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B. In the context of the Second World War

128. Germany had emerged as the principal protagonist of transfer agreements in Europe by the end of the 1930s, implementing the ingathering of ethnic Germans (Volksdeutsche) under bilateral treaties with the Baltic States, Italy, Romania, Yugoslavia and Bulgaria. War provided the impetus for the Third Reich to conclude an agreement with the Soviet Union to "repatriate" German and Russian populations in the former Poland to their respective "mother countries". 28 September 1939. The failure of the Minorities Treaties and the ensuing war provided an air of acceptability for the concept of compulsory transfer in Europe as a solution to social and political problems related to ethnicity.

129. Following Adolf Hitler's policy of Umsiedlung (resettlement), Benito Mussolini actually instigated the Italo-German agreement on obligatory transfer of the Reichsdeutsche (expatriate German citizens) and the voluntary transfer of Volksdeutschen (ethnic Germans) to the Reich from the Süd Tirol, a territory ceded to Italy from Austria in the Treaty of St. Germain of 1919. The Italians announced the agreement on 22 October 1939, but the terms were published on 21 December 1939. Reichsdeutsche in Italy were given three months to move and Volksdeutsche were to "opt freely and spontaneously" to emigrate as automatic German citizens by 31 December 1942 or to remain in Italy. Nazi sources claimed a plebiscite indicated 73 per cent of Süd Tirol Volksdeutschen opted for Umsiedlung, although reports six months earlier showed local opposition to the plan. "The exchange of minorities and transfers of population in Europe since 1919", Part II, Bulletin of International News, vol. XXI, No. 18 (August 1944), p. 660. Official Nazi sources give the number of transferees as 237,802, including at most 10,000 Reichsdeutsche. About 6,000 were reported transferred by mid-August 1940. "German land and folk: When dictators compromise — the Tirolese bargain", The Times (London), 16 August 1940, p. 11, column 6. However, these numbers are probably not reliable. It was reported in Deutsche Umsiedlungs-Treuhand Gesellschaft (German Resettlement Trust) for 1942 that the deadline would be extended to 31 December 1943 owing to the exigencies of the war and the large number of transfer applicants under the agreement. This report may have had propagandist motives. Cited in "The exchange of minorities", op. cit., p. 661.

130. The compensation terms under this agreement are obscure; disagreements between the States on assessments varied wildly, Germany set it at 12 billion lira, Italy at 5 billion; a compromise was struck at 7–9 billion lira. "Italian trade with Germany: Tirol transfers", The Times (London), 26 February 1940, p. 5, column 3. but a compromise was apparently reached with Italian properties in newly German-occupied territory serving as partial payment. Some transferees disposed of their property privately, but details of compensation through the Mixed Commission remains unknown, though any such payments are presumed to have been in cash. The disposition of the migrants is largely unknown; however, indications are that physical facilities in resettlement were less than adequate. For instance, only 1,200 housing units were built in North Tirol between 1933 and 1940, where resettlement of the Süd Tirolers required 10,000 new units in the immediate term. Frankfurter Zeitung, 16 January 1940; cited in "Transfers of population in Europe", Part II, op. cit., p. 661. Their destination is also obscure, but some reportedly infiltrated into Bohemia and Moravia, while others were implanted in western Poland with German transferees from the Baltics. In 1942, Heinrich Himmler, SS Reichsführer and director of Umsiedlung, urged that the Süd Tirol transfers be expedited for resettlement in Luxembourg, Lorraine and East Sudetengau. Ibid.

131. Agreements to "repatriate" Germans were concluded with Estonia and Latvia, too, by 1939. "Protocol on the Resettlement of the German Folk-group in the German Reich", 15 October 1939; see Riigi Teataja (Official Estonian Gazette), 1939, Part II, pp. 341–46. Also "Treaty on the Resettlement of Latvian Citizens of German Nationality in the German Reich", Valdibas Vestnesis (Latvian Official Gazette) No. 247, 30 October 1939, pp. 4–7. Some 62,144 German inhabitants of Latvia Of whom 56,441 were Latvian citizens (Volksdeutsche). and 16,000 of Estonia, descendants of German colonizers of the Middle Ages, were to be moved to German-held territory in former western Poland. Before the agreements, this prosperous community showed no desire to move. Rumours of a secret Soviet-German pact to remove German influence from the Soviet sphere of the Baltics were denied by the Soviet Government, In a Tass communiqué, 14 October 1939; cited in "Exchange of minorities", Part II, op. cit., p. 662. but the Reich rationalized the exchange on the grounds of improved future relations between the Powers in the region. Further, the Reich was to gain financially from compensation paid for immovable German properties. The total wealth of the German Estonians, for example, was estimated at £10–20 million, which became a foreign exchange asset under the agreements. The removal of this minority in the Baltics would mean the termination of German schools and institutions. The transfers, with restrictive nationality criteria, See discussion in Joseph Schechtmann, "The Option Clause in the Reich's Treaties on the Transfer of Population", American Journal of International Law, vol. 38, No. 3 (July 1944), p. 359. were carried out within three months of the conclusion of the Agreements, and very few opted to stay behind. Some 3,000 in Estonia and 12,000 in Latvia. The bulk of the transferees "released" from Baltic citizenship were resettled in the Incorporated Territories of western Poland, Upper Silesia and East Prussia, while the Polish inhabitants of these areas were ruthlessly expelled.

132. With the Baltic States having then been incorporated into the Soviet Union, a secret agreement between the Reich and Soviet Governments on 10 January 1941 called for the transfer of (mostly peasant) Germans in Lithuania and induced the remaining Baltic Germans to leave. Monatschrift für Auswärtige Politik (November 1940). Some 50,471 were transferred in the following spring to the Incorporated Territories, but most from Lithuania were forced to return in the following year as they were belatedly determined not to be ethnic Germans at all, but Lithuanians preferring to leave Soviet rule. Under the same agreement, 21,343 persons opted for resettlement in the Soviet Union.

133. Among the previous and subsequent exchange agreements in the context of war, these Baltic exchange protocols form a category in themselves in that they involved no territorial changes. By 1942, 56,721 Baltic Germans were implanted in the Incorporated Territories.

134. The three German-Soviet agreements of 1939–1941 were a sequel to the partition of Poland and the incorporation of Baltic States, Northern Bukovina and Romanian Bessarabia. Treaty of Moscow, 16 November 1939; Accord of Moscow, 5 September 1940; and Convention of Moscow, 10 January 1941. The agreement of 3 November 1939 involved the "repatriation" of 100,000 (mostly peasant) Germans These were estimated in Polish statistics at 90,000, and at 120,000 by German sources. Schechtmann, op. cit., p. 365. from the Soviet-held provinces of Poland, who emigrated with few possessions in the dead of winter 1940 into the German Incorporated Territory. Some 30–40,000 Ukrainians and Byelorussians likewise emigrated to former eastern Poland in exchange. The actual agreements remained secret, but an outline was later published, emphasizing the voluntary nature of the transfers. Frankfurter Zeitung, 5 November 1939, bearing the dateline of Moscow, 4 November 1939.

135. In 1940, the Romanian Government acceded to the Soviet demand for the secession of Bessarabia and Northern Bukovina, and a Soviet-German agreement for the Umsiedlung of 137,116 ethnic Germans there was concluded, under unpublicized terms. 5 September 1940, negotiations began in June 1940. Figures from Deutsche Umsiedlungs-Treuhand Gesellschaft (German Resettlement Trust) report of 1943; cited in "Exchange of minorities", Part II, op. cit., p. 664. It is assumed that this agreement also included an option clause. The option provisions of the Soviet-Romanian Agreement are unclear, but it seems that Romanians in those territories did not have the option to emigrate to Romania. According to Schechtmann, op. cit., the agreement did not include an option clause; however, "The exchange of minorities", Part II, op. cit., cites 112,000 persons born or with domicile in the ceded territories as returning there from Romania under the agreement. Only ethnic Germans moved out under option provisions by virtue of Germany's involvement as a deus ex machina, without Romania's participation, and the Soviet Union shouldered the cost of compensation for properties left behind.

136. South Bukovina Germans were transferred to the Reich beginning two months after an agreement between Germany and Romania was announced. Convention of Bucharest, 22 October 1940 was announced in German press, 24 October 1940; transfer began in December. Further exchanges took place in the Balkans after the beginning of the War. Romania and Bulgaria agreed on the secession of South Dobruja to Bulgaria 21 August 1940., to include the exchange of some 62,000 Bulgarians and 110,000 Romanians. Germany dictated the terms of the Vienna Award of 30 August 1940, which provided for resettlement options for Hungarians and Romanians from ethnically mixed Transylvania, more than half of which was ceded to Romania. Approximately 130,000 had emigrated from Transylvania, and 202,233 had immigrated there by April 1943. Some 17,614 Hungarians from Bukovina, Bosnia and Moldavia had emigrated to Hungary by the end of 1942. "The exchange of minorities," op. cit., p. 666.

137. Other treaties and agreements each involved smaller numbers of transferees, but added significantly to the overall numbers of transferred population during the Second World War. These include the Arrangement of Belgrade (Yugoslavia and Italy), 1 March 1939; Berlin Accord (Germany and Italy), 23 June 1939; Treaty of Prague (Germany and Hungary), 29 May 1940; Treaty of Craïova (Bulgaria and Romania), 7 September 1940; Accord of Kaunas, Riga Accord and Moscow Convention (Germany and USSR), all of 10 January 1941; Convention (Germany and Italy), 31 August 1941; Accord of Graz, 12 November 1941, and Accord of 30 September 1942 (Germany and Coatia); and Accord (Germany and Bulgaria), 22 January 1943. It must be remembered that these figures represent only a fraction of the people affected by war, omitting the numbers of refugees, deportees and other displaced people whose numbers were not documented and who were not subject to "option clauses" as a factor in their flight. Furthermore, considering the circumstances of the War and the overriding interests of State-motivated transfer, it is unlikely that most transferees moved as much out of will as out of desperation and fear. In most cases, their community infrastructure and the fragile confidence in their rights to minority protection evaporated with each bilateral "option agreement". Certainly in these cases, voluntariness is a relative term.


