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Preliminary Reflections on Soft Law in International Human Rights

Soft law instruments such as the UNGPs challenge the boundaries of international human rights law and thereby international human rights protection. While the increased use of soft law in human rights law expands the outreach of a human rights discourse, it is arguable that this also contributes to reducing the specificities of international human rights law and brings it back within the realm of ordinary public international law.

A question central to this volume is whether soft law poses specific challenges to human rights law, distinct from those otherwise posed by soft law in international law due to the specific features of international human rights law.24 A comprehensive discussion of the legal nature and specificities of international human rights law would exceed the limited objectives of this chapter.25 It is not my intention here to reopen the debate regarding the fragmentation of international law and the specific nature of human rights law.26 International human rights law is part of public international law; it is created by states, which commit themselves to a number of obligations.

Two main features are, however, traditionally seen as specific to international human rights. First, when adopting human rights instruments, states commit themselves to protecting the rights of third parties to the treaty, that is individuals. Human rights law therefore defines its addressees in ‘direct contradiction to the Statist orientation of traditional international lawTh The human rights obligations that states take upon themselves have been defined as erga omnes or ‘objective’ obligations. The International Court of Justice and the European Court of Human Rights have in several decisions emphasized the idea that human rights treaties protect the common interest of all contracting states, independently of each state’s own interest.28 As a consequence of this jurisprudential construction, the international and regional regime of treaty reservations and denunciations has caved in to interpretation by international and regional human rights mechanisms, which do not allow reservations or have decided to set them aside in many instances.29 [1] [2] [3] [4] [5] [6]

The second specific feature of international human rights law is its high degree of legalization supported by the establishment of independent supranational supervision, ‘from fully empowered judicial bodies to weak oversight agencies’.30 State action is monitored across the globe and individuals bring petitions, applications, or claims against states before the UN treaty bodies or the three regional human rights courts (and the two Commissions). In order for the international human rights supervisory and monitoring organs to function properly, there needs to be close dialogue between these supranational mechanisms, domestic courts, and especially domestic administration, creating synergies and resistances in the implementation of human rights obligations. This dialogue may be superficial, difficult, and much resistance may appear at the domestic level. However, this ongoing interaction promotes the framing and shaping of international human rights law. This is not to say that soft law standards have no part to play in this interaction; nevertheless, they do not afford individuals the same legal protection.

This preliminary reflection is mostly an expression of concern. In public international law, when adopting soft law instruments, states only reduce the quality—or the strength—of their commitment to each other. In international human rights law, they are simply reducing the legal quality of the protection they otherwise could afford individuals. In the case of the UNGPs, I will now show that simply crystallizing the state of affairs in the field of human rights and business does not add anything to the international legal protection of individuals. However, the UNGPs send out a signal to a variety of actors and propose some tools that may be picked up by both states and business enterprises.

  • [1] See the Introduction to this volume.
  • [2] Ongoing debates on the legal nature and specificities of international human rights law, seee.g.: M. Addo, The Legal Nature of International Human Rights (Leiden/Boston: Martinus NijhoffPublishers, 2010).
  • [3] 26 Addo (2010) and M. Kamminga, ‘Impact on State Succession in Respect of Treaties’, in TheImpact of Human Rights Law on General International Law, ed. M. Kamminga and M. Scheinin(Oxford: Oxford University Press, 2009).
  • [4] Addo (2010).
  • [5] ICJ Advisory Opinion concerning Reservations to the Genocide Convention, 1951, ICJ Rep. at 15and ICJ Judgment Barcelona Traction, 1970 ICJ Rep. at 32; ECtHR Judgment Ireland v. UK, 18 Jan.1978, A.25, at 239. See also: P. Weil, ‘Towards Relative Normativity in International Law’, AmericanJournal of International Law vol. 77 (1983): 413—42, at 431—3.
  • [6] On reciprocity, reservations, and denunciations in international human rights law, see e.g.: F.Sudre, Droit europeen et international des droits de lhomme, 11th edn (Paris: PUF, 2012): 61; Reservations
 
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