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Could the Progressive ‘Hardening’ of Human Rights Soft Law Impair its Further Expansion? Insights from the UN Declaration on the Rights of Indigenous Peoples

Leticia Villeneuve

Introduction

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in September 20071 was celebrated as a historic achievement in the quest towards full recognition and protection of indigenous peoples’ rights at the international level. The document was welcomed by the UN and a vast majority of its member states who voted in favour. It was also saluted by indigenous peoples and their representatives, as the UNDRIP’s drafting process had opened its doors to indigenous participation and contribution. Even if the UNDRIP was adopted in a soft law form, it was welcomed overall as a sign of progress for the indigenous rights movements and the UN human rights regime more generally.2

Beyond this positive narrative, however, the UNDRIP’s adoption process presented some anomalies that are worth investigating: when the document was presented to the UN General Assembly (UNGA) four states opposed its adoption, a stance that had barely ever been witnessed in the history of UN Declarations on human rights.3 This cast some shadow on a declaration meant to be a true ‘standard

  • 1 UNGA Res. 61/295 (13 Sept. 2007).
  • 2 In Chapter 9 of this volume, Felipe Gomez Isa discusses the case of the UNDRIP, presenting its positive impact in the development of an international indigenous rights regime. Indeed, as stated in that chapter, the UNDRIP has a great transformative potential for indigenous peoples. This chapter, however, highlights the potential risks associated with the ‘hardening’ of soft law principles from the angle of state practice and the impact such developments can have on the further development of human rights regimes in a soft form.
  • 3 The only other occurrence being the United States’ opposition to the Declaration on the Right to Development. UNGA Res. 41/128 (4 Dec. 1986).

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

of achievement’,[1] [2] and raised important questions about state practice and the law’s further development in the field of human rights.

Indeed, soft law5 is increasingly recognized as a distinct and useful category in international law-making. It is often presented as an optimal institutional arrangement in contexts where a harder, binding form is not possible or desirable, or to pave the way to the development of binding norms.[3] Still, its non-binding status does not deprive soft law of all significant effects in the international community. In some cases, as this chapter aims to show, soft law can also gain greater weight and potentially create legal obligations, going beyond its initially non-binding status and beyond what its parties consented to at the drafting and adoption stage of particular instruments.[4] This progressive development (and eventual ‘hardening’) of soft law can be welcomed positively as it fuels the expansion of normative orders in areas not covered by conventional, binding instruments. The impact of such evolution, however, can raise important issues for the further development of soft law, when new instruments are drafted and presented to states and other actors for adoption.

While the development of soft law has received some attention from scholars from the angle of implementation and compliance,[5] issues faced at the commitment stage have remained under-theorized, both in international legal and political scholarship.[6] Indeed, common wisdom posits that its non-binding nature alone makes decisions on commitment easy and largely inconsequential for its parties, no matter if the soft law instrument is envisioned to create new standards to be followed or simply to be used as a tool of cheap talk. As it is believed that a party can maintain control of the requirements of implementation over time (an element that contributes to the attractiveness of soft law forms), decisions to join should remain an easy matter.

This chapter, however, argues that commitment to a soft law instrument may involve a more complex decision-making process than conventional wisdom suggests, at least for the states parties involved. A growing body of precedents now points to the potential ‘harder’ effects of soft law, and this does not go unnoticed in state practice. As a result, it is likely that precedents and interpretations granting greater political and legal weight to instruments adopted in a soft form will fuel uncertainty and apprehension. As new soft law instruments are presented to states for adoption, an initially non-binding status can no longer act as a guarantee that legal effects are not to arise at an ulterior stage.

This appears quite clearly when investigating the opposition to the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), an unusual occurrence in the recent history of human rights soft law. While all but one of such declarations (adopted through UNGA resolutions) have historically been adopted without opposition[7] [8] [9] (if not without a vote), the UNDRIP was initially opposed by Australia, Canada, New Zealand, and the United States.n Looking through these four countries’ positions and motives for opposing the adoption of the UNDRIP, an instance not easily reconciled with common assumptions regarding commitment to soft law,i2 this chapter posits that the potential, and potentially ‘harder’, effects of soft law are increasingly taken into account in state practice. It argues that this can form the basis of opposition to a soft law instrument, if the possibility of harder obligations arising from it in the future would prove costly to a participating state. It will also argue that existing precedents in human rights soft law coupled with advocates’ continued attempts to boost the legal value of such instruments increase the likelihood that further developments will face resistance.

