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The Right Not to Be Arbitrarily Displaced in Africa

Document Cited authorities 2 Cited in Related
Vincent
Published date01 November 2017
Date01 November 2017
DOI10.3366/ajicl.2017.0207
Author
Pages459-481
INTRODUCTION

In 2009, African Union (AU) Heads of States and Government adopted the first binding international treaty on internal displacement, the AU Convention for the Protection and Assistance of Internally Displaced Persons (IDP Convention).1 On 6 December 2012, the IDP Convention entered into force.2 The IDP Convention explicitly recognises the right of persons not to be arbitrarily displaced and recognises certain root causes of internal displacement such as: armed conflict, natural disaster (including climate change) and development projects. However, the IDP Convention does not elaborate on the content of the right specifically with regard to what states are required to do to protect displaced persons when the root causes of internal displacements are triggered.

With reference to international human rights sources, this article examines the normative content of the right not to be arbitrarily displaced in relation to three main root causes of internal displacement in Africa. In advancing this discussion, the first part provides a historical overview on the right not to be arbitrarily displaced in international law. The second part examines the formation of the IDP Convention and the main root causes of internal displacement in Africa. In the third part, the concept in relation to the various root causes of internal displacement in the IDP Convention is examined. Finally, this article considers the role of states, the African Commission on Human and Peoples' Rights (African Commission) and the Conference of State Parties in advancing the right not to be arbitrarily displaced.

 HISTORICAL OVERVIEW

Although the first mention of the right not to be arbitrarily displaced is in the 1998 Guiding Principles on Internal Displacement (Guiding Principles),3 the issue of internal displacement had been a source of global concern since the 1980s. The conflicts in Southern African countries such as Angola and Mozambique and the forced resettlement of communities occasioned by the belligerent policies of the apartheid regime in South Africa led to the displacement of millions and calls for an urgent response to the humanitarian crisis in the region. In 1984, the Organisation of African Unity (OAU) called for an international conference on the situation of displaced persons in Southern Africa.4 In 1986, OAU requested the UN Secretary-General and the UN High Commissioner for Human Rights to set up a preparatory committee in conjunction with representatives from the Southern African Development Community (SADCC) for the conference on displaced persons.5 In 1987, the UN General Assembly passed a resolution supporting this call and requested the UN Secretary-General (in collaboration with the United Nations High Commissioner for Refugees and the Secretary-General of the OAU) to convene a conference.6

An International Conference on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa (SARRED) was convened in Oslo, Norway, in 1988. At SARRED, it was noted that while there was legal and institutional protection for refugees, there was no such protection for internally displaced persons.7 The Oslo Declaration and Plan of Action on the Plight of Refugees, Returnees and Displaced Persons in Southern Africa adopted at SARRED requested the UN Secretary-General to carry out deliberations on the realisation of relief systems to displaced persons.8 Following SARRED, the UN General Assembly requested the UN Secretary-General to carry out research and discussions to ascertain the need for the development of a structure in the UN to undertake relief programmes for the benefit of IDPs. Also, the UN Economic and Social Council requested the Secretary-General to conduct a ‘United Nations system-wide review’ and ‘recommend ways of maximising co-operation and co-ordination among … various organisations of the United Nations system in order to ensure an effective response … to the problems of refugees, displaced persons and returnees.’9

While discussions on relief-based solutions were gaining momentum at the UN level, non-governmental organisations (NGOs) lobbied for a more concrete response. In the early 1990s, NGOs such as the World Council of Churches (WCC), the Friend World Committee for Consultation (‘Quaker’) and the Refugee Policy Group (RPG) emphasised the need for the creation of an international framework for the protection of IDPs and for the appointment of a UN special rapporteur on IDPs.10 However, the UN High Commissioner for Refugees (UNHCR) and the UN Development Programme (UNDP) questioned the appropriateness of raising the issue at the UN level.11 When lobbied, the UN Commission on Human Rights (CHR) responded differently.12 The CHR requested the UN Secretary-General to appoint a special representative on IDPs (Special Representative).13 In 1992, the UN Secretary-General appointed Francis Deng, a Sudanese diplomat and scholar, to undertake the mandate.14 In a series of reports, the Special Representative analysed the issue of internal displacement, focusing on the dynamics of the problem and the essence of having a normative standard for the protection of IDPs. In a 1997 report, the idea of a right not to be arbitrarily displaced was crystallised. The Special Representative recognised that in spite of the fact that there were derivative international law standards from which the constituent element of arbitrary displacement may be sieved, an explicit recognition of the right not to be arbitrarily displaced would ensure that the protection from displacement will be better strengthened. In 1998, following a series of consultations and studies, the Special Representative published a set of Guiding Principles that explicitly recognises the right not to be arbitrarily displaced.

