The Subjective International Right
Jahrbuch des öffentlichen Rechts der Gegenwart, Vol. 59, pp. 411-456, 2011
26 Pages Posted: 9 May 2011
Date Written: 2011
Subjective rights of natural persons (as opposed to objective law) manifest the dignity of the human being. Human dignity is a cornerstone of international law since the adoption of the Universal Declaration of Human Rights in 1948. So the guarantee of (subjective) rights is an important element of the current international legal order. The objective of this paper is to demonstrate that international law as it stands acknowledges the idea of international subjective rights, to explain this idea in doctrinal terms, to conceptualise the subjective international right theoretically, and finally justify this legal construct normatively. In the past decades, individuals have been awarded more and more international rights and obligations, notably outside the field of human rights. Additionally, the international human right to legal personality (Art. 6 UDHR, Art. 16 CCPR) is being progressively interpreted as embodying a human right to international legal personality. It is submitted that both legal trends, taken together, do not merely constitute a quantitative evolution, but have brought about a qualitative shift. The legal status of human beings is no longer merely derived from states, but is a foundational status in itself. Human beings have become “original” international legal subjects in a doctrinal sense. This novel construction has concrete legal consequences, notably with a view to access to justice, both on the domestic and on the international plane. Overall, the conceptualisation of a subjective international right symbolises the new international legal status of the human being, and is a doctrinal building-block of the so-called “humanisation” of international law.
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Keywords: international legal prsonality, subjeects of international law, human rights, object theory of individual, right to have rights
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