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The HCNM as Norm Creator: ‘Soft Standard-Setting’

Thematic guidance and recommendations of general application

Successive High Commissioners have also responded to the need for clearer normative guidance in fields where both hard and soft law remain underdeveloped in thematic areas which have recurred in the course of their work as sources of tension within and between states. These include issues of effective participation in public life, education, language use, the media, and policing, among others^8 The initial three sets of thematic general recommendations were elaborated by international independent experts at the first High Commissioner’s request for use by him and his successors in discussions with interlocutors in situations where he/they were involved to provide further support to tailored country-specific recommendations. The thematic recommendations take available international standards—universal and minority-specific and varying degrees of ‘hard’ and ‘soft’—as their point of departure, but offer greater detail where implications and options for implementation are unclear. They also seek to fill the gaps where standards have yet to be explicitly articulated with regard to a particular issue. The approach is similar to that of recommendations made to specific states in that they draw together all available standards pertaining to a particular issue, provide clarification and more detail where necessary, and connect them to options for potential action. However, [1]

they go beyond the individual country recommendations approach, as they articulate new standards even if expressed as ‘Recommendations’ or ‘Guidelines’. Recommendations are both informed by state practice and serve as an authoritative reference for engagement with specific states. They straddle the line between translation of existing norms and elaboration of new ones. Importantly, states have individually and collectively subsequently endorsed these and so ‘hardened’ them.

While firmly rooted in international law and international standards, both soft and hard, the HCNM approach appeals to the self-interest of states, pointing out that granting minorities equal rights and developing constructive relations between all (majority and minorities) within the state is in the interests of peace and security. Persons who belong to minorities are less likely to pursue policies or survival strategies against the interest of the majority. Kin-states are also less likely to be attracted by irredentist policies if their minorities in other states are treated well. The HCNM has also taken the position that while minorities have rights, they also have duties towards the state. The emphasis is on creating peaceful shared societies in which everyone has responsibilities. This approach is examined in more depth in section 7.

  • [1] For the set of (so far seven) general recommendations and guidelines elaborated under theauspices of the OSCE HCNM see: OSCE HCNM, ‘Thematic Recommendations and Guidelines’,.
 
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