Protection of refugee is a worldwide problem that international community have attempted to address since the early twentieth century. The Statute of the UNHCR adopted by the General Assembly in December 1950 established the Office of the United Nations High Commissioner for Refugees (UNHCR) that is the principal international agency concerned with the assistance and protection of refugees. Its primary responsibilities relate to ‘providing international protection and seeking permanent solution for the problem of refugees’. Among its key function is the supervision of the 1951 United Nations Convention on the Status of Refugees of which Article 35 requires State Parties to cooperate with it.

Refugee in international law is governed by a complex network of national, regional and international law. The 1951 United Nations Convention on the Status of Refugees and the 1967 Protocol relating to the Status of Refugees are the principal legal instruments established for the protection of refugees which have been ratified by 147 states. In fact, 1967 Protocol extends temporal and geographical application of the 1951 Refugee Convention. It is argued that 1951 Convention and 1967 Protocol failed to recognize the person whose migration is prompted by natural disaster, war or broadly-based political and economic turmoil. By mandating protection for those whose (western inspired) civil and political rights are jeopardized, without at the same time protecting persons whose (socialist inspired) socio-economic rights are at risk, the Convention adopted an incomplete and politically partisan human rights rationale.

The 1951 Convention elevates ‘the status of refugee protection as a matter of international concern’. It contains most widely accepted definition of the term ‘refugee’ and ‘principle of non-refoulement’.[i] There is increasing threats to the principle of non-refoulement recent years. The evolution of non-entrée policies in the industrialized world and interdiction in the high seas become a regular state practices.

The two main characteristic of the Convention definition are its strategic conceptualisation and its Eurocentric focus. The Convention is thus on the one hand restricted the scope of protection and on the other hand sought to create a right regime conducive to the redistribution of the post-war refugee burden from European shoulders. In this sense, the Convention was intended to distribute the European refugee burden without any binding obligation to reciprocate by way of the establishment of rights for, or the provision of assistance to, non-European refugees. It was not until more than fifteen years later that the Protocol relating to the Status of Refugees expanded the scope of the Convention definition to include refugees from all regions of the world.

Next to the almost entirely missing obligations and implementation criteria, one should note that the 1951 Convention and 1967 Protocol is not comprehensively enough to secure the protection of refugees, leaving some critical elements outside its otherwise generously defined scope of application. Some of these missing elements are related to the centrality of state sovereignty, which is intrinsic to the refugee protection. In this context it may be noted that states have consistently refused to undertake an obligation to accept a right of asylum enforceable at the instance of an individual. [ii]

Ever since the 1951 Refugee Convention and its 1967 Protocol, states have realized the necessity of new rules, partly in order to fill gaps left by the present international refugee regime, but also to tune the international protection regime system better to cope with the rapid changes in refugee situations. At the end of 2009, the total number of ‘persons of concern’ under the mandate of the Office of the UNHCR had increased to 34,464,20. Several attempts to modify the international protection regime of refugee have been made over the years. These include the definition contained in the 1951 Convention on the Status of Refugee, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problem in Africa (OAU Convention), the 1984 Cartagena Declaration on Refugees. These international instruments on refugee acknowledges three alternatives as plausible permanent solutions to refugee problem – (a) repatriation to the country of origin; (b) local integration; and (c) resettlement in a third country. The discussion on durable solutions is extremely over-politcized and often resembles a clash between state generated refugees and receiving state that find no channel of communication between them. A vital element omitted from the regulatory domain of the 1951 Convention and 1967 Protocol is the provisions relating durable solutions. This omission is particularly awkward since durable solutions have as their core objective of refugee problem. The 1969 OAU Convention (Article V) remains the only international instrument to make an explicit reference to voluntary repatriation. However, the solutions to refugees don’t come easily. States involved in durable solutions apply pressure in varying form and degree on the refugees and thereby deteriorating conditions in areas where they have settled. In brief, international refugee law’s impact on the search for solutions to the refugee problem is at times imprecise and inadequate.

Additionally, in 1966, Asian-African Legal Consultative Committee (AALCC) adopted the principle concerning treatment of refugees and later a Group of Arab experts meeting in Cairo in November 2002 adopted a non-binding Declaration on the Protection of Refugees and Displaced Persons in the Arab world. These principles, also non-binding in character, have however exercised little influence in the region.

