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The HCNM as a norm interpreter: ‘soft jurisprudence’

In addition to fleshing out the substance of existing norms—regardless of softness or hardness in terms of sources—in some cases, where norms did not yet exist to address certain situations the HCNM has in essence created new ones. This was the case, for example, in the course of engagement with representatives of Ukraine and Crimea, in the absence of any real norms regarding ‘autonomy’. The HCNM sought to convince the parties that certain types of relationships between central and regional authorities were generally accepted features of democratic governance to which various instruments referred. In particular, through extensive interpretation and argumentation, the HCNM breathed considerable life into the quite uncertain notion of ‘effective participation in public life’ expressed in paragraph 34 of the 1990 Copenhagen Document, Article 4 of the 1992 UN Declaration on Minorities, and Article 15 of the FCNM.25 This and other similar efforts led eventually to a set of ground-breaking generally applicable Recommendations on the subject (i.e. the 1999 Lund Recommendations; see section 5).

The HCNM thus promoted peaceful change not by enforcement or coercion, but by encouraging compliance with norms on their own merit. She or he does this by reminding states of their existing obligations under international (hard and soft) law and providing concrete guidance on options for their implementation in practice, often by creating new understandings and persuading actors to comply with them.

As a former Director of the Office has observed, as a result of careful attention to consistency across varying situations in the invocation of standards and in the often ground-breaking interpretation and application of the standards for conflict prevention the HCNM has become a source of ‘soft jurisprudence’ drawing upon [1] [2]

international instruments, doctrine, and state practice in the development of his own argumentation to arrive at specific recommendations^6

  • [1] Ratner (2000); Packer (2000). In a similar vein, other scholars have since characterized theHCNM as a ‘norm entrepreneur’. See e.g.: J. Jackson-Preece, ‘The High Commissioner on NationalMinorities as a Normative Actor’, Journal on Ethnopolitics and Minority Issues in Europe vol. 12(2013): 77-82.
  • [2] Ratner (2000): 644. For a detailed recount of the HCNM’s engagement on the topic of autonomy in Ukraine, and specifically the Autonomous Republic of Crimea see: J. Packer, ‘Autonomywithin the OSCE: The Case of Crimea’, in Autonomy: Applications and Implications, ed. M. Suksi (TheHague: Kluwer Law International, 1998): 295-316.
 
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