Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights

Abstract

Considerable confusion has surrounded the question of whether there exists a hierarchy of human rights in contemporary international law. Most human rights studies do not recognize such a hierarchy, mainly because of their emphasis on the indivisibility of human rights. This paper provides a possible coherent understanding of this issue from the perspective of non-derogable rights, which demonstrate the existence of a hierarchy of human rights most clearly in international law concepts. It is a serious mistake to regard non-derogable rights as a unitary concept. Rather, the concept may be identified in at least three different ways: by means of value-oriented, function-oriented and consent-oriented criteria. Within this analytical framework, and particularly with respect to the first two criteria, non-derogable rights need to be distinguished from similar concepts such as core human rights, jus cogens and obligations erga omnes. These concepts display the same character when identified by the value-oriented criterion, but this is not the case when they are identified by the function-oriented criterion. Throughout this discussion, it is argued that non-derogable rights provide the key to understanding hierarchy in international law in general.