Article 20 The IDP in International Law’ Developments, Debates, Prospects.

International Journal of Refugee Law, 2018, Vol 30, No 2, 191–217
doi:10.1093/ijrl/eey031
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A RT I C L E S
‘The IDP in International Law’?

Developments, Debates, Prospects
David James Cantor*
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-
est groups, such as refugees, women, or children. Arguably, the ‘soft’ nature of IDP
protection standards detracts from their interest to legal scholars. Alternatively, it
may be that the foundational legal debates around IDP protection give the impres-
sion of having been long settled. Whatever the reason, legal studies on IDPs in the
past decade have tended to be not only largely descriptive in focus but also decidedly
few and far between.
Against this unpromising backdrop, the present article draws together a diverse
set of legal developments concerning IDPs over the past 20 years in order to call for a
reassessment of the state of the art. It advances two main propositions. First, the article
argues that these legal developments, if taken together, point towards the emergence of
IDP law as a distinct field of law and thus a distinct field of legal study, albeit one that
has important connections to other legal fields. Secondly, those same developments
suggest that earlier foundational debates on IDP protection and the role of law are less
settled than might once have appeared. Instead, they remain alive and vital at the heart
of this intriguing and emerging field of law.
The analysis proceeds as follows. Part 2 reviews the existing literature to argue for
IDP law as a field constituted primarily by ‘hard’ African regional law and by national
laws adopted across the past 20 years. Using IDP returns as an example, part 3 posits an
alternative pathway for IDP law development by showing how the Guiding Principles
are increasingly ‘hardened’ by human rights treaty bodies reading them back into treaty
obligations.3 Such processes reopen foundational legal debates on IDP protection, not
just about the role of law in IDP protection but also about the relationship of IDP pro-
tection to human rights protection (part 4) and to refugee protection (part 5). Part 6
concludes by speaking to the prospects of IDP law as a field.
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
2.1 Guiding Principles: global standards, ‘soft’ law

Since being presented at the UN Commission on Human Rights in 1998 (where States
gave them a somewhat lukewarm reception), the Guiding Principles have been pro-
moted energetically within the UN and beyond by successive Representatives of the
Secretary-General and Special Rapporteurs holding the thematic IDP mandate.4 Use
of the Guiding Principles has been equally encouraged by UN agencies, including the
Office of the UN High Commissioner for Refugees (UNHCR) and the Office for the
Coordination of Humanitarian Affairs (OCHA), and by other humanitarian organiza-
tions.5 As a result of these efforts, the Guiding Principles now serve as the main global
reference point on IDP protection standards.
Yet the Guiding Principles are not a treaty. Instead, they were drafted expressly as a
set of non-binding ‘soft’ law standards. Indeed, the Guiding Principles are often cited as
an example of how ‘soft’ law can promote protection in practice.6 As such, the Guiding
Principles did not create new legal norms but purported merely to infer how exist-
ing rules of international human rights law and international humanitarian law would
apply to contexts of internal displacement.7 The standards expressed by the Guiding
Principles thus have a referential character, with any legal force deriving from the wider
non-IDP-specific rules of international law from which they are extrapolated. The
legal basis for these standards was set out in several important studies by the original
Representative on IDPs and his team.8 In these studies, refugee law, by contrast, was
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).
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
since then.10 However, due perhaps to the authoritative quality of the original
legal studies by the Representative and his team, this body of literature on the
Guiding Principles turned away from the earlier foundational debates on the
relationship between IDP protection standards and existing law (including refu-
gee law). Instead, it focused on the potential of the existing ‘soft’ law Guiding
Principles to promote future legal and policy development, a line of enquiry that
also simultaneously reinforced the perception of IDP protection as essentially a
matter of ‘soft’ rather than ‘hard’ law.
2.2 ‘Hard’ IDP law: national and regional developments

Nonetheless, in the 20 years since the Guiding Principles were presented to States in
1998, it is possible to discern a range of legal developments in relation to IDP protec-
tion that result, in part at least, from the proactive promotion of the Guiding Principles.
These patterns of legal developments have been identified and documented by scholars
in two main areas, namely: (a) in the national law of a range of countries across the
world; and (b) in the international law developed by regional bodies in Africa. Through
a brief review of each of these areas, a broad picture will emerge of how IDP protection
standards are gradually ‘hardening’ into law, particularly in countries affected by armed
conflict or widespread violence.
At the national level, 27 displacement-affected States have adopted laws or policies
for preventing and addressing the consequences of internal displacement.11 Naturally,
the scope, content, and legal character of these national frameworks on IDPs are quite
variable, a fact that reflects differences in the legal systems, internal politics, and per-
ceived displacement challenges of each country. Even so, many of these national IDP
protection frameworks are based, in full or in part, on the global standards set out in
the Guiding Principles.12 At the national level, these developments give impetus to IDP
protection as a distinct legal field.
In parallel, at the regional level, two IDP treaties now exist in Africa. In 2006, the
International Conference of the Great Lakes Region (ICGLR), a sub-regional forum,
created a treaty to oblige the 10 States parties to implement the Guiding Principles
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.
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
Guiding Principles to IDP law. At the same time, each offers the protection of IDPs an
independent basis in international law through their articulation of relevant norms in
treaty form.
Legal scholars have been engaged in documenting these developments in IDP pro-
tection law at the national and regional levels, particularly from the mid-2000s onwards.
Yet the resulting literature is decidedly fragmentary. Indeed, most published studies on
national IDP law address the law of just one country or a couple of countries.17 By con-
trast, the African IDP treaties – particularly the Kampala Convention – have attracted
more consistent interest from legal scholars, likely due to their ‘hard’ international law
form.18 Overall, though, these scholars deal with the different IDP law regimes in isola-
tion and without connecting them as constituent parts of a greater whole.19 Moreover,
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.
despite the existence of a well-established parallel body of scholarship on refugee law,

