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Practising the Guiding Principles for Development s Displacees : Problems and Prospects

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Practising the Guiding Principles for Development s Displacees : Problems and Prospects Introduction By Sudeep Basu * In the nearly two decades since the end of the Cold War, internal displacement has
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Practising the Guiding Principles for Development s Displacees : Problems and Prospects Introduction By Sudeep Basu * In the nearly two decades since the end of the Cold War, internal displacement has been recognized as a problem affecting virtually every region of the world and giving rise to legitimate international concern. The number of Internally Displaced Persons (IDPs) forced to flee their homes due to persecution, conflict, or natural and man-made disasters but not seeking shelter in a country outside their own outstripped the number of refugees worldwide as early as the mid-1990s. The impact of internal displacement is not restricted to the millions of people forced to flee their homes. Internal displacement also takes a political, economic, and social toll on the general population and neighbouring countries. In view of the mounting crisis of internal displacement, the United Nations Human Rights Commission created the mandate of the Representative to the United Nation Secretary General (RSG) on Internal Displacement in Secretary General Kofi Annan appointed Dr. Francis Deng as the first mandate-holder. During the Cold War, international attention to displacement had primarily focused on the plight of refugees, or persons seeking protection outside of their country of origin or habitual residence. As a result, the legal status of IDPs was poorly understood. One of the most important components of Dr. Deng s mandate as RSG would turn out to be the development of a normative framework identifying rules of international law that applied to IDPs. The resulting Guiding Principles on Internal Displacement (hereinafter, the Guiding Principles) was submitted to the UN Human Rights Commission in * Is Assistant Professor at the Gujarat Institute of Development Research, Gota, Ahmedabad Refugee Watch, 37, June 2011 Practicing the Guiding Principles for Development s Displacees 17 Locating Development-induced Displacement in the Guiding Principles The Guiding Principles define internally displaced persons 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. Based in part on this definition and with a particular focus on those displaced by armed conflict, generalized violence, and human rights abuse the US Committee for Refugees (USCR) estimated that there were more than 20 million IDPs worldwide in These numbers, it might be said, encompass those who, if they were to cross an international border, could be considered refugees. Indeed it is this group those displaced by conflict and human rights violations which is generally thought to constitute the internally displaced. However, the definition set down in the Guiding Principles goes beyond refugee-like criteria to include those displaced by natural or human-made disasters. Principle 6, moreover, states that Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence; this prohibition against arbitrary displacement includes displacement in cases of large-scale development projects which are not justified by compelling and overriding public interests. The Guiding Principles apply to persons displaced by development projects, but internationally, persons uprooted by development projects often are not considered IDPs. They are not counted as IDPs by those collecting statistics and they are not given assistance by the organizations involved with IDPs (Cohen 2008:93). Although the Guiding Principles were not negotiated by governments, UN resolutions regularly refer to them as an important tool and standard for internally displaced persons and United Nations secretary-general has called upon governments to promote their adoption through national legislation. 3 In recent times those displaced by development projects represent the single largest subcategory within the global totality of IDPs with most left impoverished by the experience (Cernea 2006:26). It becomes necessary therefore, as Cernea states, to fully mobilise the social science conceptual and operational tools available to address involuntary population displacement and resettlement (Cernea 1996: 1515). The Guiding Principles were the first guidelines developed within the context of human rights and humanitarian law to address internal displacement. It may be useful to imagine the three main types of displacement defined in the Guiding Principles disaster-induced displacement, development-induced displacement, and conflict-induced displacement as situated at three points along a continuum. At one end, in the context of disaster-induced displacement, states generally are not only 18 Practicing the Guiding Principles for Development s Displacees willing but interested in seeking outside aid and attention for victims of floods, famines, earthquakes and the like. At the opposite end of the spectrum, when conflict-induced displacement takes place, states tend to be quite restrictive or at least highly selective about who is to gain access to which displaced populations and for what purpose. Development-induced displacement occupies a middle ground. On the one hand, states may welcome outside funding and technical assistance to launch development projects. At the outset, as development projects are being planned, the international community may have the opportunity to promote best practice models including, first and foremost, the promotion of development models that avoid displacement altogether and to play active roles as donors, partners, and monitors. On the other hand, once development projects are in operation and displacement has occurred and especially if evidence exists of arbitrary treatment, impoverishment, or denial of rights states may grow less open to outside advice or remedies. The challenge for the international community, therefore, is to find the mechanisms for effective international response when national action proves ineffective and considerable suffering results to the persons concerned (Robinson 2003: 27). In their study, Masses in Flight, Francis Deng and Roberta Cohen recommend recasting sovereignty as a concept of responsibility, that is, as an instrument for ensuring the protection and welfare of those under a state s jurisdiction (Cohen & Deng 1998: 275). They suggest, furthermore, that a balance must be