Protection and Disasters in the Horn of Africa: Legal Frameworks

1. Protection and Disasters in the Horn of Africa: Legal Frameworks Nansen Initiative Horn of Africa Regional Consultation The Boma, Nairobi 21 May 2014 Tamara Wood University of New South Wales tamara.wood@unsw.edu.au

2. Displacement and Disasters: Key Legal Issues • Preventing displacement • Protection during displacement • Admission • Status • Rights • Durable solutions Horn of Africa: Legal Context • International law • Regional frameworks • AU • Sub-regional frameworks • COMESA, EAC, IGAD • Domestic legislation Horn of Africa: Key Legal Issues • Refugee protection – 1969 African Refugee Convention • Addressing internal displacement • Freedom of movement

3. 1. Refugee Protection – 1969 African Refugee Convention Article 1: Definition of the term “Refugee” 1. For the purposes of this Convention, the term “refugee” shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it. 2. The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality

4. 1. Refugee Protection – 1969 African Refugee Convention ‘events seriously disturbing public order’ • ‘Man-made’ vs ‘natural’ events? • 4 options for interpretation: • Case-by-case basis • Threats to ‘life, physical integrity or liberty’ • Breakdown in ‘law and order’ • Human rights framework Other criteria for refugee status • In either part or the whole of his country of origin • Compelled to leave his place of habitual residence • In order to seek refuge outside his country of origin

5. 1. Refugee Protection – 1969 African Refugee Convention Status rights of refugees • Non-refoulement • Non-discrimination, travel documents, voluntary return • 1951 Convention rights International co-operation • Non-political nature of asylum • Burden sharing among states

6. 1. Refugee Protection – 1969 African Refugee Convention ISSUES • Interpretation • Limited scope – ‘lesser’ natural hazards, slow-onset disasters • Durable solutions

7. 2. Addressing internal displacement Kampala Convention on IDPs • Disaster-displacement nexus • Definition of IDP • Includes person forced to flee ‘as a result of or in order to avoid the effects of… natural or human-made disasters’ (Art 1(k)) • Standards of treatment General human rights law • African Charter on Human and Peoples’ Rights (Banjul Charter)

8. 2. Addressing internal displacement ISSUES • Implementation • Lessons for addressing cross-border displacement

9. 3. Freedom of Movement Common Market Areas • COMESA, EAC • IGAD COMESA 1998 Protocol on the Free Movement of Persons, Labour, Services and Right of Establishment and Residence • ‘Member States agree to abolish… all restrictions on the freedom of establishment of citizens of a member State in the territories of other member States’ (Art II(1)) • Relaxation of visa requirements • Allows for temporary suspension

10. 3. Freedom of Movement ISSUES • Preventing displacement – migration, adaptation • Relationship with refugee law

11. Cross-cutting Issues • Pastoralism • Implementation, capacity • International co-operation

12. Protection and Disasters in the Horn of Africa: Legal Frameworks Nansen Initiative Horn of Africa Regional Consultation The Boma, Nairobi 21 May 2014 Tamara Wood University of New South Wales tamara.wood@unsw.edu.au