Professional Documents
Culture Documents
doi:10.1093/ijrl/eey031
A RT I C L E S
A B ST R A CT
Unlike refugees and other special interest groups under international law, the protection
of internally displaced persons (IDPs) tends to be viewed as a matter of policy rather than
law. Indeed, the 1998 United Nations Guiding Principles on Internal Displacement take
the form of mere ‘soft’ law. Yet, the 20 years that have passed since their drafting call for a
reassessment of this field. Using the issue of IDP returns as an example, this article draws
on a diverse set of developments to argue that a distinct field of IDP law is now emerging.
It suggests that this has intriguing implications for apparently long-settled debates about
IDP protection, its relationship to refugee protection, and its connection to other bodies
of international law.
1. I N T RO D U CT I O N
Whither the IDP in international law?1 Unlike refugees and other interest groups that
benefit from special attention in international law, the protection of internally dis-
placed persons (IDPs) tends to be viewed principally as a policy and operational chal-
lenge rather than a legal one. Indeed, even the 1998 Guiding Principles on Internal
Displacement (Guiding Principles),2 the main global standards on IDP protection
drafted within the framework of the United Nations (UN) system, take the form
of ‘soft’ law that lacks binding effect under international law. Twenty years after the
* Professor David Cantor is founder and Director of the Refugee Law Initiative, School of
Advanced Study, University of London.
1
The title makes light-hearted reference to the foundational scholarly text in the field of refugee
law: Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford
University Press 2007). However, this article adopts a broader focus than just international law
to look also at legal developments elsewhere.
2
United Nations Commission on Human Rights (UNCHR), ‘Guiding Principles on Internal
Displacement’, UN doc E/CN.4/1998/53/Add.2 (11 February 1998) Annex.
© The Author(s) (2018). Published by Oxford University Press. All rights reserved.
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• 191
192 • ‘The IDP in International Law’?
drafting of the Guiding Principles, a perception sometimes exists that law has little to
do with IDP protection.
Such marginality is reinforced by the paucity of legal scholarship on IDPs.
Although IDPs are a relatively recent topic of international concern, the scarcity of
legal research on IDPs is still notable when compared to that on other special inter-
2. I D P L AW A S A N E M E RG I N G L E G A L F I E L D ?
Analysis of the legal dimension of IDP protection usually takes the Guiding Principles
as its point of departure. Following this format, the following review shows that,
although the Guiding Principles now represent the main IDP instrument at the glo-
bal level, they remain fundamentally ‘soft’ law in character. It then briefly charts the
appearance, over the 20 years following the promulgation of the Guiding Principles,
of new forms of ‘hard’ IDP law at the national and regional levels. This part con-
cludes by suggesting that such developments move us beyond the fragmented exist-
ing legal literature on IDPs to hint at the emergence of IDP law as a distinct field of
law and study.
3
As such, the focus here is on State obligations. Those of non-State actors are not directly
addressed. On this topic, see eg Greta Zeender, ‘Engaging Armed Non-State Actors on Internally
Displaced Persons Protection’ (2005) 24 Refugee Survey Quarterly 96.
‘The IDP in International Law’? • 193
4
This thematic mandate, now located within the Human Rights Council, has been held by Francis
Deng (1992–2004), Walter Kälin (2004–10), Chaloka Beyani (2010–16), and Cecilia Jimenez
(2016–).
5
See eg Catherine Phuong, The International Protection of Internally Displaced Persons (Cambridge
University Press 2004) and contributions to the special issue of Forced Migration Review in
2008: Ten Years of the Guiding Principles on Internal Displacement – GP10.
6
See eg Roberta Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in
International Standard Setting’ (2004) 10 Global Governance 459; Simon Bagshaw, Developing
a Normative Framework for the Protection of Internally Displaced Persons (Transnational Publishers
2005); Thomas G Weiss and David A Korn, Internal Displacement: Conceptualization and Its
Consequences (Routledge 2006); Walter Kälin, ‘How Hard is Soft Law? The Guiding Principles on
Internal Displacement and the Need for a Normative Framework’, in Brookings–City University of
New York Project on Internal Displacement, Recent Commentaries about the Nature and Application
of the Guiding Principles on Internal Displacement (April 2002). For a critical view, see Megan
Bradley and Angela Sherwood, ‘Addressing and Resolving Internal Displacement: Reflections
on a Soft Law “Success Story”’ in Stéphanie Lagoutte, Thomas Gammeltoft-Hansen, and John
Cerone (eds), Tracing the Roles of Soft Law in Human Rights (Oxford University Press 2016).
7
Guiding Principles (n 2) para 3.
8
UNCHR, Report of the Representative of the Secretary-General, Mr Francis M Deng, submitted
pursuant to Commission on Human Rights Resolution 1995/57. Compilation and Analysis of Legal
Norms, UN doc E/CN.4/1996/52/Add.2 (5 December 1995) and Report of the Representative
of the Secretary-General, Mr Francis M Deng, submitted pursuant to Commission on Human Rights
Resolution 1997/39, Addendum, Compilation and Analysis of Legal Norms, Part II: Legal Aspects
relating to the Protection against Arbitrary Displacement, UN doc E/CN.4/1998/53/Add.1 (11
February 1998). See also Walter Kälin, Guiding Principles on Internal Displacement: Annotations
(rev edn, American Society of International Law and Brookings–Bern Project on Internal
Displacement 2008) 1 (Annotations).
