TY - JOUR
AU - M, Deng, Francis
AB - As the number of internally displaced persons (IDPs) soared in the 1990s to some 25 million – almost twice the number of refugees – international concerns began to mount about the responsibilities of governments and the United Nations (UN) towards these people. The 1951 Refugee Convention1 did not apply to IDPs because they did not cross an internationally recognized State border. Nor was there a clear statement of their rights in international law. Although IDPs had the same rights as others in their country, they had special needs by virtue of their displacement which required a distinct normative framework. These included the loss of homes, property, livelihoods, and documentation; separation from family members and communities; vulnerability to violence; and the need to return or resettle. The Guiding Principles on Internal Displacement of 1998 addressed these gaps.2 It is doubtful that the Guiding Principles would ever have come into being had they required formal ratification by States. Rather, their development took place outside a traditional intergovernmental process. The Principles were formulated under the auspices of an independent expert, the Representative of the Secretary-General on IDPs, Francis M Deng, in partnership with a research institution (the Brookings Institution, where Deng was joined by Roberta Cohen), and a team of exceptionally talented lawyers (chaired by Walter Kälin, with principal drafter Robert Goldman). In appointing Deng as his Representative in 1992, the UN Secretary-General, Boutros Boutros-Ghali, recognized the need for an outside expert (with institutional support), unhampered by the constraints and political sensitivities of the UN, who could take up the task of defining ‘IDPs’ and proposing solutions to legal and institutional gaps. At the same time, the Secretary-General’s Representative would report to intergovernmental bodies – namely the UN General Assembly and the UN Commission on Human Rights, which had requested an ‘appropriate’ framework for IDP protection.3 Nonetheless, a vocal group of States questioned the non-governmental nature of the process, in particular the drafting and finalization of a major international soft law instrument by experts. It took Swiss government-sponsored consultations, at which it was made clear that no new law had been created, to bring these States to withdraw their objections.4 The legal team explained that, after compiling and analysing existing law, it had recommended a restatement of the law, not the making of new law. Moreover, increasing numbers of governments and international organizations had already begun using the Guiding Principles to good advantage.5 Deng’s dialogues with governments and Brookings–UN seminars around the world with staff from international, regional, and non-governmental organizations had helped to mobilize support for the Principles and lay the groundwork for UN resolutions calling for their wide dissemination. Although innovative at the time, it is now apparent that the overall process became a precedent for the development of other emerging principles in areas where no new law is necessarily required, but guidance to address a specific challenge is needed.6 While it is true that in tailoring human rights law, humanitarian law, and refugee law to the needs of IDPs the legal team did engage in progressive development of the law, it scrupulously made sure that each principle had a sound legal basis.7 Thus, when the Secretary-General’s Representative and the UN High Commissioner for Refugees requested that, in light of ‘ethnic cleansing’, the Principles include a preventive phase – that is, protection from displacement – the legal team formulated a right not to be arbitrarily displaced,8 based on what it found to be implicit in existing law (Principles 5–9). Similarly, a right not to be forcibly returned to, or resettled in, conditions of danger was discerned from hard law and made an explicit principle (Principle 15(d)). That these formulations were accepted by States became evident when the Guiding Principles were incorporated into the 2009 African Union Convention on IDPs,9 making them hard law in Africa and reinforcing their status worldwide. The IDP definition also proved resilient enough to stand the test of time. Although when the Guiding Principles were first drafted some argued that IDPs should be viewed the same way as refugees – that is, as people uprooted by persecution and conflict – we, among others, insisted that those displaced by natural and human-made disasters be added. The Principles also encompassed persons displaced by development projects, but proposals to include economic migrants and migrant workers were not considered to meet the criteria for forced movement. Although some questioned at the time – and continue to question – whether IDPs should be identified as a separate group in need of protection, crisis after crisis has shown that they do indeed have special needs requiring attention in all phases of displacement. Identifying these needs was never intended to prioritize IDPs over host or other affected communities who also require attention.10 