The prohibition to abuse one's human rights: A theory

Publication: Scientific journalJournal articlepeer-review


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.
Original languageEnglish
Pages (from-to)577 - 592
JournalEuropean Law Journal
Publication statusPublished - 2019

Austrian Classification of Fields of Science and Technology (ÖFOS)

  • 603117 Philosophy of law
  • 505047 General procedural law
  • 505012 Public law
  • 505011 Human rights
  • 505
  • 505026 Constitutional law
  • 505028 Administrative law

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