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The European Convention on Human Rights and General International Law$
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Anne van Aaken and Iulia Motoc

Print publication date: 2018

Print ISBN-13: 9780198830009

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780198830009.001.0001

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Hard Law or Soft Law—Does it Matter?

Hard Law or Soft Law—Does it Matter?

Distinction Between Different Sources of International Law in the Jurisprudence of the ECtHR

Chapter:
(p.41) 2 Hard Law or Soft Law—Does it Matter?
Source:
The European Convention on Human Rights and General International Law
Author(s):

Angelika Nußberger

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198830009.003.0003

The European Court of Human Rights takes both hard law and soft law seriously, especially when it is necessary to adapt the wording of the European Convention on Human Rights to changed conditions in European societies and to explore what is called the ‘European consensus’. Nevertheless, the Court does not treat hard law and soft law in the same way. When clashes occur, it takes hard law more seriously than soft law. This finding can be linked to the acceptability and legitimacy of the Court’s jurisprudence. An interpretation of the Convention creating irreconcilable treaty obligations is generally not acceptable. An interpretation of the Convention going less far or further than rules of soft law might be criticized, but does not create unsolvable problems for member States. Thus, while there is no black-and-white scenario, the difference between hard law and soft law still matters in the Court’s jurisprudence.

Keywords:   soft law, hard law, source of international law, European Court of Human Rights, State consent, evolutive interpretation, European consensus

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