One of the most innovative ideas in the Guiding Principles was their conceptual foundation – ‘sovereignty as responsibility’ – an idea developed at Brookings and applied to IDPs.11 This now-well-known formulation affirmed that governments have the primary responsibility for the security and well-being of IDPs, but if they are unable or unwilling to fulfil these responsibilities, the international community has a right (and, at times, even an obligation) to become involved. The Guiding Principles tested legal limits by suggesting that governments have an obligation to accept offers of international aid and that arbitrary denial of that aid could constitute a violation of international law (Principles 24–27). Today, UN Security Council resolutions affirm this view,12 as does the Kampala Convention.13 ‘Sovereignty as responsibility’ has also become the main building block for the landmark concept of the ‘Responsibility to Protect’ (R2P).14 The Guiding Principles were also ahead of their time in explicitly calling on international humanitarian organizations to pay attention to the protection and human rights needs of IDPs, in addition to providing them with material assistance (Principle 27). If we have a concern with the Guiding Principles, it is that they have no monitoring or enforcement machinery. Without a continuing global effort to promote compliance with their provisions, they could fall into disuse. Yet we are encouraged by the ways in which their usage has expanded, as reflected in national laws and policies, regional instruments, court decisions, UN treaty body findings, and UN resolutions.15 Since they have already acquired legal significance, we look forward to this trend continuing and the Principles becoming fully part of customary international law – and thus an even more authoritative expression of the rights of IDPs and the national and international obligations of States. Footnotes 1 Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137. 2 UN Commission on Human Rights, ‘Guiding Principles on Internal Displacement’, UN doc E/CN.4/1998/53/Add.2 (11 February 1998) (Guiding Principles). 3 See UN Commission on Human Rights res 1996/52 (19 April 1996). 4 See Roberta Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’ (2004) 10 Global Governance 459, 472–75. 5 See UNGA res 58/177 (12 March 2004) operative para 7; Thomas G Weiss and David A Korn, Internal Displacement: Conceptualization and Its Consequences (Routledge 2006) 103–14; Roberta Cohen, ‘Lessons Learned from the Development of the Guiding Principles on Internal Displacement’ (Institute for the Study of International Migration, Georgetown University 2013). 6 See eg ‘Principles on Housing and Property Restitution for Refugees and Displaced Persons’, UN doc E/CN.4/Sub.2/2005/17 (28 June 2005); ‘Guiding Principles on Business and Human Rights’, UN doc A/HRC/17/31 (21 March 2011). 7 See Walter Kälin, Guiding Principles on Internal Displacement: Annotations (rev edn, American Society of International Law and Brookings–Bern Project on Internal Displacement 2008). 8 ibid 27–28, 30. See also Michèle Morel, Maria Stavropoulou, and Jean-François Durieux, ‘The History and Status of the Right Not to be Displaced’ (2012) 41 Forced Migration Review 5. Stavropoulou played a significant role in the development of this right. 9 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (adopted 23 October 2009, entered into force 6 December 2012) 49 ILM 86 (Kampala Convention). 10 See Erin Mooney, ‘The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern’ (2005) 24 Refugee Survey Quarterly 9; Roberta Cohen, ‘Protection of Internally Displaced Persons: National and International Responsibilities’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar Publishing 2014) 593–94. 11 See Francis M Deng, Protecting the Dispossessed (rev edn, Brookings Institution Press 2010); Francis M Deng and others, Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution Press 1996); Roberta Cohen and Francis M Deng, Masses in Flight: The Global Crisis of Internal Displacement (Brookings Institution Press 1998) 275–80; Roberta Cohen and Francis M Deng, ‘Sovereignty as Responsibility: Building Block for R2P’ in Alex J Bellamy and Tim Dunne (eds), The Oxford Handbook of the Responsibility to Protect (Oxford University Press 2016). 12 See UNSC res 2165 (14 July 2014) and UNSC res 2139 (22 February 2014). 13 Kampala Convention (n 9) arts 3(1)(j) and 5(5–7). 14 See Cohen and Deng (2016) (n 11). 15 See Walter Kälin, ‘The Guiding Principles on Internal Displacement and the Search for a Universal Framework of Protection for Internally Displaced Persons’ in Chetail and Bauloz (eds) (n 10) 621–27. © The Author(s) (2018). Published by Oxford University Press. All rights reserved. For Permissions please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Reflections from Former Mandate HoldersDeveloping the Normative Framework for IDPs
JO - International Journal of Refugee Law
DO - 10.1093/ijrl/eey025
DA - 2018-10-13
UR - https://www.deepdyve.com/lp/oxford-university-press/reflections-from-former-mandate-holdersdeveloping-the-normative-5E6sWrEV0I
SP - 310
VL - 30
IS - 2
DP - DeepDyve
ER -