legal scholars in both fields have largely forsaken earlier debates about the legal relation-
ship between IDP and refugee protection.
2.3 Emergence of an IDP law field?
Yet, if we connect the dots of these apparently disparate developments, we can begin
to discern a distinct body of ‘hard’ IDP law rooted in the national law of displacement-
affected countries and in African international law. In each of these two bodies of law,
the standards of protection for IDPs have an independent legal existence separate from
other bodies of law. Crucially, in neither case does IDP law derive its legal force from
articulating the application of an underlying set of ‘hard’ legal standards contained in
other treaties concerned with human rights law or international humanitarian law. On
this basis, and given the increasing pervasiveness of national and international legal
rules on IDPs, the law of IDP protection now appears to be evolving into a discrete
legal field.
If this analysis is correct, then IDP law is a field marked by several distinctive fea-
tures. One is the differing IDP definitions and protection standards expressed by
diverse national and international sources of IDP law.20 Of course, this is not to say that
such variation is absent from other recognized fields of law. For instance, even the basic
treaties on civil and political rights diverge somewhat in relation to the scope of rights
guaranteed and the way that similar rights are articulated in different instruments.21
Nonetheless, it seems that the current-day IDP law field, given its strong national law
component and the relative diversity of approaches and standards expressed in the
national IDP law of different countries, may be internally differentiated to a compara-
tively greater extent than is the case for legal fields that have a stronger international law
component.
A related particularity is that the main global reference point for the IDP law field,
the Guiding Principles, is a source of ‘soft’ law. By contrast, many well-established
bodies of international law revolve around not only a central concept but also a few
key treaties that serve to anchor the field. Here again, though, the distinction between
IDP law and other fields of law should not be overdrawn. Modern human rights law,
for instance, is rooted in the ‘soft’ law Universal Declaration of Human Rights,22 with
the protection standards in this core text expanded and hardened through subsequent
treaty development. Even so, in contrast to legal fields such as refugee law, the fact
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).
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-
oping – both in the national law of a range of affected countries and in African inter-
national law – are documented quite convincingly by the existing legal literature. In
these processes, the prominent role played by African States in the creation of IDP
law at the national and international levels is evident from the early 2000s onwards.
Indeed, whilst recognizing the important contributions of a range of displacement-
affected countries and regions in these processes of IDP law development, one might
be tempted to conclude that this emerging legal field has an African centre of gravity
overall.
Yet the focus within the current legal literature on processes of IDP law develop-
ment in the national and regional spheres raises a question about whether parallel pro-
cesses also exist at a more global level. Certainly, during the 20 years since the Guiding
Principles were adopted – in part due to the understanding that proposals for a new
UN-negotiated treaty in this field would be unacceptable to States – there are few signs
of increased appetite among States for a global IDP treaty. Similarly, any claim that the
Guiding Principles have become binding law at a global level as a matter of international
custom evidently remains premature.23 These factors might seem to indicate that no
pathways for transforming ‘soft’ IDP protection standards into ‘hard’ IDP law yet exist
at the global level.
3. G LO B A L PAT H WAY S F O R I D P L AW D E V E LO P M E N T ?
I D P R ET U R N S A S A C A S E ST U DY
Against this backdrop, this article extends existing scholarship by directing attention to
a distinctive pathway through which the ‘soft’ IDP protection standards in the Guiding
Principles are legally ‘hardening’ at the global level. Specifically, it argues that an add-
itional locus of IDP law development can be found in the human rights treaty body
practice of interpreting human rights treaty obligations in contexts of internal dis-
placement via IDP protection standards in the Guiding Principles. The ubiquity of this
practice, which can be documented for a range of universal and regional human rights
treaties, gives the process a global character overall.
The analysis will illustrate this trend by reference to Guiding Principle 28(1), a pro-
vision that sets out standards for the return of IDPs. The issue of return provides a good
case study of how the Guiding Principles standards have been ‘hardening’ through this
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).
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
3.1 The Guiding Principles: special protection for IDP returns

