THE PROTECTION OF INTERNALY DISPLACED PERSONS BY INTERNATIONAL MIGRATION LAW

evelinebrigido@gmail.com fwzibetti@gmail.com liton@upf.br Abstract: This paper aims to analyze how international migration law protects internally displaced persons. First of all, there is a general approach about the history of International Regulations of migrations and about the concept of displaced person. Afterwards, it will be analyzed today’s regulation of displaced persons by International Law. At the end, it is concluded that there are a few legal documents that protect these persons, and internationally there are only the Guiding Principles. Although all these principles are foreseen in many human rights treaties, new legal documents should be developed for the adequate protection of internally displaced persons.


INTRODUCTION
Human migration has been constant in history. People can migrate for various reasons and migration can be voluntary or not. When one decides to flee by self convenience, it is called voluntary migration. There are forced migration, when someone is forced to flee, like during a war or persecution, or in case of violation of human rights. 3 Nowadays, the international society faces a migration crisis because of many conflicts, which forces people to leave their homes. According to the United Nations Refugee Agency (UNHCR), by the end of 2016, 65,6 million people were forced to flee. About 40 million are internally displaced persons (IDPs), it means that almost 2/3 of persons who leave their homes did not cross the borders of their own country. The highest numbers of internally displaced persons in 2016 are seen in Colombia (7,2 million), Syria (6,3 million), Iraq (3,3 million), Sudan (3,3 million) and Yemen (2,5 million). 4 Therefore, this paper aims to analyze the legal protection of internally displaced persons under international migration law. This research is very current relevant, once the legal protection of people Revista do Direito [ISSN 1982-9957]. Santa Cruz do Sul, v. 1, n. 54, p. 186-204, jan./abr. 2018. https://online.unisc.br/seer/index.php/direito/index The League of Nations has adopted a collective approach about the concept of refugee. The condition to be a refugee was the following: the persons should be outside their country of origin and without the protection of the government of that State. A Russian refugee, for example, was defined as any person of Russian origin who did not enjoy the protection of the Soviet Union and who had not acquired another nationality. 8 Therefore, the first refugee office was created for the benefit of Russians, once many of them left their home because of the birth of the Union of Soviet Socialist Republics (USSR). And they also lost their nationality. 9 In 1924, people from other nationalities obtained the same protection, but the League has never defined the term "Refugee". The conditions to enjoy the protection were: absence of protection from the country of origin and having not acquired another nationality. Thus, in the beginning, the concept of refugee was related to the concept of war and all the protection was temporary. 10 In 1930, it was created the Nansen International Office for Refugees, that drafted the Refugee Convention of 1933. Although limited in its scope, this Convention was the beginning of the International Refugee Law, which is based on the principle of non-refoulement, that is, no refugee or asylum seeker could be sent to any country where his life or freedom is threatened. 11 In 1938, Norway proposed the uniformization of the treatment for refugees and the creation of a single international office for their protection. Thus, after the end of The Nansen Office, the League has created the League of Nations High Commissioner for Refugees. 12 At the same token, the United State of America established the Intergovernmental Committee for Refugees, for supplementary tasks regarding the High Commissioner, protecting views from Germany and Austria. "Its functions were limited to negotiate with German authorities to obtain organized emigration, and with authorities from other countries about the possibility to receive these refugees in their territories." 13 After the Second World War, the League of Nations finished its works and the United Nations was created. Therefore, the League of Nations High Commissioner also finished its works and the Intergovernmental Committee for Refugees worked until 1947. As the Second War produced a huge number of refugees, the United Nations Economic and Social Council (ECOSOC) and the preparatory commission of the International Organization for Refugees began to manage the international forced migration caused by conflict and persecution. 14 8 ANDRADE, José Fischel de. A política de proteção a refugiados da Organização das Nações Unidassua gênese no período pós-Guerra (1946)(1947)(1948)(1949)(1950)(1951)(1952) Since 1951, UHNCR's functions has been expanded by General Assembly and ECOSOC, to secure the delivery of humanitarian assistance and protection activities to persons other than refugees, such as internally displaced persons and stateless persons. 25 The UNCHR is the only international agency with specific mandate to protect refugees at global level as well as to protect asylum-seekers, stateless persons and, with restrictions, internally displaced persons.
In addition to the establishment of the UNHCR, many States ratified the Refugee Statute, which is the basis of International Refugee Law and defines who can apply for asylum and the basic treatment and rights to these persons. However, the Convention reflected the political situation of that time, the moment after the World War II. Therefore, its scope was limited to the persons who had become refugees because of facts prior to 1951, that is, Europeans. "It soon became clear, however, that refugee crises were continuing and were not confined to a single continent." 26 In the next years, the new office had to assist other continents such as Chinese refugees in Hong Kong and Algerians who fled to Morocco and Tunisia. The process of decolonization in Africa made the situation worse, because there was a continuous flow of people fleeing their countries and going to others in conflict.
Thus, the international community adopted the 1967 Protocol 27 , which removed the "temporal limit" and the "geographical limit", that is, any person may apply for asylum, not only Europeans and not only because of events prior to 1951. 28 The 1951 Convention and the 1967 Protocol foresaw that any person who is suffering persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is outside the country of his nationality may apply for asylum. So, besides the persecution, it is also necessary that people flee from their origin country.
Therefore, the Convention and the Protocol do not assist many forced migrants, as persons who cannot cross state borders. Besides, any other reason of persecution will be not considered. As a result, two important regional treaties were adopted. The decolonization process in Africa caused 23 ORGANIZAÇÃO DAS NAÇÕES UNIDAS. Convenção relativa ao estatuto dos refugiados. Art. 08. UNITED NATIONS. General Assembly. Res. 428 (V). 14 dez 1950. Disponível em: <https://documents-ddsny.un.org/doc/RESOLUTION/GEN/NR0/060/26/IMG/NR006026.pdf?OpenElement>. Acesso em: 10 jul 2017. 24 UNITED NATIONS. Un introduction to international protection: protecting persons of concern to UNHCR. p. 07. 25 UNITED NATIONS. Un introduction to international protection: protecting persons of concern to UNHCR. p. 08. 26 UNITED NATIONS. Un introduction to international protection: protecting persons of concern to UNHCR. 1. For the purposes of this Convention, the term "refugee" shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 2. The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.
In 1984, this same issue was discussed in Latin America due to the increase of migratory flows caused by dictatorial regimes in the region. It was held in Colombia the International Coloquium which resulted in the creation of the Cartagena Declaration on Refugees. 31 It was not an international treaty such as the African Union Convention, but an international document considered as soft law, that is, it is not legally binding as a treaty (hard law), but can be used as a "model law" for countries to adapt their domestic law. The third conclusion of the Declaration 32 foresees an extension of the term refugee: To reiterate that, in view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951  Even so, the international refugee concept is that one provided by the Convention and the Protocol. It is a restricted concept because there is "[...] an interest of the international community in establishing political and legal categories that constitute barriers to unwanted migration [...]". 33 So, the international community has shown a great interest about IDPs, once they may become refugee and, therefore, apply for asylum in countries that do not want to receive refugees. 34 Thus, "internally displaced persons" are people who suffer persecution or violence, but are unable to leave their country of origin and only recently have come to attention of the international community.

