Are some human rights more important than others?

by  Mohammad Sohidul Islam

cas-map-magistrature-penale-droit-marteauAn examination over the hierarchy of rights in international human rights law taking right to life as an example. 

I     Introduction
The notion of human rights has developed throughout the centuries. Charters, acts, declarations and laws have been made throughout the ages in the development of human rights.
[1] In the thirteenth century the famous Magna Carta of 1215 was adopted to limit the power of the British Kings and to give some redress for injuries to individuals. John Lock’s ‘Social Contract’ theory further developed the concept of human rights. The American Declaration of Independence, 1776 and the Constitution of the United States, 1789 instituted bill of rights for the people of America. The French Declaration of 1789 promoted the human rights institutions.[2] The blatant violation of human rights during the World War II shocked the conscience of the international community and they felt to make framework for human rights which should be protected in a world of moral order. After the World War ΙΙ the United Nations was established in 1945 and UN Charter[3] was adopted. In the preamble of the UN Charter international community reaffirmed their faith in fundamental human rights. The first formal international bill of rights was adopted in 1948 known as the Universal Declaration of Human Rights (UDHR)[4] and it laid a foundation for human rights.[5] In 1966 the International Covenant on Civil and Political Rights (ICCPR)[6] and the International Covenant on Social, Political and Cultural Rights (ICESCR)[7] were adopted to implement the provisions of the UN Charter and the UDHR. They contain precise and universal rights.[8] Some regional instruments were also adopted for the protection and promotion of human rights.        

 4289744All human rights are designed for the betterment of mankind and to achieve those rights the international community is determined to act together. But for a long time a debate is going on in the international human rights arena as to whether all human rights are on the same footing or some rights are more important than others and there should be a hierarchy in international human rights. Some argue that there is no scope for hierarchy in international human rights law. They plead that all the human rights are closely connected with one another and the realization of one is not possible without the other. Common understanding of human rights is undermined because of the notion of hierarchy.[9] Conversely, some argue that some human rights take precedence over others given their nature and importance in life. It is argued that some rights are non-derogable because of their normative specificity and status and these rights are often regarded as core human rights, jus cogens and obligations erga omnes.[10]

This article aims to discuss that though in theory rights are put on the same footing, in practice some rights are more important than others and in international human rights law there is a place for a hierarchy of rights. Some rights are more important than others because of their importance in life and they cannot be taken away by the state and often placed in the fundamental law of the country.[11] Realistic approach leads to the fact that all human rights are not on the same footing and it is not possible for a country to give same importance to all human rights equally. The article also examines as to why there is a place for hierarchy in international human rights taking right to life as an example specifically referring to Bangladesh.

       II   Are Some Rights More Important Than Others?

Considerable debates go on as to whether some rights are more important than others. The first world conference on human rights in Tehran (1968) proclaimed that ‘human rights and fundamental freedoms are indivisible.’[12] The ICCPR and the ICESCR recognized the importance of their counterpart in their preamble. It is claimed that the realization of each human right requires other human rights. This notion has taken a firm root in the paragraph 5 of the Vienna Declaration and Programme of Action (1993)[13] adopted at the Second World Conference on Human Rights.[14]

But in fact, some rights take priority over others because of their nature and necessity in life. The international community actually realized it at the time of framing of the Covenants.  The rights described in the ICCPR gain more importance than those described in the ICESCR. This is easily understandable from the wording of articles 2(1) of the Covenants. The said article of the ICCPR cast specific obligations upon the states by providing that each state party undertakes to respect and to ensure to all individuals within its territory the rights recognized in the Covenant. While article 2(1) of the ICESCR imposes less obligations upon the state parties by prescribing that each party undertakes to take steps through individual and international co-operation particularly economic and technical, to the maximum of its available resources for the full realization of the rights recognized  therein. The ICESCR does not mention territory or jurisdiction while the ICCPR emphasized on territorial jurisdiction.[15] It is also easily discernible that the rights described in the ICCPR are immediate while the rights contained in the ICESCR are progressive, the former are non-political, cost-free, non-ideological, precise, justiciable and real while the latter are political, resource-intensive, political, vague, non-justiciable and aspirational.[16] So, though it is argued that human rights are indivisible, yet in practice it does not hold water. Doctrine of indivisibility is devoid of reality.

     A      Doctrine of Indivisibility and Its Justiciability

Doctrine of indivisibility refers to the fact that specific human rights cannot take precedence over others and all human rights hold the same standing. Therefore, they are indivisible, interdependent and interrelated. Some people relying on this doctrine argue that no particular human right can be achieved without realizing other rights.[17] The indivisibility of human rights was first supported both by the General Assembly and by the office of the High Commissioner for Human Rights. This doctrine was first uttered in the 1968 Proclamation of Tehran. Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible’.[18] The indivisibility thesis was reaffirmed in the Vienna Declaration that, ‘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.’[19] The purpose of these resolutions was to promote the economic and social rights.[20]

The doctrine of indivisibility is practically impossible because the developing countries do not have sufficient resources to implement all the socio-economic rights. There might be some relations between the rights which may be useful but cannot be indispensible.[21] In General Comment No.3,[22] the Committee on Economic, Social and Cultural Rights reaffirms the interdependence and indivisibility of human rights on the one hand, while, on the other, it emphasized on the minimum core obligations such as the supply of essential foodstuffs. The distinction brings about that the concept of indivisibility is not virtually possible.[23] It is not necessarily essential that a person in order to enjoy the freedom from torture should also enjoy the right to work.

             JUSTICEIII      Hierarchy in Human Rights

    A      Is There a Place in International Human Rights Law for a Hierarchy of Rights?

