Human Rights International Law

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Are there some human rights that are more 'fundamental' than others? "Fundamental rights", "Fundamental freedoms", "Human rights and fundamental freedoms" are buzzwords in contemporary international law. Regardless of the widespread usage of these ideas both in academic environment and in daily life, controversial debates, whether there are rights more fundamental than others, are still actual. World War II and the establishment of UN have been a statutory landmark in the history of human rights. The Classical period of international law was recognizing the supreme authority of the sovereign, subordinating the rights of individuals to the will of sovereign. The rights of medieval sovereign are clearly defined in "Leviathan" by Tomas Hobbes. According to the Chapter XVIII (Of the Rights of Sovereigns by Institution) since the subjects are the authors of sovereign's actions "It follows that whatsoever he doth, can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice." [1] Meanwhile the adoption and proclamation of UN Charter (1945), The Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights and International Covenant on Social, Cultural and Economic Rights (both adopted in 1966) were major progress towards the international protection of human rights. Later, besides the universal mechanisms of human rights protection, regional instruments were developed such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The purpose of the essay is to examine the debate over the existence of fundamental and non-fundamental human rights. The question is observed through two controversial approaches that are equality and hierarchy of human rights. The equality of all human rights supposes that all human rights are equally important, as it is reinforced in UN official doctrines. The UDHR which was adopted by UN General Assembly on December 10, 1948, proclaims that there is no separation between different rights. Besides, as it is reinforced in the Article 5 of the Vienna Declaration and Programme of Action, World Conference on Human Rights "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis." [2] From this point of view all human rights are considered to be equal, and there is not supposed to be any hierarchy between different rights. The opposite standpoint argues for the existence of hierarchy of human rights noting that there are fundamental rights and thus making classification in the field of human rights. The bright evidence of abovementioned viewpoint is the frequently used notion of "fundamental" or "basic" human rights. The Article 4 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, defines that "In time of public emergency which threatens the life of the nation… the State Parties to the present Covenant may take measures, derogating from their obligations under the present Covenant… inconsistent with their other obligations under international law". [3] Though the second provision of this article defines that nevertheless there are some cases, when no derogation may be made under this provision(articles 6, 7, 8, 11, 15, 16 and 18), e.g. no one shall be arbitrary deprived of his life, subjected to torture, held in slavery, held guilty of any criminal offence on account of any act or ommision which did not constitute a criminal offence, under national or international law, at the time when it was committed, everyone shall have the right to recognition everywhere as a person before the law, everyone shall have right to freedom of though, conscience and religion. Another argument provides the third article of Geneva Convention (III) relative to the Treatment of Prisoners of War(12 August 1949), which defines that during the non-international armed conflicts there are some acts which ''shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons'' [4] (persons, who are not taking active part in the hostilities, including those, who have laid down their arms and those placed hors de combat because of sickness, wounds, detention). In fact, according to the 1949 Geneva Convention murder of all kinds, cruel treatment and torture, taking of hostages, outrages upon personal dignity and many other similar actions are prohibited at any time and in any place. This is a strong argument provided by the Convention that there are fundamental human rights which can be violated by no means. This suggests a unique hierarchy for human rights. The International Court of Justice gave currency to the idea of a hierarchy in the Barcelona Traction Case by suggesting in a famous dictum that ''basic rights of the human person'' (droits fundamentaux de la personne humaine) create obligations erga omnes. This dictum was constructed by the International Law Commission(ILC) to mean that there is ''a number, albeit a small one, of national obligations which, by reason of the importance of their subject-matter for the international community as a whole, are unlike the others-obligations in whose fulfillment all States have a legal interest''. [5] It means that fundamental rights (jus cogens) create erga omnes obligations. Still the best evidence for the existence of human rights hierarchy is the hierarchical structure of legal systems of a great deal of states. The legal systems of the majority of sovereign states are based on the constitutions, which are considered to be the supreme law of the states. The provisions of the Constitution can be violated by no means, since it reinforces fundamental statements. Even in The Constitution of Republic of Armenia amended in 2005, certain human rights are defined as fundamental. According to the Article 3 of the Constitution everyone possesses certain fundamental rights which should be protected according to the rules of International law and these fundamental rights and freedoms lead to the self-limitation of the state. [6] So, observing the issue as an individual researcher I support the idea that the existence of some human rights, that are more fundamental than others, is obvious. My position is also based on the Armenian scholar of Legal Studies V. Nersesyants, who is the founder of Libertar Legal Comprehension Theory. It defines the right as a measure of liberty and this measure of liberty is flexible rather than constant. This is another argument for the existence of human rights hierarchy, which I strongly support.
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