C. Post-war transfers

138. The outcome of the Second World War involved, inter alia, the alteration of State boundaries in Europe. The victorious Allies at Potsdam interpreted the laws of war as ceasing to have effect once Germany was completely subjugated (debellatio). Conference at Potsdam, 2 August 1945. Before the signing of a peace treaty, approximately 16 million German civilians were put to flight or expelled from their homes, mostly between 1944 and 1949, with the purpose of transferring them within the borders of the post-war German States. It is ironic that, in respect to Hitler's Heim-ins-Reich policy, the population-transfer objectives of the Third Reich were realized by the preferences of the victorious Powers, albeit at great hardship to the German people. Some 2 million perished in the process.

139. Legal scholars and experts differ as to the legality of this transfer following debellatio. In support of its legality, see I. Brownlie, International Law and the Use of Force (Oxford, Clarendon Press, 1963), p. 408. For arguments against, see Alfred M. de Zayas, Nemesis at Potsdam: The Expulsion of the Germans from the East (Lincoln and London, University of Nebraska Press, 1989); "International law and mass population transfers", Harvard International Law Journal 16:2 (spring 1975), pp. 207–58; "The legality of mass population transfers: The German experience, 1945–1948", East European Qtrly. XII:1/2 (1978), pp. 1–23 and 144–60; and The German Expellees: Victims in War and Peace (New York, St. Martin's Press, 1993). The International Law Institute gathered opinions on the legality of the German transfers and most equivocated on the question of juridical legitimacy. See report and questionnaire presented by Giorgio Balladore Pallieri and subsequent responses in "Les transferts internationaux de populations" (quatrième commission), Annuaire vol. 44, No. 2 (1952), pp. 138–199. Under the prohibitions on war of the Charter of the United Nations (art. 2.4), a debellatio situation is theoretically impossible today among member States. However, these prohibitions have not proved to be effective in fact, and it would therefore be imprudent to assume that an illegal war would never again result in such "reparations in kind". From the justification of transferring forced German labour to the Soviet Union on the basis of the legality of Allied post-war sovereignty over Germany, by John H.E. Fried, "Transfer of Civilian Manpower from Occupied Territory", American Journal of International Law, vol. 40, No. 2 (1946), pp. 303–331.

140. In addition, post-war exchanges include a compulsory exchange of 200,000 Magyars from Czechoslovakia and 200,000 Slovaks from Hungary between those two countries, in 1946. By Treaty of 27 February 1946. Also, a September 1946 agreement provided for the exchange of 10,000 Magyars and 40,000 Serbs and Croats between Yugoslavia and Hungary, and the Soviet Union likewise agreed further to exchange populations with Poland and Czechoslovakia. 6 July 1945 and 10 July 1946, respectively. See De Zayas (1975), pp. 225–226.

141. Between one and two million transferees are estimated to have died under conditions of both formal population exchanges and spontaneous flight occasioned by the 1947 partition which created India and Pakistan. East and West Pakistan, today Pakistan and Bangladesh. Among the exchanges were many civilians who were forced across borders by events including refugees who were compelled to escape religious persecution in their home countries. The New Delhi Accord between India and Pakistan 8 April 1950. sought to regulate the movement of 10 million Hindus and Muslims to India and Pakistan, respectively. However, in the chaos which accompanied these exchanges, the Accord served merely as a formal recognition of a fait accompli, not as evidence of the use of law to enforce transfer. Such exchanges, having some degree of voluntariness and arguably in the interest of eliminating the source of foreseeable interethnic conflict within independent States, involve a tragic human rights trade-off which deserves deeper study to guide future practice and provide better protection. In these ethnic conflicts, particularly in the shadow of inter-State war, State force has been used to expel minority populations to the degree that legal experts have charged responsible Governments with gross violation of human rights and crimes against humanity. De Zayas (1975), op. cit., pp. 249–250; International Commission of Jurists (ICJ), The Events in East Pakistan (Geneva, ICJ, 1971); Niall Macdermot, "Crimes against humanity in Bangladesh", ICJ Review, vol. 11 (1973), p. 29 and following; "Biafra, Bengal, and beyond: International responsibility and genocidal conflict", comment, Proceedings of the American Society of International Law (1972), 89 and following.


VI. PRINCIPLES AND RULES IN EXISTING INTERNATIONAL
STANDARDS APPLICABLE TO POPULATION TRANSFER

142. Population transfers occur under varying circumstances ranging from aggressive wars, during belligerent occupation, in internal conflicts, or in peace-time, and may include removal as well as settlement of persons, within or across the boundaries of a State. No single legal principle can be applied to all population transfers. Dependent on the unique circumstances of each population transfer and the various groups it affects, different legal standards and principles may apply. The following section attempts to provide a comprehensive overview of existing and emerging legal standards relevant to population transfers in peace-time, as well as in situations of international or internal armed conflict.

143. A logical starting point for this analysis may be to look at some of the provisions of the Charter of the International Military Tribunal of Nuremberg, as well as the deliberations and judgement of the Tribunal regarding the forcible transfers of people that took place during the Second World War.


A. London Charter of the International Military
Tribunal and the Nuremberg judgment

144. The earliest explicit mention of population transfer in an international legal document was the recognition of "forced resettlements" as a war crime in the Allied Declaration on German War Crimes, adopted by representatives of the nine occupied countries, exiled in London, in 1942. It stated, inter alia:

145. On 17 October 1942, the Polish Cabinet in Exile issued a decree on the punishment of German war crimes committed in Poland, which provided that life imprisonment or the death penalty would be imposed "if such actions caused death, special suffering, deportation or transfer of population". Louise W. Holborn, ed., War and Peace Aims of the United Nations: 1 September 1939 – 31 December 1942 (Boston, World Peace Foundation, 1943), p. 462.

146. In reaction to the abundant and flagrant violations of the laws and customs of war during the Second World War, the International Military Tribunal (IMT) was set up to try the principle war criminals. The IMT Charter introduced into international law the notions of crimes against the peace, war crimes and crimes against humanity. It defined "war crimes" as follows:

147. Article 6 (c) of the Charter defined "crimes against humanity" as:

148. The notion of "crimes against humanity" differs from war crimes in that crimes against humanity can be committed before, as well as during, a war and against any population, including the perpetrator's own population.

149. In addition to the four Powers which approved the IMT Charter, 19 other States acceded to it as well. Furthermore, the United Nations General Assembly affirmed the principles of international law recognized by the IMT Charter and reflected by the judgement of the Tribunal. See General Assembly resolution 95 (1), adopted on 11 December 1946.

150. The Nuremberg judgment dealt in various instances with the practice of displacing civilians from the occupied territories and replacing them by German colonists. For example, count 3, section J of the judgement states:

151. During the trials the practice of "Germanizing" or "Nazifying" occupied or "annexed" territories by deporting or expelling the original population and moving in German settlers was addressed and repeatedly condemned. For instance, F. de Menthon stated that persons recalcitrant to Nazification became victims of large-scale expulsions, IMT, vol. 5, p. 410; E. Faure declared that deportations and Germanization in France were "a criminal undertaking against humanity", IMT, vol. 6, p. 427; L.N. Smirnov dealt with the clearance of Polish inhabitants from their villages and their replacement by Baltic Germans, IMT, vol. 8, p. 256; also vol. 8, p. 253 and vol. 19, p. 469.

152. In conclusion, the Nuremberg judgment held that population transfers and colonization in occupied territory constituted both a war crime and a crime against humanity, Alfred M. de Zayas, "International law and mass population transfers", Harvard International Law Journal, vol. 16, No. 2 (1974), p. 214. and that deportation of persons was illegal.


B. Humanitarian law

153. International humanitarian law refers to the body of law concerning the protection of individuals in time of war. Generally, the Hague Conventions of 1907 determine the rights and duties of belligerents in the conduct of war, while the Civilians Convention of 1949 concerns the protection of persons not taking part in hostilities. Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949. See, generally, on the development of humanitarian law, Jean Pictet, Development and Principles of International Humanitarian Law (Dordrecht/Boston/London, Martinus Nijhoff Publishers/Henry Dunant Institute, 1985). Humanitarian law is applicable during international armed conflict, although some clauses contain minimum standards in cases of internal conflict. According to most opinions today, the provisions of the Hague and the Geneva Conventions constitute customary international law. The Additional Protocols of 1977 to the Geneva Conventions of 1949 have not been universally ratified, Currently 122 States parties have ratified Protocol I and 113 have acceded to Protocol II. but a number of their provisions are today generally accepted as constituting customary international law. See Christopher Greenwood, "Customary law status of the 1977 Geneva Protocols" in Tanja Delissen, ed., Humanitarian Law of Armed Conflict: Challenges Ahead, Festschrift for Frits Kalshoven (Dordrecht, Netherlands, 1991), p. 113. Humanitarian law is of particular importance to the current study as it regulates many forms of population transfer in times of conflict.


1. The Hague Conventions

154. The Hague Convention IV concerning the Laws and Customs of War on Land, as originally adopted in 1899 and revised in 1907, constitutes a comprehensive codification of the conduct of land warfare. But it does not contain explicit mention of the practice of population transfers. Dr. Jean Pictet offers one explanation for this omission in his commentary to article 49 of the Civilians Convention, where he explains that "this was probably because the practice of deporting persons was regarded at the beginning of this century as having fallen into abeyance". Jean Pictet, ed., Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958), p. 279. He adds that the prohibition of deportations "may be regarded today as having been embodied in international law". However, articles 42 to 56 regulating situations of belligerent occupation offer implicit protection against population transfers. For instance, article 43 requires an Occupying Power to respect the laws in force in a country and article 46 requires respect for, inter alia, private property. Adam Roberts and Richard Guelff, eds., Documents on the Laws of War (Oxford, Clarendon Press, 1982), pp. 55-57.

