Hardening soft law: implementation of the guiding principles on internal displacement.

Author:Kalin, Walter
Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law
 
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This panel was convened at 1:00 pm on Thursday, April 10, by the Brookings-Bern Project on Internal Displacement. It was chaired by Walter Kalin, Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons and Professor of Constitutional and International Public Law at the University of Bern, Switzerland. Panelists were Roberta Cohen, non-resident Senior Fellow at the Brookings Institution and former co-director of the Brookings-Bern Project on Internal Displacement; Erika Feller, Assistant High Commissioner for Protection at the Office of the UN High Commissioner for Refugees (UNHCR); and Chaloka Beyani, Senior Lecturer in Law at the London School of Economics and Political Science (LSE). *

INTRODUCTION TO THE PANEL

By Walter Kalin ([dagger])

Ten years ago, the then Representative of the Secretary General on the Human Rights of Internally Displaced Persons, Dr. Francis Deng, submitted a document entitled 'Guiding Principles on Internal Displacement' to the UN Commission on Human Rights. This document, for the first time, made clear what the rights are that specifically protect internally displaced persons. Such a document was and still is needed as, unlike for refugees, no convention specifically addressing persons displaced inside their own country exists. It was elaborated not by states but by a group of experts who tried to distill from existing international human rights and humanitarian law those guarantees that respond to the needs of the displaced that are specific to them. The second edition of the Annotations to the Guiding Principles, published and launched today by ASIL (1) show to what extent these Principles are based on binding law. Indeed, it is possible to cite for almost every principle a multitude of legal provisions which underpin the provision, and most principles effectively restate existing norms in more specific language and adapt them to the context of internal displacement.

Nevertheless, ten years ago, certain states were opposed to the possibility of being confronted with claims based on a normative text that was not negotiated and accepted in an inter-governmental process. Over time this opposition has subsided. An increasing number of states have incorporated the Guiding Principles into national laws and policies on internal displacement; they inspire standard-setting at the regional level; and the 2005 World Summit at the UN in New York recognized them as an important framework for the protection of internally displaced persons.

This panel explores how this recognition has been achieved and what the future of the Guiding Principles might be. Roberta Cohen, who is a non-resident Senior Fellow in the Foreign Policy Studies program at the Brookings Institution and co-founded and co-directed the Brookings Institution Project on Internal Displacement for over a decade, will retrace the history of the Guiding Principles. Erika Feller, the Assistant High Commissioner for Protection at UNHCR and former Director of UNHCR's Department of International Protection has generously agreed to talk about the role of the Guiding Principles in the work of her organization. Chaloka Beyani is Senior Lecturer in Law at the London School of Economics and Political Science and has not only been the key drafter of the Great Lakes Protocol on Internally Displaced Persons but is currently also involved in drafting and negotiating the planned African Union Convention on internal displacement in Africa. He will tell us about how these instruments contribute to making the Guiding Principles hard law. I will finish with some remarks on my views on the future of the Principles in my capacity as Representative of the UN Secretary General on the Human Rights of Internally Displaced Persons.

* The panel wishes to thank Dan Ryan who served as reporter for this panel.

([dagger]) Representative of the UN Secretary-General on the Human Rights of Internally Displaced Persons and Professor of Constitutional and International Public Law at the University of Bern, Switzerland

(1) Walter Kalin, Guiding Principles on Internal Displacement: Annotations, Revised Edition, Washington DC, American Society of International Law and Brookings-Bern Project on Internal Displacement (2008)

STATEMENT

By Roberta Cohen *

In looking back, as I was asked to do, I first would emphasize that the development of international standards on internally displaced persons responded to a tremendous need. The explosion of civil wars around the world in the last decade of the 20th century uprooted millions of people who remained in desperate conditions inside their own countries. Their governments, which had principal responsibility for them, were often unwilling or unable to provide for their well-being and security. International organizations found they had no clear rules for protecting and assisting the internally displaced. The 1951 Refugee Convention did not apply to them because they did not flee across borders. UNHCR, UNICEF and NGOs which were helping them in the field all began to appeal for a document they could turn to that would define internally displaced persons and their rights.

Consequently, one of the first assignments given to the newly appointed Representative of the UN Secretary-General on Internally Displaced Persons Francis Deng in 1992 was to examine the applicability of international human rights, humanitarian and refugee law to the protection of internally displaced persons. Undertaking this assignment, however, brought many problems to the fore. The first was a serious, practical matter--money. The Representative's is a voluntary position which comes with minimal staff and resources. Deng had to undertake a fund-raising drive with foundations and donor governments in order to bring legal scholars together to compile and analyze the law.

Deng also had to respond to a fear expressed in various international quarters, most notably by the International Committee of the Red Cross: that singling out one group of people could end up discriminating against others. After looking into this, he found that precedents abound in international law to provide special protections for particularly disadvantaged groups, whether refugees, minorities, the disabled, women or children. The purpose of identifying the rights of internally displaced persons was not to create a privileged status for one group but rather to ensure that, in a given situation, internally displaced persons, like others, would be protected and assisted.

Another challenge was the approach to take to compiling the law. American lawyers argued for a 'needs based' approach--that is, first to identify the needs of IDPs and then examine how the law including customary law and resolutions addressed those needs. Others, especially Europeans, argued for a 'rights based' approach--that is to look exclusively at hard law to decide what rights IDPs have. Walter Kalin who came to chair the process skillfully brought the two sides together and merged the various texts, with the result that Deng was able to present a 'Compilation and Analysis of Legal Norms' to the UN Commission on Human Rights in 1996.

Still another debate focused on what kind of international instrument on internally displaced persons should be prepared--a declaration, convention, or principles? The Compilation had found that internally displaced persons receive a good deal of coverage under international law but that they are not explicitly mentioned in the law and that there are significant areas in which the law fails to provide adequate protection. The Compilation identified seventeen areas of insufficient protection, owing to inexplicit articulation of the law, and eight areas of clear gaps in the law. After considerable deliberation, the legal team concluded that what was needed was not a new binding instrument but rather a restatement of the law to make it relevant to internally displaced persons and to clarify the gaps and gray areas. Guiding Principles were decided upon for three main reasons--first, there was no support from governments at that time for a legally binding convention on such a sensitive subject. Second, treaty-making could take decades whereas there was urgent need for a document in the 1990s to address the needs of internally displaced persons. Third, sufficient international law already existed. It would be better to bring together the different provisions of the law and tailor them to the needs of internally displaced persons.

In drafting the Principles, the legal team's decision to reflect existing law was not easily accomplished. The temptation was always there to improve on the law when gaps and gray areas were found. For example, some urged the legal team to strengthen the obligation of governments to accept international humanitarian aid, while others urged the legal team to define protection, but the lawyers by and large stuck to existing law. When the legal team did stray beyond written law, for example in elaborating a right not to be arbitrarily displaced, it made sure to demonstrate that such a right was implicit in the law. The team's rigor in sticking to the law paid off handsomely--international organizations and many governments felt confident using the Principles.

Debate over how broadly or narrowly internally displaced persons should be defined in the Principles dragged on for months. In the end, it was decided that internally displaced persons, unlike refugees, were not only those uprooted by conflict and persecution but also those uprooted by natural disasters and development projects. The latter two groups, it was argued, were involuntarily displaced and also faced human rights and protection problems. I believe this broad definition has stood the test of time thus far.

What was controversial about the Principles was actually not so much their content but the process by which they were developed. The drafting, text review...

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