The Exclusionary Construction of Human Rights in International Law and Political Theory

Abstract

Textbooks tend to depict human rights as safeguards protecting the individual from the excessive use of state authority. Such accounts presuppose, amongst others, a neat opposition of law and politics, and a pre-political character of the law. Drawing both on positive international law and the evolving theoretical inquiry into human rights, this article claims that the fictions of universality and inalienability of human rights collude their exclusionary function. Human rights take part in the formation of a polis by excluding the bare life of the human being from that community, to then re-include it and subject it to regulation. Where re- inclusion does not take place, for one reason or another, the exclusionary function of human rights creates outcasts which have no more, are no more than bare life (refugees being a prominent example). Seen thus, human rights constantly remind us how devoid of protection we are outside the polis. Once re-inclusion has taken place, human rights may work reasonably well as protective devices. Yet, as there is no access right to the polis, there is no right for any human in any situation to have human rights.