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From soft to hard law: durable solutions in the Kampala Convention

Like the Guiding Principles, the Kampala Convention is fairly brief in its discussion of durable solutions. Unlike the Principles, however, the Convention explicitly employs the term ‘durable solutions’, a testament to the increased traction of the concept in the eleven years between the release of the two standards. Indeed, the first objective of the Convention is to ‘Promote and strengthen regional and national measures to prevent or mitigate, prohibit and eliminate root causes of internal displacement as well as provide for durable solutions’ (Article 2.a). In a demonstration of how soft law can prompt the development of more robust binding commitments, as noted by Gammeltoft-Hansen, Lagoutte, and Cerone in the Introduction to this collection, the Convention builds on the Guiding Principles with fortified provisions on choice between durable solutions, and the active participation of IDPs in the process. While the Guiding Principles simply state that ‘Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration’/8 the Convention insists that ‘States Parties shall enable internally displaced persons to make a free and informed choice on whether to return, integrate locally or relocate by consulting them on these and other options and ensuring their participation in finding sustainable solutions.^9 The Convention also importantly advances the normative framework by explicitly recognizing local integration as a legitimate durable solution to displacement.[1] [2] [3] [4]

The Convention additionally strengthens protections relating to redress for IDPs—an issue that may directly shape the pursuit of durable solutions. Whereas the Principles address only the loss of ‘property and possessions’, the Convention tacitly recognizes that displacement may be associated with a much wider range of losses affecting not only IDPs but also other stakeholders such as host community members. The Convention thus indicates that ‘States Parties shall provide persons affected by displacement with effective remedies’, and shall ‘establish an effective legal framework to provide just and fair compensation and other forms of reparations, where appropriate, to internally displaced persons for damage incurred as a result of displacement, in accordance with international standards’.[5] [6] [7]

Despite these important advances, the Convention (unsurprisingly, given the political sensitivity of the issue) leaves open a range of key questions concerning, for example, the particular conditions that authorities are obliged to establish in order to enable solutions. These issues are addressed in greater detail in a subsequent tool, the IASC Framework on Durable Solutions for Internally Displaced Persons.

  • [1] See the 2013 report of the UN Special Rapporteur on the human rights of IDPs to theGeneral Assembly; Brookings-LSE Project on Internal Displacement, ‘Durable Solutions to InternalDisplacement: Exploring the Roles of Development, Humanitarian and Peacebuilding Actors’(Washington, DC, 2013).
  • [2] Guiding Principles, 28.2 . 29 Kampala Convention, Art. 11.2, emphasis added.
  • [3] 30 The Guiding Principles address ‘return, resettlement and reintegration’. Principle 28 is intendedto incorporate local integration, but this term is not used in the text of the Principles, leaving space forstates to resist this sometimes politically unpopular approach to resolving displacement. See: W. Kalin,
  • [4] The Guiding Principles on Internal Displacement: Annotations (American Society of International Lawand Brookings Institution, Washington, DC, 2nd edn, 2008): 125—31.
  • [5] Kampala Convention, Art. 12.1, Art. 12.2, emphasis added; Asplet and Bradley (2012).
  • [6] 32 Other important standards that are largely outside the scope of this chapter include the 2005UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (PinheiroPrinciples). For analyses of this standard, see e.g.: A. Smit, ‘Private Rights and Public Interests: PropertyRestitution, Transitional Justice and Post-conflict Restitution’, in Forced Migration, Reconciliation andJustice, ed. M. Bradley (Montreal: McGill-Queens University Press, 2015); A. Smit, The PropertyRights of Refugees and Internally Displaced Persons: Beyond Restitution (London: Routledge, 2012); M.J. Ballard, ‘Post-Conflict Property Restitution: Flawed Legal and Theoretical Foundations’, BerkeleyJournal of International Law vol. 28 (2010): 1—36.
  • [7] IASC, Framework: 3.
 
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