Development-induced Displacement and Human Rights in Africa

The Kampala Convention

Romola Adeola

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781351591683
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Law
• Index: Politics & International Relations

Within the context of the 2009 Kampala Convention, this book examines how a balance can be struck between the imperative of development projects and the rights of persons likely to be displaced in Africa.

Following independence, many African states embarked on large-scale development projects such as dams, urban renewal and extraction of natural resources and have had to grapple with how to protect displaced communities while implementing development projects. These projects were considered a panacea for Africa's development and the economic interests of the majority were often considered over and above the interests of the minority of people who were displaced by these projects .This book examines how a balance can be struck between the imperative of development and the rights of displaced persons within the context of the African Union Convention on the Protection and Assistance of Internally Displaced Persons in Africa (the Kampala Convention). Romola Adeola analyses the obligations that are placed on African states by the Kampala Convention in the context of development-induced displacement.

This book will be of interest to scholars of human rights law, forced migration, African Studies and development.

1 The international law on development-induced displacement

1.1 Introduction

From the point of scholarship, a pertinent gap in the field of development-induced displacement is the scanty international law discussion on the subject. It is telling that legal scholarship has largely overlooked this field in which the law has a significant place.

Much of the discussions in this field have proceeded from sociology, anthropology, political economics and development ethics.¹ The absence of significant legal scholarship on the subject is due, in part, to the fact that the relationship between states and their nationals is not a territorial subject for public international law. However, with the emergence of the responsibility to protect and the growing consensus that state sovereignty cannot serve as a shield,² the ‘territorial business’ of public international law has been subject to scholarly queries over the last decade. In the field of development-induced displacement, not many queries have been advanced. The field of internal displacement, from which a discussion on the international law on development-induced displacement emanates, has also not been amply established in international law.

Unlike international refugee law, the international law of internal displacement is regulated by soft law at the level of the United Nations (UN).³ A soft-law approach was easily favoured, as it was a middle ground between achieving protection for internally displaced populations while not tampering with state sovereignty. The rhetoric at the time of its creation was the prospect that it ‘would focus international attention, raise the level of awareness, and stimulate practical measures of alleviating the [internal displacement] crisis.’⁴ There was also the compelling rhetoric that a binding instrument will be developed in the long-term⁵ and, as such, the soft law was only an ‘initial statement of principles’⁶ for the ‘transitional phase’⁷ in which a framework was needed to guide humanitarian action.

The notion of soft law and its relevance within the legal order has garnered much attention among international legal scholars.⁸ While there is no universal definition of soft law, there is a general consensus that these laws are not legally binding and, as such, they are not treaties on which state responsibility can be invoked. A wide range of semantics have been adopted in conceptualising these laws. Grnchalla-Wesierski describes soft laws as norms invoking expectations.⁹ Abbot and Snidal view soft law as a continuum that ‘begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision and delegation.’¹⁰ To Guzman and Meyer, soft laws are ‘hortatory.’¹¹ A golden thread across these conceptions is the fact that their non-binding character creates a significant challenge of legitimacy. Since international law is clear on its sources, when one refers to article 38 of the International Court of Justice (ICJ) Statute, it would appear that the legitimisation of soft law can only be resolved by either admitting that the clarity of international law on its sources needs to be revisited or by determining the relevance of soft law within the definite international legal order. However, whether either of this is pertinent is a question of debate in itself in view of existing contestations on the ‘hard’ and ‘soft’ nature of the entire international legal order. While international legal scholars deliberate on this question, it is relevant to highlight two benefits of soft law. First, soft laws can be an avenue to codify comprehensive protection on issues for which there may be little consensus.¹² In this sense, soft laws may aid compromise on sensitive global issues.¹³ A clear manifestation of this benefit resonates within the discussion of internal displacement with the level of acceptance of the Guiding Principles among states at different levels of governance.¹⁴ Second, it is pertinent to emphasise that soft laws can serve as normative springboards for the creation of future norms as with the case of the Guiding Principles and subsequent processes in various regions.

While a binding instrument is awaited at the global level, there has been significant progress within the African regional system with the adoption of the African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention).¹⁵ Article 10 of the Kampala Convention mandate states to prevent development-induced displacement should be prevented. Within the context of this framework, a discussion on the subject is advanced in this book. Prior to this, however, it is relevant to consider the contributions of general human rights norms and standards of international finance institutions in examining the current state of practice of the international law on development-induced displacement.

