CYIL 2011

TOWARDS A GENERAL RIGHT TO REPARATION FOR INTERNALLY DISPLACED PERSONS? type of acts that would trigger the right, the identity of the relevant duty holder(s) etc.). The two substantive sections are preceded by a terminological remark. Terminological Remark This paper uses two crucial terms which need to be defined from the outset to avoid misunderstandings. The first term is that of Internally Displaced Persons (IDPs). Introduced in the second half of the 20 th century, the term remained originally undefined, giving rise to doubts and controversies. 4 Yet, over the past decade, the definition contained in the preamble of the 1998 Guiding Principles on Internal Displacement seems to have gained increasing acceptance in the international community. It has been, among others, cited expressis verbis in the 2009 Kampala Convention and, likewise, in the 2006 Protocol on the Property Rights of Returning Persons, adopted at the International Conference of the Great Lake Regions. Since these treaties, unlike the Guiding Principles, are legally binding, it could be convincingly argued that the definition is no longer merely descriptive 5 or operational, 6 but has acquired – or has been acquiring – an important normative dimension as well. Under this definition, IDPs are “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 border”. 7 Two elements of the definition merit consideration. The first is the coercive or otherwise involuntary nature of internal displacement, 8 which makes IDPs similar to refugees. Yet, unlike refugees, 9 IDPs 5 In his high-quality annotations to the Guiding Principles, authored in 2000 and revised in 2008, the former UN Special Rapporteur on the Human Rights of IDPs, Walter Kälin, stresses that “the notion of who is an internally displaced person /.../ is not a legal definition. Becoming displaced within one’s own country of origin or country of habitual residence does not confer special legal status in the same sense as does, say, becoming a refugee”. W. Kälin, Guiding Principles on Internal Displacement. Annotations, ASIL and the Brooking Institute, 2000 and 2008, p. 2 and 4 (respectively). While this claim could have been true in 2000, it is less certain whether it is still valid in 2011. In spite of Kälin’s conviction that IDPs “need not and cannot be granted a special legal status under international law comparable to refugee status” (ibid., p. 3 and 4 respectively), it seems that international legal regulation has been gradually taking the direction of creating a special status for IDPs. 6 Catherine Phuong makes a distinction between a legal definition which “seeks to establish a legal regime of international protection” and an operational definition which “is aimed at facilitating material assistance and protection measures on the ground”. C. Phuong, op. cit., p. 28. She believes that with regard to IDPs, only the latter definition is available. Again, this may have been a correct assessment of the situation in 2003, when her book was completed, but it is open to doubt whether this assessment could still be upheld today. 7 Par. 2 of the Preamble of the Guiding Principle. See also Article 1(k) of the Kampala Convention. 8 The 2009 Kampala Convention in its Article 1(l) explicitly defines internal displacement as “ the involuntary or forced movement, evacuation or relocation of persons or groups of persons /…/”. 9 See Article 1 of the 1951 Convention Relating to the Status of Refugees and Article 1 of the Convention Governing the Specific Aspects of Refugee Problems in Africa. 4 See Phuong, C., The International Protection of Internally Displaced Persons, Cambridge University Press, Cambridge, 2004, pp. 13-38.

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