Vol. 16 No. 3 (March, 2006) pp.222-225

 

THE INTERNATIONAL PROTECTION OF INTERNALLY DISPLACED PERSONS, by Catherine Phuong.  Cambridge: Cambridge University Press, 2005.  318pp. Hardcover.  $100.00/£55.00. ISBN 0 521 82686 1.

 

Reviewed by Susan C. Breau, Dorset Fellow in Public International Law, British Institute of International and Comparative Law, London, United Kingdom. Email: s.c.breau [at] biicl.org.

 

One of the most serious human rights problems resulting from armed conflict is the internal displacement of the population. As Catherine Phuong states in her Introduction, internally displaced persons raise “some of the most urgent human rights and humanitarian problems of our time.”  Indeed, as she discusses later in her book, the methods of internal displacement and the resulting movement of peoples also constitute threats to international peace and security.  The civil war in Yugoslavia introduced an evil new term into the nomenclature of international politics – “ethnic cleansing.”  Phuong’s book is an important contribution to the rather minimal literature in this field.  It should be read alongside another important contribution, Chaloka Beyani’s HUMAN RIGHTS STANDARDS AND THE MOVEMENT OF PEOPLE WITHIN STATES.  (There is an error in Phuong’s book in the spelling of Dr Beyani’s name.)

 

As with many topics in international law, internal displacement is a difficult subject for analysis as many of the standards for displacement are not part of customary international law. In fact, as Phuong points out, countries like China view situations causing internal displacement as falling within the domain of internal sovereignty and not an international concern.  Phoung bases much of her analysis on the 1998 Guiding Principles on Internal Displacement, submitted to the Commission on Human Rights in 1998, and which are reproduced in full as Annex 1 of her book.  Many of these principles have not been accepted by the international community either as custom or as treaty obligations.  However, the choice of these standards make eminent sense as the treatment of internally displaced persons must be placed within a set of standards.  However, they must be treated with some caution as these standards as a whole have not been accepted as part of customary international law. 

 

Although this book is part of an International Law Series, a great deal of discussion is devoted to the nature of internal displacement within the context of armed conflict and the political pressures on the community of nations in dealing with mass displacement of populations. The point that states are avoiding their obligations under the 1951 Refugee Convention by preventing the crossing of borders and so choose to deal with internal displacement is an important one. Phuong states that “[p]rotection activities undertaken in favour of internally displaced persons . . . . must not amount to a pre-emptive denial of the possibility to seek asylum abroad.” This type of analysis is to be [*223] encouraged as international law takes place within a political context and there are obviously some cynical political motives in the treatment of internal displacement.

 

Phuong’s first task is to distinguish the internally displaced from refugees.  Her thesis is that internal displacement needs to be discussed within a wider human rights movement and that the distinction between refugees and internally displaced persons should remain.  In the Guiding Principles on Internal Displacement, internally displaced persons are persons “who have been forced or obliged to flee or to leave their homes or places of habitual residence . . . and who have not crossed an internationally recognized State border.”  A major distinction is the lack of a requirement of a “well-founded fear of being persecuted,” in Article 1 of the 1951 Refugee Convention.  Phuong rightly points out that the persecution-based standard is too restrictive and that the Refugee Convention does not include a right to asylum.  However, making clear lines between these two groups is difficult, and it may well be that the whole notion of displacement should be examined in the wider human rights context without distinguishing those who successfully cross borders from the rest.  However, even if one disagrees with Phoung’s conclusion, one has to commend the rigour of her analysis as she comprehensively engages the literature in this field.  A particular point of reference should be the work of Guy Goodwin-Gill (1996), the leading authority on refugee law. 

 

The second area of analysis is the current minimal legal protection of internally displaced persons. Once again Phuong’s discussion is detailed and comprehensive, including frequent reference to the 1995 Compilation and Analysis of Legal Norms which preceded the Guiding Principles.  Especially important is the discussion of international humanitarian law. Displacement, or ethnic cleansing, is a tool utilized to terrorise the civilian population and not only causes loss of property and of livelihood, but death by starvation and illness.  Although Phuong points to the situation in Sudan in the 1970s as the first examples of internal displacement, another major example of ethnic cleansing was the Armenian Genocide. Internal displacement in fact, is as old as armed conflict and has been a significant issue in international humanitarian law. 