155. Deportations were already prohibited under article 23 of the Lieber Code, which influenced the drafting of the Hague Conventions and the development of its provisions into customary international law. Article 23 provides that "private citizens are no longer murdered, enslaved, or carried off to distant parts ..." / The Lieber Code (Washington D.C., 24 April 1863) L. Friedman, ed., in The Law of War, a Documentary History, vol. I, (New York, Random House, 1972). The International Military Tribunal at Nuremberg expressly recognized the 1907 Hague Convention IV as declaratory of customary international law. IMT, vol. I, p. 44.


2. Interwar agreements: Kellogg-Briand Pact, Stimson doctrine

156. The interwar period witnessed a number of developments of relevance to the issue of population transfer. The Covenant of the League of Nations, signed in 1919, contained a partial prohibition of war. In an attempt to achieve a total prohibition of war, the Kellogg-Briand Pact was concluded and signed in 1928. The General Treaty for the Renunciation of War, to which nearly all States of the world at that time acceded, At the ninth assembly of the League of Nations, 23 States accepted the terms of the agreement; Germany accepted in 1929. stated:

157. The Kellogg-Briand Pact provided the basis for reconciliation and arbitration as the alternative to military aggression. However, not providing for specific action by States, the Kellogg-Briand Pact proved ineffective as a measure against military conquest. By the Stimson Note of 1932, the United States Government announced a further measure: not to recognize any situations brought about by aggression. The League of Nations adopted the Stimson formula of non-recognition in 1933.

158. Clearly a war of aggression was illegal after the Kellogg-Briand Pact and evidence exists from that time deeming aggression a crime under customary international law. Michael Akehurst, A Modern Introduction to International Law, sixth edition (London, Routledge, 1992), p. 279. The relevance to population transfers of the non-recognition of aggressive wars as a means of acquiring territory is that in the past conquest conferred title to territory and the conqueror would then often populate the territory with its own settlers. Large-scale expulsions and population transfers accompanied and followed aggressive wars, also at the beginning of this century.

159. Transfers resulting from war or belligerent occupation may be illegal and subject to remedy and/or compensation on the basis of the legal landmark provided by the Stimson Note of 1932. Thus, in the interest of legal clarity and practicality, the date of that standard may serve as a cut-off point, such that victims of transfers preceding that date would not be able to seek remedy under international criminal law.

160. By the end of the Second World War, the view had evolved that an obligation of non-recognition rests on States where another State has acquired territory by force. This culminated in the prohibition in the Charter of the United Nations of the use of force, whether or not constituting a technical state of war, against the territorial integrity or political independence of another State, except in self-defence or with the authority of an organ of the United Nations (art. 2.4). By the time the Charter was signed, it had become clear as well that illegal acts, such as transfer of population by expulsion or settlement, carried out during annexation following aggression, would remain illegal. Claire Palley, "Population transfer and international law", paper presented at Unrepresented Nations and Peoples Organization (UNPO), international conference on "The Human Rights Dimensions of Population Transfer", Tallinn, Estonia, 11–13 January 1991, p. 13.


3. Geneva Convention IV relative to the Protection
of Civilian Persons in Time of War (1949)
and Additional Protocols I and II (1977
)

161. The indignity and large-scale human suffering experienced during the Second World War inspired the further development of humanitarian law and the inclusion of new and crucial principles in Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (Civilians Convention).

162. The horrors connected to the mass deportations and transfers which took place during the War directly resulted in the inclusion of the explicit prohibition of forcible transfers or deportations in the Civilians Convention, According to Pictet, the intent behind the inclusion of this important prohibition becomes obvious: "It will suffice to mention that millions of human beings were torn from their homes, separated from their families and deported from their country, usually under inhumane conditions. The thought of the physical and mental suffering endured by these 'displaced persons' among whom were a great many women, children, old people and sick, can only lead to thankfulness for the prohibition embodied in this paragraph, which is intended to forbid such hateful practices for all time." Pictet, Commentary, op. cit., pp. 278–279. which is devoted exclusively to the protection of civilians in the territory of the enemy. In article 49 "individual or mass forcible transfers, as well as deportations of protected persons from occupied territory ... are prohibited, regardless of their motive". The prohibition is absolute, apart from the exceptions stipulated in paragraph 2, which authorizes the Occupying Power to evacuate an occupied territory wholly or partly, but only if "the security of the population or imperative military reasons so demand".

163. Protected persons are to be brought back to their homes as soon as the hostilities in the area have ended. The commentary to paragraphs 2 and 3 indicates that the intention behind the exception clause is to protect the interest of the population concerned and to mitigate the unfortunate consequences of evacuation. Ibid., pp. 280–281. Article 49 further prohibits the occupying Power to "deport or transfer parts of its own civilian population into the territory it occupies". The commentary states that this clause was adopted "to prevent a practice adopted during the Second World War by certain Powers which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race." Ibid., p. 283. There is no exception clause to this last prohibition.

164. Although article 49 was drafted with the intention to prohibit and thereby prevent population transfers in times of armed conflict, at the same time it sanctions such transfers when "imperative military reasons so demand". Through inclusion of the exception clause based on imperative military reasons, the principles contained in article 49 can just as easily be used to give forced removals a legal basis as to protect the rights of potential relocatees. The breadth with which "imperative military reasons" could be interpreted leaves doubt as to the de facto protection this article might provide. None the less, the basic guarantee contained in this provision is the clear and unambiguous prohibition of individual and mass forcible transfers. Scott Leckie, When Push Comes to Shove: Forced Evictions and International Law (The Hague, Netherlands, Ministry of Housing, Physical Planning and Environment, March 1992), p. 46.

165. Invocation of the exception clause by States to justify practices of population transfer contrary to the prohibition contained in article 49 may, however dubious at times, nevertheless contribute to strengthening its claim to customary law status.

166. The Regulations, annexed to The Hague Convention IV, in particular their provisions concerning the treatment of civilians, provide the basis for the customary law content of a large number of the guarantees contained in the Fourth Geneva Convention. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford, Clarendon, 1991), p. 45. Article 49, however, has no antecedents in The Hague Regulations. As to its status, Theodor Meron comments:

167. Article 49 is applicable in situations characterized as international armed conflicts, including belligerent occupations. In situations of prolonged occupation, even after military operations have ceased, population transfers would still be prohibited under article 49, read in combination with article 6, which extends the application of a number of provisions of the Civilians Convention, including article 49, for "the duration of the occupation, to the extent that such Power exercises the functions of government in such territory".

168. In situations of non-international armed conflict, a prohibition of population transfers could be inferred from article 3 common to all the Geneva Conventions of 1949, which, although not explicitly mentioning population transfer as such, enshrines a minimum humanitarian standard of treatment for protected persons, including the prohibition of "violence to life and person" and "outrages upon personal dignity, in particular humiliating and degrading treatment".

169. In accordance with article 147 of the Civilians Convention, "unlawful deportation or transfer of protected persons" constitute grave breaches of the Convention, perpetrators of which the High Contracting Parties are under obligation to pursue and punish before their own courts. Each State is obliged to enact legislation to provide for punishment of any person who has committed such a grave breach, regardless of nationality or place the offence has been committed. Articles 146 and 147 of the Civilians Convention (1949); see also Pictet, Commentary, op. cit., pp. 582–602.

170. The development of new methods of conducting war, the experience in armed conflicts showing the shortcomings of the existing Conventions and contemporary developments in human rights law gave impetus to the further development of humanitarian law. In 1977, two Additional Protocols were added to the Geneva Conventions of 1949. Additional Protocol I supplements the protection in situations of international conflict by extending its application to include situations "of armed conflict in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination". Article 1, paragraph 4 of Additional Protocol I (1977). Protection against practices of population transfer is further extended by article 85 of Protocol I, which, inter alia, provides in paragraph 4 that:

171. Article 85, paragraph 5 of Protocol I provides that "grave breaches of these instruments shall be regarded as war crimes". Article 86 implements article 85 by imposing on parties to the conflict an obligation to repress grave breaches.

172. Article 85, paragraph 4 (c), referring to transfers of population into or away from a certain territory does not lay out particular consequences as constitutive requirements for a grave breach to occur. The main emphasis of this clause is on the transfer by an Occupying Power of parts of its own civilian population into the territory it occupies. This constitutes a breach under the Civilians Convention, but is now a grave breach under the Protocol, according to one commentary, because of the possible consequences for the population of the territory concerned from a humanitarian point of view. Y. Sandoz, C. Swinarski and B. Zimmerman, eds., ICRC Commentary to the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Dordrecht/Boston/London, Martinus Nijhoff, 1987), p. 1000.

173. Article 86 provides for the criminal responsibility of those who have failed in their duty to act. One obvious duty to act consists of taking appropriate measures to prevent breaches of the Conventions or Protocols from occurring. A failure by the occupying Power to prevent movement and settlement of its own civilian population in an occupied territory may thus amount to a breach under the Additional Protocol I. Articles 85 and 86 are generally held to constitute customary international law.

174. Additional Protocol II to the Geneva Conventions applies in particular situations of internal conflict, and requires a certain degree of territorial control on the part of the organized armed group fighting the State. See generally, on non-international armed conflicts, Georges Abi-Saab "Non-international armed conflicts" in International Dimensions of Humanitarian Law (Dordrecht/ Boston/ London, Henry Dunant Institute/UNESCO/Martinus Nijhoff Publishers, 1988), pp. 217–241. Article 17 provides that:

175. The wording of this provision is based on article 49 of the Civilians Convention. Its inclusion fills the gap in protection against forced displacement in non-international armed conflicts, a situation in which the need for such protection is particularly acute. From expert commentary we learn that the adjective "imperative" in "imperative military reasons" reduces to a minimum the cases in which displacement may be lawfully ordered. Sandoz, and others ICRC Commentary, op. cit. The commentary continues:

176. Article 17 of Protocol II provides that no displacement shall take place for reasons "related to the conflict", leaving open the possibility that transfer may be imperative in certain cases of epidemic or natural disaster, such as floods or earthquakes. Ibid.

177. As to its status in international law, Protocol II has been recognized as containing core rights, some of which have already been recognized as customary in international human rights instruments. In this context, the International Committee of the Red Cross commentary on Protocol II states that it:

178. Other authors have taken a more cautious view and concluded that most of Protocol II has to be regarded as confined to treaty law in the absence of more substantial State practice providing evidence of acceptance of its provisions into customary law. Greenwood, op. cit., p. 113.

4. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity Adopted by the General Assembly in resolution 2391 on 26 November 1968, entered into force on 11 November 1970.

179. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity is relevant to the legal discussion concerning population transfers as it extends the concept of war crimes and crimes against humanity as defined by the Charter of the Nüremberg Tribunal. It also embodies the principle that no statutory limitations shall apply to the crimes referred to in the Convention, "irrespective of the date of their commission". For a detailed discussion of the Convention, see Robert H. Miller, "The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity", American Journal of International Law, vol. 65, No. 3 (July 1971), pp. 476–501. In accordance with article 1 (b) of the Convention the following acts are to be included as crimes against humanity:

180. Furthermore, article 1 (b) specifies that crimes against humanity may be committed "in time of war or in time of peace", thus delinking it from the ambiguity of article 6 (c) of the Charter of the Nüremberg Tribunal, which could be interpreted as not extending to the same category of crimes committed in time of peace not followed by war.

181. Article 2 stresses that inaction, as distinct from active involvement, on the part of the State authorities in not preventing the commission of international crimes is sufficient to bring those persons within the ambit of the Convention.

182. It deserves mention that the preamble to the Convention refers explicitly to resolutions of the General Assembly condemning as a crime policies which violate the economic and political rights of the indigenous population by the settlement of foreign immigrants on their territory, Reference is contained in the preamble to the Convention to General Assembly resolution 2184 (XXI) in which the Assembly condemned as a crime "the policy of the Government of Portugal, which violates the economic and political rights of the indigenous population by the settlement of foreign immigrants in the Territories". demonstrating particular consideration of the detrimental aspect of the implantation of settlers as part of a policy of population transfer that is deemed a crime under the Convention.


C. Human Rights Law

183. Although there currently exists no clear single code specifically outlawing population transfer or regulating its outcome, nor the recognition of a distinct right of individuals and groups not to be subjected to population transfer, many cases of population transfer are in breach of customary and conventional humanitarian law and constitute a violation of basic principles of conventional and customary international and human rights law. Under customary international law, the relevant categories of unlawfulness are genocide, systematic discrimination, a consistent pattern of gross violations of internationally recognized human rights and interference with the right to self-determination. Claire Palley, "Population transfers", in Donna Gomein, ed., Broadening the Frontiers of Human rights: Essays in Honour of Asbjørn Eide (Oslo, Scandinavian University Press, 1993), p. 229.

184. The law on genocide and the principles of non-discrimination and self-determination are considered overriding principles of international law, forming a body of jus cogens, obligations towards the international community as a whole that cannot be set aside by treaty or acquiescence, but only by the formation of a subsequent customary rule with the contrary effect. Ian Brownlie, Principles of Public International Law, fourth edition (Oxford, Clarendon, 1990), pp. 512–515, and the International Court of Justice (ICJ) judgment in the Barcelona Traction case. ICJ Reports (1970). The concept of jus cogens was accepted by the International Law Commission and incorporated in the Vienna Convention on the Law of Treaties, article 53. ILC Yearbook, 1963.

185. To estimate the existence of normative rules prohibiting such transfers or relevant to their application or consequences and to assess whether existing legal principles afford adequate protection against population transfers, in this section a number of principles and instruments of international law will be analysed in the light of the continuing practice of population transfer.

1. Charter of the United Nations

186. The Charter of the United Nations sets out fundamental principles which, at the time of its writing, were considered to be essential for the maintenance of peace and world order, including respect for human rights. The Charter affirms not only negative rights, prohibiting violations against persons and peoples, but also positive rights, as in the provision in Article 55 that "the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development". This important article also binds the United Nations to "universal respect for, and observance of, human rights and fundamental freedoms for all" (subpara. c.). Article 56 states that "all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55".

187. Whereas these provisions are binding on Member States, they may be found in some jurisdictions not to be self-executing and, therefore, insufficient as a basis of relief for individual plaintiffs. For example, see Fujii v. State of California, 28 Cal. 2nd 718, 242 P. 2nd 617 (1952), International Law Reports 19 (1952), p. 312; Rice v. Sioux City Memorial Park Cemetery, Inc., 245 Iowa 147, 60 NW 2nd 110 (1953), International Law Reports 20 (1953), p. 244; Comacho v. Rogers, 199 F. Supplement 155 (1961); International Law Reports 32, p. 368. However, as treaty provisions applying to the Organization and all its Members, these principles have remained paramount and, especially with the strength of Article 56, the political and judicial bodies within the United Nations system have affirmed respect for human rights as a legal obligation. "The legal consequences for the States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970): Pleadings, oral statements, documents" [hereinafter, "Namibia Opinion"], ICJ Reports (1971), pp. 56–57.

188. As a fundamental instrument of international treaty law, the Charter and its general human rights principles have served as an authoritative guide and impetus for the development of more specifically defined standards of human rights law. Of all the legal and practical innovations of the Charter, perhaps the most influential and constructive have been the prohibition of discrimination and the concept of the self-determination of peoples, as States Members of the United Nations are obliged to respect and realize these fundamental principles in the interest of international peace and world order.

2. The standard of non-discrimination

189. The Charter contains a number of general references to human rights and fundamental freedoms that are to be realized for all "without distinction as to race, sex, language or religion". Articles 1 (3), 13 (1), 55, 56, 62 (2) and 76. These have provided the basis for more specific provisions found in a host of multilateral treaties emerging after 1945. Standards of human rights, including non-discrimination, became further codified with the human rights covenants and other developments in the mid-1960s. By 1965, the principle of non-discrimination was upheld by international jurisprudence as a legal standard, Judge Tanaka, dissenting opinion, ICJ Reports (1966), p. 300; "Namibia Opinion", (1971), p. 57, para. 131. and a majority of judges on the International Court have referred to obligations erga omnes in contemporary international law that include "the principles and rules concerning basic rights of the human person, including protection from slavery and racial discrimination". Barcelona Traction case (second phase), ICJ Reports (1970), p. 32.

190. The legal principle of non-discrimination in matters of race is further confirmed in the practice of the organs of the United Nations. Supplementing Articles 55 and 56 of the Charter, the General Assembly resolutions condemning apartheid, And zionism, until General Assembly resolution 3379 was revoked by General Assembly resolution 46/86 of 16 December 1991. the Universal Declaration of Human Rights, the international covenants on human rights and the International Convention on the Elimination of All Forms of Racial Discrimination, among other treaties and declarations, ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation, 25 June 1958, entered into force 15 June 1960; UNESCO Convention against Discrimination in Education, 14 December 1960, entered into force 22 May 1962; UNESCO Protocol instituting a Conciliation and Good Offices Commission to be responsible for seeking a settlement of any disputes which may arise between States Parties to the Convention against Discrimination in Education, 10 December 1962, entered into force 24 October 1968; International Convention on the Suppression and Punishment of the Crime of Apartheid, A/3068 (XXVIII), 30 November 1973; UNESCO Declaration on Race and Racial Prejudice, 27 November 1978; UNESCO Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War, 28 November 1978; and the International Convention against Apartheid in Sports, A/40/64, 10 December 1985. have affirmed non-discrimination as a universal principle of human rights. Discrimination on the basis of gender is also condemned by multilateral agreements, such as the Discrimination (Employment and Occupation) Convention ILO Convention No. 100 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, 29 June 1951, entered into force 23 May 1953. and the Convention on the Elimination of All Forms of Discrimination against Women. General Assembly resolution 2263 (XXII) of 7 November 1967. The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief A/36/55, 25 November 1981. also complements the legal prohibitions against discrimination.

191. Under international law as developed, the treatment of aliens is subject to different standards. For example, asylum issues, confiscation of property, taxation and some commercial practices may involve measures of differentiation, but if the standard of discrimination is jus cogens, as in the case of racial discrimination, or if the treatment involves a pattern of unreasonable differentiation or arbitrariness, it may be unlawful. Relevant to population transfer, the expulsion of non-citizens may be lawful in some cases, unless the action is arbitrary or specifically targets a distinct population group.


3. International Convention on the Elimination of All Forms

of Racial Discrimination

192. As pointed out in the second progress report on the protection of minorities E/CN.4/Sub.2/1992/37, pp. 15–19. and discussed above, a number of political solutions are available to States faced with problems arising from a plural society. Such policy options may be restricted by the most widely ratified human rights instrument in legal history, the International Convention for the Elimination of All Forms of Racial Discrimination (the Racism Convention). As of 30 May 1993, 134 States had ratified the Convention.

193. Under this Convention, States are obliged to observe principles of equality, non-dominance and non-discrimination. In order to carry out these obligations, the Convention also empowers States to take certain legislative and other measures to enforce individuals and public bodies within its jurisdiction not to discriminate on the basis of race.

194. Despite its inclusive title, the Convention concerns itself not so much with the predisposition of mind that is racism, but rather with the outward manifestations of racism that involve the expression or practice of discrimination based on race. It defines its subject to mean:

However, the Racism Convention does not apply to distinctions or discrimination made by a State party between citizens and non-citizens, nor to legal provisions concerning naturalization (art. 1.2), as long as those State laws and practices do not discriminate against any particular nationality (art. 1.3).

195. Article 5 of the Racism Convention recognizes an array of specific rights, including the political right to participation "in the conduct of public affairs at any level and to have equal access to public service". Among the human rights specifically recognized are the right to own property alone or in association with others, and therefore to control the disposition of that property. The Convention refers to the right to housing, which has been elaborated elsewhere to mean not only adequate shelter, but in its broad sense to guarantee a place to live in peace and dignity, and the right to decide the development of that place in ways that the owners and resident communities themselves determine. See Leckie, op. cit. Violations of the right to housing often involve the use of official housing policies as an instrument of discrimination, which exemplifies the conceptual and practical intersection of planning and population transfer, most typically at the expense of the indigenous inhabitants of a territory. See, for example, Sachar, op cit.

