Legal basis of the Guiding Principles on the internally displaced

In the wake of the formulation of the Guiding Principles (GPs) by the UN, concern was expressed by some academics and representatives to the United Nations General Assembly as to GPs' legal nature, because they do not form a binding treaty. In an accompanying article in this web special, Hasabo Muhammad Abud al-Rahman of the Sudanese government said that the GPs could not be ratified by Khartoum until they had been endorsed by the Security Council.

The GPs are based on international laws drafted by governments and reflect those laws. They were formulated as guidelines to ensure that they could be drawn up quickly. They were not intended to confer a special status on internally displaced persons (IDPs). Instead, as one leading scholar on the GPs, Roberta Cohen, has noted, they were designed to make clear the legal rights of IDPs, or, in other words, to facilitate the empowerment of the latter.

Analyst John Young told IRIN: "While some legal analysts say they expect the GPs to eventually be accepted as binding laws or to become the basis of an international treaty, most have been concerned to ensure that they are given wide application and are integrated into the work of international, regional, and national actors. At the International Colloquy on the GPs in Vienna in September 2000 there was broad agreement that their application would afford them a degree of standing sufficient for them to be equated with the force of the law" [More details].

In this respect, a multifaceted endeavour is under way. At the international level, the GPs have been integrated into the work of the UN human rights treaty bodies, the country and thematic mechanisms of the UN Commission on Human Rights, the Office for the Coordination of Humanitarian Affairs-led Inter-Agency Standing Committee and the work of its individual members, international criminal tribunals, and the UN Security Council.

However, there have been some concerns, expressed mainly by NGOs, that the concern with human rights has not produced more efforts to empower IDPs. While efforts are being made to have the GPs translated into increasing numbers of local languages, the demand is greater than available resources. The Geneva-based IDP Unit is exploring the use of radio to inform IDPs of their rights, and even examining innovative notions of presenting the GPs in culturally sensitive forms by demonstrating their compatibility with Shari'ah, or Islamic law. The Office for the Coordination of Humanitarian Affairs and the Brookings Institution have in turn published "The Handbook for Applying the Guiding Principles" and the "Manual on Field Practice" (copies of which are available under the "Key documents" section of this web special).

Analysts say an area yet to be explored is that of the implications of the GPs with respect to the responsibility of private companies such as Talisman in Sudan and Shell in Nigeria, which critics have accused of fostering the displacement of people. It is also appreciated that peacekeepers who work in the context of IDPs should be provided with a knowledge of the GPs as part of their human-rights training.

The establishment by the Security Council of international criminal tribunals for former Yugoslavia and Rwanda, and the continuing efforts to set up an International Criminal Court provide opportunities for the GPs to gain further legitimacy. It is also held by many leading scholars on IDPs, including Bill Frelick and Roberta Cohen, that UN agencies must become more active in advocacy - despite the difficulties inherent to this due to sensitivities of national governments.

Under the GPs there is also a need to involve IDPs in such efforts. Continental organisations, such as the African Union, and regional bodies, including the Southern African Development Community, the Economic Community of West African States, the Inter-Governmental Authority on Development and their counterparts in other parts of the world are giving increasing attention to the GPs. However, their efforts have yet to be assessed and analysts say that it must be ascertained whether such bodies in turn can monitor and even discipline member states which are not in compliance with the GPs.

One area that is agreed is that the main focus for implementing the GPs lies with national governments. And herein lies a major difficulty. As Francis Deng points out: "Governments are more interested in seeking assistance from the international community than they are responsive to human-rights monitoring and ensuring protection. They are also more willing to recognise and address the humanitarian consequences of displacement than they are to find solutions to the underlying causes."

With that in mind, the International Colloquy on the Guiding Principles on Internal Displacement held in Vienna in September 2000 concluded that efforts must still be made to inform the various relevant organs of the state, rebel organisations, and indigenous NGOs about their responsibilities under the GPs. Judges and security services in particular should be singled out for training on the GPs and their relevance to national laws. The media, and significantly radio, because it has the longest reach, must be utilised.

But questions have also arisen with respect to failed states as to what alternative mechanisms or bodies there are to disseminate and implement the GPs. One analyst told IRIN: "It must also be impressed upon armed movements challenging governments that by virtue of their actions they have assumed responsibilities for IDPs, and where they either do not have the capacity or the inclination to discharge their responsibilities, then NGOs and the international community must directly - to the extent they are capable of - take on the task."

As noted in an accompanying article [see Sudan: Displaced caught in the crossfire], Sudanese government officials in August 2002 participated in a two-day seminar on the GPs organised by the IDP Unit in the Sudanese capital, Khartoum, while a similar seminar for the rebel Sudan People's Liberation Movement/Army was held in southern Sudan in September. Similar plans are being pursued to educate officials of indigenous Sudanese NGOs to enable them not only to educate IDPs but also assume an advocacy role.

But insufficient resources are available to provide IDPs with knowledge of their rights and hence the capacity to ensure that these can be exercised. When IDPs are in widely dispersed rural areas and originate from many cultural and linguistic backgrounds, such efforts will invariably be time-consuming and expensive. But it is agreed that the bottom-line defence of the rights of the IDPs cannot advance very far if the victims are not informed of their rights.

Analysts also say that national, regional, and international information networks must be encouraged to disseminate the GPs to a wide audience. One such network which has proved invaluable is the Global IDP Database operated in Geneva by the Norwegian Refugee Council, which collects data on internal displacement, monitors implementation of the GPs and assesses country situations from a protection perspective. A second initiative is that of the Permanent Consultation on Internal Displacement in the Americas, which is made up of international organisations, NGOs, and experts. Academic institutions are also being encouraged to collect data, assess levels of implementation of the GPs at the national level, and provide needed critiques of the relevant UN agencies.