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Country recommendations

The HCNM’s specific country recommendations have also been invoked by other IGOs perhaps most significantly and influentially by the EU. In making accession conditional on compliance with the HCNM’s recommendations, the status of those recommendations was elevated so that compliance with the recommendations became a surrogate for compliance with the norms themselves. The HCNM’s cooperation with the EU and other international actors is discussed in further detail in the following sections as we consider the factors influencing receptivity to norm promotion among national actors.

Reference/incorporation into domestic law

The adoption of domestic policy and law and establishment of implementing institutions, in accordance with international standards, is fundamental to the protection and promotion of minority rights. No systematic empirical study of the impact of the HCNM’s role as a ‘normative intermediary’ exists, but the testimonies of relevant officials and case studies are supportive of the argument that soft law used in conjunction with hard law, promoted through processes of political persuasion, has contributed to real changes in behaviours and concrete changes in national law and policy-making as well as institution-building processes.

Frequently, the HCNM has provided states with technical cooperation in drafting domestic legislation concerning protection of persons belonging to national minorities or other relevant laws. The HCNM has played an extensive role in assisting states in their efforts to incorporate minority rights standards, including the legally binding FCNM obligations, in their domestic context and provided them with support and advice in developing their national legal framework for the protection of national minorities, inter alia providing legal advice in drafting the constitutional guarantees and laws on the rights of national minorities across the Balkan region.[1] [2] As noted at the occasion of the Conference enhancing the impact of the FCNM by one of the HCNM advisers: Comparably with judicial bodies or the monitoring mechanisms of the CoE, the HCNM was in a unique position and used his mandate in a complementary way to benefit the implementation of the FCNM. These bodies could not provide such advice and assistance, given that their principal task is reviewing fulfilment of the FCNM undertakings by domestic measures, in particular legal and institutional arrangements.31 It is notable in this context that drafters of the law regulating protection of minorities in the Federal Republic of Yugoslavia included in the initial drafts in their preambles reference to the HCNMs thematic recommendations as ‘international obligations’.и

While some of the HCNM’s interlocutors do (or did) not consider the OSCE particularly prestigious or influential, others have found the link to the OSCE to be critical. More compellingly, states that fail to respect their political commitments may be subject to political sanctions, including exclusion from key decision-making clubs or the benefits of aid and trade. The real effects of these sanctions may be more immediate and significant than the consequences of legal process and sanctions for failure to respect the rights of minorities available under international treaties (e.g. non-respect of Article 27 of the ICCPR). In sum, in the dynamics of international relations the hardness or softness of the standards in terms of sources matters less than the politically or economically costly consequences for non-compliance.33

In situations where the carrot and sticks are less compelling, the HCNM must also rely more on governments’ self-interest—notably in peacefully solving internal tensions and in being seen to comply with their obligations. Notwithstanding earlier observations about trends away from compliance with the OSCE, the essential point here is that, if (as the HCNM’s experience suggests) both ‘hard’ and ‘soft’ law largely rely on voluntary compliance which can be achieved through a process of political persuasion then the distinction between ‘hard’ legal obligations and ‘soft’ political commitments essentially disappears. Self-interest becomes paramount.34

  • [1] Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities, ed. W. Kemp(The Hague: Kluwer Law International, 2001): 175.
  • [2] Z. Machnyikova, ‘CoE Report on the Use of the Framework Convention for the Protection ofNational Minorities by the Organization for Security and Co-operation in Europe and the UnitedNations’ (CoE Conference on enhancing the impact of the FCNM, 9—10 Oct. 2008): 6—7.
 
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