196. Also provided in article 5 is the basic right to nationality. Public international law has developed in such a way that the status of the individual derives from a relationship to the State, as well as to a particular territory. The doctrine of effective nationality relies on a number of important treaties and some municipal laws which recognize habitual residence or domicile. For example, see United Nations Legislative Series, Laws concerning Nationality (1954), pp. 586–593. The Treaties of St. Germain refer to persons born of parents "habitually resident or possessing rights of citizenship (pertinenza)". See also article 19 of the Italian Peace Treaty, 10 February 1947, cited in Brownlie, Principles of International Law, op. cit., 560. This relates also to the emerging concept of the right to the homeland (Recht auf die Heimat), as elaborated in Kurt Rabl, ed., Das Recht auf die Heimat, vols. 1–5 (Munich, 1959); Otto Kimminich, Das Recht auf die Heimat (Bonn, 1978); F.H.E.W. du Buy, Das Recht auf die Heimat (Utrecht, 1975); Hartmut Koschyk, ed., Das Recht auf die Heimat. Ein Menschenrecht (Munich, 1992); Christian Tomuschat, "Das Recht auf die Heimat: Neue rechtliche Aspekte", in J. Jekewitz, ed., Das Menschenrecht zwischen Freiheit und Verantwortung, Festschrift for Karl Josef Partsch (Berlin, 1989), pp. 183–212; and Felix Ermacora, Die sudetendeutschen Fragen. Rechtsgutachten (Munich, 1992). The underlying idea here is the importance of belonging to a community, and that a stable community relates to a particular territorial zone. Thus, a population has a local, "territorial" status, and State sovereignty implies responsibilities toward the people(s) (communities) related to the place coinciding with the State. Hence, the principle of local status related to the right of nationality, consistent with other human rights instruments, would preclude the transfer of persons or communities as a violation of that basic right guaranteed by the Racism Convention.

197. States are empowered under international treaty law to restrict the offensive behaviour of their citizens and public bodies "with due regard to the principles embodied in the Universal Declaration of Human Rights". In practical application of the Racism Convention, this "due regard" clause is generally interpreted to require weighing the State's obligation to restrict "incitement" and expressions of racial discrimination with articles 19 and 20 of the Universal Declaration regarding freedom of expression and association.

198. Affirmative action to correct the consequences of discrimination are called for in the Racism Convention, which provides in article 2.2 that, when circumstances warrant, States shall take "special and concrete measures" in the social, economic, cultural and other fields:

Affirmative measures may be limited only in so far as they "in no case entail as a consequence unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved". That is, remedies for past discrimination are called for under the Racism Convention as long as they do not create new, permanent privileges in the long run at the expense of other groups.

199. Where transfers that took place before 1932 have led to a continuing pattern of discrimination at the expense of a group subject to the provisions of the Racism Convention, formal measures are called for whereby States Parties retroactively address the effects of that discrimination.


4. The principle of self-determination

200. The principle of self-determination is one of the most fundamental, widely supported and debated collective rights recognized in international law. James Crawford, The Creation of States in International Law (Oxford, Clarendon, Oxford, 1979), pp. 85–102; also David Makinson, "Rights of peoples: A logician's point of view", in James Crawford, ed., The Rights of Peoples (Oxford, Clarendon, 1988), p. 73: "the right to self-determination is still the only right of peoples to be incorporated explicitly and separately into an international instrument under the aegis of the United Nations". Contemporary views hold the right to self-determination to constitute jus cogens, customary international law and a continuous right, "Self-determination is not a right to be enjoyed once and thereafter to be forever lost", stated in a UNESCO statement to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, E/CN.4/Sub.2/1992/6, para. 3 (d). Hector Gros Espiell holds that "the right of peoples to self-determination has lasting force, does not lapse upon first having been exercised". See his "The right of self-determination: implemention of United Nations resolutions", E/CN.4/Sub.2/405/Rev.1 (1980), para. 47. appertaining to all peoples Contemporary views maintain that self-determination is not confined to a right to be enjoyed by formerly colonized peoples. See E/CN.4/Sub.2/1992/6, para. 3 (d). Rodolfo Stavenhagen argues that applying a geographical criterion as the old "salt-water" principle to determine which peoples have the right to self-determination is a reductio ad absurdum of the whole question. See his The Ethnic Question: Conflicts, Development and Human Rights (Tokyo, United Nations University Press, 1990), pp. 65–75. General Comment No. 12 of the Human Rights Committee, as quoted in Patrick Thornberry, "The democratic or internal aspect of self-determination with some remarks on federalism" suggests that there exists "an ongoing right of self-determination of general application which includes the peoples of independent States", CCPR/C/21/Add.3, p. 8. James Crawford argues self-determination is to be thought of as a right of peoples, rather than governments. See his "The rights of peoples: `Peoples' or Governments?" in The Rights of Peoples, op. cit., p. 59. For the distinction between a general rinciple of self-determination and its appearance in internationally recognized rights, see Hurst Hannum Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia, University of Pennsylvania Press, 1990), pp. 27–49. to "freely determine, without external interference, their political status and to pursue their economic, social and cultural development." Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly resolution 1514 of 14 December 1960, Official Records of the General Assembly, Fifteenth session, Supplement No. 16, A/4684; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, article 1; International Covenant on Civil and Political Rights, 19 December 1966, article 1; of the United Nations Charter, article 1, para. 2 and article 55. The right to self-determination has been argued to be a process rather than one particular outcome M. Pomerance Self-determination in Law and Practice : The New Doctrine in the United Nations (Dordrecht/Boston/London, Martinus Nijhoff, 1982). and to consist of a "bundle of rights" from which, depending on the specific situation experienced by that people, a variety of rights can be chosen for its implementation. Cindy Cohn, "Choices from the bundle: A model for exercising the right to self-determination" [forthcoming 1993]. The exercise of the right to self-determination involves a range of political options, ranging from mere self-identification to self-government and secession or independent statehood.

201. As Ian Brownlie instructs, "the rights and claims of groups with their own cultural histories and identities are in principle the same — they must be. It is the problems of implementation of principles and standards which vary, simply because the facts will vary". Ian Brownlie, "The Rights of Peoples in Modern International Law", in Crawford, The Rights of People, op. cit., p. 16.

202. Policies and practices of population transfer may be aimed specifically at denying a meaningful implementation of the right to self-determination, for instance, by altering the relevant unit of self-determination through demographic manipulation, or policies which have that effect. Instances include the implantation of settlers and settlements in occupied or disputed territories and the concurrent, induced dispersal of the original inhabitants, changing the demographic compositions of the territory to extend control or annex the territory, thereby undermining a legitimate exercise of self-determination by its people.

203. As the core content of the right to self-determination encompasses the right to exist as a people and safeguards the cultural and political continuation of groups, its exercise would necessarily be frustrated if a population were uprooted from its homeland Alfred de Zayas, "Population expulsion and transfer", in Rudolf Bernhardt, Encyclopedia of Public International Law, vol. 8, (Amsterdam/New York/Oxford, North Holland, 1985), pp. 438–444; Daniel Thurer "Self-determination", ibid., pp. 470–476; Antonio Cassese, "The self-determination of peoples", in Louis Henkin, ed., The International Bill of Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press, 1981). and when transfers contribute to the destruction of a distinct identity and remove a people's ability to determine their own destiny as a people. Christa Meindersma, "Introduction" (adapted from a paper presented at the international conference of the Unrepresented Nations and Peoples Organization [UNPO] on "the Human Rights Dimensions of Population Transfer", Tallinn, Estonia, 11–13 January 1992), in David Goldberg, ed., Report on the UNPO Conference on Population Transfer [hereinafter, UNPO Conference Report] (The Hague, UNPO, 1992). Claire Palley states that "once broad issues surrounding population transfers are canvassed, a possible development is the growth of law which sanctions violations of the right of internal self-determination, including attacks on the continuing identity and integrity of culturally distinct ethnic groups through suppressing their culture". See her "Population transfers", in Gomein, op cit., p. 222. See also Thornberry, op. cit., p. 21. He says that "the integrity of the whole is disturbed by policies of forced resettlement, population transfer, mass expulsions, and other forms of demographic manipulation. These should be seen as violations of self-determination".

204. The forced removal of people away from their traditional lands, or the implantation of settlers without the consent of the original inhabitants into whose territories they are being moved, for instance, are instrumental to assimilationist policies and constitute obvious breaches of the minimum guarantee which the right to self-determination is accepted as conferring: the right of a people to "freely determine" its destiny.

205. It has been contended that "a likely consequence of analysing self-determination in the context of population transfers is recognition that a right to the homeland and a right not to be demographically manipulated are prerequisites of self-determination". Palley, op. cit., p. 222. See also note 160 above. In addition to conflicting with the right to self-determination, in general, practices of population transfer may be instrumental in or have the effect of denying a meaningful realization of core elements of the right to self-determination. Without attempting to provide an exhaustive overview of the interaction of population transfer policies with the different levels of this right, a few exemplary connections will be noted.

206. The exercise of the right of peoples to self-determination presupposes the free and genuine expression of their will, Report of the Sub-Commission rapporteur on self-determination Hector Gros Espiell "The right to self-determination: Implementation of United Nations resolutions", E/CN.4/Sub.2/405/Rev.1 (1980), para. 65. See also ICJ Opinion in the Western Sahara case, ICJ Reports (1975), p. 31 and 33. such as by means of elections or a plebiscite. However, in a situation where a settler population has become a majority in a certain territory through policies of induced settlement in combination with displacement of the original population, exercise of democratic rights by that majority determines the outcome of the election and renders the concept of "genuine expression of their will" an empty promise for the original inhabitants. Michael Kirby, "Population Transfer and the Right to Self-Determination: Differences and Agreements" (paper presented at UNPO Conference referred to in note 126 above. Kirby contends that, "in a situation where a settler population has become a majority, automatic exercise of democratic rights by that majority may invite the "take-over" of the territory, achieving by the ballot box what they had failed to achieve by armed annexation. Democracy, so defined could lead to the extinguishment of a precious individual culture" (p. 70). In a number of recent situations, States have attempted actively to utilize population transfer policies to influence the outcome of referenda by altering the demographics of the region concerned.

