The Exodus Encounter: Towards a Foundational Theory of Human Rights
44 Pages Posted: 7 Sep 2014 Last revised: 12 Mar 2015
Date Written: September 4, 2014
Contemporary human rights scholarship largely adopts one of two brands of positivism. In the transnational governance tradition, human rights are understood as constituted by treaties and cooperative transnational arrangements. In the sovereignty tradition, human rights are thought of as heightened values of particular polities. Through a reading of yet-unstudied materials regarding the 1947 Exodus ship that left Europe for colonial Palestine, this Article proposes a different theory of human rights law. The “law of encounter” is a non-positive source of law that bars particular behaviors that may kill or risk the life of humans, regardless of their membership in particular polities. When powerful authorities recognize such limitations on their behavior, certain opportunities for human rights remedies arise when powerless parties address them. As long as human rights are respected, these become avenues for participatory political beyond both domestic and transnational legal institutions.
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