where they often intermarried with the population of the host country (see Edict of Potsdam). Therefore, the law potentially conferred French citizenship on numerous Britons, Germans, South Africans and others – though only a fraction actually took advantage of it. This option for Huguenot descendants to gain French citizenship remained open until 1945, when it was abolished - since after the Occupation of France, the French were unwilling to let Germans of Huguenot origin take advantage of it.

In the aftermath of the Second Schleswig War of 1864, the previously Danish-ruled territory of Schleswig became part of Imperial Germany. A significant number of inhabitants, known as "optants", chose to retain their Danish citizenship and refused to take up a German one. Consequently, they were expelled from the area by Prussian authorities. Half a century later, following the German defeat in the First World War, a plebiscite was held in 1920 to determine the future of the area. The Danish government asked the Allied Powers to let these expelled ethnic Danes and their descendants return to Schleswig and take part in the plebiscite. This was granted, though many of the optants had in the meantime emigrated to the United States, and most of these did not actually come back.

There is some disagreement[9] as to what "his own" and "his country" means in the ICCPR and UDHR. According to the United Nations Human Rights Committee's authoritative interpretation:

The scope of "his own country" is broader than the concept "country of his nationality". It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them.

and

The right of a person to enter his or her own country recognizes the special relationship of a person to that country... It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country.[10]

The landmark Nottebohm case of 1955 is often cited as staking out more criteria as to what "ones country" should be.[9] Among them were "a close and enduring connection", "tradition", "establishment", "interests" and "family ties".

Refugees who are resettled into third countries lose refugee status and acquire a new nationality. They therefore lose the right to return to their country of origin.

Some disagreement exists on whether the right of return is applicable to situations in which whole ethnic groups have been displaced or not. Ruth Lapidoth from the Jerusalem Center for Public Affairs has argued, by citing Stig Jägerskiöld from his 1966 commentary of ICCPR, that the right was not intended to protect groups of displaced people:

... [it] is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a by-product of war or by political transfers of territory or population, such as the relocation of ethnic Germans from Eastern Europe during and after the Second World War, the flight of the Palestinians from what became Israel, or the movement of Jews from the Arab countries.[11]

Hurst Hannum has made a similar argument:

There is no evidence that mass movements of groups such as refugees or displaced persons were to be intended to be included within the scope of article 12 of the Covenant by its drafters.[12]

Manfred Nowak has argued the opposite position, that the right of return applies "even if masses of people are claiming this right" [13] Bracka has argued similarly:

At any rate, what seems clear is that neither the text nor the travaux préparatoires of the relevant UDHR, ICCPR and CERD provisions actually support circumscribing [the right of] return in this way [to exclude situations of mass displacement]. Firstly, there is no indication that the drafters considered the applicability of the freedom of movement principle to members of displaced populations. And although it may have been assumed at the time that such a scenario would receive discussion in ‘some other body of law’, this is not synonymous with an intention to limit these articles to isolated individuals. Secondly, nowhere in the actual text is the operation of the right of return qualified on the basis of group affiliation. Rather, in each instance, the relevant language refers to ‘everyone’. In addition, the HRC in General Comment 27 affirms this reading in so far as it states: ‘[t]he right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries’. Thirdly, whilst the right of return in art 12(4) of the ICCPR is presented as an individual right, Quigley confirms that ‘this is also true of most rights in international human rights instruments’. Indeed, the movement of people has historically taken on a collective dimension. Accordingly, to deny the availability of human rights simply because individuals form part of a mass group would render those rights illusory.[9]

Circassians are an indigenous ethnic group originating from the northwestern Caucasus. Throughout the 19th century, the Russian Empire adopted a policy to eradicate Circassians from their ancestral homelands, pushing most surviving Circassians into the diaspora.[16] Many Circassians have expressed an interest in returning to Circassia, particularly Circassians fleeing the conflict in Syria.[16]

During Abkhazia's war of secession in 1992-1993 and the second Abkhazia war in 1998, 200,000-250,000 Georgian civilians became internally displaced people (IDPs) and refugees. Abkhazia, while formally agreeing to repatriation, has hindered the return of refugees both officially and unofficially for more than fifteen years.[17]

During the Turkish invasion of Cyprus, 40% of the Greek-Cypriot population as well as over half of the Turk-Cypriot population of the island were displaced. The island was divided along ethnic lines and most of the Greek-Cypriot displaced people were not allowed to return to their homes in the northern Turk-Cypriot side and vice versa.

