34 The Hierarchy of Human Rights

Nizamuddin Ahmad Siddiqui

AIMS OF THE CHAPTER:

• To learn about the concepts of human rights in natural law and positive law.
• The student will be able to understand the utility of concepts like ‘definition’, ‘value’, ‘universality’, ‘non-derogability’ in understanding human rights.
• To understand different debates about hierarchy of human rights and be able to analyze various questions relating to these debates

THE HIERARCHY OF HUMAN RIGHTS

Human rights stand as the most recognized form of universal values that the international community has accepted over time. Grounded in positive law, though they have originated quite recently, their history goes back to ages. The International law technically has recognized human rights as positive rights in the form of human rights treaties, but again it has not shied away from recognizing its natural law roots. In positive law, human rights have found its ‘definition’, ‘conception’ and ‘application’ whereas in natural law it has found its ‘universality’, its ‘value’ and ‘non-derogability’. In the present chapter, we will touch upon these aspects while also considering their utility in understanding the nature of human rights. To begin with, we will discuss the classical debate over ‘generations’ of human rights.

1. What is meant by Generations of Human Rights?

Traced centuries back, the ‘generation’ debate over human rights technically arose subsequent to the adoption of Universal Declaration of Human Rights (UDHR), 1948. Starting from that point the international community decided to outline the scope of human rights while also delineating its limits. There were two divergent approaches – the western approach and the socialist approach. The western approach emphasized upon individual freedoms and liberties and regarded human rights as a limitation on the state’s authority. The other side led by the socialists identified human rights in community values and located them as collective rights. For them, the state was the source of all the rights.4 Since human rights had to be realized in future due to the absence of a recognizable state practice in the past, it was decided to codify human rights by adopting international instruments.5 During codification process, the same two approaches were employed by the diverse groups. And finally, after lengthy discussions, it was decided to incorporate these approaches in different instruments. Two treaties6 were adopted in the process – International Covenant on Civil and Political Rights (ICCPR), 1966 and International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966. Interestingly, both the treaties to the most part expanded the already recognized rights by the UDHR.8 These treaties were later identified as embodying different generations of human rights – ICCPR (first generation) and ICESCR (second generation). This list was further developed with the addition of one more generation of human rights, i.e., ‘group rights’. 10 Under this head right to environment, theright to development etc. was identified. Together with UDHR ICCPR and ICESCR both constitute the International Bill of Rights.

This categorization of human rights as belonging to different generations seemed to put relative values upon the different sets of rights. In a sense, this also marked to set up a hierarchy among them. International lawyers, who regarded human rights as one complete body of law did not approve this, especially as giving rise to a hierarchy. Even those who identified intra-hierarchy among human rights did not approve of prioritizing human rights on this basis.

2. Human Rights and International Law:

Whenever we discuss human rights within the ambit of international law two fundamental questions arise – first, what position should human rights occupy within the body of international law? and second, whether human rights can trump other obligations under international law?13 There is adiverse literature which suggests that human rights norms have supremacy over all the other norms of international law. This is a highly relevant observation keeping into view that human rights enjoy relationships with international trade, investment, environment etc. It, therefore, becomes very crucial to discuss the normative function of human rights. How can human rights affect international legal framework? It is in this connection that the issues of ‘derogability’ of human rights come into the picture.

3. Human Rights as Values:

How relevant is the human rights discourse for our present understanding of theinternational law? How efficient is this discourse in bringing normativity in international law? Both questions are answered by the scholars by resorting to the debate on ‘derogability’. But before we move onto this debate it seems necessary to understand what ‘derogability’ means? Derogation from human rights obligations would mean resorting to practices that are violative of these obligations.

But where does ‘derogability’ fit in the present discussion over ‘hierarchy of human rights’? It is to be remembered that human rights have evolved as ‘values’ having their basis in natural law.17 Even where treaties like ICCPR and ICESCR were entered into by the States, there was very little state practice which could have enforced those values.18 International law being highly positivist could not also have recognized them, otherwise. Therefore, human rights treaties are based more in promise than in state practice since practices of these treaties are still subject to differential practices by the states19. The problem then arises, how to identify human rights as universal and allow reservations upon them? Scholars have tried to deal with this question by dissecting the body of human rights and separating the ‘core’ from the rest. It is in this process that they try to discover the ‘non-derogate’ rights, corresponding to the ‘core’, from which no claim of exception can be made. This investigation automatically gives rise to discussions over the relative hierarchy among human rights.

4. The Core of Human Rights:

The international community has answered the question of ‘fundamental core values’ differently – for some, human rights are indivisible and hence we cannot talk about the ‘fundamental core values’21 as this gives rise to the hierarchy among the different human rights.22 The other set of scholars thinks that we can separate the ‘core’23 from the rest and hence, identify certain types of rights which cannot be denounced by anyone. This method,ofcourse, gives rise to an intra-hierarchy within human rights body.24 Some of the known-derogate and core human rights identified by the latter include – theright to life, prohibition of torture, prohibition of slavery and non-retroactivity of thepenal law.25 Interestingly, while taking any of the sides, both sets of scholars recognize that human rights do constitute peremptory norms of international law based in jus cogens26 and applicable erga omnes.

5. Conclusion:

It would be worthwhile to accept that human rights constitute the most basic aspirations of the international community. It has contributed a lot to the normative development of international law and still contributing to its progress. The debate over hierarchy is one of the by-products of its contribution to general international law. And it should be accepted that the debate will go on, until the time the debate over norms and practice continues.

Reference

• ‘International Human Rights Law-A Short History’, UN Chronicle-The Magazine of
• the United Nations, Vol. XLVI No. 1 & 2 2009, http://unchronicle.un.org/article/international-human-rights-law-short-history/
• Peter Malanczuk, Akehurst’s Modern Introduction to International Law, London/New York: Routledge, 7th Revised Edition., 1997
• Theodor Meron, ‘On a Hierarchy of Human Rights’, The American Journal of International Law, Vol. 80, No. 1 (Jan., 1986)
• Teraya Koji, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspectives of Non Derogable Rights’, EJIL (2001), Vol 12 No. 5
• Eckert Klein, ‘Establishing a Hierarchy of Human Rights: Ideal Solution or Fallacy’, ISR. L. REV. Vol. 41. 2008
• Yogesh Tyagi, ‘The Denunciation of Human Rights Treaties’, British Yearbook of International Law (2008) 79 (1)