Flawed consensus and soft law: from the Conference on Security and Cooperation in Europe to a Future Peace Conference on Ukraine

Abstract

This contribution to the Liber discipulorum dedicated to Prof. D.J. Liñán Nogueras evaluates the resolutions adopted by the United Nations General Assembly in the aftermath of Russia’s war of aggression in Ukraine. This critical analysis serves to present the changes that have taken place in the power, normative and interpretative structures in the international order, highlighting among these changes the flawed consensus reached in the UN General Assembly, the return to automatic majorities and the choice of soft law as a normative response of limited intensity. While the crisis of consensus that manifests itself in norm-creating processes and also in political processes and agreements is at the origin of soft law, it is also a symptom of the frustrated normative vocation of international organisations. This analysis leads to a reflection on how soft law instruments could be used to seek peace in the Ukrainian war, albeit with a flawed consensus. In the case of the 1975 Conference on Security and Cooperation in Europe (CSCE), consensus made détente possible; now, consensus, however flawed, can also be an avenue for future solutions, with soft law instruments as a first step.