Forced human displacement, the State and international law: a critical look from the south

The forced displacement of people is a pressing contemporary challenge for the international community. The phenomenon is a feature of human history; people have faced forced displacement from the earliest times for various reasons including persecution, wars, religious conflicts and ethnic clashes. While the movement of people, be it voluntary or forced, was largely unregulated, this began to change with the emergence of the modern State. The Westphalian system introduced the territorially sovereign State as the authoritative figure to determine admission to the territory of the State thereby rendering the phenomenon of forced displacement increasingly subject to State regulation. The phenomenon also received early attention as a subject matter for international law to regulate. This thesis critically evaluates the normative and institutional developments in international law with regards to forced displacement. In this regard, the thesis applies Third World Approaches to International Law (‘TWAIL’) to demonstrate the Eurocentric nature of the forced displacement regime that actually developed and how Third World States and people were consistently excluded in the process. The evaluation begins with the remarks of early modern scholars of international law concerning the fate of forcibly displaced persons. These early pronouncements identified debates, interests and concerns involved in dealing with forcibly displaced persons that still resonate in scholarly debates. The thesis then critically evaluates the formal efforts initiated in the 1920s under the League of Nations and continued under the United Nations in response to forced human displacement. In these evaluations, the thesis benchmarks defining moments in the development of international law, such as WWI, WWII, the Cold War, decolonisation movements and more contemporary moves to securitisation, to contextualise discussions and highlight shifts in State policy and practice. The thesis advocates for the reorientation of priorities in international engagement from a reactive response that focuses on the protection and assistance of displaced persons towards a preventive engagement that seeks to remedy the deep-rooted and structural flaws in the international legal order that continue to exacerbate the root causes of forced displacement. A century old engagement in this regard has proved the absence of a quick fix to the problem. The viable and durable solution is to work towards ensuring global justice and equality for the Third World that currently disproportionately bears the brunt of forced displacement.