Introduction. Tracing the Roles of Soft Law in Human Rights
Thomas Gammeltoft-Hansen, Stephanie Lagoutte, and John Cerone
It has become commonplace to argue that we live in an era of unprecedented proliferation in the development of international law. Importantly, however, an increasing part of the normative standards generated through world politics and other international practice has taken the form of non-binding agreements and other instruments short of positive international law. This new realm of ‘soft law’ can be seen to shape and impact upon the content of international law in multiple ways: from being a first step in a norm-making process, to providing detailed rules and more technical standards required for the interpretation and the implementation of existing rules of positive law. This is especially the case in the area of human rights. While relatively few human rights treaties have been adopted at the UN level in the last two decades, the number of declarations, resolutions, conclusions, and principles has grown almost exponentially. In some areas, soft law has come to fill a void in the absence of treaty law, exerting a degree of normative force notwithstanding its non-binding character. In others areas, soft law seems to have become the battleground for interpretative struggles to both expand and delimit human rights protection in the context of existing regimes.
Despite these developments, little attention has been given to soft law within legal scholarship on human rights. A better understanding of how soft law shapes and affects different branches of international human rights law may not only provide a more dynamic picture of the current state of international human rights law, it may also help to unsettle and critically question certain political and doctrinal beliefs. The importance of these questions is not just theoretical but also practical. Hence, the book aims to serve also as a guide to human rights practitioners and inform strategic decision-making by surveying the ways in which soft law has actually been used in concrete cases and by discussing factors that influence the weight accorded to soft law in various contexts.
This book springs from a sense that the roles performed by soft law are both more ambiguous and multifaceted than what is ordinarily assumed. First, can it still be
Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.
presumed that soft law necessarily leads to an expansive interpretation of international human rights law? In a number of recent cases, states have increasingly relied on soft law to either hedge against or directly backtrack on what they see as activist courts or politically undesirable interpretative developments, suggesting that soft law may equally confine the application of well-established hard law standards or hinder the development of hard law. Secondly, is soft law starting to move beyond its traditional role as an auxiliary tool for the interpretation of international law? In some areas today, soft law constitutes a primary reference point, and yet there seem to be no immediate prospects for codification or crystallization of soft law into hard law. States may prefer the sometimes contradictory language of soft law instruments in order to retain political manoeuvring room. Resistance to codification of certain categories of norms, for example those purporting to regulate the conduct of corporations, may also stem from the inability of scholars and practitioners to reconcile these soft law standards with the fundamental building blocks of general international law. To the extent that this remains the case, should we rather think of certain soft law regimes as sui generis—not just complementing but in some cases also challenging positive international law?
The central purpose of this volume is to openly explore the roles of soft law in both established and emerging human rights regimes. Section 2 proceeds with some reflections on the (im)possibility and politics related to clearly defining soft law in the field of human rights. Section 3 sets out a more practice-oriented, bottom-up approach to examining soft law across different fields, and introduces the questions that are raised in this volume. On this basis a tentative framework for analysing the roles of soft law in emerging and established human rights regimes is set out. Section 4 outlines the structure of the volume and the individual contributions.