During the 1990s, a perception emerged within the international community that the
voluntary, safe and dignified return of IDPs represented an object of special protection
under international law. The consolidation of this international consensus was closely
linked to the promotion of return by the international community as a policy to reverse
widespread ethnic cleansing in the Balkan conflicts of that decade.26 This understand-
ing is reflected on the face of Guiding Principle 28(1) in the following terms:
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
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
IDPs may be acquiring independent legal existence as a rule of customary international
law, at least in the post-conflict phase.33
Nonetheless, the original legal basis for any such obligation towards returning IDPs
is more difficult to pin down, particularly in the human rights treaties on which the
Guiding Principles purport to be based. No human rights treaty provision directly
addresses the return of IDPs. Of course, the act of movement inherent in IDP returns
might plausibly be grounded in the well-recognized human right to freedom of move-
ment.34 However, the way in which the right to freedom of movement is framed in
human rights treaties provides little basis for the far-reaching and apparently uncondi-
tional obligations to ensure voluntary, safe and dignified return that are articulated by
Guiding Principle 28(1).35
Yet, despite the fact that return is one of the areas where the IDP protection stand-
ards codified in the Guiding Principles appear to be at their ‘softest’, a survey of human
rights treaty body practice shows that they often draw on Guiding Principle 28(1) to
interpret the legal scope of the State obligations at play under the pertinent treaty in
contexts of IDP return. This trend can be illustrated for the main UN and regional trea-
ties on civil rights:
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.
• 1966 International Covenant on Civil and Political Rights (ICCPR);36

• 1950 European Convention on Human Rights (ECHR)37 and its 1952
Protocol No 1 (ECHRP1)38 and 1963 Protocol No 4 (ECHRP4);39
• 1969 American Convention on Human Rights (ACHR);40
• 1981 African Charter on Human and Peoples’ Rights (ACHPR).41
For each human rights treaty body, a clear practice exists of referring to the far-reaching
IDP protection standards in Guiding Principle 28(1) to interpret human rights treaty
law in situations of IDP returns. As a consequence, the ‘soft’ law standards for IDP
return in the Guiding Principles are growing ever harder through this global process of
IDP law development.
3.2 Guiding Principle 28(1): human rights jurisprudence

Starting with the UN system, the Human Rights Committee (HRC) has repeatedly
used the Guiding Principles to interpret State obligations under the ICCPR in con-
texts of internal displacement.42 For IDP returns specifically, it has drawn on Guiding
Principle 28(1) to interpret State obligations under the rights to freedom of movement
and choice of residence in article 12 of the ICCPR:
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 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
displacement. Several others have done so in recent years,45 including in relation to the
issue of IDP returns.46
The same trend is evident, too, in regional human rights systems. In the Council
of Europe system, the European Court of Human Rights (ECtHR) has used the
Guiding Principles to help determine the scope of IDP-related obligations on States.
For instance, in a case against Turkey on the right to respect for the home under article
8 ECHR and the right to property under article 1 ECHRP1, the court held that:
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.
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
Rights has held that the content of obligations to ensure the rights to freedom of move-
ment and choice of residence in article 22 of the ACHR are, in situations of internal
displacement, to be derived from the Guiding Principles.49 In a case against Suriname,
the court expressly drew upon Guiding Principle 28(1) to determine extensive positive
obligations upon States in IDP returns, holding that:
[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>.
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
returns by IDPs take place in line with the terms of Guiding Principle 28(1) that
is applicable to all 55 AU Member States, all of whom are parties to the treaty.
This obligation is separate to any parallel obligations concerning IDP return that
are imposed by the ICGLR Protocol on IDPs and the Kampala Convention on
the comparatively smaller number of AU Member States that are parties to those
treaties.
3.3 New development of IDP law

