International Standards for Internally Displaced Persons
by Roberta Cohen, Co-director of the Brookings Institution Project on Internal Displacement, USA November 1998

For the first time, international standards have been developed specifically tailored to the needs of the internally displaced (IDPs). Since 1951, standards have existed for refugees – persons forced to flee their countries in search of international protection abroad. Now those forcibly displaced within their own countries have a document to turn to when they are denied life-saving protection and assistance. Entitled The Guiding Principles on Internal Displacement, they set forth the rights of the internally displaced and the obligations of governments and insurgent groups toward these populations.

The Guiding Principles – thirty in number – were presented to the United Nations Commission on Human Rights in April 1998 by Francis Deng, Representative of the UN Secretary-General on Internally Displaced Persons.

The 53-state Commission, in a unanimously adopted resolution, took note of the principles and of the stated intention of the Representative to use them in his work. A month earlier, the Inter-Agency Standing Committee, composed of the heads of the major international humanitarian and development organisations had welcomed the principles and encouraged its members to share them with their executive boards and staff and to apply them in the field. As a result, UNHCR, UNICEF, WFP and other international organisations and NGOs have begun to disseminate the principles and familiarise their staffs with their provisions. In the Americas, the Inter-American Commission on Human Rights of the Organization of American States directly applied the principles while on a mission to Colombia.

Although not a binding instrument like a treaty, the principles are based on human rights and humanitarian law, and refugee law by analogy, which do bind governments and insurgent groups. Developed at the request of the UN Commission on Human Rights and General Assembly by the Representative and a team of international lawyers, the principles restate existing law and address the grey areas and gaps found in the law. [1]

Among the gaps identified by the legal team were “normative gaps,” where international law is silent. For instance, there is no right to restitution of property lost as a consequence of displacement during armed conflict or to compensation for its loss. The team also found “applicability gaps,” where a legal norm exists but does not apply in all circumstances. Humanitarian law, for example, does not apply to situations of tensions and disturbances short of armed conflict whereas human rights law does not generally apply to non-state actors. IDPs, thus, may have minimum legal protection if violations are committed by non-state actors in situations of internal strife. In addition, “consensus gaps” were identified.

Here, a general norm exists but there is no consensus on how to give effect to that norm in situations of internal displacement. For example, while there is a general norm that prohibits cruel and inhuman treatment, it does not explicitly say that the forcible return of IDPs to places of danger should be prohibited. Similarly, while a general norm provides all persons with recognition before the law, it does not specify that IDPs shall be issued the documents they need to enjoy their legal rights.

The Guiding Principles tailor the law to the needs of the internally displaced and make explicit what is implicit in the law. They do so in all phases of displacement – before displacement takes place, during displacement and after return and reintegration. At the same time, the principles do not create a new legal status for the internally displaced. IDPs are in their own country and enjoy the same rights and freedoms as other persons in their country. By virtue of their displacement, however, they have special needs which the principles seek to address.

Particularly innovative are the principles against arbitrary displacement, which formulate for all persons a right not to be arbitrarily displaced and set forth the grounds and conditions by which displacement is impermissible. Displacement on ethnic, religious or racial grounds is prohibited in all circumstances whereas displacement by large-scale development projects is deemed arbitrary when there are no compelling and overriding public interests to justify the project. Indigenous peoples and other groups with attachment to the land are provided special protection.

Why are guiding principles not a binding legal instrument? For one, because there was deemed to be little international support for a legal instrument. Also, it was argued that numerous instruments already existed with relevance to the internally displaced and that what was needed was better implementation of these instruments. At the same time, there was agreement that the norms applicable to the internally displaced should be consolidated into one document. A compact, usable document was recommended that could be applied right away to meet the urgent needs of IDPs.

The Guiding Principles apply both to governments and insurgent groups and should prove an important advocacy tool for international organisations and NGOs. They can help governments develop laws to protect IDPs and can reinforce the efforts of displaced communities advocating for their rights. However, since they contain no monitoring machinery, it will be up to governments, international organisations, NGOs and displaced communities to see that they are widely disseminated and implemented.

[1] See Compilation and Analysis of Legal Norms, Report of the Representative of the Secretary-General on Internally Displaced Persons to the Commission on Human Rights, E/CN.4/1996/52/Add.2, United Nations, December 1995.