new report from the UN’s Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (SRCT), Fionnuala Ni Aolain, focuses on the role of “soft law” bodies – organizations such as the Financial Action Task Force (FATF) that do not create legally enforceable rules but whose standards are increasingly transposed “into formal and binding legal frameworks.”  With selective membership and little transparency or formal avenues for civil society participation, human rights considerations are often marginalized in these bodies.  Ni Aolain calls on soft law bodies to acquire greater human rights knowledge and capacity and urges the UN and member states to ensure that soft law standards they adopt are benchmarked against human rights treaty obligations. The SR stresses that a “human rights-lite approach risks undermining the efficiency of counterterrorism measures. Human rights compliance serves as a precondition for efficient counter-terrorism laws and policies.”

The report first reviews the growing phenomenon of soft law in the counterterrorism field, noting its benefits as well as the dangers. Noting that soft law bodies can often act with greater speed and flexibility than official ones and may be more innovative, the SRCT says:

“Soft law has played an important role in consolidating and developing international law, including international human rights law. It functions as a gap-filler in the absence of treaty agreements or customary international law consolidation and fleshes out existing norms by giving shape to the substance of obligations.”

Despite their lack of transparency and accountability procedures, the SRCT says soft law bodies can “include access by a variety of stakeholders, informality in procedures and negotiation, innovative modalities of engagement and analysis and variety in the pathways to produce legal norms in new and challenging global contexts.”

However, in examining the deepening role of soft law in the counterterrorism context, the SRCT finds that this “architecture enables coalitions of States with similar views and global multi-stakeholder networks which are not formally legally constituted under international law” to avoid formal processes for creating rules and binding obligations. This has tended to marginalize human rights and humanitarian law considerations, which tend to have limited capacity and resources.

Instead of clear standards that would support compliance with IHRL/IHL obligations, the report says soft law standards tend to use general phrases regarding compliance with human rights, humanitarian and refute law, “which specifies nothing about specific impingements on specific human rights, how they are to be minimized, what law and obligations guide States to that ed and what hard or soft human rights norms could guide them.”

This is a lost opportunity.  The SR emphasizes that, “human rights constitute an essential bedrock in the fragile States and conflict and post-conflict situations in which a sizeable portion of the counterterrorism work is being carried out in practice.”

The report explains the ways soft law is transposed into formal and binding law through references in UN resolutions or guidelines. It cites the March 2019 Security Council Resolution 2462 on terrorist financing as a “highly problematic” example. Res 2462:

“endorses several problematic standards related to the risks associated with the non-profit organization sector, with broad effect for humanitarian actors and civil society. It specifically gold-plates the Financial Action Task Force and its norm production process by urging all States to implement the comprehensive international standards…The Task Force is an exclusive, non-transparent, State-created forum to which civil society and the United Nations human rights entities have little or no consistent access. It has, in the terrorism financing context, become the shortcut mechanism for rule-setting.”

Because of its influential role, the report takes an in-depth look at FATF and notes that its mandate has no reference to human rights or international humanitarian law. Although the Interpretive Note on Recommendation 8 on nonprofit organizations generally states that implementation must be consistent with human rights and humanitarian law, “it does not elucidate how those standards are to be effectively complied with by implementing jurisdictions or how compliance is to be assessed by per-review based evaluations.”

The SR recommends that FATF address these problems and also undertake a consultative process with civil society on how to formalize its full engagement and participation, as currently such exchanges occur on an ad hoc basis.

See the full report here.