oa Comparative and International Law Journal of Southern Africa - The relevance of 'soft law' as a source of international human rights
This article addresses the question whether the traditional resources of international law as provided by article 38(1) of the Statute of the International Court of justice are adequate to accommodate the full spectrum of international human rights instruments. The greater part of international human rights consists of either conventional or customary international law and fall within the scope of section 38(1). Certain internationally acknowledged international human rights documents, however, do not meet the international law requirements for treaties and custom, for example human rights resolutions of the United Nations General Assembly, in particular the Universal Declaration of Human Rights. This article is an attempt to determine their status. It is suggested that the notion of 'soft law' may be used to explain the legal status and political relevance of such resolutions. It appears from the authority consulted that the term 'soft law' refers to non-law and can therefore not be regarded as a new and separate source of international law. The value of 'soft law' lies on the moral and political level. 'Soft law' further plays an important role in facilitating and mobilising the consent of states required to establish binding international law. 'Soft law', though not a source of law, remains legally relevant and is therefore a governed by international law. Customary international law is suggested as an alternative method to account for the status of international human rights resolutions. International authority is referred to, suggesting that a non-conventional approach to the traditional requirements of usus and opinio iuris is justified in order to lend legal status to human resolutions.
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