As described above considerable debates are going on touching the issue as to whether there is a place in international human rights law for a hierarchy of rights. Some argue that there is no scope for hierarchy in international human rights. They plead that all the human rights are closely connected with one another and the realization of one is not possible without the other. Categorization of human rights tends to compartmentalise human rights denying the notion of indivisibility, universality and interdependence of human rights. Universality of human rights contemplates that all human rights apply uniformly with same force throughout the world. Full, meaningful and effective enjoyment of a particular right is dependent on the possession of all other rights. All human rights bear the same basic characteristics.[24] Common understanding of human rights is undermined because of the notion of hierarchy.[25] On the other hand, some argue that there is a place for hierarchy of rights in international human rights. Some human rights are graded in the top given their nature and importance in life. It is contended that some rights are non-derogable because of their normative specificity and status and these rights are often regarded as core human rights, jus cogens and obligations erga omnes.[26]

There is a place for hierarchy in international human rights law. The Vienna Convention on the Law of Treaty provides the scope of reservation which gives a state party an opportunity not to take certain responsibility. [27] Hence, all the rights included in a treaty may not bear same importance.[28] Hierarchy of rights is established having reference to those rights whose violation is treated as an international crime. For example genocide and apartheid are expressly called international crime. War crimes are also designed by the Geneva Conventions of 1949 and Protocols of 1977 [29] as grave and serious offence.[30] Hierarchy of international human rights is also found in that some rights are made absolute in the instruments and they are applicable without any limitation clauses and without the scope of reservation, derogation or denunciation creating fundamental standards of humanity.[31] Article 4 of the ICCPR, article 27 of the American Convention on Human Rights (ACHR)[32] and article 15 of the European Convention of Human Rights and Fundamental Freedoms (ECHR)[33] allow state parties to derogate from certain rights in case of emergency. Existence of the notion of hierarchy is also found in the Inter-American Commission on Human Rights which permits suspension of derogable rights to protect non-derogable ones.[34] Right to life, right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment; right to be free from slavery; and right to be free from ex post facto criminal laws are commonly found as non-derogable in the above mentioned three instruments.[35] So, from the careful perusal of the international and regional human rights instruments it appears that four non-derogable rights mentioned above take priority over other human rights.

Hierarchy of human rights is also seen from the attitude of the human rights organizations. For example Amnesty International[36] looks only at torture and incarceration for the exercise of rights.[37] Human Rights Watch[38] pays attention to the first generation rights as in its opinion only these rights gains broad consensus.[39] Civil and political rights attract focus over other rights as it would be difficult to look after the violations of other rights unlike the former one. Bedsides, first generation rights can be expressed with an infinite opportunity unlike second generation rights.[40]

Existence of hierarchy of human rights can also be assumed from the fact that in different international human rights instruments different terms have been used to mean human rights. For example the term ‘human rights’, ‘freedoms’, fundamental human rights’, ‘fundamental freedoms’, ‘rights and freedoms’, and ‘human rights and fundamental freedoms’ are used  in UN human rights instruments.[41]  Understandably, using of different terms for human rights indicate that all rights do not bear same importance. The Human Rights Committee said in its General Comment No. 24 regarding reservations to non-derogable rights that it would be incompatible with the obligations of the states.[42] The Inter- American Court has also said that reservation concerning non-derogable fundamental rights is incompatible with the object of the Convention and resultantly not permitted by it.[43] Therefore, non-derogable rights come close to being absolute and can be treated as hierarchically pinnacle.[44] International Human Rights Tribunal also espouses some notion of hierarchy. The European Court of Human Rights has emphasized the absolute character of the prohibition against torture.[45]

          B      Jus Cogens and Its Scope in Human Rights Norms

Jus Cogens literally means cogent law. It refers to those norms that are relatively indelible. It is also described as imperative.[46] It is a peremptory norm of international law accepted and recognized by the international community as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.[47] This principle gets its recognition in article 53 of the Vienna Convention on the Law of Treaties, 1969.[48] Article 53 reads that ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law….’ So, the requirements of jus cogens is that first, it is a general international law, secondly, it is a norm accepted and recognized by the international community of states, thirdly, it is no-derogable in nature, fourthly, it can be modified only by a later norm having the same character.[49] Jus cogens and non-derogable rights refer to the same term ‘no derogation’. They prevail over the remaining parts.[50]

The ICCPR[51], the ECHR[52] and the ACHR[53] list a group of rights from which state parties can never derogate even at the time of emergency. But the list of non-derogable rights is not same in all the human rights instruments. Some common non-derogable rights are found in all the instruments. Hence, human rights which are common to all cultures can be treated as jus cogens. Therefore, not all human rights can obtain jus cogens status, because some human rights lack consensus as a result of cultural diversity.[54] Four human rights described earlier are non-derogable in all cultures and the enjoy the status of jus cogens.

            C     Obligation Erga Omnes and Human Rights

The term erga omnes literally means ‘towards all’. All rules of customary international law are erga omnes since these are applicable to all states.[55] This principle emerged from the paragraphs 33 and 34 of the judgment in the Barcelona Traction case.[56] The judgment quoted by the international lawyers, acknowledged the concept of obligations erga omnes. These obligations include ‘the principles and rules concerning basic rights of the human person including protection from slavery and racial discrimination’.[57] The term ‘basic’ used here refers to the existence of hierarchy in international human rights. Hence, Barcelona Traction case is the first case acknowledging the emerging hierarchy in international human rights norms. In this case three human rights were specifically mentioned namely, protection from genocide, slavery and racial discrimination.[58]

                D    Hierarchy in Human Rights: Should it Be Discarded?