Plans for a solution of the conflict has centered around bilateral agreements of population exchange, such as the Third Vienna Agreement reached in 1975 or the proposed Annan Plan of 2004. In these plans, the right of return was to be severely limited with respect to Greek-Cypriot internally displaced people/refugees to districts such as Kyrenia, Morphou, Famagusta, and parts of Nicosia, despite judgements of the European Court of Human Rights in cases such as Loizidou v. Turkey, and numerous UN resolutions recognizing the right of return (such as SC 361 and GA 3212). Two referendums on the Annan Plan were held in April 2004, separately along ethnic lines. The Annan Plan was overwhelmingly rejected in the Greek-Cypriot referendum.

The right of return continues to remain a stumbling block to the settlement of the Cyprus problem.

The Chagossians, an ethnic group residing on the island of Diego Garcia in the Indian Ocean, were expelled to Mauritius in the 1960s, in connection with the erection of an American strategic military installation on the island. Ever since, the Chagossians have been conducting a persistent political and legal struggle to return to Diego Garcia. As of 2007, their right to return was recognised by several British courts but the UK government failed to actually implement it (see Chagossians, Depopulation of Diego Garcia, Order in Council#United Kingdom).

Palestinian refugees argue that international law guarantees them a right to return to their former homes in Mandatory Palestine and a right to property they left behind in what is now Israel.[18] Israel's Defense Minister, Avigdor Lieberman, was reported as saying in June 2017 that his government will not allow any Palestinians to settle in the lands claimed by them and currently part of Israeli territory.[19]

Article 14 of the Constitution of Armenia (1995) provides that "[i]ndividuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure."[20] This provision is consistent with the Declaration on Independence of Armenia, issued by the Supreme Soviet of the Republic of Armenia in 1989, which declared at article 4 that "Armenians living abroad are entitled to the citizenship of the Republic of Armenia".

Article 36 (3) of the Constitution of Estonia states that "Every Estonian is entitled to settle in Estonia."[21]

People of Finnish origin may receive citizenship by declaration, which is faster and cheaper than naturalization and has fewer requirements. People of Finnish origin can be: 1) children, born abroad, of a Finnish father; 2) 12-17-year-old adopted children; 3) former Finnish citizens; 4) citizens of another Nordic country; 5) 18-22-year-olds with a long residency in Finland.[22] Formerly, Finland also accepted returnees with a Soviet passport (or post-Soviet passport) where the ethnicity was marked as Finnish. This allowed the immigration of Ingrian Finns and other Finns who had remained in the Soviet Union. People who served in the Finnish Defence Forces or Finnish people evacuated by German or Finnish authorities from occupied areas to Finland during World War II also qualified as returnees. However, these options are no longer available, and applicants must qualify for ordinary naturalization instead.

Another early example of national law recognizing the Right of Return was the French constitution of 1791, enacted on 15 December 1790:[2]

the freedom of everyone to go, to stay, or to leave, without being halted or arrested unless in accordance with procedures established by the Constitution.

The constitution put an end to the centuries-long persecution and discrimination of Huguenots (French Protestants).

