'Soft law', informal lawmaking and 'new institutions' in the global counter-terrorism architecture

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Abstract

This article assesses the increasingly important and diverse role undertaken by a range of 'soft-law' counter-terrorism instruments since September 2001. It starts from the proposition that states increasingly use soft-law standards to regulate in the counter-terrorism, countering violent extremism and preventing violent extremism arenas. The article identifies a broad range of soft-law instruments and assesses their normative and practical importance for states. In parallel, the analysis identifies and maps a range of new institutions and entities producing such norms, paying particular attention to their membership, legal basis, terms of reference and working methods. The role and importance of these new institutions is broadly addressed. The article argues that soft-law production in counter-terrorism has weakened human rights protections across the globe and provided cover for sustained rights violations in multiple national contexts. As a result, human rights norms are not meaningfully included in the creation and implementation of these norms. The article pays particular attention to the lack of pathways for human rights standards to be meaningfully integrated, accounted for and benchmarked in the creation of counter-terrorism soft law. It identifies the ways in which new institutions have inter alia been established precisely to avoid the normative and institutional application of these standards to the counter-terrorism norm creation process. The article starts to trace the movement of some 'soft-law' norms to hard-law standards, illustrating the dense relationship between 'hard' and 'soft' law in the counter-terrorism arena.

Original languageEnglish (US)
Pages (from-to)919-941
Number of pages23
JournalEuropean Journal of International Law
Volume32
Issue number3
DOIs
StatePublished - Aug 1 2021

Bibliographical note

Publisher Copyright:
© 2021 The Author(s), 2021. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved.

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