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protection regime. 127
But is the argument in favor of universal protection and against
discrimination the right strategy towards diplomatic assurances? Our answer is in
the negative. Critical literature has already demonstrated that the idea of
foundationalism 128 , which is expressed in the case of human rights protection
through the abstraction and universality discourses, is unattainable and
illusionary. 129 Concerning first the universality discourse, human rights are
inherently based on what is called “policies of exclusion”. 130 Since human rights are
based on an understanding by each individual of its self, the construction of
individual identity becomes crucial for the human rights project. Nevertheless, the
creation of an identity, the shaping of our desires, cannot be made but in reference to
the other, to the exotic one, to the one excluded from the system. These policies of
exclusion have been constantly present in international human rights discourse:
civilized nations v. barbarian ones, men v. women, citizens v. foreigners, human
beings v. beastly terrorists. Despite its universalizing rhetoric, the human rights logic
is inherently exclusionary. No universal concept can express the singularity of the
self and no measure can prevent discrimination: in our case, for example, preventing
diplomatic assurances against torture won’t eliminate the differences in the degree
of enforceable protection against refoulement as illustrated by the divergences in
domestic case-law, and so on. 131
What options remain then to the human rights movement in its battle against
the practice of diplomatic assurances? How can the movement defend the much
cherished human rights protection framework without alienating itself from the
social environment, which is characterized by an increasing hostility of Western
societies towards alleged terrorists and a readiness to compromise their human
rights? 132 How can international human rights law preserve its allegedly a-political
126
Arbour, Louise, op. cit., note ??, at 522.
127
See Nowak, Manfred, op. cit., note ??, at 687 (speaking of an arbitrary distinction); Moeckli, Daniel, op. cit.,
note ??, at 548; Amici Curiae Brief for Organisation mondiale contre la torture and the Redress Trust in Support of
Petitioner-Appellee Sameh Sami S. Khouzam, and for Affirming the Judgment of the District Court, op. cit., note ??, at
19-23.
128
See the definition provided by Fish, Stanley, op. cit., note ??, at 342-343 (: it must be invariant across contexts
and even cultures; it must stand apart from political, partisan, and “subjective” concerns in relation to which it
must act as constraint; and it must provide a reference point or checkpoint against which claims to knowledge
and success can be measured and adjudicated [and thus render our activities objective and principles]).
129
See also the observations of Koskenniemi, Martii, International Law in Europe, op. cit., note ??.
130
The following argument draws heavily from the intellectual work of Douzinas, Costas, op. cit., note ??. See
also Orford, Anne (ed.), INTERNATIONAL LAW AND ITS OTHERS, 2006, Cambridge, CUP.
131
de Londras, Fiona, op. cit, note ??.
132
See how easily surrenders the human rights rhetoric to the evil discourse of Western governments. After
identifying the enemy, the evil, the target of the anti-terrorist measures, Western governments use the human
rights language (speaking about human security) to present themselves as rescuers of Western values and
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