to intercept the vessel for verification of its criterion. UNHCR’s
ExCom goes on to expressly delineate this discrepancy by saying
that, “when vessels respond to the persons in distress at sea, they
are not engaged in interception”. 18 The issue that is raised here is
the risk of interceptions being characterized as rescue operations
and therefore allowing States to potentially prevent the escape
of IDPs and refugees from the circumstances from which they
are fleeing.
The legal concept of refoulement is notably applicable to IDPs
and refugees in that it carries with it the risk of being returned
to a State where the person’s safety is at risk. “No Contracting
State shall expel or return (“refouler”) a refugee in any man-
ner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion”. 19 Without clear concrete procedures on the protec-
tion duties of States doing interception and rescue, refoulement
will continue to pose a potential safety risk for those making a
maritime migration. The United Nations makes clear the gravity
refoulement poses in the Convention Against Torture (CAT)
and International Covenant on Civil and Political Rights
(ICCPR). The CAT explicitly maintains that “No State Party
shall expel, return (refouler) or extradite a person to another
State, where there are substantial grounds for believing that IDP
would be in danger of being subjected to torture”. 20
6) Voluntary reunification with family members separated
during displacement.
7) Participation in public affairs at all levels on an equal
basis with the resident population.
8) Effective remedies for displacement-related violations,
including access to justice, reparations and information
about the causes of violations. 22
Under these criteria it is evident that for the majority of IDPs,
returning to their place of origin does not meet these criteria
in a reasonable timeframe. As such IDPs will continue to place
a strain on the international community as they seek resettle-
ment elsewhere to places offering safety and access to means of
economic prosperity.
Given that the criteria for durable solutions for IDPs are
objectives that will not be met in the reasonably foreseeable
future for the countries creating the largest numbers, IDPs
will continue to pose a humanitarian challenge on the interna-
tional community for years to come. Therefore, the ways that
the international community can help IDPs is twofold. Firstly,
IDPs, particularly those that have crossed a border, should have
their own set of rights and protections that are legally binding,
such as those that are afforded to refugees under the UNHCR.
This could be accomplished by either creating a separate body of
law or incorporating IDPs into the preexisting body of law on
refugees. Secondly the inconsistencies in international law when
Both the United Nations (UN) Guiding Principles on Internal defining the duties and responsibilities of states dealing with
Displacement (GPID) and the Interagency Standing Commit-
maritime migration, need to be clarified so that migrant’s rights
tee (IASC) Framework on Durable Solutions for Internally Dis- are protected and States are acting appropriately. For the Medi-
placed Persons outline the end state of IDPs, as ultimately being terranean, the issue of extraterritoriality is essential for defining
the return, integration, or resettlement of these persons. The
States responsibilities for the care of migrants. The European
UN GPID makes reference to the end of displacement in two
Union undoubtedly wants to limit the number of people ar-
places; Principle 6 Section 3 and Principles 28-30. In summary, riving on their borders, but returning migrants back to condi-
these stipulate that displacement should not last longer than
tions where their safety is at risk is objectionable. Finally, the
the circumstances compel and that competent authorities have
issue of whether IDPs are or are not treated as refugees under
the obligation to ensure that IDPs are able to voluntarily return, international law should be clarified. By making the rights and
resettle, or reintegrate without fear of discrimination. 21 IASC
responsibilities of States and migrants clear, the international
goes into more specific detail, outlining 8 basic criteria that de-
community can begin to holistically combat the humanitarian
termine whether the solution for the IDP is durable. These are: crisis posed by IDPs.
1) Long term safety, security and freedom of movement.
2) An adequate standard of living, including at a minimum
access to adequate food, water, housing, healthcare, and
basic education.
3) Access to employment and livelihoods.
4) Access to effective mechanisms that restore their hous-
ing, land and property or provide them with compensation.
5) Access to and replacement of personal and other docu-
mentation.
30
About the Author: Amanda Custer from Albuquerque, New
Mexico, is entering her senior year at Dickinson College. She is
majoring in International Studies and Spanish. Due to her inter-
ests in foreign policy and counterterrorism, she plans to concen-
trate on Security Studies. Amanda is a second time intern for
PKSOI, and previously authored an article in the April 2017
PKSOI journal entitled, “China Ignores the UN Arbitration
Ruling: Where do we go from here?” Following graduation,
Amanda hopes to pursue a career in the intelligence field.