When Humans Become Migrants

Abstract

The treatment of migrants is one of the most challenging issues that human rights, as a political philosophy, faces today. It has increasingly become a contentious issue for many governments and international organizations around the world. This book examines the way in which two institutions tasked with ensuring the protection of human rights—the European Court of Human Rights and Inter-American Court of Human Rights—treat claims lodged by migrants. It combines legal, sociological, and historical analysis to show that the two courts were the product of different backgrounds, which led to differing attitudes towards migrants in their founding texts, and that these differences were reinforced in their developing case law. The book assesses the case law of both courts in detail to argue that they approach migrant cases from fundamentally different perspectives. It asserts that the European Court of Human Rights treats migrants first as aliens, and then, but only as a second step in its reasoning, as human beings. By contrast, the Inter-American Court of Human Rights approaches migrants first as human beings, and secondly as foreigners (if they are). The book argues therefore that the Inter-American Court of Human Rights takes a fundamentally more human rights-driven approach to this issue. The book shows how these trends formed at the courts, and assesses whether their approaches have changed over time. It also assesses in detail the issue of the detention of irregular migrants. Ultimately it analyses whether the divergence in the case law of the two courts is likely to continue, or whether they could potentially adopt a more unified practice.

Regime Entanglement in the Emergence of Interstitial Legal Fields: Denmark and the Uneasy Marriage of Human Rights and Migration Law

“…But as Dembour documents in her analysis, this process of providing human rights status to migrants -or what we describe as regime entanglement -has been both long and cumbersome and remains incomplete. 56 Indeed, if we view the opposite side of our object of inquiry, that is, how human rights have become influenced by migration law, we can observe what might best be described as a reluctant engagement, at least historically. This section tackles this complex process when seen from the perspective of human rights.…”

“…The Convention was not meant to sustain their rights.' 61 If we look at the many different cases lodged with the European Commission in the first decades after its establishment in 1955, claims involving migrants were summarily dismissed as inadmissible or found to have no legal merit. 62 While this was arguably a general trend at the early ECHR system, 63 the first real migration cases to reach the court was in the mid-1980s.…”

Access to justice in the European Convention on Human Rights system

“…At no point in the preparations is the applicant or the respondent government heard or asked for additional information and the single-judge decisions are hardly reasoned, nor are they published. 122 This leaves many applicants in the dark as to why their cases have been dismissed, 123 and as to whether their cases have been disposed of in a fair and equitable manner. 124 This lack of transparency is all the more problematic now that the Court's application of admissibility requirements is far from consistent.…”

Enacting immigration politics in a juridical register

“…In practice, however, judicially-enunciated rules seldom substitute for regulation by the political branches of government on immigration questions. A tendency towards judicial deference has been amply documented across a range of national and supranational jurisdictions on immigration matters (Dembour 2015;Hailbronner 2007;Hansen et al 2000;Hailbronner 1998;Glenn 1991;Neuman 1990). Moreover, as demonstrated by the rich and growing literature on the comparative politics of immigration, the contentious nature of immigration and asylum policymaking undercuts efforts to extend doctrinal logic and symmetry within this domain of law (Money 2018).…”