207. For many peoples, implementation of their right to self-determination focuses on recognition and retention of land rights. For the majority of indigenous peoples, survival of their cultural and national identity, preservation of their unique way of life and spiritual heritage, political autonomy and economic self-sufficiency depend on the possibility of living on their traditional lands and controlling the use and exploitation of their natural resources. Loss of land threatens their very existence. Population transfer schemes, including the removal of people and the encouragement of settler encroachment, for instance, carried out under the banner of "development", "modernization" or military imperatives, are among the principle means by which indigenous land is appropriated. Population transfer policies may thus threaten a people's most basic means of subsistence, a crucial element of the right to self-determination.

208. The right to use one's own language may constitute another key element around which people's claims for self-determination are centred, when the use of their language has been denied them as part of a consistent policy. Coincidentally, linguistic criteria have been used as a basis for population transfer policies, allowing persons whose mother tongue is not that of the dominant society to be displaced, resettled and dispersed. For example, see Turkish Law No. 2510, 14 June 1934, especially para. 11.


5. Convention on the Prevention and Punishment of the
Crime of Genocide

209. In close connection with the development of humanitarian law, new rules of international human rights law were formulated. The concept of crimes against humanity led to the adoption in 1948 of the Convention on the Prevention and the Punishment of the Crime of Genocide (the Genocide Convention). Its main purpose was to make genocide a crime under international law. General Assembly resolution 260 (III), 9 December 1948, entered into force 12 January 1951. See Paul Sieghart, The Lawful Rights of Mankind: An Introduction to the International Legal Code of Human Rights (New York, Oxford University Press, 1985), pp. 60–61; also Igor P. Blischenko, "Responsibility in breaches of humanitarian law", in International Dimensions of Humanitarian Law (Paris, UNESCO; Geneva: Henry Dunant Institute; Dordrecht: Martinus Nijhoff, 1988), pp. 285–286.

210. In its Advisory Opinion, the International Court of Justice stated that "the principles underlying this Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation". Reservations to the Convention on Genocide, Advisory Opinion, ICJ Reports (1951) Although the Convention does not prohibit population transfers per se, its relevance to practices of population transfer becomes obvious when one considers its definition of genocide. In article II, genocide is defined as including:

(d) Imposing measures to prevent births within the group;

211. Several cases of transfer in the present century have been reported to involve any one, or combination, of these categories. For example, the policy of transferring some 650,000 Baltic people from their countries to other points within the former Soviet Union between 1941 and 1952 reportedly also involved the systematic separation of Baltic children from their families to be raised in an alien culture. The apparent pattern of transfer and forced labour in work camps in Trans-Ural Siberia, Kirgizia and elsewhere under life-threatening conditions may relate to a combination of the five definitions of genocide provided in the Covenant. Mass Deportations of Population from the Soviet Occupied Baltic States (Stockholm, Estonian Information Center and Latvian National Foundation, 1981).

212. The prohibition of genocide corresponds to a right of peoples to physical existence. Yoram Dinstein, "Collective human rights of peoples and minorities", International and Comparative Law Quarterly, vol. 25, Part 1 (January 1976), p. 105. Practices of population transfer may threaten the physical existence of a people, for instance in the case of removal of land-based communities from their traditional lands or the implantation of settlers in occupied or annexed territories as a means of changing the demographic composition of those territories.

213. The traumatic experience of involuntary removal, often under inhumane circumstances and being compelled to leave everything behind, may lead to serious bodily and mental harm and indeed in the death of large numbers of people. Uprooting of peoples with special ties to the land has proved most expedient to their physical destruction. When removal of people or the implantation of settlers is accompanied by more obvious measures of physical destruction vis-à-vis that particular group, such as forced abortions, prohibition of the use of an original language, national customs and religion, imprisonment, killings and torture, the connection of population transfers to genocide becomes most evident. Joseph Schechla, "Planning the end of existence", Middle East Policy, vol. 1, No. 2 (Summer 1992), pp. 109–119. The author points out that physical destruction of a group does not have to be rapid, it could be a gradual and incremental process.

214. For specific policies and practices of population transfer to constitute genocide under the Convention, in addition to the destructive effects of the transfer, the intent of the Government or other actor "to destroy, in whole or in part, a national ethnic, racial or religious group as such" must be sufficiently proved. The governmental intent required to raise the level of an act to genocide will vary, depending on circumstances. Governmental participation in population transfers may differ, from the outright conducting of the transfers to encouragement and inducement of certain movements of people, or to a general failure to act to halt ongoing and "spontaneous" transfer processes.

215. But even when governmental participation in population transfers is insidious and merely takes the form of encouragement or inducement, it can contain enough governmental authority to raise the consequences for a subject population to the level of genocide. Awareness of the destructive effects of the transfer on the affected group, concurrent with continued governmental involvement or failure to undertake action to terminate the transfer, would render ineffective a Government's claim to lack of intent.

216. Reliance on the Genocide Convention in cases of population transfer has certain shortcomings unrelated to the challenge of proof of intent. The Convention derives its terms from the Nuremberg Principles affirming individual responsibility for war crimes and crimes against humanity. IMT states that "crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced", Federal Rules Decisions, vol. 6 (St. Paul, West Publishing Co., 1947), p. 110. Applying the Convention, with its subject as "persons, whether they are responsible rulers, public officials or private individuals" (art. IV), has proved elusive. In fact, selecting the individual or individuals to charge may have discouraged testing the Convention's usefulness in cases where such individuals are less identifiable than the larger State or government mechanisms forming and/or implementing policy. The "low-intensity" or incremental nature of violations with genocidal purpose and effect may evade the intergovernmental consensus presumed necessary to apply this instrument.

217. Few conventions give jurisdiction to an international criminal court. The Genocide Convention (art. 6) and the Apartheid Convention (art. 5) do, although not exclusively. Most other conventions rely on national jurisdictions, as for example the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons (art. 7). Still, preference is traditionally given to the jurisdiction of the State in whose territory the crime was committed. This custom would prove problematic in international attempts to prosecute a crime against apartheid, for example, or genocide.

218. Although "any Contracting Party may call upon the competent organs of the United Nations to take action ... for the prevention and suppression of acts of genocide" (art. VIII), the Genocide Convention has never been invoked, except for rhetorical purposes. The Genocide Convention stands, in the light of all the breaches of its provisions since its adoption in 1948 as a marked example of the deficiency of international political will to uphold a standard designed to deter the most heinous of human rights abuses. Thus, the prospects for applying this instrument to prosecute in the case of population transfers, which are far more common than classic cases of genocide through extermination, seem remote.


6. Universal Declaration of Human Rights

219. The Universal Declaration of Human Rights, drafted in the aftermath of the Second World War, was adopted by world consensus on 10 December 1948. General Assembly resolution 217 (III), Part A. Although not intended as a legally binding instrument, its legal significance stretches beyond original intentions. It provides an authoritative guide to the interpretation of provisions of the Charter of the United Nations, it has been invoked by the General Assembly on many occasions and has influenced the adoption and interpretation of national and treaty law. See "The Universal Declaration of Human Rights: its significance in 1988", SIM Special No. 9 (Utrecht: SIM, 1988); Brownlie Principles of Public International Law, op. cit., pp. 570–71. The Declaration has been cited by the International Court of Justice and the European Court of Justice and forms the basis of implementation mechanisms at the United Nations level. Concerning the legal significance of the Universal Declaration with regard to the 1503 Procedure, see Asbjørn Eide, Gudmundur Alfredsson and others, eds., The Universal Declaration on Human Rights: A Commentary (Oslo, Scandinavian University Press, 1992), pp. 6–8. The Declaration in its entirety or, at a minimum, a great number of the provisions contained therein are held to constitute general principles of law or binding rules of customary law. Cees Flinterman, "The Universal Declaration of Human Rights and the need for human rights education", in SIM Special No. 9, op. cit., in which he states that "all States are now accountable and responsible for the ways in which they comply with this common standard", (p. 41).

220. Population transfers would necessarily contradict the letter and spirit of almost every article of the Declaration, as it was inspired by the determination to prevent the horrors and atrocities committed during the Second World War, of which transfers of people had been recognized as one of the most serious. Jan Martenson, "The Preamble of the Universal Declaration of Human Rights and the United Nations Human Rights Programme", in Eide and Alfredsson, op. cit., 17–29. He expresses the view that "the UDHR marked its time as a statement of the ultimate value of the human person in refutation of the Fascist and Nazi theories, which lay at the basis of so many barbarous acts, as a justification for the suffering and sacrifices that went into the struggle against those regimes and as a programme of action to prevent a renewal of the horrors all too present in the minds of the UDHR drafters", (p. 17).

221. Within the scope of the present report, it suffices to state that the concept of human dignity underlying the Declaration and its proclamation as "a common standard of achievement" cannot be reconciled with the continuing practice of population transfer. Of particular relevance in this context are article 9 prohibiting arbitrary detention or exile, article 13 guaranteeing freedom of movement and article 15 granting the right to a nationality and prohibiting the arbitrary deprivation of nationality.

222. The rights contained in the Declaration have been expanded upon in the two International Covenants and elsewhere. Through an analysis of these texts, the pertinence of a number of their provisions to population transfers and the potential legal protection they offer will be examined.


7. International Covenant on Civil and Political Rights

223. Analysed in the light of the provisions of the International Covenant on Civil and Political Rights, General Assembly resolution 2200 A (XXI) on 16 December 1966, entered into force on 23 March 1976. population transfers would, through their practice or effects, interfere with the meaningful implementation or constitute outright violations of a large number of its articles, including the non-derogable ones listed in article 4.

