The Law of Disaster and Displacement in Haiti (Part II)

The second in a three-part series on disaster and displacement in Haiti.  Read the rest of the series: Part I, Part III.

Once 1.5-2 million Haitians lost their homes, displacement was exacerbated by complex property laws and land tenure administration.  Simply put, it is difficult to confidently know who owns what in Haiti.  Formal institutions purporting to administer property rights function poorly, giving rise to informal arrangements between landowner and occupant.  The informal system works well enough for Haitians, but was mistrusted by foreign aid agencies financing reconstruction.  The agencies sought durable solutions that provided tenants with security and a respectable standard of living, ignoring the fact that poor living conditions had been the norm before the earthquake. The disconnect forced many to continue living in camps far longer than necessary as agencies grappled with property law entanglements.  The camps themselves became the subject of land disputes as owners of land on which camps were established tried to evict camp occupants from their land.  Fearing that settlements would become permanent, landowners asserted their rights under national law to evict occupants and, when that proved unhelpful, by other demonstrations of power, including force and corruption.  The international community, meanwhile, leaned on international law to block evictions, including human rights law and international principles on internal displacement.  The government was unable to mediate as it had conflicting interests (some camps were on public lands), and through its numerous institutions did not speak with one voice.  Thus an archaic and complex land law and land administration system paralyzed the effort to return displaced communities to their homes.

On the other side of the island of Hispaniola, the Dominican Republic uses its own laws to frustrate Haitians displaced from the earthquake.  Despite a complicated history, the Dominican Republic was among the first nations to send aid to Haiti.  The goodwill was short-lived, however, following a succession of immigration reforms that make it increasingly difficult for Haitian migrants to continue working and living in the country.  As early as 2010 reforms allowed officials to confiscate documents, deport long-time residents, and deny citizenship to children of illegal immigrants.  In 2013 the Constitutional Court of the Dominican Republic issued a ruling denying nationality to Dominicans of Haitian descent, a ruling that has been heavily criticized for being arbitrary and discriminatory.  As a consequence many Haitians (and their children) who sought refuge in the Dominican Republic after the earthquake are once again displaced, and the earthquake-displaced population in Haiti must now accommodate an influx of Dominicans who were never displaced to begin with. 

The international community, for its part, struggled to cope with the absence of a unifying legal order within the relief effort and its many actors.  While the Haitian government had primary responsibility (and coordinating authority) for the relief effort under international law, its institutions were so weakened by the earthquake that it ceded effective control to the international community.  The United Nations was slow to respond, partly because its headquarters in Port-au-Prince collapsed, killing many key personnel.  The UN Security Council would eventually authorize further assistance to its mission in Haiti, who set up a cluster network of response units (13 in total, such as health, shelter, and camp coordination) designed to organize the relief effort.  The clusters themselves were overwhelmed, however, by the surge of international NGOs operating in Haiti.  An estimated 2,000 NGOs responded to the disaster, many without relevant experience in Haiti or a coordinated strategy within which to operate.  Their presence overwhelmed efforts to coordinate displacement of populations and their eventual return.   

What international laws and legal principles did exist to guide displacement strategy did little to serve the displaced.  The International Covenants on Human Rights (stemming from the International Covenant on Economic, Social, and Cultural Rights), for example, was used by some agencies to protect the status of displaced Haitians living in camps located on private land.  The Covenant, however, was designed to address the eviction of landowners from their own land.  The UN Guiding Principles on Internal Displacement, similarly, are silent with respect to the rights of the displaced on private land.  The IASC Framework on Durable Solutions for IDPs, meanwhile, added a further complication by precluding eviction or return absent a durable solution with an adequate standard of living.  Sadly, an adequate standard of living was not a given before the earthquake, as many non-displaced persons do not enjoy an adequate standard of living today.  Remarkably, some of the occupants of the relief camps were not even there because of the earthquake and therefore could not be considered IDPs under the Guiding Principles.  The durable solution approach implied that NGOs operating displacement camps would have no choice but to continue doing so until the standard of living in general is adequate.  When added to the already ambiguous domestic legal landscape, international norms and principles further confused the rights of the displaced in Haiti.