Time for a convention on internal displacement? The history of the internal displacement protection regime

Relative to other forced migrants, refugees are in a privileged position in international law: they have legal status, rights under the 1951 Refugee Convention, and a specific organisation dedicated to their protection (UNHCR, the UN Refugee Agency). Internally Displaced Persons, or IDPs, have a much less developed protection framework, even though the global population of IDPs is 59.1 million. So what explains this difference of treatment between these two categories of forced migrants?

To answer this question, we need to turn to the drafting history of the 1951 Refugee Convention. The 1951 Convention was drafted in the aftermath of the second world war, when the main displaced population of concern to the international community was refugees of European origin. The drafters felt that it would be inappropriate to include IDPs within the convention’s remit. It was made clear during the drafting discussions, by the United States in particular, that the Refugee Convention was not being developed to protect all categories of forced migrants, but to assist a particular category of persons who were outside their own states and lacked protection of their states. The idea was to provide them with legal status and protection, to offset the disadvantages of alienation from their own country until they could acquire new protection or receive protection of their own states. France also raised the concern that responding to the needs of IDPs might infringe state sovereignty, since they were not outside their own states. UNHCR felt that persons displaced within their own states would require a more long-term commitment of resources than refugees. (The agency’s initial mandate was set for eight years: long enough, it was hoped, to achieve the task of resettling Europeans displaced during and after the second world war.) The United States and France were concerned that providing a protection framework for Internally Displaced Persons might encourage their own states to evade their responsibilities towards them. This might in turn increase states’ obligations under the 1951 Refugee Convention, and incline fewer states to participate in the refugee regime.  

Some of these concerns are still relevant today. IDPs and refugees often have similar wants, fears, and needs, but they are in fundamentally different legal positions. International frontiers still regulate the areas of territorial sovereignty, and the practical similarities between the plight of IDPs and refugees do not change that. The rights accorded to refugees are based on the fact that the refugee is outside his country of origin, and needs basic entitlements to survive in a country where he or she does not have citizenship: these rights would not make sense if granted to an IDP in a domestic context.  Furthermore, to allocate a legal status to IDPs could result in further discrimination between IDPs and other victims of human rights abuse who are not displaced. These concerns justify the exclusion of IDPs from the 1951 Refugee Convention.

Yet they do not fully justify the fact that the IDP protection framework is significantly less developed than that of refugees. Unlike refugees, IDPs have no specific international agency to protect them, although in recent years the UNHCR – along with other institutions – has become involved in IDP protection activities under the cluster approach. Yet IDPs might have greater protection needs than IDPs, at least in certain circumstances, because they have not left their states and therefore in closer proximity to the cause for flight. Moreover, IDP numbers are rapidly rising. They outnumber refugees two to one. 

Seventy years have now passed since the drafting of the 1951 Refugee Convention, and the attitude of the international community towards IDPs has shifted. Sudan’s internal displacement problem in 1972 was among the first to appear on the international agenda, when the Economic and Social Council of the United Nations requested that UNHCR coordinate humanitarian assistance required for, inter alia, ‘persons displaced within the country’. This was followed over a decade later by Thailand’s proposal that a study should be undertaken on the possible establishment of safety zones for refugees or IDPs as a way of lessening the refugee burden on the international community. However, the IDP issue gained significant momentum in the post-Cold War era, when the recognition of refugees was no longer seen as a strategic political act which would highlight the failure of the country of origin to protect its nationals. Chimni identifies this ideological shift as taking place in two overlapping stages. First, the language of protection was replaced with the reality of restriction. In this sense, states employed creative means to limit entry of refugees onto their territory, such as pushback operations, walls, carrier sanctions, and engaging in restrictive interpretations of the Refugee Convention. Such restrictive measures are still in operation today. Second, a new vocabulary entered refugee discourse, comprising terms such as ‘refugee crisis’, ‘preventive protection’, ‘the right to remain’, ‘buffer zones’, ‘relief corridors’, and ‘safe zones.’ Attention thus turned to policies of containment, with the goal of minimising refugee outflows. 

