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The protection and assistance of internally displaced persons and the creation of customary international… Hurst, Lauren 2010

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 The
Protection
and
Assistance
of
Internally
Displaced
Persons
and
the
 Creation
of
Customary
International
Law
 
 
 
 
 
 
 by
 
 Lauren
Hurst
 
 B.Soc.Sc.,
University
of
Ottawa,
2009
 
 
 
 
 
 A
thesis
submitted
in
partial
fulfilment
of
the
requirements
for
the
degree
of

 
 Master
of
Arts
 
 in
 
 The
Faculty
of
Graduate
Studies
 (Political
Science)
 
 
 
 
 
 The
University
of
British
Columbia
 (Vancouver)
 
 
 
 
 
 
 September
2010
 ©
Lauren
Hurst,
2010
  Abstract
  
 Since
the
mid‐1990s,
internally
displaced
persons
have
outnumbered
refugees
2
to
 1
 in
 most
 emergencies.
 
 These
 are
 dire
 statistics,
 but
 I
 have
 been
 encouraged
 by
 recent
 response
 developments:
 the
 African
 Union
 adopted
 in
 October
 of
 2009
 the
 Kampala
 Convention
 for
 the
 Protection
 and
 Assistance
 of
 Internally
 Displaced
 Person
 in
 Africa,
 and
 the
 International
 Conference
 on
 the
 Great
 Lakes
 Region
 Pact
 on
 Security,
 Stability
 and
 Development,
 which
 includes
 the
 Protocol
 on
 the
 Protection
 and
 Assistance
 to
 Internally
 Displaced
 Persons,
 and
 which
 entered
 into
 force
in
June
of
2008.
These
two
hard
law
documents
are
based
on
the
1998
Guiding
 Principles
on
Internal
Displacement,
which
is
considered
to
be
a
soft
law
document.
 With
this
foundation,
my
thesis
seeks
to
examine
whether
these
African
responses
 to
 internal
 displacement
 can
 have
 an
 impact
 outside
 the
 continent’s
 borders
 through
customary
international
law.


 
 I
 argue
 that
 while
 it
 is
 still
 early
 to
 determine
 the
 full
 influence
 of
 the
 Kampala
 Convention
and
the
Great
Lakes
Protocol,
these
two
initiatives
are
indeed
legitimate
 building
 blocks
 toward
 a
 generally
 applicable
 rule
 of
 customary
 international
 law.

 We
 should
 anticipate
 growing
 reference
 to
 them,
 and
 to
 the
 African
 experience
 in
 general,
 as
 issues
 of
 internal
 displacement
 increase
 in
 regions
 across
 the
 globe.

 However,
 before
 this
 normative
 framework
 can
 become
 binding
 international
 law,
 we
 will
 likely
 need
 to
 see
 more
 conventionally
 powerful
 states
 also
 adopt
 similar
 Guiding
 Principles‐based
 initiatives.
 
 To
 support
 this
 statement,
 I
 outline
 the
 hardening
 process
 of
 soft
 law
 and
 the
 creation
 process
 of
 customary
 international
 law,
 and
 find
 that
 international
 legal
 theory
 suggests
 that
 African
 leadership
 can
 indeed
initiate
global
norm
development.

I
also
found,
however,
that
the
potential
 of
 these
 two
 African
 instruments
 could
 not
 be
 wholly
 explained
 by
 law,
 and
 thus
 turned
to
international
relations’
theory
for
supporting
analysis.

 
 
 
 
 
  
  ii
  Table
of
Contents
 
 
  Abstract.......................................................................................................................................ii
 Table
of
Contents ................................................................................................................... iii
 Acknowledgements................................................................................................................iv
 Introduction ..............................................................................................................................1
 The
Value
of
the
Guiding
Principles
as
Binding
Law ...................................................9
 The
“Hardening”
of
Soft
Law ............................................................................................. 14
 The
Creation
of
Customary
International
Law ........................................................... 23
 Regional
Organizations
and
the
Creation
of
Customary
International
Law..... 29
 Power
and
Customary
International
Law .................................................................... 41
 Conclusion............................................................................................................................... 55
 Works
Cited ............................................................................................................................ 57
 
  
  iii
  Acknowledgements
  
 I
would
like
to
thank
my
supervisors
Dr.
Michael
Byers
and
Dr.
Thomas
Bennett
for
 their
direction
and
confidence,
as
well
as
Dr.
Richard
Price
for
serving
as
second
 reader.
 
 I
appreciate
the
financial
support
of
the
Social
Sciences
and
Humanities
Research
 Council
of
Canada,
and
the
assistance
of
the
Department
of
Public
Law
of
the
 University
of
Cape
Town.
 
 The
motivation
and
encouragement
provided
by
my
colleagues
Megan
Morlock
and
 Zosia
Hortsing,
and
Cameron
Jelinski,
as
well
as
my
family,
have
been
invaluable.

 
  
  iv
  Introduction
 
  In
 2009,
 the
 highest
 number
 of
 internally
 displaced
 persons
 was
 recorded
 since
 1994:
 27.1
 million
 persons
 displaced
 by
 conflict
 and
 violence.1
 
 Though
 approximately
 5
 million
 people
 were
 able
 to
 return
 home
 in
 22
 countries,
 this
 number
is
overshadowed
by
the
6.8
million
persons
newly
displaced
in
23
countries
 that
same
year.2

While
the
greatest
new
displacement
is
from
South
and
South
East
 Asia,
 African
 states
 (Democratic
 Republic
 of
 Congo,
 Sudan,
 Somalia
 and
 Ethiopia)
 account
 for
 four
 of
 the
 top
 eight
 countries
 with
 the
 highest
 figures
 of
 new
 displacement.3
 
 2009,
 however,
 also
 brought
 positive
 new
 developments
 for
 internally
displaced
persons:
the
African
Union
(AU)
Convention
for
the
Protection
 and
Assistance
of
Internally
Displaced
Persons
in
Africa
(the
Kampala
Convention)
 was
 adopted
 by
 the
 AU
 in
 October.
 
 Additionally,
 by
 the
 end
 of
 the
 year,
 a
 total
 of
 sixteen
 countries
 globally
 had
 “adopted
 a
 national
 legal
 or
 policy
 framework
 specifically
 pertaining
 to
 the
 protection
 of
 IDPs
 displaced
 by
 armed
 conflicts
 and
 violence”,
 nine
 of
 these
 referring
 explicitly
 to
 the
 United
 Nations
 (UN)
 Guiding
  























































 1
The
Internal
Displacement
Monitoring
Centre
Global
Trends
Report,
considered
by
 many
 to
 be
 the
 leading
 source
 on
 internal
 displacement
 information,
 does
 not
 account
for
persons
displaced
by
natural
disasters
or
development
projects,
though
 these
 persons
 are
 included
 in
 the
 definition
 of
 an
 internally
 displaced
 person
 provided
by
the
Guiding
Principles
on
Internal
Displacement
(see
below).

If
these
 persons
were
also
included,
the
number
of
internally
displaced
persons
worldwide
 would
 be
 considerably
 higher.
 Internal
 Displacement
 Monitoring
 Centre
 (IDMC).
 Internal
Displacement:
Global
Overview
of
Trends
and
Development
in
2009.
(Geneva:
 Norwegian
Refugee
Council,
May
2010),
13
 2
IDMC
(2010),
15.
 3
IDMC
(2010),
13,
15.
 
  1
  Principles
 on
 Internal
 Displacement
 (Guiding
 Principles).4
 
 These
 developments
 build
 on
 the
 process
 surrounding
 the
 International
 Conference
 on
 the
 Great
 Lakes
 Region
 (ICGLR)
 Pact
 on
 Security,
 Stability
 and
 Development,
 which
 included
 the
 Protocol
 on
 the
 Protection
 and
 Assistance
 to
 Internally
 Displaced
 Persons
 (Great
 Lakes
 Protocol),
 and
 which
 entered
 into
 force
 in
 June
 2008.
 
 This
 Protocol
 now
 commits
the
“11
signatory
states
to
incorporating
the
Guiding
Principles
into
their
 domestic
laws
and
policies.”5
 Internally
displaced
persons
are
defined
by
the
Guiding
Principles
as

 “persons
 or
 groups
 of
 persons
 who
 have
 been
 forced
 or
 obliged
 to
 flee
 or
 to
 leave
 their
 homes
 or
 places
 of
 habitual
 residence,
 in
 particular
 as
 a
 result
 of
 or
 in
 order
 to
 avoid
 the
 effects
 of
 armed
 conflict,
 situations
 of
 generalized
 violence,
 violations
 of
 human
 rights
 or
 natural
or
human‐made
disasters,
and
who
have
not
crossed
an
internationally
recognized
 state
border.”6

  The
 key
 factors
 are
 therefore
 that
 a
 person
 or
 group
 of
 persons
 is
 involuntarily
 displaced,
 and
 that
 they
 have
 remained
 within
 their
 country
 of
 origin.
 
 By
 not
 crossing
 into
 another
 country,
 internally
 displaced
 persons
 are
 ineligible
 for
 the
 























































 4
IDMC
(2010),
24.
 5
IDMC
(2010),
24.
 6
 UN
 Commission
 on
 Human
 Rights,
 Report
 of
 the
 Representative
 of
 the
 Secretary­ General,
 Mr.
 Francis
 M.
 Deng,
 submitted
 pursuant
 to
 Commission
 on
 Human
 Rights
 resolution
1997/39,
Addendum,
Guiding
Principles
on
Internal
Displacement.
(UN
Doc.
 E/CN.4/1998/53/Add.2.
 Available
 from
 http://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html.
 Accessed
 December
 7,
 2009),
 para.
 2.
 In
 the
 Annotations
 to
 the
 Guiding
 Principles,
 Walter
 Kälin,
 explains
 that
the
definition
used
above
(which
is
also
the
definition
used
by
the
majority
of
 international
 organizations
 and
 scholars)
 is
 actually
 a
 description
 of
 internally
 displaced
 persons
 and
 not
 set
 out
 to
 be
 a
 definition.
 
 He
 adds
 that
 the
 “words
 ‘in
 particular’
 indicate
 that
 the
 listed
 examples
 are
 not
 exhaustive.”
 People
 involuntarily
 displaced
 by
 development
 projects
 may
 therefore
 still
 fit
 within
 the
 definition;
 however,
 “persons
 who
 move
 voluntarily
 from
 one
 place
 to
 another
 solely
 in
 order
 to
 improve
 their
 economic
 circumstances”
 do
 not.
 
 Walter
 Kälin.

 “Guiding
 Principles
 on
 Internal
 Displacement:
 Annotations
 (Revised
 Edition)”.
 Studies
in
Transnational
Legal
Policy,
American
Society
of
International
Law,
no.
38
 (2008),
3‐4.
 
  2
  assistance
and
protection
guaranteed
by
the
1951
Convention
relating
to
the
Status
 of
 Refugees
 and
 the
 additional
 1967
 Protocol.7
 
 Internally
 displaced
 persons,
 as
 citizens
 of
 the
 country
 in
 which
 their
 displacement
 occurred,
 already
 have
 recognized
 domestic
 and
 international
 rights
 through
 the
 human
 rights
 and
 humanitarian
 law
 available
 to
 all
 citizens.
 
 However,
 “the
 situation
 in
 which
 they
 find
themselves
differs
significantly
from
that
of
the
general
population.”8

Internally
 displaced
 persons
 are
 particularly
 vulnerable:
 “they
 may
 lose
 their
 property
 and
 access
to
livelihood;
they
run
a
high
risk
of
being
separated
from
family
members;
 they
may
be
discriminated
against
merely
for
being
displaced;
[and]
they
often
lack
 identity
 cards,
 which
 makes
 it
 more
 difficult
 for
 them
 to
 access
 basic
 services
 and
 prevents
 them
 from
 exercising
 their
 political
 rights.”9
 
 Furthermore,
 “IDPs
 remain
 under
 the
 formal
 protection
 of
 their
 own
 state,
 even
 though
 officials
 of
 that
 state
 may
 have
 deliberately
 caused
 their
 displacement.”10
 
 Understanding
 this
 situation
 























































 7
This
Convention
defines
a
refugee
as
a
person
who
“[o]wing
to
a
well‐founded
fear
 of
 being
 persecuted
 for
 reasons
 of
 race,
 religion,
 nationality,
 membership
 of
 a
 particular
social
group
or
political
opinion,
is
outside
the
country
of
his
nationality
 and
is
unable
or,
owing
to
such
fear,
is
unwilling
to
avail
himself
of
the
protection
of
 that
country;
or
who,
not
having
a
nationality
and
being
outside
the
country
of
his
 former
habitual
residence
as
a
result
of
such
events,
is
unable
or,
owing
to
such
fear,
 is
 unwilling
 to
 return
 to
 it.”
 Convention
 and
 Protocol
 Relating
 to
 the
 Status
 of
 Refugees,
Article
1A(2).

It
is
interesting
to
note
that
the
recognized
factors
creating
 internally
displaced
persons
are
broader
than
those
giving
rise
to
refugee
status.


 8
 Simon
 Bagshaw.
 “Responding
 to
 the
 Challenge
 of
 Internal
 Forced
 Migration:
 The
 Guiding
 Principles
 on
 Internal
 Displacement”
 in
 International
 Migration
 Law,
 Ryyszard
 Cholewinski,
 Richard
 Perruchoud
 and
 Euan
 MacDonald
 (eds.).
 
 (The
 Hague:
T.M.C.
Asser
Press,
2007),
191.
 9
John
Holmes.
“Foreword”,
Forced
Migration
Review,
no.
17,
(May
2003),
3.

 10
Joan
Fitzpatrick.

“The
Human
Rights
of
Refugees,
Asylum‐Seekers,
and
Internally
 Displaced
Persons:
A
Basic
Introduction”
in
The
Human
Rights
of
Refugees,
Asylum­ Seekers,
 and
 Internally
 Displaced
 Persons,
 ed.
 Joan
 Fitzpatrick.
 
 (New
 York:
 Transnational
Publishers,
2002),
5.
 
  3
  and
the
precariousness
of
the
protection
and
assistance
offered
to
the
displaced
by
 their
own
governments,
the
UN
recognized
that
international
standards
for
the
care
 and
 responsibility
 of
 these
 persons
 would
 be
 required.
 
 For
 this
 reason,
 UN
 Secretary‐General
 Boutros
 Boutros‐Ghali
 appointed
 Francis
 Deng
 as
 the
 first
 Representative
of
the
Secretary‐General
for
Internally
Displaced
Persons
(RSG‐IDP)
 in
1992.11
 
  As
 RSG‐IDP,
 Deng
 focused
 his
 efforts
 on
 raising
 awareness
 of
 the
 plight
 of
  internally
 displaced
 persons
 and
 on
 “developing
 a
 normative
 framework
 to
 meet
 [their]
protection,
assistance
and
development
needs”.12

To
achieve
this
framework,
 Deng,
 with
 a
 team
 of
 legal
 experts
 (including
 Walter
 Kälin,
 the
 current
 RSG‐IDP),
 compiled,
analyzed
and
restated
relevant
international
human
rights,
humanitarian
 and
 refugee
 law
 and
 found
 that
 “where
 the
 needs
 of
 the
 displaced
 are
 not
 sufficiently
 protected
 by
 international
 law,
 it
 is
 important
 ‘to
 restate
 general
 principles
 of
 protection
 in
 more
 specific
 detail’,
 and
 address
 the
 gaps
 in
 a
 ‘future
 international
instrument
on
the
protection
of
internally
displaced
persons’.”13

That
 instrument
 is
 the
 Guiding
 Principles,
 presented
 to
 the
 UN
 Commission
 on
 Human
 Rights
 (UNCHR)
in
 1998.
 
 The
 Guiding
 Principles
 “set
 forth
 the
 rights
 of
 internally
 displaced
 persons
 and
 the
 obligations
 of
 governments
 and
 the
 international
 community
 toward
 these
 populations.”14
 
 The
 Guiding
 Principles
 are
 not
 new,
 























































 11
Since
2004,
the
post
has
been
called
“Representative
of
the
Secretary‐General
for
 the
human
rights
of
Internally
Displaced
Persons.”
 12
Bagshaw
(2007),
190.

 13
Bagshaw
(2007),
192.
 14
Roberta
Cohen.
“The
Guiding
Principles
on
Internal
Displacement:
An
Innovation
 in
International
Standard
Setting”,
Global
Governance,
no.
10,
(2004),
459.
 
  4
  standalone
 law,
 but
 instead
 are
 based
 on
 articles
 from
 previously
 ratified
 treaties,
 supplemented
 by
 new
 standard‐setting
 initiatives
 in
 an
 effort
 to
 “both
 restate
 existing
norms
and
seek
to
clarify
grey
areas
and
fill
in
the
gaps.”15

This
foundation
 in
 existing
 international
 law,
 and
 the
 fact
 they
 were
 not
 written
 by
 state
 representatives,
 makes
 the
 Guiding
 Principles
 a
 particular
 case,
 which
 shall
 be
 explored
further
below.
 