Fight was indispensable for obtaining each and every human right and it was a victory against suppression of freedom and unequal treatment. It is pleaded that each and every human right has got same importance. So, it is not expedient to make hierarchical distinctions between the rights. The danger in making ranking among the rights is that states would cash in on it by caring some rights while others will be neglected.[59] It is also argued that though some human rights are non-derogable, yet they do not indicate that they are superior to others since they may still be restricted as in normal circumstances according to the principles of proportionality.[60] Consequence of peremptory norms of human rights will be that it will undermine opposing treaty obligations. Furthermore, a genuine hierarchy of human rights will open up the door of superiority and inferiority, some rights are superior and some are inferior. Thus, it is contended that the common goal of achieving human rights and human dignity will be inhibited.[61]

Despite these arguments it is practically impossible to put all human rights on the same footing. Some rights are put in the top list of human rights because of their importance in life and they cannot be taken away by the state and often placed in the fundamental law of the country.[62] For example civil and political rights are considered more important than socio-economic rights as they form critical basis for promoting human rights.[63] Again among the civil and political rights there are some rights which are non-derogable and cannot be suspended even at the time of state emergency given their nature. Right to life and right to housing cannot be treated equally. Where a person is on the verge of being deprived of his life, right to housing is meaningless to him. Again a person who is put under continuous physical torture, right to take part in cultural life does not bear any significance for him. The realistic approach leads to the fact that all the human rights are not on the same footing and it is not possible for a country to give same importance to all human rights equally. The fact is evident from the constitution of different countries where some human rights are placed in the constitution as fundamental human rights and they are judicially enforceable while some rights are dubbed as fundamental principles of state policy or directive principles or policy and they are not judicially enforceable. The socio-economic condition of a country makes it impossible to treat all the human rights in the same way. Limited resources stand on the way of implementing all human rights at the same time without making any distinction.

Now I would like to pick up a right as an example to substantiate that this specific right takes precedence over the remaining rights and it brings about the notion of hierarchy in human rights.

             0a0af691fe212e11fe9da5cb5a564f92 IV   Right to Life: An Important Human Right

Among all human rights right to life is the most important one. This right is a sine quo non   for the survival of human being.  The UDHR and the American Declaration of the Rights and Duties of Man, 1948 (ADRM)[64] are the first international instruments recognizing a right to life. But the ECHR, 1950, is the first document which sought collective means of enforcement of right to life.[65] The Human Rights Committee prioritizing the right to life over other rights has said that it is ‘the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation’.[66]

        A         Why Does Right to Life Get Priority over Other Rights?

The right to life is a fundamental right to any society, irrespective of its degree of development or the type of culture which characterizes it. The preservation of this right is one of the most important functions of the State. Right to life is the most fundamental of all human rights. It has been protected by all international and regional human rights instruments.[67] It has been clearly stated in article 6(1) of the ICCPR [68] that ‘every human being has the inherent right to life. This right shall be protected by law’. Article 3 of the UDHR[69] has proclaimed this right to life in the terms that ‘No one shall be arbitrarily deprived of life.’ This right has been declared as the supreme right by the Human Rights Committee and no derogation is permissible from it.[70]. Article 2 of the European Convention on Human Rights (ECHR)[71], article 4 of the American Convention on Human Rights (ACHR)[72], article 4 of the African Charter on Human and People’s Rights (AFCHR)[73] have unequivocally declared the right  to life as the most important of all human rights. The reason for prioritizing this right among others is obvious. The existence of other rights cannot be thought of without this right to life.[74] The right to life is the source of all other rights.[75] Life is in the centre of all rights which is unalienable. All rights and laws move around this right.[76]

               B       Death Penalty: Does it Infringe Right to Life?

Article 6(1) of the ICCPR provides that ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of life’. Article 6(2) prescribes that sentence of death may be imposed only for the most serious crimes in accordance with law. So, from the wording of the ICCPR it is clear that right to life is not absolute and death penalty is permissible under the international human rights.

Every death will not necessarily be a violation of right to life. The right to life is violated when the deprivation thereof is arbitrary. For example a killing by a state’s armed forces during a war is not arbitrary. Likewise killing for saving another life is not arbitrary. On the contrary, extra-judicial killings and forced disappearance are clear violation of right to life.[77]  In order to determine the arbitrariness particular facts and circumstances must be taken into account. Thus, it was held by the Human Rights Committee in the Guerrero case[78] that the killing of seven persons by the Colombian police was arbitrary as the killing was not proportionate to the circumstances.[79] Under Article 6 of the ICCPR death penalty shall not apply for pregnant women and persons under 18 years. The Human Rights Committee is intended to say that death penalty may be attracted only in case of intentional killings or attempted killings and may be the intentional infliction of grievous bodily harm.[80] Hence, death penalty does not infringe right to life, but it is desirable that it should be imposed only in case of intentional killing and caution should be taken in doing it.

           C          Should Death Penalty Be Continued or Abolished?

It is a debatable issue as to whether death penalty should be abolished or left to continue. Some argue that it should be abolished as it is another intentional killing by the state with cool head which is barbaric and against civility.[81] Violence should not be responded with violence. Through capital punishment there is a real danger of executing an innocent person.[82]  Conversely, some argue that death penalty should continue. Retribution, deterrence, incapacitation and social order are the major reasons for death penalty. Through punishment an offender can atone for the harm done. They argue that execution of the murderer will refrain others from committing this heinous crime. Death penalty is the ultimate form of curtailment to keep offenders from reoffending. It is further contended that death penalty is an effective tool to control law and order of the society.[83] Finally it is pleaded that nothing but death penalty is appropriate for heinous and reprehensible murders.[84]  Capital punishment is appropriate for intentional and premeditated killing. When an individual kills another human being with cool headed plan that individual ceases the right to living.[85] Well-crafted and well-administered capital punishment is supportive and not unconstitutional.[86] Death penalty can be inflicted upon those who are habitual and hardened killer. But it should not be imposed upon the person who is not a habitual murderer and who committed the murder on the spur of moment. But the method of execution should be such that it gives less pain to the executee and not barbaric.

