14 Soft-Law

Prof. Nitin Gomber

Introduction

The sources of international human rights law discussed up until now are the ones that are specifically listed under Article 38 (1) of the Statute of the International Court of Justice and are regarded by international scholars as the ëtraditionalí or ëformalí sources of international law. Now, a pertinent problem experienced with the formal sources is their inability to explain the status of recently developed expressions of international law. For Example ñ resolutions of international organizations, declarations issued at international forums, joint statements issued by nations to conclude conferences, general comments given out by treaty bodies, guiding principles of law generated by expert bodies, among several others. Given that the foregoing is not specifically listed out as the formal sources of international law, their contribution towards the development of human rights law in the international arena cannot be questioned. These not so ëformalí sources of law are categorised as ësoft lawí.

Learning Outcomes

• Students will be familiarized with soft law, its advantages and disadvantages
• Students will learn the relevance of General Assembly Resolutions & Security Council Resolutions.

Relevance of Soft Law in the area of Human Rights

The relevance of Soft Law has been summed up beautifully by Roberto Andomo in his Article  The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethicsî. He says:

Soft law is often referred to by scholars as ënon-binding instrumentsí. This characterization is not entirely wrong but may be misleading because although soft law does not have per se binding effect, it is conceived to have such effect in the long term. This means that while treaties are actually binding (after ratification by states), soft law instruments are only potentially binding. Soft law is indeed conceived as the beginning of a gradual process in which further steps are needed to make such agreements binding rules for states. It should be noted that if the binding effect were totally absent from such instruments then they would not be ëlawí at all, because one of the main distinctions between ethics and law is precisely that law is made up of enforceable norms while ethics is not enforceable.

The author goes on to conclude:

This clarification is crucial because it is common to affirm that soft law just creates†moral or political†commitment for states. This is only true if we consider the†immediate†effect of soft law. But the fact is that, in a more indirect and persuasive way, soft law instruments have an influence on states, which is not very different from that of treaties. We should not forget that, after all, as formal intergovernmental agreements, such instruments have a†legal†and not a merely†ethical†nature.†This “hardening” of soft law may happen in two different ways. One is when declarations are the first step towards the treaty-making process, Sin which reference will be made to the principles already stated in the declarations. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of†customary law.†As some experts explain, declarations may ëcatalyse the creation of customary law by expressing in normative terms certain principles whose general acceptance is already in the air and thereby making it easier and more likely for states to conform their conduct to them..

From the above quotes, it appears pretty clear that soft law is not something that one can easily ignore even though they are not specifically listed out under the formal sources of law. By way of diplomacy, these do play a significant role in the development of human rights as a whole, at least to build consensus, at a time when states disagree with the basic tenets of the law to begin with. Therefore, even though soft law as such is not legally binding, they hold immense importance in the sense of contributing towards the growth of human rights law as a whole.

Soft law: Advantages and Disadvantages

Soft law instruments have several advantages over the traditional hard law as they are informal documents of agreement. In fact, scholars are of the opinion that soft law is a preferred method to introduce a new area of protection to various states. Let’s see some of its advantages over traditional hard law: (a) By signing / ratifying a treaty, states incur legal liability to comply with its provisions. Therefore, prior to this signing there is a lot of negotiations at multiple levels and accordingly, it is a time-consuming process. More so, it is very difficult to get more than 200 countries to agree to the same draft as others have proposed. Therefore, given that treaty making is a formal process, it may take its own sweet time before a treaty finally comes to being the law of the land. On the other hand, soft law in the form of declarations, resolutions, general comments, guiding principles etc. present the advantage of allowing countries to gradually become familiar with the proposed standards before they are confronted with the adoption of enforceable rules at the national or international level. This gradual procedure leaves more room for discussion and achieving consensus on issues that are particularly complex or sensitive, or exposed to change, like those related to scientific developments.

(b)  Soft law agreements do not require formal ratification by states and therefore have a more direct influence on the practice of states than treaties. In this way, soft law provides a more immediate evidence of international support and consensus than a treaty whose impact may be heavily diluted by reservations and the need to wait for ratification and entry into force. (c) Given the flexible nature of soft law, it allows states to adopt commitments suitable to a given situation. For example, when there is a great divergence in state preferences and capacity, allowing for the regime to move forward in its formation in the face of potential ìshow stopperî issues which might preclude moving forward on the larger package of problems to be addressed. (d) International standards based on soft law are not only available for use by international judges. They can also be of great help in everyday inter-State diplomacy.