The increasing regionalisation of refugee problems and the growing membership of the United Nations have made it difficult to achieve the consensus required for the introduction of any new universal treaty on refugees. This has resulted increased gap between the responsibility entrusted to UNHCR and the obligations undertaken by the states. Numerous proposals are advanced to bridge the gap and to make refugee protection principles. One could group these suggestions (without claims for an exhaustive listing) into three categories:

(1) The first cluster of proposals suggests the insertion of supervision based on state reporting, advisory opinions or individual complaints to the international refugee regime similar to the ones existing monitoring mechanism in international human rights regime. This would arguably require the states to provide UNHCR with information concerning the condition of refugees, their implementation of the Convention and national laws relating to refugees, and thereby the states will get engaged in a ‘kind of dialogue of justification’. It is argued that, states already have a reporting obligation under Article 35(2) of the Convention. However, at present the application of this provision has not been regularized. Another option within this category, sketched by Professor Walter Kalin, is the creation of permanent Sub-Committee, possibly within the framework of the Executive Committee, responsible for Review and Monitoring. It is also conceivable that the Sub-Committee would be responsible for carrying out reviews of specific situations of refugee flows or of particular countries, which would be identified on the basis of transparent and objective criteria. Kalin has suggested, that these Refugee Protection Reviews would combine independent fact-finding and expertise with elements of peer-review (discussion of reports by other States Parties).

Other, subtler proposal put forward by Kalin is in essence to introduce a thematic Rapporteur that would be handled by the Executive Committee.

(2) Other proposition in this context, is introduction of a judicial body to encourage consistent interpretations of the provisions in the Convention and the standards in the Conclusions. Justice Tony North argued fervently for many years the introduction of an ‘International Judicial Commission on Refugees’. [iii] Under this proposal, the Commission would be created under the supervisory mandate of UNHCR contained in Para 8 of the UNHCR Statute, but would be independent of UNHCR. It would be nine-member independent body of experts, providing advisory legal opinions pertaining to questions of interpretation of the Convention. The members of the Commission would select these questions, although UNHCR would have a special power to seek opinions from the Commission. As Kalin notes, ‘it might be difficult to garner support for this proposal amongst States’.

(3) To fill some of the current gaps in the international protection regime, one possible means of influencing states can be to formulate and develop standards on International Protection through Conclusions adopted by the Executive Committee of UNHCR. Corinne Lewis suggested that ‘the although the Conclusions are not binding on states, Executive Committee is the only specialized forum for the development of international refugee law standards at a global level’. [iv] It is argued that the Conclusions therefore have the potential to have significant normative influence as an expression of the consensus of the international community on a specific protection matter. However, as Holborn quite rightly notes, despite this, they have generally been afforded relatively low status internationally. [v] In addition, Oscar Schachter, for example, believe that because international organizations are created to develop international norms, when states become members of those organizations, they accept an obligation to cooperate with each other to do so. Following the recommendations of such organizations therefore become a means by which states can fulfill this obligation. [vi]

However, all these proposals, besides the obvious difficulty of formulating them in a non-arbitrary and enforceable manner and of obtaining the states consent are not easy. Moreover, all of these suggestions are essentially ‘academic’ projects and not really politically driven ones that enjoy the support of the States Parties of the Convention. In fact, as the UNHCR/States Parties of the Convention clearly shows, the search for protection of refugee solutions within the UNHCR has largely given up. States are happy to maintain their low level of commitments and the escape to the forum of UNHCR offers security in this regard. Despite the impressive number of states that have ratified the Convention, and thus arguably committed to the objective of protecting the refugee, it is highly unlikely that a negotiating bloc would form within the UNHCR to push for some of the above ‘refugee’ solution. This is because when one looks at the political economy behind the adoption of the additional responsibility under the Convention, there is not only one voice. Different states have ratified it for different reasons following their own specific agendas.

Bayani introduced the subject of state responsibility for displaced populations. This issue has remained unsettled because of starkly different positions of the major states drivers, the European states, which also reflect pro-culture stances during the 1951 Convention debate. One proposition in this context is to introduce relevant international law norms and the evaluation of the past practices with reference to obligations owed by the state of origin to the receiving country. Another suggestion has been to create obligations owed by the state of origin to the international community. Tomuschat suggested the UNHCR has a right to recover the costs incurred in assisting refugees from the country of origin. Chimni raised question would the UNHCR has the legal standing to claim the costs of assisting refugees? [vii]

As a consequence of this deepening discord, ‘sovereignty as responsibility’ discourse is becoming increasingly attractive for politicians as the popularity of human rights champions wanes, in particular in developed countries and as national values and interests, especially after 9/11, gain prominence. Yet the politically driven disconnect between sovereignty and responsibility, while easily justified before the constituencies concerned, is not necessarily beneficial for either the domain of refugee or that of protection/solution. Oscar Schacter argues that ‘it is highly undesirable to have a new rule allowing humanitarian intervention, for that could provide a pretext for abusive intervention’. [viii] The idea of ‘sovereignty as responsibility’ was first put forward by the Sudanese scholar and Special Representative of the UN Secretary General for Internally Displaced Persons, Francis M. Dang, particularly in a publication by the Brooking Institute Sovereignty as Responsibility: Conflict Management in Africa (1996). Here Deng believed the sovereign state as the primary guarantor of human rights and human security. This document came after two major defeats for the new interventionism, after following the ignominious withdrawal of UN forces from Somalia in 1993, and the failure to halt atrocities in Rawanda in 1994. However, Deng linked his new idea of sovereignty to the failure of the US Operation Restore Hope in Somalia. Meanwhile, Kofi Annan challenged international society to avoid ‘future Rawandas’. The challenges were responded by western scholars and political leaders, most notably by the International Commission on Intervention and State Sovereignty (ICISS), an independent panel partly funded by the Canadian government. In its report, the ICISS expounded the new doctrine ‘the Responsibility to Protect’. Here Third world states reaffirmed their long understanding on issues of self-determination, development and non-intervention. The author submits that one should avoid to extend norms beyond the point at which they cannot provide meaningful guidance.

