Soft law in participation rights: tools in development

Within the UN human rights machinery a wealth of soft law has evolved in relation to participation rights. These instruments are often linked to economic, social and cultural rights (ESC) and to rights of vulnerable groups.

This evolution places the human rights system in a dilemma between high expectations to deliver enhanced tools for development and progress on the one hand, and securing the quality, consistency, and credibility of the machinery’s interpretations on the other.

The chapter explores the soft law development related to participation rights and, in particular, the ‘right to be consulted’. The latter covers different forms of rights holders’ involvement in decision processes, ranging from vague recommendations to the demanding standards of Free, Prior, Informed Consent.

The study traces the role of soft law in treaty bodies’ practise, with a focus on Committee Views, General Comments and Concluding Observations on the intersection between participation and economic, social and cultural rights. The aim is first to explore whether soft law elaboration has succeeded in setting new standards, and, second, to test the quality and consistency of treaty bodies’ interpretation of hard law instruments. Finally the article offers a taxonomy for the existing soft law on the ’right to consultation’ with the aim of providing an overview and establishing a hierarchy of standards in relation to ESC Rights.