  As
 a
 restatement,
 elaboration
 and
 supplementation
 of
 existing
 law,
 the
  Guiding
Principles
arguably
constitute
“soft
law”,
which
emerges
from
non‐binding
 instruments
such
as
“declarations,
resolutions
or
recommendations
by
international
 organizations”16,
like
the
UN
General
Assembly.

D.J.
Harris
explains
that
“soft
law”
is
 a
 useful
 concept
 “to
 describe
 instruments
 that
 clearly
 have
 an
 impact
 on
 international
relations
and
that
may
later
harden
into
custom
or
become
the
basis
of
 a
treaty.”17

The
Guiding
Principles
have
had
an
important
impact
on
international
 relations,
 most
 clearly
 demonstrated
 in
 Africa
 through
 their
 inclusion
 in
 the
 AU
 Kampala
 Convention
 and
 the
 Great
 Lakes
 Protocol.
 
 This
 thesis
 seeks
 to
 expand
 upon
 this
 possibility
 of
 hardening
 soft
 law
 introduced
 by
 Harris
 by
 examining
 whether
 and
 how
 these
 regional
 hard
 law
 developments
 can
 contribute
 to
 the
 creation
 of
 customary
 international
 law
 for
 the
 protection
 and
 assistance
 of
 























































 15
 Francis
 Deng.
 “Introductory
 Note
 to
 the
 Guiding
 Principles
 on
 Internal
 Displacement.”
 
 Available
 at
 http://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html.

Accessed
June
15,
2010.
 16
 Kälin,
 Walter.
 
 “How
 Hard
 is
 Soft
 Law?
 The
 Guiding
 Principles
 on
 Internal
 Displacement
 and
 the
 Need
 for
 a
 Normative
 Framework”.
 Presentation
 at
 Roundtable
 Meeting
 of
 the
 Ralph
 Bunche
 Institute
 for
 International
 Studies
 CUNY
 Graduate
Center.

(December
19,
2001),
5‐6.
 17
DJ
Harris.
Cases
and
Materials
on
International
Law,
Sixth
Edition.

(London:
Sweet
 and
Maxwell,
2004),
62.
 
  5
  internally
displaced
persons.


This
will
be
analyzed
from
two
perspectives:
firstly,
 how
 customary
 international
 law
 is
 created,
 and
 what
 contribution
 regional
 organizations
 can
 make
 in
 this
 regard;
 and
 secondly,
 through
 an
 examination
 of
 power
in
international
relations.
More
specifically,
do
African
states
hold
sufficient
 influence
internationally
for
other
countries
and
regions
to
recognize
the
leadership
 role
these
states
have
taken
in
the
protection
and
assistance
of
internally
displaced
 persons,
 thus
 creating
 the
 opinio
 juris
 and
 state
 practice
 required
 to
 establish
 customary
 international
 law?
 
 It
 will
 be
 argued
 that
 while
 it
 is
 still
 early
 to
 determine
the
full
influence
of
the
Kampala
Convention,
as
it
has
yet
to
be
ratified,
 and
 of
 the
 Great
 Lakes
 Protocol,
 as
 it
 only
 came
 into
 effect
 in
 2008,
 these
 two
 initiatives
are
indeed
legitimate
building
blocks
toward
a
generally
applicable
rule
 of
 customary
 international
 law.
 
 We
 should
 anticipate
 growing
 reference
 to
 them,
 and
to
the
African
experience
in
general,
as
issues
of
internal
displacement
increase
 in
regions
across
the
globe.

However,
before
this
normative
framework
can
become
 binding
international
law,
we
will
likely
need
to
see
more
conventionally
powerful
 states
also
adopt
similar
Guiding
Principles‐based
initiatives.
 
  To
support
this
case,
this
thesis
will
proceed
as
follows:
I
will
look
first
at
the
  value
of
having
the
Guiding
Principles
become
binding
international
law.

Secondly,
I
 will
 review
 the
 process
 of
 hardening
 soft
 law,
 and
 how
 this
 connects
 the
 Guiding
 Principles
 with
 the
 development
 of
 the
 Great
 Lakes
 Protocol,
 the
 Kampala
 Convention
 and
 other
 State
 practice.
 
 Though
 the
 adoption
 of
 the
 Great
 Lakes
 Protocol
 was
 the
 first
 region‐wide
 codification
 of
 the
 Guiding
 Principles,
 the
 activities
of
the
AU
will
be
the
predominant
focus
of
this
thesis,
as
the
Great
Lakes
  
  6
  region
 does
 not
 have
 a
 strong
 institutional
 foundation
 outside
 of
 the
 Pact
 on
 Security,
 Stability
 and
 Development.
 The
 AU,
 in
 contrast,
 has
 a
 long
 institutional
 history
that
encompasses
responsibilities
in
a
variety
of
domains,
thus
making
it
a
 stronger
 comparison
 and
 example
 for
 other
 regional
 organizations,
 such
 as
 the
 Organization
of
American
States
(OAS),
the
Association
of
South
East
Asian
Nations
 (ASEAN),
 the
 South
 Asian
 Association
 for
 Regional
 Cooperation
 (SAARC)
 and
 the
 Organization
 for
 Security
 and
 Cooperation
 in
 Europe
 (OSCE).
 Furthermore,
 the
 International
 Conference
 that
 established
 the
 Pact
 was
 a
 joint
 AU‐UN
 initiative.
 As
 argued
 by
 Allehone
 Mulugeta
 Abebe
 “[t]he
 involvement
 of
 the
 AU
 in
 the
 ICGLR
 process,
the
role
of
some
key
drafters
in
both
the
ICGLR
and
the
AU
processes,
and
 the
 similarity
 between
 the
 Protocol
 and
 the
 draft
 Convention
 signals
 a
 strong
 link
 between
 the
 ICGLR
 and
 the
 AU
 initiative
 to
 elaborate
 a
 legal
 framework
 for
 the
 protection
of
IDPs.”18


 
  Thirdly,
 I
 will
 outline
 the
 fundamental
 concepts
 involved
 in
 the
 creation
 of
  customary
international
law,
and
fourthly
examine
the
roles
and
responsibilities
of
 regional
organizations
in
the
creation
of
international
law.

This
cursory
review
of
 the
power
of
regional
organizations
is
important
to
understanding
how
the
Kampala
 Convention
and
the
Great
Lakes
Protocol
are
contributing
to
the
potential
creation
 of
a
generally
applicable
rule
of
customary
international
law,
both
through
regional
 organization
and
state
practice,
because
these
two
momentous
documents
were
the
 initiatives
of
regional
organizations.

The
roles
that
the
AU
and
ICGLR
played
in
the
 























































 18
Allehone
Mulugeta
Abebe.

“Legal
and
Institutional
Dimensions
of
Protecting
and
 Assisting
Internally
Displaced
Person
in
Africa.”
(Journal
of
Refugee
Studies,
vol.
22,
 no.
2,
2009),
166.
 
  7
  development
of
a
normative
framework
is
therefore
also
essential
to
understanding
 how
this
framework
will
grow.
 
  Next,
 I
 will
 introduce
 a
 brief
 survey
 of
 realist,
 rationalist
 and
 constructivist
  international
relations
theory
interpretations
of
international
law
that
will
provide
a
 roadmap
to
understanding
the
power
dynamics
involved
in
creating,
maintaining
or
 changing
 customary
 international
 law.
 
 In
 a
 final
 section
 I
 will
 evaluate
 the
 likelihood
that
non‐African
states
would
be
willing
to
take
a
lesson
from
the
world’s
 least
 developed
 region,
 using
 both
 constructivist
 and
 international
 legal
 theory
 to
 explore
this
possibility.

“Constructivists
generally
view
international
law
formation
 as
 a
 process
 of
 interaction
 between
 state
 and
 non‐state
 actors
 through
 which
 interests
and
ultimately
identities
are
shaped,”
and
I
adhere
to
this
perspective.
 
  This
 case
 analysis
 of
 a
 regional
 framework’s
 capacity
 to
 contribute
 to
 the
  formation
 of
 customary
 international
 law,
 and
 the
 power
 dynamics
 within
 that
 creation,
 contributes
 to
 demonstrating
 and
 understanding
 the
 evolution
 of
 customary
 international
 law,
 and
 its
 expansion
 to
 account
 for
 the
 activities
 of
 an
 increasing
set
of
global,
regional
and
individual
actors.

Furthermore,
it
provides
an
 evaluation
 of
 the
 progress
 the
 Guiding
 Principles
 have
 made
 over
 the
 last
 twelve
 years,
and
how
their
increasing
use
is
strengthening
states’
ability
and
obligation
to
 respond
to
internally
displaced
populations.
 
  
  8
  The
Value
of
the
Guiding
Principles
as
Binding
Law
 
  A
distinguishing
dimension
of
the
Guiding
Principles
is
that
there
is
a
treaty‐ based
source
for
all
of
the
thirty
principles
compiled.

This
document
is
an
excellent
 example
of
relying
upon
the
codification
of
pre‐existing
law
to
facilitate
the
securing
 of
 agreement
 for
 adopting
 a
 new
 accord.
 
 The
 Guiding
 Principles
 are
 “a
 broad
 and
 progressive
 restatement
 of
 international
 law
 that
 details
 more
 precisely,
 and
 in
 a
 consolidated
 and,
 thus,
 more
 accessible
 and
 readable
 format,
 the
 relevant
 provisions
 of
 human
 rights
 and
 humanitarian
 law
 as
 they
 apply
 to
 the
 internally
 displaced.”19
 
 
 As
 such,
 the
 Guiding
 Principles
 may
 also
 fit
 under
 Vaughan
 Lowe’s
 definition
of
an
“interstitial
norm”.

Martha
Finnemore
and
Stephen
Toope
describe
 “interstitial
 norms”
 as
 a
 growing
 body
 of
 law
 that
 can
 be
 characterized
 as
 “the
 implicit
 rules
 operating
 in
 and
 around
 explicit
 normative
 frameworks.”20
 
 Lowe
 explains
 that
 interstitial
 norms
 emerge
 from
 within
 the
 international
 legal
 system
 with
some
assistance,
and
their
development
is
open
to
wider
participation
than
the
 creation
 of
 traditional
 international
 law.
 
 In
 the
 case
 of
 the
 Guiding
 Principles,
 the
 office
of
the
RSG‐IDP
and
the
assembled
team
of
legal
experts
that
wrote,
presented
 and
 promoted
 the
 document
 contributed
 to
 the
 emergence
 of
 a
 “new”
 normative
  























































 19
 Simon
 Bagshaw.
 
 Developing
 a
 Normative
 Framework
 for
 the
 Protection
 of
 Internally
Displaced
Persons.
Ardsely,
NY:
Transnational
Publishers
(2005),
103.
 20
 Martha
 Finnemore
 and
 Stephen
 J.
 Toope.
 “Alternatives
 to
 ‘Legalization’:
 Richer
 Views
of
Law
and
Politics”
in
International
Law
and
International
Relations,
Beth
A.
 Simmons
and
Richard
H.
Steinberg
(eds.).

(Cambridge:
Cambridge
University
Press,
 2007),
187.
 
  9
  framework
 that
 operates
 independently,
 yet
 as
 part
 of
 existing
 international
 legal
 structures.


 Finally,
 interstitial
 norms
 often
 come
 to
 reflect
 “the
 spirit
 of
 the
 age”,
 as
 “a
 much
wider
range
of
concepts
and
social
pressures
come
to
shape
these
interstitial
 norms
 than
 is
 ordinarily
 the
 case
 in
 international
 law.”21
 
 Again,
 in
 the
 case
 of
 the
 Guiding
 Principles,
 there
 was
 an
 urgent
 need
 to
 draw
 attention
 to
 the
 plight
 of
 internally
displaced
persons
and
to
provide
both
state
and
non‐state
actors
with
a
 framework
 for
 responding
 to
 their
 situation.
 
 The
 timing
 of
 the
 internal
 displacement
crisis,
and
the
urgent
need
for
a
response
hence
dictated
the
relatively
 quick
and
unconventional
development
of
the
Guiding
Principles.
 Considering,
therefore,
that
interstitial
norms
operate
“in
and
around
explicit
 normative
frameworks”
and
that
“it
is
always
possible
to
invoke
the
hard
law
that
 lies
 behind
 the
 Guiding
 Principles
 where
 necessary,”22
 what
 then
 is
 the
 value
 in
 pursuing
 the
 prospect
 of
 the
 Guiding
 Principles
 becoming
 binding
 law
 in
 and
 of
 themselves?


 
  I
 see
 four
 main
 reasons.
 
 Firstly,
 the
 Guiding
 Principles
 do
 not
 only
 restate
  existing
international
law;
they
also
“seek
to
clarify
the
grey
areas
[where
sufficient
 protection
 might
 not
 exist]
 by
 restating
 general
 principles
 of
 protection
 in
 more
 specific
detail
and
to
address
the
gaps
in
cases
where
no
explicit
norms
exist
to
meet
  























































 21
 Vaughan
 Lowe.
 “The
 Politics
 of
 Law‐Making:
 Are
 the
 Method
 and
 Character
 of
 Norm
 Creation
 Changing?”
 in
 The
 Role
 of
 Law
 in
 International
 Politics:
 Essays
 in
 International
Relations
and
International
Law,
Michael
Byers
(ed.).

(Oxford:
Oxford
 University
Press,
2001),
220.
 22
Kälin
(2001),
7.
 
  10
  the
 needs
 of
 the
 internally
 displaced.”23
 
 These
 “attempts
 to
 address
 the
 gaps”
 remain
 soft
 law
 (defined
 in
 the
 following
 section),
 notwithstanding
 the
 hard
 law
 foundation
 of
 certain
 elements
 of
 the
 Guiding
 Principles.
 By
 making
 the
 entire
 document
 legally
 binding,
 internally
 displaced
 persons
 would
 be
 provided
 with
 a
 unified
mechanism
to
ensure
their
rights
are
protected
to
the
fullest.

Secondly,
“one
 of
the
common
admissibility
barriers
to
international
bodies
[that
might
otherwise
 provide
protection
and
assistance
to
internally
displaced
persons]
is
a
requirement
 that
 the
 victim
 first
 exhaust
 domestic
 (national)
 remedies.”24
 
 Making
 the
 Guiding
 Principles
binding
international
law
–
and
by
consequence
opening
another
way
for
 the
 Guiding
 Principles
 to
 be
 adopted
 into
 domestic
 law
 (since
 customary
 international
 law
 is
 automatically
 domestic
 law
 in
 some
 national
 legal
 systems)
 –
 would
therefore
help
to
create
a
national
framework
that
enables
the
establishment
 of
national
remedies
for
internal
displacement.


Additionally,
“victims
should
ideally
 be
able
to
obtain
protection
and
redress
close
to
home,
in
the
tribunals
and
agencies
 of
the
state
that
has
violated
their
rights.”25
Making
the
Guiding
Principles
national
 law
 makes
 it
 easier
 for
 the
 citizens
 to
 hold
 the
 government
 accountable
 for
 the
 creation
and
resolution
of
internal
displacement
in
that
country.


 
  Furthermore,
as
internal
displacement
became
an
issue
of
increasing
concern
  for
the
international
community,
many
states
expressed
hesitancy
that
international
 action
in
this
regard
would
violate
the
principles
of
state
sovereignty
and
territorial
 integrity.
 
 Adopting
 the
 Guiding
 Principles
 as
 binding
 international
 law,
 however,
 























































 23
Bagshaw
(2005),
103.
 24
Fitzpatrick
(2002),
20.
 25
Fitzpatrick
(2002),
20.
 
  11
  circumvents
potential
contraventions
of
sovereignty
by
obliging
all
states
to
assume
 full
 responsibility
 for
 any
 displacement
 within
 their
 borders.
 
 In
 other
 words,
 the
 Guiding
 Principles
 make
 clear
 that
 states
 alone
 are
 responsible
 for
 responding
 to
 internal
 displacement,
 and
 thus
 have
 no
 need
 to
 fear
 any
 breach
 of
 sovereignty,
 unless
they
are
unwilling
or
unable
 to
provide
sufficient
protection
and
assistance
 themselves.
 
 Offers
 of
 assistance
 by
 international
 organizations
 shall
 be
 taken
 in
 good
faith,
and
not
refused
arbitrarily,
as
outlined
in
Principle
25.

This
approach
to
 upholding
state
sovereignty
also
follows
Deng’s
positive
conception
of
“sovereignty
 as
responsibility.”