          D    Abortion and Euthanasia: Whether Violative of Right to Life?

Whether abortion violates the right to life is a complicated issue in international human rights law. In the case of abortion, the key definitional issues in terms of life include the definition of life itself, when life is to begin- whether from the moment of conception or from the moment of birth, or some interim phase of gestation. The UDHR suggests that human rights begin at birth.[87] In case of abortion, the Human Rights Committee tends to give importance to the health of the mother which should be prime consideration.[88] In its 2007 Concluding Observation on Chile, the Human Rights Committee emphasized its concern about Chile’s restrictive abortion laws and suggested to amend it to help women avoid unexpected pregnancies.[89]  In case of euthanasia (right to voluntary die) the Human Rights Committee did not make any express comment but it did express serious concern about the degree of oversight to be exercised by the Dutch Authorities (who legalized the right of euthanasia) to ensure that the conditions for lawful euthanasia were met.[90] Euthanasia of a patient who suffers from unbearable pains with no remedy may wish to die and it does not violate the right to life. But very high standard of vigilance is required.[91]

                  E       Right to Life and Social Protection

Right to life does not impose only negative restriction but it also cast positive obligations upon the states. The Human Rights Committee in its General Comment No. 6 on the right to life emphasized to take necessary steps to reduce child mortality and to increase life expectancy. It especially gave importance for the adoption of measures to eliminate malnutrition.[92] The right to development is linked to the right to life by the Human Rights Committee. It has observed that human person is the central of development.[93] The right to life is also related to the right to health, adequate food and water. States are obliged to ensure these rights for the better enjoyment of life. As the implementation of these rights is dependent on the availability of resources so these rights cannot be claimed as of rights.[94] But states should strive to provide all necessary supports to better enjoy right to life.

Right to life is also linked to the environmental protection. The Human Rights Committee though declined to hear the case of EHP v Canada[95] for non-exhaustion of domestic remedies observed that the communication is concerned with serious issue in regard to state obligation to protect human life. Thus, the Committee impliedly recognizes the environmental effect on human lives. The relation between environmental protection, development and the impact on the right to life was declared by the Vice-President Weeramantry of the International Court of Justice in his dissenting opinion in the Gabcikovo-Nagymoros Project case[96] that damage to environment can undermine all human rights.

                         F        Right to Life in Bangladesh

Right to life has been guaranteed by the Constitution of the People’s Republic of Bangladesh and it has been placed in part III of the constitution as a fundamental right. Article 32 has clearly stated that ‘No person shall be deprived of life or personal liberty save in accordance with law’.[97] Article 26 of the Constitution further strengthens the right to life by providing that ‘all existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution’ meaning that the state shall not make laws violating the right to life. Again the constitution has conferred the right upon the citizen to move the High Court Division to enforce this right to life.[98] The High Court Division on the application of any aggrieved person may pass any order directing the Government to do certain things or refrain from doing in furtherance of guaranteeing this right.[99] In order to ensure this right to life the law of Bangladesh permits even to cause the death of other. For example, section 100 of the Penal Code, 1860 lays down that right to private defence may extend to the voluntary causing of death of any other harm to the assailant if the assault made cause the apprehension that death will otherwise be the consequence.[100] The constitution of Bangladesh though permits the limitation on the right to life in accordance with law, it is designed to protect and promote the right of life. If a person is deprived of life because of killing other it in fact, secures the life of others.

Though in Bangladesh recently extra-judicial killings have increased the Supreme Court is playing an important role in stopping this trend. The High Court Division of the Supreme Court of Bangladesh has frequently issued suo moto rule directing the Government to stop this illegal practice and honor the dignity of human being. On 17th November 2009, a Division Bench of the High Court Division passed a suo moto  Rule regarding the killing of Lutfor Khalashi and Khalilur  Khalashi asking as to why appropriate action should not be taken against Major Kazi Wahiduzzaman and Lieutenant Hasan and their companion for the liability of killing those people.[101] Furthermore, the civil society and different human rights NGOs work in the promotion of right to life in Bangladesh. Bangladesh goes further to ensure the right to life treating it to be the most important right that anyone killing other intentionally so as to deprive him of his life shall be liable to be awarded with death penalty.[102]

The enforced disappearances currently occurring in Bangladesh is strictly dealt with by the Higher Judiciary of the country. The most recent enforced disappearance of Elias Ali, secretary of Sylhet Division of the opposition Bangladesh Nationalist Party (BNP) prompted the highest court of the country to issue a rule against the concerned authority to find him and keep updating the Court every 48 hours.[103] Besides, to secure the right to life Bangladesh has enacted certain laws such as Nari-O-ShishuNirjatan Daman Ain,2000;(Women and Children Oppression ( Prevention) Act,2000), Acid Crime Control Act, 2002, The Speedy  Tribunal Act, 2002, Anti-terrorism Act, 2009.

