There is no greater sorrow on earth than the loss of one's native land.
Euripides, 431 B.C. (1)
Everyone has the right to leave any country, including his own, and to return to his country.
Universal Declaration of Human Rights, Article 13(2) (2)
The United Nations High Commissioner for Refugees (UNHCR) keeps watch over some twenty-two million people that have fled the world's conflicts. (3) To address their plight, UNHCR seeks "durable solutions," primarily voluntary repatriation (4) and resettlement (5), in that order. (6) Yet, a refugee's return home is often as complex and difficult as the reasons underlying the conflict from which she fled. The level of destruction, the presence of mines, the attitude of neighbors, the state of the economy, the means of the refugee, the legal environment, the availability of information and the stability of the peace are all factors influencing repatriation considerations. Perhaps most important is the attitude of the receiving government; does it facilitate or hinder return?
The second half of the twentieth century has seen a shift in international refugee policy. Where population transfers used to be accepted as a means to settle ethnic conflict, today, forced population transfers are considered violations of international law. (7) Few international scholars contest that refugees should be allowed to repatriate to their home countries upon a stable cessation of hostilities. Still, an obligation on countries to accept back refugees remains uncodified. No text in the "International Bill of Rights" (8) specifically obliges a state to take back its refugees after hostilities. (9) Binding bilateral agreements on refugee repatriation reference a "right to return", but do so without invocation of codified authority. (10) Even the Convention on the Status of Refugees, discussed below, operates primarily on those countries hosting refugees, placing remarkably few obligations on the country from which the refugees fled. Instead, Human rights instruments tend to speak of a right to "enter" one's country rather than "return." (11) Still, a growing number of international human rights scholars addressing this subject agree that the right to "enter," which is present in most human rights instruments, amounts to a right to "return." (12) As individuals, refugees possess the "human right" to return to the country from which they fled; a right to be guaranteed by their state. (13)
Human rights instruments operate as obligations upon states premised at the level of state-to-national. However, another level of obligation exists, state-to-state, that could also support the obligation. (14) This paper examines that second level by asking whether, in addition to a duty to protect the human rights of its citizens, states have a concomitant duty vis-a-vis other states to accept refugee nationals back home. (15) Stated otherwise, is a country that refuses to repatriate its nationals after a cessation of hostilities, in addition to violating a refugee's human rights, also violating Customary International Law (CIL)? (16) May a state simply declare that those who fled hostilities are no longer its responsibility, (17) or is there something in the "laws of nations" that forbids a state from denying its refugees (re)entry? (18) The following discussion sets forth the basis for recognizing "voluntary repatriation of refugees" as an emerging customary international legal norm. States refusing to repatriate refugees once a stable peace exists stand in violation of customary international law.
Part Two of this paper examines the background of the obligation on countries to accept back their nationals. Throughout history, conventions, declarations, and treaties have facilitated the formulation of customary international rules. These instruments are gleaned for their content relevant to refugee repatriation. Part Two addresses both general and regional instruments. Part Three undertakes an analysis of the formation of CIL norms. The examination approaches each of the accepted elements of CIL formation in turn, applying them to "voluntary repatriation" as a principle. Part Four contains conclusions and recommendations.
The UN and Other International Instruments
Despite Euripides' lament quoted above, an obligation on governments to allow individuals entry, in terms of customary norms, is but a nascent concept. Some customary norms are thousands of years old. The Magna Carta, passed in 1215, probably contained the first mention of a "right" to enter ones' own country with the concomitant obligation on the government to respect that right. In Article 41 of that document, citizens possessed the freedom "to go out of our kingdom, and to return, safely and securely, by land or water, saving his allegiance to us." (19) Note that the right is only qualified by "allegiance."
Last century, the League of Nations addressed a similar question in its Havana Convention Regarding the Status of Aliens. (20) The Convention spoke of the obligation upon states to "receive their nationals expelled from foreign soil who seek to enter their territory." (21) For its part, the United Nations General Assembly ("UNGA") in 1948, by way of the Universal Declaration, obligated what is now 189 signing plenipotentiaries to its article 13(2): "Everyone has the right to leave any country, including his own, and to return to his country." (22) Immediately following the Universal Declaration, the United Nations ("UN") adopted the Convention Relating to the Status of Refugees, and in 1951, established the United Nations High Commission for Refugees. (23) These two institutions place the care of refugees squarely onto the shoulders of UN member states. The Refugee Convention's definition of "refugee" is pertinent to this discussion:
Article 1 (2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it. (24) Note that since 1967, a protocol is available that removes the "events occurring before 1 January 1951" restriction. (25) For several years UNHCR's position has been that not only those in fear of persecution deserve protection, but also those fleeing war-related conditions. (26) The two slightly different definitions of "refugee" have not been without controversy, especially when the UNHCR considers which groups deserve protection. The debates focus on whether a particular group comprises "Convention refugees" or not. (27)
The United Nations Convention on the Elimination or Reduction of Future Statelessness does not mention any of the words "refugee," "return" or "repatriation." (28) Nevertheless, this Convention poses substantial obligations on its signatories regarding the loss of citizenship and, therefore, the loss of the right to enter. For example, Article Seven of that convention precludes any loss of citizenship unless the individual possesses another nationality. (29) But note the narrow exception in paragraph four:
A naturalized person may lose his nationality on account of residence abroad for a period, not less than seven consecutive years, specified by the law of the Contracting State concerned if he fails to declare to the appropriate authority his intention to retain his nationality. (30) Under this provision, a naturalized person who later becomes a refugee may lose his nationality should he stay abroad seven years or more. (31) But, he need only "declare ... his intention to retain his nationality" and it is so. (32) In short, signatories to this Convention may not unilaterally declare that their refugee nationals living abroad, are no longer their citizens unless that citizen has acquired citizenship of another country. (33) This prohibition is not absolute, but the exceptions are sufficiently limited so as to reinforce the rule. (34) And even if a government were to make such a declaration, purporting to strip a former national of citizenship, one prominent scholar wrote as early as 1927 that the citizenship stripping government must still repatriate its national. (35)
The International Covenant on Civil and Political Rights (36) (ICCPR) bound its signatories not to arbitrarily deprive anyone of the right to enter his own country. (37) Despite its clear language, that obligation is derogable. Article 4(1) of the ICCPR allows countries to avoid the requirement when faced with a national emergency "threatening the life" of the nation. (38) The effect of derogation and its influence on the formation of CIL is discussed in Section E(iv) below.
The International Convention on the Elimination of All Forms of Racial Discrimination, to which 156 countries are party, ensures racial and ethnic equality with respect to the right to return to one's country. (39) In pertinent part, this Convention reads:
[S]tates Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (ii) The right to leave any country, including one's own, and to return to one's country.... (40) Widespread ratification of this Convention, beginning in 1966, is no small evidence of states' acquiescence to international obligations vis-a-vis the return of their nationals. (41) While the Convention respects states using a legal framework to regulate transit across borders, it prohibits any discriminatory application in the law. A...