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Brill Academic Publishers




B Summary of Argument

7. Palestinian refugees fall under a legal regime that is distinct from all other refugees in the world.12 As such, they are covered by a series of special provisions that apply only to them and no other refugees. Their special status resulted from the decisions of the drafters of key international treaties to exclude Palestinian refugees from the mandate of the United Nations High Commissioner for Refugees (UNHCR) and the 1954 Convention on the Status of Stateless Persons, and to conditionally exclude them from the benefits of the 1951 Convention on the Status of Refugees. 13

8. Three main reasons were behind the decision of United Nations (UN) delegates who drafted the special regime for Palestinian refugees to create a special regime for them. First, in 1948 and 1949, prior to the drafting of the Conventions on the status of Refugees and Stateless People, the UN had already established two agencies specifically for the Palestinian refugees, the United Nations Conciliation Commission on Palestine (UNCCP) and the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), authorized to provide international protection and assistance to the refugees respectively.14 Because two specialized agencies had already been established with exclusive mandates towards this refugee population, the UN delegates deemed it duplicative and unnecessary for UNHCR to also have responsibility for the Palestinian refugees.15

9. Second, the UN delegates recognized that, unlike all other refugees who were under consideration at the time of drafting the UNH CR Statute, the Refugee and Stateless Persons Conventions, the Palestinians had become refugees because of action taken by the UN - the decision to partition Palestine through UNGA Res. 181, which led to the creation of Israel and the resulting flight of hundreds of thousands of Palestinian refugees.16 Hence, the UN had special responsibility to ensure a particular protection regime was in place to implement the durable solutions that the UN had already incorporated in the first resolutions it had passed concerning the Palestinian refugees. As the delegates recorded in the travaux preparatoires of the Refugee Convention, the Palestinian refugees should not be subsumed in a regime designed for all other refugees, as the UN had particular responsibility for them.17

10. Third, the UN Resolutions that established the UNCCP and UNRWA had set up a specific formulation required to reach a durable solution for these refugees - return to their homes and lands, restitution of their properties, and compensation for their losses - and it was the UN that was responsible for ensuring implementation of this formula for the entire population of Palestinians.18 Until that durable solution formula was implemented, Palestinians as an entire category were to remain the responsibility of the UN as a special category of 'refugees.'

11. It is only with this historical context in mind that the 'Palestinian clauses' of Article 1D in the Refugee Convention, Article 1 in the Convention on Stateless Persons, and Paragraph 7(c) of the UNHCR Statute can be understood. This context also clarifies the bifurcated mandate of UNRWA/ UNCCP (and today, UNHCR), and its consequences for the Palestinian refugee at issue in this case.19

12. It is the opinion of this amicus that the European Court of Justice (ECJ), in El Kott v. B.A.H, has articulated an incorrect interpretation of Article 1D. A historically accurate analysis of the drafting of Art. 1D that takes into account treaty interpretive rules compels a finding that is a Palestinian refugee who cannot be returned to Gaza or to any of the countries of his previous residence without violation of Sweden's obligations under international law.

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