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New Soft Law

The UNGPs present the characteristics of what Dinah Shelton labels ‘secondary soft law instruments’,31 that is, non-binding standards produced by intergovernmental bodies and institutions. The UNGPs are an international soft law standard developed by an expert appointed by the UN Secretary General and endorsed by a UN body, the HRC. The UNGPs are the first instrument in a new category of soft law that has been developed under the auspices of the HRC over the past few years. It resembles, however, several other soft law instruments.

to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation, ed. I. Ziemele (Leiden: Martinus Nijhoff Publishers, 2004).

  • 30 Addo (2010): 469.
  • 31 Shelton (2000): 449. Primary soft law is described as normative texts not adopted in treaty form, such as Declarations. They declare new norms or elaborate, reaffirm, or further elaborate previously accepted binding & non-binding norms.

Other UNGPs and similar instruments (guidelines, principles, etc.)

UNGPs, as a generic category, are a relatively new category of international soft law instruments elaborated under the auspices of the HRC. Since John Ruggie started to work on the UNGPs on Business and Human Rights, the HRC has mandated other UN Special Procedures to elaborate guiding principles. In addition to the UNGPs on business and human rights, two sets of guiding principles have been adopted in 2012: the Guiding Principles on Foreign Debt and Human Rights^ and the Guiding Principles on Extreme Poverty and Human Rights.33 A third set of Guiding Principles on Security of Tenure for the Urban Poor has been presented to the HRC34 but not yet endorsed. In addition, the Guiding Principles on Internal Displacement were elaborated under the auspices of the former Human Rights Commission in 1998.35 The Commission expressed its appreciation of the Guiding Principles in a late 2004 resolution.36 Earlier in the history of the UN, similar sets of principles were developed by experts and ‘endorsed’ by UN human rights bodies. One of the main examples is the Standard Minimum Rules for the Treatment of Prisoners, which were adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva on 30 August 1955, and later approved by the Economic and Social Councils7 The UN General Assembly has also adopted guiding principles and other types of guidelines such as the 1991 Guiding Principles on Humanitarian Emergency Assistance38 or the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the ‘Beijing Rules’).39 Guiding principles and other types of guidelines are developed within the expert bodies of the Council of Europe and adopted by the Committee of Ministers, which is the executive organ of the Council of Europe.40 In the African human rights system, the African Commission on human and peoples’ rights has taken the lead on adopting

  • 32 GPs endorsed by an HRC Resolution 20/10 (July 2012). The GPs are set forth in the report of the Independent Expert on extreme poverty and human rights (A/HRC/20/23, 10 Apr. 2011).
  • 33 HRC Resolution 21/11 (Sept. 2012) which ‘adopted’ the GPs set forth in the report of the Special Rapporteur on extreme poverty and human rights (A/HRC/21/11, Sept. 2012). The resolution was adopted without a vote.
  • 34 Report of the Special Rapporteur on adequate housing (A/HRC/25/54).
  • 35 E/CN.4/1998/53/Add.2. 36 E/CN.4/RES/2004/55.
  • 37 Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
  • 38 Adopted by UN General Assembly Resolution 46/182 (A/RES/46/182).
  • 39 A/RES/40/33. See also inter alia: the 1998 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (A/RES/43/173) or the 1990 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (A/RES/45/113).
  • 40 Guiding Principles for the Fight Against Corruption (Resolution (97) 24 on the 20 GPS for the fight against corruption, adopted by the Committee of Ministers on 6 Nov. 1997); Guidelines on child-friendly health care adopted by the Committee of Ministers on 21 Sept. 2011 or Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted on 17 Nov. 2010.

Guidelines relevant to specific human rights issues.[1] [2] This is also the case in the Inter-American human rights system. 42

Guiding principles in this relatively new category, endorsed by the HRC, compile existing human rights principles. They ‘reflect and are consistent with international human rights law and international humanitarian law[3] [4] [5] [6] [7] and, as mentioned in the UNGPs on business and human rights, do not create any new international law obligations.44 These Guiding Principles restate the relevant rights in a given context (e.g. the internally displaced, business enterprise activities, or the urban poor), thereby seeking to clarify unclear areas and addressing gaps that might have been identified, for instance the focus of the UNGPs on business and human rights within the state business nexus (public enterprises, procurement, privatization, and support for exports and investment).