224. Singling out a specific distinct group to be subjected to population transfer would violate the non-discrimination principle contained in the Covenant, if the distinction were based on the criteria set forth therein. Past and present situations illustrate that compulsory transfer, including population transfer under exchange treaties between States, inherently result in heavy loss of life among the affected populations, which would constitute a violation of the right to life enshrined in article 6. On post-Second World War transfers of ethnic Germans, see Alfred de Zayas, Nemesis at Potsdam, op. cit.; and "International Law and Mass Population Transfers", Harvard Intl L. J. vol. 16, No. 2, pp. 207–258. Torture and other forms of degrading treatment frequently accompany population transfer, particularly through enforcement measures, and persons transferred are commonly subjected to arbitrary detention before or after transfer and may even be used for purposes of forced or slave labour. The situation of ethnic minorities as noted by the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar is a case in point. The Special Rapporteur informed the Commission that he had received ample evidence indicating that:

225. Of particular importance in relation to practices of population transfer is the right, contained in article 12 of the Declaration, to freedom of movement. The right to freedom of movement is contained elsewhere in human rights instruments: Universal Declaration, article 13; European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol IV, articles 2 and 3; Inter-American Convention on Human Rights, article 22; Racism Convention, article 5; African Charter on Human and Peoples' Rights, article 12. This right includes the right to leave a country and to return to one's country and the right to internal freedom of movement and choice of residence.

226. The right to enter one's country is directly linked to forced exile or expulsions, means by which persons are deprived of their right to return to their country. In the case of South Africa, entire racial groups have been expelled, forcibly relocated in designated areas, subsequently called "independent States", and denationalized so as to prevent the exercise of their right to return. Policies of mass expulsions, followed by denationalization, or denationalization effected to enable mass expulsions of entire national or ethnic groups have been and continue to be adopted by States for political reasons. Activities aimed at cleansing a territory of a specific ethnic group directly violate an individual or group's right to freedom of movement within a State, as well as their right to return. On exile and expulsion in connection with the right to freedom of movement, see Hurst Hannum, The Right to Leave and Return in International Law and Practice (Dordrecht/Boston/London, Martinus Nijhoff, 1987), pp. 63–67.

227. In the course of implementing policies of forced removal and implantation of settlers, persons and groups designated to be affected may be forcibly resettled to so-called "concentration points" or "model villages" where their movement and development may be strictly limited and controlled. Their right to leave such settlements and thereby to leave their country is in most such cases heavily restricted. Such methods are employed to make way for the settlement of persons belonging to a dominant ethnic group or the occupying Power, with the aim of extending control over a territory or the dispersal and effective control of the original inhabitants of the territory.

228. Population exchanges may result in de facto difficulties of travel between communities and territories even when no official restrictions on the right to leave exist. Ibid., p. 94. The right to freedom of movement in all its aspects is central to questions of population transfer. Whether people are forcibly relocated within a country, or settlement of others on their lands is encouraged, or people are forced to cross international borders, these practices violate a people's basic right to remain. Such a right can logically be understood as a corollary to the right to freedom of movement. Conversely, such freedom of movement necessarily also entails a right to be free not to move. Phrased in terms of freedom to move, the right accentuates the element of voluntariness; forcible transfers of population inherently infringe on the freedom to move.

229. The relevance of the right to freedom of movement to situations in which population transfer occurs is also exemplified by the fact that this right may even be invoked to justify such transfers. For instance, the encouraged or induced movement and subsequent settlement of persons into the territory (whether or not disputed) of a distinct group may be reasoned in terms of the freedom of those persons to move without restriction within a country and choose their place of residence. However, such movements may be carefully planned and aimed at ensuring that a disputed or occupied territory becomes de facto an integral part of the State responsible for inducing or acquiescing in such movement. In such situations, the rights of settlers to return to their country or places of origin may be equally restricted and the right to freedom of movement of the original inhabitants of the territory infringed on as a result of the settlement.

230. The right to freedom of movement as laid down in article 12 of the International Covenant on Civil and Political Rights is subject to restrictions that are "necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the ... Covenant". Even though it is a general rule that exceptions to a principle must be interpreted restrictively, so as not to undermine the principle, the rather broad terms "public safety" and "national security" warrant concern as to their possible use and have been noted to be not sufficiently precise to be used as a basis for limitation or restriction of certain rights and freedoms of the individual. Report of the Special Rapporteur, Ms. Erica Daes, "The individual's duties to the community and the limitations on human rights and freedoms under article 29 of the Universal Declaration", E/CN.4/Sub.2/432/Rev.2 (1982). Restrictions generally may not be interpreted in such a manner as to legitimize unnecessary, arbitrary or discriminating measures, aimed at objectives which are contrary to the general aim and purpose of the specific right and the instrument in which it is contained.

231. Article 13 of the Covenant provides that an alien lawfully in a country may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to have his case reviewed by, and be brought before a competent authority. Collective expulsions are incompatible with this provision. However, it seems that protection is limited to aliens lawfully in a country. If a literal interpretation of this provision could imply that mass expulsion of unlawful aliens or immigrants would be allowed, a clear gap in protection against expulsion for this vulnerable group would exist.

232. Forcible transfers of population would constitute arbitrary or unlawful interference with a person's privacy or home, and most frequently lead to separation of families, amounting to a non-respect for family rights. International Covenant on Civil and Political Rights, articles 17 and 23. Article 27, guaranteeing to persons belonging to ethnic, religious or linguistic minorities the right to enjoy their culture, profess their religion and use their language, is of particular relevance to population transfers affecting minorities. However, taking into account the scope of the present report and the existence of the mandate of the Special Rapporteur on minorities to examine the question of population transfers affecting minorities in his forthcoming report, detailed consideration of this provision will be omitted here.


8. International Covenant on Economic, Social and Cultural Rights

233. Although enumerated in a different Covenant, economic, social and cultural rights are indivisible from and interdependent with civil and political rights. See the report of the Special Rapporteur on economic, social and cultural rights, Danilo Türk, op. cit., E/CN.4/Sub.2/1992/16. General Assembly resolution 32/130 "Alternative approaches and ways and means within the United Nations system for improving the effective enjoyment of human rights and fundamental freedoms", 16 December 1977 states, inter alia, that "all human rights and fundamental freedoms are indivisible and interdependent" and "the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible". According to the Limburg Principles and article 2 (1) of the Covenant, State Parties to the Covenant are obliged to move as expeditiously as possible towards realization of the rights contained therein. The Limburg Principles, established at an expert meeting to consider the nature and scope of the obligations of States Parties to the International Covenant on Economic Social and Cultural Rights convened by the International Commission of Jurists, Maastricht, June 1984. For an analysis of the symposium, see Human Rights Quarterly, vol. 9, No. 2 (May 1987). State practices hampering this process and continued non-compliance can therefore be considered to constitute violations of economic, social and cultural rights. See also, Limburg Principles Nos. 70–73. Principle 72 details behaviour of Governments which amounts to a violation of the Covenant.

234. Like the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, contains a number of provisions directly relevant to an analysis of the legal and human rights dimensions of population transfer. As a preliminary report does not permit an exhaustive analysis of all of its provisions, the following description will be limited.

235. The right to work and the right to education cannot but be impaired in the process of transferring populations (arts. 6 and 13). Moreover, denying means of employment and education to specific groups, or instituting favourable employment or education conditions for one group within a population may culminate in forcing other groups of people to move away from a territory, thereby altering the demographic character of the territory concerned. Where such favourable treatment is afforded on the basis of criteria listed in article 2.2 of the Covenant, such practices would also amount to a violation of the non-discrimination principle contained therein. Additionally, discrimination in or denial of education and employment opportunities is frequently the consequence of the transfer of populations, either into or away from a certain territory.

236. Article 11, which elaborates the right to adequate housing in the larger context of an adequate standard of living, food and clothing, deserves special attention. Generally, on the right to adequate housing, see Scott Leckie, From Housing Needs to Housing Rights: An Analysis of the Right to Adequate Housing under International Human Rights Law (London, IIED, 1992); also Rajindar Sachar, E/CN.4/Sub.2/1992/15. The Special Rapporteur of the Sub-Commission on the right to adequate housing has noted that countries illegally occupying territories commonly use housing policies as a tool for favouring their own citizens at the expense of the rights of the original inhabitants, particularly through the use of planning laws and practice of population transfer.

237. In the process of population transfer, people are frequently evicted from their homes or their homes are demolished as part of the relocation effort. In other cases, homes of expellees or relocated people may be occupied and utilized by new settlers moving into the territory.

238. In addition to the violation of housing rights that eviction is recognized to constitute, In its resolutions 1991/12 and 1992/14 the Sub-Commission recognized that "practices of forced eviction constitute a gross violation of human rights, in particular the right to adequate housing". the characteristically dismal housing conditions in resettlement sites, model villages or refugee camps could not be regarded as consistent with the norm of adequate housing affirmed in the Covenant. Moreover, article 11 includes a subsequent entitlement to the "continuous improvement of living conditions". In the process of transferring people, their living conditions do not improve, but generally decline. General Comment No. 4 on the right to adequate housing, adopted by the Committee on Economic, Social and Cultural Rights in 1991, interprets that this right:

239. In paragraph 18 of the General Comment, the Committee considered that instances of forced evictions were prima facie incompatible with the requirements of the Covenant and could only be justified in the most exceptional circumstances and in accordance with the relevant principles of international law. Committee on Economic, Social and Cultural Rights, General Comment No. 4 (1991), 12 December 1991: "The Right to Adequate Housing", on article 11 of the Covenant.

240. Although generally underemphasized, the cultural rights enumerated in the Covenant are of relevance here. The notion of cultural rights has been interpreted to refer to rights of members of communities to preserve their distinct culture. Jack Donelly, "Human rights, individual rights and collective rights", in Jan Berting and others, eds., Human Rights in a Pluralist World: Individuals and Collectives (Westport, Meckler, 1990), pp. 39–74. Cultural rights may protect an individual and his way of life against threats to this aspect of personal dignity. Population transfer carried out with the intent or effect of homogenizing distinct groups may well constitute such a threat. The same applies to transfers of people instrumental in the enforced assimilation of ethnic groups. Denial of cultural identity, although no such right is explicitly recognized, constitutes one of the main sources of ethnic conflict today.

241. Article 15 of the Covenant recognizes, inter alia, the right of everyone to take part in cultural life. The right to self-determination, elaborated in article 1, includes the right of peoples to freely pursue their cultural development.