INTERNALLY DISPLACED PERSONS
Until the late 1980s the international community was worried about migrants who crossed the borders of their own country. The expression "internally displaced person" was used only when organizations recognized them as a potential refugee. Nevertheless, internal displacement is a problem as old as migration between countries, but this subject has just obtained notoriety from the 1990s. Eduardo Oliveira 35 states that: The delay of its rise to the top of the great humanitarian problem can be explained, in part, by the inexistence, during the Cold War, of an international political environment that debated themes related to state sovereignty and that could be used as justification for external interference.
In addition, since the 1990s, the subject of human rights has obtained great relevance in national and international legal systems. Because of the end of the Cold War, many "local conflicts" broke out in several countries, including the worsening of conflicts in Africa due to the decolonization process initiated in the decade of 1960. It is, therefore, clear that the issue of conflicts and human rights has been at the top of the international agenda from then on. Thus, internal displacement starts to come to attention of the international community.
Although there was no definition before the 1990s, it is important to mention that there were  (2) who remain within the borders of their own country.
For the purposes of this report, the term "internally displaced persons" will be used to refer to persons who have been forced to flee their homes suddenly or unexpectedly in larger numbers; as a result of armed conflict, internal 37  In the next year, the Commission requested the Secretary-General to designate a representative to deal specifically with issues related to displaced persons. 48 In response to that request, a Special Representative of the Secretary-General of Internally Displaced Persons was assigned for the following functions: to develop international, regional and national laws; to coordinate missions in the States and to research related issues. 49 And one of the Special Representative's findings was the absence of an international legal document regulating the needs of these people, as well as the absence of UN bodies that could act in emergency situations. Regarding to these agencies, it was established that a mechanism for mobilizing activities would be created among the various agencies that provide humanitarian aid. In regard to a legal document, it was proposed the The flexible and wide definition of displaced people set forth within the Principles has generated several criticisms, especially for including natural or human-made disaster as a reason to flee. 52 In any case, this is currently the main international document specifically concerning to IDPs, without excluding other international human rights treaties.
It should be noted that there are two regional treaties which emerged from the Guiding It should also be noted that the situation of IDPs is very different from that of refugees, since displaced persons remain in their own country. Although the refugee situation is very serious and they are not adequately protected, these people are under protection of important treaties unlike the internally displaced persons, who can be persecuted by their own government or even abandoned. 55 So, it is important to analyze how international law try to protect the IDPs.  e) the right to liberty of movement and freedom to choose their residence (principle #14), having the right to move to another part of their country or to leave their country (principle #15).

