The Guiding Principles on Internal Displacement: A Soft Law Success Story

The development of the Guiding Principles was crucial to putting the IDP issue on the map, and to navigating states’ concerns that addressing the rights and wellbeing of IDPs was a pretext for external meddling in internal affairs. Informed by the concept of ‘sovereignty as responsibility’ articulated by Francis Deng, the first RSG on IDPs, the Guiding Principles were developed at the request of the UN Commission on Human Rights, and were based largely on commitments that states had already made under binding international human rights and humanitarian law.^{[1] [2] [3]} Rather than creating new legal commitments for states—an undertaking beyond the purview of an independent group of legal experts—the architects of the Principles engaged in ‘norm-filling’ by drawing out the implications of states’ prior legal commitments for the IDP issue, endeavouring to clarify the rights of IDPs and the obligations of different actors, particularly states, at all stages of displace- ment.1⁷ This approach meant that it was unnecessary to present the Principles for formal state approval. Instead, RSG Deng simply delivered the Guiding Principles to the UN Commission on Human Rights in 1998, which ‘took note’ of the tool. Following this quiet introduction into the international arena, the Guiding Principles’ proponents launched a steady, strategic campaign to raise awareness of and support for the Principles at the local, national, and international levels.

The success of this approach is in large part attributable to the eminent appropriateness of soft law for addressing a thorny issue such as internal displacement that is primed to rankle ‘sovereignty-sensitive’ states, and that did not, at least initially, seem possible to tackle through the development of new hard law instruments.^ Success was also attributable to the strong focus of the Principles’ proponents on translating and disseminating the tool, and gradually shoring up support through recognition of the standard in scores of resolutions passed by UN bodies and regional organizations. This culminated in the recognition by 193 heads of state at the 2005 UN World Summit of the Guiding Principles as an ‘important international framework for the protection of IDPs’P⁹ The Principles were integrated into training programmes and, perhaps most significantly, there was a strong focus amongst advocates on promoting their incorporation into domestic laws and policies on IDPs. The Kampala Convention shares this strong focus on the incorporation of IDP protection into domestic legal standards, explicitly requiring states parties to develop national laws on IDPs as the means of implementing the agreement.2⁰

As Orchard observes, a ‘central property of soft law as a norm-generating mechanism is its ability to contribute to the internalization of new norms within states by becoming entrenched in domestic legislation’^¹ Ideally, internalization results in norms having a ‘taken-for-granted’ quality that makes ‘conformance with the norm almost automatic.22 Internalization of the Guiding Principles has been supported through national and international advocacy efforts, the development of tools for law and policy-makers, and the deployment of international advisers who spearheaded—sometimes with only modest domestic involvement—drafting processes^³ As a result of such efforts, between 1998 and 2014, at least twenty-six countries adopted national laws or policies on IDPsTh This strong focus on domestic law and policy-making is in keeping with the positioning of internal displacement as first and foremost a matter of state responsibility in human rights discourse, and reflects the prominent role of lawyers with professional dispositions to focus on law and policy as a means to address internal displacement. Indeed, the development of a domestic legal framework for responding to IDPs is recognized as a key benchmark for assessing the extent to which states are shouldering their responsibilities towards their internally displaced populations.25 However, as the following sections suggest, the efficacy of this approach in terms of concretely supporting the resolution of internal displacement has been limited by a range of factors, including the quality of the domestic laws and policies themselves; contested interpretations ^{[4] [5] [6] [7] [8] [9]}

of durable solutions concepts; and, more generally, the deeply political and economic nature of the pursuit of durable solutions.

• [1] On ‘sovereignty as responsibility’ see e.g.: R. Cohen and F. M. Deng, Masses in Flight: TheGlobal Crisis of Internal Displacement (Washington, DC: Brookings Institution Press, 1998); F. Deng,Sovereignty, Responsibility and Accountability (Washington, DC: Brookings Institution Press, 1995).
• [2] Some scholars have argued that the Guiding Principles did significantly more than simply restateexisting law, but rather had a more explicitly ‘norm-creating’ function. See e.g.: Orchard (2010).
• [3] As Gammeltoft-Hansen, Lagoutte, and Cerone note in the introduction of this volume, in ‘someareas today, soft law constitutes a primary reference point, and yet there seem to be no immediateprospects for codification or crystallization of soft law into hard law’. This has certainly been the casein regards to the Guiding Principles. While welcoming the emergence of binding regional agreementssuch as the Kampala Convention, some leading IDP advocates continue to maintain that attemptingto negotiate a UN treaty on internal displacement would not be advisable. See e.g.: W Kalin, ‘TheFuture of the Guiding Principles on Internal Displacement’, Forced Migration Review, Special Issue(2008a): 38-9. 19 UN General Assembly, ‘World Summit Outcome: Resolution/Adopted by the General Assembly’, 24 Oct. 2005, A/RES/60/1, para. 132.
• [4] The comparatively rapid negotiation and entry into force of the Kampala Conventionis a testament to the efficacy of the soft law-based approach adopted by the ‘norm entrepreneurs’behind the Guiding Principles, but is largely outside the scope of this chapter. For further details,see e.g.: Abebe (2010) and M. Asplet and M. Bradley, ‘Strengthened Protection for InternallyDisplaced Persons in Africa: The Kampala Convention Comes into Force’, American Society ofInternational Law (ASIL) Insights vol. 16 (2012),
• [5] Orchard (2010): 286.
• [6] T. Risse and K. Sikkink, ‘The Socialization of International Human Rights Norms into DomesticPractices: Introduction’, in The Power of Human Rights, ed. T. Risse, S. C. Roppe, and K. Sikkink(Cambridge: Cambridge University Press, 1999): 15; Orchard (2010): 286.
• [7] These tools include: Brookings-Bern Project on Internal Displacement, ‘Protecting InternallyDisplaced Persons: A Manual for Law and Policymakers’ (Washington, DC: Brookings-Bern Projecton Internal Displacement, 2008) and Brookings-LSE Project on Internal Displacement, InternalDisplacement Monitoring Centre and Norwegian Refugee Council, ‘National Instruments on InternalDisplacement: A Guide to their Development’ (Geneva: IDMC, 2013).
• [8] 24 For a compendium of these standards, see the IDP Laws and Policies Index, . This index includes more than fifty documents from over twenty-six countries. Notably, in addition to national standards, several laws andpolicies have been adopted at the sub-national level, and courts, particularly in Colombia, have developed a substantial body of jurisprudence on the rights of IDPs.
• [9] Brookings-Bern Project on Internal Displacement, ‘Addressing Internal Displacement:A Framework for National Responsibility’ (Washington, DC: Brookings Institution, 2005).