What This Case Could Mean for the Further Developments of Human Rights Soft Law
Opposition to a soft law instrument in the realm of human rights is relatively rare and can seem like a counter-intuitive position, especially from democratic states which are generally publicly positioning themselves as human rights advocates.91 The case of the UNDRIP is close to the only time this has ever been witnessed in the history of UN General Assembly declarations on such matters. As this chapter has shown, states’ opposition to this particular instrument was not rooted primarily in a disagreement with the core principles of the Declaration^ but rather in a desire to limit the potential effects of the instrument and to preclude the possibility that some of its provisions could become binding in the absence of a further explicit expression of state consent.93 Only apprehensions regarding the latter possibility can explain their reluctance to commit to the
The adoption of the Declaration is a relatively recent occurrence, though. As such, it is important to reflect on what this case (and the associated responses it elicited from states) could mean for the further development of soft law in the realm of human rights. Could such behaviour be replicated as new instruments are presented to states for adoption? Is the case symptomatic of a nascent trend or just an outlier in an otherwise relatively uniform body of state practice?
the UN vote and the belated statement of acceptance), or a re-evaluation of the effects of the instrument a few years after its adoption (mitigating initial fears about obligations to arise from commitment to the document).
- 91 This links to the important reflection raised by this volume, exploring the roles of soft law as both a potential tool for progress and a locus of interpretative struggles. It therefore has the potential to expand or limit normative developments in the field of human rights. See the Introduction to this volume.
- 92 And this is further evidenced by their belated rallying, without any changes to the Declaration itself, its form or drafting process.
- 93 In this respect, the limited control of UN member states over the drafting process of the Declaration probably exacerbated fears as to the levels of state control over its further developments. See section 4.2 for further remarks on the drafting process.