This short survey demonstrates that, since the 2000s, practice by leading human
rights treaty bodies overseeing the most important UN and regional civil rights
treaties tends to frame the scope of human rights obligations in the context of IDP
returns by reference to Guiding Principle 28(1). The extent of this practice is strik-
ing. Indeed, despite diverse patterns of treaty ratification, almost every State in the
world is party to one or more of the treaties for which this practice has been docu-
mented.54 Thus, at least for Guiding Principle 28(1) on IDP returns, this pathway for
‘hardening’ the ‘soft’ law IDP protection standards in the Guiding Principles has legal
implications at a global level.55
At the same time, this pathway for the development of IDP law has substantive fea-
tures that distinguish it from the regional and national law pathways that have been
documented by existing legal scholarship. Most obviously, the practice of human rights
treaty bodies moulds existing ‘hard’ human rights norms to the ‘soft’ law Guiding
Principles, rather than providing an independent legal basis for IDP law as in the other
two main pathways.
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.
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
in these decisions on IDP returns suggests an attitude of consent or acquiescence with
treaty body practice in this particular area.
Yet this pathway has a more direct relationship with the Guiding Principles, as the
main global point of shared reference for the emerging IDP law field, than some of the
developments at regional and national levels. Indeed, across the jurisprudence devel-
oped by the different human rights treaty bodies, the Guiding Principles represent a
more consistent point of reference than in the national and regional pathways of IDP
law development, where the relationship to the Guiding Principles is more variable
and disparate in the forms that it assumes. In other words, it is easier here to discern a
‘hardening’ of the protection standards in the Guiding Principles, rather than the con-
solidation of IDP law through the creation of new rules. At the same time, this raises
important questions – to be addressed below – about the extent to which this process
of IDP law development is reliant on the underlying human rights law principles in
those treaties as opposed to the Guiding Principles as an independent source.
Finally, due in part to its distinctive features, the apparent consolidation of this com-
plementary global pathway for IDP law development serves also to direct our attention
back towards foundational debates in the IDP field about the relationship between IDP
protection standards and wider bodies of international law. On the one hand, it sug-
gests the emergence of new forms of connection and interaction between IDP protec-
tion standards and human rights law. On the other, it calls for a reassessment of the legal
relationship between IDP and refugee protection. Building upon this study of Guiding
Principle 28(1), it is to the consideration, in turn, of each of these crucial questions for
IDP protection that the analysis now shifts.
4. G U I D I N G P R I N C I P L E 28(1): I D P P ROT E CT I O N STA N DA R D S

A N D H U M A N R I G H TS L AW
The Guiding Principles claim that they ‘reflect and are consistent with international
human rights law and international humanitarian law’.57 If so, then reading Guiding
Principle 28(1) back into the human rights treaty law from which it purportedly derives
seems unproblematic: it should merely specify how broad duties in that body of law
apply to IDP returns. However, scholars agree that it is not always easy to draw the line
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.
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
from the underlying ‘hard’ law on which they purport to rest, first, in relation to the
nature of the underpinning rights and, secondly, in the derogability of the underlying
obligations. The point here is not (just) to show that Guiding Principle 28(1) departs
from the ‘hard’ law on which it is based. Rather, it is to suggest that the interpretative
use of Guiding Principle 28(1) by human rights treaty bodies actually involves a reshap-
ing, rather than just an interpretation, of the scope of underlying human rights law.
An intriguing new form of interaction between IDP protection standards and human
rights law thus appears to be emerging.
4.1 IDP returns: nature of the underpinning rights

The basic ‘interpretative’ rationale of the Guiding Principles implies that the ‘soft’ law
standards on IDP returns set out in Guiding Principle 28(1) should merely reflect and
interpret rights that are already protected under human rights law. In this regard, the act
of return most obviously engages the right to freedom of movement, which is expressed
by each of the main human rights treaties canvassed above.
However, closer examination of the jurisprudence on Guiding Principle 28(1) sug-
gests that IDP returns can, in fact, engage several distinct human rights. For instance,
whereas the Inter-American Court deals with the issue of IDP returns under the rights
to freedom of movement and choice of residence, the ECtHR addresses it as a matter
of property rights and the right to respect for the home.59 Indeed, the jurisprudence
clearly shows that the act of return by IDPs – which encompasses interests in travel to
the home location and in access to the dwelling there – can actually be protected by sev-
eral different rights, including the right to freedom of movement,60 the right to choice of
residence,61 the right to respect for one’s home,62 and the right to property.63 Each right
is expressed in broadly similar terms by the main UN and regional human rights trea-
ties (with the exception of property rights, that appear only in the regional treaties).64
Given that each human rights treaty body reaches the same ultimate conclusion –
namely that the scope of State obligations towards IDP returns is to be construed in
line with Guiding Principle 28(1) – the fact that they locate these obligations under dif-
ferent rights might seem irrelevant. However, maintaining a distinction between these
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.
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
also that they reflect distinct forms of personal attachment to the place.65 For instance,
in balancing competing rights of access to a dwelling, property rights are likely to be
given particular weight. By contrast, the rights to freedom of movement and choice of
residence are contingent on the person being ‘lawfully’ in the territory,66 a condition
that is not necessary for property or home rights. Overall, as a matter of human rights
treaty law, we can conclude that the return of IDPs to their homes is not just a matter of
right but of rights, each of which has its own character, conditions, and weighting in the
interplay between legal rights and obligations.
Moreover, attention to the relevant treaty provisions shows that none of the four
rights is absolute, that is, the treaties allow States to restrict how they are exercised.67
This is of crucial importance in the context of internal displacement since States will
sometimes need to prevent or restrict IDP returns, for instance due to competing
rights to a dwelling, threats to the safety of returning IDPs, or the risk of compromising
military operations. At the same time, while the principles determining the legality of
restrictive measures are broadly similar across the different rights and treaties, they are
not expressed in identical terms (neither for the same right in different treaties nor for
different rights in the same treaty).68 This suggests that the outer limits of these rights
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.
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
flattens out the different kinds of rights attachments to a place and fails to recognize
the possibility of lawful restrictions on the return of IDPs. As a result, it also offers
no way for States to balance and assess competing claims to a home in the context of
IDP returns. In short, Guiding Principle 28(1) does not accurately reflect the extent
of underlying treaty obligations of States to respect, protect, and fulfil the four rights
relevant to such fundamental aspects of IDP returns as travel across a territory to the
former home and access to that specific dwelling.
4.2 IDP returns and obligations during emergencies

