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Licensed Unlicensed Requires Authentication Published by De Gruyter September 18, 2020

Justifying the Right of Return

David Miller

Abstract

With the Israeli-Palestinian conflict in mind, this Article asks whether there is a human right to return to one’s country, and if so what justifies it. Although such a right is widely recognized in international law, who can claim it and on what basis remains ambiguous; the ambiguity is revealed by asking what “country” means in “return to one’s country.” I argue that to treat the right simply as an adjunct of citizenship is too narrow an approach, even though the right has a role to play in managing inter-state relations. As with other human rights, personal autonomy might be proposed as a justification for the right of return. But although the autonomy interest in developing long-term life-plans may explain the right not to be forcibly displaced from the place where you live, it cannot explain why there is a right to return once displaced, particularly in the case of people who enjoy an adequate set of options elsewhere. Instead we need to invoke the need to belong to a homeland, access to which the right of return protects. The Article explores a homeland’s different dimensions and considers various respects in which the need to belong might be thought too indeterminate to ground a right. Finally it distinguishes and evaluates the return claims of Jews and Palestinians to Israel/ Palestine; only Palestinians whose homeland this remains can claim a human right of return as analyzed and defended here.


* Senior Research Fellow and Professor of Political Theory, Nuffield College, University of Oxford. Earlier drafts of this Article were presented to the Workshop in Practical Philosophy, University of Bergen, 9–10 May 2019, the Conference on Historical Justice in the Context of the Israeli-Palestinian Conflict, Faculty of Law, Tel Aviv University, 28–30 May 2019, and the Oxford/Queen’s workshop in Legal and Political Philosophy, 10 June 2019. I am very grateful for comments received on all these occasions, and especially to Professor Ruth Gavison who acted as my respondent in Tel Aviv. Cite as: David Miller, Justifying the Right of Return, 21 Theoretical Inquiries L. 369 (2020).


Published Online: 2020-09-18
Published in Print: 2020-07-28

© 2020 by Theoretical Inquiries in Law