Subjects and Sources of International Human Rights Law

• Author: Mark Freeman, Gibran Van Ert
• Pages: 51-68

Before turning to the substance of international human rights law, one

must understand who it applies to and where it comes from. This chap-

ter introduces the subjects and sources of international human rights

law, and indeed of international law in general.

As this chapter and later chapters demonstrate, states are the cen-

tral actors in the creation and application of international human rights

law. For better or worse, they are its authors and its main subjects.

Although human rights serve to limit the power of states, the fact is

that their recognition and realization largely depends on state action. A

basic appreciation of the role of states is therefore essential to any prop-

er account of human rights.

A.Subjects of International Human

Rights Law

The classic definition of a subject of international law is an entity pos-

sessing (i) international legal rights upon which it can rely for purposes

of bringing international claims in its own name, and (ii) international

legal obligations.1Among the rights enjoyed by international legal sub-

jects are the right to enter into treaties with other international legal sub-

51

SUBJECTS AND

SOURCES OF

INTERNATIONAL

HUMAN RIGHTS LAW

chapter 3

1Reparations for Injuries Suffered in the Service of the United Nations, Advisory

Opinion [1949] ICJ Rep 174 at 179.

jects and the right to assert certain legal privileges and immunities on

their own behalf. Among the types of obligations possessed by interna-

tional legal subjects are, of course, human rights obligations.

States are the primary subjects of the international legal system.

They have plenary treaty-making power. They have standing before

international judicial and quasi-judicial bodies. They enjoy the broad-

est set of privileges and immunities under international law. And most

significantly for our purposes, states have treaty and customary law

obligations, not least in the field of human rights.

All other international legal subjects derive their status as subjects

from recognition by states. In other words, to the extent that there are

other international legal subjects at all, it is because states have chosen

to confer that status upon them. It follows that other international legal

subjects have a narrower set of rights and obligations.

The most widely acknowledged international legal subjects other

than states are international organizations (also known as intergov-

ernmental organizations). As early as 1949, the International Court of

Justice recognized the UN as an international legal subject.2Today the

assertion that the UN is a subject in international law is unassailable;

likewise the Council of Europe, the Organization of American States

(OAS), and the African Union (AU). Many of the principal organs of

these international organizations have independent treaty-making

power,3and many of their key officers have immunities and privileges

roughly equivalent to those of state diplomats.4However, not all organs

of the UN and not all international organizations are necessarily inter-

national legal subjects.5Among the qualifying criteria are: whether the

organization represents a permanent association of states, whether

there is a distinction between the legal powers of the organization and

those of its member states, and whether it has rights and duties that

can be exercised within the international legal system.6

52 international human rights law

2Ibid. at 185.

3See, for example, the Vienna Convention on the Law of Treaties between States

and International Organizations or between International Organizations 1986,

reproduced at (1986) 25 ILM 543.

4See, for example, the Convention on the Privileges and Immunities of the Unit-

ed Nations 1946 [1948] CanTS no. 2.

5See generally J. Currie, Public International Law (Toronto: Irwin Law, 2001)

[Currie, International Law] at 60.

6See the Yearbook of International Organizations, published annually by the Union

of International Associations, which aims to identify and list all international

organizations. It defines international organizations as: being based on a formal

instrument of agreement between the governments of states; including three or