The explicit recognition of the right has three significant imperatives. First, it provides IDPs with a legitimate claim that is constitutive (of other human rights violations implicated in internal displacement) and instrumental (for the realisation of specific redress).15 Second, it draws significant attention to the problem of internal displacement as a separate concern from other forms of forced migration issues such as refugee protection and the protection of stateless persons. Third, it justifies the need for international law to respond to the pressing challenges of international life16 and significantly the essence of recognising new categories of rights that respond to the imperatives of international life.17 Fourth, it grounds the discourse on internal displacement as a human rights problem invoking state obligation specifically in relation to IDPs. However, the Guiding Principles are non-binding and constitute soft law unlike the IDP Convention which invokes state responsibility. As with the Guiding Principles, the IDP Convention provides for the right not to be arbitrarily displaced but does not define the term ‘arbitrary’ nor elaborate on the content of the right in the context of the various root causes of internal displacement. Within the context of the IDP Convention, this article examines the normative context of this right in relation to the various root causes of internal displacement.

 THE AFRICAN CONTEXT

Ever since the start of the new century, Africa has been home to one of the largest populations of the world's IDPs. Motivated by the need to address the issue of internal displacement on the continent, the AU Executive Council decided that a distinct legal framework for the protection and assistance of IDPs was essential.18 The AU Executive Council directed the AU Commission to cooperate with stakeholders in the creation of the framework.19 Within the AU Commission, the Division of Humanitarian Affairs, Refugees and Displaced Persons of the Department of Political Affairs was assigned this mandate. In the realisation of this mandate, Chaloka Beyani (the UN Special Rapporteur on the Human Rights of IDPs) was asked to prepare a draft. Beyani prepared a Concept Note that was analysed in 2005 by a group of experts.20 A framework was developed from the meeting which was presented to the second AU Ministerial Conference on Refugees, Returnees and Internally Displaced Persons held in Ouagadougou, Burkina Faso.21 According to Beyani, ‘the ministers resolutely affirmed “zero” tolerance for refugees and internally displaced persons in Africa and called upon member states to achieve this objective.’22 The AU Executive Council endorsed the outcome of the Ouagadougou Conference and asked the AU Commission to commence preparation for a Special Summit of Heads of States and Governments on Refugees, Returnees and Internally Displaced Persons in 2008. Noting the advances made in respect of the instrument, the AU Executive Council requested the AU Commission to speed up efforts in partnership with the Permanent Representative Council Sub-Committee on Refugees, Returnees and Internally Displaced Persons and ‘relevant partners at the appropriate instance’.23

Between 2007 and 2009, the draft of the IDP Convention was developed and discussed.24 At the third AU Ministerial Conference on Refugees, Returnees and Internally Displaced Persons in 2008, the draft was adopted. In October 2009, the AU Heads of States and Government adopted the IDP Convention in Kampala, Uganda.25 On 6 December 2012, upon 15 ratifications, the IDP Convention entered into force. Forty states have signed the IDP Convention, 27 of which have ratified as at June 2017.26 Several root causes of internal displacement are specifically recognised in the IDP Convention, principal among which are conflict, disaster and development. Before discussing the obligation of states in relation to these root causes of internal displacement, it is relevant to consider these root causes and their prevalence across the continent. This discussion is advanced in subsequent sections.

Main Root Causes of Internal Displacement Conflict

The primary root cause of...

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