242. Of the general provisions, article 4 relates to restricting the rights contained in the Covenant and provides that the State may subject such rights only to such limitations "as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society". See Limburg Principles 46–57. "Limitations of the rights recognized in the Covenant must be for and in the interest of society as a whole" (principle 52) and "provisions permitting limitations should not be applied in a manner that renders the right nugatory" (principle 42).

243. Article 5 prohibits abuse of the rights enshrined in the Covenant and prevents extensive application of the limitation clauses contained therein.

244. In his analytical report on internally displaced persons, the Secretary-General noted that the standards set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights were broad and general, intended to cover freedom of movement and residence in general, rather than displacement as such. However, "in the light of accumulated experience", he noted,


9. Conventions of the International Labour Organisation

245. Born of a post-First World War recognition that international peace and world order could only be assured through the establishment of social justice, the International Labour Organisation (then the Labour Commission) set out to improve the working conditions of labouring people throughout the world by building an international labour code.

(a) Conventions on forced labour

246. In developing this code, ILO adopted Convention No. 29 concerning Forced or Compulsory Labour, in 1930, Adopted 10 June 1930, entered into force 1 May 1932. with the purpose of suppressing the use of forced or compulsory labour in all its forms within the shortest possible period (art. 1). Convention No. 29, the most widely ratified of the ILO instruments, As of 31 December 1992, ILO Convention No. 29 had been ratified by 129 States. ILO, "Lists of Ratifications by Convention and by country, International Labour Conference, 79th Session" (Geneva, International Labour Office, 1992), pp. 14–16. permitted such practices within the transition period only in exceptional cases, subject to explicit conditions. Article 8 (2) stipulates that every decision to have recourse to forced or compulsory labour rests with the highest civil authority in the territory concerned, but which may delegate relevant authority to the highest local authority, except where such decision involves "the removal of workers from their place of habitual residence".

247. During the transition toward abolishing forced and compulsory labour exacted as a tax, article 10 (d) establishes the condition that the authority concerned must satisfy itself, inter alia, "that the work or service will not entail the removal of the workers from their place of habitual residence". Providing further detail concerning the harmful conditions obtaining in the transfer of workers for forced or compulsory labour, article 16 (1) stipulates that, "except in cases of special necessity", such workers "shall not be transferred to districts where the food and climate differ so considerably from those to which they have been accustomed as to endanger their health". Under conditions of transfer, authorities are required to alleviate the detrimental effects. Paragraph 2 of article 16 states that:

Paragraph 3 adds that, when such transfer cannot be avoided, "measures of gradual habituation to the new conditions of diet and of climate shall be adopted on competent medical advice".

248. The subject of Convention No. 29 is limited; its provisions do not apply in cases involving compulsory military service, the consequences of conviction in a court of law, normal civic obligations or any work or service exacted in cases of emergency, including natural disasters and war (art. 2 (2)). It also excludes "work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country" (art. 2 (2) (b)). Conversely, therefore, it would not exclude a range of forced or compulsory activities in non-self-governing territories.

249. This ILO Convention, therefore, does not categorically prohibit transfer of individuals or groups. However, it does limit the practice in peace-time and introduced a new minimum standard for its time. Further, the Convention's language conveys its transitory nature with the implication that Convention No. 29 constitutes an interim standard to be superseded by more progressive instruments of law.

(b) Conventions concerning indigenous and tribal populations

250. In 1957, ILO adopted Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-tribal Populations in Independent Countries. This Convention set out, as implied in its title, to standardize State responses to the presence of these vulnerable peoples on the basis not of recognizing their special situation, but of eventually eliminating their distinctive nature through assimilationist policies. Although this eventually came to be seen as ultimately destructive to indigenous and tribal peoples in many important ways, this Convention's provisions opened the way to recognizing the rights of these peoples to their lands and establishing the rule of compensation. It provides:

251. In addition, Convention No. 107 sets out to establish legal legitimacy for population transfer in three categories: national security, national economic development and in the interest of the health of the subject population. The legality is grounded in the condition that the transferred population's situation actually be improved after resettlement. This elusive objective may be the ultimate test of the acceptability of transfers carried out for the three reasons outlined in this Convention.

252. ILO rejected policies of homogenization when it concluded in 1986 that "the integrationist approach is inadequate and no longer reflects current thinking". ILO, "Meeting of Experts on the Revision of the Indigenous and Tribal Population Convention, 1957 (No. 107)", APPL/MER/107/1986/D.7. Then ILO favoured policies that would allow "indigenous and tribal peoples [to] enjoy as much control as possible over their own economic, social and cultural development". Ibid.

253. ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries was adopted in 1989 to supersede ILO Convention No. 107. Although Convention No. 169 may at first glance seem to contain specific provisions aimed at curtailing the forcible removal of indigenous peoples from their lands, a closer analysis demonstrates the existence of major loopholes in the legal protection against such continuing practices.

254. The first two paragraphs of article 16 read:

255. These paragraphs, although implying the underlying principle that indigenous peoples should not be removed from their lands, presume — and may be invoked to justify — the continuation of such practices nevertheless. If the authorities deem relocation "necessary as an exceptional measure", they may conceivably proceed even without the consent of the peoples concerned, "following appropriate procedures established by national law". It is entirely at the State's discretion to decide whether the removal is necessary, to establish procedures governing the relocation process and to decide whether it is appropriate to include public inquiries. Many indigenous peoples have rejected article 16 for "allowing for the continued dispossession of indigenous peoples from their land to make way for State-sponsored and State-approved development". Sharon Venne, "The new language of assimilation: a brief analysis of ILO Convention 169", in Without Prejudice, vol. II, No. 2 (1989), p. 63. The following paragraphs of this article state:

256. As a large proportion of indigenous lands are expropriated for "development"-related reasons or exploitation, return to traditional lands "as soon as grounds for relocation cease to exist" may effectively mean return to places which have been ecologically exhausted, destroyed or contaminated. That is, in most cases, not a viable or humane option.

257. The only two other options open are monetary compensation or alternative lands, the notion of which denies the fundamental relationship indigenous peoples have with their traditional lands. From the indigenous point of view, "alternative lands of equal quality" constitutes a contradictio in terminis, as the main qualitative factor lies in the spiritual, cultural and traditional value a particular place has for that community, which cannot be replaced. In the words of an indigenous lawyer,

258. Corroborating this view, an elder facing transfer explains that relocation is a word that does not exist in the Navajo language; to be relocated is to disappear, and never to be seen again. Caroline Whitesinger, quoted in Anita Parlow, "Cry Sacred Ground: Big Mountain, U.S.A.", Without Prejudice vol. II, No. 1 (1988), p. 15.

259. Monetary compensation for relocating indigenous peoples raises a number of very difficult questions. Past experience has demonstrated that monetary compensation is actually an effective contribution to the demise of entire indigenous peoples and has resulted in the impoverishment and marginalization of most tribal and indigenous peoples thus relocated. On the inadequacy of monetary compensation, as such, see World Bank, "Social issues associated with involuntary settlement in bank-financed projects", Operational Manual Statement 2.33 (February 1980), para. 19.

260. Other provisions relevant in the context of the present study may include: article 7 granting peoples the right to decide their own priorities for the process of development; article 13 stating that:

article 14 recognizing a people's rights to ownership and possession of lands it traditionally occupies; and article 15 safeguarding the right of the people concerned to the natural resources of its lands.

261. A yawning gap exists in the international legal protection afforded to indigenous and tribal peoples against relocation, forced removal, or settler encroachment on their lands. So far the international community has failed to recognize or protect property rights, especially of indigenous peoples, allowing for the concept of res nullius to be applied to their lands. This has resulted in the implantation of new inhabitants and the subsequent displacement of the indigenous peoples from their lands.


10. Convention on the Reduction of Statelessness Adopted on 30 August 1961 pursuant to General Assembly resolution 896 (IX) of 4 December 1954; entered into force on 13 December 1975.

262. Issues of nationality and statelessness may be raised in the context of population transfer. People or entire groups may be deported following deprivation of citizenship. The expulsion of "undesirable aliens" may render such persons stateless. Questions of statelessness may arise once a former sovereign has resumed power with regard to settlers and their descendants who unlawfully moved into the territory while occupied.

263. Even though it is accepted that States enjoy discretion on matters of nationality, international law provides for some individual protection in this field. Where the transfer of territory is concerned, the Convention on the Reduction of Statelessness provides in article 8 that "A Contracting Party shall not deprive a person of his nationality if such deprivation would render him stateless".

264. Of special pertinence is article 9, which provides: "A Contracting Party may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds".

265. Article 9 contains no exception clauses unlike article 8, in accordance with which deprivation of nationality, even if this would leave an individual stateless, is possible under special circumstances, including fair legal procedures. Mass deprivation of nationality, for instance, to serve large-scale forcible expulsion or deportation of entire ethnic or racial groups, would be permitted under no circumstance. Article 1 holds that nationality should be granted at birth or upon application to a person born in a State's territory who would otherwise be stateless.

266. Similarly, the Convention relating to the Status of Stateless Persons Adopted 28 September 1954 by a Conference of Plenipotentiaries convened by ECOSOC in resolution 526 A (XVII) of 26 April 1954; entered into force on 6 June 1960. provides in article 31 that a State "shall not expel a stateless person lawfully in their territory save on grounds of national security or public order", and then only in pursuance of a decision reached in accordance with due process of law. Thus the possibility of expelling individuals after due process and determining individual guilt does not imply the right to carry out the mass expulsion of groups. See also Alfred Verdoss and Bruno Simma, eds., Universelles Völkerrecht: Theorie und Praxis (Berlin: Duncker & Humboldt, 1977), p. 585.

267. More complex questions are bound to come up in the case of former occupied countries after regaining independence. Owing to newly enacted citizenship laws of the revived State, civilians who illegally moved there during occupation may be excluded from being granted automatic nationality, rendering them aliens, illegal immigrants or, in the worst case, stateless. As States carry responsibility for international wrongdoings, solutions will have to be found on the basis of mutual agreement and responsibility, based on the principle of avoiding the creation of statelessness as far as possible.

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