Incorporating the Guiding Principles on Internal Displacement into Domestic Law

661 Pages·2009·2.36 MB·English

About the ASIL In STUDIES IN TRANSNATIONAL LEGAL POLICY NO. 41
c
o
r
p
The American Society of International Law (ASIL) is a nonpartisan membership o
r
a
association committed to promoting the study and use of law in international tin
g
affairs. Organized in 1906, the ASIL is a tax-exempt, nonprofi t corporation th
e
headquartered in Tillar House on Sheridan Circle in Washington, DC. G
u
id
in
For over a century, the ASIL has served as a meeting place and research center g
P
for scholars, offi cials, practicing lawyers, judges, policy-makers, students, and rin
c
others interested in the use and development of international law and institutions ip
le IInnccoorrppoorraattiinngg
s
in international relations. Outreach to the public on general issues of international o
n
law is a major goal of the ASIL. As a nonpartisan association, the ASIL is open to all In
te
points of view in its endeavors. The ASIL holds its Annual Meeting each spring, and r
na tthhee GGuuiiddiinngg PPrriinncciipplleess oonn
sponsors other meetings both in the United States and abroad. The ASIL publishes l D
is
a record of the Annual Meeting in its Proceedings, and disseminates reports and p
la
c
records of sponsored meetings through other ASIL publications. Society publications e
m IInntteerrnnaall DDiissppllaacceemmeenntt
include the American Journal of International Law, International Legal Materials, the en
ASIL Newsletter, the ASIL occasional paper series, Studies in Transnational Legal t in
to
Policy, and books published under ASIL auspices. The ASIL draws its 4000 members D
o iinnttoo DDoommeessttiicc LLaaww::
m
from nearly 100 countries. Membership is open to all–lawyers and non-lawyers e
s
regardless of nationality–who are interested in the rule of law in world affairs. tic
L
a
For information on the ASIL and its activities, please visit the ASIL Web site w: Is IIssssuueess aanndd CChhaalllleennggeess
s
at http://www.asil.org. u
e
s
a
n
d
C
ha EEddiitteedd bbyy WWaalltteerr KK˙a˙a˙˙lliinn,, RRhhooddrrii CC..WWiilllliiaammss,,
lle
n
g
e
s
KKhhaalliidd KKoosseerr,, aanndd AAnnddrreeww SSoolloommoonn
Brookings-Bern Project on Internal Displacement
ISBN: 978-0-9792329-2-3 THE AMERICAN SOCIETY OF INTERNATIONAL LAW
2211009933__NNoo..4411__CCoovveerr__RR11..iinndddd 11 1122//2288//0099 88::2266::0055 PPMM
Incorporating the Guiding Principles on Internal
Displacement into Domestic Law: Issues and
Challenges
Edited by
Walter Kälin, Rhodri C. Williams, Khalid Koser, and AndrewSolomon
The American Society of International Law
The Brookings Institution–University of Bern
Project on Internal Displacement
Studies in Transnational Legal Policy No. 41
The American Society of International Law
Washington, DC
Published by
The American Society of International Law
2223 Massachusetts Avenue, NW
Washington, DC 20008
USA
www.asil.org
Phone: [phone]
Fax: [phone]
ISBN:978-0-9792329-2-3
ISSN: 1057-0551
©2010The American Society of International Law and The Brookings Institution
Studies in Transnational Legal Policy is the occasional paper series of the American Society of
International Law. Please visit the William S. Hein & Co. website or call [phone]
(U.S.)/[phone] (outside U.S.), to purchase this and other volumes in the series. The price
of each issue will depend on the length of the particular study.
For permission to reuse material from the publication, Incorporating the Guiding Principles on
Internal Displacement into Domestic Law: Issues and Challenges, please access
www.copyright.com or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive,
Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses
and registration for a variety of users.
THE AMERICAN SOCIETY OF INTERNATIONAL LAW
The American Society of International Law (ASIL) is a membership
association committed to promoting the study and use of law in international
affairs. Organized in 1906, ASIL is a tax-exempt, nonprofit corporation
headquartered in Tillar House on Sheridan Circle in Washington, DC.
For over a century, ASIL has served as a meeting place and research
center for scholars, officials, practicing lawyers, students and others interested
in the use and development of international law and institutions in
international relations. Outreach to the public on general issues of
international law is a major goal of ASIL. As a nonpartisan association, ASIL
is open to all points of view in its endeavors. ASIL holds its Annual Meeting
each spring, and sponsors other meetings both in the United States and abroad.
ASIL publishes a record of the Annual Meeting in its Proceedings, and
disseminates reports and records of sponsored meetings through other ASIL
publications. Society publications include the American Journal of
International Law, International Legal Materials, the ASIL Newsletter, the
ASIL occasional paper series, Studies in Transnational Legal Policy, and
books published under ASIL auspices.
ASIL draws its approximately 4,000 members from more than 100
countries. Membership is open to all—lawyers and nonlawyers regardless of
nationality—who are interested in the rule of law in world affairs. For
information on ASIL and its activities, please visit the ASIL Web site at
http://www.asil.org.
THE BROOKINGS INSTITUTION
The Brookings Institution is an independent organization devoted to
nonpartisan research, education, and publication in economics, government,
foreign policy, and the social sciences generally. Its principal purposes are to
aid in the development of sound public policies and to promote public
understanding of issues of national and international importance.
The Institution was founded on December 8, 1927, to merge the activities
of the Institute for Government Research, founded in 1916, the Institute of
Economics, founded in 1922, and the Robert Brookings Graduate School of
