The Emerging Right to Individual Self-Determination: A New Framework for Human Rights Litigation and Theory

Right to privacy litigation in international human rights law (IHRL) is often pursued by non-hegemonic human legal subjects (NHHLs), particularly before the European Court of Human Rights (ECtHR). In this thesis, I explore the limitations of this right vis-à-vis NHHLSs and ask how the emerging right to individual self-determination can be shaped as an appropriate alternative avenue for their claims. I examine privacy as a particular expression of IHRL’s acts of inclusion and exclusion of subjects, objects, actions and spaces. In particular, I focus on two foundational acts: (i) the making of legal subjects and (ii) the division of the (legal) space into private and public spheres of discretion and regulation. These acts invisiblise the identity of IHRL’s primary human legal subject: the hegemonic-heteronormative-cisgender-bodily-abled-adult-wealthy-Christian-Western-white-man. Moving between a specific critique to privacy and a broader one to IHRL, I analyse the jurisprudence on the right to privacy of NHHLSs to show (i) privacy is a precarious avenue for their claims and (ii) privacy is an insufficient framework to accommodate the harm of which they complain. Instead, a more foundational issue is at stake – the harm to their recognition as full human legal subjects which stems directly from IHRL’s acts of inclusion and exclusion. While the concept of individual ¬self-determination is gaining visibility in IHRL, it is used in a fragmented way and has not yet been studied as a unified concept. I fill this gap by organising, theorising and operationalising the emerging right to individual self-determination. By centring on the notion of substantive recognition of subjects, I define this emerging right as a necessary tool to bridging the gap between the human subject and the human legal subject in IHRL. By insisting on the importance of recognition, the emerging right is a further safeguard to ensure participation of subjects in IHRL.