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The Role of Soft Law in Minority Rights Protection and Diversity Management. Reflections from Practice

Sally Holt, Zdenka Machnyikova, and John Packer

Introduction

Minority rights1 are an important subset of international human rights standards which function to ensure that all human beings, including persons belonging to minorities, are able to enjoy fundamental rights and freedoms on a basis of full and effective equality in law and in fact. Protection and promotion of minority rights serves to redress imbalances arising from the non-dominant position of minorities within states which often leaves them marginalized and disadvantaged in terms of the maintenance and development of their own identities, access to public services and other resources and opportunities, and equal participation in society.

Apart from some key treaty provisions/ standards for the protection of minorities include many soft law instruments, including a substantial body of regional commitments adopted by the consensus of participating states of the Organization for Security and Cooperation in Europe (OSCE). In addition, the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM—a ‘hard’ instrument) has been criticized for the ‘soft’ nature of its provisions (i.e. their purported vagueness, some of which do not entitle minorities to rights) and for the lack of a supervisory body with significant powers of sanction and remedy.

However, while ‘soft law’ is generally regarded as inferior to legally binding ‘hard law’ instruments in its capacity to coerce or sanction states for non-compliance, there is evidence that ‘soft’ rules can be just as effective in achieving implementation where ‘soft’ persuasive mechanisms such as dialogue, mediation, and forms of

  • 1 ‘Minority rights’ within the context of this chapter mean the rights of national or ethnic, cultural, religious, and linguistic minorities.
  • 2 Such as within the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR) (notably Art. 27), and the Convention on the Rights of the Child (notably Art. 30).

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

effective supervision and assistance are in place. Indeed, lack of ‘political will’ often translates into non-compliance regardless of the existence of implementation or enforcement mechanisms associated with purportedly ‘hard law’.[1] Thus, the actual behaviour of states leads to a focus on the implementation of norms and standards.

This chapter demonstrates that minority rights not only exist in normative terms, but they enjoy an evolving legal character. This is so in terms of the sources of international law expressed in Article 38(1) of the Statute of the International Court of Justice, in subsidiary means of interpretation (with regard to rules), in the evolving standards or as de lege ferenda, and in the mechanisms of implementation and their effects. Importantly, this chapter also demonstrates that the interesting and vital aspect of such minority rights is found less in their provenance or source than in their compelling and practical effects which, arguably, is what matters most especially for their intended beneficiaries and for society as a whole.

In this chapter, we argue that while there exists a range of hard and soft law standards on the rights of minorities, the traction—and, thus, significance—of these standards is not determined exclusively or even primarily by their ‘hardness’ or ‘softness’. Indeed, soft law in its capacity to generate detailed rules and more technical standards required for the implementation of treaties may, in the current context of international relations, be better suited than so-called hard law for the effective protection of minority rights and complex processes of diversity management. Soft law can provide the necessary flexibility and guidance in the application of relevant standards in different contexts.4 Voluntary compliance can be effective where viable choices for implementation are made available to responsible authorities and where those authorities genuinely recognize the need for effective frameworks and mechanisms for the peaceful management of diversity and interethnic relations which respect the rights of minorities and majorities alike. Analysis, argument, and suasion through diplomatic, political, and other channels are therefore also required to convince states of this need and support them in negotiating and implementing appropriate arrangements. Arguments of self-interest, notably that respect for minority rights contributes to internal and cross-border security, can hold particular sway in this respect.

In making this argument, we focus on the role of the OSCE High Commissioner on National Minorities (HCNM) as a unique regional mechanism devoted to the prevention of violent conflict at the earliest possible stage through the promotion of international standards of human rights, including minority rights. We demonstrate how the HCNM has encouraged and facilitated states to comply with their international obligations and commitments using a ‘quiet diplomatic’ facilita- tive and problem-solving approach which utilizes the full range of available ‘hard’ and ‘soft’ norms and standards (including minority rights) to which states have committed. We examine the HCNM’s role as a ‘normative intermediary’ fleshing out the substance of existing norms—regardless of softness or hardness in terms of sources—to facilitate their application in practice. In addition to this ‘normfilling’ role, we also examine the HCNM’s function as a ‘norm-creator’ through the

4 See the Introduction to this volume.

development of soft law that both clarifies and builds on the content of minority rights and other standards (hard and soft) and provides options for effective practice in the form of recommendations and guidelines.5 We then review the advantages and shortcomings of the HCNM mandate and approach as a whole in supporting states’ compliance with their obligations and commitments as we identify enabling and obstructive factors in this regard that might inform the development of mechanisms and processes for conflict prevention through respect for minority rights in other regional or sub-regional contexts.

Lastly, we situate the work of the HCNM in a broader discussion of the substantive nature of diversity management and the relative (dis)advantages of hard and soft law approaches. Focusing as a case study on the 2012 Llubljana Guidelines on Integration of Diverse Societies,[2] [3] we highlight some current issues of contention, including conceptual issues, in the interpretation of existing minority rights and other standards relevant for integration. We also examine whether and to what extent emerging norms from national practice with capacity to restrict rather than protect rights should be reflected in the development of such recommendations and whether and to which extent ‘political will’ within states should be a factor for consideration. The discussion also provides some insight into the processes whereby HCNM guidelines are debated, elaborated, and agreed.[4] The overall aim of this analysis is not only to highlight the potential of soft law in the realization of minority rights and in building peaceful and cohesive societies, but also to identify relative shortcomings and challenges, as well as areas for potential further development.

  • [1] As noted in the Introduction to this volume.
  • [2] For the set of (so far seven) general recommendations and guidelines elaborated under the auspicesof the OSCE HCNM, see: ‘Thematic Recommendations and Guidelines’, OSCE, .
  • [3] ‘The Lj'ubljana Guidelines on Integration of Diverse Societies’, OSCE, 7 Nov. 2012, .
  • [4] The authors (under the leadership of John Packer who served as Senior Legal Adviser then thefirst Director of the Office of the OSCE HCNM from 1995 to 2004) coordinated the process for theinitiation and early development of the Guidelines and contributed substantively to their eventualelaboration.
 
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