In
the
development
of
the
Guiding
Principles,
and
on
his
country
 missions,
 Deng
 sought
 to
 “reassur[e]
 states
 that
 while
 IDPs
 c[o]me
 under
 their
 sovereign
 responsibility
 they
 [have]
 to
 agree
 that
 sovereignty
 carrie[s]
 with
 it
 the
 obligation
 to
 protect
 and
 assist
 these
 vulnerable
 populations.”26
 
 Deng’s
 objective
 was
 to
 demonstrate
 that
 sovereignty
 is
 a
 double‐edged
 sword;
 that
 is,
 to
 have
 the
 international
 community
 respect
 a
 country’s
 sovereignty,
 the
 government
 of
 that
 country
must
also
accept
the
responsibility
that
comes
with
having
authority
over
a
 given
 territory.
 
 This
 state
 responsibility
 entails
 a
 responsibility
 to
 uphold
 its
 citizens’
rights.
 
  Fourthly,
 “[f]rom
 the
 perspective
 of
 international
 organization
 officials,
 the
  harder
 the
 norms
 they
 can
 invoke,
 the
 better;
 because
 international
 law
 by
 definition
 embodies
 shared
 understandings,
 hard
 law
 gives
 them
 a
 more
 solid
  























































 26
 Roberta
 Cohen
 and
 Francis
 M.
 Deng.
 “The
 genesis
 and
 the
 challenges”.
 Forced
 Migration
Review,
Special
Issue
“GP10”,
(December
2008),
4.
 
  12
  starting
point
from
which
to
push
for
changes
in
state
behavio[u]r.”27

If
the
Guiding
 Principles
 become
 compulsory
 international
 law,
 it
 becomes
 difficult
 for
 states
 to
 escape
the
norm;
indeed,
they
could
be
punished
by
the
international
community
for
 breaching
 it.
 
 States
 would
 therefore
 be
 under
 greater
 pressure
 to
 adapt
 their
 behaviour
 to
 comply
 with
 the
 norm
 created
 by
 the
 Guiding
 Principles,
 and
 may
 in
 fact
 be
 more
 likely
 to
 want
 to
 comply,
 for
 reasons
 of
 self‐identity
 as
 law‐abiding
 states,
 as
 outlined
 in
 constructivist
 international
 relations
 theory
 explored
 further
 below.

Finally,
if
the
Guiding
Principles
were
to
develop
into
hard
law,
there
would
 be
 a
 firmer
 outline
 of
 how
 to
 achieve
 the
 goals
 established
 within
 the
 Principles;
 there
 would
 also
 be
 a
 greater
 understanding
 of
 the
 Principles’
 “limitations
 and
 restrictions”
 that
 would
 allow
 states
 to
 better
 understand
 how
 to
 operate
 within
 this
norm.28

There
is
great
value,
therefore,
in
transforming
the
Guiding
Principles
 from
 a
 soft
 law
 instrument
 into
 a
 legally
 binding
 one,
 as
 it
 would
 facilitate
 and
 require
 greater
 protection
 and
 assistance
 to
 internally
 displaced
 populations.
 
 The
 next
section
examines
how
this
transformation
may
take
place.
 
  























































 27
Johnstone
(2009),
122.
 28
Bagshaw
(2005),
101.
 
  13
  The
“Hardening”
of
Soft
Law
 
 
  The
 necessity
 of
 a
 normative
 framework
 for
 the
 protection
 of
 internally
  displaced
persons
followed
the
explosion
of
civil
conflicts
that
came
at
the
end
of
the
 Cold
 War.
 
 In
 the
 years
 following
 the
 collapse
 of
 the
 Berlin
 Wall,
 these
 conflicts
 resulted
in
tens
of
millions
of
persons
being
displaced
within
their
own
borders.29

 At
this
same
time,
states
were
beginning
to
reconsider
their
willingness
to
provide
 asylum
 to
 the
 outflow
 of
 victims
 of
 conflict.
 
 In
 Africa
 in
 particular,
 where
 displacement
has
historically
been
the
most
acute,
it
has
been
noted
that
“[i]nstead
 of
opening
their
doors
to
persons
fearing
harm
in
their
own
states,
African
countries
 now
 prefer
 refugees
 to
 receive
 protection
 in
 ‘safe
 zones’
 or
 similar
 areas
 within
 their
 countries
 of
 origin.”30
 
 Consequently,
 the
 number
 of
 internally
 displaced
 persons
 slowly
 began
 to
 surpass
 the
 number
 of
 refugees
 worldwide;
 since
 the
 1990s,
 “in
 most
 emergencies,
 [internally
 displaced
 persons]
 began
 to
 outnumber
 refugees
two
to
one.”31

As
mentioned
earlier,
however,
in
the
case
of
conflicts,
the
 governments
responsible
for
protecting
the
internally
displaced
are
also
often
at
the
 source
 of
 their
 displacement,
 either
 by
 being
 a
 party
 to
 the
 conflict,
 or
 by
 deliberately
neglecting
a
disfavoured
minority
population,
for
example.

With
these
 millions
 of
 people
 in
 refugee‐like
 situations,
 but
 without
 a
 specific
 international
 institution
designated
for
their
care
(such
as
the
United
Nations
High
Commissioner
 























































 29
Cohen
and
Deng
(2008),
4.
 30
Abebe
(2009),
163,
citing
Rutinwa
(1999),
2.
 31
 Roberta
 Cohen.
 “Developing
 an
 International
 System
 for
 Internally
 Displaced
 Person.”

(International
Studies
Perspectives,
no.
7,
2006),
89.
 
  14
  for
Refugees),
and
with
the
barrier
presented
by
the
principles
of
state
sovereignty
 that
 at
 times
 prevented
 humanitarian
 organizations
 from
 accessing
 these
 populations,
international
standards
that
outlined
the
responsibility
for
and
status
 of
 internally
 displaced
 persons
 were
 urgently
 required.
 
 Considering
 these
 critical
 factors,
 RSG‐IDP
 Deng
 opted
 to
 avoid
 “the
 traditional
 intergovernmental
 law‐ making
 process
 of
 negotiating,
 drafting
 and
 adopting
 a
 ‘hard’
 treaty
 in
 favour
 of
 a
 more
 flexible
 and
 nuanced
 approach.
 
 This
 approach
 resulted
 in
 the
 ‘soft’
 restatement
of
existing
international
norms.”32

Influencing
factors
behind
choosing
 this
 approach
 include
 the
 lack
 of
 governmental
 support
 for
 a
 legally
 binding
 convention
for
what
was
seen
as
an
internal
matter;
the
fact
that
treaties
can
take
 years
 or
 even
 decades
 to
 accomplish;33
 and
 the
 belief
 that
 “sufficient
 international
 law
 existed
 to
 make
 it
 possible
 to
 bring
 together
 in
 one
 document,
 adapted
 to
 the
 needs
 of
 the
 internally
 displaced,
 the
 myriad
 of
 provisions
 dispersed
 in
 a
 large
 number
of
instruments.”34
 
  The
 Guiding
 Principles
 were
 constructed
 in
 such
 a
 way
 as
 to
 appeal
 to
 the
  greatest
 number
 of
 states
 possible,
 in
 the
 shortest
 time‐span
 possible.
 
 With
 this
 approach
 in
 mind,
 we
 must
 also
 question
 whether
 Deng
 and
 his
 team
 of
 legal
 























































 32
Bagshaw
(2007),
190‐191.
 33
It
must
be
noted,
however,
that
in
addition
to
the
time
consideration,
there
was
a
 perceived
danger
that
since
the
Guiding
Principles
were
based
upon
already
existing
 international
law,
that
a
treaty
negotiation
process
“could
lead
to
the
watering
down
 of
 accepted
 provisions
 of
 international
 law
 on
 which
 the
 Principles
 are
 based.”
 (Roberta
 Cohen.
 “Developing
 an
 International
 System
 for
 Internally
 Displaced
 Person.”
 
 [International
 Studies
 Perspectives,
 no.
 7,
 2006],
 96).
 
 Incorporating
 the
 Guiding
Principles
into
customary
international
law
would
thus
allows
all
states
to
 participate
in
the
creation
of
new
law,
through
state
practice,
but
does
not
also
risk
 changes
to
the
instruments
upon
which
the
Guiding
Principles
are
based.
 34
Cohen
(2006),
92.
 
  15
  experts
also
had
the
strategic
intent
of
creating
the
Guiding
Principles
in
such
a
way
 as
 to
 allow
 them
 to
 develop
 into
 hard
 law
 later
 on.
 
 While
 the
 writings
 of
 Deng,
 Cohen
and
Kälin
do
not
explicitly
allude
to
a
desire
or
goal
for
the
Guiding
Principles
 to
 become
 binding
 in
 and
 of
 themselves,
 the
 legal
 team
 that
 wrote
 the
 Principles
 would
 have
 most
 likely
 been
 aware
 of
 the
 various
 theories
 on
 soft
 law
 when
 adopting
 this
 approach
 to
 the
 creation
 of
 a
 normative
 framework.
 
 These
 theories
 include
the
understanding
that
soft
and
hard
law
may
be
complementary,
wherein
 soft
law
promotes
the
education,
compromise
and
understanding
that
can
constitute
 preparation
for
the
development
of
hard
law.35

Consequently,
we
are
able
to
deduce
 that
while
the
RSG‐IDP’s
moral
motivation
to
develop
a
tool
to
respond
to
internal
 displacement
crises
as
soon
as
possible
led
the
Guiding
Principles
to
be
soft
law,
the
 soft
law
method
was
also
adopted
to
permit
the
Guiding
Principles
to
be
as
effective
 and
flexible
as
possible.

The
consideration
of
effectiveness
and
flexibility
in
terms
of
 application
 and
 adherence
 further
 opens
 the
 possibility
 to
 the
 Guiding
 Principles
 maturing
into
a
hard
law
framework.

Thus
while
it
may
not
be
the
precise
intention
 of
the
RSG‐IDP
to
eventually
create
hard
law,
the
soft
law
method
adopted
does
not
 preclude
this
development
from
occurring.
 
  With
 the
 normative
 structure
 for
 the
 protection
 of
 internally
 displaced
  persons
 established
 as
 a
 set
 of
 guiding
 and
 not
 binding
 principles,
 there
 remains
 debate,
 however,
 as
 to
 whether
 the
 Guiding
 Principles
 may
 actually
 be
 considered
 “soft
law.”

Soft
law,
like
hard
law,
is
normally
derived
from
government
activity
–
 























































 35
Phil
Orchard.
“Protection
of
internally
displaced
persons:
soft
law
as
a
norm‐ generating
mechanism.”
(Review
of
International
Studies,
no.
36,
2010),
285.
 
  16
  negotiations,
declarations,
recommendations,
etc.
Kälin,
in
defining
soft
law,
further
 explains
that
the
Guiding
Principles
 “do
not
even
constitute
typical
soft
law,
ie.
recommendations
that
rest
on
the
consensus
of
 States
 and
 thereby
 assume
 some
 authority
 that
 may
 be
 taken
 into
 account
 in
 legal
 proceedings,
 but
 whose
 breach
 does
 not
 constitute
 a
 violation
 of
 international
 law
 in
 the
 strict
sense,
and
thus
does
not
entail
State
responsibility.”36

  The
Guiding
Principles
are
atypical
soft
law
as
they
were
composed
by
a
small
group
 of
 legal
 experts
 (including
 Walter
 Kälin)
 and
 not
 written
 by
 state
 representatives.
 Considering
 the
 exceptional
 nature
 of
 their
 creation,
 Kälin
 has
 further
 suggested
 that
“[o]ne
might
argue
that
[the
Guiding
Principles]
are
even
softer
than
soft
law.

 In
 a
 state‐centred
 international
 legal
 system,
 a
 group
 of
 well‐intentioned
 legal
 experts
simply
does
not
have
the
power
to
create
law.”37

I
would
argue
additionally,
 however,
that
through
the
state
support
demonstrated
for
the
Guiding
Principles
in
 UN
 General
 Assembly
 (UNGA)
 resolutions
 and
 reports,38
 for
 example,
 the
 international
community
has
embraced,
restated
and
referred,
and
thus
consented,
 to
the
Principles
in
such
a
way
that
is
reminiscent
of
the
“normal”
soft
law
creation
 process.
 
 This
 adoption
 of
 the
 Guiding
 Principles
 gives
 the
 document
 the
 requisite
 authority
 mentioned
 by
 Kälin,
 and
 also
 provides
 a
 venue
 in
 which
 relevant
 state
 practice
 and
 use
 of
 the
 Principles
 can
 be
 noted.
 
 Consequently,
 the
 debate
 on
 the
 extent
to
which
the
Guiding
Principles
are
or
are
not
soft
law
is
largely
addressed,
 and
 the
 Guiding
 Principles
 are
 effectively
 comparable
 to
 soft
 law
 established
 by
 more
conventional
means.

 























































 36
Kälin
(2001),
6.
 37
Kälin
(2001),
6.
 38
See
for
example,
UN
GA
A
RES/62/153
“Protection
of
and
assistance
to
internally
 displaced
persons”
(March
6,
2008)
and
60/168
(December
16,
2005).
 
  17
  
  This
 soft
 law
 legitimacy
 puts
 the
 Guiding
 Principles
 on
 the
 path
 that
 allows
  them
 to
 potentially
 develop
 into
 hard
 law.
 Schmidt,
 in
 his
 2003
 assessment
 of
 the
 potential
for
the
Guiding
Principles
to
become
hard
law,
advanced
that
tools
such
as
 the
 Guiding
 Principles
 “can
 have
 a
 significant
 impact
 in
 facilitating
 consensus
 on
 contentious
 issues,
 which
 otherwise
 would
 be
 difficult
 to
 achieve
 on
 ‘hard
 law’
 instruments”.39
 
 Johnstone,
 furthermore,
 in
 discussing
 the
 operational
 activities
 of
 international
organizations,
describes
one
way
in
which
the
hardening
process
can
 occur:
 “operational
 activities
 occur
 against
 the
 backdrop
 of
 widely
 acknowledged
 but
 not
 well‐ specified
norms;
in
carrying
out
those
activities,
international
organizations
do
not
seek
to
 enforce
 the
 norms
 per
 se
 but
 typically
 act
 in
 a
 manner
 that
 conforms
 to
 them;
 these
 activities
generate
friction,
triggering
bouts
of
legal
argumentation;
the
reaction
of
affected
 governments
–
and
the
discourse
that
surrounds
the
action
and
reaction
–
can
cause
the
law
 to
 harden.
 
 As
 a
 result,
 future
 operational
 activities
 meet
 less
 resistance,
 or
 at
 least
 those
 who
 would
 object
 feel
 more
 compelled
 to
 use
 legal
 language
 in
 defending
 their
 positions.

 Compliance
with
the
norm
is
thus
more
likely
because
the
demanding
discourse
associated
 with
hard
law
increases
the
pressure
on
states
to
act
in
accordance
with
it.”40
  Another
way
that
soft
law
can
develop
is
by
its
explicit
acceptance
by
states,
either
 as
 soft
 law
 as
 such,
 or
 through
 its
 incorporation
 into
 new
 and
 binding
 legal
 instruments.
 
 The
 Guiding
 Principles’
 generally
 warm
 reception
 in
 199841
  























































 39
Patrick
L.
Schmidt.
“The
Process
and
Prospects
for
the
U.N.
Guiding
Principles
on
 Internal
 Displacement
 to
 Become
 Customary
 International
 Law:
 A
 Preliminary
 Assessment.”
(Georgetown
Journal
of
International
Law,
no.
35,
2003‐2004):
515.
 40
 Ian
 Johnstone.
 “Law‐Making
 Through
 the
 Operational
 Activities
 of
 International
 Organizations”.
 (The
 George
 Washington
 International
 Law
 Review,
 vol.
 40,
 2009),
 88.
 41
Mexico
was
initially
hesitant
to
accept
the
Guiding
Principles,
believing
that
they
 may
 be
 an
 attempt
 to
 create
 international
 law
 “through
 the
 backdoor.”
 
 In
 understanding,
 however,
 that
 the
 Guiding
 Principles
 consist
 of
 already
 recognized
 and
 ratified
 international
 norms,
 they
 have
 since
 come
 to
 support
 the
 document.

 India,
 Sudan
 and
 Egypt
 believed
 that
 a
 normative
 framework
 for
 the
 protection
 of
 internally
displaced
persons
was
a
breach
of
sovereignty,
and
therefore
did
not
(and
 do
not,
in
the
case
of
India)
support
the
Guiding
Principles.

Their
protest
has
limited
 
  18
  progressed
into
more
than
190
countries
“recognis[ing]
the
Guiding
Principles
as
an
 important
international
framework
for
the
protection
of
IDPs”
in
2005
at
the
United
 Nations
 World
 Summit.42
 
 This
 act
 of
 recognition
 does
 not
 transform
 the
 Guiding
 Principles
 into
 hard
 law,
 but
 rather
 contributes
 to
 increasing
 state
 practice
 that
 is
 potentially
 relevant
 to
 the
 creation
 of
 customary
 international
 law,
 as
 will
 be
 explored
in
the
following
section.
 The
 creation
 of
 soft
 law
 may
 be
 pursued
 in
 “situations
 in
 which
 states
 find
 themselves
in
fundamental
agreement
on
norms
of
conduct,
but
[in
which]
they
may
 not
 be
 ready
 to
 agree
 to
 bind
 themselves
 legally”43;
 some
 authors
 have
 even
 suggested
 that
 soft
 law
 is
 used
 “in
 order
 to
 cover
 up
 [states’]
 unwillingness
 to
 achieve
more
substantial
law‐making
results.”44

We
have
seen,
however,
both
on
an
 individual
 state
 level,
 and
 now
 at
 a
 regional
 level,
 that
 numerous
 states
 are
 progressively
prepared
to
legally
bind
themselves
to
what
is
outlined
in
the
Guiding
 Principles.


