The UN TreatyBodies and their Normative Output : International Human Rights Law Beyond State Consent?

Sammanfattning: Few topics of discussion within international human rights law are as riddled with confusion as that concerning the legal status or normative significance of the United Nations Human Rights Treaty Bodies and their work. The treaty bodies, in its work, generate a form of jurisprudence – a body of norms and directives about how state parties ought to act in order to comply fully with the treaties. The prevailing issue within the legal practice and academic debate is often presented as a dilemma: are the norms generated by the treaty bodies binding or not? This paper takes a somewhat different approach, arguing that the treaty bodies’ normative output, all the while legal in nature, is best understood as non-binding, yet maintain the function of giving the states parties to the respective treaties reasons for action. Thus, discarding with the binary ‘grammar’ defended by some of the leading international law scholars, where law equals binding and obligatory, and non-binding and non-obligatory equals non-law. Instead, this paper suggest a third option which better fits the actual function that treaty body output serves within the practice of international human rights law. Also, since the resulting norms do not have binding force, the requirement of state consent should be proportionally weakened, giving rise to the possibility that the state may be subject to legal norms without its consent.