One of the most highlighted disadvantages of soft law is that it is something which is not legally enforceable. To this, a lot of legal scholars have put forth the contention that enforcement of international law as a whole is questionable and which is why it hardly matters if soft law is not officially legally unenforceable. A lot of scholars also argue that soft law is an inconsistent term because from a general and classical point of view, the rule of law is usually considered compulsory, or it simply does not exist.

General Assembly Resolutions

Under the Charter of the United Nations, the General Assembly is empowered to make ërecommendationsí on various matters. Therefore, after discussing the matter, the General Assembly makes recommendations by way of issuing resolutions. The Charter of the United Nations contains a strong presumption against the legally binding character of these resolutions by designating them as ërecommendationsí alone. This presumption becomes irrebuttable on reading part of Article 11 of the said Charter which lays down, ìAny such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.î. Moreover, a plain reading of Articles 10 until Article 18 of the said Charter makes it further plain and clear that the General Assembly is only tasked with making ërecommendationsí alone. If the drafters of the Charter had in any way meant to give substantial powers to the General Assembly, it is unlikely that the use of the word ërecommendationí would have been so consistent used, as it is in fact.

Now, the General Assembly being the main norm-creating body of the United Nations has since the creation of the United Nations been actively involved in the development of human rights norms, including the Universal Declaration of Human Rights, 1948 (ìUDHRî from here on). The UDHR is arguably the most prominent resolution of the General Assembly and serves as an example of how soft law can influence hard law.

Now, the UDHR lists out several civil, political, economic, social and cultural rights which ought to be recognized ìas a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observanceÖî. These principles were not drafted with the intention of creating legally binding obligations as such. It did not purport to be more than a statement of ideas and at best could possibly be construed as a path-setting instrument. This however, has changed over the years and the present situation could best be explained in the following words:

Originally adopted only as a ëcommon standard of achievement for all peoples and all nations, the UDHR today exerts moral, political and legal influence, far exceeding the intention of its drafters. The UDHR is the foundation of much of the post-1945 codification of human rights, both nationally and internationally. At the national level, it has served as a model and inspiration for many constitutions, laws and policies aimed at the protection of human rights. These domestic manifestations include direct constitutional reference to the UDHR, or incorporation of its provisions and reflection of its substantive articles in national legislation and judicial interpretation of domestic laws with reference to the UDHR. At the international level, most human rights treaties, both global and regional, are based on the rights originally set forth in the UDHR, or at least contain a preambular reference to it.

The foregoing opinion is solidified by referring to the final report of the International Law Associationís Committee on the Enforcement of Human Rights, on the status of UDHR in national and international law. This report noted that the UDHR remains the primary source of global human rights standards and that its recognition as a source of rights and law by states throughout the world distinguishes it from conventional obligations. The report also noted that in some jurisdictions the UDHR is even invoked as a source or evidence of customary international law.

Additionally, given that the General Assembly has adopted an n number of human rights principles and standards over these years, it is not possible to list them here. However, it is noteworthy that in recent years the General Assembly has been actively involved even in the progressive development of human rights, particularly through the adoption of the Millennium Development Goals. In their Millennium Declaration, the Heads of State and Government resolved, ìto ensure the implementation, by State Parties in areas such as of international humanitarian law and human rights law, and call upon all States to consider signing and ratifying the Rome Statute of the International Criminal Court.

To conclude, it must be said that even if the General Assembly as an organ does not have the power to enforce human rights standards in various countries, its resolutions represent State practice to some extent and form a solid foundation for future treaties.

Security Council Resolutions

In accordance with Chapter VII of the UN Charter, the Security Council may take measures to prevent threats to peace, breaches of peace and acts of aggression. These measures include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations. The Security Council does in fact have the power to involve armed forces in case it feels that the foregoing measures will not be adequate. Article 42 of the UN Charter states, ìShould the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Given its power of enforcement, the United Nations Security Council has often adopted several Chapter VII resolutions on issues concerning humanitarian assistance, thus considering humanitarian crises and mass violations of human rights as a threat to international peace and security. It is in fact in this regard that Resolution 1296 of 2000 was adopted, where the Security Council stated that the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security, and reaffirmed ìits readiness to consider such situations and where necessary, to adopt appropriate steps. Chapter VII resolutions usually refer to specific situations of massive violation of human rights and humanitarian law; in this sense, they are mainly aimed at restoring respect for international law in those situations, rather than at formulating rules of general application.

