The Drafting Process of Human Rights Soft Law: a Tool Facilitating Cooperation among States and beyond States

Soft law refers to non-binding norms like recommendations, guidelines or codes of conduct that influence behaviour of States and non- state actors. While not legally enforceable like hard law treaties, soft law offers flexibility to adapt to changing circumstances and can pave the way for future binding agreements. With this ‘practitioner’s paper’ the author aims to provide an insight into this multifaceted, collaborative law-making journey which is the drafting and adoption process of international soft law instruments, particularly in the field of human rights. Based on his work-related experience, the author intends to highlight a specific aspect of the added value of the cooperation and synergy between States and non-state actors in international law making. The paper outlines a multi-stage process, from an initial issue identification through collaboration among States, NGOs, international organisations, academia and professional groups. It details then the establishment of drafting committees with government experts and other participants, followed by iterations of drafting, negotiations, revisions and consultations to build consensus. This process ends with the adoption of the soft law instrument, after which follow-up measures promote its implementation, assess impact and allow for potential revision. The author emphasises soft law making as a cooperation tool facilitating dialogue among diverse actors. In particular, public consultations during the drafting enhance inclusivity and legitimacy of the soft law instrument. Challenges include balancing flexibility with consistency, avoiding ‘reinventing the wheel’, and managing political interests. The paper lists at the end a few examples of soft law instruments and their making.