The preamble to the Universal Declaration of Human Rights adopted on 10 December 1948 emphasizes that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.[i] From that moment, which marked the beginning of the development of modern international human rights law, it was widely accepted that human rights are inherent (not granted by any person or authority), fundamental (without them the life and dignity of every human being would be meaningless), inalienable (cannot be rightfully taken away nor denied), indivisible (cannot be divided), universal (they apply irrespective of one’s origin, status, colour, sex or any other personal trait) and interdependent (the fulfilment or exercise of one human right depends on the realization of the other).[ii]
However, most of the international human rights treaties allow governments to temporarily derogate from the application of most human rights in the exceptional circumstance of a “state of emergency”.[iii] Moreover, the application of some human rights can be limited (not suspended) at all times in the pursuit of a legitimate aim, such as the protection of national security, public order or public morals and health, insofar as is considered necessary in a democratic society.[iv]
On the other hand, there are some human rights that cannot be derogated for any reason at any time, even during a declared state of emergency. Human rights treaties diverge notably with respect to defining which human rights are non-derogable. The process of their determination has been a markedly progressive one, with each later drafted treaty expanding the list of non-derogable rights.
Since Universal Declaration of Human Rights has no article dealing with the derogation of human rights in state of emergency,[v] the analysis ought to begin with the European Convention on Human Rights, whose Article 15 provides that no derogation is allowed in respect of Article 2 (the right to life), Article 3 (prohibition of torture, or inhuman or degrading treatment or punishment), Article 4(1) (prohibition of slavery or servitude) or to Article 7 (prohibition of retrospective criminal law). Later, with the adoption of Protocol No. 7, the right not to be tried or punished twice (ne bis in idem) has been added to the non-derogable list of rights[vi] and Protocol No. 13 joined the abolition of the death penalty[vii]. This list, dating back to 1950, remains the shortest one. The explanation for this so-called “caution” of the authors of the Convention can be understood from the perspective of assumed scepticism of Member States that the longer list of non-derogable rights would most probably interfere with their sovereignty.
As far as International Covenant on Civil and Political Rights is concerned, no derogation is allowed from Article 6 (the right to life), Article 7 (prohibition of torture, or inhuman or degrading treatment or punishment), Article 8 (paras. 1 and 2) (prohibition of slavery or servitude), Article 11 (prohibition of imprisonment for inability to fulfil a contract), Article 15 (prohibition of retrospective criminal law), Article 16 (the right to juridical personality), Article 18 (freedom of thought, conscience and religion or belief) or Article 6 of the Second Optional Protocol to the International Covenant on Civil and Political Rights (the abolition of death penalty).[viii] It goes without saying that the Covenant has quite expanded the list. And the tendency continues.
The drafters of the American Convention on Human Rights, who began work in earnest in the 1960s, had the benefit of earlier-drafted human rights treaties and composed a rather different form of the derogation article, as compared to those in the European Convention and the Covenant.[ix] According to Article 27 of the American Convention on Human Rights, there shall be no suspension of the Article 3 (right to juridical personality), Article 4 (the right to life), Article 5 (the right to humane treatment), Article 6 (freedom from slavery), Article 9 (prohibition of retrospective criminal law), Article 12 (freedom of conscience and religion), Article 17 (rights of the family), Article 18 (right to a name), Article 19 (rights of the child), Article 20 (right to nationality) and Article 23 (right to participate in government) or of the judicial guarantees essential for the protection of such rights.[x]
Last but not least, African Charter on Human and Peoples’ Rights has no derogation clause.[xi] At the first glance, one could assume that all rights from the Charter are non-derogable and therefore absolute, especially bearing in mind horrifying history and disturbing events this region of the world once faced (or is still facing, some would argue). Yet, that would be a completely wrong assumption. The African Charter contains in its provisions many “claw- back” clauses, phrases which could effectively remove (or at least severely curtail) the rights ostensibly guaranteed, such as “except for reasons and conditions previously laid down by law”,[xii] “subject to law and order”[xiii] or “provided he abides by the law”[xiv]. These broad and undefined formulations are widely criticized, since they have reportedly had an enduring effect on the realization of human rights and are being manipulated by despotic African leaders to trample on human rights with a measure of immunity.[xv]
Finally, when it comes to the concept of absolute human rights, the term can sporadically be found not only in the academic literature, but also in international and national case-law, including the practice of the human rights monitory mechanisms of various international treaties (international courts and quasi-judicial bodies).
