Tracing the roles of soft law in human rights

IntroductionDefining Soft Law in International LawStipulating a definitionThe Roles of Soft Law in International RelationsStructure of the VolumeA Taxonomy of Soft Law. Stipulating a DefinitionIntroduction‘Soft’ and ‘Law’Soft Law DefinedSituating Soft Law within the Broader Context of Lex FerendaThe Soft Law Threshold‘Soft Law Instruments’Implications of Opting for a Legal, Positivist Conception of Soft LawI ESTABLISHED HUMAN RIGHTS REGIMES Interpreting International Human Rights Standards. Treaty Body General Comments as a Chisel or a HammerIntroductionHuman Rights Treaty BodiesTreaty Body JurisprudenceGeneral comments—evolving practiceGuiding principles on general commentsGeneral comments—points of contentionSummaryGeneral Comments in Domestic CourtsUnited KingdomSouth AfricaEurope as a supranational jurisdictionConclusionThe Role and Impact of Soft Law on the Emergence of the Prohibition of Violence against Women within the Context of the CEDAWIntroductionDefinitions and Historical BackgroundDefinitionHistorical backgroundViolence against women prior to the adoption of the CEDAWProhibition of violence against women in the drafting processBringing Violence against Women into the CEDAWGeneral Recommendation General RecommendationAnalysis of the CEDAW Committee’s strategyAttempts at Framing Violence against Women as Hard LawGeneral international law and violence against womenThe CEDAW Committee and uncertainty in relation to violence against womenCEDAW jurisprudence and the prohibition of violence against womenConsideration of states’ reportsViolence against Women: Between Soft and Hard Law?Soft Law, Doctrinal Development, and the General Comments of the UN Committee on Economic, Social and Cultural RightsIntroductionThe Character of CESCR General CommentsTwo Doctrinal ConstructsMinimum core obligationsThe tripartite classificationChallenging State PracticeJusticiability and violationismThe legitimacy of challenging state practice through soft lawRethinking the formation of CESCR soft lawConclusionThe Role and Use of Soft Law Instruments in the African Human Rights SystemIntroductionThe Role of Soft Law within the African Commission on Human and Peoples’ RightsTrends in the Use of Thematic Instruments of the African CommissionTrends at the national levelTrends at the regional levelFactors that Impact on the Use of Thematic Instruments of the African CommissionOwnershipThe importance of clarityThe institutional contextConclusionThe Copenhagen Process. Some Reflections Concerning Soft LawIntroductionBackgroundActivism in International Humanitarian LawThe Status of the Principles and GuidelinesSome post-Copenhagen Process developmentsConclusionThe Use of Soft Law in Regulating Armed ConflictIntroductionApplication of IHRL in Times of Armed Conflict and the Interrelationship with IHLIs IHRL applicable in times of armed conflict?How can different and sometimes conflicting norms in IHL and IHRL interact?Overview of Soft Law Documents Regulating Situations of Armed Conflict (Jus in Bello)The International Institute of Humanitarian Law, Manual on International Law Applicable to Armed Conflicts at Sea, San Remo, 1994The ICRC study on Customary International Humanitarian Law, 2005The International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflicts, San Remo, 2006The ICRC and Switzerland, The MontreuxDocument on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military Companies during Armed Conflict, 2008ICRC, Interpretative Guidance on the Notion of Direct Participation in Hostilities, February 2009Humanitarian Policy and Conflict Research (HPCR), Manual on International Law Applicable to Air and Missile Warfare, 15 May 2009The Danish Ministry of Foreign Affairs, The Copenhagen Guidelines and Principles on the Handling of Detainees in International Military Operations, October 2012The NATO Cooperative Cyber Defence Centre of Excellence, Tallinn Manual on the International Law Applicable to Cyber Warfare, 2013GCPEA, The Lucens Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, December 2014ConclusionObservations and DiscussionFrom hard law to soft lawFrom the involvement of the ICRC and all states—to the involvement of a few selected experts and a few statesBlurred description of legal authority—hard or soft law?From soft law to hard law? States ‘acceding’ to a soft law instrument by means of a unilateral declarationAre customary international humanitarian law and human rights law reflected in recent soft law instruments regulating armed conflict?Concluding ObservationsAddressing and Resolving Internal Displacement. Reflections on a Soft Law ‘Success Story’IntroductionThe Guiding Principles on Internal Displacement: A Soft Law Success StoryThe Role of Soft Law in Discourse and Standard-Setting on Durable SolutionsFrom soft to hard law: durable solutions in the Kampala ConventionThe IASC Framework on Durable Solutions for Internally Displaced PersonsSoft law and the evolution of discourse on durable solutionsInterpreting and Applying IDP Soft Law