Concurrently with making all Protestants resident in France into full-fledged citizens, the law enacted on December 15, 1790 stated that:

All persons born in a foreign country and descending in any degree of a French man or woman expatriated for religious reason are declared French nationals (naturels français) and will benefit to rights attached to that quality if they come back to France, establish their domicile there and take the civic oath.[7]

The Revocation of the Edict of Nantes and expulsion of the Huguenots had taken place more than a century earlier, and there were extensive Huguenot diasporas in many countries, where they often intermarried with the population of the host country. Therefore, the law potentially conferred French citizenship on numerous Britons, Germans, South Africans and others – though only a fraction actually took advantage of it. This option for Huguenot descendants to gain French citizenship remained open until 1945, when it was abolished - since after the Occupation of France, the French were unwilling to let Germans of Huguenot origin to take advantage of it.

In October 1985, French President François Mitterrand issued a public apology to the descendants of Huguenots around the world.[23]

German law allows (1) people descending from German nationals of any ethnicity or (2) people of ethnic German descent (Volksdeutsche) and living in countries of the former Warsaw Pact (as well as Yugoslavia) the right to "return" to Germany and ("re")claim German citizenship (Aussiedler/Spätaussiedler "late emigrants"). After legislative changes in late 1992 this right is de facto restricted to ethnic Germans from the former Soviet Union. As with many legal implementations of the Right of Return, the "return" to Germany of individuals who may never have lived in Germany based on their ethnic origin or their descent from German nationals has been controversial. The law is codified in paragraph 1 of Article 116 of the Basic Law for the Federal Republic of Germany, which provides access to German citizenship for anyone "who has been admitted to the territory of the German Reich within the boundaries of December 31, 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person".[24] Those territories had a Polish minority, which also had German citizenship and after World War II lived in Poland. These Polish people are also Aussiedler or Spätaussiedler and came especially in the 1980s to Germany, see Emigration from Poland to Germany after World War II. For example Lukas Podolski and Eugen Polanski[25] became German citizens by this law. Paragraph 2 of Article 116 also provides that "Former German citizens who between 30 January 1933 and 8 May 1945 were deprived of their citizenship on political, racial or religious grounds, and their descendants, shall on application have their citizenship restored".[24] The historic context for Article 116 was the eviction, following World War II, of an estimated 9 million foreign ethnic Germans from other countries in Central and Eastern Europe. Another 9 million German nationals in the former eastern German territories, over which Joseph Stalin and eastern neighbour states extended military hegemony in 1945, were expelled as well. These expellees and refugees, known as Heimatvertriebene, were given refugee status and documents, and—as to foreign ethnic Germans—also the German citizenship (in 1949), and resettled in Germany. The Discussion of possible compensation continues; this, however, has been countered by possible claims for war compensation from Germany's eastern neighbours, pertaining to both Germany's unconditional surrender and the series of population transfers carried out under the instruments of Potsdam. Between 1950 and 2016 it is estimated that up to 1,445,210 Aussiedler/Spätaussiedler and their family members (Familienangehörigen), including many ethnic Poles according to Deutsche Welle[26] (for example Lukas Podolski and Eugen Polanski), emigrated from Poland.[27]

Ghana allows people with African ancestry to apply for and be granted the right to stay in Ghana indefinitely.[28]

Various phenomena throughout Greek history (the extensive colonization by classical Greek city states, the vast expansion of Greek culture in Hellenistic times, the large dominions at times held by the Greek-speaking Byzantine Empire, and the energetic trading activity by Greeks under the Ottomans) all tended to create Greek communities far beyond the boundaries of modern Greece.

Recognizing this situation, Greece grants citizenship to broad categories of people of ethnic Greek ancestry who are members of the Greek diaspora, including individuals and families whose ancestors have been resident in diaspora communities outside the modern state of Greece for centuries or millennia.[29]

"Foreign persons of Greek origin", who neither live in Greece nor hold Greek citizenship nor were necessarily born there, may become Greek citizens by enlisting in Greece's military forces, under article 4 of the Code of Greek Citizenship, as amended by the Acquisition of Greek Nationality by Aliens of Greek Origin Law (Law 2130/1993). Anyone wishing to do so must present a number of documents, including "[a]vailable written records ... proving the Greek origin of the interested person and his ancestors."