This chapter will first survey the functions and potential effects of human rights soft law as demonstrated by existing precedents, especially in the United Nations framework. It will then move to a thorough analysis of the opposition to the adoption of the UNDRIP and uncover the political and legal underpinnings of the process. It will show that the four opposing states’ declarations directly map onto the potential developments foreseen for a soft law instrument, as each voiced clear objections to all potential avenues through which the UNDRIP could follow the lead of the previous ‘hardening’ of provisions contained in soft law instruments in the United Nations system. It will finally explore what this case could mean for the further development of human rights instruments, highlighting the emergence of competing narratives on the effects of soft law and the issues it raises for its further expansion.

  • [1] UNGA Res. 61/295 (n. 1), Preamble.
  • [2] For the purposes of this chapter, soft law is defined as referring to written international instruments, which are non-binding at the time of adoption, but create particular expectations of futurebehaviour and are likely to have legal effects. While this does not exclude instruments drafted andadopted by/for non-state actors, this chapter will primarily focus on soft law instruments devised andadopted by states, since states remain the central actors and traditional reference point in internationallaw-making.
  • [3] K. W Abbott and D. Snidal, ‘Hard and Soft Law in International Governance’, InternationalOrganization vol. 54 (2000): 421.
  • [4] A similar process is described in Megan Bradley and Angela Sherwood’s chapter in this volume,in relation to the regime governing the protection of internally displaced persons. In that case, a softlaw instrument (the Guiding Principles on Internal Displacement) gained enough traction to act as astandard-setter in the field and permeated international and domestic instruments (albeit with moreor less success in practice). The main difference with the case at hand is that the Guiding Principlesemanated from an independent international body, not from an initial act of adoption by state actors.
  • [5] See e.g.: E. Brown Weiss, International Compliance with Nonbinding Accords (Washington,DC: American Society of International Law, 1997); D. Shelton, Commitment and Compliance: TheRole of Non-Binding Norms in the International Legal System (Oxford: Oxford University Press, 2003).
  • [6] E.g. Shelton’s Commitment and Compliance volume is mostly about the latter. Studies on commitment are usually rather focusing on binding treaties (e.g.: O. A. Hathaway, ‘Why Do CountriesCommit to Human Rights Treaties?’, Journal of Conflict Resolution vol. 51 (2007): 588), or on thetrade-offs between hard and soft law (e.g.: Abbott and Snidal (2000)).Commitment to soft law on itsown has yet to be fully explored.
  • [7] The only exception: the United States of America voted against the UN Declaration on the Rightto Development in 1986. UNGA Res. 41/128 (4 Dec. 1986).
  • [8] UNGA Res. 61/295 (13 Sept. 2007).
  • [9] From a rationalist standpoint, commitment to international instruments is to be expected whenbenefits are to outweigh the potential costs. Soft law is often presented as a low-cost, low-stakes alternative to hard law, which can still yield benefits (Abbott and Snidal (2000)). In the field of human rightsspecifically, normative pressures mean that commitment can be accompanied by reputational benefits(which some states are keen to reap even if they do not intend to comply—see: O. Hathaway, ‘The Costof Commitment’, Stanford Law Review vol. 55 (2003); E. M. Hafner-Burton and K. Tsutsui, ‘JusticeLost! The Failure of International Human Rights Law to Matter Where Needed Most’, Journal of PeaceResearch vol. 44 (2007): 407), while opposition is likely to carry reputational costs. As such, commitment to a soft law instrument on human rights is the expected standard of behaviour (especially whenUN declarations are concerned) while opposition is puzzling, unless states perceive potentially greatercosts outweighing the reputational impact. Such costs have yet to be explored in existing accounts ofcommitment to soft law.
 
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