194 • ‘The IDP in International Law’?
viewed as a source of norms for IDP protection only ‘by analogy’, thereby drawing a
clear distinction between the legal situation of IDPs and refugees.9
The Guiding Principles – as the foremost instrument on IDP protection – ini-
tially attracted keen interest from researchers in law and other fields, particularly
during the late 1990s and early 2000s, although this interest has largely waned
9
ibid.
10
See eg the studies cited in n 6.
11
See the database of countries with laws and policies on internal displacement compiled by the
Internal Displacement Monitoring Centre (IDMC) <http://www.internal-displacement.org/
law-and-policy> accessed 1 January 2018. Of these 27 countries, 12 have adopted national laws
on internal displacement and the remainder have adopted policies.
12
See eg Walter Kälin, ‘The Guiding Principles on Internal Displacement as International Minimum
Standard and Protection Tool’ (2005) 24 Refugee Survey Quarterly 27; Nina Schrepfer,
‘Addressing Internal Displacement through National Laws and Policies: A Plea for a Promising
Means of Protection’ (2012) 24 International Journal of Refugee Law 667.
‘The IDP in International Law’? • 195
in their national law.13 Adoption of the Kampala Convention by the African Union
followed in 2009.14 This treaty, which entered into force in 2012, imposed innovative
IDP-related obligations on its 27 States parties,15 even as the preamble affirmed the
‘inherent rights’ of IDPs under human rights law and humanitarian law as set out in
the Guiding Principles.16 In different ways, both treaties affirm the centrality of the
13
Protocol to the Pact on Security, Stability and Development in the Great Lakes Region on the
Protection and Assistance to Internally Displaced Persons (adopted 30 November 2006, entered
into force 21 June 2008).
14
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).
15
As at June 2017, according to the most recent ratification list on the African Union treaty sta-
tus website <https://au.int/en/treaties>. The Kampala Convention is innovative in that it gives
IDPs a distinct legal status and corresponding set of status-related entitlements under interna-
tional law that are to be observed not only by States parties but also by other entities, including
international organizations, humanitarian agencies (arts 6 and 8), and members of armed groups
(art 9). Innovative obligations are also codified by the treaty, including inter alia those relating to
‘displacement induced by projects’ (art 10) and to ‘registration and personal documentation’ (art
14).
16
Kampala Convention (n 14) preambular para 10.
17
See eg Susan Carr, ‘From Theory to Practice: National and Regional Application of the Guiding
Principles’ (2009) 21 International Journal of Refugee Law 34; Vinai Kumar Singh, ‘India and
Internally Displaced Persons: Current Legal Avenues and New Legal Strategies’ (2012) 24
International Journal of Refugee Law 509. Schrepfer (n 12) is the main exception to this trend.
18
See eg Won Kidane, ‘Managing Forced Displacement by Law in Africa: The Role of the New
African Union IDPs Convention’ (2011) 44 Vanderbilt Journal of Transnational Law 1; Lauren
Groth, ‘Engendering Protection: An Analysis of the 2009 Kampala Convention and Its Provisions
for Internally Displaced Women’ (2011) 23 International Journal of Refugee Law 221; Allehone
M Abebe, The Emerging Law of Forced Displacement in Africa: Development and Implementation
of the Kampala Convention on Internal Displacement (Routledge 2016); Romola Adeola and
Frans Viljoen, ‘The Right Not to Be Arbitrarily Displaced in Africa’ (2017) 25 African Journal of
International Law 459.
19
The one possible exception – The International Protection of Internally Displaced Persons by
Catherine Phuong (n 5) – was published in 2004 and predates many of the legal developments
referred to here.
196 • ‘The IDP in International Law’?
20
For national law, see Schrepfer (n 12).
21
For instance, on the face of the treaties, the range of rights codified in the American Convention
on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 36 Organization
of American States Treaty Series 1 (ACHR) is broader than in the International Covenant on
Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999
UNTS 171 (ICCPR), with the former expressing rights such as the right to property (art 21) and
the right of reply (art 14) that are absent from the latter. As an example of similar rights articu-
lated in different terms, see the procedural rights expressed in arts 2, 14, and 15 of the ICCPR and
arts 1, 8, and 25 of the ACHR.
22
Universal Declaration of Human Rights (adopted 10 December 1948) UN General Assembly
(UNGA) res 217 A(III).
‘The IDP in International Law’? • 197
remains that the most widely shared global reference point for the emerging IDP field
remains a ‘soft’ law instrument, the Guiding Principles.
Thus far, then, this article points to a ‘hardening’ of ‘soft’ IDP standards over the
past 20 years into a distinct body of law, with the Guiding Principles as its main point
of reference. The parallel processes through which this body of ‘hard’ IDP law is devel-
23
On the question of whether the Guiding Principles as a whole have become customary inter-
national law, see Patrick L Schmidt, ‘The Process and Prospects for the UN Guiding Principles
on Internal Displacement to Become Customary International Law: A Preliminary Assessment’
(2004) 35 Georgetown Journal of International Law 483. Regardless, particular norms of IDP
protection may now have customary status based on, inter alia, practice pursuant to the standards
in the Guiding Principles (for a norm on the protection of IDP returns, see the examples pro-
vided in part 3.1 below).
