More about the nature and status of the legal instruments and programmes

International standard-setting instruments can be divided into two categories: binding instruments, also called 'hard law', and non-binding documents also called 'soft law'.

The binding instruments, composed of Treaties (which can have different titles such as Conventions, Covenants, Pacts and Agreements) confer legal obligations upon States Parties. The non-binding documents, mainly composed of Declarations and Recommendations provides, as a rule, guidelines and principles and imposes moral obligations. Both binding and non-binding instruments can have an international, regional or subregional scope.

The international legal instruments on the economic, social and cultural rights, and on the right to education, are presented here under ‘‘binding instruments’’, ‘‘non-binding instruments’’ and ‘‘programmes and action plans’’. At the same time, they are in chronological order.


BINDING INSTRUMENTS:

Binding instruments, or 'hard law', establish rules expressly recognized by the contracting States (Article 38 (1) of the Statute of the International Court of Justice). States should explicitly express their consent through a specific procedure to be bound to the terms of a treaty.

The procedure of adoption and entry into force of treaties was codified by the Vienna Convention on the Law of Treaties adopted on 22 may 1969. It is composed of three main stages: negotiation (to reach an agreement on the text), authentication (formalized by the signature) and ratification. Ratification should be made in accordance with constitutional law of each country. In general, States must obtain the authorization of their national legislative body (Parliaments) to do so. Once this procedure is accomplished, the Head of State deposits a ratification instrument with the depositary of the treaty (generally the Head of the intergovernmental organization or the hosting country of the international conference by which it was adopted).

By ratifying the instrument, States explicitly recognize their obligation to respect the terms of the treaty. States that have not signed the document may also become a Party to the treaty by using a simplified procedure called adherence, accession or acceptation.

Every treaty contains normative provisions defining the legal obligations, and operating provisions describing the technical conditions for its entry into force, including the minimum required number of ratifications to be obtained. Once these conditions are satisfied the treaty enters into force and becomes legally binding for States Parties.

In accordance with the principle of primacy of the international law over national law, States Parties are bound to adapt their national legislation to the provisions of the treaty and introduce all relevant measures in their national legal system to implement their obligations under this treaty.


NON-BINDING INSTRUMENTS:

Non-binding instruments, or 'soft law', provide guidelines of conduct, which are neither strictly binding norms of law, nor completely irrelevant political maxims. They operate in a grey zone between law and politics. Main examples of non-binding instruments are declarations, recommendations and resolutions.

Declarations do not create legal obligations for States that adopt them. They reflect principles on which these States agree at the time of their adoption and proclaim standards, which though non-binding, impose nevertheless moral obligations. Many declarations have a strong moral value. Some of them can even become 'semi-binding' as is the case of the Universal Declaration of Human Rights (UDHR) adopted in 1948. The history of the progressive development of human rights law has shown that declarations often precede the adoption of a binding instrument. For example, amongst many others, the adoption of the Convention on the Rights of the Child in 1989 was preceded by the adoption of the Declaration on the Rights of the Child in 1959; and the adoption of the Convention on the Elimination of All Forms of Discrimination against Women in 1979 was preceded by the proclamation of the Declaration on the Elimination of All Forms of Discrimination against Women in 1967.

Recommendations are another form of non-binding instruments, which are suggestions of international organs inviting States to take legislative or other steps. As such, recommendations are intended to influence the development of national laws and practices.

Resolutions are formal expressions of opinion by a legislative body or a public meeting. The resolutions made by the United Nations General Assembly or the General Conference of UNESCO, are therefore an expression of the opinion of the Member States of these Organizations.


PROGRAMMES AND ACTION PLANS:

Binding as well as non-binding legal instruments are often developed or implemented through programmes and action plans, which are policy documents containing the steps that might be taken. An example of an action plan is The Dakar Framework for Action: Education for All: Meeting our Collective Commitments, adopted by the World Education Forum in April 2000.

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