How Hard is Soft Law? The Guiding Principles on Internal Displacement and the Need for a Normative Framework

Walter Kälin
Walter Kälin Former Brookings Expert

December 19, 2001

In 1998, the Representative of the UN Secretary-General on Internally Displaced Persons, Dr. Francis Deng, presented the “Guiding Principles on Internal Displacement” to the UN Commission on Human Rights in response to a request to prepare an “appropriate framework” for addressing the plight of internally displaced persons (IDPS) . The language of the resolution did not ask him to come up with a “legal” framework or to propose the text of a declaration on the rights of internally displaced persons but gave him a great deal of latitude to decide for himself what kind of framework would be “appropriate” under the circumstances. The Representative, thus, was confronted with the question of what form he should favor for the requested framework. Had they been asked at the time, many international lawyers and NGOs would probably have advised him to opt for a convention or, at least, a UN General Assembly declaration. The Representative did not choose this option. His Guiding Principles are neither a binding treaty nor a declaration adopted by the General Assembly after negotiations of the text by the Member States, but a set of non-binding guidelines submitted by the Representative after a prolonged period of preparation and discussion by legal experts and representatives of intergovernmental agencies and non-governmental organizations.

This choice reflected the considered opinion of Dr. Deng and his team of legal experts. They decided early on that a non-binding document restating existing law and making it specific to the context of displacement would be more appropriate than to prepare a convention on IDPs. They thought that such an approach would provide the Representative within a short period of time with a normative framework that would facilitate the carrying out of his mandate, while the elaboration of a treaty or declaration would lead to prolonged negotiations affecting or even blocking the possibility of using international human rights law effectively in the context of internal displacement for a long time. They were also convinced that a document based upon and reflecting existing international law would be sufficient to provide the necessary guidance to States, international agencies, NGOs and others dealing with IDPs.

To what extent were these considerations justified and to what extent can the approach taken by the Representative be regarded as “appropriate” for a normative framework on the rights of IDPs?

This short paper addresses this question on two levels. First, it will argue that the preparation of a treaty or even a General Assembly declaration would not have been a realistic option when it came to protecting IDPs. Second, it will show that despite their non-binding character, the Guiding Principles are not without legal significance and that the approach chosen by the Representative has specific practical advantages.

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