Similarly, the standards for IDP returns set out in Guiding Principle 28(1) do not take
account of States’ powers to lawfully derogate from certain human rights treaty obli-
gations during emergency situations. Yet each of the main human rights treaties can-
vassed above (except the ACHPR) recognizes that State duties vis-à-vis the four rights
relevant to IDP returns can be subject to lawful derogation during emergencies (in
other words, none of those four rights is non-derogable in character).69 Variations in the
framing of the principles governing lawful derogation in each treaty are quite minor.70
Nonetheless, the mere fact that derogation is permitted from State duties towards these
rights shows that obligations in this area are not fixed but can be suspended temporarily
if strictly required by the particular exigencies of the emergency.
Many serious internal displacement crises take place during war, disasters, and other
emergencies.71 Against this factual backdrop, the fact that Guiding Principle 28(1) does
not recognize that State obligations towards the rights protecting IDP returns may be
suspended in these circumstances has significant implications. In particular, the terms
of Guiding Principle 28(1) would suggest that a State whose very existence is threat-
ened by a serious emergency retains a potentially far-reaching set of obligations to
ensure and facilitate the voluntary, safe and dignified return of IDPs, regardless of the
additional risks that this might pose to its already weakened capacity or its ability to
attend to other equally, or more, pressing social concerns among other displaced and
non-displaced populations.
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).
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
humanitarian law imposes only narrow return obligations and in situations where a bel-
ligerent State has assumed direct control over ‘protected persons’ during international
conflict.74 Moreover, treaty law in that field also provides additional grounds for States
to lawfully interfere with IDP returns for reasons related to the conflict.75 This further
narrowing of legal protection for IDP returns during armed conflict is also absent from
Guiding Principle 28(1).76
4.3 The Guiding Principles: reshaping human rights law?

Based on this analysis, we can conclude that Guiding Principle 28(1) is one of those
provisions of the Guiding Principles where the line between norm creation and norm
restatement is not easily drawn. Specifically, it departs from the underlying human
rights treaty law by: (a) flattening out the different types of rights attachment to a
home; (b) ignoring their non-absolute nature and the potential for lawful State interfer-
ence; and (c) failing to acknowledge the power of States to derogate lawfully from their
obligations towards those rights during emergencies. This is to say nothing of questions
about how the far-reaching duty asserted in Guiding Principle 28(1) to ensure that
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).
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-
ies to interpret the scope of those underlying human rights treaty obligations.78 This
practice, and its prevalence among those treaty bodies, suggests that, in the specific
context of IDP returns, the underlying human rights treaty obligations are now being
reshaped in line with the ‘new’ norms expressed by Guiding Principle 28(1). In other
words, it would seem that this pathway for the development of IDP law has reversed the
original direction of normative travel.
This is a startling conclusion. Clearly, it does not mean that human rights obligations
towards rights such as the freedom of movement are generally to be understood in this
manner. Nonetheless, it does suggest that the scope of those obligations and rights in
the specific context of IDP return are now being interpreted by reference to ‘soft’ law
standards in the Guiding Principles that depart from the basic rules that they purport to
reflect. In this respect, it reopens long-dormant discussions about the relationship and
interaction between IDP protection standards, such as those expressed in the Guiding
Principles, and human rights law.
Even so, it should be acknowledged that the practice by human rights treaty bodies
is not completely consistent in this area. For instance, while two of the ECtHR’s most
recent judgments frame IDP return in the language of voluntariness, safety and dignity
expressed by Guiding Principle 28(1),79 the court actually establishes greater continu-
ity with the more nuanced and context-sensitive approach in its wider jurisprudence on
the underlying property and home rights.80 At least for the issue of return, then, these
judgments suggest that the nature of the interaction between human rights law and the
IDP protection standards expressed in the Guiding Principles remains a point of legal
contention and debate.
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.
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.
Yet this terminology also clearly echoes language in the refugee field, which calls for
refugee repatriation to comply with principles of voluntariness, safety and dignity. The
inclusion of such terms in Guiding Principle 28(1) thus raises a question about its rela-
tionship to the parallel field of refugee law. Meanwhile, the increasing ‘hardening’ of
this IDP protection standard via national, regional, and global pathways over the past
20 years suggests a need to revisit our understanding of the wider relationship between
the IDP and refugee protection fields.
Such questions about the relationship between these two fields lay at the very heart
of foundational debates about IDP protection during the 1990s and early 2000s. Since
then, however, those debates have gone largely into abeyance. The following analysis
suggests that this was because those questions appeared to be resolved by the Guiding
Principles and other contemporaneous legal developments that drew a sharp legal dis-
tinction between IDPs and refugees. However, it goes on to propose that this consen-
sus be revisited not only in view of developments over the past 20 years in the wider
field of IDP law but also in light of links to the refugee field that are implicit in Guiding
Principle 28(1). In other words, while IDPs may not be identical to refugees, the legal
distinction is not as sharp as is sometimes assumed.
5.1 Refugees: at the heart of IDP debates

