Towards a regime For The Protection Of Internally Displaced Persons


V. IS SOVEREIGNTY A CONSTRAINT IN PROTECTING IDP’s?



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V. IS SOVEREIGNTY A CONSTRAINT IN
PROTECTING IDP’s?

One of the fundamental purposes of the United Nations is to promote and encourage “respect for human rights and fundamental freedoms,”26  Yet at the same time, its Charter prohibits it from “interven[ing] in matters which are essentially within the domestic jurisdiction of any State.”27  International human rights law exists in tension between the opposing tendencies of “State-centred” guarantees of sovereign equality and non- intervention, and the “individual-centred” commitment to human rights.28  By their own acceptance of international conventions guaranteeing human rights, many States have consented to international scrutiny of some aspects of their treatment of their own citizens within their own borders. A more difficult theoretical and practical problem arises, however, when States violate these binding norms. How then can the U.N. reconcile its mission of promoting human rights with its commitment to state sovereignty?29 

In 1991, then-Secretary-General Perez de Cuellar warned against any explicit efforts to resolve this tension:

We need not impale ourselves on the horns of a dilemma between respect for sovereignty and the protection of human rights. The last thing the United Nations needs is a new ideological controversy.”30 

The United Nations High Commissioner for Refugees (UNHCR) has been at the forefront of U.N. efforts on behalf of IDPs.31  Although the UNHCR’s mandate expressly furnishes it with authority to provide international assistance to refugees outside their home countries,32  the UNHCR has acted pursuant to its flexible, extra-statutory “good offices” powers to bring IDPs within its area of concern.33 

On a more normative and theoretical level, moreover, to protect the human rights of refugees because they have crossed an international border, while ignoring the plight of IDPs because they have not, violates the fundamental principle that human rights are inherent in the individual and should not depend on the accident of location.34 

The international community’s failure to honour its commitment to share the burdens of caring for refugees has only exacerbated the problem.35  Refugee-receiving States have therefore greeted the humanitarian concern for IDP protection with enthusiasm. Protecting potential refugees while still within their country of origin is far less permanent and costly than granting them asylum abroad.36 

Provided that the displaced do not cross into any one State, moreover, their protection can arguably be described as purely an international obligation. For example, when Turkey refused to admit Kurds fleeing Iraqi repression at the end of the Gulf War, the international community established safe havens within Iraq as a substitute for asylum.37  Although the UNHCR insists that such preventive protection must not be used to undermine the right to seek refuge abroad,38  in practice it has been asserted both as a justification for the Croatian refusal to receive Bosnian refugees39  and the Thai expulsion of Cambodians.40 

Is sovereignty a constraint in protecting IDP’s? Member states still invoke Article 2(7) as a defence against United Nations discussion of their human rights record.41  Further, even if all states accepted the principle that human rights are a fit subject of international concern and therefore not essentially within a state’s domestic jurisdiction, they still would need to answer the question of how the international community can lawfully express that concern. As the International Law Commission has pointed out, the fact of an international obligation is a distinct legal issue from the consequences of its breach.42  Article 2(7) has been invoked as a barrier to almost any form of U.N. action in this area.




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