I Book Review: Hierarchy in International Law, the Human Rights Dimension
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| DOI | http://doi.org/10.1177/016934410502300210 |
| Subject Matter | Part C: DocumentationI Book Review |
I BOOK REVIEWS
Ian D. Seiderman,
Hierarchy in International Law, The Human Rights
Dimension
, Intersentia, Antwerp, 2001, xiii + 335 p., ISBN 90-5095-165-1*
In his book the author wishes to examine the existing hierarchy in the field of
international human rights law. As such, this is already an intriguing point of
departure, since most human rights advocates do not favour hierarchy in human
rights. According to them, the human rights regime is indivisible and a hierarchy in
human rights risks introducing a distinction between important human rights and
less important human rights. Apart from this argument, one can wonder if there can
be any sort of hierarchy at all in international law due to the horizontal character of
the international community. The author is however correct to start an inquiry in
this field of international law. In his view, actors in international law tend to react
more swiftly against violations of certain human rights, paying less attention to other
human right violations. Although one might regret this, it is indeed true: the
international community is for instance more likely to react in cases of widespread
torture than in the case of the denial of freedom of religion. Furthermore, the
author points out that hierarchy in human rights does not entail that not all human
rights are binding, only some human rights are considered more binding than
others because of political, moral, legal or other reasons. The book is also worth
reading because of its approach of hierarchy from different perspectives: the author
clearly had the intention to conduct an in-depth study in its subject in order to
construct a hierarchy in human rights law going beyond the traditional approach of
establishing hierarchy in international law, namely jus cogens. The book also
scrutinises other possible normative categories, in particular non-derogable human
rights, obligations erga omnes, international crimes of States, international criminal
responsibility of individuals and international civil responsibility.
The book is also theoretically well underpinned and offers in a distinct chapter a
fresh and original look at the theory of obligation in international law.
Consequently, the author does not depart from the traditional formal sources of
international law enumerated in Article 38 of the Statute of the International Court
of Justice, but starts at the conundrum of the nature and basis of obligation. The
concept of obligation is essential since its presence makes a rule binding and the
author accurately defines it as a condition necessary to turn formal sources of law
operative and effective. The traditional positivistic explanation, namely the consent
to be bound by a rule is not sufficient anymore. Firstly, this explanation ignores the
fact that obligation precedes the consent to be bound. Indeed, the author questions
what constitutes the basis of consent as the ground of all obligations, a question
which cannot be answered easily. Or in other terms what is the obligation which
determines that consent is necessary to be bound? Secondly, the author
convincingly argues that consent is not always required, as is demonstrated by the
obligation of new States to accept all existing rules of customary international law,
PART C: DOCUMENTATION
Netherlands Quarterly of Human Rights, Vol. 23/2, 303-322, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 303
* Sten I. Verhoeven, Assistant and Ph.D. candidate, Institute for International Law, Catholic
University of Louvain, Belgium.
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