The Higher Judiciary of Bangladesh has extended the meaning of right to life to include protection and preservation of ecology and right to have pollution free environment. In a  celebrated case popularly known as FAP case (Environmental Case)( Flood Action Plan) the Appellate Division held that article 31 and 32 of the Constitution of Bangladesh encompass within its  ambit  the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life can hardly be  enjoyed. Any act or omission contrary thereto would be violative of the said right to life.[104] The High Court Division of the Supreme Court of Bangladesh has also asserted the right to life by saying that right to life includes the enjoyment of pollution free water and air, improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent with human dignity.[105]

Under the Penal Code, 1860 death penalty can be awarded for seven crimes such as, waging war against Bangladesh, abetting mutiny actually committed, giving false evidence resulting in an innocent person, abetment of suicide of a child or insane person, murder by a life convict and dacoity with murder ( s 121, 132, 194,302, 305, 307, 396). Besides, death penalty can be awarded under the Official Secretes Act, 1971, Special Powers Act, 1974; Women and Children Oppression (Prevention) Act, 2000, Acid Control Act, 2002, Narcotics  Control Act, 1990 the Speedy Trial Tribunal Act, 2002.While it is supportive that in case of intentional killing death penalty be imposed but in other cases death penalty should be avoided. Bangladesh should reconsider its position regarding death penalty in cases other than intentional murder. In Bangladesh right to life cannot be suspended even at the time of emergency.[106]

                         illustration  V       Conclusion

The international community had to fight to establish fundamental human rights, human dignity and freedom. Though some argue that all human rights are on the same footing and they are indivisible, universal and interdependent,[107] yet in practice we see different scenario. Some rights are always important than others.[108] Wording in the different conventions such as the ICCPR and the ICESCR make it clear that there is a place for hierarchy in international human rights law.[109] Regional conventions have also provided the scope for hierarchy in human rights as have been examined in the discussions. Sometimes Courts have also recognized the concept of hierarchy in human rights. In fact, hierarchy becomes inevitable due to the inherent characteristics of some rights, for example, right to life from which other rights emanate. The constitution of different countries have prioritized some rights over others and given them separate place therein. Prioritized rights are judicially enforceable while others are not. Right to life and right not to be tortured, for example, cannot be on the same footing with the right to work. A person who is at the risk of being deprived of life and who is put under the continuous physical torture, to him right to work or freedom of association or freedom of speech is meaningless. So, hierarchy in human rights comes up automatically. But on the plea of hierarchy of human rights, other rights should not be neglected. Given the socio-economic condition of each and every state it is neither possible nor practicable that all human rights should be given same priority and importance. But there should be a concerted effort to implement all human rights for the advancement of human lives and dignity.

   

BIBLIOGRAPHY

 

A   Articles/Books/Reports

Egbert, Lawrence, ‘Human Rights: A Background Sketch and Where to Find More on the Subject’ (1971) 2 California Western International Law Journal 52

Farer, Tom, ‘Conference on Human Rights, Public Finance, and the Development Process, The Hierarchy of Human Rights’ (1992-1993) 8 The American University Journal of International Law and Policy 117

Khondaker,  Mahfuzul, Eric G. Lambert and Shanhe Jiang, ‘Death Penalty Views in Bangladesh: An Exploratory Study of Capital Punishment Views Among Bangladeshi College Students’  (2011) 35 International Journal of Comparative and Applied Criminal Justice 128

Klein, Eckart, ‘Establishing a Hierarchy of Human Rights: Ideal Solution or Fallacy?’ (2008) 41 Israel Law Review 480

Koch, Ida, ‘The Justiciability of Indivisible Rights’ (2003) 72 Nordic Journal of International Law 5

Koji, Teraya, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights’ (2001) 12 European Journal of International Law 920

McConnel, Paul, ‘The Unalienable Right to Life’ (1990) 8 Journal of Christian Jurisprudence 57

Meron, Theodor, ‘On a Hierarchy of Human Rights’ (1986) 80 The American Journal of International Law 5

Mubangizi, John, ‘Towards a New Approach to the Classification of Human Rights With Specific Reference to the African Context’ (2004) 4 African Human Rights Law Journal 94

Nickel, James, ‘Rethinking Indivisibility: Towards A Theory of Supporting Relations Between Human Rights’ (2008) 30 Human Rights Quarterly 992

Shelton, Dinah, ‘Hierarchy of Norms and Human Rights: Of Trumps and Winners’ (2002) 65 Saskatchewan Law Review 301

Stovall, Carla and Margaret M. Henson, ‘In Support of Death Penalty’ (1994-1995) 4 Kansas Journal of Law & Public Policy, 49

Wicks, Elizabeth, ‘The Meaning of ‘Life’: Dignity and the Right to Life in International Human Rights Treaties’ (2012) 12 Human Rights Law Review 201

Wuerffel, Kristin, ‘Discriminating Among Rights?: A Nation’s Legislating a Hierarchy of Human Rights in the Context of International Human Rights Customary Law’(1998) 33 Valparaiso University Law Review 370-372

Henkin, Louis, Gerald L. Neuman, Diane F.Orentlicher and David W. Leebron, Human Rights,  (Foundation Press, New York, 1999)

Joseph, S,  J Schultz and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary  (Oxford University Press, Oxford,  2nd ed, 2004)

Kapoor, Dr.S.K,  International Law and Human Rights (Central Law Agency, 15th  ed,  2004)

McBeth, Adam, Justine Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, Melbourne, Australia, 2011)

Rehman, Javaid, International Human Rights Law (Pearson Education Limited, 2003)

Seiderman, Ian, Hierarchy in International Law: The Human Rights Dimension (Intersentia- Hart, Antwerpen-Groninggen-Oxford, 2001)

Khan, Arafat, ‘Stop Judicial Killings: Respect and Establish an Effective Judiciary’, bangladesh legal aid and services trust (blast) (online), available at  http://www.blast.org.bd/news/news-reports/101-stopextrajudicialkillings, visited on 14 April 2013