Albania has demanded since the 1940s that Greece grant a Right of Return to the Muslim Cham Albanians, who were expelled from the Greek region of Epirus between 1944 and 1945, at the end of World War II – a demand firmly rejected by the Greeks (see Cham issue).

In 2010, Hungary passed a law granting citizenship and the right of return to descendants of Hungarians living mostly on the former territory of the Hungarian Kingdom and now residing in Hungary's neighbouring countries. Slovakia, which has 500,000 ethnic Magyar citizens (10% of its population) objected vociferously.[30]

Present Irish nationality law states that any person with a grandparent born on the island of Ireland can claim Irish nationality by enrollment in the Foreign Births Register. Additionally, the law permits the Minister of Justice to waive the residency requirements for naturalization for a person of "Irish descent or Irish associations".

The Law of Return is legislation enacted by Israel in 1950, that gives all Jews, people of Jewish ancestry up to at least one Jewish grandparent, and spouses of Jews the right to immigrate to and settle in Israel and obtain citizenship, and obliges the Israeli government to facilitate their immigration. Originally, the law applied to Jews only, until a 1970 amendment stated that the rights "are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew". This resulted in several hundreds of thousands of people fitting the above criteria immigrating to Israel (mainly from the former Soviet Union) but not being recognized as Jews by the Israeli religious authorities, which on the basis of halakha recognize only the child of a Jewish mother as being Jewish, or a proselyte to Judaism. Moreover, some of these immigrants, though having a Jewish grandparent, are known to be practicing Christians. People who would be otherwise eligible for this law can be excluded if they can reasonably be considered to constitute a danger to the welfare of the state, have a criminal past, or are wanted fugitives in their countries with the exception of persecution victims. Jews who converted to another religion can also be denied the right of return. Since its inception in 1948, over three million Jews have immigrated to Israel.[31]

From the Constitution of Lithuania, Article 32(4): "Every Lithuanian person may settle in Lithuania."[32]

From the Constitution of Poland, Article 52(5): "Anyone whose Polish origin has been confirmed in accordance with statute may settle permanently in Poland."[33]

On April 12, 2013, the Portuguese parliament unanimously approved a measure that allows the descendants of Jews expelled from Portugal in the 16th century to become Portuguese citizens.[34]

Sephardi Jews were expelled from Spain in 1492. Despite the requirement by general rule for obtaining Spanish nationality after five years of residence in Spain, by Royal Decree on the 20th of December 1924, Sephardi Jews can obtain Spanish nationality with two years of residence in Spain. From 1924 until 2015 Sephardi Jews living abroad could also ask the Spanish Government for a conferment of Spanish nationality, but the Government enjoyed full discretion as to the decision whether to grant Spanish nationality. On June 24, 2015, the Spanish Parliament approved the 12/2015 Act, the Law Granting the Nationality to Sephardi Jews, that grants the Spanish nationality automatically to Sephardi Jews living abroad, provided they can prove that they are descendants of the Sephardi Jews expelled in 1492.

In 2007, the Spanish Parliament approved the 57/2007 Act, the Law of Historical Memory. The 57/2007 Act provides for the descendants of Spaniards living abroad that left Spain because of political persecution during the Civil War and Franco's dictatorship — that is the period between 1936-1975 — to obtain Spanish nationality.

Finally, following the British conquest of Gibraltar in August 1704, the original Spanish population of Gibraltar was expelled and established in the surrounding area called "Campo de Gibraltar". The expelled population established the Gibraltarian institutions, the census and the archives in the City of San Roque, which officially is still "Gibraltar in exile". Despite claims to the right of return by the association of descendants of expelled Gibraltarians, neither the Spanish Government nor the British Government have recognised any right of return for the expelled Gibraltarians.