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Questioning and engaging soft law frameworks

In Port-au-Prince, where nearly 70 per cent of residents lived in slum conditions even before the earthquake, the traction of soft law frameworks such as the IASC Framework has been limited by their ambitious nature.85 The systematic protection of human rights is a core objective of the durable solutions process as outlined in the IASC Framework, which implies that progress must be made towards satisfying a wide range of human rights in order to determine that displacement has been resolved. This undertaking did not fit the short-term timeframe pushed by the Haitian government, donors, and even the media to ‘end’ the displacement crisis.86 Aid institutions felt ill equipped to support this expansive conception of durable solutions for a population whose rights have never been wholly recognized in the first place, generating a high degree of scepticism that human rights standards, and the soft law concept of ‘durable solutions’ in particular, could provide an operational roadmap towards resolving displacement.

Despite the major displacement situation in Haiti, few national and international actors have detailed familiarity with the normative framework on durable solutions. Amongst those introduced to the IASC Framework, the tool was often perceived as an idealistic or ‘academic’ set of human rights standards with little practical import. While some strongly supported soft law norms on durable solutions, many saw the IASC Framework in particular as too cumbersome, demanding, resourceintensive, and, in the most antagonistic perspectives, inequitably preferring IDPs over the non-displaced urban poor (even though the Framework clearly indicates that support for durable solutions should benefit both IDPs and the non-displaced population). Consequently, the IASC Framework was only selectively used to rhetorically demonstrate support for IDPs, but was never fully institutionalized as a foundation for policy-making or practice.

The lack of detailed knowledge of the IASC Framework and clear guidance on how it may be applied resulted in a situation in which key concepts and principles could be bent or reinterpreted, sometimes with unfortunate consequences for IDP protection. For example, while the IASC Framework stresses the importance of IDP choice regarding durable solutions, and opposes the notion of a hierarchy of solutions, national and international actors singled out return as the most expedient, and thus ‘preferred’, solution. Various, murky meanings were ascribed to ‘return’: private property owners were the first to receive concerted support to leave camps and return to their properties. The cash grants eventually provided to renters did not generally enable them to ‘return’ to their former places of residence. Yet, trying to fit the model of durable solutions, international organizations portrayed the grants as enabling IDPs to ‘return’ to their communities, or to the status of being renters—a contortion of terminology arguably intended to position the provision of rental subsidies as a solution rather than a quick fix to advance camp closures. In an environment in which there were comparatively low levels of knowledge of and respect for soft law standards, this discursive move was not challenged as early as it might have been.

While soft law frameworks did not significantly inform the development of major camp closure interventions, they came to underpin important critiques of these efforts. Many Haitian civil society members lambasted rental subsidy programmes as a violation of state obligations to progressively satisfy the right to housing.[1] [2] At the same time, some officials working with international organizations recognized their responsibility to support not only camp closures but durable solutions, and expressed doubt that the provision of rental assistance satisfied the definitions and criteria pertaining to durable solutions. Some international actors endeavoured to promote IDP choice regarding durable solutions by advancing alternative options such as local integration through the incorporation of former camps into surrounding communities; even so, these efforts usually failed because of local land politics and high material incentives to ‘return’ all IDPs to where they belonged. Still, IDP soft law sometimes provided a foundation for international organizations’ scrutiny of the extent to which responsibilities to protect IDPs are being respected. For example, the Inter-American Commission on Human Rights drew on the Guiding Principles in granting precautionary measures to Haitian IDPs facing threat of evictions, and successfully directed the Haitian government to adopt a moratorium on evictions from camps.88

Five years after the earthquake, many IDPs and other disaster-affected people are independently pursuing settlement in informal communities on the outskirts of the city as their ‘solution’ of choice. The durability of this process remains to be seen and is often delegitimized by institutional actors as a violation of rule of law and sustainable development principles. Unlike the visions of settlement (or relocation) laid out in soft law frameworks, most of the resettlement that takes place in Haiti is unplanned and informal. At the time of writing, residents of these areas still faced the challenge of political recognition and acceptance. Haitian IDPs who have ended up in informal settlements are generally no longer recognized as IDPs by any formal actors, and are instead frequently derided as land grabbers trying to scam free housing on government land. All this suggests that while the development and dissemination of the Guiding Principles and related tools such as the IASC Framework represents a remarkable soft law success story, norms on durable solutions face a variety of interpretations and can be extremely difficult to apply to complex social and political landscapes.

  • [1] Interviews with Haitian civil society groups, Port-au-Prince, Mar.—May 2014.
  • [2] N. Phillips, K. Bergin, J. Goldsmith, and L. Carr, ‘Enforcing Remedies from the Inter-AmericanCommission on Human Rights: Forced Evictions and Post-Earthquake Haiti’, Human Rights Brief vol.19 (2011): 13-18.
 
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