This paper will discuss Agamben’s theory of human rights. According to Agamben, even while declarations of rights may seem to place the rights of the individual above that of the state, in fact it leaves no room for pure human existence without a tie to a particular sovereign nation: « the spaces, the liberties, and the rights won by individuals in their conflicts with central powers always simultaneously prepared a tacit but increasing inscription of individuals’ lives with the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves (Agamben 1998: 121) » I shall show that while Hannah Arendt’s point was that when man and citizen come apart, it becomes clear that man never really existed as a subject of rights, Agamben says that the human being, understood as living creature, is the reality of the citizen. According to Agamben, the real subject of the law is not the citizen, understood as a person vested with fundamental rights, but bare life. He sometimes seems to found his reasoning in the idea that citizenship is linked to birth. But I shall argue that his line of argument implies that it is its exposition to the sovereign power that makes bare life a subject of rights. Having rights is the mark of one’s availability to the sovereign decision over one’s own life. I will thus conclude that with such a paradoxical statement, Agamben is unable to deal with the refugees status and condition.