Issues for Discussion

The record of the refugee protection standards raise a number of general questions: Does the protection offered by the international, regional and national instruments sufficient to address the Refuge Problem? Whether the norms created by these instruments and state practice are coherent? Can the UNHCR provide guidance as to standards which must be maintained by states; and can the system be used to enforce these standards in order to provide an effective guarantee to refugees? To what extent present durable solutions available in refugee system be workable? A central issue in durable solution of refugee problem whether ‘voluntary repatriation’ is better than ‘local integration’ and ‘third state resettlement’, that is used rarely? Could it be possible to develop law of state responsibility in regard to refugee problem? The question of enforcement/compliance of refugee standards is certainly one of the most sensitive issues in international refugee law. Do we promote international human rights machinery to play a more active role in refugee affairs? To what extents are recent proposals enforcing obligations on states reflected in various meetings/symposiums become reality? By and large, would a reform in refugee system be viable?

The focus will also be on ‘sovereignty’: asylum and refugee; the implication of ‘sovereignty as responsibility’ and ‘responsibility to protect (R2P)’ on refugee problem. The basic question is; what did the opponents of R2P means when they argued that third world states should not accept the R2P because it ‘allows powerful states to intervene in poor countries for illegitimate purpose’. And what did the proponent mean when they said that such argument did not lead to the opponent’s conclusion.

Suggested Readings
 

B. S. Chimni (ed.), International Refugee Law: A Reader (Sage Publications, New Delhi, 2000).

Vera Gowland and Klaus Samson (ed.), Problems and Prospects of Refugee Law (The Graduate Institute of International Studies, Geneva, (1991).

Sadruddin Aga Khan, “Legal Problems relating to Refugees and Displaced Persons”, Recueil Des Cours, vol. I (1976), pp. 287-352.

E. Reut-Nicolussi, “Displaced Persons and International Law”, Receuil des Cours, vol. II (1948).

Ranabir Samaddar (ed.), Refugees and the State (Sage Publications, 2003).

Notes

“The look of pure terror on the face of the little Korku tribal girl child said it all as the elephant razed her house in the pouring rain.  Her parents pleaded with the Forest officials saying that they were living and cultivating the lands there for the past three decades.  However, the officials said they had no alternative, since they had been instructed to evict all encroachers as ordered by the Supreme Court.”[i]

The eviction of indigenous people from their land is a recurrent theme in South Asia.  Be it Ranigaon, Golai, Motakeda, Somthana, Ahmedabad, Bandarban, or Trincomalee, thousands of families are being evicted from their homes either in the name of conflict or due to disasters or in the name of modernization. They are being forced to stay in the open, in pouring rain with a number of them suffering from malnutrition and starvation and they are fearful for their lives at most times. The last two decades have witnessed an enormous increase in the number of internally displaced people in South Asia.  Their situation is particularly vulnerable because unlike the refugees they are unable to move away from the site of conflict and have to remain within a state in which they were displaced. These unfortunate people who have been displaced once are often displaced multiple times by the hands of the powers that be.  Yet as displaced they do not have the capacity to cross international borders but seek rehabilitation from the powers that are responsible for their displacement in the first place.

Contextualising Internal Displacement in South Asia

South Asia is cultural mosaic diverse cultures, languages, customs, norms and other social practices which often over lap providing continuities and idscontinuities in the region. The socio-cultural notion of nation-state formation is not congruous with the politico-territorial formations in the post-colonial period. So there is obvious scope for ethnic and religious tensions in the intra-state level and inter state level. The South Asian situation on ethnicity and religious tension resolution for future is inevitably somewhat nebulous and shrouded in uncertainty. “It is also evident that religion and language as components of ethnic identity are important in dividing as well as unifying groups in South Asia. For example, in Sri Lanka, language is a basis for intra-group unity amidst an internal cleavage along religious lines, whereas ethnic groups in Pakistan are divided along linguistic lines even though they share a common religion. In Bhutan, Buddhism tends to unify the linguistically divided Bhutanese against the Nepalese speaking Hindu migrants from Nepal. As regards India, language is a major unifying force for many groups in conflict, while religion remains the main source of conflict in a few cases—notably in Punjab and Kashmir. It is only in Bangladesh that both religion and language provide the basis for inter-group division and intra-group unity”[ii]. This is the most significant complexity in which ethnic (language) and religious identity is intertwined in such a way to add more complexity to the region.

