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Functions and Effects of Soft Law: Precedents within the UN System

It is now increasingly recognized that soft law can play an important role in the progress of normative development in the international community, in spite of an initially non-binding status. The functions soft law serves, and the effects it carries, can be largely political,[1] [2] [3] [4] but there is also room in the international legal order for soft law instruments to ‘harden’ in various ways, and eventually create legal obligations not necessarily foreseen at the time of their adoption. Soft law can thus be seen as a precursor of harder legal instruments (soft law as norm-creating), or as a complement to existing instruments (soft law as norm-filling).i4 Through both these routes, provisions contained in a soft law instrument can evolve into binding standards and carry effects equivalent, to a certain extent, to those of hard law. This section will briefly address the most common and widely recognized of these eventualities, along with an exploration of precedents involving UNGA declarations, especially in the field of human rights.i5

  • [1] I.e. it can influence behaviour or act as a signalling device, outside the legal sphere and withoutrelying on the shadow of legal obligation.
  • [2] For a further discussion of soft law’s norm-creating and norm-filling roles, see the Introductionto this volume.
  • [3] The chapter focuses on UN General Assembly declarations considering their particular nature(they undeniably fall under our definition of soft law; still, they are adopted in the general plenary bodyof an international organization with close to universal membership, which confers a particular auraof legitimacy upon them and makes them the best candidates to illustrate the potential ‘hardening’ ofsoft law). They are also the type of instruments bearing the greatest insights into the specific case at hand, the UNDRIP.
  • [4] Ninety-one ‘declarations’ have been adopted by the UNGA since 1945, with twenty-two classified as related to human rights. United Nations, ‘Declarations and Conventions Contained in GeneralAssembly Resolutions—Human Rights’, .
 
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