The
following
are
examples
of
ways
in
which
certain
state
practices
are
 contributing
 to
 the
 hardening
 of
 the
 Guiding
 Principles
 in
 their
 current
 soft
 law
 state.
 Sixteen
countries
have
varying
laws
and
policies
pertaining
to
the
protection
 of
 internally
 displaced
 persons
 from
 armed
 conflict,
 violence
 and
 human
 rights
  























































 the
 strength
 of
 the
 language
 used
 in
 General
 Assembly
 resolutions
 to
 support
 the
 Guiding
Principles.

See
Ian
Johnstone
(2009),
at
112.
 42
Cohen
and
Deng,
FMR
GP10,
5.
 43
Schmidt
(2006),
516.
 44
Bagshaw,
100,
citing
Ian
Brownlie
“To
What
Extent
are
the
Traditional
Categories
 of
Lex
Lata
and
Lex
Ferenda
still
Viable?”
in
A.
Cassese
and
J.H.H
Weiler,
Change
and
 Stability
in
International
Law­Making
66
(1988),
82.
 
  19
  violations.45
 
 As
 mentioned
 earlier,
 nine
 of
 these
 sixteen
 countries
 include
 explicit
 reference
to
the
Guiding
Principles.

Additionally,
three
peace
agreements
–
those
in
 Bangladesh,
 Burundi
 and
 Guatemala
 –
 include
 provisions
 for
 the
 protection
 of
 the
 internally
displaced;
while
in
Kosovo
and
Afghanistan
there
are
also
arrangements
 between
parties
and
international
partners
for
the
protection
of
internally
displaced
 persons.

In
Afghanistan,
these
arrangements
include
durable
solution
initiatives
co‐ sponsored
 by
 the
 United
 Nations
 High
 Commissioner
 for
 Refugees
 and
 the
 Government
 of
 Afghanistan;46
 and
 in
 Kosovo,
 various
 UN
 organizations
 and
 the
 OSCE
are
all
actively
engaged
with
both
Kosovar
and
Serbian
officials
to
assist
and
 monitor
 the
 return
 and
 resettlement
 of
 internally
 displaced
 persons.47
 
 These
 programmes
are
not
required
by
or
inscribed
in
international
law,
but
do
contribute
 to
building
relevant
State
practice
in
regards
to
the
use
of
the
Guiding
Principles
and
 the
protection
and
assistance
of
internally
displaced
persons.


 Regionally,
we
have
seen
the
OAS,
the
OSCE,
the
Council
for
Europe,
the
East
 African
 Intergovernmental
 Authority
 on
 Development
 (IGAD),
 and
 the
 Economic
 Community
 of
 West
 Africa
 (ECOWAS)
 all
 acknowledge
 and
 support
 the
 use
 of
 the
 























































 45
 IDMC
 (2010),
 24.
 
 These
 countries
 include
 (in
 alphabetical
 order)
 Angola,
 Azerbaijan,
 Bosnia
 and
 Herzegovina,
 Colombia,
 Croatia,
 Cyprus,
 Georgia,
 Iraq,
 Liberia,
Nepal,
Peru,
Russian
Federation,
Serbia,
Sudan,
Turkey,
and
Uganda.
 46
IDMC
(2010),
76.
 47
The
United
Nations
Development
Programme,
United
Nations
High
Commissioner
 for
Refugees,
and
the
United
Nations
Interim
Administration
Mission
in
Kosovo
have
 all
 undertaken
 projects
 and
 partnerships
 with
 local
 authorities
 in
 finding
 durable
 solutions
for
internally
displaced
persons.
 IDMC.
 
 “Kosovo:
 National
 and
 International
 Responses.”
 
 (Available
 at
 http://www.internal‐ displacement.org/idmc/website/countries.nsf/(httpEnvelopes)/5709BCCBAF75F2 90C12576B3004F60E4?OpenDocument.

Accessed
August
19,
2010.)
 
  20
  Guiding
 Principles.48
 
 More
 substantially,
 however,
 in
 2006,
 the
 Member
 States
 of
 the
 ICGLR
 adopted
 the
 Protocol
 on
 the
 Protection
 and
 Assistance
 to
 Internally
 Displaced
Persons
as
part
of
the
Pact
on
Security,
Stability
and
Development
in
the
 Great
Lakes
Region.

This
Protocol
“is
the
first
instrument
incorporating
the
Guiding
 Principles’
 notion
 of
 internally
 displaced
 persons
 into
 binding
 international
 law
 (Article
1,
paragraph
4)
and
explicitly
extending
it
to
those
displaced
‘as
a
result
of
 or
 in
 order
 to
 avoid
 the
 effects
 of
 large
 scale
 development
 projects’
 (Article
 1,
 paragraph
 5).”49
 
 This
 Protocol
 received
 the
 full
 number
 of
 ratifications
 in
 June
 2008,50
 and
 thus
 now
 legally
 requires
 the
 eleven
 Member
 States
 to
 domestically
 codify
 the
 Guiding
 Principles
 into
 law,
 as
 laid
 out
 in
 Article
 2,
 paragraph
 3.51
 Furthermore,
the
Protocol
“also
establishes
a
sub‐regional
supervisory
mechanism
 for
 monitoring
 the
 protection
 of
 internally
 displaced
 persons”,
 and
 thus
 also
 monitors
compliance
with
the
agreement.52
 On
 a
 broader
 regional
 level,
 the
 AU
 adopted
 the
 Kampala
 Convention
 in
 October
 2009
 at
 the
 AU
 Special
 Summit
 on
 Refugees,
 Returnees
 and
 IDPs.
 
 It
 is
 already
signed
by
twenty‐six
of
the
fifty‐three
Member
States,53
and
will
come
into
 























































 48
Johnstone
(2009),
113.
 49
Kälin,
“Annotations”,
6.
 50
 IDMC
 (2010),
 24.
 
 These
 Member
 States
 include
 (in
 alphabetical
 order)
 Angola,
 Burundi,
Central
African
Republic,
Republic
of
Congo,
Democratic
Republic
of
Congo,
 Kenya,
Rwanda,
Sudan,
Tanzania,
Uganda
and
Zambia.
 51
 International
 Conference
 on
 the
 Great
 Lakes
 Region.
 
 Protocol
 on
 the
 Protection
 and
Assistance
of
Internally
Displaced
Persons.

November
30,
2006.
 52
Abebe
(2009),
166.
 53
Signatory
States
include
Benin,
Burundi,
Central
African
Republic,
Comoros,
Côte
 d’Ivoire,
Congo,
Djibouti,
Democratic
Republic
of
Congo,
Equatorial
Guinea,
Ethiopia,
 Gabon,
 Gambia,
 Ghana,
 Liberia,
 Mali,
 Namibia,
 Nigeria,
 Rwanda,
 Sahrawi
 Arab
 Democratic
 Republic,
 Sierra
 Leone,
 Somalia,
 Sao
 Tome
 &
 Principe,
 Togo,
 Uganda,
 
  21
  effect
once
it
has
been
ratified
by
fifteen
Member
States.54
The
Kampala
Convention
 is
“widely
recognized
as
a
historic
achievement”.55

Like
the
Guiding
Principles,
the
 Kampala
 Convention’s
 “content
 draws
 on
 the
 existing
 and
 applicable
 branches
 of
 human
 rights
 and
 international
 humanitarian
 law,
 and
 synthesizes
 these
 whilst
 seeking
to
incorporate
directly,
where
relevant,
aspects
of
the
Guiding
Principles”.56

 As
it
is
broadly
based
on
the
Guiding
Principles,
it
requires
that
states
protect
and
 assist
 internally
 displaced
 persons
 before,
 during
 and
 after
 displacement.

 Additionally,
 the
 Kampala
 Convention
 also
 “highlights
 the
 duties
 and
 responsibilities
 of
 international
 humanitarian
 organizations
 and
 civil
 society,
 and
 imposes
 obligations
 on
 state
 parties
 to
 grant
 access
 to
 IDPs
 in
 need
 of
 protection
 and
assistance
and
to
prohibit
non‐state
armed
groups
from
obstructing
such
access
 or
violating
the
rights
of
IDPs.”57
 
The
Kampala
Convention
exemplifies
the
process
 through
which
soft
law
can
be
hardened.

This
momentous
document,
however,
also
 demonstrates
the
central
role
that
regional
organizations
can
play
in
contributing
to
 the
creation
of
international
law.


  























































 Zambia,
 Zimbabwe.
 
 AU.
 “List
 of
 Countries
 which
 have
 signed,
 ratified/acceded
 to
 the
 African
 Union
 Convention
 for
 the
 Protection
 and
 Assistance
 of
 Internally
 Displaced
Persons
in
Africa
(Kampala
Convention).”

March
26,
2010.

Available
at
 Http://www.africa‐ union.org/root/au/Documents/Treaties/list/Convention%20on%20IDPs%20‐ %20displaced.pdf.

Accessed
April
14,
2010.
 54
Orchard
(2010),
296.

Currently
(as
of
March
26,
2010),
only
Uganda
has
ratified
 the
Convention.
 55
IDMC
(2010),
30.
 56
Chaloka
Beyani.
“Recent
Developments:
The
Elaboration
of
a
Legal
Framework
for
 the
Protection
of
Internally
Displaced
Persons
in
Africa.”
(Journal
of
African
Law,
no.
 50,
2006),
193.
 57
IDMC
(2010),
30.
 
  22
  The
Creation
of
Customary
International
Law
  Thus
 far,
 we
 have
 seen
 the
 difference
 between
 soft
 and
 hard
 law,
 and
 how
  the
first
may
solidify
into
the
second.

I
will
now
examine
the
potential
for
regional
 treaty
law,
such
as
the
Kampala
Convention
and
the
Great
Lakes
Protocol,
to
impact
 the
 creation
 of
 globally
 binding
 international
 law.
 
 Firstly,
 it
 is
 possible
 that
 with
 greater
use
and
understanding,
and
the
consensus‐building
made
possible
through
 the
 soft
 law
 stage,
 that
 a
 global
 UN
 treaty
 on
 the
 protection
 and
 assistance
 of
 internally
 displaced
 persons
 would
 come
 to
 be.
 
 To
 date,
 however,
 there
 is
 little
 evidence
that
such
an
initiative
is
formulating
within
the
UN.

The
second
possibility
 then,
 is
 for
 the
 Guiding
 Principles
 to
 become
 binding
 international
 law
 through
 custom.

Article
38
of
the
Statute
of
the
International
Court
of
Justice
cites
that
there
 are
 four
 sources
 of
 international
 law
 –
 treaties;
 custom,
 which
 is
 described
 as
 “evidence
of
a
general
practice
accepted
as
law”;
general
principles
and
the
writings
 of
the
most
highly
qualified
publicists58
−
though
treaties
and
custom
are
generally
 considered
 to
 be
 the
 most
 important.
 
 Thirdly,
 it
 is
 additionally
 possible
 that
 the
 norms
of
the
Guiding
Principles
become
regional
customary
law;
as
in,
the
custom
 may
 only
 be
 binding
 in
 the
 region
 of
 Africa,
 and
 not
 on
 the
 entire
 international
 community.

This
alternative
will
be
further
explored
below.

 Customary
international
law
has
two
components:
state
practice
and
opinio
 juris.
 
 The
 first
 constitutes
 the
 objective
 or
 material
 dimension
 of
 observable
 state
 























































 58
International
Court
of
Justice.

“Statue
of
the
Court:
Article
38.”

(Available
online
 at
 http://www.icj‐cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II.

 Accessed
May
15,
2010.)
 
  23
  activity
regarding
the
application
of
a
certain
norm.

State
practice
can
be
also
found
 in
 published
 materials,
 including
 “from
 newspaper
 reports
 of
 actions
 taken
 by
 states,
and
from
statements
made
by
government
spokes[persons]
to
Parliament,
to
 the
 press,
 at
 international
 conferences
 and
 at
 meetings
 of
 international
 organizations;
 and
 also
 from
 a
 state’s
 laws
 and
 judicial
 decisions.”59
 There
 is,
 however,
 also
 an
 existing
 scholarly
 debate
 as
 to
 whether
 statements
 can
 count
 as
 state
 practice
 in
 the
 development,
 maintenance
 or
 change
 of
 a
 customary
 rule.

 Byers
discusses
this
debate
in
Custom,
Power
and
the
Power
of
Rules,
where
he
cites
 D’Amato
and
Wolfke
as
believing
that
for
states
to
demonstrate
any
support
for
or
 opposition
to
“the
development,
maintenance
or
change
of
a
customary
rule
[they]
 must
engage
in
some
sort
of
act,
and
that
statement
or
claims
alone
do
not
suffice.”60

 Other
 authors
 have
 taken
 the
 contrary
 position,
 and
 advance
 that
 “any
 instance
 of
 State
 behaviour
 –
 including
 acts,
 omissions,
 statements,
 treaty
 ratifications,
 negotiating
positions
(as
reflected
in
travaux
préparatoires)
and
votes
for
or
against
 resolutions
 and
 declarations
 –
 may
 constitute
 state
 practice
 for
 the
 purposes
 of
 customary
international
law.”61

Sloan
takes
a
more
blunt
position
when
stating
that
 “[u]nless
 one
 takes
 the
 extreme,
 and
 untenable,
 position
 that
 only
 physical
 acts
 constitute
 practice,
 General
 Assembly
 resolutions
 which
 are
 collective
  























































 59
 Peter
 Malanczuk.
 Akehurst’s
 Modern
 Introduction
 to
 International
 Law,
 Seventh
 Edition.

(New
York:
Routledge,
1997),
39.
 60
 Michael
 Byers.
 Custom,
 Power,
 and
 the
 Power
 of
 Rules.
 
 (Cambridge:
 Cambridge
 University
Press,
1999),
134.
 61
Byers
(1999),
134.
 
  24
  pronouncements
of
states
must
be
considered
a
part
of
state
practice.”62

It
may
be
 noted,
as
well,
that
the
UN
International
Law
Commission
also
treats
statements
as
 state
 practice
 in
 their
 work.
 
 While
 this
 thesis
 acknowledges
 that
 this
 issue
 is
 not
 fully
settled
in
the
literature,
it
adheres,
for
the
sake
of
discussion,
more
closely
to
 the
second
assumption,
proceeding
on
the
notion
that
indications
of
state
behaviour
 complement
tangible
state
acts
in
defining
state
practice.


 Furthermore,
 it
 is
 believed
 that
 “states
 are
 only
 bound
 by
 those
 rules
 to
 which
 they
 have
 consented.”63
 
 Consent,
 however,
 does
 not
 need
 to
 be
 given
 actively;
 in
 fact,
 it
 rarely
 is
 in
 cases
 of
 customary
 international
 law.64
 
 Rather,
 consent
 to
 the
 processes
 of
 customary
 international
 law
 is
 generally
 provided
 through
 acquiescence,
 which
 is
 described
 as
 “silence
 or
 absence
 of
 protest
 in
 circumstances
which
generally
call
for
a
positive
reaction
signifying
an
objection.”65

 Harris
 adds,
 however,
 that
 the
 Anglo­Norwegian
 Fisheries
 case
 demonstrates
 that
 “acquiescence
 cannot
 be
 established
 unless
 a
 state
 has
 actual
 or
 constructive
 knowledge
 of
 the
 claim
 being
 made.”66
 
 International
 organizations,
 in
 this
 regard,
 facilitate
the
flow
of
information
and
provide
fora
for
states
to
remain
engaged
with
 norm‐creation
 procedures.
 
 With
 little
 reason
 to
 be
 unaware
 of
 the
 claims
 being
 made
internationally,
“silence
may
denote
either
tacit
agreement
or
a
simple
lack
of
  























































 62
Harris
(2004),
55,
citing
Blaine
Sloan.
United
Nations
General
Assembly
Resolutions
 in
our
Changing
World
(1991),
71‐75.
 63
Byers
(1999),
7.
 64
Byers
(1999),
142.
 65
Harris
(2004),
40,
citing
MacGibbon
(1954)
31
B.Y.I.L.
143.
 66
Harris
(2004),
40.
 
