Structure of the Volume
The opening chapter, by John Cerone, examines the concept of ‘soft law’ and its relationship to binding international human rights law. While there is no universally accepted definition of the term, the phrase is nonetheless commonly used by international and human rights lawyers. Acknowledging the very different understandings of the roles and usages of soft law traced by the authors to this volume, a working definition is nonetheless important to delimit the scope of the study and establish the framework of the subject matter to be analysed. To this end, this chapter attempts a definition of both the terms ‘soft law’ and ‘soft law instrument’ in order to establish a common vocabulary for the ensuing chapters.
The remainder of the volume charts its course in two parts. Part I includes case studies that explore the diversity of roles soft law has played within ‘developed’ human rights regimes (i.e. regimes where there are established hard law standards), its progressive and regressive effects, and the role that different actors play in the incubation process. In her contribution Kasey McCall-Smith examines the introduction of general comments into domestic legal systems. As a universally applicable form of soft law produced by the treaty bodies, general comments have unparalleled potential to shape universal human rights. Soft law produced by the treaty bodies contains rules that are in the process of incubation and therefore normfilling as they aid in interpreting the hard law standards set forth in the core human rights treaties. Though states often ignore treaty body jurisprudence, there is strong evidence that it is nonetheless influential in the domestic sphere by virtue of the increasing references to general comments in domestic court opinions and policy debates. Yet, the persisting question is whether the use of treaty body jurisprudence at the domestic level refines or distorts the development of universal human rights standards.
Ekaterina Yahyaoui Krivenko analyses the role of soft law in the process of emergence and gradual recognition of violence against women as a human rights concern at the universal level. Her analysis shows that in the context of the CEDAW Committee soft law is used not only to bolster the interpretation of existing human rights standards, but also to support normative developments related to new forms of violence against women not recognized at the time of drafting of the Convention. Her chapter highlights the dialectical relationship between law and non-law. Instead of approaching these as binary opposites, the CEDAW Committee applies the soft law prohibition of violence against women as an intermediary concept to link newer forms of violence against women to the Convention.
Some of the most important current developments in our understanding of human rights are currently happening in the area of economic and social rights.
In his chapter, Matyas Bodig examines the role of the CESCR Committee and its general comments in facilitating this process. Most authors agree that the Covenant on Economic, Social and Cultural Rights suffers from a flawed doctrinal design and important drafting deficiencies. Yet, the soft law of the CESCR general comments has served to better articulate relevant human rights obligations and as such serves as an important tool for addressing these issues. The Committee may, however, equally be accused of human rights activism in its effort to push current interpretation and develop new rights, most notably the right to water. While many states are unsympathetic to the Committee’s work, general comments are nonetheless reflected in the periodic reports and there are signs that CESCR soft law is becoming a more widely accepted model for articulating the content of economic and social rights.
The proliferation and multifaceted nature of soft law within the human rights field identified in the volume is perhaps nowhere more evident than in the work of the African Commission on Human and Peoples’ Rights covered in the chapter by Debra Long and Rachel Murray. The African Commission as a quasi-j udicial, monitoring body generates a range of soft law instruments. These instruments reflect the variety of reasons identified in the volume for which soft law may be developed, and the diverse types of instruments that may be categorized as ‘soft law instruments’, but which may have very different persuasive force or purpose in practice. In that sense, they may be considered useful additions to the human rights ‘armoury’, which the African Commission, and others working in the field of human rights, can draw upon to encourage states to comply with their human rights obligations. Moreover, notably, these instruments are designed to influence not only state behaviour but also the strategy and policy of the African Commission itself in respect of a particular issue. As the authors point out, however, there is a problem with the degree of traction that these soft law instruments have gained at the national and regional levels.
While the Guiding Principles on IDPs and most other soft law instruments in the human rights field have been developed in close collaboration with, for example, NGOs and relevant international organizations, the Principles and Guidelines on the Handling of Detainees in International Military Operations is a unique example of a state-centric approach to developing soft law, with no institutional anchoring and very limited involvement by civil society. In his chapter Bruce ‘Ossie’ Oswald revisits the Copenhagen Process and reflects on the nature of the Principles and the extent to which the state-led process influenced the content of the Principles and Guidelines. He argues that the Principles and Guidelines may be seen as an example of a new mode of soft law development in areas where states have serious concerns and do not trust the existing human rights machinery to develop interpretation. That said, the Principles and Guidelines also highlight how difficult it is to establish the appropriate relationship between human rights and international humanitarian law, and it remains to be seen how they will be used to fill perceived or actual gaps in the law concerning taking and handling of detainees in military operations.
Taking a more critical perspective, Peter Vedel Kessing argues that in the area of armed conflict soft law tends to play the role of a ‘norm-excluder’ rather than a norm-filler or norm-creator as is ordinarily the case in the field of international human rights law. It is remarkable that many new soft law instruments, including the Copenhagen Principles and Guidelines, deliberately delimit or exclude human rights, even though there is a strong consensus among judicial bodies and international organizations that international human rights law is a relevant legal source in times of armed conflict. The fact that these instruments are often developed by a small group of selected experts/organizations and a few selected states in a closed and non-transparent process entails a higher risk that these instruments will lead to fragmentation and polarization.