To these two stages I would add a third: the acceptance by both states and scholars that human rights violations within a state are not solely a domestic matter, and can attract the international responsibility of that state. Significant strides have thus been made in the last few decades concerning the legal protection of IDPs. Notable achievements include: (1) the creation of the position of the UN Special Rapporteur on the Human Rights of Internally Displaced Persons in 1992 by the UN Commission on Human Rights, which particularly through country visits has drawn significant attention to the extent to which states abide by their international obligations vis a vis IDPs; (2) the development of the Guiding Principles on Internal Displacement by a group of experts at the turn of the century, which although technically a non-binding document have nonetheless become the global standard of IDP protection and have been incorporated into laws and policies of many states around the world; and (3) the development of regional IDP treaties in Africa in the 2000s, which oblige member states to incorporate the Guiding Principles into their domestic laws. 

Although the latest major endeavour of the international community to address the protection needs of forced migrants – the UN Global Compact on Refugees – has been criticised by Ferris and Martin for ‘virtually ignoring’ IDPs, momentum nonetheless seems to be gathering behind improving the IDP protection framework. Fifty-seven states supported the establishment of the UN Secretary General’s High-Level Panel on Internal Displacement, and the Panel’s recent report makes bold and concrete recommendations to assist the plight of IDPs. Moreover, the UN Secretary General has called for a 50% reduction in the numbers of internally displaced persons by 2030.

Such an ambitious goal needs to be accompanied by ambitious changes if we are to reverse the trend of growing IDP numbers. African states have illustrated that what was perceived as impossible in 1951 – the creation of a binding treaty on IDPs – was possible fifty years later, albeit at a regional level. It is therefore high time to seriously consider whether a similar approach can be taken at a global level: the first ever global treaty on internal displacement.

Further reading:

Aleinikoff T Alexander , ‘The Unfinished Work of the Global Compact on Refugees’, International Journal of Refugee Law, vol 30, no 4 (2018)

Barutciski M, ‘Tensions Between the Refugee Concept and the IDP Debate’, Forced Migration Review, no 3 (1998)

Barutciski M, ‘The Reinforcement of Non-Admission Policies and the Subversion of UNHCR: Displacement and Internal Assistance in Bosnia-Herzegovina (1992–94)’, International Journal of Refugee Law, vol 8, no 1–2 (1996)

dos Santos A, ‘The (Un)Protection of Internally Displaced Persons under the Global Compact on Refugees’, in Alexander Sungurov et al (eds.), Current Issues on Human Rights (Dykinson 2020)

Ferris E and Martin S, ‘The Global Compacts on Refugees and for Safe, Orderly and Regular Migration: Introduction to the Special Issue’ International Migration vol 57, no 6 (2019)

Frelick B, ‘Preventing Refugee Flows: Protection or Peril’ World Refugee Survey, no 5 (1993)

Frelick B, ‘Preventive Protection’ and the Right to Seek Asylum: A Preliminary Look at Bosnia and Croatia’ International Journal of Refugee Law, vol 4, no 4 (1992)

Goodwin-Gill GS and McAdam J, The Refugee in International Law (4th edn, OUP 2021)

Hathaway JC and Foster M, The Law of Refugee Status (2nd edn, CUP 2014)

Hathaway JC, ‘Forced Migration Studies: Could We Agree Just to ‘Date’?’, Journal of Refugee Studies, vol 20, no 3 (2007)

Hudson B and Ní Ghráinne B, ‘Enhancing State-to-State Dialogue on Internal Displacement: Current Global Fora and Future Prospects?’, Refugee Survey Quarterly, vol 39, no 4 (2020)

Najeeb Al-Nauimi and Richard Meese, International Legal Issues Arising under the United Nations Decade of International Law : Proceedings of the Qatar International Law Conference '94 (Martinus Nijhoff 1995)

Ní Ghráinne B, Internally Displaced Persons and International Refugee Law (OUP 2022)

Ní Ghráinne B, ‘Safe Zones and the Internal Protection Alternative’ International and Comparative Law Quarterly, vol 69, no 2 (2020)

Ní Ghráinne B, ‘The Syrian Safe Zone and International Law’, Policy Brief, Institute of International Relations Prague (2020)

The header image shows the cover of Bríd’s book, Internally displaced persons and international refugee law, on which this post draws.