THE PROTECTION OF INTERNALLY DISPLACED PERSONS BY INTERNATIONAL LAW
Besides the Universal Declaration of Human Rights (art. 13), these principles were based on the: Therefore, although these Principles do not constitute an international treaty, they are applicable because they are foreseen in several treaties. In addition, it should be noted that the Refugee Statute and the 1967 Protocol may also be applied to IDPs by analogy, in cases that these people can be compared to a refugee. The International Committee of the Red Cross states that: These principles reflect currently International Law and are widely recognized towards an international framework for the protection of these people during all stages of displacement, including return, resettlement and reintegration. 70 With respect to the African treaties already mentioned, they both embrace the same guidelines of the Principles, but they are more comprehensive and detailed than the Principles, and, as hard law, the rule set forth therein are legally binding and directly enforceable. The African treaties bind the States parties to all human rights and humanitarian law treaties. In addition, as well as the Guiding Principles, these treaties also foresee that the State of origin has the primary responsibility to provide protection to IDPs and national authorities may request international humanitarian assistance.
Although these three legal documents provide that national authorities have primary responsibility for IDPs, it should be noted that, sometimes, these authorities are oppressive and, therefore, they are the reason for forced migration.
Regarding humanitarian aid, the Guiding Principles and the African Treaties obliges States to facilitate the free passage of humanitarian assistance. 71 According to the Principles, humanitarian assistance should not be regarded as an unfriendly act or even as a violation of the principle of nonintervention. In addition, the principle #5 foresees that all international actors must respect international human rights and international humanitarian law and shall prevent forced displacement.
Finally, it is important to note that there is no specific agency to assist IDPs, so that the UNHCR also play to role to provide vital assistance for these people whenever the reasons for internal displacement are the same reasons to apply for asylum. It is possible, depending on the situation, that other agencies also provide assistance for IDPs, such as World Health Organization and The United Nations Children's Fund (UNICEF), but the UNHCR is the main responsible.

CONCLUSION
This research had the objective to analyze how International Law regulates the protection of IDPs. First, it was studied the history of legal protection of migration, especially of people who seek protection within their own country. In the beginning, it was thought that this phenomenon would not last too long and conventions and international organs were created for a limited period. Over the years, it was concluded that this phenomenon could last for a long time and some situations, such wars and massive violation of human rights, could force people to leave their homes, just like the current international scene. Nevertheless, the focus was on refugees with little attention to IDPs.
States were worried about massive influx of people who could enter in their territories.
After the study about the history of legal protection of migration, it was analyzed the definition of internally displaced person. Lately in 1998 it was created an official concept by an international document: the Guiding Principles. Although this is a very important document, the definition of IDP is not established in a treaty, as it is regarding the term refugee. Besides, this concept was established almost half a century after the drafts of the Refugee Statute.
Therefore, it was possible to verify that it was difficult to set forth a definition for IDP and even more difficult to establish a legal framework by International Law. And almost twenty years after the 72 UNITED NATIONS. Un introduction to international protection: protecting persons of concern to UNHCR. p. 88. 73 UNITED NATIONS. Un introduction to international protection: protecting persons of concern to UNHCR. p. 88 74 UNITED NATIONS. The UN refugee agency. Global trends 2017. [ISSN 1982-9957]. Santa Cruz do Sul, v. 1, n. 54, p. 186-204, jan./abr. 2018. https://online.unisc.br/seer/index.php/direito/index adoption of the Guiding Principles there is still no other international document. In fact, two treaties were adopted in the Africa continent, but they are restricted to a regional level. Nonetheless, the Principles were based on international treaties regarding human rights and humanitarian law. The only difference between the Guiding Principles and the other treaties is that the first document is specific to IDPs. But the rights set forth therein are established on human rights law and international humanitarian law. In any case, the regulation about protection for IDPs is still obscure, and UN and its member-states need to study and analyze this issue. It is necessary to draft at least a specific treaty to rule the IDPs and also to create an organ to administrate this matter, which could be subsidiary of UNHCR. As regard to a specific treaty, it could be based on the Convention, on the 1967 Protocol and on the Guiding Principles.

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Nevertheless, there are some aspects to be consider. The definition of IDPs is wider than the one of refugee. While the Convention foresees restricted reasons to flee, the Guiding Principles do not determine specific reasons, but only mention armed conflict, situations of generalized violations of human rights and even natural or human-made disasters. Then, to draft a treaty for IDPs, it should be considered the definition of the Guiding Principles. Rights already recognized should not be excluded, and it is necessary to turn the Principles into a treaty. It is important to find ways to create an effective protection for IDPs, not only under the human rights protection, but searching for the decrease of the migration across state borders. Most of the current refugees were former internally displaced, therefore, finding solutions to the issue of IDPs means to find solutions for refugees and asylumseekers.