  25
  interest
in
the
issue,”67
and
this
passive
state
practice
may
“produce
a
binding
effect
 creating
 legal
 obligations
 for
 the
 silent
 state”.68
 
 If
 a
 state
 wishes
 to
 “avoid
 being
 bound
 by
 a
 newly
 developed
 rule”,69
 it
 must
 “both
 violate
 a
 norm
 in
 practice
 and
 reject
it
as
a
matter
of
opinio
juris
to
qualify
as
a
persistent
objector
to
an
emergent
 customary
norm.”70

Additionally,
there
are
no
set
requirements
as
to
the
length
of
 time
state
practice
must
be
enacted
before
the
practice
constitutes
customary
law.

 Rather,
 “it
 must
 be
 followed
 long
 enough
 to
 show
 that
 the
 other
 requirements
 of
 custom
are
met.”71
 
The
second
element
of
customary
international
law
is
opinio
juris72,
which
is
 considered
 to
 be
 the
 more
 subjective
 or
 psychological
 element
 of
 custom,
 as
 it
 comprises
the
legal
motivations
for
complying
with
a
norm.

It
is
best
described
by
 Georges
Scelle,
who
states
that
opino
juris
“signifie
d’abord
que
les
actes
générateurs
 doivent
avoir
été
accomplies
avec
le
sentiment,
ou
tout
au
moins
l’instinct,
d’obéir
à
 une
 nécessité
 sociale.”73
 
 States
 must
 believe
 that
 they
 are
 legally
 obligated
 to
 comply
 with
 a
 norm.
 
 This
 sense
 of
 legal
 obligation
 presents
 what
 Byers
 calls
 a
 “chronological
paradox”
as
states
must
believe
that
their
compliance
with
a
norm
is
 























































 67
 Ian
 Brownlie.
 Principles
 of
 Public
 International
 Law,
 Seventh
 Edition.
 
 (Oxford:
 Oxford
University
Press,
2008),
8.
 68
Malanczuk
(1997),
43.
 69
Byers
(1999),
103.
 70
Richard
Price.

“Customary
norms
and
anti‐personnel
landmines”,
in
The
Politics
 of
 International
 Law,
 Christian
 Reus‐Smit
 (ed).
 (Cambridge:
 Cambridge
 University
 Press
2004),
123.
 71
Harris
(2004),
37.
 72
Also
called
opinio
juris
sive
necessitatis
and
spelled
opinio
iuris.

 73
Skordas
(2003),
320‐321,
citing
Georges
Scelle
(1933),
434.

My
translation
reads:
 opinio
 juris
 “firstly
 signifies
 that
 the
 actions
 that
 generate
 customary
 international
 law
 have
 to
 be
 accomplished
 with
 the
 feeling,
 or
 at
 the
 very
 least
 the
 instinct,
 of
 obeying
a
social
necessity.”
 
  26
  already
required
by
law;
they
are
therefore
obeying
–
and
believing
in
the
existence
 of
–
a
law
that
may
not
yet
exist
as
such.74

As
state
practice
often
takes
primacy
over
 opinio
 juris
 in
 the
 evaluation
 of
 the
 development,
 maintenance
 or
 change
 of
 customary
rules,
certain
writers
contend
that
the
second
requirement
of
custom
is
 often
limited
to
the
realm
of
legal
theory.75

A
positivist
conception
of
law
requires
 opinio
juris
as
this
theory
advances
“that
laws
are
to
be
understood
as
social
rules,
 valid
 because
 they
 are
 enacted
 by
 authority
 or
 derive
 logically
 from
 existing
 decisions.”76
 
 Opinio
 juris,
 then,
 is
 just
 as
 Scelle
 defines
 it:
 an
 enactment
 of
 social
 necessity.

Thus
while
theory
requires
the
social
obligation
to
follow
a
rule,
practice
 shows
 that
 it
 is
 nearly
 impossible
 to
 prove
 this
 obligation.
 
 Judge
 Tanaka
 clearly
 illustrates
this
difficulty
in
his
dissenting
opinion
on
the
North
Sea
Continental
Shelf
 Cases
(1969).

He
states,
 “Next,
so
far
as
…
opinio
juris
sive
necessitatis
is
concerned,
it
is
extremely
difficult
to
get
 evidence
of
its
existence
in
concrete
cases.

This
factor,
relating
to
international
motivation
 and
being
of
a
psychological
nature,
cannot
be
ascertained
very
easily,
particularly
when
 diverse
legislative
and
executive
organs
of
a
government
participate
in
an
internal
process
 of
decision‐making
in
respect
of
ratification
or
other
State
acts.

There
is
no
other
way
than
 to
ascertain
the
existence
of
opinio
juris
from
the
fact
of
the
external
existence
of
a
certain
 custom
and
its
necessity
felt
in
the
international
community,
rather
than
to
seek
evidence
as
 to
the
subjective
motives
for
each
example
of
State
practice,
which
is
something
which
is
 impossible
of
achievement.”77
  It
is
thus
the
combination
of
theory
and
practice
that
leads
us
to
the
chronological
 paradox
presented
by
opinio
juris.


 























































 74
Byers
(1999),
131.
 75
 Michael
 Byers.
 “Power,
 Obligation
 and
 Customary
 International
 Law.”
 
 (Duke
 Journal
of
Comparative
and
International
Law,
vol.
11,
2001),
86.
 76
 Oxford
 Dictionaries
 Online.
 
 “Positivism”.
 
 (Available
 at
 http://oxforddictionaries.com/view/entry/m_en_gb0650860?rskey=gja19h&result =457#m_en_gb0650860.004,
accessed
July
7,
2010.)
 77
North
Sea
Continental
Shelf
Cases
(Federal
Republic
of
Germany
v
Denmark
and
The
 Netherlands)
I.C.J
Reports
1969.

Cited
in
Harris
(2004),
31.
 
  27
  Malanczuk
offers,
however,
that
this
paradox
may
be
superseded
by
another
 consideration:
 that
 “what
 matters
 is
 not
 what
 states
 believe,
 but
 what
 they
 say.”78
 The
 purpose
 then
 of
 maintaining
 opinio
 juris,
 as
 Byers
 further
 argues,
 is
 that
 it
 serves
 to
 distinguish
 between
 legally
 relevant
 and
 irrelevant
 behaviour,
 and
 in
 a
 related
 manner,
 it
 controls
 for
 “abuse
 of
 power
 by
 states
 within
 the
 process
 of
 customary
 international
 law”
 by
 requiring
 that
 legally
 relevant
 behaviour
 be
 supported
 by
 a
 preceding
 sense
 of
 legal
 obligation.79
 
 Opinio
 juris
 is
 consequently
 useful
for
a
political
analysis
of
the
creation
of
customary
international
law,
and
as
 we
shall
see,
will
help
to
determine
if
non‐African
and
traditionally
more
powerful
 states
will
agree
to
come
under
the
developing
norm
of
protection
and
assistance
of
 internally
displaced
persons.

 
  























































 78
Malanczuk
(1997),
45.
 79
Byers
(1999),
212.
 
  28
  Regional
Organizations
and
the
Creation
of
Customary
 International
Law
 
  Byers
 has
 written
 that
 “the
 role
 of
 international
 organizations
 in
 the
 customary
 process
 would
 seem
 in
 most
 respects
 to
 be
 a
 collective
 role
 played
 by
 their
 member
 states.”80
 Building
 upon
 this
 statement,
 this
 thesis
 seeks
 to
 understand
if
the
practice
of
international
organizations,
as
their
own
legal
entities
 and
 central
 norm
 instigators,
 cannot
 also
 contribute
 to
 the
 development,
 maintenance
 or
 change
 of
 customary
 rules,
 in
 a
 parallel
 manner
 to
 state
 practice.

 Johnstone
 argues
 that
 international
 organizations
 are
 not
 just
 the
 sum
 of
 their
 membership:
 “[i]nternational
 organizations
 are
 not
 mere
 instruments
 of
 states
 in
 [the
 international
 law]
 process.
 
 International
 officials
 act
 autonomously,
 one
 step
 removed
 from
 state
 consent.
 
 They
 often
 initiate
 the
 activity
 and
 interpret
 their
 mandates
 creatively
 in
 carrying
 them
 out.”81
 
 This
 creativity
 of
 international
 organizations
will
come
from
their
constructed
identity,
and
how
this
identity
leads
 them
 to
 pursue
 their
 interests,
 such
 as
 the
 “promotion
 of
 peace,
 security
 and
 stability”
for
the
AU.82


 In
 discussing
 regional
 organizations’
 potential
 role
 in
 international
 law‐ making,
it
is
important
to
examine
the
concept
of
international
legal
personality,
as
 this
 concept
 delineates
 what
 rights
 and
 responsibilities
 an
 actor
 may
 have
 in
 international
 law.
 
 Byers
 explains
 that
 “[w]hen
 used
 in
 the
 legal
 sense,
 the
 term
 























































 80
Byers
(1999),
78.
 81
Johnstone
(2009),
118.
 82
 AU.
 
 “The
 Vision
 of
 the
 AU.”
 (Available
 at
 Http://www.africa‐ union.org/root/au/AboutAu/au_in_a_nutshell_en.htm.

Accessed
August
14,
2010.)
 
  29
  ‘personality’
 usually
 refers
 to
 the
 capacity
 of
 an
 individual
 or
 entity
 to
 hold
 rights
 and
 be
 subject
 to
 obligations
 within
 a
 particular
 legal
 system.”83
 States
 are
 undoubtedly
the
actors
with
the
fullest,
most
incontestable
standing
as
international
 legal
 persons,
 supported
 by
 the
 fact
 they
 are
 the
 main
 actors
 in
 international
 law.
 However,
according
to
Brownlie,
“[t]he
most
viable
type
of
organization
will
have
a
 number
of
legal
powers
similar
to
those
normally
associated
with
statehood.”84

This
 would
suggest
that
international
organizations,
like
the
AU,
would
have
the
ability
to
 contribute
 to
 the
 creation
 of
 international
 law
 and
 the
 responsibility
 to
 respect
 it.

 Paul
Szazs
is
clear
on
this
issue:

 “Activities
by
international
entities
may,
just
like
the
activities
of
states,
create
international
 law
if
carried
out
–
as
is
usual
for
organizations
created
by
international
law
and
subject
to
 the
 scrutiny
 of
 many
 states
 –
 in
 a
 regular
 manner
 and
 in
 the
 conviction
 that
 even
 if
 not
 responding
to
positive
requirements
of
international
law
they
are
at
least
authorized
by
and
 in
conformity
with
such
law.”85
  Consequently,
 if
 international
 organizations
 act
 out
 of
 a
 sense
 of
 legal
 obligation,
 and
establish
practice
in
this
regard,
their
activity
is
conceivably
able
to
contribute
 to
 the
 development,
 maintenance
 and
 change
 of
 customary
 international
 law.86

 Their
 practice
 complements
 overall
 state
 practice,
 which
 can
 contribute
 to
 the
 development
 of
 customary
 international
 law
 that
 is
 binding
 upon
 even
 states
 and
 international
 organizations
 that
 are
 not
 members
 of
 the
 initiating
 international
 organization.

  























































 83
Byers
(1999),
75.
 84
Brownlie
(2008),
679.
 85
 Johnstone,(2009),
 93,
 citing
 Paul
 C.
 Szazs.
 General
 Law­Making
 Processes
 in
 THE
 UNITED
NATIONS
AND
INTERNATIONAL
LAW
27,
43.
 86
 José
 E.
 Alvarez.
 International
 Organizations
 as
 Law­makers.
 (Oxford:
 Oxford
 University
Press,
2005),
592.
 
  30
  
  Additionally,
 as
 independent
 actors,
 regional
 organizations
 are
 able
 to
  undertake
 a
 number
 of
 activities
 that
 complement
 state
 practice.
 
 They
 “construct
 the
social
world
in
which
cooperation
and
choice
take
place.

They
help
define
the
 interests
 that
 states
 and
 other
 actors
 come
 to
 hold.”87
 
 As
 such,
 regional
 organizations
 are
 able
 to
 exercise
 an
 authority
 that
 “gives
 them
 a
 sphere
 of
 autonomy
 and
 a
 resource
 they
 can
 use
 to
 shape
 the
 behavio[u]r
 of
 others
 in
 both
 direct
 and
 indirect
 ways.”88
 
 The
 ICGLR’s
 authority
 is
 evident
 in
 the
 influence
 it
 exerted
to
have
Sudan
join
the
Protocol.


Constructivists
argue
that

 “to
the
degree
that
states
and
state
elites
fashion
a
political
self
or
identity
in
relation
to
the
 international
community,
the
concept
of
socialization
suggests
that
the
cumulative
effect
of
 many
 countries
 in
 a
 region
 adopting
 new
 norms
 ‘may
 be
 analogous
 to
 ‘peer
 pressure’
 among
 countries.’
 
 Three
 possible
 motivations
 for
 responding
 to
 such
 ‘peer
 pressure’
 are
 legitimation,
conformity,
and
esteem.”89

  
Sudan
was
initially
opposed
to
adopting
the
Guiding
Principles
when
they
were
first
 introduced,
even
in
soft
law,
but
has
now
ratified

the
Great
Lakes
Protocol.90

The
 Great
Lakes
process,
in
facilitating
collective
action,
created
increased
pressure
for
 Sudan
to
join
and
conform
to
regional
behaviour,
and
now
this
state
is
legally
bound
 to
provide
protection
and
assistance
to
its
internally
displaced
population.

This
is
 an
important
achievement
for
a
regional
organization
considering
that
Sudan
is
the
 country
 most
 affected
 by
 internal
 displacement.91
 
 Furthermore,
 a
 regional
 organization
is
able
to
monitor
and
enforce
its
hard
law
initiatives
both
through
the
 peer
 pressure
 of
 its
 normative
 community,
 and
 as
 an
 independent
 actor
 through
 























































 87
 Michael
 Barnett
 and
 Martha
 Finnemore.
 
 “The
 power
 of
 liberal
 international
 organizations.”
 
 In
 Power
 in
 Global
 Governance,
 Michael
 Barnett
 and
 Raymond
 Duvall,
eds.
(Cambridge:
Cambridge
University
Press,
2005),
162.
 88
Barnett
and
Finnemore
(2005),
163.
 89
Finnemore
and
Sikkink
(1998),
903.
 90
IDMC
(2010),
24.
 91
IDMC
(2010),
29.
 
  31
  various
measures
and
sanctions
outlined
within
the
organization’s
charter.

Through
 this
 creation
 and
 compliance,
 a
 regional
 organization,
 such
 as
 the
 AU,
 is
 able
 to
 nurture
 both
 state
 practice
 and
 opinio
 juris
 among
 the
 states
 in
 its
 mandate,
 and
 thus
 serve
 as
 a
 legally
 relevant
 example
 to
 other
 regional
 organizations,
 and
 contribute
to
the
creation
of
customary
international
law.
 It
 must
 be
 noted,
 however,
 that
 whether
 or
 not
 the
 practice
 of
 AU
 Member
 States
 is
 able
 to
 create
 generally
 applicable
 customary
 international
 law,
 the
 Kampala
 Convention
 and
 the
 Great
 Lakes
 Protocol
 have
 laid
 the
 foundation
 for
 a
 regional
 customary
 law
 to
 be
 established.
 
 The
 ICJ
 recognized
 the
 possibility
 for
 regional
 or
 local
 custom
 most
 explicitly
 in
 the
 Asylum
 Case
 (1950).
 
 The
 Court’s
 ruling
 read
 that
 “although
 Art.38(1)(b)
 refers
 to
 ‘a
 general’
 practice,
 it
 allows
 for
 local
 (or
 regional)
 customs
 amongst
 a
 group
 of
 states
 or
 just
 two
 states
 in
 their
 relations
 inter
 se
 as
 well
 as
 for
 general
 customs
 binding
 upon
 the
 international
 community
 as
 a
 whole.”92
 
 This
 possibility
 means
 that
 the
 established
 legal
 frameworks
 for
 the
 protection
 and
 assistance
 of
 internally
 displaced
 persons
 may
 become
binding
upon
African
states
that
have
not
yet
ratified
the
treaties,
without
 necessarily
 being
 binding
 on
 non‐African
 states.
 
 While
 the
 success
 of
 norm
 development
in
Africa
is
to
be
applauded,
this
thesis
seeks
to
understand
if
the
norm
 development
 stemming
 from
 this
 region
 can
 also
 grow
 beyond
 the
 continent’s
 borders.

In
other
words,
since
the
relevant
African
states
have
already
ratified
the
 protocol,
the
issue
of
regional
customary
law
is
less
important
that
that
of
generally
 applicable
 customary
 international
 law.
 
 To
 understand
 however,
 the
 dynamics
 























































 92
Harris
(2004),
22.
 
  32
  involved
in
encouraging
norm
development
beyond
one’s
borders,
we
must
look
to
 more
than
legal
theory
and
turn
to
the
instruction
of
international
relations
theory.  
  33
  International
Law
and
International
Relations

 
  International
law
and
international
relations
are
inseparable
fields
of
study:
  one
informs
the
other.
In
discussing
the
emergence
of
new
and
binding
norms,
we
 must
 also
 investigate
 the
 politics
 behind
 these
 developments.
 
