Special Workshop Abstract

Dr. Gregor Noll, Faculty of Law, University of Lund

The effective implementation of human rights presupposes functioning and powerful political communities in control of their territory, yet the content of human rights must be insulated from manipulation by the politics of such communities. This triggers numerous theoretical and practical problems, stretching from the difficulty to construct universal human rights without resorting to metaphysics to the securing of human rights in weak, or even “failed”, states. This paper will first illustrate the nexus between political community, territory and human rights by drawing on two examples: a) the problem of the refugee as a test case for the universality of human rights (drawing on Giorgio Agamben’s distinction between bare life and political life) and b) counterterrorist states’ attempts to diminish human rights constraints on their actions by dealing with certain individuals extraterritorially (one of the given examples being Guantanamo Bay, another the emerging idea of extraterritorial ghettos for asylum seekers). In the first case, it is the move of the individual which challenges the notion of human rights, in the second case, it is that of state power. 

Second, the paper will look into two standard defenses against the mounting theoretical and practical pressure on human rights. One of them is rooted in a positivist-contractarian tradition: it does not deny the alterability of human rights, but points to the tedious procedural preconditions and suggests that human rights norms must be observed until the formalities of their alteration have been complied with. This strategy ultimately holds that legal means “guarantee” the legitimacy of goals. Ultimately, it is powerless against a mala fide political actor determined to empty human rights of their contents while complying with all formal rules. In particular, it cannot guarantee human rights outside the personal and territorial boundaries of the political community, and is of little help when tackling the problem of refugees or extraterritorial state action. The second strategy is metapositivist: it elevates human rights to a level beyond that of power holders and affirms that such rights enjoy a developmental dynamics of their own. Typically, its defendants construct human rights as a centrepiece of global governance, with which the power politics of nation states are to be constrained. Theoretically, the ends of human rights are to justify the means (e.g. legal arguments) to be used in that project – just the reverse of the positivist-contractarian strategy. Pursuers of this strategy risks being denounced as just another political movement, which may very well be overruled in democratic will-formation processes. Interestingly, the natural law tradition from which it stems holds dangers of its own – if human rights are metapositive norms, how can there be positive sanctions for infringements? Does it at all make sense to speak of “violations” of human rights, or would it be more approriate to speak of “sins”, to be dealt with in a metapositive system of adjudication and sanctions?