Soft law and the evolution of discourse on durable solutions
Soft law has had a significant role in shaping discourse on durable solutions. This role has been characterized by tension between the political goals and aspirations of actors such as states and international organizations; the focus of normative standards on these actors’ roles and responsibilities in terms of human rights; and the complex empirical realities surrounding displacement situations.
For example, when the development of the IASC Framework began, the discussion focused on the notion of ‘ending’ displacement, with the 2007 pilot version of the Framework bearing the title ‘When Displacement Ends: A Framework for Durable Solutions’. However, some scholars and practitioners suggested that as the experience of forced migration shapes a displaced person’s entire life, and is thus never really ‘over’, it would be preferable to shift the discourse away from a focus on ‘ending’ displacement. This perspective is at odds with the preferences
35 IASC, Framework: A-1.
of governments and operational agencies looking to close files and declare particular interventions a success. Yet by the time the Framework was finalized in 2010, references to the notion of ‘ending’ displacement, or displacement situations being ‘over’, had been assiduously removed from the text, replaced by the more amorphous concept of the ‘resolution’ of displacement through the attainment of ‘durable solutions’. While this is for some an important if nuanced substantive difference, others regard this shift as mere semantics, a reflection of the Framework’s ‘academic’ approach.
Further in this vein, soft law standards on IDPs, and related agreements such as the Kampala Convention, tend to focus on the roles and responsibilities of governments and international organizations. This has perpetuated the notion that these actors ‘provide’ solutions to displacement, obscuring the reality that it is typically IDPs themselves who take the lead in carving out solutions to their own displacement. For example, while the Guiding Principles tread carefully around this issue, emphasizing authorities’ duty to establish the conditions needed to ‘allow’ IDPs to return, resettle, and reintegrate, the IASC Framework more forthrightly states that the ‘primary responsibility to provide durable solutions for IDPs ... needs to be assumed by the national authorities’.36 Similarly, the preamble to the Kampala Convention highlights African states’ ‘common vision of providing durable solutions to situations of internally displaced persons’^7 As experiences in Haiti demonstrate, the ‘solutions’ IDPs advance for themselves may sit uncomfortably within the parameters of rights-based international durable solutions discourse, not to mention the preferences of national authorities and elites, and must be better understood and accounted for in national and international strategies to support the resolution of displacement.