198 • ‘The IDP in International Law’?
pathway. Moreover, whereas many other provisions of that instrument do little more
than confirm the applicability to IDPs of wider standards of treatment articulated by
human rights law,24 return itself is an interest that is of particular relevance to the situ-
ation of displacement. Indeed, it is sometimes taken to represent a reversal of forcible
displacement that comprises one of the essential elements of the IDP condition.25
Competent authorities have the primary duty and responsibility to establish con-
ditions, as well as provide the means, which allow internally displaced persons to
return voluntarily, in safety and with dignity, to their homes or places of habitual
residence, or to resettle voluntarily in another part of the country.
The remainder of this provision,27 as well as Guiding Principles 29 and 30,28 makes
further recommendations on additional aspects of returns by IDPs. Nonetheless, it is
Guiding Principle 28(1) that sets out the basic framework for IDP returns.
The Guiding Principles are not the only international instrument to articulate an obli-
gation on States to ensure that IDPs are able to return voluntarily to their homes in con-
ditions of safety and dignity. From the early 2000s onwards, other ‘soft’ law instruments
on IDP protection also made reference to this obligation towards returning IDPs.29
24
Many other provisions of the Guiding Principles address needs and vulnerabilities which are not
exclusive to displaced persons, eg life, dignity, liberty, and shelter (see Compilation and Analysis
of Legal Norms (n 8)). For example, in relation to Guiding Principle 10, IDPs clearly benefit
from a right to life in the same way as other persons.
25
For instance, the Guiding Principles (introduction, para 2) describe IDPs by reference to two
essential elements, namely that of forced movement from their homes (‘forced or obliged to flee
or to leave their homes or places of habitual residence’) along with the fact of having ‘not crossed
an internationally recognized State border’.
26
See Eric Rosand, ‘The Right to Return under International Law following Mass Dislocation: The
Bosnia Precedent?’ (1998) 19 Michigan Journal of International Law 1091; Catherine Phuong,
‘“Freely to Return”: Reversing Ethnic Cleansing in Bosnia-Herzegovina’ (2000) 13 Journal of
Refugee Studies 165.
27
Guiding Principle 28(2) provides that: ‘Special efforts should be made to ensure the full partici-
pation of internally displaced persons in the planning and management of their return or resettle-
ment and reintegration’.
28
Guiding Principle 29(1) prohibits discrimination against returned IDPs and Guiding Principle
30 regulates the terms under which authorities must grant international humanitarian organiza-
tions and other appropriate actors access to IDPs to assist in their return.
29
International Law Association (ILA), ‘London Declaration of International Law Principles
on Internally Displaced Persons’ in Committee on Internally Displaced Persons, ‘Reports and
‘The IDP in International Law’? • 199
Then, in 2009, the obligation found ‘hard’ treaty law expression in article 11(1) of the
Kampala Convention.30 It also appears within a range of voluntary repatriation agree-
ments concluded by UNHCR.31 At the national level, the obligation finds expression in
a diverse range of national laws and peace agreements.32 State practice pursuant to these
sources of law suggests that the duty to ensure voluntary, safe and dignified return of
Draft Declaration for Consideration at the 2000 Conference’ (ILA 2000) art 5(1); UNCHR
Sub-Commission on the Promotion and Protection of Human Rights, Principles on Housing
and Property Restitution for Refugees and Displaced Persons, Report of the Special Rapporteur on
Housing and Property Restitution, UN doc E/CN.4/Sub.2/2005/17 (28 June 2005) (the Pinheiro
Principles) Annex, Principle 10. See also UNCHR Sub-Commission on the Promotion and
Protection of Human Rights res 2002/30 on the Right to Return of Refugees and Internally
Displaced Persons, UN doc E/CN.4/2003/2 E/CN.4/Sub.2/2002/46 (15 August 2002) para 1.
30
Art 11(1) provides that: ‘States Parties shall seek lasting solutions to the problem of displace-
ment by promoting and creating satisfactory conditions for voluntary return, local integration or
relocation on a sustainable basis and in circumstances of safety and dignity’.
31
See eg the terms of the voluntary repatriation agreements cited in Scott Leckie, ‘New Directions
in Housing and Property Restitution’ in Scott Leckie (ed), Returning Home: Housing and Property
Restitution Rights of Refugees and Displaced Persons (Transnational Publishers 2003) 13–16.
32
As an example of national law, see the return provisions included in the original Colombian
national legal framework on IDPs, eg Decreto 2569 de 2000 Por el cual se reglamenta par-
cialmente la Ley 387 de 1997 y se dictan otras disposiciones, Diario Oficial, No 44 263 (19
December 2000) arts 1, 33(6). Regarding peace agreements, see the terms of those cited in
Leckie (n 31) 13–16 as an illustration of this point.
33
See David James Cantor, Returns of Internally Displaced Persons during Armed Conflict: International
Law and Its Application in Colombia (Nijhoff 2018) 108–18.
34
Indeed, this is the basis put forward by the Annotations (n 8) 128.
35
See, for further comment, part 5 below.
200 • ‘The IDP in International Law’?
The Committee notes … the State party’s expressed willingness to respect the
voluntary return of internally displaced persons. It remains concerned at … the
lack of resources made available to allow the displaced to return home under
acceptable conditions. (art. 12 of the Covenant)
In keeping with all international standards governing the matter, including the
Guiding Principles on Internal Displacement, the State party should: […]
(d) Redouble its efforts to guarantee the safe, voluntary return of displaced
persons.43
36
ICCPR (n 21).
37
European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted
4 November 1950, entered into force 3 September 1953) 5 ETS 1.
38
Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental
Freedoms (adopted 20 March 1952, entered into force 18 May 1954) 9 ETS 1.
