From Responsibility to Response: Assessing National - Brookings

CHAPTER 1 Assessing National Approaches to Internal Displacement: Findings from 15 Countries
of allocation of government assistance such as housing
subsidies. 44 This judicial defense mechanism has led the
Constitutional Court since 1997 to address tutela cases
invoking specific human rights such as access to basic
services, the right to life, and freedom of movement.
Tutela petitions gave rise to a landmark decision by the
Constitutional Court in 2004, Decision T-025, in which
the court recognized the extent of violations of the fundamental
rights of the country’s internally displaced
population and declared that “unconstitutional state of
affairs” had arisen due to insufficient government capacity
and allocation of funds. That finding compelled
the government to increase its budgetary allocation
for IDPs (see also Benchmark 11) significantly—by
a factor of 8 in fixed dollars. 45 Over 1,200 tutelas had
been filed by 2009. 46 The Kenya National Human Rights
44 As Colombian Constitutional Court Judge Manuel José
Cepeda-Espinosa explains, “Among the constitutional
mechanisms to ensure the effective exercise of human
rights is the he acción de tutela, a petition procedure, which
enables any person whose fundamental constitutional
rights are being threatened or violated to request judicial
protection of their fundamental rights. Citizens may file
informal claims without an attorney, before any judge
in the country with territorial jurisdiction. That judge
is legally bound to give priority attention to the request
over any other case. Judges have a strict deadline of ten
days to reach a decision and, where appropriate, to issue a
mandatory and immediate order.” Citation from Manuel
José Cepeda-Espinosa, “The Constitutional Protection
of IDPs in Colombia,” in Rodolfo Arango Rivadeneira,
Judicial Protection of Internally Displaced Persons: The
Colombian Experience, p. 8, (Washington, D.C.: Brookings-
Bern Project on Internal Displacement, November 2008)
(www.brookings.edu/idp).
45 Manuel José Cepeda-Espinosa, Constitutional Court of
Colombia, “The Judicial Protection of IDPs in Colombia:
The Importance of the Guiding Principles,” statement
presented at the conference “Ten Years of the Guiding
Principles on Internal Displacement,” Oslo, Norway, 16
October 2008.
46 Figure is from the court’s information system. Cited
in Rodolfo Arango Rivadeneira, Judicial Protection of
Internally Displaced Persons: The Colombian Experience,
p. 250, (Washington, D.C.: Brookings-Bern Project on
Internal Displacement, November 2008) (www.brookings.
edu/idp); Manuel José Cepeda-Espinosa, “How Far
72
Commission receives complaints of human rights violations,
including from IDPs, through petitions to the
commission or the relevant department of government;
the petitions point to provisions in the law that, due
to gaps or gray areas, undermine IDPs’ access to their
rights and therefore may require revision. 47
In recognition of the importance of developing national
legal frameworks for internal displacement, for several
years now the UN General Assembly and UN Human
Rights Council (formerly the Commission on Human
Rights) as well as regional organizations as examined
above have encouraged governments to develop laws
based on the Guiding Principles to protect the rights
of IDPs. 48 International actors—in particular RSGs on
IDPs Francis Deng and Walter Kälin and the RSG’s successor,
UN Special Rapporteur on the Human Rights
of IDPs Chaloka Beyani, UNHCR, and the Brookings
Project on Internal Displacement—have provided
technical assistance to support such efforts. Given the
number of countries experiencing internal displacement
and the time and technical expertise required to review
and recommend amendments to legal frameworks to
ensure IDPs’ access to their rights, much more attention
to and support for implementation of this benchmark
are required.
May Colombia’s Constitutional Court Go to Protect IDP
Rights?” Forced Migration Review, Special Issue (December
2006), pp. 21–23 (www.fmreview.org).
47 See further the Kenya case study in chapter 2 of this
volume.
48 See, for example, UN General Assembly Resolution
60/168; UN HRC Resolution 2005/46.