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Addressing and Resolving Internal Displacement. Reflections on a Soft Law ‘Success Story’

Megan Bradley and Angela Sherwood

Introduction

By 2015, there were more people displaced by conflict and human rights violations than at any point since the end of the Second World War.1 Some 19.5 million of the global displaced population are refugees who have sought asylum outside their country of origin, and are protected by formal agreements such as the 1951 Convention relating to the status of refugees, or the 1969 Organization for African Unity Convention governing the specific aspects of refugee problems in Africa. However, almost twice as many people—over 38 million worldwide—have been uprooted within their own countries by violence and human rights abuses, while millions are internally displaced every year by natural disasters.2

Because IDPs (internally displaced persons) remain within their own countries, protecting and assisting them is, first and foremost, the responsibility of the national government—even when these governments are directly complicit in generating displacement crises in the first place. Efforts to ensure a more systematic response to internal displacement crises gained steam in the late 1980s, and advanced significantly with the nomination of a Representative of the UN Secretary-General (RSG) on IDPs, who marshalled an international team of legal experts to lead the development of the 1998 Guiding Principles on Internal Displacement (‘Guiding Principles’).3 Based on international human rights and humanitarian law and analogous refugee law, the Guiding Principles have been widely endorsed by states, international organizations, and non-governmental organizations as a key standard

  • 1 Megan Bradley’s work on this chapter was supported with a grant from the Social Sciences and Humanities Research Council of Canada.
  • 2 ‘Worldwide displacement hits all time high as war and persecution increase’, UNHCR News Stories, 18 June 2015, .
  • 3 UN High Commissioner for Refugees (UNHCR), ‘Guiding Principles on Internal Displacement’, 22 July 1998, ADM 1.1, PRL 12.1, PR00/98/109.

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

clarifying the rights of IDPs, and the primary responsibility of states to protect them. Indeed, the Guiding Principles are regarded in many quarters as one of the most successful examples of the use of ‘soft law’ standards to influence responses to a human rights issue on local, national, and international levels, providing a model that has been emulated by advocates working on a range of other concerns.[1] [2] [3] Further reflecting the Guiding Principles’ success, in 2009 African Union (AU) member states adopted the AU Convention for the protection and assistance of IDPs in Africa (Kampala Convention).5 Based significantly on the Guiding Principles, the Convention entered into force in December 2012.6

At the same time as the approach to internal displacement laid out in the Guiding Principles has become broadly recognized and accepted, even to the point of codification in hard laws such as the Kampala Convention, the number of people uprooted within their own countries has continued to climb, owing to massive new displacement crises as well as to the increasingly protracted nature of displacement situations. That is, IDPs have been unable to access solutions to their predicament.[4] This situation is at odds with the Guiding Principles and the Kampala Convention, which indicate that upholding the rights of IDPs entails not only protection and assistance at the height of crises, but also support for the sustainable resolution of displacement. In the parlance of the forced migration regime, IDPs have a right to a ‘durable solution’ to their displacement. This challenge is addressed in detail in an important but under-examined tool, the 2010 Inter-Agency Standing Committee (IASC) Framework on Durable Solutions for Internally Displaced Persons.[5] Like the Guiding Principles, the IASC Framework was developed under the leadership of the RSG on IDPs. Building on the Guiding Principles, the rights-based IASC Framework identifies three potential ‘durable solutions’ to internal displacement: return and reintegration of IDPs in their communities of origin; local integration in the communities where they sought shelter; or relocation and sustainable integration elsewhere within their country.[6] According to the Framework, ‘durable solutions’ have been achieved when IDPs ‘no longer have specific assistance and protection needs that are linked to their displacement and such persons can enjoy their human rights without discrimination on account of their displacement’.[7] [8]

Previous scholarship has extensively analysed the origins and evolution of the Guiding Principles, and their remarkable influence as a soft law tool.n Building on this foundation, this chapter explores how the Guiding Principles and subsequent standards including the IASC Framework have contributed to the construction of the critical concept of ‘durable solutions’, and shaped discourse and practice on this issue. It advances the literature by using a systematic analysis of national laws and policies on IDPs, and two fieldwork-informed case studies on efforts to resolve internal displacement as a lens through which to examine some of the particular contributions and constraints of soft law in addressing a complex human rights, humanitarian, and development issue. This focus is warranted because the resolution of displacement remains under-examined, notwithstanding the emergence of this issue as a defining concern for practitioners and for IDPs themselves. Our case studies bring into focus some of the strengths and limitations of efforts to ensure the implementation of soft law standards (as well as related hard law standards such as the Kampala Convention) through ‘domestication’ in national laws and policies.

We argue that the development of a soft law standard was essential to establishing the IDP issue on national and international agendas, and to making progress in understanding and better protecting the rights of IDPs, including as they pertain to the resolution of displacement. That is, to borrow the terms discussed by Gammeltoft-Hansen, Lagoutte, and Cerone in their Introduction to this volume, in this case soft law had both a ‘norm-filling’ and ‘norm-creating’ function. The strategy advanced by the architects of the IDP soft law framework of emphasizing the primary responsibility of states for those displaced within their borders, including by encouraging the integration of soft law standards into national laws and policies on IDPs, has had considerable traction, as evidenced by the adoption of scores of national laws and policies on the rights of IDPs and hard law standards such as the Kampala Convention, as well as by the engagement of donors, international organizations, and NGOs in responding to IDP situations. These developments both reflect and have influenced the emergence of a ‘durable solutions discourse’ that shapes how the resolution of displacement and the roles of different actors in this process are understood. However, norms on durable solutions remain contested and minimally interpreted, and struggle to exert influence in complex post-conflict and post-disaster contexts where even domestic laws are often not systematically and equitably implemented. Some government actors and humanitarian practitioners working in highly impoverished countries have suggested that rights-based tools such as the IASC Framework set an impossibly high bar for the standards that need to be achieved in order for a displacement situation to be understood to have ended.[9] [10] [11] [12] Such sceptical perspectives are particularly evident in Haiti, where massive numbers of people were displaced by the January 2010 earthquake. In contrast, in other countries such as Sri Lanka, governments’ rhetorical embrace of soft law principles on durable solutions has served as a foil to deflect criticism for the abuse of IDPs in practiced3

