Wagrandl, Ulrich. 2019. The prohibition to abuse one's human rights: A theory. European Law Journal. 25 577-592.
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Abstract
Supporters of communism, national socialism and radical Islamism, but also people who incite racial hatred or deny the Holocaust, see their rights severely curtailed by the abuse clause of Article 17 of the European Convention on Human Rights. To make sense of this provision, this paper first introduces the distinction between abusable and non‐abusable rights in order to delimit the scope of Article 17. Then, this paper suggests a “test” to spot instances of abuse of human rights by borrowing the concept of performative self‐contradiction from speech act theory. Article 17 is reconceptualised as dealing with conduct that self‐contradictorily uses rights but simultaneously denies their very idea. In this way, it becomes possible to make sense of and to unify the disparate case law that Article 17 has generated so far: it equally targets political human rights abuse, attacking liberal democracy in general; and exclusionary human rights abuse, attacking the rights of other people.
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Status of publication | Published |
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Affiliation | External |
Type of publication | Journal article |
Journal | European Law Journal |
Citation Index | SSCI |
Language | English |
Title | The prohibition to abuse one's human rights: A theory |
Volume | 25 |
Year | 2019 |
Page from | 577 |
Page to | 592 |
URL | https://api.wiley.com/onlinelibrary/tdm/v1/articles/10.1111%2Feulj.12349 |
DOI | http://dx.doi.org/10.1111/eulj.12349 |
Open Access | N |
Associations
- People
- Wagrandl, Ulrich (Details)
- Organization
- Austrian and European Public Law (Details)
- Research areas (ÖSTAT Classification 'Statistik Austria')
- 5111 Legal and political philosophy (Details)
- 5202 General procedure law (Details)
- 5217 Public law (Details)
- 5252 Basic and Human rights (Details)
- 5265 Theory of constitutional law (Details)
- 5266 Constitutional law, general (Details)
- 5267 Administrative law, general (Details)