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Interpreting and Applying IDP Soft Law in Support of Solutions

Section 3 detailed how IDP advocates achieved the remarkable commitment of states to new soft law standards on internal displacement, and how these standards have shaped the development of a durable solutions discourse. In this section, we examine efforts to increase compliance with soft law standards through their integration into domestic frameworks, whether in the form of laws or policies, focusing in particular on the significance of these efforts for the resolution of displacement.38 We also examine two case studies in which IDP soft law played very different roles.

Since the 1990s, nearly half of the states facing major internal displacement crises have developed new laws or policies on IDPs. This trend may be taken to reflect considerable levels of state acceptance of the view at the heart of soft law standards

  • 36 IASC Framework: 11. 37 Kampala Convention, Art. 2.a.
  • 38 J. Wyndham, ‘A Developing Trend: Laws and Policies on Internal Displacement’, Human Rights Briefvol. 14 (2006): 7-70.

such as the Guiding Principles that national authorities have primary and particular responsibilities towards those displaced within their borders. It also suggests that states perceive there to be considerable costs, reputational and otherwise, to noncompliance with IDP soft law.[1] However, our examination of national laws and policies on IDPs suggests that many of these standards diverge considerably from soft law norms, particularly in relation to the resolution of displacement. That said, particularly in domestic instruments focusing on conflict-related displacement situations, the incorporation of concepts such as durable solutions is becoming increasingly common, and the instruments developed appear to be increasingly consistent with the language and principles of the Guiding Principles and the IASC Framework.

While the development of these instruments is, overall, a critical step towards improved protection and assistance for IDPs, this analysis underscores that it cannot be taken for granted that national laws and policies necessarily translate into increased support for durable solutions as they are understood in soft law standards.[2] [3] [4] Diversity in local interpretation of norms reflects ‘the thickness [or thinness] of shared understandings that support the rule’.4i Even when the Guiding Principles and related tools inform the development of domestic instruments and the practice of international actors, social contexts influence interpretations of IDPs’ rights and entitlements. In analysing domestic instruments and the two case studies presented in this chapter, we are concerned not only with whether soft law principles have made their way into domestic legislation, but also with how the interpretation and application of norms on IDPs reflect particular understandings of displacement and socio-economic and political environments.

In addition to substantial variation between domestic texts, we note the significant roles of international, non-state institutions in promoting the development of these instruments, and transplanting soft law concepts, meanings, and interpretations—with varying results—rnto different contexts.42 International, non-state actors can also destabilize domestic interpretation and application of soft law norms on IDPs, as they may approach the question of internal displacement with different vocabularies and normative traditions. For example, while humanitarian actors may be familiar with IDP soft law, and seek to promote durable solutions in line with standards such as the IASC Framework, actors focused on issues such as urban development and shelter may approach the resolution of displacement from the standpoint of the ‘right to housing’, or the ‘right to the city’. These different approaches may produce conceptual and interpretative tensions, as related but distinct human rights agendas with different priorities and methodologies.[5] [6] [7] [8] The cases explored in this section also illustrate how, when soft law norms seem particularly abstract or difficult to apply in particular displacement contexts, or when actors have vested interests in advancing particular interpretations of key concepts, international and domestic institutions will create and seek to justify new interpretations of these norms. The reflexivity between law and practice is a rich terrain to explore questions that go beyond the legal character and processes of developing IDP soft law, to engage in critical analysis of the factors that affect the understanding, quality, and influence of soft law tools and related national instruments over time. In this way, the IDP issue opens up valuable insights on the role of soft law and its ability to regulate intense and rapidly changing environments shaped by conflict and disaster.

  • [1] Orchard (2014).
  • [2] This analysis is informed by interdisciplinary human rights scholarship. See e.g.: The Practice ofHuman Rights: Tracking Law between the Global and the Local, ed. M. Goodale and S. Engle Merry(Cambridge: Cambridge University Press, 2007).
  • [3] J. Ellis, ‘Shades of Grey: Soft Law and the Validity of Public International Law’, Leiden Journal ofInternational Law vol. 45 (2012): 317.
  • [4] 42 S. Engle Merry, ‘International Law and Sociolegal Scholarship: Toward a Spatial Global LegalPluralism’, in Special Issue Law and Society Reconsidered, ed. A. Sarat (Studies in Law, Politics and Societyvol. 41, 2007): 149-68.
  • [5] I. Venzke, How Interpretation Makes International Law: On Semantic Change and NormativeTwists (Oxford: Oxford University Press, 2012): 35.
  • [6] L. Graham, ‘Advancing the Human Right to Housing in Post-Katrina New Orleans: DiscursiveOpportunity Structures in Housing and Community Development’, Housing Policy Debate vol. 22(2012): 5-27.
  • [7] Wyndham (2006); N. Schrepfer, ‘Addressing Internal Displacement through National Laws andPolicies: A Plea for a Promising Means of Protection’, International Journal of Refugee Law vol. 24(2012): 667-91.
  • [8] 46 Schrepfer (2012): 676.
 
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