The Kampala Convention: Bringing IDP Rights into Hard Law

A child sits in a makeshift tent in Kanyaruchinya IDP camp outside of Goma, DRC

Tomorrow, the African Union’s Kampala Convention (officially the Convention for the Protection and Assistance of Internally Displaced Persons in Africa) will come into force. This is an important step forward for providing internally displaced persons (IDPs) with rights in international law.

Like refugees, IDPs have been forced to flee their own homes. Unlike refugees, however, they remain within their own state. This means that rather than having protections in international law like refugees (through the 1951 Refugee Convention), primary responsibility for their protection continues to rest with their own state. But this can be problematic, especially in cases where the state cannot or will not protect its own population or is even responsible for their displacement (such as in Darfur). Further, while refugee numbers have remained relatively stable (at 15.2 million in 2012), IDP numbers have continued to grow. In 2011, there were 26.4 million IDPs in some 53 countries, only a little below the record number of 27 million IDPs recorded the year before.

IDPs were not even recognized as an international problem until the early 1990s (a story I told in a 2010 article). In 1998, the then-Representative of the Secretary-General for Internally Displaced Persons, Dr. Francis Deng, proposed a set of guiding principles on internal displacement. While these were non-binding on states, they used as their foundation existing international human rights law, humanitarian law, and refugee law. As Walter Kälin, the head of the legal team which drafted them and Deng’s successor as Representative of the Secretary-General for the human rights of internally displaced persons, argued: “It is possible to cite a multitude of legal provisions for almost every principle…”

This has meant that the guiding principles have had a much different outcome than a lot of other soft law initiatives. Within a few years of their drafting, they had been acknowledge by all the major UN organs, by a range of regional and sub-regional organizations, and brought into domestic law in a number of countries. In 2005, the UN World Summit declaration recognized the principles as “an important international framework” for IDP protection.

As a cornerstone for IDP protection, the guiding principles do a number of interesting things. First, they define IDPs as people “who have been forced or obliged to flee or to leave their homes” not just due to human rights violations, but also due to situations of armed conflict, generalized violence, and natural or human-made disasters. As such, they provide a much broader definition for IDPs then the 1951 Refugee Convention does for refugees. In addition, they lay out a wide range of rights for IDPs including rights against arbitrary displacement and forced return. They also establish that international humanitarian organizations have a right to offer their services and that “consent thereto shall not be arbitrarily withheld.”

The Kampala Convention brings these rights into international law, including the wide-ranging IDP definition. But it also requires signatories to introduce domestic laws and institutions to protect and assist IDPs, and introduces (at least on paper) strong monitoring provisions, including a dispute mechanism which refers issues to the African Court of Justice and Human Rights. While a number of African countries already have domestic policies, this will ensure better oversight and greater information on how the policies are actually working.

More broadly, for international relations scholars, this is also a very interesting story of norm emergence. As I discussed in the above article, a lot this literature focuses on hard law conventions as a clear sign of norm institutionalization (a good example of this process is the landmines convention). But the guiding principles have followed a very different route. While they were introduced at the international level, they have followed a much more bottom-up approach, gaining traction first through domestic implementation. As such, they show that there are many paths to norm institutionalization at the international level.

Phil Orchard

Dr. Phil Orchard is a Lecturer in International Relations and Peace and Conflict Studies at the University of Queensland and a research associate with the Asia-Pacific Centre for the Responsibility to Protect. With Alexander Betts, he is completing an edited volume on ‘Implementation in World Politics: How Norms Change Practice.He tweets @p_orchard.

Author: protectiongateway

Human Protection Hub

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