Justifying the Right of Return

David Miller


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
justifes 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 justifcation 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.

Full Text: