Among the more effective tools for addressing situations of internal displacement are the Guiding Principles on Internal Displacement. The principles constitute a comprehensive minimum standard for the treatment of the internally displaced. They set forth the rights of the displaced and the obligations of governments, insurgent groups and other actors toward these populations. The principles are not legally binding but are derived from international human rights treaties and humanitarian law. Since their presentation to the UN Commission on Human Rights in 1998 by Deng, a growing number of governments, regional bodies, UN agencies and NGOs have begun to use them. Resolutions of the Commission and General Assembly regularly refer to them as 'an important tool' and 'standard' for dealing with situations of internal displacement.[16] In the World Summit document of 2005, heads of government recognized the Guiding Principles as 'an important international framework for the protection of internally displaced persons.'[17] United Nations Secretary-General Kofi Annan has called upon states to promote their adoption through national legislation.[18]

Over the past five years, governments have begun to make the Guiding Principles a basis for their policies and laws on internal displacement. Angola based its 2001 law relating to the resettlement of displaced persons on the principles, and Peru used them when developing its 2004 law providing benefits to the internally displaced. Colombia's Constitutional Court based three decisions in support of aid to the displaced on the principles, and Georgia amended its laws and improved its practices on the voting rights of internally displaced persons to conform to them. Burundi, the Philippines, Sri Lanka and Uganda have also based national policies on the principles, and Liberia's president has announced his government's adoption of them.[19]

Regional inter-governmental bodies use the Guiding Principles as a monitoring tool when measuring conditions on the ground and as a framework for their programmes and activities. UN agencies and NGOs provide training in the principles, while local groups in different countries have produced handbooks and illustrated materials to adapt them to conditions on the ground. In Sri Lanka, the Consortium of Humanitarian Agencies published a Toolkit based on the principles in three national languages, while lawyers in the South Caucasus and the Russian Federation have evaluated the laws of their countries in terms of the principles.[20] To date, the Guiding Principles have been translated into more than 40 languages.

The Guiding Principles have empowered internally displaced persons and their representatives. In Sierra Leone, displaced persons used the principles to call on UN agencies to provide education in camps. In Sri Lanka, representatives of the internally displaced used the principles to make their concerns known to camp commanders. Even armed rebel groups have acknowledged the value of the Guiding Principles: the southern Sudan People's Liberation Movement and Army (SPLM/A), in collaboration with the UN's Office for the Coordination of Humanitarian Affairs (OCHA) and the UN Children's Fund (UNICEF), has drafted a policy on internal displacement based on them.

But are the Guiding Principles actually improving conditions on the ground? No comprehensive study has yet been undertaken to evaluate their impact. Governments may announce laws and policies based on the principles but not necessarily implement them. As Deng observed in 2002, 'while the Guiding Principles have been well received at the rhetorical level, their implementation remains problematic, and often rudimentary.'[21] Much is needed in the way of monitoring, advocacy and the engagement of international and local actors to promote their implementation.

It is frequently asked whether compliance would be greater if there were a legally binding treaty on internal displacement. Egypt, India and Sudan have pointed out that the Guiding Principles were not negotiated by governments or formally adopted by the UN General Assembly. Those who favour a treaty argue that it would hold states accountable if they disregarded its provisions. However, others point out that the Guiding Principles do have 'legal significance' and are being applied internationally by a growing number of states.[22]

Human rights treaty-making at the international level can take decades, with no guarantee that states will ratify instruments or observe their obligations. The process could also lead to watering-down of the accepted provisions of international law on which the principles are based. Until the international community is ready to adopt a binding instrument that accords with the protection level set forth in the Guiding Principles, the majority opinion is that the best approach is to expand the application of the principles at the national level.[23] Nonetheless, at the regional level the African Union is using the principles to develop a treaty on internal displacement for the continent.

Whatever the outcome of this debate, for the time being the Guiding Principles fill a major gap in the international protection system for internally displaced persons. They provide the displaced with a document to turn to when they are denied their rights. For their part, governments and other actors have guidelines to follow in designing national policies and laws on behalf of the displaced. Indeed, some experts are building upon the Guiding Principles to spell out issues related to restitution, compensation and land use for the displaced in more detail.[24]

Sovereignty: barrier or responsibility?

Institutional arrangements: the 'collaborative approach'

Notes

16. See UN Commission on Human Rights Resolution 2003/51, 23 April 2003, and General Assembly Resolution 58/177, 22 December 2003.

17. United Nations, 2005 World Summit Outcome Resolution, para. 132.

18. K. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All, United Nations, New York, 2005, para. 210.

19. R. Cohen, 'The Guiding Principles on Internal Displacement: An innovation in International Standard Setting', Global Governance, vol. 10, no. 4, October-December 2004, pp. 459-80. For Georgia, see E. Mooney and B. Jarrah, Internally Displaced Persons' Voting Rights in the OSCE Region, Brookings Institution, 2004, pp. 32-41.

20. See R. Cohen, W. Kälin and E. Mooney, The Law of the South Caucasus and the Guiding Principles on Internal Displacement, American Society of International Law and Brookings Institution, 2004, and Memorial, Annotations to the Guiding Principles, Moscow, 2005.

21. United Nations, Commission on Human Rights, Report of the Representative of the Secretary-General on Internally Displaced Persons, F. M. Deng, UN Doc. E/CN.4/2002/95, 16 January 2002, para. 98.

22. See W. Kälin, 'How Hard is Soft Law?' in Recent Commentaries about the Nature and Application of the Guiding Principles on Internal Displacement, Brookings-CUNY Project on Internal Displacement, April 2002.

23. International Symposium on the Mandate of the Representative of the UN Secretary-General on Internally Displaced Persons: Taking Stock and Charting the Future, hosted by the governments of Austria and Norway, Brookings Institution-SAIS Project on Internal Displacement, Vienna, Austria, 12-13 December 2002, pp. 8-ll, 21.

24. United Nations Sub-Commission on the Promotion and Protection of Human Rights, Principles on Housing and Property Restitution for Refugees and Displaced People, E/CN.4/Sub.2/2005/17, 28 June 2005.