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Cases

Barcelona Traction Light and Power Company Ltd (Belgium v Spain) (Judgment) [1970] ICJ

EHP v Canada, Human Rights Committee, Communication no 67/ 1980, 27 October 1982, paras 1.2-1.3

Case Concerning the Gabcikovo-Nagymoros Project (Hungary v Slovakia) [1997] ICJ Rep 7, cited in  McBeth, Nolan and Rice

Gregg v Georgia, 428 U.S. 153, 186-187, 195 (1976), quoted in Stovall and Henson

Karen Noelia Llantoy Huaman v Peru, Human Rights Committee, 3 November 2005, Communication No. 115/2003, UN doc no CCPR/C/85/D/1153/2003, paras 3.4, 3.6 and 6.2-6.4 

Mohi Uddin Farooque v Bangladesh and others (1996) 48 Dhaka LR 438 

  1. Farooque v Bangladesh and others (1997) 49 Dhaka LR (AD) 1, Para 101

Selmouni v France, European Court of Human Rights, Application No.25803/94, 28 July 1999, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58287#{%22itemid%22:[%22001-58287%22]}

 State v. Makwanyane, Constitutional Court of South Africa, 3 South African Law Reports 391(1995) 

Suarez De Guerrero v Colombia, Human Rights Committee, 1979, cited in McBeth, Nolan and Rice

C    Legislation

The Constitution of the People’s Republic of Bangladesh, 1972, available at www.legislativediv.gov.bd, visited on 24/03/2013)

The Penal Code, 1860 available at http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=3131// , visited on 14 April 2013

Treaties

African Charter on Human and People’s Rights, opened for signature 27 June 1981 (entered into force 21 October 1986) 

American Convention on Human Rights, opened for signature 22 November 1969 (entered into force 18 July 1978) 

American Declaration of the Rights and Duties of Man, signed and entered into force April 1948

Charter of the United Nations (UN Charter) 26 June 1945, entered into force 24 October 1945 

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature for signature 4 November 1950, ETS 5 (entered into force 3 September 1953)

Geneva Convention  for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950)

Geneva Convention  for the Amelioration of the Condition of  Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 8 (entered into force 21 October 1950) 

Geneva Convention Relative to the Protection of Civilians Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287(entered into force 21 October 1950)

Geneva Convention   Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) 

The International Covenant on Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

The International Covenant on Economic, Social and Cultural Rights (ICESCR), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) 

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Additional Protocol I) 

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II)

 Universal Declaration of Human Rights (UDHR), GA Res 217A (III), UN GAOR, 3rd sess, 183rd mtg, Preamble, UN Doc A/810 (1948)

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) 

World Conference on Human Rights, Vienna Declaration and Programme of Action, GA Res 421 (v),  UN Doc. A/CONF.157/23 (1993)

E   Other

CCPR General Comment No.6: The Right to Life (art 6 of the Covenant), 16th sess, (30 April 1982), available at: http://www.unhcr.org/refworld/docid/45388400a.html [visited on 13 April 2013]

CCPR General Comment No. 14: Nuclear Weapons and the right to Life (art 6 of the Covenant), ( 9 November 1984), available at: http://www.unhcr.org/refworld/docid/453883f911.html [accessed 13 April 2013]

CESCR General Comment No.3: The Nature of States Parties’ Obligations (art 2, para 2 of the International Covenant on Economic, Social and Cultural Rights)  UN Doc E/1991/23 ( 14 December 1990) para 8

Human Rights Committee, Concluding Observations on Chile, 18 May 2007, UN doc no CCPR/C/CHL/CO/5,  para 8

Human Rights Committee, CCPR General Comment No.24, Issues relating to the Reservations Made upon Ratification or Accession to the Covenant or Optional Protocols Thereto, or relation to Declarations under Article 41 of the Covenant,  04 November 1994, CCPR/C/21?Rev.1/Add. 6

Human Rights Committee, Concluding Observations on the Netherlands, 27 August 2001, UN doc no CCPR/CO/72/NET, para 5

Human Rights Committee, The Right to Development, GA Res 55/108, UN Doc A/RES/55/108 ( 13 March 2001) art 3(a)

International Conference on Human Rights, Tehran, 22 April-13 May 1968,U.N. Doc. A/CONF.32/41 art  3 (1968)

www.amnesty.org , www.hrw.org (visited on 13 April 2013)

Endnotes

[1] Lawrence G. Egbert, ‘Human Rights: A Background Sketch and Where to Find More on the Subject’ (1971) 2 California Western International Law Journal 52.

[2]  Ibid.

[3]  Charter of the United Nations (UN Charter) 26 June 1945, entered into force 24 October 1945.

[4]  Universal Declaration of Human Rights  (UDHR), GA Res 217A (III), UN GAOR, 3rdsess, 183rdmtg, Preamble, UN Doc A/810 (1948).

[5]  Egbert, above n  1.

[6]  The International Covenant on Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[7]  The International Covenant on Economic, Social and Cultural Rights ( ICESCR), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

[8]   Egbert, above n 1, 56.

[9]  Kristin Nadasdy  Wuerffel, ‘Discriminating Among Rights?: A Nation’s Legislating a Hierarchy of Human Rights     in the Context of International Human Rights Customary Law’ (1998) 33 Valparaiso University Law Review 370-372.

[10]  Teraya Koji, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights’ (2001) 12 European Journal of International Law  920.

[11]  John C Mubangizi, ‘Towards  a New Approach to the Classification of Human Rights With Specific Reference to the African Context’ (2004) 4 African Human Rights Law Journal 94.