In all cases, the HRC has closely followed the elaboration of preliminary reports and draft versions of the guiding principles by the special UN bodies and procedures in charge. Contrary to instruments adopted by central political bodies of international organizations (i.e. the UN General Assembly or the Committee of Ministers of the Council of Europe), the UN Guiding Principles are not formally negotiated among states. Their endorsement, through the adoption of a resolution by the HRC, may however be accompanied by a vote of the forty-seven states members of the HRC. The resolution endorsing the UNGPs and establishing the UNWG was adopted without a vote.45 Prominent scholars have described this adoption as unanimous endorsement of the UNGPs by the HRC.46 Adoption without a vote in fact signals an emphasis on consensus more than unanimity. It can indeed be seen as a sign of goodwill of the states members of the HRC, especially when compared to the much narrower state adhesion to such soft law instruments when adopted by a simple majority vote at the HRCTh

Guiding principles and guidelines adopted by the UN General Assembly or the Committee of Ministers of the Council of Europe are negotiated and debated among the member states of the organization. Hence UN guiding principles such as the UNGPs only represent an initial crystallization of the states’ goodwill. As Karin Buhmann notes, ‘acceptance by the Human Rights Council does not make for formal international law by itself, but it paves the way for further efforts that may eventually reach the UN General Assembly for formal adoption’,48 in the form of hard or soft law instruments. As UNGPs have a rather uncertain position in the formal taxonomy of soft law due to their lack of prior adoption by a political body (executive or parliamentary organ), their adoption process tries to compensate for the lack of state involvement in their elaboration. In order to ensure the adoption of the UNGPs by the HRC and potential future compliance by all states and other duty-bearers defined in the UNGPs, Ruggie opted for a broad consultation approach.

  • [1] E.g. Principles and Guidelines on Fair Trial and Legal Assistance in Africa, adopted by the AfricanCommission on human and peoples’ rights at its 33 rd session in Niamey, Niger, 29 May 2003 orthe Robben Island Guidelines, i.e. Guidelines and measures for the prohibition and prevention oftorture, cruel, inhuman and degrading treatment and punishment in Africa adopted by the AfricanCommission on human and peoples’ rights at its 32 nd session in Banjul, the Gambia, 23 Oct. 2002.
  • [2] See e.g.: Principles and Best Practices on the Protection of Persons Deprived of Liberty in theAmericas, Inter-American Commission on Human Rights, Resolution 1/08 of13 Mar. 2008.
  • [3] Guiding Principles on Internal Displacement, para. 9.
  • [4] Nothing in these Guiding Principles should be read as creating new international law obligations,or as limiting or undermining any legal obligations a state may have undertaken or be subject to underinternational law with regard to human rights (UNGPs, General Principles, p. 1).
  • [5] HRC, 17th session, 33rd meeting, 16 June 2011 (A/HRC/17/4). It may be noted that theGuiding Principles on Extreme Poverty and Human Rights (report of the SR to the HRC A/HRC/ 21/11 Sept. 2012) have also been adopted without a vote by Resolution 21/11 (27 Sept. 2012).
  • [6] 46 M. Addo, ‘The Reality of the United Nations Guiding Principles on Business and HumanRights’, Human Rights Law Review vol. 14 (2014): 133—47 at 141. Addo says that the uniqueness ofthe UNGPs lies in the unanimity of their endorsement.
  • [7] 47 20 1 2 Guiding Principles on foreign debt and human rights: the resolution endorsing the GPs wasadopted by a recorded vote of 31 to 11 (Western states), with 5 abstentions. As is often the case withHRC resolutions, the distribution of the votes gives a fairly clear idea of the political disputes at stakebetween the states members of the HRC.
 
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