 

Phuong’s analysis represents a major contribution to the literature concerning the role played by the international defense of human rights in providing legal protection to internally displaced people.  The balanced discussion focuses on the human rights aspects of the Guiding Principles as both reflective of current law and a contribution to the development of human rights law, particularly in the proposed right to restitution of property.  Phuong correctly points out the weaknesses of these Principles, especially with respect to the lack of extensive reference to minorities.  She also reveals the problems States have with the notion of legally binding principles.  Her conclusion is carefully crafted, as she expresses reservation as [*224] to whether they will become part of customary international law. 

 

The next part of the book examines the institutional framework of protection.  This part is especially relevant to the practitioner, and Phuong displays a sophisticated knowledge of the inner workings of the United Nations system.  Her recommendations for protection strategies, one would hope, will be read by the relevant international actors involved in the field. Also very important is the recommendation that the International Committee of the Red Cross take primary responsibility for protecting internally displaced persons in armed conflict. Another major contribution is in highlighting the work of Francis Deng, the UN Special Representative on Internally Displaced Persons.  UN Special Rapporteurs and Representatives have thankless tasks in dealing with many of the most serious human rights situations, and it is good to see his work acknowledged.  His ten years of work have made a significant difference, especially in the formulation of the guidelines upon which Phuong heavily relies. 

 

One of the most interesting parts of the book for those with interest in the law of armed conflict is the case study of Bosnia and Herzegovina.  The tragedy of ethnic cleansing, safe areas, and the massacre at Srebrenica, all reveal what can happen when there is no coherent strategy of protection for those who are internally displaced.  It is also most illuminating to discover the massive efforts that have gone into re-integrating survivors of displacement after the conflict ended. It also illustrates the importance of human rights protection in efforts to resettle persons in minority areas.  This also includes the right not to return to those areas if minority protection strategies are not in place.

 

However, it might have been useful to compare the situation in Bosnia and Herzegovina with displacement in Africa, where resources are not available to resettle displaced populations after conflict. Bosnia and Herzegovina, and later Kosovo, occurred in Europe, and thus there were sustained international and European efforts to return displaced persons. As Phuong points out, there were some four million internally displaced people in Sudan.  In a recent UN report, it was estimated that 1.65 million people were displaced deliberately, primarily by the Janjaweed militia, in the conflict in Darfur.  Case studies of these areas would reveal the necessity for the same coordinated effort that took place in Bosnia and Herzegovina and emphasize the reality that the human rights protection system in Africa is barely operating.

 

By far Phuong’s most interesting public international law discussion appears in the final chapter, entitled “Reconceiving Sovereignty and Intervention,” where she addresses humanitarian intervention as a mechanism to put an end to ethnic cleansing.  She does so in the context of the international responsibility to protect, an important new concept.  This responsibility is engaged when a nation is unwilling or unable to protect its own population.  Although written before the adoption of this concept by the General Assembly in its recent summit outcome document, this book is one of the first to [*225] discuss sovereignty as responsibility. There are three elements to this responsibility: obligation to prevent, responsibility to react, and duty to rebuild.  Phoung correctly notes the controversial aspects of the doctrine but begins a debate that should continue.  The only way internal displacement can truly end as a concern for the international human rights community is by robust and timely international preventive action in emerging conflicts. 

 

This monograph will be of great interest to human rights scholars and to those with an interest in public international law and international relations.  Phuong is to be congratulated for placing the issue of internal displacement within this wider context of peace and security

 

REFERENCES:

Beyani, Chaloka. 2000. HUMAN RIGHTS STANDARDS AND THE MOVEMENT OF PEOPLE WITHIN STATES. Oxford: Oxford University Press.

 

Breau, Susan. 2005.  HUMANITARIAN INTERVENTION: THE UNITED NATIONS AND COLLECTIVE RESPONSIBILITY. London: Cameron May.

 

Goodwin-Gill, Guy. 1996. THE REFUGEE IN INTERNATIONAL LAW, 2ND EDITION. Oxford: Oxford University Press.

 

International Commission of Inquiry on Darfur. 2005. REPORT OF THE INTERNATIONAL COMMISSION OF INQUIRY ON DARFUR TO THE UNITED NATIONS SECRETARY-GENERAL. Geneva: United Nations.

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Copyright 2006 by the author, Susan C. Breau.