The Jurisprudence of the European Court of Human Rights in Confronting International Soft Law
Keywords:
Soft Law, Human Rights, European Court of Human Rights, International Customary LawAbstract
Flexibility is considered one of the most essential characteristics of any legal system. One of the mechanisms for creating and ensuring flexibility in international law is the concept of soft law. The notion of soft law has significantly expanded across various fields of international law, particularly in the realm of human rights. Soft law norms occupy a gray area between binding or hard law and morality. The implications and feedback effects of these norms in different domains of international law have drawn the attention of scholars. The present study aims to explain the approach of the European Court of Human Rights (ECtHR) in dealing with soft law norms. The findings of this study, which were obtained through a descriptive–analytical method and library-based research, indicate that the ECtHR sometimes encounters pre-existing soft law norms, while at other times it functions as a “producer of soft law” through the creation of practices that deviate from existing rules. Pre-established soft law, in the light of the jurisprudence of the ECtHR, serves three major functions: using soft law as a tool for interpreting hard law rules and norms; strengthening pre-existing soft law and facilitating its transition into the realm of hard law through the formation of new customary rules; and utilizing soft law to elevate hard norms within the hierarchical structure of international legal norms.
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