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Competing narratives on the value of soft law

In this light, what emerges from the exploration of the initial opposition to the UNDRIP, and the developments of the instrument since its adoption, are two competing narratives on the value and effects of soft law. While activists constantly attempt to boost the legal value of soft law instruments to achieve further progress in the development of human rights regimes, such push is likely to fuel resistance from traditional actors who will be increasingly reluctant to commit to new soft law instruments if they are not fully ready to endorse the obligations that could arise from them.

On the one hand, soft law instruments are increasingly used by advocates to further normative developments on human rights issues. Pushes are made for the full implementation of soft instruments by states parties (and other actors, where applicable). In an attempt to secure the implementation and development of human rights regimes, soft instruments can be presented and used in similar ways to hard law; distinction is not always made between those two types of instruments when formulating rights claims, and the non-binding nature of soft law is rarely mentioned. Instead, attempts are often made to boost its legal value, by presenting it as reflective of international law (through CIL, general principles of international law, or its links with existing binding norms).

We can definitely witness this in the paths taken by proponents of the UNDRIP over the last few years. Not only have there been strong lobbying efforts within opposing countries and internationally to foster wider adoption of the Declaration, but we have also seen a global push in favour of its full implementation.9® The language used often presents the UNDRIP as the state of international law on the matter, by reference to other binding instruments or to its own provisions as forming CIL.99

On the other hand, such attempts to maximize the value of soft law and pressure for its full implementation can logically have an adverse effect on states. Indeed, attempts to boost the legal value of existing instruments, beyond their non-binding status upon adoption, can make states increasingly reluctant to sign on to new instruments of the same kind. Once again, this is based on existing precedents and fears that consent to the non-binding instrument could lead to further developments in international law without a renewed expression of direct consent. States who deal with sensitive issues domestically are likely to continue to insist on the non-binding status of existing soft law instruments in those issue-areas. They are also likely to play down the significance of their complying behaviour with the standards evoked in soft law instruments when they happen to coincide.[1] [2] This is a clear example of an attempt to limit the possibility for a soft law instrument to be recognized as the applicable standard in a given rights regime, even when state practice is conforming to it. The more powerful and successful attempts to boost the value of existing soft law instruments are, the more we can expect reluctance from states to join new instruments, in ways similar to the opposition it triggered to the UNDRIP.

In this context, reluctant states can also be prompted to deal with soft law in ways similar to how they would approach commitment to binding instruments, contributing to the blurring of the distinction between hard and soft law. This has also been witnessed in the UNDRIP case: opposing states waited for a certain period of time before joining the instrument,^ delivered qualifying statements with their adoption in ways that resemble treaty reservations, or consistently opposed particular provisions they would not want to be bound by (to trigger a status of persistent objector).

The positive news for advocates of normative development through human rights soft law-making in that ongoing confrontation is that it consecrates soft law as a force to be reckoned with in the development of international law. However, this comes at a cost: if the line between hard and soft law is increasingly blurred, the advantages that come with soft law in international law-making (flexibility, adaptability, etc.) might be at risk. In sum, the more soft law advocates 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 in state practice, and nourish a reluctance to commit to further instruments. Soft law could thus fall prey to its own success.

  • [1] E.g., Canada noted in its opposing statement that it would continue to take effective action forthe promotion of indigenous peoples rights, based on other obligations, but stressed that ‘such effectiveaction ... would not be undertaken on the basis of the provisions of this Declaration’. UN Doc. A/61/ PV.107, 13.
  • [2] This is common in the case of treaties open for ratification, but unusual for a soft law instrumentwith a one-off voting procedure.
 
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