 We
 will
 analyze
 briefly
 here
 three
 international
 relations
 theories’
 considerations
 of
 international
 law:
realism,
rationalism
and
constructivism.

These
theories
will
help
to
determine
 the
potential
for
the
creation
of
customary
international
law
on
the
protection
and
 assistance
of
internally
displaced
persons.
 
  From
a
realist
point
of
view,
states
are
rational
unitary
actors
in
an
anarchic
  international
system.

They
act
in
their
own
self‐interest,
and
“are
seen
as
engaged
 in
 a
 continuous
 struggle
 with
 each
 other
 to
 maximize
 their
 relative
 material
 power.”93
 
 Realists
 believe
 that
 international
 law
 mirrors
 the
 international
 distribution
 of
 power,
 and
 consequently
 perceive
 it
 as
 epiphenomenal.94
 
 Kenneth
 Abbott
and
Duncan
Snidal
argue
that
this
dismissal
of
international
law
stems
from
 the
fact
that
“powerful
states
have
greater
control
over
international
outcomes,
are
 less
in
need
of
protection,
and
face
higher
sovereignty
costs.

They
have
less
need
for
 legalization
and
more
reason
to
resist
it,
even
though
their
adherence
is
crucial
to
its
 success.”95

Furthermore,
powerful
nations
are
perceived
to
dominate
international
 relations,
and
thus
the
content
of
international
law,
as
law
is
seen
as
“fundamentally
 























































 93
 Christian
 Reus‐Smit.
 
 “The
 politics
 of
 international
 law”
 in
 The
 Politics
 of
 International
 Law,
 Christian
 Reus‐Smit
 (ed.).
 (Cambridge:
 Cambridge
 University
 Press,
2004),15.
 94
 Kenneth
 W.
 Abbott
 and
 Duncan
 Snidal.
 
 “Hard
 and
 Soft
 Law
 in
 International
 Governance.”

(International
Organization,
vol.
54,
no.
3,
Summer
2000),
448.
 95
Abbott
and
Snidal
(2000),
448.
 
  34
  political”.96

As
the
content
of
international
law
is
dependent
on
the
will
of
powerful
 states,
realists
explain
compliance
with
international
law
as
a
“coincidence
between
 international
law
[…]
and
the
self‐interest
of
nations.”97

In
other
words,
according
 to
 realist
 theory,
 new
 international
 law
 emerges
 when
 it
 fits
 the
 interests
 and
 pursuits
of
powerful
nations.

 
  Customary
 international
 law
 is
 not
 considered
 to
 have
 an
 impact
 on
 state
  behaviour
in
the
realist
school
of
thought.

Jack
Goldsmith
and
Eric
Posner,
leading
 realist
writers,
take
issue
with
customary
international
law;
they
say
that
“[i]t
lacks
 a
 centralized
 lawmaker,
 a
 centralized
 executive
 enforcer,
 and
 a
 centralized
 authoritative
 decisionmaker.”98
 
 Rather
 than
 rejecting
 the
 concept
 of
 customary
 international
 law
 altogether,
 however,
 Goldsmith
 and
 Posner
 advance
 their
 own
 paradigm
 that
 “rejects
 the
 usual
 explanations
 of
 [customary
 international
 law]
 based
on
opinio
juris
legality,
morality,
and
related
concepts.”99

Rather,
their
theory
 views
the
emergence
of
and
compliance
with
customary
international
law
as
part
of
 “one
 of
 four
 different
 behavio[u]ral
 logics”:
 coincidence
 of
 interest,
 coercion
 by
 a
 powerful
state,
true
cooperation
(as
seen
through
the
prisoner’s
dilemma),
and
the
 resolution
of
coordination
problems.100


  























































 96
Reus‐Smit
(2004),
16.
 97
 Andrew
 T.
 Guzman.
 “A
 Compliance‐Based
 Theory
 of
 International
 Law.”

 (California
Law
Review,
vol.
90,
2002),
1837.

 98
Jack
L.
Goldsmith
and
Eric
A.
Posner.
“A
Theory
of
Customary
International
Law.”
 (The
University
of
Chicago
Law
Review,
vol.
66,
no.
4,
Autumn
1999),
1114.
 99
Goldsmith
and
Posner
(1999),
1113.
 100 
Goldsmith
and
Posner
(1999),
1114‐1115.
 
  35
  There
are
a
number
of
issues
with
Goldsmith
and
Posner’s
theory,
and
with
 the
realist
approach
to
international
law
in
general.

This
author
believes
that
it
is
 not
mere
coincidence
that
a
significant
body
of
law
–
customary
international
law
–
 is
consistently
reproduced
and
upheld.

If
this
is
so,
why
is
customary
international
 law
growing,101
and
more
broadly,
why
is
so
much
time,
energy
and
money
spent
on
 the
 creation
 of
 international
 law?102
 
 While
 the
 motivation
 of
 state‐interest
 cannot
 be
dismissed,
realism
fails
to
explain
“how
law
comes
to
constrain
strong
states”.103

 Being
constrained
is
most
assuredly
not
in
a
state’s
interest,
and
when
this
occurs
to
 strong
 states,
 it
 is
presumably
not
 because
 they
are
being
coerced
 by
 other
 states,
 but
 rather
 constrained
 by
 the
 power
 of
 international
 law.
 
 Reus‐Smit
 further
 critiques
 realism
 in
 stating
 that
 “it
 has
 no
 account
 of
 how
 weak
 states
 and
 other
 actors
 use
 the
 law
 to
 shape
 outcomes.”104
 
 As
 that
 is
 precisely
 the
 concern
 of
 this
 thesis,
realism
is
considered
to
have
insufficient
explanatory
power
for
the
task
at
 hand.
 Rationalism
–
an
offshoot
of
neoliberal
institutionalism
–
has
a
similar
focus
 on
 state
 self‐interest,
 manifested
 “primarily
 as
 reputation.”105
 
 Rationalists,
 however,
 “reimagine
 politics
 as
 a
 form
 of
 utility‐maximising
 strategic
 action,
 with
 states
portrayed
as
rational
egoists,
seeking
the
most
effective
and
efficient
means
 























































 101 
Reus‐Smit
(2004),
17.
 102 
Guzman
(2002),
1837.
 103 
Reus‐Smit
(2004),
17.
 104 
Reus‐Smit
(2004),
17.
 105 
 Michael
 Byers.
 “International
 Law”
 in
 The
 Oxford
 Handbook
 of
 International
 Relations,
Christian
Reus‐Smit
and
Duncan
Snidal
(eds.).

(Oxford:
Oxford
University
 Press,
2008),
618.
 
  36
  available
 to
 realize
 their
 individual
 and
 collective
 interests.”106
 
 Rather
 than
 disparage
 international
 law,
 as
 do
 realists,
 rationalists
 see
 it
 as
 “a
 functional,
 regulatory
institution
of
international
society.”107

The
strength
of
international
law
 operates
on
a
spectrum,
however,
with
customary
international
law
as
“perhaps
the
 weakest
 form
 of
 international
 law.”108
 
 Andrew
 Guzman,
 a
 prominent
 rationalist,
 advances
 a
 reputational
 conception
 of
 international
 law
 compliance.
 
 He
 believes
 that
customary
international
law
“consists
of
legal
norms
whose
violation
will
harm
 a
 country’s
 reputation
 as
 a
 law‐abiding
 state.”109
 
 States
 rationally
 choose
 their
 course
of
action
in
international
law
with
their
reputation
in
mind:
“by
developing
 and
preserving
a
good
reputation,
states
are
able
to
extract
greater
concessions
for
 future
 promises.”110
 This
 theory,
 as
 part
 of
 rational‐choice
 theory
 applied
 to
 international
 law,
 has
 been
 critiqued
 for
 portraying
 “states
 as
 the
 only
 actors
 in
 international
affairs.”111

As
this
thesis
has
demonstrated,
however,
non‐state
actors
 have
played
an
important
role
in
bringing
the
Guiding
Principles
to
where
they
are
 today,
 including
 the
 UN,
 the
 RSG‐IDP,
 legal
 experts
 who
 compiled
 the
 document,
 non‐governmental
 organizations
 (NGOs)
 through
 advocacy
 and
 dissemination,
 and
 regional
organizations.

These
other
actors
have
played
such
a
essential
role
in
the
 development
 of
 a
 normative
 framework
 for
 the
 protection
 and
 assistance
 of
  























































 106 
Reus‐Smit
(2004),
18.
 107 
Reus‐Smit
(2004),
18.
 108 
Guzman
(200),
1878.
 109 
Guzman
(2002),
1876.
 110 
Guzman
(2002),
1886.
 111 
Byers
(2008),
618.
 
  37
  internally
 displaced
 persons,
 that
 state‐centric
 rationalism
 is
 not
 an
 appropriate
 lens
through
which
to
examine
the
Guiding
Principles’
further
progress.
 Constructivism
 is
 a
 more
 social
 theory
 than
 realism
 or
 rationalism.
 
 
 For
 constructivists,
 “to
 the
 extent
 that
 structures
 shape
 the
 behaviour
 of
 states
 and
 other
 actors,
 normative
 and
 ideational
 structures
 are
 as
 important
 as
 material
 structures.”112
 
 Martha
 Finnemore
 and
 Kathryn
 Sikkink
 add
 that
 “the
 international
 structure
 is
 determined
 by
 the
 international
 distribution
 of
 ideas.
 
 Shared
 ideas,
 expectations,
 and
 beliefs
 about
 appropriate
 behaviour
 are
 what
 give
 the
 world
 structure,
 order
 and
 stability.”113
 
 While
 they
 are
 strong
 proponents
 of
 ideational
 considerations,
constructivists
also
acknowledge
that
states
act
in
their
own
interest
 and
with
concern
for
power
(constituting
material
structures),
similarly
to
realists
 and
 rationalists.
 
 Constructivists
 differ
 in
 these
 considerations,
 however,
 through
 “the
 sources
 that
 they
 identify
 for
 state
 interests,
 and
 the
 content
 of
 those
 interests.”114

Indeed
it
is
“intersubjective
beliefs
[that]
shape
actors’
identities
and
 in
 turn
 their
 interests.”115
 
 Constructivism
 is
 a
 relational
 theory:
 identities
 are
 constructed
 and
 learned
 through
 social
 interaction;
 “actors
 are
 in
 a
 constant
 dialogue
 with
 the
 prevailing
 norms
 of
 legitimate
 agency
 that
 constitute
 role
  























































 112 
Reus‐Smit
(2004),
21.
 113 
 Martha
 Finnemore
 and
 Kathryn
 Sikkink.
 
 “International
 Norm
 Dynamics
 and
 Political
Change.”

(International
Organization,
vol.
52,
no.
4,
Autumn
1998),
894.
 114 
 Ian
 Hurd.
 “Constructivism”
 in
 The
 Oxford
 Handbook
 of
 International
 Relations,
 Christian
 Reus‐Smit
 and
 Duncan
 Snidal
 (eds.).
 
 (Oxford:
 Oxford
 University
 Press,
 2008),
310.
 115 
Reus‐Smit
(2004),
21.
 
  38
  identities
to
define
their
senses
of
self.”116

In
relation
to
conforming
with
norms
and
 international
 law,
 March
 and
 Olsen
 advance
 a
 “‘logic
 of
 appropriateness’,
 in
 which
 actors
 internalize
 roles
 and
 rules
 as
 scripts
 to
 which
 they
 conform,
 not
 for
 instrumental
 reasons
 –
 to
 get
 what
 they
 want
 [as
 in
 other
 international
 relations
 theories]
 –
 but
 because
 they
 understand
 the
 behavior
 to
 be
 good,
 desirable
 and
 appropriate.”117

The
objective
of
appropriate
behaviour
leads
us
to
understand
that
 international
norms
are
also
“often
motivated
by
moral
or
social
concerns.”118

 Because
 constructivism
 is
 “better
 suited
 to
 explaining
 morally
 infused
 developments”,
 this
 theory
 is
 preferred
 for
 examining
 the
 advancement
 of
 the
 Guiding
Principles.119

The
protection
and
assistance
of
internally
displaced
persons
 is
a
profoundly
social
and
moral
objective.

Acting
to
undertake
these
objectives
may
 thus
 be
 perceived
 as
 seeking
 to
 behave
 in
 a
 “good,
 desirable
 and
 appropriate”
 manner,
 and
 to
 adhere
 to
 the
 socially
 accepted
 international
 identity
 of
 states.

 Intersubjective
 beliefs
 in
 the
 importance
 and
 critical
 necessity
 of
 a
 normative
 framework
 for
 the
 protection
 and
 assistance
 of
 these
 vulnerable
 persons
 come
 to
 inform
 the
 identity
 of
 a
 state
 with
 these
 concerns,
 and
 becomes
 part
 of
 their
 state
 interest
 to
 construct
 and
 adhere
 to
 such
 norms
 as
 the
 Guiding
 Principles.

 Additionally,
 constructivists
 focus
 on
 non‐state
 and
 intergovernmental
 actors
 in
 addition
 to
 states.120
 
 This
 broader
 perspective
 allows
 us
 to
 incorporate
 























































 116 
Reus‐Smit
(2004),
22.
 117 
Finnemore
and
Sikkink
(1998),
912.
 118 
Abbott
and
Snidal
(2000),
425.
 119 
Byers
(2008),
620.
 120 
Abbott
and
Snidal
(2000),
425.
 
  39
  considerations
 of
 the
 motivations
 and
 behaviours
 of
 institutions
 like
 the
 RSG‐IDP,
 the
UN,
the
AU
and
the
ICGLR.

These
actors
also
have
socially
constructed
identities
 that
 lead
 them
 to
 pursue
 specific
 interests,
 such
 as
 encouraging
 and
 facilitating
 relevant
state
practice,
and
nurturing
the
emergence
of
opinio
juris.

Finally,
we
note
 that
 constructivism
 pairs
 naturally
 with
 the
 study
 of
 international
 law,
 believing
 that
 “[i]nternational
 law
 is
 by
 its
 very
 nature
 situated
 within
 the
 practices
 of
 international
 relations
 since
 it
 describes
 and
 prescribes
 norms,
 rules,
 and
 procedures
 that
 are
 crystallising
 or
 emerging
 from
 social
 practice.”121
 
 The
 constructivist
 perspective
 will
 be
 applied
 in
 the
 examination
 of
 the
 various
 power
 considerations
 in
 the
 potential
 development
 of
 the
 protection
 and
 assistance
 of
 internally
displaced
persons
becoming
generally
applicable
customary
international
 law.
 
  























































 121 
Byers
(2008),
621,
citing
Warner
(1998,
323).
 
  40
  Power
and
Customary
International
Law
 
  With
the
Kampala
Convention
procedurally
prepared
to
contribute
to
the
 creation
of
customary
international
law
through
legal
theory,
we
must
look
further
 into
 the
 power
 dynamics
 involved
 in
 this
 creation
 process.
 
 “Power
 is
 intrinsic
 to
 both
elements
of
customary
international
law”
–
state
practice
and
opinio
juris
–
and
 is
 therefore
 undeniably
 important
 to
 the
 assessment
 of
 the
 development,
 maintenance
or
change
of
customary
international
law.

Power,
however
is
manifest
 in
 many
 forms.
 
 This
 section
 will
 examine
 the
 concept
 of
 “legally
 relevant”
 state
 practice;
Finnemore
and
Sikkink’s
norm
“life
cycle”
theory;
generalized
expressions
 of
 support
 for
 the
 normative
 development
 of
 the
 protection
 and
 assistance
 of
 internally
 displaced
 persons;
 legal
 and
 political
 costs
 of
 action;
 and
 the
 inherent
 challenges
to
AU
Member
States
being
leaders
in
global
norm
development.
 We
can
evaluate
the
potential
of
the
Kampala
Convention
in
applying
the
 principle
 of
 relevant
 or
 specially
 affected
 state
 –
 and
 by
 analogy
 international
 organization
 –
 practice.
 
 The
 International
 Court
 of
 Justice’s
 (ICJ)
 approach
 to
 outlining
 the
 number
 and
 kind
 of
 states
 and
 their
 practice
 required
 for
 customary
 international
law
“demonstrates
that
a
practice
does
not
have
to
be
followed
by
all
 states
for
it
to
be
the
basis
of
general
custom
and
that
the
practice
of
states
with
a
 particular
 interest
 in
 the
 subject
 matter
 is
 the
 most
 relevant.”122
 
 Traditionally,
 























































 122 
Harris
(2004),
37.

This
understanding
is
gleaned
from
the
Legality
of
the
Threat
 or
Use
of
Nuclear
Weapons
case
(United
Nations),
para.
96,
where
it
was
the
practice
 of
 states
 possessing
 nuclear
 weapons
 that
 helped
 to
 determine
 the
 legality
 of
 the
 issue.
 