[12]  International Conference on Human Rights, Tehran, 22 April-13 May 1968,U.N. Doc. A/CONF.32/41 art  3 (1968) (‘Tehran Conference’).

[13]  World Conference on Human Rights, Vienna Declaration and Programme of Action, GA Res 421 (v) , UN Doc. A/CONF.157/23 (1993) (‘Vienna Declaration’).

[14]  Koji, above n 10, 918.

[15]  Ibid.

[16]  Ida Elisabeth Koch, ‘The Justiciability of Indivisible Rights’ (2003) 72 Nordic Journal of International Law 5.

[17]  James W. Nickel, ‘Rethinking Indivisibility: Towards A Theory of Supporting Relations Between Human Rights’ (2008) 30 Human Rights Quarterly 992.

[18]  Tehran  Conference.

[19]  Vienna Declaration, 1993.

[20]  Nickel, above n 17, 985.

[21]  Ibid  989.

[22]  CESCR,General Comment No.3: The Nature of States Parties’ Obligations( art 2, para 2 of the International Covenant on Economic, Social and Cultural Rights)  UN Doc E/1991/23 (14 December 1990) para 8.

[23]  Koji, above n 10, 925.

[24]  Mubanjgiz,  above n 11, 97.

[25]  Wuerffel, above n  9, 371.

[26]  Koji, above n 10.

[27] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 19 (‘Vienna Declaration).

[28]  Dinah Shelton, ‘Hierarchy of Norms and Human Rights: Of Trumps and Winners’ (2002) 65 Saskatchewan Law Review 301.

[29]  Geneva Convention  for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention  for the Amelioration of the Condition of  Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 ( entered into force 21 October 1950) ; Geneva Convention   Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention  Relative to the Protection of Civilians Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287(entered into force 21 October 1950).Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Additional Protocol  I), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II)

[30]  Shelton, above n 28, 312.

[31]  Ibid  313.

[32]  American Convention on Human Rights, opened for signature 22 November 1969 (entered into force 18 July 1978).

[33]  European Convention  for the Protection of Human Rights and Fundamental Freedoms, opened for signature for signature 4  November 1950, ETS 5 (entered into force 3 September 1953).

[34]  Shelton, above n 28, 313.

[35]  Ibid 313, 314.

[36]  <www.amnesty.org>, visited on 13 April 2013.

[37]  Tom Farer, ‘Conference on Human Rights, Public Finance, and the Development process, The Hierarchy of Human Rights’  (1992-1993)  8  The American  University  Journal of  International  Law and  Policy 117.

[38]  <www.hrw.org>, visited on 13 April 2013.

[39]  Farer, above n 37.

[40]  Ibid 118.

[41]  Theodor  Meron, ‘On a Hierarchy of Human Rights’ (1986) 80 The American Journal of International Law 5.

[42]   Human Rights Committee, CCPR General Comment No.24, Issues relating to the Reservations Made upon Ratification or Accession to the Covenant or Optional Protocols Thereto, or relation to Declarations under Article 41 of the Covenant,  04 November 1994, CCPR/C/21?Rev.1/Add. 6.

[43]  Shelton, above n 28, 315.

[44]  Ibid  316.

[45] Selmouni v France , (European Court of Human Rights, Application No.25803/94, 28 July 1999, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58287#{%22itemid%22:[%22001-58287%22]}.

[46]  Ian  D. Seiderman, Hierarchy in International Law: The Human Rights Dimension (Intersentia- Hart, Antwerpen-Groninggen-Oxford, 2001) 35.

[47]  Dr.S.K. Kapoor, ‘ International Law and Human Rights (Central Law Agency, 15th ed,  2004).462-463

[48]   Vienna convention, art  53.

[49]  Koji, above n  10, 928.

[50]  Ibid  927.

[51]  ICCPR, above n 6.

[52]  ECHR, above n 33.

[53]   ACHR, above n 32.

[54]  Koji, above n 10, 929.

[55]  Seiderman, above n 46,130.

[56]  Barcelona Traction Light and Power Company Ltd (Belgium v Spain), (Judgment) [1970] ICJ.

[57]  Koji, above n 10, 931.

[58]  Barcelona Traction Case, above n 56.

[59]  Eckart Klein, ‘Establishing a Hierarchy of Human Rights: Ideal Solution or Fallacy?’ (2008) 41 Israel Law Review 480.

[60]  Ibid 481.

[61]  Ibid 485.

[62]   Mubangizi , above n 11.

[63]  Javaid Rehman, International Human Rights Law ( Pearson Education Limited, 2003) 105.

[64]  American Declaration of the Rights and Duties of Man, signed and entered into force April 1948.

[65]  Elizabeth Wicks, ‘The Meaning of ‘Life’: Dignity and the Right to Life in International Human Rights Treaties’ (2012) 12 Human Rights Law Review 201.

[66]  CCPR General Comment No.6: The Right to Life, (art 6 of the Covenant), 16th sess, (30 April 1982), available at http://www.unhcr.org/refworld/docid/45388400a.html [visited on 13 April 2013].

[67] Rahman, above n 63, 68.

[68]  ICCPR, above n  6.

[69]  UDHR, above n  4.

[70]  CCPR General Comment No. 14: Nuclear Weapons and the Right to Life (art 6 of the Covenant),  ( 9 November 1984), available at: http://www.unhcr.org/refworld/docid/453883f911.html [visited on 13 April 2013].

[71]  ECHR, above n 33.

[72]  ACHR, above 32.

[73]  African Charter on Human and People’s Rights, opened for signature 27 June 1981 (entered into force 21 October 1986).

[74]  Louis Henkin, Gerald L. Neuman, Diane F.Orentlicher and David W. Leebron, Human Rights  (Foundation Press, New York, 1999) 886.