In the last chapter in this part of the volume Megan Bradley and Angela Sherwood show how the development of the Guiding Principles on Internal Displacement in 1998 created a soft law standard that was essential to establishing the IDP issue on national and international agendas, and to making progress in understanding and better protecting the rights of IDPs. The global number of internally displaced persons is currently the highest since this group of people was first systematically recorded. A number of national laws and policies, as well as a regional convention, have further been developed using the Guiding Principles as a normative reference on how to protect and assist IDPs. Yet, as the authors show, the extent of domestic implementation varies considerably. While the Guiding Principles are often hailed as a success story in international fora, they tend to be contested or overlooked as a matter of domestic practice and struggle to exert influence in complex post-conflict and post-disaster contexts where even domestic laws are often not systematically and equitably applied.
Part II traces the role of soft law in emerging areas of international human rights law, where there is no substantial treaty codification of norms. The chapters in this part all examine the relationship between soft and hard law, the role of different actors in formulating new soft law and the potential for eventual codification. The UN Declaration on the Rights of Indigenous Peoples is one such case. In his chapter, Felipe Gomez Isa analyses how indigenous peoples have used soft contemporary international law in their efforts to put an end to historically rooted patterns of subjugation, dispossession, and cultural assimilation. The UNDRIP, adopted in 2007 by the UN General Assembly, has to be seen as the culmination of a long and difficult journey in which indigenous peoples themselves and their representatives have been the driving force and key participants. Many of the provisions enshrined in the Declaration simply reaffirm existing customary rules of international law, while others point to future developments. Irrespective of the uncertain legal nature of the UNDRIP, it has thus become an unavoidable point of reference when implementing indigenous peoples’ rights.
Nuancing this view, Leticia Villeneuve points out that although the UNDRIP is an important milestone, its adoption was also opposed by four important countries: Australia, Canada, New Zealand, and the United States. Looking through these countries’ positions and motives for opposing the UNDRIP, she argues that commitment to a soft law instrument may involve a more complex decisionmaking process than conventional human rights theory suggests, at least for the states involved. Her chapter shows that the four opposing states’ declarations directly map onto the potential developments foreseen for a soft law instrument, as each state voiced clear objections to all potential avenues through which the UNDRIP could follow the lead of the previous ‘hardening’ of provisions in soft law instruments. Such ‘hardening’ may undermine the perceived benefits of soft law instruments in terms of their flexibility and adaptability. The more soft law advocates attempt to stretch the limits of state consent after the adoption of a soft law instrument and attempt to push for the recognition of binding obligations arising from it, the likelier the chances that it will cause a backlash from states and nourish a reluctance to commit to further instruments. Soft law could thus fall prey to its own success.
The UN Guiding Principles on Business and Human Rights is another example where soft law arguably takes on a primary role in the human rights field. Introducing non-state actors as quasi duty-bearers in a set of human rights standards endorsed by the Human Rights Council, they have been met with both enthusiasm and resistance from states and legal scholars. In her chapter Stephanie Lagoutte argues that the Guiding Principles are a challenging, and sometimes confusing, instrument for public international law and international human rights law in terms of form and content. It is therefore important to clarify the nature and the contents of the Guiding Principles and analyse the effects of the emergence of such soft law instruments. She acknowledges that the Guiding Principles have played a catalyst role in restating and bringing together relevant human rights obligations in a set of soft law standards addressing both states and business enterprises. Yet, by associating corporate social responsibility discourse and actual legal obligation in the same instrument, it also becomes more difficult to distinguish the mandatory elements from the voluntary ones within the field of human rights and business.
Following on from this, Christoph Good argues that the Guiding Principles may be analysed in terms of different objectives in relation to the wider international human rights framework. In addition to the classical preparatory function of soft law (that is expressed in the concrete case in the expectation to harden the corporate obligation to respect human rights), the Guiding Principles may also be seen as an example of soft law filling a more pragmatic role to ensure an output-oriented, multi-layer governance approach. This process is characterized by institutionalized stakeholder involvement and a general openness towards alternative regulative approaches. It may be too early to tell whether the Guiding Principles will induce a sustainable behavioural change of states and corporations, yet the use of soft law ended the deadlocked international discussions on how to frame the corporate responsibilities in the business and human rights nexus. Furthermore, this functional turn is not limited to the Guiding Principles, but may be disseminated as an underlying benchmark into wider human rights processes at the international, regional, and national level.
Anette Faye Jacobsen examines the role soft law plays in relation to development agencies’ and non-state actors’ policies and programmes. As in other areas, soft law is seen as a means to elaborate and expand on existing hard law, and, gradually, to bring about new norms. Soft law is thus extensively referenced by development organizations, NGOs, and activists to strengthen civil society’s influence on governmental policies and decision-making. In that sense soft law may indeed be argued to expand the human rights field at the political and discursive levels. Yet, to what extent it actually leads to improved and expanded application of human rights protections depends on the context, and the expansive trend carries with it a risk that state actors may try to stifle the influence of international and regional human rights institutions in order to counter normative developments.
Chapter 14, by Sally Holt, Zdenka Machnyikova, and John Packer, examines the issue of minority rights and their implementation. This is an area that has relied heavily on soft law instruments to expand the scope, reach, and implementation of human rights protection. Vague provisions of hard law instruments have been given substantial specificity in content, and whole areas—such as language rights and rights of effective participation—have emerged with their own sub-elements with important implications for minority protection and good governance. Their case study indicates that less dogmatic approaches and constructive engagement, with interpretative intermediaries, may result in greater and more sustained gains in the effective enjoyment and realization of human rights. More broadly, this is an example of the dynamic interplay between international norms and domestic behaviour, where the two orders of law positively intersect generating voluntary compliance and sustained performance. Despite its status, soft law may thus have ‘hard effects’, and the process by which this area has evolved may provide lessons for the effective implementation and realization of human rights in other areas.