39
Protocol No 4 to the European Convention for the Protection of Human Rights and Fundamental
Freedoms (adopted 16 September 1963, entered into force 2 May 1968) 46 ETS 1.
40
ACHR (n 21).
41
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21
October 1986) 21 ILM 58.
42
See eg HRC, ‘Concluding Observations of the Human Rights Committee: The Former Yugoslav
Republic of Macedonia’, UN doc CCPR/C/MKD/CO/2 (17 April 2008).
43
HRC, ‘Concluding Observations of the Human Rights Committee: The Sudan’, UN doc
CCPR/C/SDN/CO/3 (29 August 2007) para 23. Similar views are again expressed, inter
alia, in HRC, ‘Concluding Observations of the Human Rights Committee: Ethiopia’, UN doc
CCPR/C/ETH/CO/1 (19 August 2011) para 14.
‘The IDP in International Law’? • 201
The ICCPR is the most widely ratified civil rights treaty, with 169 States parties.44 As
such, the approach adopted by the HRC has implications for a substantial cross section
of the world’s States.
Moreover, the HRC is not the only UN human rights treaty body to require adher-
ence to the Guiding Principles by countries experiencing serious problems of internal
the authorities have the primary duty and responsibility to establish conditions,
as well as provide the means, which allow the applicants to return voluntarily, in
safety and with dignity, to their homes or places of habitual residence, or to reset-
tle voluntarily in another part of the country (see in this respect Principles 18
and 28 of the United Nations Guiding Principles on Internal Displacement …).47
44
As at 1 January 2018 <http://treaties.un.org/>.
45
For instance, the Committee on the Rights of the Child has held that the ‘special protection’
obligations of the Convention on the Rights of the Child (adopted 20 November 1989, entered
into force 2 September 1990) 1577 UNTS 3 (CRC) require States parties to ‘fully adhere to
the Guiding Principles on Internal Displacement’ (see eg ‘Concluding Observations on the
Combined Fourth and Fifth Periodic Reports of Colombia’, UN doc CRC/C/COL/CO/4-5
(6 March 2015) para 56(d)). The CRC had 196 parties as at 1 January 2018 <http://treaties.
un.org/>. Similarly, in IDP contexts, the Committee on the Elimination of Racial Discrimination
appears to read art 5 of the International Convention on the Elimination of All Forms of Racial
Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS
195 (CERD) in light of the Guiding Principles (see eg ‘Report on Seventy-Fourth and Seventy-
Fifth Sessions’, UN doc A/64/18 (2009) para 19). The CERD had 179 parties as at 1 January
2018 <http://treaties.un.org/>.
46
For instance, on the return of IDPs, the Committee on Economic, Social and Cultural Rights
(CESCR) has interpreted the right to an adequate standard of living in art 11 of the International
Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into
force 3 January 1996) 993 UNTS 3 (ICESCR) in light of the Guiding Principles (see CESCR,
‘Report on Fortieth and Forty-First Sessions’, UN doc E/2009/22 E/C.12/2008/3 (2009) para
424). The ICESCR had 166 parties as at 1 January 2018 <http://treaties.un.org/>. Similarly,
in its recommendations on implementing the obligations in the CERD, the Committee on the
Elimination of Racial Discrimination cites the Guiding Principles in the context of IDP returns
(see eg ‘Report on Fifty-Fourth and Fifty-Fifth Sessions’, UN doc A/54/18 (1999) para 9(d)).
Albeit prior to the adoption of the Guiding Principles, the Committee also clarified the nature of
IDP return obligations under art 5 of the CERD in language similar to that of Guiding Principle
28(1) (‘General Recommendation No 22: Article 5 and Refugees and Displaced Persons’, UN
doc A/51/18 (24 August 1996) Annex VIII at 126, para 2).
47
Doğan v Turkey (Merits) App Nos 8803-8811/02, 8813/02, and 8815-8819/02 (ECtHR, 29
June 2004) para 154.
202 • ‘The IDP in International Law’?
The regional writ of the ECHR runs only to the 47 States parties in Europe.48 Yet a
number of those States, particularly towards the east of the continent, continue to expe-
rience the longstanding consequences of internal displacement caused by conflict and
political turbulence in recent decades.
In the Organization of American States (OAS), the Inter-American Court of Human
[The] State has failed to both establish conditions, as well as provide the means,
that would allow the Moiwana community members to return voluntarily, in
safety and with dignity, to their traditional lands …. By not providing such ele-
ments … Suriname has failed to ensure the rights of the Moiwana survivors to
move freely within the State and to choose their place of residence.50
Whilst subsequent judgments framed these obligations as deriving from the special
condition of ‘de facto non-protection’ that the court found to be particular to IDPs,
rather than from the Guiding Principles per se, their scope remained identical to
Guiding Principle 28(1).51 Although only 22 of the 35 Member States of the OAS are
parties to the ACHR,52 they include those countries most affected by issues of internal
displacement in the past few decades.
Finally, in the African Union (AU) system, the African Commission on Human
and Peoples’ Rights appears to have adopted a similar approach to interpreting the
ACHPR. It has used the language of Guiding Principle 28(1) to interpret the extent
of State duties towards returning IDPs under the ACHR article 12 right to freedom of
movement (jointly with the article 6 right to liberty):
The Commission observes that IDPs and refugees can only return when secu-
rity and safety is guaranteed and the Respondent State provides the protection
in the areas of return. Voluntary return under situation of forced displacement
must be in safety and dignity. The Commission believes that the right to liberty
complements the right to freedom of movement under Article 12. If the IDPs
48
As at 1 January 2018, the ECHR had 47 parties, the ECHRP1 had 45, and the ECHRP4 had
43 <http://conventions.coe.int/>.