The structural framework of the region—incorporating features such as close geographical proximity, socio-cultural linkages and inter-dependent politico-strategic relations of states—creates internal pressures for regionalization of ethnic conflict as an inevitable part of political life.[iii]

Besides being ‘potential refugees’ who might cross international borders, most of the IDPs living in these countries share ethnic continuities with the people of the neighbouring countries. The Pashtuns of northwest Pakistan for example, seem to harbour an active interest in the affairs of their ethnic cousins living in Afghanistan and vice versa. Similarly, much of what happens inside today’s Myanmar has its implications for the minorities of northeastern India and Bangladesh. Massive displacement and the resulting plight of the predominantly tribal populations such as, the Nagas of Myanmar continue to be one of the key running themes of the Naga rebel discourse across the borders and the ethnic cousins of Myanmar are described by it as, ‘the Eastern Nagas’. Insofar as the creation of national borders could not make many of these pre-existing ethnic spaces completely obsolescent, South Asia’s living linkages with West or South East Asia can hardly be exaggerated. Also national specificities notwithstanding South Asian IDPs are connected by their ethnicities, minority status and situations of extreme marginalisation.  This portrays the reality that in so far as in South Asia IDPs cannot be regarded as a national category.  It is essential to think of them as regional categories.

Besides, conflict as source of displacement, naturural disasters are recurrent in South Asia, which at times are trans boorder impact oriented as well.  It is witnessed as in the case of Indian ocean tsunamis of  2004 hitting Sri Lanka, India and Maldives, Kashmir earthquake of 2005 affected both Indian and Pakistan side of Kashmir, Aila cyclone in May 2009 affected India and Bangladesh. Recent flood has affected thousands of lives in Pakistan. It is partinent to ponit out in this context that, as a result of continuous environmental degradation; flood and river-bank erosion in the plains, and landslide in the hills have become endemic. This has caused innumerable deaths, destruction and population displacement. The intensity of flood, river-bank erosion and landslide has increased substantially over the years in terms of area and victims. Now the only few South Asian countries are in the process of setting up the legal-institutional framework to tackle disasters. India has taken the lead to constitute a national disaster management authority (NDMA) based on national disaster management act (2005). This is supposed to provide the national policies and guidelines not only to tackle post-disaster relief and response but also to promote proactive  preparedness and mitigation measures. Other countries are also taking their own measures in the lines of Hyogo framework for action (2005).

Moreover, the heavy emphasis on large-scale projects for infrastuctural development of the country has led to the displacement of millins in South Asia. Development-induced displacement has been associated with the construction of dams for hydroelectric power and irrigation purposes but also appears due to many other activities, such as mining and the creation of military installations, airports, industrial plants, weapon testing grounds, railways, road developments, urbanization, conservation projects, forestry, etc. affecting multiple levels of human organization, from tribal and village communities to well-developed urban areas. Needless to say, establishment of the Special Economic Zones (SEZs) and Export Promotion Zones (EPZ) stipulate huge land requirements causing millions of people’s displacement from their ancestral land in era of globalization.

Why IDPs are more Vulnerable

Although all persons affected by conflict and/or human rights violations suffer, displacement and likely to increase the need for protection. Following are broad reasons why IDPs are considered more vulnerable due to:

• Movement to unhealthy or inhospitable environments
• Destruction of community social fabric and social organizations
• Seperation or disruption of family groups
• Women may be forced to assume non-traditional roles or face particular vulnerabilities.
• Internally displaced populace, and especially groups like children, the elderly, chronically ill, physically challenged or pregnant women, may experience profound psychosocial distress related to displacement.
• Due to displacement livelihood may be badly affected which may add to physical and psychosocial vulnerability for displaced people.
• School education for children and adolescents may be disrupted due to lack of restoration of schools or increase in distance in new location. Even sometimes children do not get adequate study space
• Internal displacement to areas where local inhabitants are of different groups or inhospitable may increase risk to internally displaced communities; internally displaced persons may face language barriers during displacement.
• Internally displaced persons may lack identity documents essential to receiving relief benefits or legal recognition. Such documents are either lost or misplaced during displacement.
• Lack of basic amenities such as proper shelter, nutrition, water, sanitation, etc.  

In south Asian context the situation of IDPs seems particularly more vulnerable when one considers that there are hardly any legal mechanisms that guide their rehabilitation, care and protection.  Since the early 1990s the need for a separate legal mechanism for IDPs in South Asia has increasingly been felt.  This is not only to compile new laws but also to bring together the existing laws within a single legal instrument and to plug the loopholes detected in them over the years. Only recently the international community has developed such a mechanism that is popularly known as the ‘UN Guiding Principles on Internal Displacement.’ The Principles consolidate into one document the legal standards relevant to the internally displaced drawn from international human rights law, humanitarian law and refugee law by analogy. In addition to restating existing norms, they address gray areas and gaps identified in the law. As a result, there is now for the first time an authoritative statement of the rights of internally displaced persons and the obligations of governments and other controlling authorities toward these populations.[iv]

This has given us a framework within which rehabilitation and care of internally displaced people in South Asia can be organised. Keeping that in mind it becomes imperative for scholars working on issues of forced migration in South Asia to consider whether South Asian states have taken the Guiding Principles into account while organising programmes for rehabilitation and care for the internally displaced persons (IDPs). 

