Those aspects of international law dealing with the rights of

displaced persons are not fit for purpose.

The question at hand prima facie deals with the area of the rights of refugees,
which is governed by the 1951 Geneva Convention on refugees and the 1967
protocol. Today, the convention not only provides the critical rights such as
non-penalization for illegal entry, non-refoulement and non-expulsion but also
guarantees the socio-economic rights as provided to non-national by the
international laws. It is imperative to note that the protocol has eliminated the
state option to restrict the protection to pre-1951 refugees, by “universalizing”
the Refugee Convention, thus ensuring that a balance is maintained between the
rights of the refugees and interest of the host state. Apart from this, in the
following essay, the given question statement, correctness would also be
analysed that whether or not the rights of internally displaced persons are
properly protected by the international law mechanisms?

While looking at the historical background, it can be stated that concerns for
the refugee rights started right after the aftermath of the WWII. However,
today, there are 35 million refugees and 71 million internally displaced persons
[IDPs] globally, which means that rights of such people need to be protected
[Amnesty International]. Therefore, 1951 Refugee convention, adopted by the
UNHCR, provides for the protection of refugees. The convention is crucial as it
enshrines the ‘model of non-discrimination’ of the charter of UN such as UDHR
[article 14], ICCPR [article 26,4], Convention against Torture [article 3] and
ICERD, all makes the principle of non-discrimination a non-derrogable human
right. In similar vein, its importance has been stressed by the World
conference on the human rights which was held in Vienna 1993, where the
General assembly held that Convention and Protocol are the “cornerstone of
the international system for the protection of refugees”. In contrast to this, it is
notable that there is no universal legally binding instrument which addresses for
IDPs, but in 1988 UN commission on Human rights adopted some guideline
principles which albeit don’t have legally binding effect but contains rules
which are part of the existing international human rights law. This is adequately
documented in the ‘Compilation and Analysis’ and ‘Annotations’ to the Guiding
Principles prepared by Professor Kalin.

The 1951 convention defines refugee as “someone who is unable or unwilling

to return to their country of origin owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular
social group, or political opinion.” This definition contains number of elements
such as; “well-founded fear of persecution”. This fear demands that a person
demanding refugee status is outside his country or habitual residence and he is
unwilling or unable to return back as he is stateless. The refugee status is
determined by subjective test, i.e., the applicant’s own understanding regarding
that fear, when the fear is not clear and objective test, i.e., ‘well-founded’ fear,
which takes into account the background of the situation and is difficult to
conclude. On the other hand, the issue of ‘persecution’ is equally crucial. There
is no single definition provided therefore interpretations are taken from the
convention by concluding that article 33 indicates that it means “threat to life or
freedom on account of race, religion, nationality, political opinion or
membership of particular social group”.

In addition to this, the convention also offers with important rights to the
refugees such as article 3 and 4 talks about the non-discrimination. Similarly,
Chap III provides the refugees with the employment right, while, Chap IV deals
with the rights regarding the welfare, social and economic rights and Chap V
outlines the administrative rules. One of the important provisions is article 33
which prohibits refoulement, meaning that the state parties are prohibited to
return the refugees to those “territories where their life or freedom is
threatened” unless the refugee poses a “threat to security or danger to the
country expelling him” [article 33(2)]. For instance, in May 2009, Italy was
found in violation of ECHR and principle of non-refoulement as it failed to
protect the refugees. Similarly, in 2013 when Thailand returned back the boats
of Rohingya people fleeing from Burma due to the conflict in Burma, UNHCR
expressed its grave concerns in regards to this.

However, it is of paramount importance that are some problems with the 1951
convention such that it fails to protect IDPs. The guiding principles defines IDPs
as “group of persons who have been forced to flee or to leave their places of
habitual residence, to avoid the effects of armed conflict, situations of
generalized violence, human-made disasters, and who have not crossed an
internationally recognized border." It is argued that IDPs, remain close to
suffer violation of their rights, then refugees but as these people doesn’t cross
border, therefore, albeit they suffer same “well-founded fear” and persecution
as refugees, still they aren’t provided with special status in international law.
Secretary-General Kofi Annan states, ‘internal displacement is the great
tragedy of our times. The internally displaced people are among the most
vulnerable of the human family. ’Paula Gaviria Betancur, the special
rapporteur on internally displaced persons in its report to general assembly
provides that in 2022, “28.3 million people were displaced by conflict and
violence, approximately 2.3 million of whom were displaced by causes related
to generalized violence. From 2015-2021, 3.1 million people died because of
intentional homicides, compared with 700,000 people in armed conflicts”. It is
to be argued that as IDPs holds no legally binding protection in international
law therefore it is the responsibility of state to protect and assist them or in other
words IDPs lies at the mercy of the state actors. For instance, in Afghanistan, in
2022 there were 2.2 million people who were internally displaced. In Burma,
millions of Rohingya Muslims are internally displaced. In Pakistan, I billion
people are internally displaced. In Columbia, 4.8 million people are internally
displaced because of the conflict and violence at the end of 2022. Thus, from
these statics it can be argued that world doesn’t protect such people resulting in
violation of rights of millions of human beings.

