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Home arrow Law arrow Tracing the roles of soft law in human rights


As part of the norm-creation process, IDP soft law has successfully raised the profile of an issue of growing international concern; sparked the development of national laws and policies that concretize soft law norms; placed scrutiny on state duties and responsibilities; and initiated a community of practice to monitor and help deliver on a set of standards around how and to what extent people can rebuild their lives after displacement. IDP advocates’ use of soft law tools has supplied human rights activists and the field of international law with lessons in strategy and tactics on establishing new issues on the international agenda, and navigating concerns around intrusion on state sovereignty.

As Gammeltoft-Hansen, Lagoutte, and Cerone point out, soft law can potentially lead to ‘the ultimate and authoritative determinations of open-ended legal questions’. As a soft law standard, the Guiding Principles on Internal Displacement and related tools such as the IASC Framework have certainly shaped the discourse surrounding ‘durable solutions’ for IDPs, and have influenced interpretation of the issue as a long-term challenge requiring cooperation between national authorities and international humanitarian and development actors. These documents have also, if only to a modest extent, informed the integration of durable solutions into national laws and policies on IDPs. In addition, they have to varying degrees shaped the practices of actors working to support durable solutions to displacement. However, given the complex political and economic interests at stake in efforts to resolve displacement crises, states have continued to embrace and push conceptions of durable solutions that do not necessarily mesh with these standards, which, as soft law tools, lack strong mechanisms to contest such interpretations. Further, soft law tools on internal displacement still generally do not provide ‘ultimate and authoritative’ responses to some of the thorniest questions surrounding the pursuit of durable solutions, such as: to what extent are states and international actors required to invest resources to make each of the three durable solutions realistic options for IDPs? In practice, the right to choose a durable solution is often pared down to the ‘right’ to accept the particular solution that is most politically acceptable, materially feasible, and enforceable within domestic legal systems. Given often profound resource constraints, and the need to equitably consider and support the rights and well-being of non-displaced communities, is it acceptable to channel support to a particular solution, such as return? How are solutions such as ‘return’ to be defined, especially when original homes have been destroyed, or when populations were highly marginalized and mobile prior to their displacement? What are the rights of secondary occupants who move onto displaced persons’ former lands, and how do these relate to IDPs’ right to return?[1]

In other words, while the use of soft law to tackle internal displacement is, overall, a success story, it is an inevitably limited one. IDP soft law tools do not yet comprehensively fill the interpretation gap arising from the hard law instruments from which they are derived. Given the complexity of particular displacement situations, perhaps comprehensive legal responses to the deeply political questions they raise are not possible. In this way, IDP soft law mirrors the weaknesses and limitations of international law—particularly international human rights and humanitarian law—more generally. International law is not a ‘silver bullet’ to the resolution of displacement crises, but a foundation to inform political and socio-economic interventions in support of IDPs.

  • [1] The Pinheiro Principles address some of these questions, advocating a precise interpretation ofthe right of return as the almost unfettered right of displaced persons to reclaim their lost homes orlands. However, the Pinheiro Principles have been extensively critiqued as misinterpreting or offeringan insufficiently nuanced interpretation of obligations on this issue. See e.g.: Ballard (2010).
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