Protecting the Internally Displaced

Rhetoric and Reality

Phil Orchard

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138799226
• eBook ISBN: 9781317629405
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Relaciones internacionales

Today, there are over 40 million conflict-induced internally displaced persons (IDPs) globally, almost double the number of refugees. Yet, IDPs are protected only by the soft-law Guiding Principles on Internal Displacement at the global level. Instead of a dedicated international organization, IDPs receive protection and assistance only through the UN's cluster approach.

Orchard argues that while an international IDP protection regime exists, many aspects of it are informal, with IDP issues bound up in a humanitarian regime complex that divides the mandates of key organizations and even the question of IDP status itself. While the Guiding Principles mark an important step forward, implementation of laws and policies based on them at the domestic level remains haphazard. Action at the international level similarly reflects an all-too-often ad hoc approach to IDP issues. Through an in-depth examination of IDP efforts at the international level and across the forty states which have adopted IDP laws and policies, Orchard argues that while progress has been made, new and greater monitoring and accountability mechanisms at both the domestic and international levels are critical.

This work will be valuable to scholars, students, and practitioners of forced migration, international relations theory, and the Responsibility to Protect doctrine.

1
Norm emergence and contestation within the IDP protection regime

• Creating new norms
• Regime complexity and an international humanitarian regime complex
• The institutionalization of the IDP regime
• Conclusions: norms and the IDP regime

I have suggested that the 1998 Guiding Principles on Internal Displacement provide a framework for states and other actors to understand internal displacement as an international problem and to provide a core set of rights for the internally displaced and responsibilities on the part of states. This has built on prior normative understandings. The first—that IDPs should be provided with international assistance—emerged around informal practices by UNHCR beginning in the 1970s. The second—that IDPs represent an international problem which, while primarily the responsibility of their own state, requires the international community to also provide them with assistance and protection—emerged in the early 1990s.

The Guiding Principles are critical to understanding the problem of internal displacement not only because they provide the most widely accepted definition of internal displacement, one recognized today by a range of international and regional organizations, by states, and in law at the regional level, but also because they restate the existing rights of internally displaced persons under other bodies of law. The introduction of the Guiding Principles, therefore, reflects a significant and positive shift on the part of the international community. But the Guiding Principles have done more than this as well. They have built on these earlier normative understandings to create new shared understandings around how the international community needs to respond to the IDP “problem”; shared understandings which today provide a normative underpinning for an international IDP protection regime. However, while international recognition of the need for IDPs to receive protection and assistance clearly exists, this recognition has—as yet—failed to translate into clear and consistent policy responses at the international, regional, and domestic levels.

This chapter, consequently, argues that the IDP protection regime remains challenged along two dimensions. The first is how the individual norms which make up this regime are actually interpreted by states and other actors. Rather than assuming that institutionalization at the international level has created clear and consistent understandings of these norms, I argue that the implementation process within organizations (as they tailor their activities to IDPs) and within states (as they create their own domestic legislation and policies to protect and assist their own IDP populations) has led to a process whereby these core international norms have been contested and reinterpreted.

The second dimension reinforces these issues and reflects the growth of complexity at the international level. As noted in the introduction, when the modern refugee regime was created, it was anchored in both the 1951 Refugee Convention and in the role of UNHCR. The growth of global governance over the ensuing decades, however, has meant that international regimes no longer exist in isolation. Instead, there is a new focus on regime complexes, which may be nested, overlapping, and not hierarchically ordered. Thus, while an IDP protection regime exists, it is nested within a larger humanitarian protection regime complex which thereby creates a range of overlaps between the IDP regime and other regimes with different subjects including refugees and civilians.

Creating new norms

The IDP protection regime is composed of a bundle of different norms. Within International Relations constructivist scholarship, norms are understood to be shared understandings of appropriate behavior for actors with a given identity which isolates a single strand of behavior.¹ The most widely accepted model of norm emergence is Finnemore and Sikkink’s norm life cycle model,² which makes a number of predictions around the role of norm entrepreneurs and domestic and international environments in shaping the process through which new norms emerge and whether they end up being widely adopted by states and other international actors. At the initial stage of norm emergence, they argue that these norm entrepreneurs can be critical in placing an issue on the international agenda. Such actors can “call attention to issues or even ‘create’ issues by using language that names, interprets and dramatizes them.”³ Critical to their efforts is the use of framing—“the conscious strategic efforts by groups of people to fashion shared understandings of the world and of themselves that legitimate and motivate collective action.”⁴

