Subjects on the Move – Navigating Human Rights Borders (NAVIG)

• Applicant: Professorin Dr. Nora Markard
• Subject Area: Principles of Law and Jurisprudence ; Public Law
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 550179582

Human rights law and refugee law are designed as a double protection against rightlessness: within the home state and, if need be, abroad. Together, they are meant to deliver on the claim to universal human rights. But this post-war legal order has come under pressure, given increasing global interdependencies and conflicts. In this, the focus tends to be on the practices of states in dealing with migrants. By contrast, NAVIG takes the perspective of mobile, migrant subjects as its point of departure, that of subjects on the move (Nail 2015) navigating the boundaries of the law. The project’s working hypothesis: mobile subjects do not just rely on human rights and are constituted as legal subjects by those same rights, they also shape them through their own practices. In this sense, the law and its subjects are co-constitutive: by inscribing themselves into the law in different ways, the latter become co-authors of human rights law. They are “subjects on the move” in a double sense; not only geographically, but also—as they conceptualize themselves within the law—by shifting the concept of subjecthood itself. In order to integrate them and their strategies, subjectivities, and life forms into legal approaches, this project deploys a practice theory approach, examining the reliance on human and refugee rights as a form of legal reflexivity. At the same time, it emphasizes the latent symbolic promise of human rights, which, against the necessarily determinate, concretely applicable and applied law, remains conceptually open. Three sub-projects showcase facets of negotiating the boundaries of the law, thus examining its reflexivity: (1) the historical boundary in form of the categorical exclusion of colonial subjects from the ECHR (juridical reflexivity); (2) the procedural boundary in the categorical inclusion of subjects on the move into human rights in refugee status determination procedures (normative reflexivity); (3) the geographical boundary as a site of categorical inclusion without procedure, which results in the de-facto exclusion of subjects on the move (political reflexivity). Three analytic dimensions guide the research: (1) Universality (of human rights) starts from the claim that each human being holds subjective rights, a claim that is never fully redeemable but is ever pushing for inclusion. (2) Humanism (of the “other”) spotlights the ethical, transcendental claim internalized by human rights that is the leverage point for the inscription processes of subjects on the move. (3) With the constitutionalization (of the normative), NAVIG turns to the “border management” between human rights and other legal regimes, in which the inscription practices of subjects on the move appear as constitutionalization “from below” and, in politicizing the boundary, give rise to a new, transnational “us.”

• DFG Programme: Research Grants