Standard-setting Instruments

In international law - and in human rights law - there are different standard-setting instruments.

These instruments can be divided into two categories:

  • binding instruments, commonly known as "hard law", and
  • non-binding documents, also known as "soft law".

The first category, composed of Treaties, confers legal obligations to States Parties to these instruments. The second category, mainly composed of Declarations and Recommendations provides, as a rule, guidelines and principles and imposes moral obligations on States. Depending on the category, an instrument can thus have binding effect, value and justiciability to a higher or lesser degree. Some of these instruments are listed below.

Binding instruments

A Charter is a written constitution, such as the Charter of the United Nations.

Treaties include covenants and conventions, all of which are agreements between States. The Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights are treaties. They both expand upon the rights and freedoms enshrined in the Universal Declaration of Human Rights. The Convention on the Elimination of All Forms of Discrimination Against Women is another example of a treaty.

By ratifying an instrument – or a treaty - States recognize their obligation to respect its terms. States that have not signed the treaty may also become a Party to it by using a simplified procedure called adherence, accession or acceptation. After ratification, acceptance or accession by States, treaties become binding.

Non-binding instruments

Non-binding instruments include declarations, recommendations and resolutions.

A declaration is a statement of principle or a common standard of achievement. A declaration can be contained in a resolution, however it does not create legal obligations for States and is therefore not binding in international law. Many declarations, however, have strong moral and political value.

Nevertheless, there are exceptions. Declarations may gain ‘binding value’ over time, mainly due to the importance paid to it by States. This is the case with the Universal Declaration of Human Rights (UDHR) that was adopted in 1948. Usually though, declarations have to be reproduced in conventions in order to become legally binding. One example is the Declaration on the Elimination of All Forms of Discrimination Against Women, which was reproduced in the Convention on the Elimination of All Forms of Discrimination Against Women.

States are usually invited to implement a recommendation, however it is not formally binding. One example is the UNESCO Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It.

A resolution is a formal expression 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.

Geographical scope

International standard-setting instruments often have a clearly defined geographical scope, being either international or regional. An international instrument is the Convention on the Elimination of All Forms of Discrimination Against Women, whereas the African Charter on Human and Peoples Rights is regional.

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