49
Inter-American Court, Moiwana Village v Suriname (Merits) Series C No 124 (15 June 2005) para
111.
50
ibid para 120.
51
See eg Inter-American Court, Mapiripán Massacre v Colombia (Merits) Series C No 134 (15
September 2005) para 179. In the later case of Chitay Nech v Guatemala Series C No 212 (25 May
2010), the Inter-American Court appears to dilute this principle by affirming merely that the
Guiding Principles are ‘particularly relevant’ to defining the scope and content of art 22 ACHR
in situations of internal displacement: para 140.
52
As at 1 January 2018, according to the OAS treaty status website <https://www.oas.org/dil/
treaties_b-32_american_convention_on_human_rights_sign.htm>.
‘The IDP in International Law’? • 203
or the refugees are not able to move freely to their homes, because of insecurity,
or because their homes have been destroyed, then their liberty and freedom is
proscribed.53
This approach suggests that the ACHPR contains an obligation to ensure that
53
Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan
(ACHPR 2009) para 177.
54
As at 1 January 2018, of the 22 States not party to the ICCPR, two are parties to the ACHPR
(Comoros and South Sudan) and three are parties to the 2004 Arab Charter on Human Rights
(adopted 22 May 2004, entered into force 16 March 2008) that protects relevant rights such as
freedom of movement in art 26 (Qatar, Saudi Arabia, and United Arab Emirates). Of the remain-
ing 17, all are small island States in the Pacific or Caribbean oceans, except for Bhutan, Brunei
Darussalem, Cuba, the Holy See, and Singapore. Among those 17, several small island States and
Bhutan, Cuba, the Holy See, and Singapore (as well as Qatar and the United Arab Emirates – see
above) are parties to the CERD; and China and Myanmar are parties to the ICESCR. All 22
States not party to the ICCPR are parties to the CRC.
55
A similar process can be observed in some other areas of soft law, as with UNHCR guidance
on the procedural guarantees required in the determination of asylum claims. See David James
Cantor, ‘Reframing Relationships: Revisiting the Procedural Standards for Refugee Status
Determination in Light of Recent Human Rights Treaty Body Jurisprudence’ (2015) 34 Refugee
Survey Quarterly 79.
204 • ‘The IDP in International Law’?
The process is also mediated by forms of treaty body practice that, in themselves,
embody varying degrees of legal authority,56 even if the obligations being interpreted
are themselves squarely rooted in binding treaty rules. Nonetheless, even for those
treaty bodies whose decisions are not unquestionably binding as a matter of law, the
apparent compliance (or lack of objection) by States with the interpretation adopted
56
For instance, while the decisions of the ECtHR and the Inter-American Court are legally binding,
at least on parties to the relevant judgment, less clarity as to the legal weight to be given to deci-
sions adopted by the UN human rights treaty bodies or the African Commission is provided by
the relevant treaties. Even so, the consistent jurisprudence on point sends a clear signal to States
of how future cases of IDP returns that reach these international mechanisms will be resolved
and thus how States should approach the implementation of pertinent international obligations
at the national level.
57
Guiding Principles (n 2) introduction, para 3. See also Kälin (n 6) 8.
‘The IDP in International Law’? • 205
between norm restatement and norm creation in the Guiding Principles.58 As such, a
longstanding debate exists on the extent to which certain provisions of the Guiding
Principles accurately reflect (or not) the ‘hard’ law on which they are said to be based.
The analysis in this part revisits this long-neglected debate. Specifically, it demon-
strates how the standards for IDP returns expressed by Guiding Principle 28(1) diverge
58
Phuong (n 5) 60.
59
See, respectively, the decisions in the Inter-American Court, Moiwana Village, and ECtHR,
Doğan, cited in part 3.2 above.
60
ICCPR: art 12(1); ECHRP4: art 2(1); ACHR: art 22(1); ACHPR: art 12(1).
61
ibid.
62
ICCPR: art 17; ECHR: art 8(1); ACHR: art 11. There is no similar provision in the ACHPR,
although the integrity of the family home may be understood as protected implicitly by art 18(1)–
(2) (see Kenneth Good v Botswana (Merits) App 313/05 (ACHPR 2010) paras 209–215).
63
ECHRP1: art 1; ACHR: art 21; ACHPR: art 14. There is no similar provision in the ICCPR.
64
See eg references in nn 21–22, 37–39.
206 • ‘The IDP in International Law’?
rights is important since the wider jurisprudence of these human rights treaty bodies
makes it clear that each of these four rights protects a different kind of interest in the
place of return. Thus, while the right to freedom of movement does not require any
attachment to the place, the jurisprudence on the other three rights shows not only that
they encompass constituent rights of free movement and access to a former home, but
65
This can be seen in the jurisprudence on the right to choice of residence (see eg HRC, ‘General
Comment No 27/67’, UN doc CCPR/C/21/Rev.1/Add.13 (18 October 1999) para 7; Inter-
American Court, Mapiripán Massacre (n 51) para 188); for home rights (ECtHR, Loizidou v Turkey
(Merits) App No 15318/89 (18 December 1996) paras 11, 66; Cyprus v Turkey (Merits) App No
25781/94 (10 May 2001) para 175; Khamidov v Russia (Merits) App 72118/01 (2 June 2008) para
127); and for property rights (ECtHR, Loizidou paras 62–63; Cyprus paras 185–187; African
Commission, Media Rights Agenda v Nigeria (2000) AHRLR 200 (ACHPR 1998) para 77; Inter-
American Court, Ituango Massacres v Colombia (Merits) Series C No 148 (1 July 2006) para 182).