Accordingly, the Security Council has adopted resolutions in response to certain country-specific situations where international peace and security are at risk and frequently where armed conflict has begun or is imminent. It has in fact repeatedly demanded that parties to an armed conflict respect human rights and humanitarian law obligations. For example, it demanded that ìall factions and forces in Sierra LeoneÖ respect human rights and abide by applicable rules of international humanitarian law.î. Concerning the situation in the Democratic Republic of Congo, it affirmed ìthat all Congolese parties have an obligation to respect human rights, international humanitarian law and the security and well-being of the civilian population.î. It also called ìfor full respect for human rights and international humanitarian law throughout Afghanistan.î. It also called on Sudan ìto end the climate of impunity in Darfur by identifying and bringing to justice all those responsibleÖ for the widespread human rights abuses and violations of international humanitarian law.

Furthermore, under the Rome Statute, the Security Council has been given a very predominant role in referring cases to it for alleged acts of genocide, crimes against humanity and war crimes. In fact, in accordance with Article 13 of the Rome Statute, a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations, the Court may exercise its jurisdiction then. It is in this exercise of power that the Security Council referred to the Prosecutor ëthe Darfur situationí in resolution 1593 (2005), in which it affirmed that justice and accountability were critical to achieving lasting peace and security in Darfur.

To conclude, it must be said that given the enforcement measures listed out in the UN Charter, the Security Council has the central responsibility for achieving the goals of the United Nations. It is with the adoption and implementation of coercive measures that the Security Council contributes to enforcing human rights standards and international humanitarian law in general.

General Comments / General Recommendations

As you are aware, the human rights treaty bodies are committees of independent experts that monitor the implementation of core international human rights treaties. At present, there are ten human rights treaty bodies composed of independent experts of recognized competence in human rights, who are nominated and elected for fixed renewable terms of four years by State parties. Now, each of these treaty bodies publishes its interpretation of the provisions of its respective human rights treaty in the form of ìgeneral commentsî or ìgeneral recommendations.î. These cover a wide range of subjects, from the comprehensive interpretation of substantive provisions, such as the right to life or the right to adequate food, to general guidance on the information that should be submitted in State reports relating to specific articles of the treaties. These ìgeneral commentsî have been collated by the Office of the High Commissioner for Human rights here. Now, these general comments though not legally binding on member states, they do sometimes play a decisive role in a case for which an individual petition has been initiated. More so, these general comments are based on reasonable standards prevalent in the international / national arena and accordingly they do express what a wide majority of state practice is with respect to a certain issue.

Guiding Principles

Guiding Principles are usually written by a group of independent experts. Now, most scholars argue that in a system of international human rights where even General Assembly resolutions are considered soft law, how in the world do Guiding Principles have any place whatsoever as one of the sources of human rights law. Well, a closer look at some of the Guiding Principles reveals that these are well grounded in international law and which is why judges / arbitrators do not hesitate in referring to these before taking a final call on the matter. In fact, scholars have suggested that it is possible to cite a multitude of existing legal provisions for almost every principle which provides the drafters with strong normative guidance.

Furthermore, at least in certain cases, it might be more appropriate to look at standard-setting more in the light of how the rich body of existing, more general norms should be applied to specific situations in a particular area and to restate and expand existing law in the narrower context of a given problem. In that sense, the Guiding Principles may provide a model on how to promote human rights standards at a time when all basic human rights have found a sound basis in international law. Having said that, as a general rule Guiding Principles do not constitute binding obligations on States, however, the circumstances of each case will decide the fate of each of these principles individually.

Conclusion

Therefore, we see that soft law is a non-binding source of international human rights law. Yet, it may harden as a declaration or customary law. We learnt that even if the General Assembly as an organ does not have the power to enforce human rights standards in various countries, its resolutions represent State practice to some extent and form a solid foundation for future treaties. Similarly, the adoption and implementation of coercive measures by the Security Council contributes to enforcing human rights standards and international humanitarian law in general. Lastly, the importance of general recommendations of the expert committees and guiding principles of independent experts cannot be questioned as the soft law source of international human rights law.

Reference

1. A Fresh Look at Soft Law by Hartmut Hillgenberg.
2. Hard v. Soft Law: Alternatives, Complements and Antagonists in International Governance by Gregory C. Shaffer and Mark A. Pollack.
3. International Soft Law by Andrew T. Guzman.