The Roles of Soft Law in International Relations

The central purpose of this volume is not doctrinal, however, but essentially concerned with understanding human rights law as a constantly developing legal system. The core questions that we ask are: what specific roles soft law plays across different areas of human rights law, and what impact it has had, and is likely to have, on the development of international human rights law. Further, does the role of soft law in human rights differ from that in public international law more generally? Although international human rights law is generally considered a subset of public international law,[1] [2] the specificities of human rights law may, nonetheless, impact both legal developments and interpretation^0 On the one hand, the strong telos of human rights law may be understood to provide a progressive role for soft law in the development of new and existing human rights regimes. On the other hand, soft law may also serve to reduce the specificities of international human rights law by aligning interpretation more closely with general international law.

The historical lack of strong enforcement institutions in the human rights field may, similarly, have granted soft law a privileged position in resolving interpretative uncertainties. However, as stronger human rights institutions and a more complex web of arbitration at both the national and international level have developed, is the importance of soft law similarly waning? Such institutions may naturally continue to be informed by and emphasize the importance of soft law developments, yet in this process soft law may also become a tool for states to resist or hedge against judicial or quasi-judicial supervision. Soft law may furthermore be a preferred means by both states and non-state actors in order to respond more quickly, with less paucity and more flexibility. Yet, it can also be used to block or delay the subsequent development of hard law instruments and, hence, reduce the legal quality of the protection they otherwise could afford individuals in international human rights law.

This is why this volume aims to trace the roles of soft law both more generally and through specific case studies across human rights issues. This phenomenon must be documented and its effects must be analysed thoroughly—beyond the perfunctory discourse.

From what precedes, we can assume that soft law fulfils at least two main functions in international human rights: it can be norm-filling and norm-creating.

First, soft law is norm-filling in areas where there are already legally binding standards. If human rights treaties cast a relatively wide net, where the particularities of certain cases or political practices often fall somewhere in the cracks, soft law serves as a tool to fill interpretative gaps and uncertainties. Soft law is not a substitute for hard law in any of these instances, yet it plays a crucial role in creating a common understanding of the existing rules, and their interpretation. Hence, ‘soft law formulates and reformulates the hard law of human rights treaties in the application of this law to specific states and cases’71 The assumption in such cases is often that soft law will have a positive effect in terms of expanding human rights protection. In the traditional, liberal view international human rights law is seen as a continuously developing project paving the way for increased protection, international governance, and a gradual willingness of states to submit to international judiciaries and other independent third party supervision. While human rights treaties may have their shortcomings, the task of human rights institutions, NGOs, and advocates is to assist states to gradually fill these gaps through soft law, judicial outcomes, best practices, and general interpretation. Consequently, soft law initiatives are often couched in larger institutional settings, allowing human rights institutions to frame the agenda and stressing civil society as an important voice in this process.

In recent years, however, states themselves seem to be taking on an active role in promoting soft law, not with the intention of furthering human rights standards, but rather as a reaction to what is seen as political or unrealistic interpretative developments by international human rights institutions and judiciaries. For instance, in 2012, the Committee of Ministers of the Council of Europe unanimously adopted the Brighton Declaration emphasizing that the European Court of Human Rights is to have due regard to the state’s ‘margin of appreciation’ when reviewing decisions taken by national authorities.22

Second, soft law is norm-creating in areas where there are currently no binding international standards. Soft law has helped pave the way for hard law as shown by the many declarations recognizing the existence of rights which, for many years, have been the inevitable prelude to legally binding instruments. As far as the international human rights law-making process is concerned, soft law is ‘a necessary mechanism related to the traditional consensual nature of international law formation’^ Both among practitioners and human rights scholars there is often an implicit assumption that soft law in this category will eventually solidify or lead to ‘norm cascade’.24 This builds on the idea that the existence of non-binding norms and the consensus that emerges as states begin to comply with them appears to stimulate the development of legally binding norms.25 [3] [4] [3] [6] [3]

Yet, on a number of current issues, practice has yet to prove that treaty codification, or even hardening of the rules into customary international law, is necessarily the end point. States and, for example, corporations, may prefer the political flexibility provided by a soft law framework. Substantial criticism has also been raised by legal scholars arguing that the hardening of, for example, the UN Guiding Principles on Business and Human Rights not only poses problems in terms of the transposition of primary obligations, it even threatens to erode the very foundations of international law.26

Furthermore, there is an inherent difficulty in identifying the growing role of these kinds of soft law within the traditional international public law paradigm. Even though it is acknowledged that soft law plays an important role in attempting to define the human rights commitments of a variety of actors, the actual legal consistency of such commitments are often inconsistent and do not bring about clear legal consequences for breach. In that sense, rather than simply paving the way for codification into hard law, we may well see certain soft law regimes end up as the ultimate and authoritative determinations of open-ended legal questions.