[75]   State v Makwanyane, Constitutional Court of  South Africa, 3 South African Law Reports 391(1995).

[76]  Paul  S. McConnel, ‘The Unalienable Right to Life’ (1990) 8 Journal of  Christian Jurisprudence 57.

[77]  Adam  McBeth, Justine Nolan and Simon Rice, The International Law of Human Rights  (Oxford University Press, Melbourne, Australia, 2011) 122.

[78]  Suarez De Guerrero v Colombia , Human Rights Committee, 1979, cited in McBeth, Nolan and Rice, Ibid.

[79]  McBeth, Nolan and Rice, above n 77, 124.

[80]  S Joseph, J Schultz and  M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary  (Oxford University Press, Oxford,  2nd ed, 2004) 167.

[81]  Carla J. Stovall and  Margaret M. Henson, ‘In Support of Death Penalty’ (1994-1995) 4 Kansas Journal of Law and Public Policy 49.

[82]  Mahfuzul I. Khondaker, Eric G. Lambert and Shanhe Jiang, ‘ Death Penalty Views in Bangladesh: An Exploratory Study of Capital Punishment  Views Among Bangladeshi College Students’  ( 2011) 35 International Journal of Comparative and Applied Criminal Justice 128.

[83]  Ibid 127-128.

[84]   Stovall and  Henson, above n 81, 47.

[85]  Ibid 48.

[86]  Gregg v Georgia, 428 U.S. 153, 186-187, 195 (1976), quoted in Stovall and Henson, above n 81.

[87]  McBeth, Nolan and Rice, above n 77, 128.

[88]  Karen Noelia Llantoy Huaman v Peru, Human Rights Committee, 3 November 2005, Communication No. 115/2003, UN doc no CCPR/C/85/D/1153/2003, paras 3.4, 3.6 and 6.2-6.4.

[89]  Human Rights Committee, Concluding Observations on Chile, 18 May 2007, UN doc no CCPR/C/CHL/CO/5 para 8.

[90]  Human Rights Committee, Concluding Observations on the Netherlands, 27 August 2001, UN doc no CCPR/CO/72/NET, para 5

[91]  McBeth, Nolan and Rice, above n 77, 130.

[92]  CCPR General Comment No.6, above n 66.

[93]  Human Rights Committee, The Right to Development, GA Res 55/108, UN Doc A/RES/55/108 ( 13 March 2001) art 3(a).

[94]  McBeth, Nolan and Rice, above n 77, 130.

[95]  EHP v Canada,  Human Rights Committee, Communication no 67/ 1980, 27 October 1982, paras 1.2-1.3.

[96]  Case Concerning the Gabcikovo-Nagymoros Project ( Hungary v Slovakia),[1997] ICJ Rep 7, cited in  McBeth, Nolan and Rice, above n 77, 131.

[97]  The Constitution of the People’s Republic of Bangladesh, 1972, available at www.legislativediv.gov.bd, visited on 24 March 2013).

[98]  Ibid art  44.

[99]  Ibid  art  102.

[100]  The Penal Code, 1860 s 100 (when the right of private defence of the body extends to causing death) , available at  http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=2776,  visited on 14  April 2013.

[101]  Arafat Hosen Khan, ‘Stop Judicial Killings: Respect and Establish an Effective Judiciary’, bangladesh legal aid and services trust (blast) (online), available at http://www.blast.org.bd/news/news-reports/101-stopextrajudicialkillings, visited on 14 April 2013.

[102]  The Penal Code,1860 s 302 (Punishment for murder), available at http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=3131// , visited on 14 April 2013.

[103]    Bangladesh: Disappearance will never stop unless impunity is ended, (20 April 2012), available at http://www.humanrights.asia/news/ahrc-news/AHRC-STM-094-2012/?searchterm=  visited on 14 April 2013.

[104]  M.Farooque v Bangladesh and others (1997) 49 Dhaka LR (AD) 1, Para 101.

[105] MohiUddinFarooque v Bangladesh and others  (1996) 48 Dhaka LR  438.

[106]  The Constitution of  The People’s Republic of Bangladesh, above n 97, art 141B.

[107]  Koji, above n 10, 918.

[108]  Shelton, above n 28, 313-314.

[109]  Ibid Koch, above n 16.

 

 

Author’s Bio

Mr Mohammad Sohidul Islam completed masters in ‘Human Rights Law and Policy’ from the University of New South Wales (UNSW), Australia in 2013 with commendable distinction grade. He completed Bachelor of Laws (LL.B) and Master of Laws (LL.M) from the University of Dhaka. He conducted research on juvenile justice of New South Wales, Australia in association with the National Children’s and Youth Law Centre (NCYLC), Sydney, Australia. Mr Islam attended the 11th IUCN Academy of Environmental Law Colloquium at the University of Waikato, Hamilton, New Zealand in June 2013. He also participated in the workshop titled ‘Western Media Representations of Criminal Justice in Asian Countries’ held at Melbourne Law School in November 2013. Mr Islam joined the Bangladesh Judicial Service on 22nd May 2008. He is currently working as a ‘Senior Judicial Magistrate’ in Chittagong. Prior to joining this service he worked as a lecturer of law at the University of Asia Pacific (UAP), Dhaka. At that time he also practiced civil and criminal law at District and Sessions Court, Dhaka. He is currently working as the honorary joint executive editor of BDLR.

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[The author of this article conveys unconditional gratitude to Naurin Aktar Kankon and Kawsar Mahmood of BDLR editorial panel for rendering the unparalleled service of  editing of an earlier version of this article.]

 

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