Desktop version

Home arrow Law arrow Tracing the roles of soft law in human rights

Conclusion

In reflecting broadly about the Copenhagen Process and the resulting Principles and Guidelines it must be hoped that they will add to the humanitarian protections of detainees by promoting, clarifying, and promulgating legal norms. That hope stems from accepting that because the Process was state-centric it was effective in taking good practices and lessons learned and applying them to best mitigate the tension that arises both in ensuring the humane treatment of detainees and ensuring military effectiveness in achieving the mission.

Further, it is clear that IHL has developed since at least the nineteenth century through the interaction of different processes. It is worth noting though that the Copenhagen Process appears to be a rare example of a state-centric approach to developing IHL norms for a specific type of activity—dealing with detainees.

The Process might therefore be seen as an example of recognizing that the balance between engaging communities narrowly rather than broadly is not just about seeking an acceptance of the norms settled on but also permitting relevant stakeholders an opportunity to craft norms that suit the circumstances as they perceive them to be and to get a consensus that clarifies the application of existing norms.

As for the substantive provisions found in the Principles and Guidelines, it is clear that the states that welcomed them did not intend for them to be binding. It nevertheless remains to be seen the extent to which they will give rise to legal consequences. It might, for example, be the case that a court or tribunal adopts some or all the Principles and Guidelines to fill a perceived or actual gap in relation to standards of treatment of detainees in peace operations, or that the Security Council refers to them in a resolution thus giving the Principles and Guidelines a firmer degree of hardness as norms.

 
Source
< Prev   CONTENTS   Source   Next >