Hierarchy in International Law: the Human Rights Dimension

Human rights are purported in the standard pronouncements to be indivisible, interdependent, and interrelated, and, by implication, normatively equal. However, an appraisal of the variable priorities accorded to such rights and to humanitarian norms in international law calls into question this unitary paradigm and suggests that a more hierarchical ordering may obtain among norms. While most states have now accepted a wide ranging corpus of legal obligations in the human rights and humanitarian areas, they and the other major governmental and non-governmental international players have signaled that the strength of those obligations may vary according to the value attached to the corresponding norm.



This book surveys the development and evaluates the effectiveness of six normative categories of international law, each of which carry implications for human rights hierarchy: jus cogens (peremptory norms), non-derogable human rights, obligations erga omnes, international state responsibility, international crimes of individual responsibility and the international tort in United States domestic jurisprudence.



The author concludes that jus cogens may be emerging as the doctrinal crown in a quasi-constitutional international order and that certain substantive norms, such as those comprising contemporary international criminal law and several civil and political rights, may already have achieved the grade as peremptory norms. The challenge for human rights proponents will be to seize the opportunity to raise further the standing of human rights in international law and to expand the jus cogens roster with seemingly excluded important human rights norms, such as the rights to food and housing.