Smothered to (un)death: on identity and the European court of human rights as an administrator of human life

Abstract

Human rights have become one of the most important tools for construction of identities in our era. Perhaps the most important in this process is the right to private and family life which is the most commonly invoked right in cases involving the most fundamental aspects of human life, such as marriage, abortion, surveillance and genetics. This article provides an overview of how the European Court of Human Rights deals with these biopolitically sensitive cases in the condition of indeterminacy of human rights. It is argued that the understandable reluctance of the Court to pronounce anything on these matters and its consequent use of the margin of appreciation doctrine, with the sole exception of valorization of life as such – as survival – leads to reinforcement of the link between the sovereign and bare life as well as the dominance of fixed, already-existing identities over the multiple, blurry identities of the whatever being. This has detrimental consequences for the constantly ongoing process of construction of the self, always in a state of becoming.

Keywords:

• becoming
• biopolitics
• European court of human rights
• human rights
• identity

Acknowledgements

I would like to thank Dorota Gozcecka, Magdalena Kmak, Eliska Pirkova and Sanna Mustasaari. This work was supported by Research Foundation of the University of Helsinki, Finnish Cultural Foundation, Häme Regional Fund, and Graduate School Law in a Changing World.

Disclosure statement

No potential conflict of interest was reported by the author.