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While Palestinians continue to face the threat of expulsion from their homes, identifying legal mechanisms that can be used to assert Palestinian's property rights is needed more than ever. This book provides a legal analysis of the right to reparation of Palestinian refugees under international law for the destruction and expropriation of their property during the Nakba . Discussing the legal landscape related to property ownership prior to the creation of the State of Israel and the legal basis for the right to reparation under international law, Lena El-Malak advocates for a law-based approach to enforce this right and the form it should take.
The book demonstrates how the legal rights of Palestinian refugees, specifically as related to their properties, have been marginalized and excluded from the political discourse of the "peace process". Here, the legal rights of Palestinian refugees are demonstrated, challenges for invoking these rights in international and domestic courts are determined, and forms of restitution and compensation outlined. This study offers a timely contribution to provide a comprehensive legal, as opposed to a political, economic or historical analysis, of the right to reparation of Palestinian refugees for their property losses. Additionally, the book seeks to demonstrate the importance of adopting a legal framework in any future negotiation for a peaceful resolution to this long standing struggles for liberation.
Contents
Preface
Acknowledgements
Foreword
Selected Abbreviations
Introduction
The Persistent Question of Palestinian Refugees
Defining the Scope and Terminology
The Refugee Issue under International Law
Research Question and Outline of the Thesis
Chapter One: Dispossession in Palestine
1.1 Introduction
1.2 Land Laws in Palestine during the Ottoman Period (1858-1917)
1.3 Land Laws in Palestine during the British Mandate (1920-1948)
1.4 Legalising Dispossession: Israeli Legislation And Its Impact On
Palestinian Ownership of Land (1948-)
1.5 Conclusion
Chapter Two: Palestinian Refugee Property Losses: The Grounds for
Reparation in International Law
2.1 Introduction
2.2 The Legal Concept of Reparation
2.2.1 Clarifying the Terminology
2.2.2 The Grounds for Reparation in International Law:
Israel's Expropriation of Refugee Property under the Law on
State Responsibility
2.3 Israeli Expropriation of Palestinian Refugee Property:
A Wrongful Act under International Law
2.3.1 Israeli Damage and Expropriation of Palestinian Refugee Property
as a Violation of International Humanitarian Law
2.3.2 Israeli Property Expropriation and the Doctrine on Enemy
Property
2.3.3 Palestinian Refugees' Property Rights under United Nations
Resolution
Right of Return and Restitution
Right of Compensation
Significance of Resolution 194
2.3.4 Palestinian Refugees' Property Rights under Human Rights
Law
2.4 Consequences of an Internationally Wrongful Act
2.5 Conclusion
Chapter Three: Invoking the Right to Reparation: Is There a Forum for
Palestinian Refugee Property Claims?
3.1 Introduction
3.2 Invoking a Right to Reparation before Domestic Courts
3.2.1 The Holocaust Restitution Movement: A Case Apart
3.2.2 Facing the Jurisdictional Barriers: Do the Property Claims of
Palestinian Refugees Stand a Chance?
3.2.3 The Limited Advantages of the Litigation Model
3.2.4 Individual Claims before Regional Courts: the Loizidou Case
3.3 Palestinian Refugee Claims and the International Court of Justice
3.3.1 The ICJ's Contentious Jurisdiction and Palestinian Refugees'
Property Claims
3.5.2 The ICJ's Advisory Jurisdiction and the Rights of Palestinian
Refugees
3.4 Collective Settlement of Mass Claims
3.5 Conclusion
Chapter Four: Forms of Reparation for Private Property Losses and
Legal Obstacles to the Implementation of Palestinian Refugees'
Property Rights
4.1 Introduction
4.2 Forms of Reparation for Private Property Losses
4.2.1 The Right to Restitution
4.2.2 The Right to Compensation
4.3 Legal Obstacles to the Implementation of Palestinian Refugee Property
Rights
4.3.1 Repealing Laws
4.3.2 Dealing with Secondary Occupants
4.3.3 Rights of Descendants
4.4 Conclusion
Chapter Five: Palestinian Refugee Property Claims in Israeli-Palestinian
Negotiations
5.1 Introduction
5.2 From the Nakba to Madrid: The Emergence of an International
Consensus In Favour of a Law-Based Approach to the Resolution of the
Refugee Issue
5.3 The Madrid Framework
5.3.1 The Madrid Peace Conference - A New Approach to Peace
Negotiations in the Middle East
5.3.2 The Refugee Working Group (RWG)
5.3.3 The Ottawa Process
5.4 The Oslo Peace Process
5.4.1 The DOP and the Marginalisation of the Refugee Issue
5.4.2 The DOP: Abandoning a Law-Based Approach to the Resolution
of the Refugee Issue
5.5 Final Status Negotiations: From Camp David II to Taba
5.5.1 Camp David II
5.5.2 The Clinton Parameters
5.5.3 The Taba Negotiations
5.6 Peace Initiatives
5.7 Conclusion
Conclusion