1.2 Human rights norms

International human rights law is replete with norms applicable to development-induced displacement. Much of the efforts towards the protection of development-induced displaced persons (DIDPs) have leveraged on these norms in addressing impoverishments that occur due to development-induced displacement.

One such norm of significance is the right to property. Dating back to the 18th century,¹⁶ the right developed out of an understanding that there was a need to protect ownership of assets from exploitative activities.¹⁷ In 1948, it was affirmed in the Universal Declaration on Human Rights (Universal Declaration) that ‘[e]veryone has the right to own property alone as well as in association with others.’¹⁸ And also, that ‘[n]o one shall be arbitrarily deprived of his property.’¹⁹ However, there was no further reassertion of this right in the 1966 Covenants²⁰ due to differences in views on issues such as how the right should be formulated and reflected; whether the right should be subjected to national or international law; the nature of compensation in event of expropriation;²¹ and concerns on state sovereignty due, in part, to the ‘limits in international law on a state’s right in the area of expropriation or nationalization’ where foreigners owned land.²²

At regional levels, the human rights frameworks of the African, inter-American and European systems recognise this right, subject to public interest and law.²³ While states are afforded a margin of discretion in determining public interest, regional institutions have often interpreted law as including international human rights law,²⁴ a proportionality test involving the legitimacy, necessity and commensurability of the measure is often utilised.²⁵ In relation to indigenous peoples, the test is ‘met with a much higher threshold.’²⁶ In the Saramaka case, the Inter-American Court of Human Rights (IACtHR) emphasised that the restriction on property rights of indigenous peoples will also need to be subject to ‘whether the restriction amounts to a denial of their traditions and customs in a way that endangers the very survival of the group and its members.’²⁷ In the Endorois case, the African Commission recognised that the ‘continued dispossession and alienation’ of the Endorois peoples from their ancestral land threatened the cultural survival of the group, and as such, leans the proportionality test on their side.²⁸ Although this right has been used significantly in advancing protection of individuals and groups, its emphasis on ownership and the varying interpretation of proportionality across various jurisdictions makes it inadequate to capture the protection needs of DIDPs.

Another relevant norm is the right to development.²⁹ The right to development was first expressed by Keba M’Baye during an Inaugural Lecture at the International Institute of Human Rights in Austria.³⁰ Distinguishing between development as ‘a legal technique suitable for sustaining the economic and social development of the backward countries’³¹ and the notion of development as a human right,³² M’Baye argued that development should be conceived as a right through which every individual can live better.³³ His argument, premised on moral and political conscientiousness,³⁴ gained normative ground in international human rights law with the adoption of the United Nations Declaration on the Right to Development.³⁵ However, it is in the African Charter that the right to development has found its most significant expression.³⁶

Article 22 of the African Charter provides that all peoples shall have the right to their social, economic and cultural development.³⁷ The concept of peoples is crucial to the understanding of this right in this context. Although the African Charter does not define what ‘peoples’ mean, there is a strong sense of ‘collectivity’ that resonates from discussions on rights.³⁸ In this light, ‘peoples’ have been used to refer to indigenous communities, national populations and other groups with a bond collectively enjoyed or suffered.³⁹ The emphasis on collectivity within the context of the right to development is the need to ensure adequate protection for all persons jointly within a group. Within the context of development-induced displacement, a significant implication of this fact is that development plans, programmes and projects must be conceived as a holistic agenda that takes into account the various needs of the collective that will be affected either positively or negatively.

A third relevant norm is the right to adequate housing. In national jurisdictions, this norm has been utilised in advancing protection for persons displaced from informal settlements.⁴⁰ Within the context of development-induced displacement, it ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Foreword
• Acknowledgements
• 1 The international law on development-induced displacement
• 2 Development projects as a displacement phenomenon in Africa
• 3 The development of the Kampala Convention as a regional response
• 4 Development projects and human rights: striking a balance between the imperative and the rights of persons likely to be displaced
• 5 Regulating private actors in the prevention of development-induced displacement
• 6 Conclusion and recommendations
• Bibliography
• Index