By: Khalid Koser
When the Guiding Principles on Internal Displacement were completed in 1998, it was against the backdrop of the massive displacement of people inside their own countries, especially as a result of the civil wars in the Great Lakes, West Africa, and the Balkans. This was a new phenomenon for which the existing international response was ill-prepared. The implementation of the Guiding Principles over the last decade and a half has gone a long way to filling the protection gap for these internally displaced persons although much remains to be done.
In recent years, however, a new group of internally displaced persons (IDPs) has emerged in substantial numbers, who were not envisaged by the Guiding Principles. These are non-citizens displaced by conflicts, natural disasters, or political crises, in countries to which they have migrated or through which they are transiting. In 2008 xenophobic violence displaced between 80,000 and 200,000 migrant workers in South Africa, mainly Zimbabweans, but also migrants from Burundi, the Democratic Republic of the Congo, Kenya, Malawi, Mozambique, and Somalia. Tens of thousands of sub-Saharan migrants were internally displaced last year during the civil war in Libya. Significant numbers of the million or so migrant workers in Thailand were displaced there by flooding last year, and hundreds of thousands of migrants were also displaced in 2011 by violence in Côte d’Ivoire. At the moment there are growing concerns for the safety of the 120,000 migrant workers in Syria, many of whom are female domestic workers.
In many of these cases, migrant workers have eventually been evacuated by their employers, their origin countries, or the international community, although many have been displaced inside the country before they can be evacuated. In other cases, for example in the cases of Libya and Côte d’Ivoire, where migrant workers have had irregular status, or their origin countries are poor, they have stayed displaced in the country until they can find a way out or it is safe to return to the communities where they work.
While there has been very little research on the experiences of non-citizens during crises, it is reasonable to suppose that many of them may be more vulnerable to displacement, and suffer its consequences more acutely, than local populations. They may not speak the local language or understand the culture, they may lack job security, they may lack a social safety net, and they may have insecure legal status. Sometimes they are bystanders in a crisis. In other cases they have been deliberately targeted, for example during the Libyan crisis many sub-Saharan Africans were accused of being mercenaries fighting for the Gaddafi regime and targeted by the opposition. Equally it may be harder for displaced non-citizens to resolve their displacement, especially if they are unable or unwilling to return to their country of origin, and they may face specific challenges in regaining property, employment, and identification cards in the country where they have been displaced.
It is not surprising that this particular category of IDPs was not explicitly envisaged in the Guiding Principles, as it is a manifestation of international migration patterns and trends that have accelerated dramatically in the last decade or so. The number of people living or working outside their own country has increased by at least 50 million since the beginning of the 21st century. A greater proportion of migration is between countries of the South, and not from South to North. Labour migration has also become increasingly linked with international trade and economic agreements, as for example in the movement of hundreds of thousands of Chinese workers to work on development and infrastructure projects in sub-Saharan Africa. In other words, there are more migrants, and in more volatile locations, than ever before.
How to respond to this changing reality of internal displacement?
One requirement is for a clear articulation of the legal rights of displaced non-citizens. It may be argued that there is already a sufficient legal foundation to provide protection for displaced non-citizens. They are technically covered by the core treaties of human rights law which extend to all migrants in all situations – irrespective of legal status. International Humanitarian Law (IHL) applies, although only in situations of armed conflict. Other bodies of international law including the Vienna Conventions on Diplomatic and Consular Relations are relevant for certain non-citizens. It may also be argued that the Guiding Principles apply to at least some displaced migrants, by referring to people displaced ‘…from their homes or places of habitual residence’, but this is not generally interpreted as applying to short-term or temporary migrant workers, or migrants in transit. Overall, however, the rights of non-citizens during crisis situations or displacement are not explicitly enumerated either in international treaties or standards that protect the rights of people who are displaced, nor in those that protect the rights of migrants (most importantly the UN International Convention on the Protection of the Rights of All Migrant Workers and their Families).
Second, a more predictable response by international agencies is needed. No international agency has a mandate that specifically applies to this category of displacement. UNHCR has a mandate that applies to some non-citizens, specifically asylum seekers, refugees, and stateless people, but not to migrants. The International Organization for Migration (IOM) works with a wide range of international migrants, but does not have a formal protection mandate. During the last few years, as a result, displaced non-citizens have been assisted in an ad hoc and often unpredictable manner by UNHCR, IOM and the International Committee of the Red Cross (ICRC). It may be worth considering establishing a coordinating mechanism to try to ensure more effective cooperation across relevant international agencies and with NGOs.
Third, states also need to develop a greater capacity to respond. It is not clear which state should be primarily responsible for protecting or assisting displaced non-citizens. The Guiding Principles ascribe primary responsibility for protecting IDPs to the state where the displacement takes place; but it can equally be argued that where those displaced are the nationals of another country, then that state has a legal, as well as civil and moral responsibility to assist its own citizens abroad. Both sets of states could take concrete steps to develop better responses. The growing number of states that are developing national laws and policies on internal displacement on the basis of the Guiding Principles could be encouraged to make explicit reference to the rights of displaced non-citizens. Countries of origin with large overseas worker populations could develop standard operating procedures for the protection of migrant workers during crises, including detailed information on in-situ protection measures, relocation, evacuation, and repatriation procedures. An international emergency fund could also be considered, for access by countries of origin to evacuate their citizens during crises.
Finally, corporations that employ significant numbers of overseas nationals should develop standard operating procedures on protecting and evacuating workers; establish risk assessment units; and establish senior chief security officer positions tasked with ensuring the safety of all workers in the event of emergencies.
The Guiding Principles on Internal Displacement responded to a displacement phenomenon that was not envisaged when the main international framework on displacement was established in the 1950s – a framework which focused on refugees seeking protection outside their countries. The face of displacement continues to change, and in the last decade a new form of internal displacement has emerged that equally was not envisaged by the Guiding Principles. The number of displaced non-citizens may be expected to grow significantly in the future, and it makes sense to prepare an effective response now.