The Guiding Principles on Internally Displaced Persons set out the rights of internally displaced persons relevant to the needs they encounter in different stages of displacement. The Guiding Principles provide a handy schematic of how to design a national policy or law on internal displacement that is focused on the individuals concerned and responsive to the requirements of international law.  Similarly, governments (and particularly national human rights institutions where they exist), advocates, and displaced persons can use the Guiding Principles as a means to measure the compliance of existing laws and policies with international standards.  Finally, their simplicity allows the Guiding Principles to effectively inform the internally displaced themselves of their rights. The Guiding Principles are thus part of a growing number of “soft law” instruments that have come to characterize norm-making in the human rights field as well as other areas of international law, in particular environmental, labor and finance.  Although the Guiding Principles do not constitute a binding instrument like a treaty, they do reflect and are consistent with existing international law. They address all displacement—providing protection against arbitrary displacement, offering a basis for protection and assistance during displacement, and setting forth guarantees for safe return, resettlement and reintegration.[v]

One of the most important contributions of the Guiding Principles is to develop an acceptable definition/description of those who can fit within the category of internally displaced persons.  They are defined as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.”[vi] The definition provided by the Guiding Principles on Internal Displacement highlights two elements: (i) The coercive or otherwise involuntary character of movement; the definition mentions some of the most common causes of involuntary movements, such as armed conflict, violence, human rights violations and disasters. These causes have in common that they give no choice to people but to leave their homes and deprive them of the most essential protection mechanisms, such as community networks, access to services, livelihoods. Displacement severely affects the physical, socio-economic and legal safety of people and should be systematically regarded as an indicator of potential vulnerability. And (ii) The fact that such movement takes place within national borders. Unlike refugees, who have been deprived of the protection of their state of origin, IDPs remain legally under the protection of national authorities of their country of habitual residence. IDPs should therefore enjoy the same rights as the rest of the population. The Guiding Principles on Internal Displacement remind national authorities and other relevant actors of their responsibility to ensure that IDPs’ rights are respected and fulfilled, despite the vulnerability generated by their displacement.

Some 25 million people worldwide currently live in situations of internal displacement as a result of conflicts or human rights violations. Although internally displaced people now outnumber refugees by two to one, their plight receives far less international attention.[vii] The Guiding Principles also reflect on the rights of displaced people, the obligations of their states’ towards them and also the obligations of international community towards these people.  It is pertinent to make such rights accessible to vulnerable people of South Asia who are already displaced or live in fear of displacement. This module overall attempts to nurture the dialogue and discussion on issues concerning internal displacement.

Many IDPs remain exposed to violence and other human rights violations during their displacement. Often they have no or only very limited access to food, employment, education and health care. Large numbers of IDPs are caught in desperate situations amidst fighting or in remote and inaccessible areas cut-off from international assistance. Others have been forced to live away from their homes for many years, or even decades, because the conflicts that caused their displacement remained unresolved. While refugees are eligible to receive international protection and help under the 1951 Refugee Convention and the 1967 Protocol, the international community is not under the same legal obligation to protect and assist internally displaced people. National governments have the primary responsibility for the security and well-being of all displaced people on their territory, but often they are unable or unwilling to live up to this obligation.

Salient Features of Guiding Principles

The Principles identify the rights and guarantees which, when fully observed and respected, can prevent arbitrary displacement and address the needs of internally displaced persons in terms of protection, assistance and solutions. In keeping with its focus on needs, the Principles are structured around the phases of internal displacement: They address protection against displacement (Principles 5 – 9); protection during displacement (Principles 10 –23); the framework for humanitarian assistance Principles 24 – 27); and protection during return, local integration in the locations where persons have been displaced, and resettlement in another part of the country (Principles 28 – 30).[viii]  It is important to understand the context it is relevant and applicable as stated by Walter Kalin in his interpretative notes on Guiding Principles-Annotations: “The protection of internally displaced persons is complicated by the fact that internal displacement can occur in three different situations: (1) during peace, e.g., as a result of natural or man-made disasters or tensions and disturbances that fall short of internal armed conflict where human rights law applies; (2) during non-international armed conflict governed by some of the most important principles of humanitarian law and by many human rights guarantees; and (3) during interstate armed conflict where the detailed provisions of international humanitarian law become operative, and at the same time, many important human rights guarantees remain applicable.” The Guiding Principles cover all three situations and attempt to facilitate the invocation and application of relevant legal norms, as it is often difficult in practice to determine which norms apply to each of these situations. The Principles identify those guarantees that have to be observed in all situations.[ix]

What Types of Displacement are Prohibited by the Guiding Principles?   

