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Context and factors limiting the traction of soft law standards in Haiti

From the outset, efforts to gain traction in Haiti for soft law standards on IDPs faced an uphill battle. The early response to the disaster was characterized by an idealistic discourse of ‘building back better’, but as the scale and complexity of the challenges became clear, and media scrutiny increased, national and international actors refocused on the seemingly more immediate and manageable task of addressing the hundreds of thousands of Haitians in some 1,500 often squalid camps. Thousands of IDPs did not take shelter in camps, but instead stayed with friends and family. However, the concept of internal displacement become synonymous with residency in camps, and the resolution of the displacement crisis with camp closures, rather than with the more complex challenge of supporting durable solutions as per the IASC Framework. Camp closures were achieved primarily through the application of a ‘rental subsidy cash grant’ mechanism, whereby IDPs residing in camps that the government wished to close were given a minimum $500 grant to subsidize the cost of obtaining a year of rental accommodation. For some IDPs, this helped them to establish themselves in decent accommodation, but for many if not most this approach did not translate into a durable solution: in the face of unaffordable rents and lack of access to livelihoods, many were unable to stay in their rented accommodation, and instead moved to informal settlements springing up on the outskirts of Port-au-Prince.[1] [2] [3] [4]

Observers such as the UN Special Rapporteurs on the right to housing and the human rights of IDPs have raised concerns about this approach to camp closure, pointing out that it runs the risk of facilitating evictions, and falls short of standards such as the IASC Framework. However, such rights-based critiques have held little sway in a society characterized by the highest levels of poverty and income inequality in the western hemisphere.75 Haiti’s crisis conditions, patterns of vulnerability and exploitation, and marked divisions between the elite and the subordinate classes are an extension of practices of slavery and abusive colonial and post-colonial governance/6 In this light, it is unsurprising that recovery has varied dramatically between social classes, with property holders faring far better than those without property,77 and that in such a context, soft law standards—and even domestic laws—are implemented or neglected depending largely on elites’ interests.

The adoption of soft law standards on durable solutions was a particularly hard sell in Haiti given the complexity of housing, land, and property issues. Soft law standards on durable solutions stress the need to uphold IDPs’ housing, land, and property rights, calling for ‘effective and accessible’ mechanisms to restore lost homes. However, interpreting and upholding these norms proved challenging if not implausible in the context of a land system governed not so much by law as by informal arrangements shaped by deeply inequitable power relations. The actors involved in land governance in Haiti extend far beyond the formal institutions that are the typical duty-bearers under soft law frameworks, with powerful elites, land mafias, criminal gangs, and highly autonomous NGOs all influencing, to different degrees, the extent to which IDPs could access land on which to pursue a durable solution. Only 5 per cent of Haitian land is recorded in the national cadastral office,[5] [6] [7] and there is currently no complete source of information on ownership and legally enforceable property rights. All this has further limited the practical application of soft law standards on durable solutions, and prompted some to question whether tools such as the IASC Framework are relevant in Haiti.

In the absence of a robust and regulated housing, land, and property rights system in Haiti, squatting and informal land use arrangements have become widespread practices that help the poor access affordable places to live, but also contribute to urban mismanagement and chaos. Haiti’s legal framework has not dealt adequately with urban informality: domestic law is outdated, conservative, inefficient, and certainly not a basis of legal empowerment for landless and renter populations/9 For example, the Haitian Constitution stipulates a right to housing, but has not specified the content of this right nor developed it in line with international standards/0 In such a context, even if a national law or policy on IDPs were to be developed based on soft law standards, it would be at odds with and inevitably struggle to counterbalance this broader body of ‘anti-poor’ domestic laws, starkly reflecting the limitations of the ‘internalization’ approach that has been the focus of efforts to encourage the implementation of soft laws on IDPs.

Experiences in Haiti also show how emerging and established soft and hard law frameworks can compete with each other, sometimes detrimentally. Competing legal and ideological goals linked to notions of property rights and urban development have created some fundamental inconsistences and normative tensions regarding support for IDPs. Actors have walked a political tightrope in their efforts to promote the right of IDPs to access the land and housing they need, while ensuring that they do not impede the rights of non-IDPs who hold land and require security in it. It has also been unclear how to mesh normative frameworks on IDPs with emerging concepts such as the ‘right to the city’, and how to better draw out socio-economic rights that are less prominent within IDP frameworks and discourse. In short, Haiti is an environment full of rights-based dilemmas and thus problematizes the capacity of soft law frameworks to settle conflicts between different social interests and values, and to facilitate judgments on the hard social and political questions that arise in times of crisis.

  • [1] K. Leader, Rapport de stage professionnel: etude preliminaire sur la zone de Canaan et Jerusalem(Port-au-Prince, Haiti: Ministere de la Planification et de la Cooperation Externe, 2014).
  • [2] A. Dupuy, ‘Disaster Capitalism to the Rescue: The International Community and Haiti after theEarthquake’, NACLA Report on the Americas vol. 43 (2010): 14—19.
  • [3] 76 For an in-depth account of historical patterns of injustice see: P. Farmer, ‘Blood, Sweat, andBaseballs: Haiti in the West Atlantic System’, Dialectical Anthropology vol. 13 (1988): 83—99.
  • [4] Sherwood et al. (2014): 30.
  • [5] G. Calhan, ‘Forced Evictions, Mass Displacement, and the Uncertain Promise of Land andProperty Restitution in Haiti’, Hastings Race & Poverty LJ vol. 11 (2014): 170.
  • [6] Interview with Haitian Lawyer, Port-au-Prince, July 2014.
  • [7] Amnesty International, ‘15 Minutes to Leave: Denial of the Right to Adequate Housing in PostQuake Haiti (2015).
 
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