Another argument can be made that IHL aims that internally displaced persons
shouldn’t be treated inhumanely and they mustn’t be discriminated on the basis
of their displacement and other reasons. It provides provisions which are found
in IV Geneva Convention, 1977 additional protocols and customary
international humanitarian law [CIHL]. States do have an obligation to adopt
domestic measures to implement and incorporate international rules while
enacting their national legislation. Some following provisions must be
considered while enactment such as prohibition of forced displacement and
right to voluntary return in safety, protection as part of the civilian population,
respect for life, dignity and humane treatment, non-discrimination, right to
employment, education, family life, documentation, adequate standard of living.
Similarly, the guiding principles on internal displacement is also consistent with
IHL. It provides principles from 1-30; that identifies the rights and guarantees
protection to persons “against forced displacement, and assisting them during
displacement and during their return or resettlement and reintegration”.

Coming back to the given question statement, albeit IHL and IHRL along with
the guiding principles on internally displaced persons have ensured that
protection must be provided to these people but it can never be argued that the
protection is same as accorded to refugees. In the words of James Grant,
former executive director, UNICEF “the world has established a minimum
safety net for refugees. Whenever people are forced into exile…refugees can
expect UNHCR to be on the scene in a matter of days or in a matter of weeks.
This is not yet the case with respect to internally displaced populations”.
However, it is notable that as the global awareness in regards to IDPs is
increased, international debate often focuses on ‘right to humanitarian
assistance’. Roberta Cohen states that UN agencies and NGOs have become
far more active in persuading governments and rebel forces to assist displaced
persons with food and supplies. For Instance, in Iran 1991, “the international
community not only demanded access to hundreds of thousands of displaced
Kurds but set up a security umbrella to protect them”. Moreover, IHL is
emphasising on states to adopt and implement guiding principles on internal
displacement by states in their national legislation. As Chairman of UN
General assembly finds general principle “the minimum international standard
for the protection of internally displaced persons”. Similarly, the former
secretary-general, in march 2005, in his report on UN reform, ‘In Larger
Freedom’ urges the states “to accept the guiding principles as the basic
international norm of protection”. Former special representative of the secretary
general on internally displaced persons, Francis Deng also notes “no state
claiming legitimacy can quarrel with its commitment to protect all of its
citizens”. Sovereignty demands accountability to their population and
international community by complying with international human rights and
humanitarian agreement. Therefore, there is a need to recognize the guiding
principles in order to protect the IDPs.

Inter alia, it is undeniable that guiding principles have got practical impact on
the national level. A small but increasing number of states have adopted policies
based on the principles and implemented it in their national law. For instance,
Burundi, Sri Lanka, Philippines, Uganda have developed national polices on the
grounds of guiding principles. Columbian Government has interministerial body
that looks to these guiding principles for their work in regards to IDPs. The
Georgian government has also announced that they will bring their internal law
in consistent with these principles. In 2004, Peru’s congress legislated on the
basis of guiding principles to provide benefit to IDPs. In Afghanistan, the
“Principles are informing the provisions of a decree relating to the safe return
of IDPs”. Similarly, many non-state actors like former Sudan People’s
liberation Movement and Army used the principles in developing their policies
on IDPs. Even the German government has asserted on the status of guiding
principles that albeit it is “originally not conceived as a binding instrument
under international law, meanwhile they can be regarded as customary
international law”.

To conclude, it can be evaluated from the above discussion that 1951

convention albeit sets a minimum standard of protection for refugees but it fails
to take into account the cases of IDPs, which suffer the same circumstances and
challenges as refugees. The international law dealing with the rights of
displaced persons can’t be said to be not fit for purpose as IHL provisions along
with the guiding principles have taken many steps to accord protection and
humanitarian assistance to such people but as they have no legal binding effect,
therefore, violations of rights of such people occurs significantly. Thus, there is
a need that international law provides proper legal instrument in these regards.