Following the emergence of a new norm, early adopting states become “norm leaders” and socialize other states to follow them through a variety of mechanisms including legitimation effects, self-esteem effects, and pressure for conformity.⁵ Once a critical mass of states adopts a new norm, it passes a threshold or tipping point.⁶ Following this, norms are so widely accepted that they “are internalized by actors and achieve a ‘taken-for-granted’ quality that make conformance with the norm almost automatic.”⁷ This is an important step. Internalized norms are viewed as “‘binding,’ as having qualities of ‘oughtness.’”⁸ Frost similarly refers norm settling; a norm is settled “where it is generally recognized that any argument denying the norm (or which appears to override the norm) requires special justification.” Violating a settled norm should, therefore, trigger either a process of justification or will be undertaken clandestinely.⁹

There are, however, two issues with the Finnemore and Sikkink account of norm emergence, reflecting the roles played by norm entrepreneurs in this process and how norms are institutionalized. Finnemore and Sikkink implicitly suggest norm entrepreneurs work through an outside-in process, with the goals of norm entrepreneurs primarily to be to influence states at the early stages. But this assumes that these actors are working at the international level or, if at the domestic level, to be operating outside government. Much academic work has focused on the myriad number of individuals, international, and non-governmental organizations, transnational advocacy networks, and even states operating as norm entrepreneurs at both the international and domestic levels.¹⁰

Rather than arguing that a discrete set of actors exist who are “norm entrepreneurs,” in other work, I have suggested it is more useful to examine a category of norm entrepreneurship by drawing on the idea of policy entrepreneurship. Rather than being specific actors, policy entrepreneurs are anyone who “distinguish themselves through their desire to significantly change current ways of doing things in their area of interest.”¹¹ Thus, norm entrepreneurship occurs where such activities are “a category of action through which actors are willing to devote considerable resources (material, and/or ideational) in order to introduce, change, or replace international norms in their areas of interest.”¹² In order to engage in norm entrepreneurship, actors need to have their own sources of authority and legitimacy to exercise power across borders¹³ or they need to have direct connections with domestic institutions or other ways to mobilize domestic support. This means that the early stage of norm entrepreneurship is tied to the domestic level within key states, and for actors to succeed at this level, they need to be empowered by a domestic agent whether individual, group, or government.¹⁴

This can be done through different mechanisms. Transnational advocacy networks make links between civil society actors in individual states, governments, and international organizations.¹⁵ Local groups can work by themselves to “build congruence between transnational norms (including norms previously institutionalized in a region) and local belief and practices,” a process Acharya refers to as norm localization.¹⁶ Others can possess their own domestic sources of political legitimacy. This can include political elites, including those serving within key political institutions and with decision-making authority and those who have substantial influence over decision-making.¹⁷ Therefore, through these mechanisms, a wide range of actors can be involved in the process of norm entrepreneurship.

The second issue is how Finnemore and Sikkink understand the process of norm institutionalization. For them, institutionalization is critical to the emergence of a new norm. Institutionalization, they argue, occurs when the new norm is introduced in

specific sets of international rules and organizations. This contributes strongly to the possibility for a norm cascade both by clarifying what, exactly, the norm is and what constitutes violation (often a matter of some disagreement among actors) and by spelling out specific procedures by which norm leaders coordinate disapproval and sanctions for norm breaking.¹⁸

Institutionalization can then lead to a process of norm diffusion, whereby these institutionalized norms move downward to the state level, or across states through a process of adoption or mimicry.¹⁹

While important, this work reflects one form of norm change through emergence: as a new norm emerges, it either replaces or transforms existing norms in the same issue area. A second form of change occurs through violation. As Panke and Petersohn have argued, a norm may degenerate if it loses its prescriptive status due to widespread non-compliance, either being replaced through a competitive process or fading away entirely.²⁰

A third form of change occurs as new and existing norms are subject to interpretation and reinterpretation through the process of implementation. There has been a renewed focus on interpretation and reinterpretation of new norms as they are subject to contestation. Contestation, following Wiener, is a societal practice in which rules, regulations, or procedures are critically questioned in either an explicit (through contention, objection, questioning, or deliberation) or an implicit (through neglect, negation, or disregard) manner. Contestation, she notes, is constitutive for social change because it allows legitimacy gaps between fundamental norms and standardized procedures to be identified and filled.²¹

This is an issue for institutionalization as a discrete norm emergence process, as even institutionalized norms may not spell out the actions required for norm following,²² and hence norm adoption may simply usher in “a new phase of battle over the norm itself.”²³ Per Krook and True, norms are works in progress, which “tend to be vague, enabling their content to be filled in many ways and thereby to be appropriated for a variety of ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• List of illustrations
• Acknowledgments
• List of abbreviations
• Introduction
• 1 Norm emergence and contestation within the IDP protection regime
• 2 Forced migrants, IDPs, and the role of international law
• 3 The origins of internal displacement
• 4 The emergence of assistance and protection norms toward IDPs
• 5 The United Nations’ institutional response
• 6 Implementing legal protections at the regional and domestic levels
• 7 Implementation issues
• 8 Failed implementation
• 9 When will reality meet rhetoric for the internally displaced?
• Annex table: domestic IDP policies or legislation
• Select bibliography
• Index