From wrongs to rights: as "internally displaced" people, what protection under international law is available for the victims of Katrina?

I HAVE A LOVE-HATE RELATIONSHIP WITH LOUISIANA. I have enjoyed the legendary hospitality I received when I lectured at the predominantly white Louisiana State University and the predominantly Black Southern University law schools, both in Baton Rouge. I have loved eating sugary beignets and drinking cafe au lait at the world famous Cafe du Monde restaurant in the New Orleans French Quarter. I have danced at the Mayor's Ball during Mardi Gras when my law school friend Marc Morial was the Big Easy's mayor. I have even won money gambling at Harrah's on the waterfront. New Orleans has been my good luck charm.

[ILLUSTRATION OMITTED]

And then there is the dark side. I have driven through rural areas that resembled the antebellum South--big beautiful plantations and little broken-down shacks. I have spoken with Chocolate City teenagers who could barely write their names because of a failed school system abandoned by anyone with money. I have sat in a juvenile court and watched a parade of dark-skinned Black boys head off to jail--not a white or high-yellow-skinned Black among them. I have visited the Desire projects, which were far from desirable.

[ILLUSTRATION OMITTED]

And even though I felt sorry for the people of New Orleans after Hurricane Katrina, there was one place that I hoped was flooded by the hurricane. It was my great-great-grandfather's house. My ancestor was Confederate general Pierre Gustave Toutant Beauregard, who fired on Fort Sumter, starting the Civil War. He lived in New Orleans at 1113 Chartres Street after the war. He was a glorious war hero to the southerners even though their side had lost.

Because of Beauregard's heroic status, this home was restored to its antebellum glory in the 20th century, and it is now a tourist attraction known as the Beauregard-Keyes House. Our Pruitt family lore indicates that the general's picture graced a place of prominence in my maternal grandmother Katherine's house, even though she never knew him personally.

When I made my first trip to New Orleans, my mom's family encouraged me to visit this house. "You've got to see it!" they said. I will never forget the guide dressed in a splendid antebellum gown, who showed the small group of tourists the very dignified portraits of the general and his lovely family. I will also never forget the guide's face when I told the group that those women on the wall were not the general's only family. He had Black descendants as well, and I was one of them. She blanched and said that she knew that the general was like the other southern gentlemen of his time, but she was not allowed to talk about that. Then she hurried us on to look at the cookbooks.

I was dismissed. My family's claim was dismissed. I mused that miscegenation between white war heroes and Black slaves or servants was not a proper topic for a tour as we walked into the bedroom containing an actual bed of the general's. Did my great-great-grandmother Sally Hardin sleep in that bed? Or did she sleep in the former slave quarters in the back? The guide said that 20 slaves/servants had lived in the slave quarters at one point to take care of the needs of the few whites living in the main house. Was my great-grandmother Susan Beauregard conceived in that very bed, or in the slave quarters that later became a stable, and then a garage, and eventually a study for Mrs. Keyes?

I had always hated the fact that through my veins coursed the blood of a general who fought to preserve a way of life that had enslaved my ancestors. So in September 2005, I hoped that his house was buried deep beneath the floodwaters--tourist attraction no more. But the house was located in the French Quarter--the high ground. Additionally, the house itself was raised--a wonderful example of the home style where twin curving staircases in the front permitted guests to walk up to the front door with its wide porch. This house was spared, while the modern-day descendants of so many slaves who lived on the low ground lost everything.

Although I hate that the general and I are linked through time, there is one part of his legacy that I have accepted. His family originally came from France, and my family, the Black descendants, have always learned French. My study of French turned into a career as an international lawyer and, now, a law professor. I also direct my law school's summer program in Arcachon, France. So when I saw dark-skinned Black people wading through floodwaters after Hurricane Katrina, I looked at the tragedy with the eyes of an international lawyer. I had to double-check to see if I was watching the CNN International channel instead of the CNN National News. The on-air presence of CNN International correspondents Jeff Koinange and Christiane Amanpour reinforced this notion. Were we in the Congo? No, Koinange was broadcasting live from Bourbon Street. The world could see what I had long known. Behind the New Orleans that I loved and hated, there was the third world hidden in plain sight within the first world.

