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Addressing internal displacement and durable solutions through national laws and policies

While the domestication of IDP soft law through the development of national laws and policies has broadly been a major success of the IDP movement, a closer look at these instruments reveals dissonance in relation to the international normative framework, and, in some instances, barriers to durable solutions. Building on Orchard’s discussion of IDP soft law implementation, we consider how domestic instruments reflect and shape normative understandings of displacement and durable solutions forwarded in soft law, and thus coordinate the behaviour of actors through a particular ‘discursive opportunity structure’.44 In other words, how and to what extent do understandings of IDPs and durable solutions pass from the international soft law context to the domestic context?

The benefits of national laws and policies on IDPs have been discussed widely in the literature. National instruments are often seen as reflective of growing state recognition of and commitment to a vulnerable population.45 Schrepfer captures the international community’s high expectations of these instruments, arguing that developing national laws and policies on IDPs ‘strengthens capacities, as it clarifies basic notions, concepts and normative ideas framing and strategizing a response to internal displacement, and may even lead to a more efficient use and allocation [of resources]’^6 Other key benefits cited include the possibility that these instruments can provide clarity over legal conflicts; facilitate coordination; allocate roles and responsibilities; and systematize responses.[1] [2] [3]

While scholars have praised the IDP ‘norm cascade’ since the 1990s, it is important to note that many national laws and policies have been developed in reference to specific displacement crises and have narrow applicability. Many national instruments discuss in their preambles the details of the conflict-based displacement that led to the need for a law or policy; comparatively few explicitly include other displacement scenarios such as natural disasters.4® These documents may not necessarily inform future displacement situations, although it may be hoped that they establish a productive political or legal context for states to act on their responsibilities toward IDPs.

Orchard identifies some of the consistencies between domestic laws and the IDP soft law framework.49 In his analysis of thirty-nine laws and policies, Orchard indicates that twenty-nine address the provision of international assistance; twenty-four recognize that IDPs are protected by international law; twenty-one cite or highlight domestic laws that protect IDP rights. While seventeen mention the Guiding Principles explicitly, only seven embrace the conception of an IDP established in the Guiding Principles.50 Building on Orchard’s work, our qualitative analysis of a similar but somewhat larger sample of fifty-five national laws and policies examines the ‘frames’ that structure efforts to mobilize action and marshal resources in response to a particular issue such as internal displacement. 51 Variations in the framing of the IDP concept itself, the hardships and violations associated with displacement, and what constitutes a durable solution all shed light on the motivations behind these instruments, their efficacy, and the traction of IDP soft law in diverse domestic contexts.

It is instructive to look at how the representation of ‘the IDP’ within these texts relates to the international normative framework. The way in which the concept of an IDP is framed has fundamental importance if assistance and protection is to last over the entire displacement cycle. It is therefore troubling that few states have embraced the flexible and encompassing definition laid out in the Guiding Principles, and incorporated in subsequent documents such as the Kampala Convention and the IASC Framework. For example, Nepal’s national framework states that only those who lived in ‘legal areas’ before the displacement crisis may be considered IDPs.52 Laws and policies from various former Soviet states detail an application process for IDP ‘status’; only some establish or detail an appeals process to contest denial of status.53 Some policies, furthermore, convey that IDPs are only those in camps. For instance, Liberia’s legal framework from 2002 declares ‘its commitment to respect the rights of all Liberians in IDP camps to return to their places of origin or habitual residence with the full protection of the law’.54 Some national laws and policies link negative connotations to the IDP concept. For instance, some indicate that IDPs require a top-down ‘re-socialization’ or ‘rehabilitation’ process (such as Sri Lanka and Nepal) while others paint IDPs as welfare dependants, emphasizing the need to wean them off aid (rather than, say, treating them as victims of traumatic and destructive circumstances, or agents who have a role to play in their own recovery).55 These representations illuminate how states view their IDP populations and may seek to use national laws and policies as a tool to limit rather than to bolster their entitlements.

