Vikram Kolmannskog
Norwegian Refugee Council
Email: post@vikramkolmannskog.no
December 2012
Introduction
While most East African countries were badly affected by drought in 2011, the situation was almost beyond imagination in Somalia with famine being declared in several regions (FSNAU and FEWSNET 2011a). It was the most severe humanitarian crisis in the world in 2011 and Africa’s worst food security crisis since Somalia’s 1991 and 1992 famine. Throughout 2011, large numbers of destitute agro-pastoralists and others fled the country in search of assistance. This study explores the experiences of, and responses to, some of the Somalis displaced to Kenya and Egypt.
Among relevant law we find international, regional and domestic refugee law and human rights law. For those displaced to another country in the context of natural hazard-related disasters, however, international law experts in Geneva and elsewhere have identified a normative protection gap (IASC, 2008). Those persecuted for certain listed grounds should be protected as refugees according to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. A wider group of people, including those fleeing generalised violence and events seriously disturbing public order, should be protected as refugees according to the 1969 African Union Convention governing the Specific Aspects of Refugee Problems in Africa. According to the experts, however, there is currently no international law providing a clear and secure base for protection for those displaced in the context of natural hazard-related disasters (IASC, 2008). This is becoming ever more acute as climate change is affecting the intensity and frequency of natural hazards (IPCC, 2012).
Certain initiatives to address this normative gap exist, including the Nansen Initiative, which is a state-driven, multi-stakeholder process (Saboor, 2012). The Nansen Initiative arranges regional consultations, and the Horn of Africa is in the plan. While the initial focus was on sudden-onset disasters, there is an increasing understanding that slow-onset disasters such as drought cannot be ignored.
The Kenyan and Egyptian contexts provide the possibility to explore what existing laws and normative gaps can mean for people on the ground. Perhaps the gap identified in Geneva by legal experts is not the same on the ground. Perhaps there are other gaps on the ground. In this sense the study focuses on “the living law” (Ehrlich, 1936/2009). Eugen Ehrlich, widely considered one of the founders of sociology of law, wrote that, “living law in contradistinction to that which is being enforced in the courts and other tribunals […] is the law which dominates life itself (Ehrlich, 1936/2009: 493).”
Doctrinal lawyers largely argue and establish what the law is by following the method they believe a judge would. The 1945 Statute of the International Court of Justice article 38 is therefore considered a general expression of what sources we can use when determining international law. This will not necessarily tell us what “the living law” is, however.
As Ehrlich wrote, Only a tiny bit of real life is brought before the courts and other tribunals; and much is excluded from litigation […] Moreover the legal relation which is being litigated shows distorted features which are quite different from, and foreign to, the same relation when it is in repose […] The sociological method therefore demands absolutely that the results which are obtained from the judicial decisions be supplemented by direct observation of life (Ehrlich, 1936/2009: 495).
The primary motivation for this study is the understanding that we need to explore the experiences of those directly affected as well as responses by governments and other actors on the ground to enhance the effective rights of those displaced. For any new state-created laws or policies to be effective, we must also consider how they fit with the larger context, including “the living law” (Ehrlich, 1936/2009).