  41
  however,
 the
 interpretation
 of
 “states
 with
 a
 particular
 interest”
 often
 suggested
 that
this
was
in
reference
to
wealthy
states,
as
they
would
have
widespread
political
 and
economic
interests
likely
to
be
affected
by
new
legal
developments.

This
essay
 questions,
 however,
 if
 relevant
 states
 can
 be
 states
 other
 than
 the
 most
 powerful.

 An
initial
reading
of
Lauterpacht
would
suggest
that
this
is
possible:

 “…assuming
 here
 that
 we
 are
 confronted
 with
 the
 creation
 of
 new
 international
 law
 by
 custom,
what
matters
is
not
so
much
the
number
of
states
participating
in
its
creation
and
 the
length
of
the
period
within
which
that
change
is
taking
place,
as
the
relative
importance,
 in
any
particular
sphere,
of
states
inaugurating
the
change.”123
  We
 are
 indeed
 being
 “confronted
 with
 the
 creation
 of
 new
 international
 law
 by
 custom”,
 and
 African
 states
 are
 of
 primary
 importance
 in
 the
 sphere
 of
 internally
 displaced
persons.
 
  Africa,
 as
 a
 region,
 has
 forty
 percent
 of
 the
 world’s
 internally
 displaced
  population.124
 
 There
 are
 11.6
 million
 internally
 displaced
 persons
 in
 twenty‐one
 countries
on
the
continent.125

Sudan
has
the
highest
internally
displaced
population
 in
the
world,
with
4.9
million
people
forced
to
flee
from
their
homes.126

Also
among
 the
 top
 six
 countries
 with
 the
 largest
 internally
 displaced
 populations
 is
 the
 Democratic
 Republic
 of
 Congo
 with
 1.9
 million
 people
 (one
 million
 of
 which
 were
  























































 123 
Harris
(2004),
37,
citing
Lauterpacht
(1950)
27,
B.Y.I.L
376
at
394.
 124 
 IDMC
 (2010),
 29.
 The
 21
 African
 countries
 monitored
 by
 the
 IDMC
 include:
 Algeria,
Niger,
Nigeria,
Chad,
Central
African
Republic,
Congo,
Senegal,
Liberia,
Côte
 d’Ivoire,
 Togo,
 Angola,
 Democratic
 Republic
 of
 Congo,
 Burundi,
 Rwanda,
 Uganda,
 Kenya,
 Somalia,
 Ethiopia,
 Eritrea,
 Sudan,
 Zimbabwe.
 
 Other
 countries
 may
 have
 smaller
scale
displacement
that
is
not
monitored
by
the
IDMC,
like
South
Africa,
for
 example,
where
people
were
forced
to
flee
their
habitual
places
of
residence
due
to
 the
xenophobic
attacks
that
occurred
in
2008.
 125 
IDMC
(2010),
8.
 126 
IDMC
(2010),
13.
 
  42
  newly
 displaced
 persons
 in
 2009),
 and
 Somalia
 with
 1.5
 million
 people.127
 
 By
 comparison,
the
Americas
have
5
million
internally
displaced;
South
and
South‐East
 Asia
have
4.3
million;
the
Middle
East
has
3.8
million;
and,
Europe
and
Central
Asia
 have
2.4
million.128

We
see
clearly
that
if
state
practice
by
the
most
important
states
 with
 respect
 to
 a
 particular
 issue
 is
 paramount
 for
 the
 creation
 of
 customary
 international
 law,
 then
 African
 state
 practice
 in
 regard
 to
 the
 protection
 and
 assistance
of
internally
displaced
persons
is
highly,
or
even
the
most,
relevant.

The
 Kampala
Convention
and
the
Great
Lakes
Protocol
are
two
strong
examples
of
both
 state
 and
 regional
 organization
 practice.
 
 We
 have
 seen
 above
 that
 regional
 organization
 practice,
 independent
 of,
 yet
 complementary
 to,
 state
 practice
 should
 also
 be
 able
 to
 contribute
 to
 the
 creation
 of
 customary
 international
 law.

 Consequently,
the
statistics
above
and
the
pursuant
treaty
responses
would
indicate
 that
 African
 regional
 initiatives
 for
 the
 protection
 and
 assistance
 of
 internally
 displaced
persons
could,
in
theory,
create
a
comparable
behavioural
trend
and
sense
 of
 normative
 obligation
 in
 other
 regions,
 especially
 those
 affected
 by
 internal
 displacement.
 Finnemore
and
Sikkink,
from
a
constructivist
perspective,
have
developed
a
 theory
called
“the
Norm
‘Life
Cycle’”
that
lays
out
the
stages
through
which
norms
 pass
to
be
adopted
and
normalized
in
international
society.129

The
first
stage,
“norm
 























































 127 
IDMC
(2010),
13.
 128 
IDMC
(2010),
13.
 129 
For
a
more
in‐depth
analysis
of
Francis
Deng
as
a
norm
entrepreneur
in
the
life
 cycle
of
the
Guiding
Principles,
see
Hannah
Entwisle.

“Tracing
Cascades:
The
 Normative
Development
of
the
U.N.
Guiding
Principles
on
Internal
Displacement.”

 (Georgetown
Immigration
Law
Journal,
vol.
19,
2004‐2005:
369‐390).

See
also
Phil
 
  43
  emergence”,
 is
 led
 by
 norm
 entrepreneurs
 that
 “convince
 a
 critical
 mass
 of
 states
 (norm
 leaders)
 to
 embrace
 a
 new
 norm.”130
 
 In
 the
 case
 of
 the
 protection
 and
 assistance
 of
 internally
 displaced
 persons,
 the
 norm
 entrepreneurs
 may
 be
 considered
 to
 be
 the
 RSG‐IDP,
 NGOs,
 and
 the
 AU.
 
 Their
 work
 helped
 lead
 to
 the
 widespread
support
of
the
Guiding
Principles
as
demonstrated
notably
in
the
UNGA
 in
 2005,
 and
 in
 the
 progress
 of
 African
 countries
 working
 toward
 legally
 binding
 themselves
to
protecting
and
assisting
internally
displaced
persons.

The
goal
of
the
 first
stage
is
for
the
promoted
norm
to
reach
a
tipping
point,
upon
which
time
the
 norm
“cascades”,
which
is
the
second
stage.

Cascading
means
that
“[m]ore
countries
 begin
 to
 adopt
 new
 norms
 more
 rapidly
 even
 without
 domestic
 pressure
 for
 such
 change.”131
 
 These
 new
 countries
 are
 socialized
 by
 the
 norm
 leaders,
 and
 comply
 with
the
new
norm
as
a
way
of
fulfilling
their
identity
as
members
of
international
 society.

We
see
that
“state
identity
fundamentally
shapes
state
behavio[u]r,
and
that
 state
 identity
 is,
 in
 turn,
 shaped
 by
 the
 cultural‐institutional
 context
 within
 which
 states
 act.”132
 
 As
 an
 increasing
 number
 of
 states
 comply
 with
 the
 new
 norm,
 we
 reach
 the
 third
 stage,
 internalization,
 at
 which
 point
 the
 norm
 becomes
 “taken
 for
 granted”
and
complied
with
almost
automatically.

If
this
is
stage
is
reached
in
the
 























































 Orchard
(2010),
whose
work
also
provides
a
compelling
analysis
of
the
power
of
the
 Guiding
Principles
to
affect
state
behaviour
in
their
current
form
as
soft
law.

He
 looks
particularly
at
the
contribution
of
the
Guiding
Principles
in
the
emergence
of
a
 new
norm
against
the
forcible
return
of
internally
displaced
persons.

While
his
 article
focuses
on
the
Guiding
Principles
as
soft
law
per
se,
I
follow
a
somewhat
 divergent
path
in
examining
the
Guiding
Principles’
potential
to
develop
into
hard
 law.
 130 
Finnemore
and
Sikkink
(1998),
895.
 131 
Finnemore
and
Sikkink
(1998),
902.
 132 
Finnemore
and
Sikkink
(1998),
902.
 
  44
  case
of
the
internally
displaced
persons,
adherence
to
the
Guiding
Principles
would
 become
a
highly
normalized
activity.
 To
 date,
 a
 normative
 framework
 for
 the
 protection
 and
 assistance
 of
 internally
 displaced
 persons
 can
 arguably
 be
 found
 to
 have
 progressed
 within
 the
 first
 stage
 of
 the
 norm
 life
 cycle.
 
 It
 is
 difficult
 to
 determine
 whether
 a
 sufficient
 number
 of
 critical
 states
 has
 been
 amassed
 to
 bring
 the
 Guiding
 Principles
 to
 a
 tipping
point,
“because
states
are
not
equal
when
it
comes
to
normative
weight”.133

 As
 argued
 above,
 the
 most
 “critical”
 states
 for
 the
 creation
 of
 customary
 international
law
are
the
states
with
the
greatest
relative
importance
for
the
issue
–
 in
this
case,
many
African
states.


 
  In
 addition
 to
 the
 states
 with
 existing
 or
 pending
 legal
 regimes
 for
 the
  protection
 and
 assistance
 of
 internally
 displaced
 persons,
 there
 is
 evidence
 of
 generalized
 support
 for
 the
 creation
 of
 a
 legally
 binding
 a
 normative
 framework.

 This
 support
 also
 demonstrates
 a
 widening
 socialization
 to
 the
 importance
 and
 interest
 in
 pursuing
 this
 normative
 development.
 
 Conventionally
 important
 and
 influential
 states
 have
 already
 demonstrated
 support
 for
 the
 Guiding
 Principles
 through
the
UNGA.

For
example,
when
the
UNCHR
adopted
the
Guiding
Principles
 in
1998,
the
resolution
to
do
so
was
sponsored
by
fifty‐five
countries
–
some
with
 histories
of
internal
displacement,
and
others
not.

There
were
countries
from
every
 continent
 supporting
 the
 resolution;
 of
 note
 is
 the
 support
 from
 Canada,
 the
 Scandinavian
 countries,
 France,
 Germany,
 the
 Russian
 Federation
 and
 the
 United
  























































 133 
Finnemore
and
Sikkink
(1998),
901.
 
  45
  States
 of
 America.134 
 
 
 Additional
 statements
 of
 support
 have
 been
 made
 by
 Switzerland,
 Austria,
 and
 Belgium
 on
 “behalf
 of
 the
 European
 Member
 States
 and
 [its]
 associated
 countries”.135
 
 This
 state
 practice
 through
 statements
 comes
 in
 addition
 to
 the
 aforementioned
 endorsement
 of
 the
 Guiding
 Principles
 demonstrated
by
190
countries
at
the
UN
World
Summit
in
2005,
and
the
adoption
 of
 a
 number
 of
 UNGA
 and
 UNCHR
 resolutions
 since
 then.
 
 This
 degree
 of
 activity,
 while
 not
 specifically
 related
 to
 the
 Kampala
 Convention,
 lends
 support
 to
 the
 foundations
 of
 that
 Convention
 –
 the
 Guiding
 Principles,
 and
 to
 internal
 displacement
issues
in
general.

This
support,
furthermore,
is
also
evidence
of
states
 being
 socialized
 to
 the
 importance
 and
 value
 of
 a
 normative
 framework
 for
 the
 protection
and
assistance
of
internally
displaced
persons.
 Moreover,
 by
 expressing
 support
 for
 the
 Guiding
 Principles,
 states
 are
 expressing
 support
 for
 the
 rules
 pulled
 from
 existing
 treaties,
 and
 doing
 so
 in
 a
 context
that
does
extend
beyond
those
treaties.

This
support
can
help
constitute
the
 state
 practice
 and
 opinio
 juris
 required
 to
 establish
 a
 generally
 applicable
 rule
 of
 customary
international
law
for
the
protection
and
assistance
of
internally
displaced
 persons.
 
 Consequently,
 we
 can
 see
 this
 state
 practice
 as
 gradually
 contributing
 to
 the
normalization
of
the
rights
and
responsibilities
laid
out
in
the
Guiding
Principles.

 This
 activity,
 and
 lack
 of
 objection
 to
 the
 adoption
 of
 the
 Kampala
 Convention,
 would
further
suggest
either
a
lack
of
interest
or
a
tacit
acceptance
of
the
treaty,
and
 the
progressive
implications
this
may
have
for
customary
international
law.
 























































 134 
Schmidt
(2004),
503.
 135 
Schmidt
(2004),
503‐504.
 
  46
  
  In
 some
 analyses,
 state
 practice
 is
 generally
 taken
 in
 consideration
 of
 the
  costs
–
legal,
political
and
economic
–
of
that
action.

Byers
explains
that
the
greater
 the
 cost
 of
 a
 certain
 state
 practice,
 the
 greater
 weight
 that
 activity
 would
 have
 in
 contributing
to
the
development,
maintenance
or
change
of
customary
international
 law.
 
 Because
 a
 treaty
 has
 legally
 binding
 consequences
 for
 its
 participants,
 while
 resolutions
 and
 declarations
 do
 not,
 treaties
 may
 contribute
 more
 substantially
 to
 the
customary
international
law
process.136

Considering
this,
the
practice
of
the
AU
 as
 the
 initiating
 body
 and
 of
 its
 Member
 States
 in
 adopting
 the
 Convention
 has
 substantially
 contributed
 to
 the
 development
 of
 an
 international
 protection
 and
 assistance
regime
for
internally
displaced
persons.137

The
international
community,
 as
 a
 whole,
 has
 contributed
 to
 a
 lesser
 degree,
 as
 the
 costs
 of
 supporting
 soft
 law
 have
been
less
substantial
than
pursuing
hard
law.138

It
should
also
be
recognized
 that
the
costs
of
adopting
the
Guiding
Principles
are
more
substantial
for
states
with
 larger
 internally
 displaced
 populations
 than
 for
 states
 without
 internal
 displacement.
 
  Building
on
this
existing
level
of
support,
costs
of
further,
more
substantial,
  adoption
 of
 the
 Guiding
 Principles
 may
 be
 minimal
 for
 non‐African
 countries
 including
 a
 number
 of
 developed
 and
 wealthy
 countries.
 
 Their
 important
 state
 























































 136 
Byers
(1999),
169‐170.
 137 
Malanczuk
adds
that
“If
the
treaty
claims
to
be
declaratory
of
customary
law,
or
 is
intended
to
codify
customary
law,
it
can
be
quoted
as
evidence
of
customary
law
 even
against
a
state
which
is
not
a
party
to
the
treaty.

This
is
so
even
if
the
treaty
 has
not
received
enough
ratifications
to
come
into
force.”
Malanczuk
(1997),
40.
 138 
 Byers
 explains
 that
 in
 instances
 of
 declarations
 and
 resolutions,
 cost
 “may
 be
 associated
with
political
rather
than
legal
commitment
such
that
failure
to
fulfil
such
 a
commitment
is
somehow
detrimental
to
a
participating
State’s
future
international
 relations,
for
example,
in
affecting
its
credibility.”
Byers
(1999),
157.
 
  47
  practice
 would
 strengthen
 the
 custom
 of
 the
 Guiding
 Principles,
 thus
 creating
 a
 greater
 pull
 on
 other
 states
 to
 comply.
 
 As
 mentioned
 in
 the
 definition
 of
 an
 internally
 displaced
 person,
 displacement
 can
 be
 caused
 by
 conflict,
 human
 rights
 violations,
human‐made
and
natural
disasters
and
large‐scale
development
projects.

 Considering
 this
 definition,
 countries
 like
 Canada,
 the
 US
 and
 European
 Union
 Member
 States
 presumably
 face
 little
 risk
 of
 incurring
 sizable
 internally
 displaced
 populations.
Hurricane
Katrina,
however,
which
struck
the
US
Gulf
Coast
in
August
 2005,
is
a
considerable
exception.

Over
one
million
people
were
forced
to
flee
from
 their
 homes,
 and
 tens
 of
 thousands
 currently
 remain
 displaced.139
 
 The
 US
 Government’s
response
to
the
disaster
did
not
follow
the
Guiding
Principles
before,
 during
 or
 after
 displacement,
 despite
 the
 fact
 that
 President
 George
 W.
 Bush
 had
 called
for
“wider
international
recognition”
of
the
Principles,
calling
them
“a
useful
 framework
 for
 dealing
 with
 internal
 displacement.”140
 
 One
 of
 the
 challenges
 to
 adopting
 legislation
 on
 internal
 displacement
 is
 that
 addressing
 issues
 of
 internal
 displacement
 requires
 a
 certain
 degree
 of
 self‐reflection
 that
 is
 not
 present
 in
 the
 adoption
of
the
Refugee
Convention,
for
example.

Accepting
refugees
following
the
 definition
 outlined
 in
 the
 1951
 Convention141
 is
 an
 acknowledgement
 of
 another
 country’s
 problems.
 