Diverging from international soft law standards, hardly any national instruments recognize that IDPs actually have a right to a durable solution, but rather express a commitment to create the conditions for the resolution of displacement, establish funds for the settlement of IDPs, or specify certain settlement options that can be made available to IDPs. In most instances there are gaps in the representation of durable solutions, with only one or two settlement options mentioned—usually return and resettlement. Even when durable solutions are not explicitly referenced, many of the criteria outlined in the IASC Framework receive some mention in the description of the resolution of displacement. These include issues such as access to safety and security, an adequate standard of living, livelihoods support, property restitution, family reunification, documentation, and participation in public affairs. ‘Access to effective remedies and justice’ was the least likely of the eight IASC Framework criteria to be included in domestic laws and policies. Unlike

  • 52 Government of Nepal, National Policy on Internally Displaced Persons, 2007.
  • 53 Under the Guiding Principles, being an IDP is not to be understood as a legal ‘status’.
  • 54 Government of Liberia, Declaration on the Rights and Protection of Liberian IDPs, 2002, emphasis added.
  • 55 This imagery of the IDP is sprinkled throughout e.g. Sri Lanka’s 2002 National Framework for Relief Rehabilitation and Reconciliation (RRR Framework), which at one point bluntly states: ‘The tendency for residents of camps and welfare centers to become passive recipients of handouts from relief agencies should be counteracted by every means’ (p. 24). Art. 20 of section IV (Sanction) of Peru’s Law Concerning the Internally Displaced (Law No. 28223) states that ‘any person who, taking advantage of the circumstances may have declared untrue facts and conditions, and because of them may have obtained rights and benefits not due to him/her, automatically loses these rights and benefits, as well as being penalized in accordance with the applicable legislation’. Strikingly, there are no such statements for the application of sanctions or penalties for anyone who obstructs the provision of assistance to IDPs, or is complicit in arbitrary displacement.

in standards such as the IASC Framework, in the majority of national laws and policies on internal displacement, supporting durable solutions is presented as an expressly humanitarian undertaking. While the vast majority of the policies state that IDPs have either a right to or can benefit from humanitarian assistance, it is rare that development actors are mentioned, although soft law tools including the Guiding Principles and the IASC Framework recognize that they have critical roles to play. Important exceptions to this are found in some Latin American laws and policies as well as in some of the newer policies created in Iraq and Afghanistan, which mention the resolution of displacement and its relationship to the protection of social, economic, and cultural rights.56

In the majority of instruments, there is a heavy emphasis on return as the preferred and expected option, with various policies mentioning the need to encourage IDPs to return, or to ‘build confidence in them that home is safe’Th In most of the national laws and policies we reviewed, IDPs are presented as people who have an original place of permanency and belonging, and should be assisted for national and economic stability reasons to return to these places. This focus on return is particularly evident in instruments developed in the 1990s and in the early years of the twenty- first century; more recent instruments are more likely than earlier documents to contain the term ‘durable solutions’ and to reference the three settlement options—a testament to soft law’s contribution to popularizing a ‘durable solutions discourse’. Various instruments, especially those from the mid-1990s to mid-2000s, seem to conflate return and resettlement; using resettlement as a synonym for return further entrenches the notion, contrary to soft law standards, of return as the only supported option. Even when policies recognize IDPs’ right to freedom of movement, many instruments only provide details on support and entitlements for returnees.

