Subjects and Sources of International Human Rights Law

AuthorMark Freeman, Gibran Van Ert
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-
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.
3 See, 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.
4 See, for example, the Convention on the Privileges and Immunities of the Unit-
ed Nations 1946 [1948] CanTS no. 2.
5 See generally J. Currie, Public International Law (Toronto: Irwin Law, 2001)
[Currie, International Law] at 60.
6 See 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

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