This thesis examines the development of the right not to be arbitrarily displaced, which is a fundamental right for Internally Displaced Persons (IDPs). The thesis examines such development under both national and international law, especially since the launch of the Guiding Principles on Internal Displacement in 1998. The main argument of the thesis is that the right not to be arbitrarily displaced has evolved to become a free-standing human right while contributing substantially to existing articles of International Humanitarian Law and International Human Rights Law. This right derives from existing provisions of these regimes of international law concerning forced displacement and enhances these provisions by filling gaps and contributing to areas that have previously not been addressed by these regimes. The thesis shows that this right is not merely repetitive but rather comprises a critical and innovative right that can perform a major role towards protecting IDPs from arbitrary acts of displacement. A significant contribution of this right is that it addresses the predisplacement phase, but is not limited to that, and also enhances protection from arbitrary acts during displacement, if displacement is unavoidable. The thesis also demonstrates that the capacity of this right to perform a critical role for IDP protection has to a large extent been made possible by developments at the national law level. The empirical analysis conducted shows that certain countries have developed more ambitious and comprehensive national legal frameworks on IDP rights, and this process has led to recognition of the right not to be arbitrarily displaced in their domestic frameworks. There is a critical number of countries that now explicitly recognise this right and even have created policy-making frameworks that promote the applicability of this right. The thesis argues that this process is not the same for all states in this category since there may be different paths towards the greater recognition and applicability of this right, but nevertheless these different paths all contribute to the strengthening of understanding of states regarding their obligations towards the prevention of displacement. Despite the existence of implementation issues on this right, such impediments do not derive from the right itself but are rather linked to political problems and instability of the country concerned. The thesis demonstrates all this process with two case studies, Colombia and Kenya, which are illustrative of how the right not to be arbitrarily displaced has evolved through different legal and policy paths. The two case studies reveal the importance of a national-driven approach for the recognition and application of this right, and provide valuable insights on how this right can potentially evolve across different national contexts. The thesis concludes that the national-driven approach can comprise a more realistic and pragmatic way for enhancing the right not to be arbitrarily displaced, and overcoming the problems normally associated with sovereignty.
|Ryszard Piotrowicz (Goruchwylydd) & Anel Marais (Goruchwylydd)