The Exodus Encounter: Towards a Foundational Theory of Human Rights

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Contemporary human rights scholarship largely adopts one of two brands of positivism. In the transnational governance tradition, human rights are understood to be 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 human life, 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 those authorities. As long as human rights are respected, these opportunities become avenues for participatory political discourse beyond both domestic and transnational legal institutions. They thus constitute an international grundnorm.
Original languageEnglish
Pages (from-to)1-44
Number of pages44
JournalTexas International Law Journal
Issue number1
StatePublished - 1 Jan 2015


  • OFFICE of the United Nations High Commissioner for Refugees
  • INTERNATIONAL law & human rights
  • HUMAN rights -- International cooperation
  • HUMAN rights treaties


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