International Human Rights and the International Human Rights System A Manual for National Human Rights Institutions 5. “SOFT LAW” Treaties are “hard law”. They create obligations that are binding in international law on the States that accept them through accession or ratification. There are many other international human rights instruments or documents that are “soft law”. They are not directly binding in themselves but they have persuasive or moral authority and sometimes they affect the interpretation of binding treaties and so they can, in some instances, acquire indirect binding status. For example, the UDHR was “soft law” when it was adopted in 1948 but it has acquired far greater authority over the following 60 years. Like treaties, “soft law” instruments can have many different types of name, including: • declarations, as in the Universal Declaration of Human Rights • principles, as in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment • rules, as in the Standard Minimum Rules for the Treatment of Prisoners • guidelines, as in the Guidelines for Action on Children in the Criminal Justice System • resolutions. Unlike treaties, the different names for “soft law” instruments denote different levels of authority. Declarations are the most authoritative of these instruments. They are proclamations of the GA, made after a lengthy process of negotiation among States in the same way as treaties are negotiated. Often they will anticipate the negotiation and adoption of a treaty, in the way that the UDHR led in time to the adoption of the ICESCR and the ICCPR or the way that the Declaration on the Protection of All Persons from Enforced Disappearance led to the CPED. At other times they supplement the provisions of a treaty, providing detail that enables the interpretation and implementation of the treaty provision. For example, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief provides substance to the interpretation and implementation of the right to freedom of religion and belief in article 18 of the ICCPR. The GA has adopted human rights declarations on: • religious intolerance36 • violence against women37 • the right to development38 • enforced disappearances39 • minorities40 • human rights defenders41 • the rights of indigenous peoples.42 The role of “soft law” instruments is most important. Many treaties cover many different issues and so they tend to be quite general in their terms. For example, article 10 of the ICCPR provides for the right of “[a]ll persons deprived of their liberty [to] be treated with humanity and with respect for the inherent dignity of the human person” but it does not define what constitutes “treated with humanity”. The Standard Minimum Rules on the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment deal specifically and in detail with this 36 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; adopted by GA Resolution 36/55 of 25 November 1981. 37 Declaration on the Elimination of Violence against Women; adopted by GA Resolution 48/104 of 20 December 1993. 38 Declaration on the Right to Development; adopted by GA Resolution 41/128 of 4 December 1986. 39 Declaration on the Protection of all Persons from Enforced Disappearance; adopted by GA Resolution 47/133 of 18 December 1992. 40 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; adopted by GA Resolution 47/135 of 18 December 1992. 41 Declaration on Human Rights Defenders; adopted by GA Resolution 53/144 of 10 December 1998. 42 Declaration on the Rights of Indigenous Peoples; adopted by GA Resolution 61/259 of 13 September 2007. 16 | Chapter 3: What is international human rights law?