66
The formulation that these rights apply to ‘everyone lawfully within the territory’ of a State is
used in the ICCPR, ECHRP4, and ACHR. The ACHPR provision is understood to have similar
effect through its formulation that everyone within the borders of a State has these rights ‘pro-
vided he abides by the law’.
67
The legal basis for restrictions is contained in the provisions expressing those rights. For citations,
see eg nn 21–22, 37–39.
68
For example, the specified legitimate purposes on which the exercise of relevant rights can be
restricted by a State vary between different rights in the same treaty. For instance, the ACHR
allows the right to freedom of movement to be lawfully restricted to ‘to prevent crime or to pro-
tect national security, public safety, public order, public morals, public health, or the rights or
freedoms of others’ in art 21(3), whilst deprivation of property in art 21(2) must be for reasons
of ‘public utility or social interest’. They also vary between the same right as expressed by different
treaties. For instance, in respect of the rights to freedom of movement and choice of residence,
compare the following: ICCPR: art 12(3)(b); ECHRP4: art 2(3) or art 2(4); ACHR: art 2(3);
ACHPR: the African Commission has stated that ‘the only legitimate limitations to the rights in
ACHPR are found in Article 27(2)’: Media Rights Agenda (n 65) para 68.
‘The IDP in International Law’? • 207
and their susceptibility to interference by the State are not fixed or absolute as implied
by the terms of Guiding Principle 28(1) but can instead vary according to context.
For any return, then, the specific rights in play will be highly relevant to determin-
ing the kind and level of protection provided to returning IDPs under human rights
treaty law. Yet this complexity is not reflected in Guiding Principle 28(1), which instead
69
None of the four rights that provides a basis for the act of return is included among those stipu-
lated as not susceptible to derogation in the relevant clauses of three of the treaties (ICCPR: art
4(1); ECHR: art 15(1); ACHR: art 27(1)). The ACHPR contains no formal derogation clause,
which the African Commission has interpreted as meaning that no derogation from the provi-
sions of the ACHPR is possible (see Commission Nationale des Droits de l’Homme et des Libertés v
Chad (2000) AHRLR 66 (ACHPR 1995) para 21).
70
Compare eg the differing grounds of prohibited discrimination expressed by the different dero-
gation provisions (see citations in n 69).
71
See the factual contexts and figures relating to the causes of internal displacement surveyed in
IDMC/NRC, GRID 2017: Global Report on Internal Displacement (IDMC/NRC 2017).
208 • ‘The IDP in International Law’?
Finally, given that armed conflict is one important form of emergency, questions
arise about the relevance of international humanitarian law.72 Indeed, one rejoinder
to the analysis thus far might be that treaty law in that field offers a firmer basis for
the IDP protection standards in Guiding Principle 28(1) than does human rights law.
Yet comprehensive analysis shows that this is not at all the case.73 In fact, international
72
Pertinent treaties on the protection of civilians include the Geneva Convention relative to the
Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21
October 1950) 75 UNTS 287 (Geneva Convention IV); 196 States parties as at 1 January 2018;
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection
of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December
1978) 1125 UNTS 3 (Protocol I); 174 States parties as at 1 January 2018; Protocol Additional
to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-
International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125
UNTS 609 (Protocol II); 168 States parties as at 1 January 2018.
73
See Cantor (n 33) 83–102.
74
Specifically, these rules apply when the State is interning such persons (Geneva Convention IV,
art 134) or, in the context of occupation, temporarily evacuating them (art 49, para 2). ‘Protected
persons’ under the law of international armed conflict are only those civilians who ‘at a given
moment and in any manner whatsoever, find themselves … in the hands of a Party to the conflict
or Occupying Power of which they are not nationals’ (art 4, para 1).
75
Assuming that the applicability of international humanitarian law does not derogate wholesale
from international human rights law, provisions that could provide an additional basis for restric-
tions on the rights of individuals to return to their homes ‘as a result of war’ are art 27, para 4
of Geneva Convention IV in international armed conflict and art 17(1), read with art 2(1), of
Protocol II for ‘reasons related to the conflict’ in non-international armed conflict.
76
Commentaries on the Guiding Principles and their drafting process, including the Annotations
(n 8), do not appear to shed light on the failure to recognize the qualified nature of the legal rights
and obligations that underpin Guiding Principle 28(1).
‘The IDP in International Law’? • 209
such returns take place voluntarily and in safety and dignity can be derived from the
underlying human rights provisions.77
In 1998, such an analysis might simply have concluded that Guiding Principle 28(1)
imperfectly reflected the law that it was said to reflect and interpret. However, during
the past 20 years, this provision has been used consistently by authoritative treaty bod-
77
For an analysis of this obligation, see part 5 below.
78
See part 3 above.
79
This language is used expressly in Saghinadze v Georgia (Merits) App No 18768/05 (ECtHR,
27 August 2010) para 160 but not in Sargsyan v Azerbaijan (Merits) [GC] App No 40167/06
(ECtHR, 16 June 2015). In the latter, at para 232, the court instead approvingly cites Rule 132
of J-M Henckaerts and L Doswald Beck, Study on Customary International Humanitarian Law
(ICRC and Cambridge University Press 2005) as relevant in the conflict context. It is notewor-
thy that this rule partially reflects the language of Guiding Principle 28(1): ‘Displaced persons
have a right to voluntary return in safety to their homes or places of habitual residence as soon as
the reasons for their displacement cease to exist’. For a discussion of whether such a customary
rule exists, see Cantor (n 33) 108–18.