Economics and Government, founded in 1924.
The Board of Trustees is responsible for the general administration of the
Institution, while the immediate direction of the policies, program, and staff is
vested in the President, assisted by an advisory committee of the officers and
staff. The Institution maintains a position of neutrality on issues of public
policy to safeguard the intellectual freedom of the staff.
The Project on Internal Displacement, established in 1994, seeks to
improve the international community’s response to the global crisis of internal
displacement by supporting the mandate of the Representative of the UN
Secretary-General on Internally Displaced Persons. The Project prepares
major studies and articles on internal displacement, organizes regional and
country meetings to disseminate the Guiding Principles on Internal
Displacement, and initiated, organized and supervised the legal process that
resulted in the development of the Guiding Principles.
Table of Contents
Acknowledgements..........................................................................................ix
About the Editors.............................................................................................xi
Abbreviations.................................................................................................xiii
Introduction
Walter Kälin and Rhodri C. Williams...........................................................1
Movement-Related Rights in the Context of Internal Displacement
J. Oloka-Onyango.........................................................................................9
The Right to Humanitarian Assistance
David Fisher................................................................................................47
The Rights to Food and Water
Ambra Gobena..........................................................................................129
Planned Evacuations and the Right to Shelter during Displacement
Roger Zetter and Camillo Boano..............................................................165
The Right to Health and Basic Services
W. Courtland Robinson.............................................................................207
The Right to Education in Situations of Internal Displacement
Erin Mooney and Jessica Wyndham.........................................................247
Protection of Family Life
Karen Gulick.............................................................................................291
The Recovery of Personal Documentation
Conor Foley and Barbara McCallin..........................................................337
Property
Rhodri C. Williams...................................................................................363
Employment, Economic Activities, and Livelihoods
David Tajgman..........................................................................................433
The Right to Social Security Including Pensions
Anne Charbord..........................................................................................469
Political Participation Rights in Particular the Right to Vote
Jeremy Grace and Erin Mooney................................................................507
Legal Implementation of Human Rights Obligations to Prevent Displacement
Due to Natural Disasters
David Fisher..............................................................................................551
Development-induced Displacement and Forced Evictions
Shivani Chaudhry......................................................................................591
Acknowledgements
The Brookings-Bern Project on Internal Displacement of the Brookings
Institution and the editors of this publication wish to express our appreciation
to the authors and to the many individuals who contributed to its development.
We are particularly indebted to Amina Ibrahim and Erin Williams for their
extraordinary efforts in reviewing and preparing the manuscript for
publication. Recognition and appreciation are also due to Bernadette Passade
Cissé, who served as the publication’s Legal Editor, and to Akua Gyeke and
Shahrzad Rezvani, who verified and prepared the legal citations. Karin Gulick
and Nina Schrepfer provided editorial assistance for a number of chapters.
Preeti Deshmukh of the American Society of International Law reviewed and
coordinated publication of the final manuscript.
The Brookings-Bern Project would also like to acknowledge and thank the
organizations that provided funding for this volume, in particular the Paul D.
Schurgot Foundation for its early and continued support. Funding for this
study was also provided by the American Society of International Law and the
foreign ministries of Denmark, Finland, Luxembourg, Norway, and Sweden;
the Canadian Department of Foreign Affairs and International Trade; the
Swiss Department of Foreign Affairs; the United Kingdom Department for
International Development; and the U.S. Agency for International
Development. The study presented here was an integral part of a separate
project to publish Protecting Internally Displaced Persons: A Manual for Law
and Policymakers, for which funding was provided by the Government of
Austria. The initial need for this study was identified in a report prepared by
the Boltzmann Institute of Human Rights.
ix

About the Editors
Walter Kälin is Professor of Constitutional and International Public Law in
the Faculty of Law at the University of Bern, and Representative of the UN
Secretary-General on the Human Rights of Internally Displaced Persons.
Khalid Koser is Director of the New Issues in Security Course at the Geneva
Centre for Security Policy.
Andrew Solomon is Deputy Director of the Brookings-Bern Project on
Internal Displacement and a Fellow in the Foreign Policy Program of the
Brookings Institution.
Rhodri C. Williams is a consultant and researcher on human rights and
forced migration issues.
xi