Many of the significant legal and conceptual controversies around IDPs, especially dur-
ing the 1990s and early 2000s, turned on questions about the relationship between IDP
protection and refugee protection. These agenda-setting debates took various manifes-
tations, including intense and sometimes choleric disputes about: (a) whether treating
IDPs as a distinct category of international (or even scholarly) concern would under-
mine refugee protection;81 (c) what role, if any, UNHCR should have with IDPs;82 and
(c) what constituted the legal basis for IDP protection standards, including whether the
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
refugee regime should or could be amended or extended to include IDPs as ‘refugees

who have not crossed a border’.83
Interest in the legal aspects of these questions seems largely to have evaporated since
then. In part, this may be because developments in the sphere of practice during the
1990s appeared to resolve those questions in a quite definitive fashion by drawing a
sharp legal and conceptual distinction between IDPs and refugees. Imperative political
and practical reasons certainly existed at the time to push the Representative of the
Secretary-General and others towards adopting and promoting this approach, espe-
cially given the concern of States and other powerful actors about addressing the IDP
issue at an international level. Nonetheless, the result was that this sharp distinction
found itself embedded in a range of key legal and policy sources.
The Guiding Principles, for instance, are based on a rejection of claims that IDPs
are just refugees who have not crossed a border, or that refugee law can accommodate
IDPs.84 Instead, the drafters of the Guiding Principles posited fundamental differences
in the protection required by IDPs and refugees, namely that the gap in legal protection
addressed by refugee law had no direct parallel for IDPs, for whom the gap in protec-
tion was one of enforcement.85 As a result, IDP protection standards could legitimately
be derived from existing human rights law and international humanitarian law,86 no cre-
ation or modification of treaties was required,87 and refugee law was relevant only ‘by
analogy’.88 With the increasing ubiquity of the Guiding Principles, this sharp legal dis-
tinction became ever more entrenched.
It is apparent also in the outcome of debates during the 1990s about the terms of
UNHCR engagement with IDPs. As a point of departure, UNHCR’s ‘core’ mandate
for refugees was well established by its Statute and later UN General Assembly and
Economic and Social Council resolutions.89 By contrast, the role that it was given
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
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)
within the ‘reach of the international community’,92 IDPs instead remain firmly within
the ‘domestic affairs’ and national jurisdiction of their own State.
5.2 Softening the edges of the refugee–IDP distinction