 Agreeing
 to
 protect
 and
 assist
 the
 internally
 displaced
 within
 























































 139 
Chris
Kromm
and
Sue
Sturgis.
“Hurricane
Katrina
and
the
Guiding
Principles
on
 Internal
Displacement:
A
Global
Human
Rights
Perspective
on
a
National
Disaster.”
 (Brookings‐Bern
Institute
and
the
Institute
for
Southern
Studies,
Special
Report,
vol.
 xxxvi,
 no.
 1
 &
 2,
 2008.
 
 Available
 online
 at
 http://www.southernstudies.org/ISSKatrinaHumanRightsJan08.pdf.

Accessed
June
 4,
2010),
5.
 140 
Kromm
and
Sturgis
(2008),
5.
 141 
See
footnote
7
for
the
Convention
definition
of
a
refugee.
 
  48
  one’s
 own
 country
 is
 to
 acknowledge
 that
 one’s
 own
 country
 may
 have
 challenges
 relating
 to
 the
 role
 and
 responsibility
 of
 government.
 
 In
 the
 case
 of
 Hurricane
 Katrina,
 for
 example,
 following
 the
 Guiding
 Principles
 would
 have
 obliged
 the
 US
 Government
 to
 prepare
 better
 disaster
 prevention
 measures;
 would
 have
 better
 guaranteed
 the
 rights
 of
 the
 displaced,
 notably
 vulnerable
 populations,
 during
 displacement;
would
have
better
regulated
humanitarian
assistance;
and
improved
 the
 process
 of
 return,
 resettlement
 and
 reintegration,
 as
 each
 of
 these
 issues
 is
 covered
by
a
different
section
within
the
Guiding
Principles.

In
terms
of
legal
and
 political
costs
of
incorporating
a
new
international
norm,
the
US
Government
would
 arguably
benefit
from
the
domestic
implementation
of
the
Guiding
Principles
as
they
 provide
 clear
 direction
 for
 action;
 and
 its
 citizens
 would
 benefit
 from
 the
 rights
 enshrined
therein.
 
  Other
 wealthy
 and
 developed
 countries
 stand
 to
 gain
 from
 adopting
 the
  Guiding
Principles.

The
Guiding
Principles
are
both
a
preventative
and
responsive
 instrument:
 they
 require
 governments
 to
 pre‐empt
 displacement
 by
 planning
 and
 preparing
 for
 its
 potential
 causes.142
 
 If
 displacement
 does
 occur,
 the
 Guiding
 Principles
 provide
 a
 roadmap
 of
 rights
 and
 responsibilities
 to
 consider,
 thus
 facilitating
a
government’s
response
to
the
crisis.

It
is
consequently
in
the
material
 interest
of
even
wealthy
states
to
adopt
the
Guiding
Principles,
at
least
as
a
planning
 strategy.
 
 Ideationally,
 the
 Guiding
 Principles
 reinforce
 the
 identities
 of
 states
 that
 























































 142 
 This
 would
 arguably
 even
 include
 taking
 measures
 to
 prevent
 climate
 change
 migration
 within
 one’s
 own
 country,
 which
 may
 add
 economic
 costs
 for
 a
 government
 that
 has
 adopted
 the
 Guiding
 Principles,
 but
 would
 also
 demonstrate
 important
 political
 leadership
 and
 responsibility
 that
 would
 potentially
 off‐set
 the
 economic
costs,
depending
on
one’s
perspective.
 
  49
  prioritize
 respect
 for
 human
 rights,
 regulate
 to
 prevent
 human‐made
 disasters,
 prepare
 for
 natural
 disasters,
 and
 demonstrate
 concern
 for
 minority
 populations
 and
vulnerable
persons.

This
relation
to
the
values
and
identities
claimed
by
many
 Western
states,
among
others,
further
suggests
that
it
is
in
their
interest
to
pursue
a
 generally
 applicable
 rule
 for
 the
 protection
 and
 assistance
 of
 internally
 displaced
 persons.
 Developed‐state
 practice
 combined
 with
 the
 initiative
 of
 the
 AU
 and
 its
 Member
States’
practice
would
provide
leadership,
initiative
and
a
growing
sense
of
 obligation
 for
 states
 and
 regional
 organizations
 in
 Latin
 America
 and
 Asia,
 for
 example,
 to
 also
 adopt
 the
 Guiding
 Principles
 as
 binding
 law.
 
 While
 the
 Kampala
 Convention
and
the
Great
Lakes
Protocol
broke
the
ground
for
region‐wide
adoption
 of
legally
binding
measures
for
the
protection
and
assistance
of
internally
displaced
 persons,
an
African
initiative
alone,
without
the
legal
support
of
developed
nations,
 would
 face
 three
 important
 and
 related
 challenges
 in
 creating
 new
 customary
 international
 law.
 
 Firstly,
 while
 it
 is
 a
 strong
 move
 to
 be
 able
 to
 lead
 the
 internal
 displacement
protection
and
assistance
initiative
with
the
creation
of
a
Convention
 and
related
relevant
state
practice,
Africa’s
position
as
the
region
most
affected
by
 internal
 displacement
 is
 not
 a
 desirable
 title
 to
 hold.
 
 Having
 significant
 internally
 displaced
 populations
 suggests
 that
 something
 is
 going
 wrong
 with
 the
 given
 country
 –
 that
 there
 has
 been
 a
 natural
 disaster
 that
 the
 government
 has
 insufficiently
 or
 neglectfully
 responded
 to,
 thus
 making
 certain
 areas
 inhospitable;
 that
 a
 given
 community
 has
 been
 uprooted
 for
 industrial
 projects
 to
 replace
 their
 farming
 land;
 that
 warfare
 or
 the
 threat
 of
 conflict
 has
 forced
 people
 to
 flee
 their
  
  50
  homes
with
nothing
but
what
they
are
wearing.

Can
being
the
region
host
to
such
a
 negative
 situation
 positively
 incite
 other
 regions
 to
 adopt
 measures
 similar
 to
 the
 Kampala
 Convention?
 
 Do
 African
 countries
 have
 the
 power
 to
 be
 the
 socializing
 agents
of
an
emerging
norm?

On
the
one
hand,
it
could,
if
SAARC,
for
example,
were
 to
 acknowledge
 that
 they
 do
 not
 want
 to
 be
 faced
 with
 similar
 displacement
 challenges
 to
 Africa,
 and
 thus
 undertake
 to
 institute
 measures
 that
 would
 oblige
 them
to
prevent
them
and
respond
to
those
currently
displaced.

On
the
other
hand,
 however,
 other
 regions
 may
 believe
 that
 their
 displacement
 situation
 is
 not
 as
 severe
 as
 Africa’s
 and
 thus,
 that
 they
 do
 not
 require
 such
 a
 Convention
 or
 parallel
 rule
of
customary
international
law.

This
second
response
follows
on
the
necessity
 for
 self‐reflection
 that
 responding
 (either
 preventatively
 or
 actively)
 to
 internal
 displacement
requires.143
 Secondly,
 displacement
 often
 persists
 when
 governments
 are
 unable
 or
 unwilling
to
respond
to
it,
thus
leading
to
violations
of
the
displaced’s
human
rights.

 Numerous
 African
 states
 are
 often
 ranked
 among
 the
 worst
 countries
 on
 most
 systematic
 evaluations
 of
 various
 political
 and
 economic
 conditions.
 
 For
 example,
 on
 the
 UN
 Development
 Program’s
 human
 development
 index
 (HDI)144 
 report,
 of
 those
 countries
 listed
 with
 “Low
 Human
 Development”
 (numbers
 159‐182,
 the
 lowest
twenty‐four
countries)
only
two
countries
(Timor
Leste
and
Afghanistan)
are
 























































 143 
 On
 self‐reflection,
 it
 is
 interesting
 to
 note
 that
 among
 the
 first
 twenty‐six
 countries
 to
 sign
 the
 AU
 Kampala
 Convention,
 twelve
 are
 considered
 to
 have
 important
 internally
 displaced
 populations,
 while
 the
 fourteen
 others
 currently
 have
none
reported.
 144 
 A
 country’s
 HDI
 is
 a
 composite
 measurement
 of
 life
 expectancy,
 education,
 and
 standard
of
living
(purchasing
power
parity
and
income).
 
  51
  not
 African
 states.145
 
 Also,
 of
 the
 lowest
 twenty‐four
 ranked
 by
 Transparency
 International’s
Corruption
Perception
Index,
eleven
are
African.146 

Similarly,
among
 the
 twenty‐four
 lowest
 ranked
 countries
 for
 freedom
 of
 press,
 six
 are
 African
 countries.147

These
statistics
paint
a
grim
picture
of
development
in
Africa,
and
one
 that
 begs
 the
 question:
 what
 countries
 would
 want
 to
 take
 lessons
 from
 Africa?

 Though
 being
 at
 the
 forefront
 of
 the
 globally
 important
 issue
 of
 internal
 displacement
is
an
inherently
positive
advance,
it
is
difficult
to
anticipate
that
other
 regions,
 with
 their
 own
 climate,
 development
 and
 conflict
 troubles,
 would
 rise
 above
 their
 prejudice
 of
 the
 challenges
 facing
 many
 African
 countries,
 and
 follow
 their
lead.

The
value
of
this
African
initiative
in
responsibility
and
self‐help
may
be
 blurred
by
low‐rankings
and
negative
media
reports.

Thirdly,
it
is
difficult
for
other
 countries
to
take
seriously
the
law‐making
efforts
of
AU,
as
a
number
of
its
Member
 States
 have
 poor
 records
 in
 fulfilling
 other
 international
 legal
 obligations.
 
 In
 addition
 to
 prejudice,
 the
 AU
 initiative
 is
 therefore
 also
 hampered
 by
 a
 lack
 of
 credibility,
 and
 norm‐building
 leadership
 requires
 credibility.
 
 However,
 by
 overlooking
an
African
initiative
responding
to
a
perceived
“African
problem”,
other
 countries
and
regional
organizations
risk
also
overlooking
the
intrinsic
value
of
the
 hardening
of
the
soft
law
of
the
Guiding
Principles
through
customary
international
 law.
 























































 145 
 UNDP.
 
 “Human
 Development
 Report
 2009
 –
 HDI
 Rankings”.
 
 (Available
 at
 http://hdr.undp.org/en/statistics/.

Accessed
June
4,
2010).
 146 
Transparency
International.

“Corruption
Perception
Index
2009.”

(Available
at
 http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_200 9_table.

Accessed
June
4,
2010).
 147 
 Reporters
 Sans
 Frontières.
 
 “World
 Press
 Freedom
 Index
 2009.”
 
 (Available
 at
 http://en.rsf.org/IMG/pdf/classement_en.pdf.

Accessed
June
4,
2010).
 
  52
  
  Related
to
credibility
is
also
the
potential
for
tensions
to
arise
between
state
  rhetoric
and
action
that
may
hinder
the
development
of
law.

If
a
country’s
practice
 derogates
from
a
ratified
treaty,
the
treaty
is
not
weakened;
it
remains
international
 law.
 
 This
 has
 been
 demonstrated
 most
 clearly
 by
 the
 Convention
 on
 Torture
 and
 Other
Cruel,
Inhuman
and
Degrading
Treatment
or
Punishment
(1984),
for
example,
 where
over
180
countries
have
ratified
the
treaty,148
but
a
number
of
countries
are
 known
 to
 have
 transgressed
 from
 the
 treaty’s
 provisions
 since
 ratification.
 Therefore,
 if
 a
 ratified
 member
 of
 the
 Great
 Lakes
 Protocol
 breaches
 the
 norms
 agreed
 to
 in
 that
 treaty,
 the
 treaty
 still
 stands.
 
 However,
 in
 analysing
 how
 state
 practice
 related
 to
 the
 Great
 Lakes
 Protocol
 can
 develop
 customary
 international
 law,
the
picture
becomes
less
clear.

In
the
Nicaragua
(Merits)
case
(1986),
the
ICJ
 stated
that
it
“does
not
consider
that,
for
a
rule
to
be
established
as
customary,
the
 corresponding
practice
must
be
in
absolutely
rigorous
conformity
with
the
rule.”149

 The
creation
of
a
customary
rule
can
be
sufficiently
flexible
and
open
that
occasional
 breaches
in
conduct
by
a
small
number
of
states
may
not
be
fatal
to
the
law
making
 process.
 
 Furthermore,
 Harris
 adds
 that,
 in
 regards
 to
 the
 maintenance
 and
 development
 of
 custom,
 “it
 is
 sufficient
 that
 any
 departure
 from
 the
 practice
 is
 recognised
 as
 illegal.”150
 
 If
 the
 violating
 state
 justifies
 or
 explains
 their
 contravention
in
terms
of
the
recognized
rule,
“the
significance
of
that
attitude
is
to
  























































 148 
UNDP.
Human
Development
Report
2009.

(Available
at
 http://hdrstats.undp.org/en/indicators/72.html.

Accessed
September
6,
2010).
 149 
Military
and
Paramilitary
Activities
in
and
against
Nicaragua
(Nicaragua
v.
United
 States
of
America)
(Merits)
[1986]
ICJ
Rep.14,
para.
186.

Cited
in
Harris
(2004),
897.
 150 
Harris
(2004),
41.
 
  53
  confirm
rather
than
to
weaken
the
rule.”151

This
appeal
to
the
rule
strengthens
its
 opinio
juris
in
regards
to
the
creation
of
customary
international
law.

The
irony
of
 the
states
creating
internally
displaced
persons
also
being
the
states
creating
hard
 international
law
for
their
protection
and
assistance
may
therefore
be
addressed
by
 the
 fact
 that
 occasional
 breaches
 do
 not
 always
 detract
 from
 the
 custom‐creating
 process.
 
 Additionally,
 it
 is
 these
 same
 states
 that
 have
 recognized
 the
 need
 for
 a
 normative
framework
that
would
provide
them
the
tools
with
which
to
respond
to
 their
internal
displacement
crises.
  























































 151 
Nicaragua
(Merits)
[1986],
para.
186.

Cited
in
Harris
(2004),
897.
 
  54
  Conclusion
 
 
  This
 thesis
 has
 outlined
 the
 theoretical
 processes
 through
 which
 soft
 law,
  such
as
the
Guiding
Principles
in
their
original
form,
can
become
hard
law,
such
as
 the
Kampala
Convention
and
the
Great
Lakes
Protocol.

Through
state
practice
and
 opinio
 juris
 surrounding
 these
 hard
 legal
 developments,
 they
 can
 grow
 to
 be
 customary
international
law.

The
Kampala
Convention
has
had
an
important
impact
 on
increasing
legally
relevant
African
state
practice
in
regards
to
the
protection
and
 assistance
 of
 internally
 displaced
 persons.
 
 This
 impact
 is
 notable
 because
 it
 establishes
 legally
 relevant
 and
 influential
 regional
 and
 international
 organization
 practice,
such
that
the
Kampala
Convention
may
have
a
tangible
socializing
effect
on
 other
 regional
 organizations
 to
 also
 advance
 legally
 binding
 measures
 for
 their
 Member
States.

More
consequentially,
the
Kampala
Convention
has
elicited
relevant
 legal
 practice
 from
 the
 most
 important
 states
 in
 terms
 of
 internal
 displacement.

 Following
the
theory
of
customary
international
law
creation,
the
practices
of
states
 like
 Sudan
 and
 the
 Democratic
 Republic
 of
 Congo
 should
 have
 an
 important
 influence
 on
 globally
 generalized
 practice
 and
 opinio
 juris.
 
 This
 theoretical
 truth,
 however,
 creates
 a
 strange
 power‐dynamic
 where
 historically
 weaker
 states
 may
 influence
 traditionally
 stronger
 ones.
 Though
 African
 states
 and
 the
 AU
 should
 be
 recognized
 for
 their
 initiative,
 the
 creation
 of
 a
 generalized
 sense
 among
 states
 globally
 that
 compliance
 is
 necessary
 would
 be
 facilitated
 if
 developed
 countries
 without
 seemingly
 immediate
 or
 foreseeable
 necessity
 for
 the
 Guiding
 Principles,
 but
 with
 a
 general
 interest
 in
 demonstrating
 replicable
 state
 responsibility,
 would
  
  55
  build
upon
their
demonstrated
interest
in
the
Principles
and
actually
adopt
them
as
 legally
binding
instruments
within
their
own
borders.

 
  From
a
constructivist
perspective,
the
Kampala
Convention
and
Great
Lakes
  Protocol
 processes
 have
 socialized
 African
 states
 toward
 adopting
 an
 identity
 that
 brings
the
states
together
in
solidarity
for
a
preparedness
to
take
responsibility
for
a
 situation
that
leaves
them
internally
weak
and
vulnerable
to
international
scrutiny.

 Non‐African
 states,
 in
 adopting
 similar
 initiatives
 based
 on
 the
 Guiding
 Principles
 would
 not
 only
 be
 making
 efforts
 to
 prevent
 situations
 of
 internal
 displacement
 within
 their
 own
 borders,
 but
 would
 also
 be
 joining
 in
 the
 solidarity
 of
 states
 interpreting
sovereignty
as
a
responsibility.
  
  56
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