80
Saghinadze (n 79) paras 103–123; Sargsyan (n 79) paras 215–242 and 252–261. In particular, the
court acknowledges that those rights are not absolute and can be lawfully restricted by a State, so
long as the measures are justified and proportionate. In the long term, this may require the State
to address the effects of this inability to return through measures such as compensation or the
provision of alternative comparable accommodation.
210 • ‘The IDP in International Law’?
5 . VO LU N TA RY, S A F E A N D D I G N I F I E D R ET U R N : B ET W E E N I D P
A N D R E F U G E E P ROT E CT I O N
The injunction in Guiding Principle 28(1) that IDP returns must take place ‘volun-
tarily, in safety and with dignity’ appears to impose far-reaching obligations on States.
81
Some prominent examples include: Michael Barutciski, ‘Tensions between the Refugee Concept
and the IDP Debate’ (1998) 3 Forced Migration Review 11; Phuong (n 5); James C Hathaway,
‘Forced Migration Studies: Could We Agree Just to “Date”?’ (2007) 20 Journal of Refugee
Studies 349, and the responses to that article in the same issue of the journal; Elizabeth Ferris,
‘Internal Displacement and the Right to Seek Asylum’ (2008) 27 Refugee Survey Quarterly 76.
82
Richard Plender, ‘The Legal Basis of International Jurisdiction to Act with Regard to the
Internally Displaced’ (1994) 6 International Journal of Refuge Law 345; Anonymous, ‘The
UNHCR Note on International Protection You Won’t See’ (1997) 9 International Journal of
Refuge Law 267; Nils Geissler, ‘The International Protection of Internally Displaced Persons’
(1999) 11 International Journal of Refugee Law 451; Nicholas Morris, ‘Protection Dilemmas
and UNHCR’s Response: A Personal View from within UNHCR’ (1997) 9 International Journal
of Refuge Law 492; Guy S Goodwin-Gill, ‘UNHCR and Internal Displacement: Stepping into
a Legal and Political Minefield’ in US Committee for Refugees, World Refugee Survey 2000
(2000); Catherine Phuong, ‘Improving the United Nations Response to Crises of Internal
Displacement’ (2002) 13 International Journal of Refuge Law 491; David Lanz, ‘Subversion or
‘The IDP in International Law’? • 211
Reinvention? Dilemmas and Debates in the Context of UNHCR’s Increasing Involvement with
IDPs’ (2008) 21 Journal of Refugee Studies 192; Susan Martin, ‘Forced Migration, the Refugee
Regime and the Responsibility to Protect’ (2010) 2 Global Responsibility to Protect 38.
83
As against the approach adopted by the Representative of the Secretary-General and his team,
see eg Luke T Lee, ‘Internally Displaced Persons: Toward a Legal Synthesis?’ (1996) 9 Journal
of Refugee Studies 27; ILA, ‘London Declaration of International Law Principles on Internally
Displaced Persons’ (2001) 95 American Journal of International Law 454.
84
See the approach espoused by Lee (n 83).
85
In other words, while the vulnerability of refugees derives from their special situation as ‘unpro-
tected aliens’ persecuted by their own State, it is understood that IDPs merely lack effective pro-
tection as nationals in their own State. See eg Phuong (n 5).
86
Guiding Principles (n 2) para 3, and Annotations (n 8) 8.
87
See Bagshaw (n 6).
88
For instance, the Annotations (n 8) 8 state that: ‘refugee law, by analogy, can be useful to a certain
extent in proposing rules and establishing guidelines to protect the needs of the internally dis-
placed’ (original emphasis). Yet there are few instances where refugee law is actually used in this
way.
89
Art 1, Statute of the Office of the United Nations High Commissioner for Refugees (adopted by
UNGA res 428 (V) (14 December 1950)) (UNHCR Statute). The duty on States to ‘cooper-
ate’ with UNHCR in the discharging of these functions is stated in art 35, Convention relating
to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS
212 • ‘The IDP in International Law’?
for IDPs was non-exclusive (it was shared with other UN agencies)90 and was, more
importantly, subject to substantive conditions, including authorization by a competent
principal UN organ and the consent of the State concerned.91 Alongside certain practi-
cal considerations, this sharp distinction reflected the consensus that, whereas border-
crossing refugees are intrinsically ‘international’ and thus (in the words of one scholar)
137 (Refugee Convention); amended by Protocol relating to the Status of Refugees (adopted 31
January 1967, entered into force 4 October 1967) 606 UNTS 267. Likewise, the call for States to
cooperate with UNHCR in the performance of its functions by the UNHCR Statute is arguably
legally binding on UN Member States by virtue of art 56 of the UN Charter (adopted 26 June
1945, entered into force 24 October 1945) 1 UNTS XVI: Walter Kälin, ‘Supervising the 1951
Convention Relating to the Status of Refugees: Article 35 and Beyond’ in Erika Feller, Volker
Türk, and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global
Consultations on International Protection (Cambridge University Press 2003) 619.