Principle 6 affirms that “[e]very human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.”  Support for this proposition can be found in humanitarian law and also in the right to movement, guaranteed by a number of human rights instruments, which can be reasonably expected to have as its corollary the “right not to move.”  

It is important to note that the Guiding Principles do not claim that displacement is always prohibited.  In both humanitarian and human rights law, exceptions to the general rule are available.  Rather it is arbitrary displacement” that must be avoided and Principle 7 provides a sort of roadmap for avoiding arbitrariness.  First, all feasible alternatives to displacement must be explored.  In situations of armed conflict, this means that a determination must be made either that the security of the population or “imperative military reasons” require displacement before it can be carried out.  

Where displacement is to occur outside the context of armed conflict, Principle 7 provides a list of procedural protections that must be guaranteed, including decision- making and enforcement by appropriate authorities, involvement of and consultation with those to be affected and the provision of an effective remedy for those wishing to challenge their displacement.  These provisions are, of course, of particular interest to those facing displacement for development projects.

Moreover, in either context, “all measures” must be taken to minimize the effects and duration of the displacement and the responsible authorities are required to ensure “to the greatest practicable extent” that the basic needs of those displaced (e.g., shelter, safety, nutrition, health, and hygiene) are met. It should also be noted that Principal 9 articulates a “special obligation” to protection against displacement of a number of groups whose special attachment to territory has been recognized in international law, including indigenous persons, minorities, peasants, and pastoralists.

What Rights do Persons have Once Displaced?

Displaced persons enjoy the full range of rights enjoyed by civilians in humanitarian law and by every human being in human rights law.  These include the rights to life, integrity and dignity of the person (e.g., freedom from rape and torture), non-discrimination, recognition as a person before the law, freedom from arbitrary detention, liberty of movement, respect for family life, an adequate standard of living (including to access to basic humanitarian needs), medical care, access to legal remedies, possession of property, freedom of expression, freedom of religion, participation in public life, and education, as set out in Principles 10-23.  

In several instances, the Guiding Principles specify how generally expressed rights apply in situations of displacement.  These should be of particular interest to those designing and assessing domestic policies on internal displacement.  For example, Principle 12 provides that, to give effect to the right of liberty from arbitrary detention, internally displaced persons “shall not be interned in or confined in a camp” absent “exceptional circumstances” and that they shall not be subject to discriminatory arrest “as a result of their displacement.”  Likewise Principle 20 provides that the right to “recognition everywhere as a person before the law” should be given effect for displaced persons by authorities facilitating the issuance of “all documents necessary for the enjoyment and exercise of their legal rights, such as passports, personal identification documents, birth certificates and marriage certificates.” 

The Guiding Principles provide for special consideration of the needs of women and children (including “positive discrimination” or affirmative activities on behalf of governments to model assistance and protection to their particular needs, consultation and involvement in decisions regarding their displacement and return or resettlement, protection against recruitment of minors and free and compulsory education), as well as for other especially vulnerable groups, such as the elderly and disabled. 

What Rights and Obligations do Humanitarian Organizations Have?

The Guiding Principles also lay out a number of rights and obligations of humanitarian organizations in Principles 24-27.  This section again stresses the point that “[t]he primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities” (Principle 25(1)).  In carrying out this duty, national authorities must not “arbitrarily withhold” consent to international humanitarian organizations’ offer of services to the internally displaced, and must “grant and facilitate” their free passage to areas where assistance is needed.  Humanitarian personnel, materiel, and supplies are not to be attacked or diverted for other purposes.  For their part, humanitarian organizations must carry out their operations “in accordance with the principles of humanity and impartiality and without discrimination” and should “give due regard to the protection needs and human rights of internally displaced persons” and not just their needs for assistance. 

What Help Should Displaced Persons Expect with Return, Reintegration and Resettlement?

In their final section, the Guiding Principles provide that competent authorities have “the primary duty and responsibility” to assist displaced persons by providing the means as well as by establishing conditions for return to their places of origin, or for resettlement in another part of the country (Principle 28).  Any return or resettlement must be voluntary and carried out in conditions of safety and dignity for those involved. 

As a corollary to the right to free movement, therefore, displaced persons have the right to return to their homes.   Although the right to return or resettle is not expressly stated in any particular human rights instrument, this interpretation of the right of free movement is strongly supported by resolutions of the Security Council, decisions of treaty monitoring bodies, and other sources of authority.

Moreover, although the displaced have the right to return, Principle 28 carefully specifies that they must not be forced to do so, particularly (but not only) when their safety would be imperiled.  The issue of the voluntariness of return or resettlement is recurrent in protracted displacement situations around the world.  In many places, governments and insurgent groups have ceded to the temptation to use the return or resettlement of displaced persons as a political tool. 

Principle 29 provides that authorities also have “the duty and responsibility” to assist displaced persons to recover “to the extent possible” their property and possessions, and where restitution is not possible to provide or assist the displaced persons to obtain appropriate compensation.   Like the preceding principle, this one relies on general precepts of the right to property, the right to remedy for violations of international law, as well as a growing adherence in Security Council resolutions, treaties, national law and other sources of authority.