struck between the principle of nonintervention in internal affairs and the equally compelling obligation to provide humanitarian assistance and promote observance of human rights. Put in terms more directly relevant to development-induced displacement, for example, the state s right of eminent domain the power of a state to take private property for public use needs to be balanced against a human being s right to home and property. In this light, development can be the proper expression of a state s responsibility to ensure the protection and welfare of its citizens. Where development leads to arbitrary displacement, injustice and impoverishment, the responsibility still falls primarily upon the state to take corrective action. The inclusion of development-induced displacement within the Guiding Principles definition poses several clear challenges, both to the representative of the secretary general and to the many United Nations and international agencies, governments, and nongovernmental organizations concerned with the IDP problem. First, the number of people worldwide that should be counted as IDPs under the Guiding Principles framework will add at least 10 million or more people per year to the existing estimates of conflict-induced displaced persons. Some would say that this only adds more people to a system responding inadequately at best to the current number of 20 to 25 million victims of conflict-induced displacement. Second, in addition to diluting the limited aid and attention available, one observer has suggested that the inclusion of development-induced Practicing the Guiding Principles for Development s Displacees 19 displacement in the Guiding Principles will lead to a loss of coherence in the protection regime. Development projects can be so varied in terms of causes and number of people affected that it would be difficult to apply these Principles in every situation. Third, there would be resistance from governments if development-induced displacement was included in the definition of IDPs. States may consider that their inclusion would give considerable scope to the international community to find pretexts to interfere in their domestic affairs (Saha 2000: 26). States generally are quite willing to grant access to assist victims of natural disaster and, at least when it serves their purpose, may permit aid to victims of conflict-induced displacement. But, governments naturally fight harder to maintain the concept of national sovereignty when the perpetrator of displacement is the state itself (Petterrson 2002: 17). As a cause of displacement, it must be said that development is different. Some disasters may be inevitable just as some conflicts may be necessary but no one would view them as a good in and of themselves. Development, on the other hand, is seen as a right to which all people should have access. But just as people have a right to development, they have a right to be protected from development s negative effects, including arbitrary eviction and the loss of economic, social, civil and political rights. When displacement does occur as a result of developmentand especially before it occurs; international guidelines and evolving international norms affirm that its goal is to improve lives and livelihoods and require that it should be a transparent and participatory process. Multilateral Agency s Resettlement and Rehabilitation Policy (R&R policy) As of 2000, about 300 development projects supported by the World Bank involved involuntary resettlement. 4 World Bank s detractors generally credit the Bank as being the first major development agency to formulate a comprehensive policy on involuntary resettlement, at least for those projects with which it is involved. Responding to criticism of what one report called the devastating social impact of poorly planned population relocation, the World Bank first took steps more than 20 years ago to make resettlement of relocated populations an integral rather than peripheral part of project planning and implementation. 5 In December 2001, following a lengthy process of review and internal consultation (as well as external consultations with selected borrower countries and NGOs), the World Bank published a revised Operational Policy on Involuntary Resettlement, OP The focus of the revision was on removing ambiguities and taking lessons of implementation into account, without changing the key objectives and principles of the policy. 6 The operational policy covers direct economic and social impacts that both result from Bank-assisted investment projects, and are caused by a) the involuntary taking of land resulting in relocation or loss of shelter; loss of assets or access to assets; or loss of income sources or means of livelihood, whether or not the affected persons 20 Practicing the Guiding Principles for Development s Displacees must move to another location; or b) the involuntary restriction of access to legally designated parks and protected areas resulting in adverse impacts on the livelihoods of the displaced persons (World Bank s Operational Policy on Involuntary Resettlement 4.12). The Asian Development Bank (ADB) formally adopted an involuntary resettlement policy in Like the World Bank policy on which it was modeled, it seeks to avoid involuntary resettlement, if possible, minimize displacement where it is unavoidable, and ensure that the displaced people receive adequate assistance to restore their living conditions to at least the pre-project levels. 7 ADB implementation procedures require that an Initial Social Assessment (ISA) be conducted for every development project in order to identify the people who may be beneficially and adversely affected by the project. It should assess the stage of development of various sub-groups and their needs, demands, and absorptive capacity. It should also identify the institutions to be involved in the project and assess their capacities. 8 Where population displacement is unavoidable, a detailed resettlement plan with time-bound actions and a budget is deemed to be required. Resettlement plans are to be built around a development strategy and compensation, resettlement and rehabilitation packages to be design to generally improve or at least restore the social and economic base of those to be relocated. Guiding Principles and National Frameworks One of the most encouraging signs of international acceptance of the Guiding Principles on Internal Displacement has been the proposal, adoption, and implementation of numerous laws, policies, and decrees addressing internal displacement in all regions of the world. Almost twenty countries have enacted laws and policies explicitly based on the Guiding Principles to date, while other countries have acted to regulate specific problems related to displacement in a manner consistent with their international obligations without necessarily referencing the Guiding Principles. 