Indeed, only a few instruments explicitly identify local integration as an option for IDPs, reflecting the historical neglect of local integration in international dis- course.58 In national instruments, states sometimes explicitly or tacitly restrict free movement and settlement options. For example, Angola’s Council of Ministers’ Decree indicates that efforts to resolve the country’s displacement crisis shall ‘take into account the local administrations’ priorities regarding territorial regulations in the identification of resettlement or return areas’79 Sudan’s 2009 National Policy on IDPs states that IDPs ‘can live wherever they want to live freely inside the Sudan without violating the rights and obligations of other citizens'.60 Such provisions reflect

  • 56 Strong statements on social, cultural, and economic rights are made in Guatemala’s Agreement on Resettlement of the Population Groups Uprooted by the Armed Groups (1994) as well as in the numerous laws and policies developed in Colombia, which also reference the state’s obligation to facilitate social justice.
  • 57 Text taken from Uganda’s 2008 Camp Closure Guidelines. Similar phrasing and concepts are echoed in national instruments from Sri Lanka, Sierra Leone, and Turkey.
  • 58 E. Ferris, ‘Resolving Internal Displacement: Prospects for Local Integration’ (Washington, DC, Brookings-LSE Project on Internal Displacement, 2011).
  • 59 Government of Angola, Angola’s Council of Ministers’ Decree 79/02 on Norms on the Resettlement of Displaced Populations, 2002.
  • 60 Government of the Republic of Sudan, National Policy for Internally Displaced Persons, 2009, emphasis added.

the diverse and complex ways in which IDPs’ rights, particularly as they relate to the resolution of displacement, intersect with the rights and responsibilities of other actors and populations, sometimes resulting in competing claims and conflicts. IDP soft law and related tools do not, for the most part, provide concrete guidance on how to navigate and resolve these dilemmas. Reflecting this gap, few laws or policies seem to envision, or provide guidance for dealing with, legal conflicts that emerge between IDPs’ right to pursue the durable solution of their choice, on the one hand, and state or private rights to land upon which IDPs may have taken refuge, and where they may wish to remain. Some instruments, such as Kenya’s 2012 Prevention, Protection, and Assistance to Internally Displaced Persons and Affected Communities Act, do suggest that the government has the responsibility to find land for IDPs as necessary, although others link the clearance of temporary IDP settlements (camps) with the perceived need to return private and public land back to ‘productive use’.[4] [5]

IDP soft law stresses the need for the process of pursuing durable solutions to adhere to rights-based principles, including as they relate to questions of voluntariness or choice, and the active participation of IDPs in decision-making. Reflecting this soft law concern, most national laws and policies use the word ‘voluntary’ in relation to settlement options. However, the majority of these documents do not put IDPs at the heart of the process, failing to connect the principle of voluntary movement with choice regarding IDPs’ place of permanent residence. Some instruments also embrace relatively restrictive conceptions of what voluntariness entails. For example, the 2008 Uganda Camp Closure guidelines indicate that once 50 per cent of the camp population has left, camp phase-out can legitimately commence, suggesting that residual populations have less robust process-related rights protections. In most national instruments, IDP participation is usually discussed at the level of ‘consultation’ and rarely as ‘decision-making’. The paternalism that pervades these documents provides little discursive room for IDPs to express their voice, choice, and agency. Interestingly, some national policies that address development-induced displacement, as well as conflict or natural disaster-induced displacement, seem to include a more active role for IDP participation and access to public hearings or fora.62