Are their Any Special Provisions for Women?

In the guiding principles a concerted attempt was made to prioritise gender issues.  For example, while discussing groups that needed special attention in Principle 4 it was stated that expectant mothers, mothers with young children and female heads of households, among others, are people who may need special attention. In Principle 7 it was stated that when displacement occurred due to reasons other than armed conflict authorities should involve women who are affected, in the planning and management of their relocation.  Principle 9 upheld that IDPs should be protected in particular against “Rape, mutilation, torture, cruel, inhuman or degrading treatment or punishment, and other outrages upon personal dignity, such as acts of gender-specific violence, forced prostitution and any other form of indecent assault.” Special protection was also sought against sexual exploitation.  Principle 18 stated that special efforts should be made to include women in planning and distribution of supplies. Principle19 stated that attention should be given to the health needs of women and Principle 20 stated that both men and women had equal rights to obtain government documents in their own names. 

Apart from the Guiding Principles there are other international mechanisms that displaced women can access.  They include the 1979 Convention on the Elimination of All Forms of Discrimination against Women (hereafter CEDAW) and the 1999 Optional Protocol sets out specific steps for states to become proactive in their efforts to eliminate discrimination against displaced women.  Article 2 of CEDAW clearly states that public authorities, individuals, organisations and enterprises should refrain from discrimination against women.  Article 3 reiterated women’s right to get protection from sexual violence.  Article 6 spoke against trafficking and sexual exploitation of women.  Since most displaced women are particularly vulnerable to traffickers this article is of some importance to them.  It must be noted that all the countries of South Asia are signatories to CEDAW with some reservations but not of the proportion that it negates the overarching principles and therefore the onus of being gender sensitive in their attitude and programmes is on them. Apart from these there are other international provisions that protect women’s human rights.  Article 3 of the Geneva Conventions of 12 August 1949 calls for the halt of weapons against the civilian population and to protect all civilians, including children, women and persons belonging to ethnic and religious minorities from violations of humanitarian law.   Article 29 of ILO 1930 Convention concerning forced or compulsory labour also impacts the situation of women.  It calls for the end of violations of the human rights of women, in particular forced labour, abuse and torture of labourers including women.

Are the Guiding Principles Legally Binding?

Although the UN Guiding Principles on Internal Displacement is not a legally binding treaty it is formed of principles that are based on established legal mechanisms for aiding the human rights of the displaced people. Many of these Principles may gradually attain the status of customary international law. But as Francis Deng reminds us, “for the time being they serve as a morally binding statement.”[ii] A statement of this nature that promises to be ‘morally binding’ on a wide spectrum of primarily national governments and secondarily, other relevant international and non-governmental agencies must cut across the well-known divisions of the prevailing ethical and moral systems and elaborate itself in a way that it does not remain captive to any particular modality of moral reasoning. Plurality of such systems and modalities is helpful in building the much-needed ‘moral consensus’ around these principles.

While the Guiding Principles have already gained an impressive degree of recognition at the international, regional, and national level, more remains to be done to foster their use, particularly in South Asia, where many states with large displacement problems lack comprehensive policies or effective remedies for those.  It is to be hoped that this module will itself encourage that process.  South Asia has seen millions of people displaced both across borders and within borders – again both by conflict and by developmental projects, and in some cases by natural calamities.  This module is intended to make a survey of how far the Guiding Principles on IDPs is relevant to each state of the region and how far they have been implemented and what remains to be done. 

Whose Responsibility is it Anyway?

If the state-centric nationalistic approach has meant the exclusion of minorities and has produced large number of refugees in the post-colonial states in Asia and Africa, state-centric national security perspective and development paradigm have not done any better. The people displaced against this backdrop may have got some relief if they have been able to cross international boundaries. Crossing the international boundary may entitle them to “refugee” status, thus providing them at least a fig leaf of relief and rehabilitation in an alien land. But wretched are those who remain internally displaced. They remain at the mercy of the same state and administration whose policy might have sent them on the run. According to all estimates, the number of Internally Displaced Persons (IDPs) is rising compared to the refugees seeking shelter in another country. South Asia is no exception to this. But, so far, no systematic and comprehensive study was carried out. Only a few brief, and sometimes sketchy, reports and articles are available on the plight of the IDPs in South Asia. This module hopefully will fill that awesome and disturbing vacuum. The module is meant to explore the nature and the extent of displacement in respective countries of South Asia and provide recommendations to minimize the insecurity of the displaced by discussing mechanisms for rehabilitation and care. As for who takes responsibility for the displaced?  The answer is primarily the state, although there are attempts on its part to abdicate its responsibility in this regard. None of the states of South Asia recognizes right against forced displacement as a non-negotiable right. We have to note that it is the policies of the state and the model of development and nation building that it has pursued since its birth that have caused and continue to cause displacement in largest numbers. It is primarily a failure of the state system. The module is meant to explore how far South Asian states are sensitive to the needs of the IDPs, how they can be made sensitive to these needs and whether the UN Guiding Principle are being adhered to, to any extent.  