9 These developments reflect a growing realization that internal displacement must be addressed at the national level, both as a matter of legal obligation and national interest. However, both the complexity of the international legal standards reflected in the principles and the range of domestic legislative and policy issues they must be applied to present significant obstacles to exercising national responsibility. As set out in Guiding Principle 3, national authorities have the primary duty and responsibility to provide protection and assistance to IDPs. What are governments expected to do in order to fully comply with that obligation? While international and regional supervisory bodies can and should be encouraged to play an important role in response to situations of internal displacement and in promoting and implementing the Guiding Principles, such efforts should fundamentally be subsidiary and supplementary to efforts at the national level. This is in line with the general Practicing the Guiding Principles for Development s Displacees 21 approach of the Guiding Principles, which seeks to reinforce state responsibility in situations of internal displacement. First, national governments, in fundamental ways, are key to any efforts that might reduce overall development-induced displacement and mitigate its risks. Therefore, firstly, governments should become familiar with the Guiding Principles and the provisions that are applicable to development projects. Secondly, governments should examine and incorporate these Principles as well as World Bank guidelines into their own policies and laws. Thirdly, governments should be encouraged to adopt their own National Action Plans on Human Rights that include provisions for prevention and protection against arbitrary displacement due to development. One fundamental step that states can take to exercise their responsibility with regard to internal displacement is to take steps to prevent it. Such measures should focus on both preventing unnecessary displacement and, when displacement is unavoidable, taking steps to mitigate its harmful effects. As set out in Guiding Principle 5, the most important factor in preventing displacement is to accord full respect to international law, in particular human rights and humanitarian law an undertaking that goes beyond the drafting of laws and policies and has implications for all branches of government. Raising awareness of the existence and nature of internal displacement among all relevant stakeholders and of the steps necessary to address it is an important precondition for the implementation of laws and policies on internal displacement. National awareness is especially important in the context of IDP laws and policies, which often may be required to respond to the particular vulnerabilities of IDPs through special measures, such as targeted humanitarian aid or facilitated document replacement, that are not available to others. It is therefore crucial for members of the general public and especially those living in communities hosting large numbers of IDPs to understand that such measures are neither politicized nor arbitrary, but rather necessary to place fellow citizens disadvantaged by displacement in a position of legal and material equality. It requires mention that the same principles of non-discrimination that govern states treatment of IDPs vis-àvis the non-displaced population also hold within IDP populations. Internally displaced populations are typically diverse, and it is important to ensure that some segments do not arbitrarily receive worse treatment than others. An important starting point in addressing displacement in laws and policies could be the question of whether the current legislative framework needs to be changed. 10 Most countries have a hierarchy of legal norms that must be respected in the process of responding to displacement. Generally speaking, the strongest rules, such as laws of a constitutional character, also are the hardest to make or change, while less binding forms of regulation can be passed more quickly and with less deliberation and consensus. The most binding norms in most systems are laws with constitutional status, which typically require passage by a qualified majority of the legislature. 22 Practicing the Guiding Principles for Development s Displacees However, constitutional frameworks are generally very broadly framed and tend to include bills of rights that reinforce international human rights obligations at the domestic level, protecting the whole population, including IDPs. As a result, only in rare instances should constitutional change be necessary to respond to internal displacement. Problems are more likely to arise at the level of ordinary laws, which may often be passed by national or regional legislatures by a simple majority. Ordinary laws rarely explicitly mention human rights; they tend to set out the concrete procedures and modalities through which individuals are able to realize internationally guaranteed rights in their daily lives. In playing this important role, laws often are supplemented by other types of regulation, such as executive orders or decrees (which may, under certain circumstances, have the force of law) and administrative regulations. While policies and plans may be drafted and adopted with fewer formalities than laws, the process should nevertheless be transparent and inclusive. The drafting of policies provides an unparalleled opportunity to consult with IDPs to ensure that their capacities, as well as those of relevant civil society actors, are harnessed in formulating a response to the problem of displacement. National policies should be broadly framed in order to allow for quick and coordinated action in response to future waves of displacement as well as existing situations. To that end, they should include provisions regarding all causes of displacement and all aspects of displacement (prevention, protection and assistance during displacement, and durable solutions), as well as specific measures to be taken to identify and protect especially vulnerable IDPs. Comparisons and Obstacles: Institutional Arrangements and National R&R Policy of India The purpose of Section II of the Guiding Principles, comprising Principles 5 through 9, is to ensure that individuals and groups are not subjected to
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