Katrina was called a "black storm" in the European media. Some in the African media expressed shock, while others thought the situation was to be expected, given how poorly Black people have been treated in the United States for more than 200 years. The hurricane stripped away the veneer of equality and color blindness and showed the whole world that the superpower, or "hyperpower" as the French call us, still had a race problem. Dr. Arjun Sengupta, United Nations Human Rights Commission special reporter on extreme poverty, visited New Orleans and Baton Rouge in late October and called the conditions "shocking and gross violations of human rights."

The army troops called in to patrol New Orleans symbolized the failure of domestic law and order. "Anarchy in the USA," screamed a headline in a British paper. "Apocalypse Now," asserted a German source. The irony was that 4,000 members of the Louisiana National Guard, which normally would have been the first national responders, were bogged down in Iraq, rather than at home when disaster struck. The French newspaper Le Monde queried, "Is it well-advised to spend hundreds of millions--make it billions--of dollars to make war in Iraq when America is incapable of protecting its own citizens?" The same paper asked, "Why did the Bush administration fail in its first great security test since the September 11, 2001, attacks?" The Spanish paper El Vanguardia stated, "Katrina has highlighted the worst and most unjust [aspects] of the U.S. ... a superpower in decline."

The military man in charge, Lieutenant General Russel Honore, a native of New Orleans, had to remind his troops that they were not in Baghdad. They should not point their weapons at civilians. These people were not aliens to Honore--they were home folks. Ironically, the general's own son was in Iraq, too.

One of my friends thought that General Honore was white, until I explained that he was a classic high-yellow Black Creole, like my own ancestors. These descendants of mixtures between Blacks and whites dating back to slave days were once called mulattoes, quadroons or octoroons, depending on their degree of whiteness. The Creoles still disproportionately account for the Black elites of Louisiana. All the Black mayors of New Orleans--current mayor Ray Nagin and former mayors Marc Morial, Ernest Morial and Sidney Barthelemy--have been part of this sector of Blacks. You did not see them wading through the floodwaters or stranded at the Superdome. They drove out. The race problem was not just Black and white, but also within the historically color-conscious Black community as well.

Two international treaties that the United States is obligated to enforce have direct relevance to the Katrina situation: the International Convention on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of Race Discrimination (ICERD). These treaties are binding on the United States because the president signed them, and then the Senate ratified them. They contain a variety of obligations such as rights to nondiscrimination; equal protection under the law; life; human dignity; recognition as a person; security of the person; electoral rights; right to participate in governance; and freedom of movement. These obligations mandate the United States to offer human rights protections to those persons displaced in the aftermath of Hurricane Katrina. Undoubtedly, international law scholars will write detailed analyses concerning possible U.S. violations of these treaties.

There are other international treaties that could be applicable to a Katrina-type tragedy one day, but they are not binding on the United States now. While the president signed them, the Senate has not ratified them yet. These include the International Convention on Economic, Social and Cultural Rights (ICESCR), the Convention on Rights of the Child (CRC) and the International Convention on the Elimination of Discrimination Against Women (CEDAW). Even though these agreements are not yet binding on the United States, as a signatory we are still required not to do anything that would defeat the object and purpose of these treaties.

This is unfortunately not equivalent to having an active obligation to implement them. In addition to the above-mentioned documents, there are other agreements that might apply depending on how we define the people affected by Hurricane Katrina. Some commentators called the victims "refugees." After all, they really did resemble the poor, homeless and hungry unfortunates in such places as the Sudan. Nonetheless, because the evacuees did not flee outside their national boundaries, they are technically called "internally displaced persons" under international law. The proper designation is important, since it has implications for what laws might apply. For example, refugees are protected by the 1951 Convention Relating to the Status of Refugees, whereas internally displaced persons are not.

Under the aegis of Sudanese diplomat Francis Deng, the United Nations developed the Guiding Principles in 1998, since the existing international treaties mentioned above all contained gaps in coverage, especially for internally displaced persons. The effort was undertaken in part because of the more than 50 million people worldwide who have been internally uprooted by conflicts and natural disasters.

