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Reactions to HCNM norm promotion: does the source or status as hard or soft matter?

According to research undertaken by Ratner in the late 1990s, not only does the HCNM use soft law frequently in designing and brokering solutions, but parties also seem to accept these softer authorities as a basis for action. Ratner identifies three main categories of recipient:

  • 1) Those who reject the applicability of international norms to a particular problem on principle regardless of their source and hard/soft status. This may be because they reject the norms per se and/or because they question the legitimacy of the organisations—OSCE, CoE, EU, etc.—who are the source of and enforcers of those norms.
  • 2) Those who accept the importance of international norms but see no reason to differentiate in terms of their hard or soft status. Some may consider major political commitments such as those in OSCE documents to be as significant as, if not more so than, harder legal ones. The willingness of other influential outside actors such as the EU to treat all standards invoked by the HCNM on a par for the purposes of leverage have also helped to erode the distinction between treaties and ‘softer’ law.
  • 3) Those for whom a distinction between ‘soft’ and ‘hard’ remains significant. These include bureaucrats, senior politicians and NGO leaders with exposure to the nature of different legal instruments. Some may simply note that their country’s treaty obligations are more significant than politically binding norms embodied e.g. in the Copenhagen Document, with little impact on the reception and implementation of these norms in practice. Others may actively use the legally non-binding nature of a document as a justification for non-compliance with unwelcome recommendations.27

Reactions to HCNM norm promotion identified by Ratner thus tend to suggest that the hard or soft status of the norm can be important to—or be invoked by—some actors in terms of acceptance or rejection of norms, but this is by no means a defining factor for ‘compliance’. Indeed, the factors that induce compliance with hard legal prescriptions may be identical to those inducing compliance with softer norms.

It is important to note that the political context in which the HCNM now operates is very different from the one Ratner was analysing. States that were newly independent in the 1990s are now more established, have joined—or are on the [1] [2]

way to joining—the ‘clubs’ such as NATO and the EU that they aspired to in the early days, and consequently have greater confidence and are less receptive to international advice and involvement. As the High Commissioner noted on the occasion of the twentieth anniversary of the HCNM: ‘I see more and more frequently how States are erecting hurdles or trying to introduce condition to my engagement.’ It is possible that the first and third types of reaction (rejection of norms and the institutions that promote them and/or distinction between types of norms as justification for non-compliance) have increased as the unique openness to international involvement in the 1990s has eroded and resistance to HCNM engagement has grown.

Further updated research into the response of local actors to the norm promotion as an essential part of the HCNMs approach to conflict prevention would not only help to inform a broader picture of the HCNM’s relevance and impact. It would also help to clarify the extent to which the soft/hard distinction is genuinely considered relevant and/or is used as an excuse for non-compliance amongst diverse actors. This in turn might help the HCNM in targeted future engagement.

  • [1] Packer (2000): 717.
  • [2] For a fuller discussion of the significance attributed by respondents to the hardness or softness ofa standard and the implications for implementation see: Ratner (2000): 662—5.
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