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Soft Law within Participation Rights. Tools in Development

Anette Faye Jacobsen

Introduction

Human rights soft law has been expanding immensely over the last decades, not least in the field of development. In this area, many actors have envisaged soft law as a means of clarifying vague hard law, in particular economic, social, and cultural rights. A common strategy has been to expand participation rights, often expressed as a duty for governments to involve or consult with stakeholders in relation to policy or decision-making on water, housing, health, education, and so on.

Participation as a tool for improving economic, social, and cultural rights is one of the cornerstones of the ‘Human Rights Based Approach’ (HRBA), which has been adopted by all UN agencies, and widely applied among NGOs. HRBA- related soft law has revitalized hopes that human rights in general, and economic, social, and cultural rights in particular, have a pivotal role to play in improving the situation of the world’s poor and underprivileged. These increased expectations, however, put treaty bodies and special procedures under pressure to expand and elaborate on hard law instruments via their opinions and recommendations, while at the same time maintaining the credibility of the human rights machinery as a legally based system by ensuring quality and coherence across the different documents that they produce.

The purpose of this chapter is to analyse the development of soft law instruments in the context of the contradictory demands from, on the one hand, development actors outside the human rights community, and on the other hand those evolving from inside the human rights system. The overall question is whether the soft law corpus emanating from the multiple human rights bodies within the UN is in fact providing useful tools for rights holders to claim their rights, or whether these soft law instruments are weakening their claims due to inconsistencies and lack of justification.

The case chosen to illustrate and answer this question relates to soft law contributions, which link participation rights to the implementation of other rights, in particular economic, social, and cultural rights. The chapter will consider whether

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

soft law from the UN human rights machinery, in particular the treaty bodies,[1] [2] has successfully outlined more detailed and improved entitlements to participate in the realization of economic, social, and cultural rights. This enquiry aims to assess treaty body soft law from two potentially contradictory angles: on the one hand, as a tool for monitoring and advocacy by outside stakeholders, including NGOs, activists, and others, and, on the other hand, by testing the sophistication and consistency of this body of law as seen from an international human rights law perspective.

The chapter will address this issue in five sections. Section 2 will outline the wider context, including rationales and concerns, both theoretical and empirical, regarding the expansion of human rights soft law in relation to development. Section 3 will introduce the case study, which is initially examined from a ‘vertical’ perspective, by comparing different types of soft law developed by one particular treaty body. Section 4 will then supplement this with a ‘horizontal’ analysis, by comparing soft law across treaty bodies. The examples chosen for this purpose will focus on the protection of indigenous peoples’ rights through both individual cases and General Comments. A subsection of section 4 will assess the concept of Free, Prior, Informed Consent from the horizontal perspective.

Section 5 will suggest a model, or a taxonomy, to remedy at least partially the confusion and ambiguity arising from the large amount of soft law, by systematizing the terminology for one particular field of rights. Again, the example used is that of participation rights in relation to economic, social, and cultural rights. With a close reading of General Comments from the Committee monitoring the International Covenant of Economic, Social and Cultural Rights (ICESCR), it is possible to determine a detailed and sophisticated terminology in relation to soft law within this particular field.

Finally, section 6 will build on the foregoing theoretical and empirical analyses in order to conclude on the research questions regarding the actual expansion of rights, the receptiveness of the human rights machinery to outside expectations, and the potentially conflicting efforts to secure high-quality soft law sources.

  • [1] Although a limited selection from the ‘soft law market’, these are high-status sources. Cf.International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion, ed. D.Shelton (Oxford: Oxford University Press, 2011): 15.
  • [2] The proliferation of norms and standards is often discussed together with the issue of ‘fragmentation’ of international law, see: International Law Commission, ‘Fragmentation of InternationalLaw: Difficulties Arising from the Diversification and Expansion of International Law’ (Report of theStudy Group of the International Law Commission) Finalized by Martii Koskenniemi (Doc. A/CN.4/L.682 13 Apr. 2006). See also: S. McInerney-Lankford, ‘Regime Interaction and the Fragmentationof International Law’, World Bank Legal Review (Innovation and Empowerment for Development) vol. 4
 
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