The Guiding Principles do not rise to the level of a binding treaty that nations are obligated to follow. It should be noted, however, that many of the rights mentioned in the Principles are binding on the United States because the same concepts appear in the binding ICCPR and ICERD treaties. Moreover, all countries, including the United States, are aware of the Principles and can look to them for direction when national conditions lead to internal upheavals in population. Furthermore, in 2005 the United Nations General Assembly stated that it recognized the Principles as an "important international framework for the protection of internally displaced people." Finally, according to Francis Deng, the Principles "reflect and are consistent with international human rights and humanitarian law and analogous refugee law."

Under Principle I, internally displaced people are entitled to the full rights that all other persons in the country enjoy. The Principle does not limit itself to citizens, but applies to all persons. This is important because there were thousands of permanent residents, lawful temporary residents and undocumented people in the areas affected by Hurricane Katrina. Undocumented immigrants were eligible for short-term disaster relief. Yet, the Department of Homeland Security made it clear that such people would have no immunity from deportation. Many were detained, and deportation proceedings were started against them. Also, while undocumented workers are not entitled to many benefits under U.S. law, they are entitled to send their children to school. Nonetheless, doing so may call their status to the attention of the authorities in the new communities where they settled.

The Guiding Principles are concerned with all aspects of dislocation: protection against displacement, protection while displaced and protection after displacement. With respect to protection against displacement, Principle 7 makes clear that the authorities are supposed to provide proper accommodations with adequate safety, nutrition, health and hygiene. The failure of the government to provide transportation to relocate people before the hurricane struck was one failure related to this Principle. Even days later when transportation was brought in, the people on the buses did not have proper food or water, nor were they told where they were going. The horrors that took place in the New Orleans Convention Center and the Super-dome also illustrate how the government failed to live up to this Principle. Displaced people lacked food, water, bedding and proper sanitation. Finally, when Black people tried to obtain basic needs such as food and water that the government failed to provide to them, they were labeled as looters.

The second area that the Principles discuss concerns protection during displacement. Principle 10 protects the right to life. Under international law, this term does not concern abortion. Instead, it covers protection against murder and other related types of violence. Nonetheless, there may have been incidents in the Convention Center and the Superdome where the authorities were not in control of law and order, and people were attacked. Additionally, authorities dropping people off on highways for days without follow-up would constitute a violation of this principle of the right to life and security.

Under Principle 18, displaced persons are also entitled to an adequate standard of living. The Principle quantifies this vague term by stating that, at a minimum, the authorities should provide access to food, shelter, water, housing, clothing and healthcare. Of course, one of the ironies is that many of the displaced people did not have adequate access to these items even while they were living in their homes. Unlike most other developed nations, the United States does not recognize many of these economic, social and cultural rights in its constitution.

The final area that the Principles cover is protection after displacement: return, resettlement and reintegration. Principle 28 requires the government to help establish the conditions necessary to allow displaced persons to either return to their areas of residence or be resettled voluntarily. The displaced themselves are supposed to participate in the planning and management of their return. Many people now forced to live outside the Big Easy are worried that they and their needs are being excluded from the redevelopment plans for the area. Many are still concerned with survival--solidifying a job, dealing with creditors, obtaining copies of documents, dealing with school problems and obtaining more permanent housing for their families. Most are hundreds of miles away from New Orleans. They do not have the time or the ability to stay on top of what redevelopment plans are being considered by the power elite back home. The Guiding Principles provide a comprehensive framework for all levels of government in the United States still grappling with providing services in the aftermath of Hurricane Katrina. While the Principles are not binding on the United States, they certainly could aid our government in measuring our efforts under internationally agreed upon standards.

[ILLUSTRATION OMITTED]

As a society, we must vigilantly monitor the long-term human-rights status and treatment of the Katrina victims wherever they may be located. As General Beauregard's great-great-granddaughter, I want to be part of the process of ensuring that the New Orleans Black community as it was once constituted is not forgotten. National, state and local governments must be made to live up to their various domestic and international legal obligations over the years to come.

Adrien K. Wing is the Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa's College of Law, where she has taught since 1987.

From the book After the Storm: Black Intellectuals Explore the Meaning of Hurricane Katrina, published by The New Press on August 29, 2006.