Internally Displaced Persons (IDPs) and International Law

1. Internally Displaced Persons (IDPs) and International Law Nahakul Subedi Supreme Court of Nepal

2. Defining IDPs • The UN definition – " person or group of persons who have been forced or obliged to flee or to leave their homes or place of habitual residence, in particular as a result of or in order to avoid the effect of armed conflict, situation of generalized violence, or violation of human rights or natural or human made disaster and who have not crossed an internationally recognized border

3. Nepal IDPs Policy - "Internally Displaced Person" means a person who is living somewhere else in the country after having forced to flee or leave one's home or place of habitual residence due to armed conflict or situation of violence or gross violation of human rights or natural disaster or human made disaster and situation or with an intention of avoiding the effects of such situations.

4. Major components of the IDP definition • involuntary movement to avoid unfavourable situation (actual or anticipated) • within one's own country

5. comparison with refugees • has crossed country's border • refugee definition does not include natural disaster or development activities (fear of persecution on five different grounds) • the status of refugee entitles the individual to certain rights

6. sources of IDPs • conflict or gross and systematic violation of human rights • natural disaster, and • development activities

7. natural disaster and human rights • Natural disasters are traditionally seen as situations creating challenges mainly related to the provision of humanitarian assistance. Less attention has been devoted to the need for human rights protection in this particular context.

8. In particular, the tsunamis, hurricanes and earthquakes in 2004 and 2005, as well as the Haiti earthquake of 2010, highlighted the fact that affected persons may face multiple human rights challenges in the aftermath of natural disasters

9. human rights challenges in natural disaster • Lack of safety and security (e.g. rampant crime, secondary impacts of natural disasters, etc.); • Unequal access to assistance, basic goods and services • discrimination in aid provision;

10. Gender-based violence; • Abuse, neglect and exploitation of children; • Family separation, particularly for children, older persons, persons with disabilities and other individuals who may rely on family support for their survival; • Loss/destruction of personal documentation

11. Inadequate law enforcement mechanisms and restricted access to a fair and efficient justice system; • Lack of effective feedback and complaint mechanisms; • Forced relocation; • Unsafe or involuntary return or resettlement of persons displaced by the disaster; or • Lack of property restitution and access to land.

12. Observation • negative impacts on the human rights concerns after a natural disaster do not arise from purposeful policies but are the result of inadequate planning and disaster preparedness, inappropriate policies and measures to respond to the disasters, or simple neglect

13. HRBA on IDPs • A human rights-based approach provides the framework and necessary standards for humanitarian assistance activities based on universal principles, such as human dignity and non-discrimination. • HRBA provides ground for individual rights holders who can claim rights from particular duty bearers rather than simply being passive beneficiaries and recipients of charity.

14. Identify relevant needs and interests of affected persons • Identify rights holders and duty bearers • Identify the limitations of what people can demand (As the freedom of movement is not an absolute right, forced evacuations or relocations are permissible in certain exceptional cases ) • Ensure that humanitarian action meets human rights standards

15. UN Guidelines on IDPs • Major components • Equality • Dignity • Non-discrimination • Special need • Adequate standard of living • Respect to family life • Voluntary return

16. Dimensions • prevent • protect • resettlement: place of habitual residence or other places in the country voluntarily

17. Principles of Operational Guidelines • Preventing or stopping harm; • Ensuring that affected persons have access to relevant goods, services and opportunities; • Ensuring that affected persons can claim their rights; or • Avoiding or combating discrimination.

18. Nepal policy on IDPs Guiding Principles • UDHR and other human rights treaties • UN Guiding principles on IDPs • constitutionally conferred human rights • principles of social justice and equality, and • all party agreement on rehabilitation of displaced persons including CPA

19. Objectives/strategies/programmes of Nepal Policies • to adopt preventive and curative measures • to provide relief, benefit and facilities, and • to create safe, dignified and voluntary return and rehabilitation

20. Major strategies • participation of IDPs in relief and service delivery, rehabilitation and reconstruction (ss. 7.9, 8.2.12, 8.2.13); • special protection of vulnerable groups (ss. 7.10, 8.2.4, 9.3); • prohibition against discrimination on the basis of displacement. • Monitoring is responsibility of the National Human Rights Commission (s. 8.1.1);

21. protection against displacement of indigenous groups/minorities (s. 8.1.9); • protection of the right to vote (s. 8.1.11); • programs for trauma healing (ss. 9.10); • IDP participation in district coordination committees (s. 11.3).

22. development-induced displacement (s. 8.1.6); • replacement of documentation (s. 8.2.5); • return of physical property forcefully seized or looted (s. 8.3.4); • programs for and participation of women (ss. 8.3.6, 9.12); • programs for adult and non-formal education (s. 9.6);

23. complementary to other policies of protection and promotion of human rights and achieving national development

24. Thanks !