4 INTERNATIONAL CATEGORIES AND LEGAL REGIMES FOR FORCED MIGRANTS
4.2 Internally displaced persons
Displacements affect people in vulnerable situations that are forced to leave their place of residence. This can often unwillingly lead to violations of economic, social, and cultural rights as a result of inappropriate policies that are not mindful of the needs and struggles of the affected persons (Kälin, 2005, p. 10; Zetter, 2017a). Deng39 (in Guiding Principles on Internal Displacement, 1998, p. 5)identified the gray areas in the existing law to protect internally displaced persons, and he created the Guiding Principles on Internal Displacement, which elucidated the
“causes and consequences of internal displacement, the status of the internally displaced in international law, the extent to which their needs are being addressed under current institutional arrangements, and ways to improve protection and assistance for them”.
The Guiding Principles on Internal Displacement,40 is a normative non-binding framework for internal displacement that seeks to address human rights challenges in situations of
disaster-38 The UNHCR plays an essential role in monitoring the interpretation of the 1951 Convention by states. Still, there is no international judicial body that is competent to supervise states' application and interpretation of the 1951 Convention – except the cases covered by the general activities of the International Court of Justice (Lambert, 2010, p. xv). Some scholars (amongst others, Fitzpatrick, 1996; Chimni, 2001; Hathaway, 2002; Clark, 2004; Goodwin-Gill
& McAdam, 2007; North & Chia, 2008; Lambert, 2010) advocate for the enactment of an international independent judicial body.
39 Francis Deng served as a Human Rights Officer in the UN Secretariat from 1967 to 1972 and was appointed in 1992 until 2004 as the UN’s first Special Rapporteur on the Human Rights of internally displaced persons.
40 The Guiding Principles on Internal Displacement were drafted by Dr. Francis Deng and presented on 11 February 1998 to the UN Commission on Human Rights. The Guiding Principles on Internal Displacement is a soft law mechanism that serves as a normative and institutional framework to practical guidance to governments, other competent authorities, intergovernmental organizations, and non-governmental organizations (NGO) in their work with IDPs (Guiding Principles on Internal Displacement, 1998). Henceforth referred to as the 1998 Principles.
induced displacement and to assist the affected persons during their displacement and resettlement and reintegration (Deng, 1998, p. 5), and it outlines the status of IDPs 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 (Guiding Principles on Internal Displacement, 1998, para.
Albeit the slow-onset damages in the environment are explicitly contemplated as a cause for displacement, in some cases, the lack of sudden environmental stressors for triggering displacement may “limit effective protection and assistance” (Kraler et al., 2011, p. 38). In those cases, the reason for displacement might be wrongly attributed to economic factors that are a result of environmental degradation (Warner, 2010, p. 2; Cook et al., 2016). The gradual process of the environmental decline stimulates, at first apparently voluntary displacements, as a practical way to improve their livelihood. Later, the displacements become an adaptive measure, or the only viable solution to prevent future harm. Nevertheless, environmental displacements cannot be classified in absolute terms of voluntary or forced migration, as there is no exact incident or a point in time in which the shift between voluntary and forced displacements can be identified, and it depends on the freedom of choice of each individual in the moment of deciding to displace (Gonzalez Tejero et al., 2020).
The 1998 Principles identify the rights that are necessary to cover the specific needs of IDPs in all phases of displacement, resettlement, return, and reintegration, and to protect the affected persons from arbitrary displacement (Deng in Guiding Principles on Internal Displacement, 1998, p. 5).
They include guidelines, duties, and responsibilities for all authorities regarding the preservation of rights and freedoms of IDPs, who are entitled to equality and should be protected against discrimination. The 1998 Principles prompt states to prevent and avoid conditions and circumstances that can contribute to internal displacements, and they urge the authorities to explore all feasible alternatives that are less critical. They also seek to protect during the displacement against physical, psychological, and moral harm, preservation of their right to dignity, freedom of movement, the right to a family, the right to an adequate standard of living, education, property and to deliver humanitarian assistance. The 1998 Principles seek to facilitate the return, resettlement, and reintegration of IDPs in the most breve period possible (Guiding Principles on Internal Displacement, 1998).
There are repercussions to the inclusion of environmentally displaced persons in the category of IDPs related to the uniformity of the application of the status. States are the ones who need to adapt the soft law mechanisms, like the 1998 Principles, into national legislation to grant legal status for IDP. However, so far very few countries have adopted such legislation (Höing & Razzaque, 2012, p. 20; Kraler et al., 2020), and they are reluctant to accept the responsibility prompted by the sovereignty in their territory (Kneebone, 2010, p. 234; Lennartz et al., 2021). The lack of adaptation of the 1998 Principles into national legislation leaves the environmentally displaced persons without a uniform application of the regime of protection.
The inconsistent protective regime creates a different treatment of the affected persons depending on the country they are in, the leniency of the state’s legislation, the state’s inclination to address the problem, and the state’s discretion. If the legislative efforts to adapt the 1998 Principles are not undertaken properly, the internal displacement can result in a cross-border displacement, thus leaving the environmentally displaced persons unable to receive protection, as the scope of protection of the 1998 Principles is only for the displacements within the state borders (Kneebone, 2010, p. 235; Goodwin-Gill & McAdam, 2017, p. 34). Additionally, not all environmental displacements can be done within the same state, creating discrimination amongst the affected persons regarding the application of the category and protection. Internal displacements might create further complications, especially in small island states, as the displacement between islands aggravates some of the issues caused by environmental degradation (Locke, 2009, p. 177).41 To provide the IDP with a homogeneous legal status and protection, it is essential to reinforce the normative and operational implementation of the 1998 Principles (Kälin, 2010; Kälin & Schrepfer, 2012; Goodwin-Gill & McAdam, 2017). However, the UN Charter declares that “/n/othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter” (Charter of the United Nations, 1945, Art.
2.7). Thus, states prevail as the primarily responsible for those people who are displaced within their national borders.
41 See chapter 3 for an in-depth analysis of the consequences of internal displacement in the island-states of Tuvalu and the Republic of Kiribati caused by environmental degradation.
Nonetheless, the UN General Assembly adopted the Responsibility to Protect (R2P),42 which calls for collective intervention in the case of unwillingness or inability of states to protect their own civilians from atrocities (Gunatilleke, 2016), including the non-observance of the Guiding Principles of Internal Displacement (UN General Assembly, 2005, para. 132). However, their mere existence of the capabilities does not ensure the application of these standards (Weiss & Korn, 2006; Welsh, 2019). In the case of the R2P, some shortcomings prevent the suitable application of the doctrine, mainly that there are no normative criteria to apply the doctrine (aside from the prospect principles of exhaustion of peaceful remedies, proportionality, and reasonable prospects of success (ICISS, 2001, p. XII)). The non-coercive mechanisms of R2P (such as humanitarian intervention) remain vastly unused in the application of the R2P doctrine (Cohen, 2010). Thus, the limitations in implementation and the narrow interpretation of the principle hinder the relevance of R2P in the situation of IDPs (Lwabukuna, 2021).