The chapter begins by providing a snapshot of the strategies underpinning the successful development and diffusion of the Guiding Principles.14 It then considers the influence of soft law standards on durable solutions discourse and practice, highlighting the development of the IASC Framework and the approach to durable solutions articulated in the Kampala Convention as a hard law instrument significantly shaped by previous soft law standards. It deepens discussion of these issues through an analysis of how soft law-informed national laws and policies on internal displacement address the question of durable solutions, and through examination of the relationship between soft law and the pursuit of durable solutions in Haiti and Sri Lanka. In this chapter, as Chinkin urges, we understand soft law in its broad sense, ranging from formal agreements with only ‘soft obligations (“legal soft law”), to non-binding or voluntary resolutions and codes of conduct formulated and accepted by international and regional organizations (“non-legal soft law”), to statements prepared by individuals in a non-governmental capacity, but which purport to lay down international principles’.^

  • [1] R. Cohen, ‘Lessons learned from the Development of the Guiding Principles on InternalDisplacement’ (Working Paper, Georgetown University Institute for the Study of InternationalMigration Working Paper, 2013).
  • [2] African Union, ‘African Union Convention for the Protection and Assistance of InternallyDisplaced Persons in Africa (Kampala Convention)’, 22 Oct. 2009, .
  • [3] A. M. Abebe, ‘The African Union Convention on Internally Displaced Persons: Its CodificationBackground, Scope, and Enforcement Challenges’, Refugee Survey Quarterly vol. 29 (2010): 28—57.The Kampala Convention was the world’s first regional convention on internal displacement, butwas preceded by a binding sub-regional standard, the Great Lakes Protocol. The Great Lakes Protocolis outside the scope of this chapter; for further discussion of this standard see: C. Beyani, ‘RecentDevelopments: The Elaboration of a Legal Framework for the Protection of Internally DisplacedPersons in Africa’, Journal ofAfrican Law vol. 50 (2006): 187—97.
  • [4] As of 2011 the majority of the world’s IDPs were living in protected displacement situations thathad lasted at least five years. See: IDMC and Brookings-LSE Project on Internal Displacement, ‘IDPsin Protracted Displacement: Is Local Integration a Solution?’ (Report from the Second Expert Seminaron Protracted Internal Displacement, 19—20 Jan. 2011) .
  • [5] IASC, ‘IASC Framework on Durable Solutions for Internally Displaced Persons’ (Brookings-BernProject on Internal Displacement, Washington DC, 2010). The IASC is the main international mechanism for coordination between humanitarian actors within and outside the UN system. It also involvesmajor development agencies. See .
  • [6] IASC Framework: A-1. 10 IASC Framework: 5.
  • [7] 11 On the significance of the Guiding Principles as a soft law standard, see e.g.: Cohen (2013);
  • [8] P. Orchard, ‘Protection of Internally Displaced Persons: Soft Law as a Norm-Generating Mechanism’,Review of International Studies vol. 36 (2010): 281—303; W. Kalin, ‘How Hard is Soft Law? TheGuiding Principles on Internal Displacement and the Need for a Normative Framework’ (Ralph BunchInstitute Round Table, City University of New York, 19 Dec. 2001); P. Orchard, ‘Implementing aGlobal Internally Displaced Persons Protection Regime’, in Implementation and World Politics: HowInternational Norms Change Practice, ed. A. Betts and P. Orchard (Oxford: Oxford University Press,2014); W. Kalin, ‘The Guiding Principles on Internal Displacement as International MinimumStandard and Protection Tool’, Refugee Survey Quarterly vol. 24 (2005): 27—36; T. Weiss and D. Korn,Internal Displacement: Conceptualization and Its Consequences (Abingdon: Routledge, 2006).
  • [9] A. Sherwood, M. Bradley, L. Rossi, R. Gitau, and B. Mellicker, Supporting Durable Solutions toUrban, Post-Disaster Displacement: Challenges and Opportunities in Haiti (Washington, DC: Brookings/IOM, 2014).
  • [10] These cases were selected because they display important contrasts in terms of, inter alia, thecauses of displacement, and the use of soft law standards by government officials and internationalactors. The Haiti case study draws on extensive fieldwork undertaken by the second author in Port-au-Prince from Oct. 2013 to Aug. 2014. The Sri Lanka case study is informed by fieldwork undertakenby the first author in 2013.
  • [11] 14 Following the Guiding Principles, we view IDPs as those who ‘have been forced or obliged to fleeor to leave their homes or places of habitual residence, in particular as a result of or in order to avoidthe effects of armed conflict, situations of generalized violence, violations of human rights or natural orhuman-made disasters, and who have not crossed an internationally recognized State border’.
  • [12] C. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’,International and Comparative Law Quarterly vol. 38 (1989): 851. This definition may be interpreted assomewhat incongruent with the conception of soft law forwarded in the Introduction to this volume.
 
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