Clearly, parity between the legal situation of IDPs and refugees cannot be assumed,
given that the starting point of legal protection for each category of person appears to
be quite distinct. However, even if a firm legal distinction between the two categories
nowadays seems self-evident, the analysis that follows suggests that the dividing line
may be too sharply drawn. At the outset, it is important to emphasize that this is not
to argue that the two categories are the same or that they can unthinkingly be equated.
Rather, it is to say only that there may be more points of commonality, contact, and
overlap between the two legal fields than is commonly acknowledged and that the
implications of this fact require renewed consideration.
On a practical note, the fields of application of refugee law and IDP law are not always
entirely distinct. In contrast to the clearly ‘international’ nature of the refugee’s situa-
tion,93 IDPs are often cast as persons who have not crossed a border.94 Yet, in practice,
this distinction does not always hold true as there are scenarios where IDPs can also be
refugees or when both IDP and refugee law might apply concurrently. One example is
that of refugees who repatriate but then face a situation of internal displacement in their
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.
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
UNHCR, the distinction between IDPs and refugees may also be less definitive than is
sometimes assumed. Clearly, UNHCR’s mandate for refugees is better established than
it is for IDPs. However, at the same time, the rules of territorial sovereignty mean that
any action by UNHCR (or the ‘international community’) on a State’s territory usually
requires that State’s consent, whether it is for the benefit of IDPs or refugees.95 Arguably,
then, any difference in this legal aspect of access to those populations by UNHCR may
lie more in the way that the host State’s consent is conditioned in each scenario.96
Furthermore, the legal requirement that UNHCR engagement with IDPs in any par-
ticular country be authorized by a competent UN organ (a requirement that does not
exist for its engagement with refugees) appears to be tempered by international prac-
tice over the past 20 years. Not only is UNHCR’s IDP mandate clearly distinct from its
cluster lead responsibilities,97 but IDP operations undertaken on UNHCR’s initiative
seem to have been authorized post hoc by the General Assembly or other UN principal
organs.98 In that respect, even UNHCR’s own strategy now promotes a ‘more predictable’
response to IDPs by the agency.99 Based on the public record, then, States seem largely
content to acquiesce in, and even endorse, UNHCR’s legitimate interest and initiative to
engage with IDP situations, as well as greater consistency in its response to IDPs.
Another important area of the law where the distinction between IDPs and refu-
gees may be softening is in the applicable standards for protection. Indeed, many of
the standards in human rights law are viewed as relevant not only to IDPs but also to
refugees and asylum seekers. This relevance of human rights standards to refugee pro-
tection has been increasingly recognized in the scholarly literature.100 Of course, some
95
The only clear exception is action authorized by the UN Security Council acting under Chapter
VII of the UN Charter (n 89).
96
Thus, UNHCR’s mandate for engagement with IDPs might be framed as following from certain
political decisions, particularly involving the giving of consent by the State in whose territory the
IDPs are located and the authorization of competent UN organs. By contrast, one might posit
that UNHCR’s refugee mandate exists a priori and thus itself conditions any withholding of such
consent ab initio.
97
UNHCR has apparently engaged in IDP situations other than humanitarian emergencies where
a coordinated UN response has been activated, thus confirming that its IDP mandate is distinct
from its cluster responsibilities.
98
A recent example of this tendency is UNGA res 71/172 (19 December 2016) para 1, referring
to the IDP operations enumerated in the Report of the United Nations High Commissioner for
Refugees: Covering the Period 1 July 2015 – 30 June 2016, UN doc A/71/12 (2016): see paras 24
and 41.
99
UNHCR, UNHCR’s Strategic Directions 2017–2021 (16 January 2017) 14.
100
See eg Tom Clark and François Crépeau, ‘Mainstreaming Refugee Rights: The 1951 Refugee
Convention and International Human Rights Law’ (1999) 17 Netherlands Quarterly of Human
Rights 389; James C Hathaway, The Rights of Refugees under International Law (Cambridge
University Press 2005); Jane McAdam, Complementary Protection in International Refugee Law
(Oxford University Press 2007); Cantor (n 55).
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
crucial point of convergence or commonality under international human rights law.
Finally, we can observe that human rights law seems particularly relevant to address-
ing many of the more displacement-specific vulnerabilities of both refugees and IDPs,
such as protection against arbitrary displacement and reparations for displacement.102
Indeed, as the following section will show, for the principles of voluntariness, safety
and dignity in both IDP returns and refugee repatriations, the displacement-specific
international law standards of protection for IDPs and for refugees are not only derived
principally from human rights law, but seem largely to march in line. In framing this
analysis of returns, though, the examples discussed thus far suggest that the legal dis-
tinction between IDP protection and refugee protection should no longer be treated as
absolute or unyielding.
5.3 Return conditions: a meeting point for IDP and refugee law
Guiding Principle 28(1) offers one substantive point of intersection between the IDP
law and refugee law fields. It purports to express underlying but potentially far-reaching
legal obligations to establish conditions, and provide the means, to allow IDPs to return
‘voluntarily, in safety and with dignity’ to their homes. In other words, States (and
potentially other ‘competent authorities’) possess a duty not only to facilitate returns
but to ensure certain qualitative conditions in those returns, namely voluntariness,
safety and dignity. However, these principles – the legal content of which is unclear on
the face of Guiding Principle 28(1) – are not derived directly from treaties on human
rights or international humanitarian law.
Instead, the principles of voluntariness, safety and dignity originate in international
law and policy on refugee repatriation.103 Indeed, the concept of ‘voluntariness’ in refu-
gee repatriation has enjoyed consistent usage since the inception of the international
refugee regime in the 1920s.104 The linked concepts of ‘safety and dignity’ have been a
key strand of UNHCR policy on refugee repatriation (and other aspects of refugee pro-
tection) from the start of the 1980s, although similar concepts have a longer history of
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.
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
of Guiding Principle 28(1), the terms cannot be treated merely as empty vessels devoid
of meaning. Rather, at the point of their inclusion in the Guiding Principles, they were
already infused with a pre-existing set of meanings in the closely related field of refugee
protection. Such consistency in meaning is further indicated by the fact that UNHCR,
which led the conceptual development of these terms in the refugee field, was directly
involved in promoting their application to IDP returns in the Balkans.107
What, though, of the specific legal content of these terms in each field? For the prin-
ciple of ‘safety and dignity’, an existing study by the author shows that UNHCR policy
in the refugee field developed two closely related sets of meanings over time, as either:
(a) respect for the physical integrity of the returnee; or (b) the establishment of condi-
tions for the exercise of basic human rights.108 The crucial point here, though, is that
the standards of protection implied by these interpretations are drawn directly from
human rights law rather than refugee law per se. As such, their transposition from the
refugee field to the IDP field, and specifically to the context of IDP returns, is legally
quite straightforward.109
For the principle of ‘voluntariness’, by contrast, one might expect greater divergence
in legal meaning between the IDP and refugee contexts.110 However, despite their
opposing legal starting points, the content of the legal protection implied by this prin-
ciple converges considerably in its practical application in each context, whether this
corresponds to situations of enforced return/repatriation by the authorities or to sce-
narios in which voluntary return/repatriation is prevented by the authorities.111 Here
too, the legal content of the principle is derived largely from human rights law norms,
even if the specific rights in play differ for IDPs and refugees.112
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.
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-
ciple that voluntarily repatriating refugees should be able to return not only to their
country but to their homes therein.113 Clearly, here, the distinction between refugee
protection and IDP protection cannot, and should not, be too sharply drawn.
5.4 Revisiting the IDP–refugee debate