in Support of SolutionsAddressing internal displacement and durable solutions through national laws and policiesSri Lanka: strategic state manipulation of soft lawThe role of soft law in Haiti’s displacement crisisContext and factors limiting the traction of soft law standards in HaitiConceptualizing internal displacement in Haiti: local views and normative legitimizationQuestioning and engaging soft law frameworksConclusionII EMERGING HUMAN RIGHTS REGIMES The Role of Soft Law in the Progressive Development of Indigenous Peoples’ RightsIntroductionIndigenous Peoples and International LawSoft Law in the Evolution of International LawSoft Law and Indigenous Peoples’ RightsParticipation of indigenous peoplesLegal implications of the UNDRIPThe UNDRIP and existing international lawThe legal value of the UNDRIPConclusionsCould the Progressive ‘Hardening’ of Human Rights Soft Law Impair its Further Expansion? Insights from the UN Declaration on the Rights of Indigenous PeoplesIntroductionFunctions and Effects of Soft Law: Precedents within the UN SystemSoft law as norm-creatingSoft law as norm-fillingSoft law and its legal effectsUncertainty surrounding the legal effects of soft lawOpposition to the UNDRIP: Resistance to the Potential Hardening of Soft Law?Statements related to the UNDRIP’s contentStatements related to the UNDRIP’s soft formOpposition as a clear intent not to be boundFurther insights from belated adoption of the UNDRIPWhat This Case Could Mean for the Further Developments of Human Rights Soft LawSpecificities of the UNDRIP case: substance and processCompeting narratives on the value of soft lawConclusionThe UN Guiding Principles on Business and Human Rights. A Confusing ‘Smart Mix’ of Soft and Hard International Human Rights LawIntroductionThe UNGPs on Business and Human Rights: State Duties and Business ResponsibilitiesPreliminary Reflections on Soft Law in International Human RightsNew Soft LawOther UNGPs and similar instruments (guidelines, principles, etc.)Relevant features of the elaboration of the UNGPsThe new addresseesAn Instrument that Blurs the Contents of International Human Rights Law?The state duty to protect: connecting hard law and soft law?Which extraterritoriality?Towards a Legally Binding InstrumentConclusionMission Creeps. The (Unintended) Re-enforcement of the Actor’s Discussion in International Law through the Expansion of Soft Law Instruments in the business and Human Rights NexusIntroductionThe Business and Human Rights NexusA narrative of legislative failure?The legislative breakthrough on an international level: the UNGPs and their recent regulative disseminationSoft law approaches in the UNGPs: monolithic or network functions?The human rights content of the UNGPsA uniting element: the challenge of integrating corporations and other stakeholders in the realm of human rightsConsequences of the UNGPs: New Actors and Changing Law-Making Procedures?Consequences of the ‘hardening’ approachConsequences of the ‘governance’ approachThe indirect norm-shaping involvement of corporations and institutionalization of multi-stakeholder dialoguesThe direct involvement of corporations in shaping norms and the role of multi-stakeholder initiativesConclusionSoft Law within Participation Rights. Tools in DevelopmentIntroductionThe Context: The Expansion of Rights and Conflicting ExpectationsSoft Law Delimiting RightsSoft Law Expanding RightsThe Development of New Rights for Vulnerable GroupsAn Example of a Soft Law TaxonomyThe taxonomy’s two variablesVariable One: type of participationVariable Two: level of participationConclusionThe Role of Soft Law in Minority Rights Protection and Diversity Management. Reflections from PracticeIntroductionBackground and Framework for the Protection of MinoritiesThe OSCE High Commissioner on National MinoritiesHCNM mandate and approachThe HCNM’s use of normsThe HCNM as a norm interpreter: ‘soft jurisprudence’Reactions to HCNM norm promotion: does the source or status as hard or soft matter?The HCNM as Norm Creator: ‘Soft Standard-Setting’Thematic guidance and recommendations of general applicationLoop Back! How HCNM Soft Jurisprudence and Standards Contribute to Compliance with, or Creation of, Hard LawReference to HCNM recommendations by other IGOsCountry recommendationsReference/incorporation into domestic lawThe Nature of Diversity ManagementProcess and Considerations when Developing Innovative ‘Soft Law’ Standards for Application in Diverse Societies: The Example of the HCNM Guidelines on Integrating DiversityConsultation processNature and sourcesIntegrationWhich minorities?Rights, responsibilities, and/or dutiesIs separation inherently bad?AudienceApplicability and utility of the HCNM’s conflict prevention approach in contexts across the OSCE?Political willThe status of the final document as Recommendations or (softer) Guidelines was also discussed at lengthImplications Moving ForwardDeveloping new standardsPotential transferability of the HCNMs approach?ConclusionIntegrated Bibliography
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