Overall, analysis of the body of national laws and policies on IDPs that have emerged over the past twenty-five years demonstrates that while soft law has had a significant and evolving influence on domestic frameworks, in many instances domestic interpretations of obligations towards IDPs vary considerably from international standards. Variance from international standards is somewhat more evident when it comes to addressing the question of durable solutions; this is perhaps unsurprising, given the political and economic sensitivities associated with efforts to resolve displacement crises.[6] [7] To be sure, there are some national laws and policies that hew closely to international norms. For example, Afghanistan’s national policy reflects soft law standards in many important ways. It conveys a broad conceptualization of durable solutions as a humanitarian and development issue, and makes clear and explicit statements about security of tenure and access to land as important elements of durable solutions. The policy also, in a particularly progressive fashion, states the need for IDPs to ‘benefit from Master Urban Plans to regularize many of the informal settlements’ and ‘from improved land titling, so that they get security of tenure and can make improvements to their shelters without fear of eviction’.64 Policies such as the one adopted in Afghanistan underscore the importance of incorporating a wide range of different actors into the policymaking process in order to productively navigate the interpretative challenges that accompany efforts to translate international soft law norms on IDPs into national standards. In general, however, the creation of domestic standards may be a double- edged sword: while they may systematize and strengthen domestic commitment to international norms, restrictive or narrow interpretations of the state’s obligations towards IDPs may also make it more difficult for the displaced to lay claim to the full range of rights identified in international IDP soft law. And yet, as the following case studies demonstrate, the development of national instruments on IDPs and the quality of these standards are only two aspects of the myriad ways in which soft law shapes the resolution of displacement. As experiences in Sri Lanka demonstrate, the drafting of national laws and policies that closely track soft law norms may serve as a foil for abuses against IDPs. Meanwhile, experiences in Haiti—where soft law norms have not been incorporated into domestic instruments—illustrate both the limitations of soft law and universal norms as well as the ways in which they nonetheless influence practice.

  • [1] Wyndham (2006); Schrepfer (2012).
  • [2] 48 Only five states—Kenya, Angola, Uganda, Afghanistan, and the Philippines—provide somedescriptive detail on displacement resulting from natural disasters. Liberia, Sudan, Nepal, Azerbaijan,Iraq, and Turkey have policies that include ‘natural disasters’ in the definition or description of an IDP,but these documents largely discuss displacement resulting from conflict scenarios. E.g., Iraq’s NationalPolicy on Displacement (2008) lists a series of consequences from displacement that are clearly conflictrelated; its goals likewise reflect the resolution of conflict-related displacements. The remaining lawsand policies analysed do not explicitly include displacement owing to natural disasters in their definitions or scenarios. In fact, Art. 2 of Russia’s 1995 Federal Law on Forced Migrants actually states that ‘Aperson shall not be recognized as a Forced Migrant if he/she has left the place of his residence because ofthe economic reasons or because of a famine or of an epidemic, or because of the emergency situationsof the natural or of the technogenic character’ (emphasis added).
  • [3] Orchard (20 1 4). 50 Orchard (2014): 8. 51 R. D. Benford and D. A. Snow, ‘Framing Processes and Social Movements: An Overview andAssessment’, Annual Review of Sociology vol. 26 (2000): 611—39. Our sampling frame includes all thelaws and policies listed in the Brookings-LSE Index of Laws and Policies on Internal Displacement asof Apr. 2015. In cases where a particular country has four or more such documents, the most currentand comprehensive law or policy was selected for analysis (this concern applied to only five countries,Iraq, Bosnia and Herzegovina, Colombia, Turkey, and Uganda).
  • [4] See e.g. several of Uganda’s 2008 Camp Closure Guidelines, or Guatemala’s Agreement onResettlement of the Population Groups Uprooted by the Armed Groups (1994). Section 1.3 (Housing)of the Republic of Georgia’s State Strategy for Internally Displaced Persons—Prosecuted (2007) states,‘almost the half [sic] (45%) of IDPs are accommodated in collective centers. These buildings havelost their primary function, which in many cases has resulted in their depreciation ... the economicdevelopment of the country is hindered as in many cases the half-ruined buildings and their uncaredfor neighborhoods represent disadvantageous factors for urban development of cities, the revival andmanagement of resorts and industrial infrastructure, and the attraction of new investors.’
  • [5] See e.g.: Government of the Republic of Kenya, Prevention, Protection and Assistance toInternally Displaced Persons and Affected Communities Act, 2012.
  • [6] Assessing whether the variance between international and domestic standards is more pronounced in soft law-informed cases than in hard law-informed cases is beyond the scope of this chapter.However, the more rigorous monitoring structures accompanying some hard law frameworks couldpotentially encourage the development of domestic laws and policies that are more systematicallyattuned to international principles.
  • [7] Government of Afghanistan, National Policy on Internal Displacement, 2013.
 
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