Nevertheless, there is no commonly accepted definition of the concept. Various authors have suggested different explanations of the notion.
For instance, according to one group of scholars, absolute human rights are those that can neither be limited nor derogated, regardless of the type of emergency circumstances in which the state finds itself.[xvi] That would be an extensive definition, according to which not only are absolute rights non-derogable during war or other public danger, but also, they cannot suffer any limitations during regular circumstances.
As for the restrictive definition of the term, two groups of opinions can be differentiated. For one, the non-derogable nature of the norm is the only criterion relevant for distinguishing absolute from other human rights.[xvii] Non-derogability is viewed as such an important normative trait that it gives the norm a special quality, thus some even claim that any additional qualification of the norm as a jus cogens one would not add much value.[xviii] The opposite point of view is represented by scholars who define absolute rights as rights that cannot be limited, that is, to which it is not possible to apply the proportionality test,[xix] regardless of the possibility of their derogation.[xx]
After all, a useful tool for explaining absolute rights may also be defeasibility, the property of legal rules that allows for a rule to be defeated, overridden or not applied even if the conditional of the rule is obtained.
Concerning the case-law of human rights monitoring mechanisms, use of the term absolute human rights is most prevalent in the practice of the European Court of Human Rights[xxi], but it can also be found in the General Comments of the Human Rights Committee[xxii]. Interestingly enough, these bodies have not yet defined the said term, but use it as a generally accepted (given) one and rely on its intuitive meaning. For example, in the recent General Comment on the right to life, the Human Rights Committee simply pointed out that this right is not absolute. Therefore, the Committee had to assume a certain meaning of the term before such qualification.
So, it seems as if there are certain rights which should never be transgressed, whatever the circumstances or possible justification. However, this conclusion is completely opposed to the first premise with which this text started. How can it be that human rights are equal, interdependent, and indivisible when it seems that there are some rights more important than others? Within the research, this contradiction will be analysed, not only from theoretical, but also from practical points of view.
Following comprehensive and systematic research and analysis of doctrinal positions and arguments about the meaning of the concept of absolute human rights, as well as the practice and approaches of international bodies and supreme national courts that have dealt with this matter, the objective of the thesis is to clarify the term through the conceptualization of one comprehensive definition. After adopting the final meaning of the concept and finding a clear criterion according to which absolute rights would be identified, particular human rights that meet the set conditions will be examined, in order to establish a final list of absolute rights that is common to all of the different human rights regimes, i.e., the whole international community.[xxiii]
Ultimately, the identification of a special category of human rights, and especially the potential list of rights that all members of the international community consider to be absolute, inevitably raises the question of their normative position within the international legal system. This is closely related to the constitutionalization of international law, or in other words, the aim of creating a unified and hierarchically organized international legal system and establishing restrictions on the arbitrary exercise of power by states and other international legal actors. The effects of de facto constitutionalization were firstly recognized after adoption of the doctrine of jus cogens norms of international law, that are defined as norms of general international law which can never be derogated from, and which are accepted and recognized as such by the international community as a whole (Article 53 and Article 64 of the Vienna Convention on the Law of Treaties). The correlation between the concept of absolute human rights and jus cogens norms is obvious, given that non-derogability appears to be an essential characteristic of both. Therefore, their mutual relationship will be analysed, with the ultimate goal of positioning absolute rights in the hierarchy of international legal norms, which, due to the acceptance of the concept of jus cogens norms, can no longer be seriously disputed.
This is a brief overview of my PhD thesis, titled “Absolute Human Rights”, that is currently under development.
My work on this blogpost results from research conducted within the Horizon Twinning project “Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177). This project is financed by the European Union.
Notes
[i] UN GA Resolution, Universal Declaration of Human Rights, 217 A (III), 1948.
[ii] See Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993.
[iii] See Article 15 of the European Convention on Human Rights, Council of Europe, 1950; Article 4 of the International Covenant on Civil and Political Rights, UN Treaty Series, vol. 999, 171, 1966; Article 27, American Convention on Human Rights, The Organization of American States, 1969.
[iv] For instance, such a limitation clause can be found in Article 8 para. 2 of ECHR.
[v] “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”, Article 29 (2), Universal Declaration of Human Rights.
[vi] Article 4, Protocol No. 7 to the ECHR.
[vii] Articles 1 and 2, Protocol No. 13 to the European Convention on Human Rights Concerning the Abolition of the Death Penalty in All Circumstances, Council of Europe, 2002.
