PHA-Exchange> Feedback on HRR 89 on soft laws

[Claudio]

From: George Kent (gk) <kent at hawaii.edu>

Claudio, a few quick thoughts, just to provoke ....

Claudio wrote>:

Human Rights Reader 89
UNFORTUNATELY, HUMAN (PEOPLE'S) RIGHTS VIOLATIONS DO NOT CALL FOR CONCRETE
INTERNATIONAL SANCTIONS.

>  ... many HR violations do not actually call for public/worldwide action.

(gk) There are many possible forms of action against violations other
than court trials. The UN treaty bodies use constructive dialogue, INGOs
such as Human Rights Watch use naming and shaming, and there are are
various forms of public action.

> ... This vagueness in the language of international law is problematic,
> because it allows for the manipulation of this
> inexactly-defined-body-of-laws. There is an urgent need for further
> codification of this body of international law related to HR. But, in
> today's world, the codification of international law is a reality we
> can only dream about.

(gk) This dreaming results in slow but steady progress in the
elaboration of international human rights law. It is too slow, but it is
progress.

> ...The US, for example, is consistently disrespecting international law
> by not ratifying treaties it has signed.

(gk) One might say that countries that ratify international human rights
agreement and then don't take them seriously are the ones that are
disrespecting international law. There is a certain integrity in the US
not ratifying, say, the Convention on the Rights of the Child, rather
than ratifying it and then ignoring it, as many countries have done.

> ...The US will certainly veto any codification of international law that
> may hold it responsible for its actions, both domestically (e.g., CO2
> emissions)
>
(gk) Veto codification? The US did not veto the Kyoto protocol. It
simply refused to participate.

> ...This begs the question: If there is no codification and no means of
> enforcing it, what is the point of this international law?

(gk) I strongly disagree. Soft rights have their uses. They articulate
clear norms, and they set out clear goals. We can work on hardening what
is presently soft law--a very worthwhile project.

> ...Many such international agreements may prove useful and may serve as a
> basis for future legally binding agreements.

(gk) Most international human rights agreements (e.g., the covenants,
CRC) are now binding--in principle. However, we must acknowledge that
they are not in fact binding in practice.

> ...However, the name given to these laws ('soft laws') is inherently
> problematic, because soft law is not law at all. Essentially, soft law
> is comprised of declarations of principles, codes of practice or
> conduct, recommendations, guidelines, standards, charters and
> resolutions. These instruments have no legal authority, but there is
> an expectation they will be respected and followed by those countries
> and governments who have signed them.

(gk) I disagree. The covenants, CRC, CEDAW, etc. DO have legal
authority, and in many countries' courts they are treated as binding
under national law. These treaties have a great deal of legal authority.
Justiciability is not everything. There are other means of accountability.

> ...One problem with non-legal instruments is that countries can sign
> on to them without the fear of having to be held accountable
> --legally. Pressure comes (or is supposed to come) from the
> international community. But it is only an assumption that, if a
> treaty is signed, a country will do everything in its power to
> maintain the integrity of the contract.

(gk) They are held accountable, legally, by the UN human rights treaty
bodies. They are not as muscular as one might like, but they do exercise
legal oversight.

(gk) I set out my views on these things more fully at
http://www2.hawaii.edu/~kent/GUP2005/1008 Chapter Eight.doc
<http://www2.hawaii.edu/%7Ekent/GUP2005/1008%20Chapter%20Eight.doc>



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