Examination of the principles of voluntariness, safety and dignity in Guiding Principle
28(1) sheds light on one overlooked area of interaction between the international
frameworks for the protection of IDPs and refugees. In so doing, it extends the cri-
tique (developed earlier in this part) of the sometimes unduly sharp distinction that has
been often drawn between the fields of IDP protection and refugee protection. Overall,
this new understanding of the framework pertaining to IDP returns, especially when
taken in the context of the wider analysis advanced at the start of this part, suggests that
more careful analysis may be required in future scholarship in order to distinguish true
points of convergence and difference between the two legal fields. Indeed, it may be
that, just as parity between the legal situation of refugees and IDPs cannot be assumed
on a general basis, neither can inherent difference be assumed to reign in all aspects of
the respective protection regimes.
Ultimately, this suggests that the foundational legal debate on the relationship
between IDP and refugee protection must be revived to admit a more nuanced
approach. Yet taking this step also opens the door to other productive enquiries about
where and when perspectives from one legal field might usefully inform, or be read
across to, the other. To take but one example, the doctrinal analysis of how and when
lawful restrictions to the return of IDPs can be imposed by States provides a useful
starting point for interpreting parallel criteria where States seek to prevent the volun-
tary repatriation of refugees.114 Moreover, as ‘soft’ IDP protection provisions such as
Guiding Principle 28(1) assume ever more diverse ‘hard’ law forms, such ‘crossover’
interpretative work will become increasingly important.115
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.
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
of IDP law. This has been partially documented by a disparate group of interested legal
scholars at the level of national law in countries affected by internal displacement and
at the regional level in the two IDP treaties adopted in Africa. Drawing together these
legal developments at the regional and national levels, this article suggests that IDP law
is emerging as a legal field with certain distinctive features. The analysis presented also
extends our understanding of this field by pointing to an additional distinct pathway
through which provisions of the ‘soft’ IDP law IDP protection framework expressed by
the Guiding Principles are shaping ‘hard’ human rights law norms of global significance.
Based on a case study of Guiding Principle 28(1) and its normative standards for
IDP returns, this article also shows that the processes of IDP law development over
the past 20 years point to a need to revive and reconsider at least three foundational
legal debates in the IDP field. First, the identification of IDP law as an emerging legal
field generates new questions about its distinct nature as compared to other legal fields.
Secondly, it points to a more complex relationship between IDP protection standards
and wider human rights law than has thus far been acknowledged. Thirdly, it suggests
that the legal distinction between IDPs and refugees may not be as sharply drawn as
is sometimes assumed, such that a more nuanced understanding might now be intro-
duced into the original legal debate on this relationship. Overall, though, the article
shows that IDP law 20 years after the promulgation of the Guiding Principles remains a
vibrant, unique, dynamic, and still unsettled legal field, eminently worthy of study and
debate.

Article 20 The IDP in International Law’ Developments, Debates, Prospects.

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Article 20 The IDP in International Law’ Developments, Debates, Prospects.

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International Journal of Refugee Law, 2018, Vol 30, No 2, 191–217

‘The IDP in International Law’?

2.1 Guiding Principles: global standards, ‘soft’ law

2.2 ‘Hard’ IDP law: national and regional developments

despite the existence of a well-established parallel body of scholarship on refugee law,

3.1 The Guiding Principles: special protection for IDP returns

• 1966 International Covenant on Civil and Political Rights (ICCPR);36

3.2 Guiding Principle 28(1): human rights jurisprudence

3.3 New development of IDP law

4. G U I D I N G P R I N C I P L E 28(1): I D P P ROT E CT I O N STA N DA R D S

4.1 IDP returns: nature of the underpinning rights

4.2 IDP returns and obligations during emergencies

4.3 The Guiding Principles: reshaping human rights law?

5.1 Refugees: at the heart of IDP debates

refugee regime should or could be amended or extended to include IDPs as ‘refugees

5.2 Softening the edges of the refugee–IDP distinction

5.4 Revisiting the IDP–refugee debate

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