New governance mechanisms and international human rights law: moratoriums in law and practice

Abstract

Moratoriums in IHRL, as new governance mechanisms, can be defined as the temporary suspension of a specific domestic law or regulation, which results from a varying degree of external influence of the international human rights politics or practice. Their purpose is to explore alternatives to the existing legal framework, with a view to proceeding with its definite modification in the long-term. They offer a middleground solution to a persistent lack of consensus on issues where there is a deep clash of culture, morals or values, where no universally agreed standards seem to exist and where the human rights nature of issues is debated. Due to the increase recourse to such “soft law” instruments, which operate on the margin of the rule of law and the traditional separation of powers doctrines, it is crucial to assess the nature of their relationship with the law. Through the application of the conceptual framework of new governance to moratoriums addressing the highly contentious issues of the death penalty and discrimination based on sexual orientation, it is possible to demonstrate that these instruments - as a flexible alternative to the conventional rule-making processes - have the potential to shape public policies and transform human rights law, in particular through the intervention of peer-review and judicial review.