90
The concern for IDPs in the UN system is thus diffuse and based on a division of lead agencies
by sector under the ‘cluster’ system for coordinating UN agencies and other actors in humanitar-
ian emergencies. This approach resulted from the UN General Assembly Report of the Secretary-
General on Strengthening of the Coordination of Emergency Humanitarian Assistance of the United
Nations, UN doc A/60/87-E/2005/78 (23 June 2005).
91
See eg UNGA res 47/105 (16 December 1992) para 14; UNGA res 48/116 (20 December
1993) para 12; UNGA res 49/169 (23 December 1994) para 10ff.
92
See eg Hathaway (n 81).
93
See eg Chaloka Beyani, ‘State Responsibility for the Prevention and Resolution of Forced
Population Displacements in International Law’ (1995) 7 Special Issue International Journal of
Refugee Law 130.
94
Guiding Principles (n 2) para 2.
‘The IDP in International Law’? • 213
own countries. If refugee status has not ceased, then refugee law and IDP law may apply
concurrently. The converse example is that of refugees who are subjected to displace-
ment within the territory of the host country. Such concurrent application of both legal
frameworks implies a need to understand how they interact.
On the separate issue of the legal basis for international attention by agencies such as
points of difference do exist (for example, where refugees or asylum seekers are not
‘lawfully present’) and refugees also benefit from additional special guarantees under
refugee law.101 Yet, across the panoply of factually similar practical needs of IDPs and
refugees, similar standards of human rights law often apply. As such, the general legal
protection standards for IDPs and refugees are not entirely distinct but rather find a
101
Refugee Convention (n 89) arts 2–34.
102
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. See also David James Cantor,
‘Restitution, Compensation, Satisfaction: Transnational Reparations and Colombia’s Victims’
Law’ (2011) 215 New Issues in Refugee Research 1.
103
For a detailed analysis, see Cantor (n 33) 121–82.
104
League of Nations, ‘Resolution IV’, League of Nations Conference on Russian Refugees, Geneva,
24 April 1921. For modern use, see, inter alia, UNHCR Statute (n 89) para 1; also UNHCR
Executive Committee Conclusion No 18 (XXXI) (1980) para (b); UNHCR Executive
Committee Conclusion No 40 (XXXVI) (1985) (1985 ExCom Conclusion No 40) para (b). In
a regional treaty, see Convention Governing the Specific Aspects of Refugee Problems in Africa
(adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45, art V.
‘The IDP in International Law’? • 215
international usage in the refugee repatriation context.105 It was only during the Balkan
crises that these principles were extended beyond the context of refugee repatriation to
describe also the conditions necessary for IDP returns.106
As such, the voluntariness, safety and dignity principles represent a point of substan-
tive normative crossover between the refugee and IDP fields. Moreover, in the context
105
For example, on refugee repatriation, see UNHCR Executive Committee Conclusion No 46
(XXXVIII) (1987) (1987 ExCom Conclusion No 46) para (l). This language of ‘safety and dig-
nity’ was also used by UNHCR to describe the minimum elements of ‘international protection’
applicable to refugees in all situations (see eg UNHCR, ‘Note on International Protection’, UN
doc A/AC.96/694 (3 August 1987) para 34).
106
Phuong (n 5) 182–84.
107
Rosand (n 26) 1107.
108
Cantor (n 33) 163–79.
109
ibid 163–64.
110
Indeed, a conceptual gulf exists between ‘voluntariness’ in refugee repatriation as an exception to
the right of a host State to expel aliens and ‘voluntariness’ in IDP return as an exercise of the right
to free movement in one’s own country.
111
Cantor (n 33) 155–63. For enforced returns (or repatriations), this is the case in relation to: (a)
scenarios of enforcing returns where there is a risk of harm; (b) the advisability of verification
mechanisms when promoting such returns; and (c) scenarios where returns are ‘constructively’
forced by wider conditions.
112
ibid.
216 • ‘The IDP in International Law’?
The principles of voluntariness, safety and dignity in Guiding Principle 28(1) thus
represent a concrete example of legal intersection between the respective fields of IDP
and refugee protection. The considerable parity in resulting legal protection reflects
direct transposition of these principles from the refugee to the IDP context and their
shared legal source in human rights law. It is also enjoined pragmatically by the prin-
113
From 1985 onwards, the UNHCR Executive Committee consistently recommended that refu-
gee repatriation should be ‘to the place of residence of the refugee in his country of origin’. See eg
1985 ExCom Conclusion No 40 (n 104) para (b); UNHCR, ‘Note on International Protection’
(n 105) para 46, approved by 1987 ExCom Conclusion No 46 (n 105) para (l); UNHCR
Executive Committee Conclusion No 101 (LV) (2004) para (c).
114
Cantor (n 33) 160–63.
115
For an engaging example of scholarship along these lines, see Bríd Ní Ghráinne, ‘UNHCR’s
Involvement with IDPs – ‘Protection of that Country’ for the Purposes of Precluding Refugee
Status?’ (2014) 26 International Journal of Refugee Law 536; Bríd Ní Ghráinne, ‘The Internal
Protection Alternative Inquiry and Human Rights Considerations – Irrelevant or Indispensable?’
(2015) 27 International Journal of Refugee Law 29.
‘The IDP in International Law’? • 217
6. CO N C LU S I O N S : W H I T H E R I D P L AW ?
Since the Guiding Principles were presented to the world in 1998, the law relating to
IDP protection has remained anything but static. Indeed, beyond the gaze of main-
stream legal scholarship, we appear to be witnessing the consolidation of a distinct field