Finally, many international instruments emanating from non-state actors have emerged in the past decades and are often considered as soft law standards for these actors (e.g. international agreements on corporate social responsibility, framework agreements or codes of conduct signed by international trade union organizations, employers’ organizations, companies, etc.). When dealing with business, trade, economics, or transnational sectors such as the Internet, many scholars are now talking about new actor-oriented models and multi-l evel, multi-l ayer, and multi-player governance structures and mechanisms. In such a global setting, multi-stakeholder models and new actors are playing an increasing role in international norm-creation processes.27

What this will mean for the future development of international law at large is still unclear. Some hope that soft law may pave the way for new subjects of international law, while others argue that state-centrism is likely to remain the epistemic starting point in the current legal and political order, and remains an appropriate and sufficient normative framework to guide the majority of situations, where the exercise of public power is carried out by states’ own authorities and within their respective national boundaries. Even if the latter perspective prevails, this does not mean that we will not see gradual and potentially far-reaching developments. When confronted with human rights abuses committed by non-state actors in states unable to provide victims with remedy and redress, the statist framework may be easier [8] [9]

to sidestep by retaining a sui generis soft law regime than overcome by a process of treaty codification or crystallization that would make non-state actors fully-fledged subjects of international human rights law.

  • [1] While in the past, much human rights scholarship retained a rather distant relationship togeneral international law, the ‘integrationist’ position is today more commonly accepted. See notably: International Law Association, Committee on International Human Rights Law and Practice,‘Final Report on the Relationship between General International Law and International Human RightsLaw’ (72nd Conference of the International Law Association, Rio de Janeiro, 2008); M. T. Kammingaand M. Scheinin, The Impact of Human Rights Law on General International Law (Oxford: OxfordUniversity Press, 2009).
  • [2] See e.g.: M. K. Addo, ‘The Legal Nature of International Human Rights’, in International Studies inHuman Rights, vol. 104 (Leiden/Boston: Martinus Nijhoff Publishers, 2010); B. Simma, ‘InternationalHuman Rights and General International Law: A Comparative Analysis’, in Collected Courses of theAcademy of European Law, vol. 4, Book 2 (The Hague: Kluwer Law International, 1995): 153—236;A. Pellet, ‘ “Human Rightism” and International Law’, Italian YearbookofInternationalLaw (2000): 3—16.
  • [3] D. Shelton, ‘Commentary and Conclusions’ (on human rights and soft law), in Shelton (2000): 449-63 at 461.
  • [4] The declaration made at the end of the High Level Conference meeting at Brighton on 19 and20 Apr. 2012 at the initiative of the United Kingdom Chairmanship of the Committee of Ministersof the Council of Europe.
  • [5] D. Shelton, ‘Commentary and Conclusions’ (on human rights and soft law), in Shelton (2000): 449-63 at 461.
  • [6] 24 J. Ruggie, UN Doc. A/HRC/4/35, 19 Feb. 2007, ‘Report of the Special Representative of theSecretary-General on the Issue of Human Rights and Transnational Corporations and Other BusinessEnterprises’; M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’,International Organization vol. 52 (1998): 887-917.
  • [7] D. Shelton, ‘Commentary and Conclusions’ (on human rights and soft law), in Shelton (2000): 449-63 at 461.
  • [8] C. Parker and J. Howe, ‘Ruggie’s Diplomatic Project and its Missing Regulatory Infrastructure’,in The UN Guiding Principles on Business and Human Rights: Foundations and Implementation, ed. R.Mares (The Hague: Brill, 2012): 273—301; S. Deva, ‘Treating Human Rights Lightly: A Critique ofthe Consensus Rhetoric and the Language Employed by the Guiding Principles’, in Human RightsObligations of Business: Beyond the Corporate Responsibility to Respect?, ed. S. Deva and D. Bilchitz(Cambridge: Cambridge University Press, 2013): 96—7. See also: Stephanie Lagouttes chapter in thisvolume.
  • [9] M. C. Kettemann, The Future of Individuals in International Law: Lessons from InternationalInternet Law (The Hague: Eleven Publishing International, 2013): 12.
 
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