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The Role of Soft Law in Discourse and Standard-Setting on Durable Solutions

The Guiding Principles are comparatively brief in their discussion of durable solutions to displacement—indeed, they do not use the term ‘durable solutions’, but rather couch the provisions on the resolution of displacement in section V on ‘Principles Relating to Return, Resettlement and Reintegration’. Principle 28, the main provision on the resolution of displacement, indicates that:

Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.

Principle 28 goes on to stress the need to ensure the ‘full participation’ of IDPs in the process, while Principle 29 addresses non-discrimination against former IDPs; their right to equal access to public services and participation in public affairs; and the obligation of ‘competent authorities’ to facilitate the restitution of IDPs’ lost property or, where this is not possible, ‘appropriate compensation or another form of just reparation’. Principle 30 addresses the need for international actors to have access to IDPs to support return, resettlement, and reintegration.

Building on this foundation, over the course of the past ten years a range of related soft law standards and other tools have been developed that address the resolution of displacement. These standards import the term ‘durable solutions’ from the international refugee regime, where a trinity of durable solutions are promoted, including voluntary return to refugees’ country of origin; local integration in the country of asylum; or resettlement to a third country. There are some important distinctions between the concepts and discourse surrounding ‘durable solutions’ for refugees and IDPs. First, vis-a-vis refugees, the term ‘durable solutions’ pertains significantly to refugees’ lack of effective citizenship. While the pursuit of durable solutions for refugees certainly involves broad concerns around stability, peacebuilding, and development, the primary problem is, arguably, the ‘regularization’ of refugees’ status, either through repatriation, or the acquisition of citizenship in the country of asylum or a resettlement state. In contrast, as IDPs are typically citizens (or ‘habitual residents’) of the country in which they are displaced, the ‘regularization’ of their citizenship status is not the predominant concern. Whereas voluntary repatriation is the only ‘solution’ to which refugees have a legal right, as citizens or habitual residents of the state in which they are displaced, soft law standards (and related binding standards such as the Kampala Convention) stress that IDPs have the right to freely choose a solution to their displacement^6 These standards and [1]

tools position the resolution of displacement as a human rights protection concern, and generally recognize that achieving durable solutions requires not only the support of humanitarian actors, but also development and, in post-conflict contexts, peacebuilding actors.27 This approach is certainly consistent with the ‘rights-based’ perspective that has defined international discussions on the IDP issue, but does not necessarily readily resonate with the conceptual frameworks and working cultures of the development actors and operational agencies involved in supporting durable solutions to displacement in the field. It may also clash with local priorities and interpretations of different human rights.

  • [1] See e.g.: Art. 11(2) of the Kampala Convention.
 
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