[viii] Article 4, para 2. of the ICCPR.
[ix] P. Alston, R. Goodman, International Human Rights, Oxford University Press, 2013, 396.
[x] Article 27 of the ACHR.
[xi] African Charter on Human and Peoples’ Rights, The Organization for African Unity, 1981.
[xii] “Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained”, Article 6, ibid.
[xiii] ” Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms”, Article 8, ibid.
[xiv] ” Every individual shall have the right to free association provided that he abides by the law”, Article 10, ibid.
[xv] L. Mapuva, “Negating the Promotion of Human Rights Through “Claw-Back” Clauses in the African Charter on Human and Peoples’ Rights”, International Affairs and Global Strategy, 2016, 4.
[xvi] О. De Schutter, International Human Rights Law, Cambridge University Press, 2014, 295; E. De Wet, “The Constitutionalization of Public International Law”, The Oxford Handbook of Comparative Constitutional Law (eds. M. Rosenfeld, A. Sajó), Oxford University Press, 2012, 1228; M. Paunović, B. Krivokapić, I. Krstić, Međunarodna ljudska prava, Pravni fakultet Univerziteta u Beogradu, 2014, 66; C. K. Wouters, “International Refugee and Human Rights Law: Partners in Ensuring International Protection and Asylum”, Routledge Handbook of International Human Rights Law (eds. S. Sheeran, Sir N. Rodley), Routledge, 2013, 234 – 235.
[xvii] V. Dimitrijević, D. Popović, T. Papić, V. Petrović, Međunarodno pravo ljudskih prava, Beogradski centar za ljudska prava, 2007, 128;
[xviii] H. van der Wilt, “On the Hierarchy between Extradition and Human Rights”, Hierarchy in International Law: The Place of Human Rights (eds. E. De Wet, J. Vidmar), Oxford University Press, 2012, 154.
[xix] K. Möller, The Global Model of Constitutional Rights, Oxford University Press, 2012, 180; A. Barak, “Proportionality (2)”, The Oxford Handbook of Comparative Constitutional Law (eds. M. Rosenfeld, A. Sajó), Oxford University Press, 2012, 739, 752.
[xx] M. Scheinin, “Core Rights and Obligations”, The Oxford Handbook of International Human Rights Law (ed. Dinah Shelton), 2013, 531-532; Y. Arai-Takahashi, “Proportionality”, The Oxford Handbook of International Human Rights Law (ed. D. Shelton), Oxford University Press, 2013, 467-468; S. Melenko, D. Paranyuk, “The Issue of Correlation Between Absolute and Relative Human Rights: Logical-Gnosiological Analysis”, European Journal of Law and Public Administration, Vol. 5/1, 39.
[xxi] This is dominantly true with respect to Article 3 of the European Convention on Human Rights. For instance, ECtHR, Soering v. the United Kingdom, App. No. 14038/88, Judgment of 7 July 1989, para. 88; ECtHR, Chahal v. the United Kingdom, App. No. 22414/93, Judgment of 15 November 1996, para. 79-80; ECtHR, Gäfgen v. Germany, App. No. 22978/05, Judgment of 1 June 2010, paras. 87, 107. Interestingly enough, on the official webpage of the Council of Europe the differentiation between qualified and unqualified rights can be found within the category “Definitions”. “Unqualified rights are rights which cannot be balanced against the needs of other individuals or against any general public interest. They may be subject to specific exceptions, e.g. the right not to be deprived of liberty, Article 5; or to none at all, when they are called absolute rights, e.g. freedom from torture, Article 3.”, https://www.coe.int/en/web/echr-toolkit/definitions.
[xxii] UN Human Rights Committee, CCPR General Comment No. 29 on Derogation during State of Emergency, Official Records of the General Assembly, Fifty-sixth Session, 2001, A/56/40 (Vol. I), пара. 13. (b); CCPR General Comment No. 36 on Article of the International Covenant on Civil and Political Rights, on the Right to Life, CCPR/C/GC/36, 30 October 2018, para. 10.
[xxiii] Should the results of the research indicate that different rights are considered absolute within different legal systems, the goal is to come up with a list that is common to all, that is, rights that the entire international community considers absolute human rights, should there be any.
SUGGESTED CITATION: Zdravković, Ana. “Absolute Human Rights”, FOLBlog, 2025/6/3, https://fol.ius.bg.ac.rs/2025/06/03/absolute-human-rights/