Articles

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&hyphen;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&hyphen;derogable rights as a unitary concept. Rather, the concept may be identified in at least three different ways: by means of value&hyphen;oriented, function&hyphen;oriented and consent&hyphen;oriented criteria. Within this analytical framework, and particularly with respect to the first two criteria, non&hyphen;derogable rights need to be distinguished from similar concepts such as core human rights, <it>jus cogens</it> and obligations <it>erga omnes</it>. These concepts display the same character when identified by the value&hyphen;oriented criterion, but this is not the case when they are identified by the function&hyphen;oriented criterion. Throughout this discussion, it is argued that non&hyphen;derogable rights provide the key to understanding hierarchy in international law in general.

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