Tracing the Roles of Soft Law in Human Rights

Edited by Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and Edited By John Cerone

Examines the roles of soft law in the international human rights regime using a broad range of case studies
Includes case studies on the UN Guiding Principles on Business and Human Rights and on the regulation of armed conflict by soft law, two areas where soft law plays a paramount role in changing the reach of human rights protection
Analyses the role of soft law within human rights regimes where there are established hard law standards and also in emerging areas of international law where there is no substantial treaty codification of norms

Tracing the Roles of Soft Law in Human Rights

Edited by Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and Edited By John Cerone

Description

Soft law increasingly shapes and impacts the content of international law in multiple ways, from being a first step in a norm-making process to providing detailed rules and technical standards required for the interpretation and the implementation of treaties. This is especially true in the area of human rights. While relatively few human rights treaties have been adopted at the UN level in the last two decades, the number of declarations, resolutions, conclusions, and principles has grown significantly. In some areas, soft law has come to fill a void in the absence of treaty law, exerting a degree of normative force exceeding its non-binding character. In others areas, soft law has become a battleground for interpretative struggles to expand and limit human rights protection in the context of existing regimes.

Despite these developments, little attention has been paid to soft law within human rights legal scholarship. Building on a thorough analysis of relevant case studies, this volume systematically explores the roles of soft law in both established and emerging human rights regimes. The book argues that a better understanding of how soft law shapes and affects different branches of international human rights law not only provides a more dynamic picture of the current state of international human rights, but also helps to unsettle and critically question certain political and doctrinal beliefs.

Following introductory chapters that lay out the general conceptual framework, the book is divided in two parts. The first part focuses on cases that examine the role of soft law within human rights regimes where there are established hard law standards, its progressive and regressive effects, and the role that different actors play in the incubation process. The second part focuses on the role of soft law in emerging areas of international law where there is no substantial treaty codification of norms. These chapters examine the relationship between soft and hard law, the role of different actors in formulating new soft law, and the potential for eventual codification.

Tracing the Roles of Soft Law in Human Rights

Edited by Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and Edited By John Cerone

Introduction: Tracing the roles of soft law in human rights, Thomas Gammeltoft-Hansen, Stephanie Lagoutte, and John Cerone
1. A taxonomy of soft law, John Cerone
PART 1: Established human rights regimes
2. Interpreting international human rights standards - treaty body general comments as a chisel or hammer?, Kasey McCall-Smith
3. The role and impact of soft law on the emergence of the prohibition of violence against women within the context of the CEDAW, Ekaterina Yahyaoui Krivenko
4. Soft law, doctrinal development and the General Comments of the UN Committee on Economic, Social and Cultural Rights, Matyas Bodig
5. The role and use of soft law instruments in the African human rights system, Rachel Murray and Debra Long
6. The Copenhagen Process: some reflections concerning soft law, Bruce Oswald
7. The use of soft law in regulating armed conflict: from jus in bello to 'soft law in bello'?, Peter Vedel Kessing
8. Addressing and resolving internal displacement: reflections on a soft law "success story", Megan Bradley and Angela Sherwood
PART 2: Emerging human rights regimes
9. The role of soft law in the progressive development of indigenous peoples' rights, Felipe Gomez Isa
10. Could the progressive 'hardening' of human rights soft law impair its further expansion? Insights from the UN Declaration of the Rights of Indigenous Peoples, Leticia Villeneuve
11. The UN Guiding Principles on Business and Human Rights - a confusing smart mix of soft and hard international human rights law, Stephanie Lagoutte
12. Mission 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 nexus, Christoph Good
13. Soft law within participation rights: tools in development, Anette Faye Jacobsen
14. The role of soft law in minority rights protection and diversity management: reflections from practice, Sally Holt, Zdenka Machnyikova and John Packer

Tracing the Roles of Soft Law in Human Rights

Edited by Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and Edited By John Cerone

Author Information

Stephanie Lagoutte, Senior Researcher, Danish Institute for Human Rights, Thomas Gammeltoft-Hansen, Research Director, Raoul Wallenberg Institute for Human Rights and Humanitarian Law, John Cerone, Paul Martin Senior Professor in International Affairs & Law at the University of Windsor Faculty of Law, and Visiting Professor of International Law at The Fletcher School of Law & Diplomacy, Tufts University

Stephanie Lagoutte is Senior Researcher at the Danish Institute for Human Rights. She holds a Doctoral degree in law from the University of Paris 1, Pantheon-Sorbonne and a Ph.D. in Law from the University of Aarhus. She has taught and published within the field of European Human Rights Law, including on the reform of the European Court of Human Rights, human rights, and family law as well as religious freedom. Most of her recent work focuses on the duties and role of the state in human rights protection. She has coordinated research projects with partners from developing countries, especially in West Africa. In 2012-2014 she has been working in close cooperation with the UN Working Group on Human Rights and Business focusing on state duties under the UN Guiding Principles on Human Rights and Business.

Thomas Gammeltoft-Hansen is Research Director at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law. He holds a doctoral degree in law from Aarhus University, an MSc in forced migration from the University of Oxford, and an MPhil in political science from the University of Copenhagen. In addition to his academic work, Thomas Gammeltoft-Hansen serves as member of the Danish Refugee Appeals Board and has served as adviser and consultant to a number of international organisations, governmental institutions, and European NGOs.

John Cerone is Paul Martin Senior Professor in International Affairs & Law at the University of Windsor Faculty of Law, and Visiting Professor of International Law at The Fletcher School of Law & Diplomacy, Tufts University. In 2014-15, he was Distinguished Chair in Human Rights & Humanitarian Law at the Raoul Wallenberg Institute, Lund University Faculty of Law. Professor Cerone has worked for UN agencies, the OSCE, and several international human rights NGOs, and has served as a legal adviser to international criminal courts. He has extensive field experience in conflict and post-conflict environments, including Afghanistan, Kosovo, Sierra Leone, and East Timor. He is an elected member of the International Institute of Humanitarian Law and has been a member of the International Committee of the Red Cross (ICRC) Expert Group on the Law of Occupation. He also served as Special Adviser to the first U.S. delegation to the UN Human Rights Council.

Contributors:

Mátyás Bódig
Megan Bradley
John Cerone
Anette Faye Jacobsen
Thomas Gammeltoft-Hansen
Felipe Gómez Isa
Christoph Good
Sally Holt
Stephanie Lagoutte
Debra Long
Zdenka Machnyikova
Kasey McCall-Smith
Rachel Murray
Bruce Oswald
John Packer
Angela Sherwood
Peter Vedel Kessing
Léticia Villeneuve
Ekaterina Yahyaoui Krivenko