What is the way Ahead?

In their few years of existence, the Guiding Principles have in fact obtained a high level of recognition.  When they were first presented in 1998, the Commission on Human Rights merely “noted” them and the intention of the Representative to use them in his dialogue with states.   Over time, however, the language of regular resolutions in the Commission, the Economic and Social Council (ECOSOC) and the General Assembly has grown increasingly warmer.  In 2003, for instance, both the Commission and the General Assembly “welcome[d] the fact that an increasing number of States, United Nations agencies and regional and non-governmental organizations are applying them as a standard, and encourages all relevant actors to make use of the Guiding Principles when dealing with situations of internal displacement[.]”   They have also been acknowledged at the level of the Security Council, at international conferences,  and adopted by the U.N. and wider humanitarian community as their standard.

The Guiding Principles have been well received by multi-lateral organizations at the regional level.  They have been welcomed in resolutions, declarations and statements by organs of the Organization of African Unity (OAU) (now known as the African Union), Economic Community of West African States (ECOWAS), Inter-Governmental Authority on Development (IGAD), Organization of American States (OAS), Organization for Security and Cooperation in Europe (OSCE), the Parliamentary Assembly of the Council of Europe (CoE) and the Commonwealth.   

Among states in South Asia, Sri Lanka has similarly relied upon the Guiding Principles in the formulation of its National Framework for Relief, Rehabilitation and Reconciliation.   Likewise, civil society institutions have made increasing use of the Guiding Principles to assess domestic policy and practice concerning displaced persons.  It is hoped that in the near future more states in South Asia will accept, adopt and adhere to the Guiding Principles regarding the internally displaced.  

References

1.Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das, Internal Displacement in South Asia, sage, New Delhi, 2005

2. Addressing Internal Displacement: A Framework for National Responsibility Guiding Principles on Internal Displacement

3. Erin Mooney, “The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern",  in Refugee Survey Quarterly, Volume 24, Issue 3, 2005.

4. Report on ‘Protecting and Promoting Rights in Natural disasters in South Asia: Prevention and Response’, Brookings Institute-University of Bern, Project on Internal Displacement,  2009

Web-based E-Materials

1.   Protection of Internally Displaced Persons: Inter-Agency Standing Committee Policy Paper

2.  Sovereignty as Responsibility: The Guiding Principles on Internal Displacement/ Roberta Cohen

3.  An Overview of Revisions to the World Bank Resettlement Policy

4. Walter Kälin, “Guiding Principles on Internal Displacement – Annotations”,  Studies in Transnational Legal Policy, No. 32, published by The American Society of International Law and The Brookings Institution Project on Internal Displacement, 2000.

Additional Reading List

1.  Sibaji Pratim Basu, (ed.) The fleeing People of South Asia, Selections from Refugee Watch, Anthem South Asian studies, 2009

2.  Larry Maybee, Benarji hakka, (eds.) Custom as a Source of International Humanitarian Law,  ICRC, AALCO, 2006

3.  P.R. Chari, Mallika Joseph, Suba Chandran, (eds.) Missing Boundaries: Refugees, Migrants, Stateless and Internally Displaced Persons in South Asia, Manohar, New Delhi, 2003.

4.  Anuradha M. Chenoy, Militarism and Women in South Asia, Kali for women, New Delhi, 2002

5.  United Nations Commission on Human Rights, Analytical Report of the Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1992/23

6.  Roberta Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting,’ Global Governance, Vol. 10 (2004)

7.  Putting IDPs on the Map: Achievements and Challenges, Forced Migration Review, Special Issue, December 2006.

8.  Michael Barutciski , Tension Between the refuge and concept and IDP debate,  FMR, December 1998.

9.  Jon Bennett,  Forced Migration within National Borders: The IDP Agenda,  FMR, Jan-April, 1998.

10. Indian National Disaster Management Act, 2005, www.nidm.in

11. Draft Document on Sri Lankan National Framework for Relief, Rehabilitation and Reconciliation,  2008.

Notes

[i] Pradip Prabhu, “Tribals Face Genocide,” Combat Law: The Human Rights Magazine, Vol. 1, Issue 4 (October-November 2002) p. 73

[ii] P. Sahadevan, “Ethnic Conflicts and Militarism in South Asia” International Studies, 39,2 (2002) p.103.

[iii] Ibid. p.104

[iv] Walter Kalin, “Guiding Principles on Internal Displacement – Annotations”, 2000. p.xi

[v] Ibid. Francis M. Deng in his Preface note, p.xiii

[vi] Guiding Principles on Internal Displacement, Para. 2

[vii] Internal Displacement Monitoring Centre, Norwegian Refugee Council

[viii] Walter Kalin, P.3
[ix] Ibid. p.7