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


Using insights from the UNDRIP and the opposition it initially fostered, this chapter has aimed to explore issues of state commitment to human rights soft law. It has shown that the possibility for soft law instruments to give rise to ‘harder’, potentially binding effects over time is acknowledged in state practice. It has argued that such recognition is likely to change the ways in which states approach questions of commitment to new instruments, and even form the basis of opposition to a non-binding human rights instrument (if any obligation arising beyond the bounds of initial consent could prove costly to a potential party).

In doing so, it has uncovered competing narratives on the value and effects of soft law in practice. This exercise was mostly of an exploratory nature, as no definitive trend has emerged yet (and whether one will eventually is likely to be highly dependent on issue-areas). Still, this chapter has made the point that while the way in which soft law’s advocates use existing instruments can lead to successful normative developments, it can also feed back into state practice and change state actors’ responses to both existing and new soft law instruments. Indeed, advocates’ attempts to obtain the most out of a non-binding instrument in terms of human rights protection could well lead to increased opposition from states to join new instruments of that kind, if they felt their control over the obligations such instruments could create without explicit consent was in jeopardy. It remains to be seen whether different equilibria between competing views of soft law will emerge in practice. These could likely be dynamic, renegotiated over time and across substantive fields. And this could be something worth preserving, if soft law is to maintain its distinct strengths in an international legal order that is fast evolving.

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