Recognising the need to tackle the root causes of internal displacement, African leaders in 2009 adopted the first binding treaty on internal displacement, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (the Convention). The Convention entered into force on 6 December 2012. As at January 2015, 39 states have signed the Convention, 23 of which have ratified. One of the root causes of internal displacement recognised in the Convention is development-induced displacement (DID). This root cause of internal displacement is the focus of this thesis.
Under article 10(1) of the Convention, states are obligated as much as possible? to prevent displacement caused by development projects. This thesis argues that this obligation must necessarily be construed in light of the Convention?s overall emphasis on the prevention of arbitrary displacement. The prevention of arbitrary DID necessarily implies that a balance has to be struck between the imperative of development and the rights of persons likely to be displaced. In striking this balance, this thesis applies the means-end test of proportionality arguing that a development project must be suitable and be the least instrusive of rights.
Further, the obligation on states to prevent DID as it relates to private actors, specifically corporations, is discussed. This thesis argues that in regulating corporations, state parties to the Convention should adopt a common regulatory standard detailing the corporate duty to respect human rights within the context of article 10 of the Convention. On an institutional level, national institutional mechanisms can be utilised in striking the balance between the imperative of development and the rights of persons likely to be displaced.
While acknowledging that each state party has the primary obligation to realise the Convention?s obligations, mechanisms beyond the state such as the Conference of State Parties and the African Commission on Human and Peoples? Rights (the African Commission) have crucial roles to play in furthering compliance with the obligation in the Convention. This thesis recommends that the Conference of State Parties should adopt a Model Law specifically dealing with article 10 of the Convention; and that the African Commission should: (a) develop a General Comment on article 10; (b) revise its guidelines on state reporting to ensure that states report on the obligation in the Convention; and (c) conduct missions to states where development projects, likely to result in displacement, are to be implemented. / Thesis (LLD)--University of Pretoria, 2015. / tm2016 / Centre for Human Rights / LLD / Unrestricted
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:up/oai:repository.up.ac.za:2263/52390 |
| Date | January 2015 |
| Creators | Adeola, Romola |
| Contributors | Viljoen, Frans |
| Publisher | University of Pretoria |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Rights | ©2015 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. |
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