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Selected key cases and their proxy indicators' scores
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Cambridge Core - Human Rights - Demanding Rights - by Moritz Baumgärtel
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... There are important caveats to this jurisprudence. First, ECtHR jurisprudence strongly favours states in this area (Baumgärtel 2019;Dembour 2015). Thus while Article 8's language is strong, its application is not (Da Lomba 2017). ...
... While it has overseen significant human rights recognitions in many topics, the ECtHR has not been a particularly progressive advocate regarding questions of whom the state admits or recognises as a citizen. This is evidenced by the ECtHR's jurisprudence relating to asylum and expulsion, where its 'margin of appreciation' approach has often sided with states (Baumgärtel 2019). Recognising the structural vulnerability of the ECtHR in relation to its member states perhaps helps explain why it has often articulated bold principles but adjudicated very conservatively in state-sensitive topics. ...
In 2018, the Danish Supreme Court revoked Adam Johansen’s citizenship in conjunction with his conviction for terrorism. Applying a proportionality test adapted from European Court of Human Rights (ECtHR) jurisprudence for naturalised, not natural, citizens, the Danish court determined that Johansen’s Muslim faith tied him to Tunisia, his father’s country, rather than to Denmark. In March 2022, the ECtHR unanimously upheld this judgment. In so doing, the ECtHR solidified an emerging standard in cases of citizenship revocation for natural citizens, which standard is weaker than the protections enjoyed by naturalised citizens. This article reviews the Danish and ECtHR jurisprudence to show how the explosive expansion of citizenship revocation in relation to terror crimes, combined with the ECtHR’s emerging jurisprudence rejecting substantive review for such revocation, demonstrates a significant, multidirectional weakening of rights protections in Europe.
... The potential role of the ECtHR also 88 Negishi (2024). 89 More broadly see in this regard Baumgärtel (2019). 90 Cantor et al. (2022), pp. ...
The externalisation of migration and border controls refers to a series of practices whereby States attempt to manage migration flows and enforce immigration policies beyond their borders, often by collaborating with other countries or non-state actors. Externalisation can involve various measures such as outsourcing border control functions, implementing agreements with neighbouring or transit countries to intercept migrants before they reach the State’s territory, and providing aid or incentives for other countries to prevent or reduce migration flows. Externalisation practices are employed to shift the burden of migration management away from the receiving state and onto other actors or territories, often to limit responsibilities and on the assumption that human rights obligations only apply territorially. In an attempt to challenge such an assumption and to frame the nature of human rights obligations in the context of externalisation practices, this article develops a taxonomy of externalisation measures and provides an overview of the jurisdictional approaches to the extraterritorial scope of human rights obligations.
... Building on recent critiques of the Court's general approach to immigration cases (Dembour, 2015;Costello, 2016;Baumgärtel, 2019), this contribution examines specifically the judicial reasoning on the application of Article 14 ECHR and its relation to migration law and vulnerability governance, following the main objective of this Special Issue (Moreno-Lax and Vavoula, in this issue). More concretely, we argue that its current legal practice is based on fundamental oversights regarding the nature of migration control, which is an exercise in differentiation that ought to be addressed via this provision more frequently than is presently the case. ...
... Its current usage, however, is largely unsuitable for immigration cases (Baumgärtel, 2020). This section summarises the argument, detailed further in our previous works, that the Court should consider an alternative (and more nuanced) notion of 'migratory vulnerability' to better capture these realities (Baumgärtel, 2019 and. Such a refined conception would enable and indeed require the ECtHR to reassess its approach to Article 14 ECHR in migration cases on a principled and foreseeable basis. ...
The fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary mechanism for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work, which identified a legal tool suitable for achieving this reorientation in judicial practice: the principle that we call ‘migratory vulnerability’, once recalibrated away from a group-based approach to a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the ‘comparator’ test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.
... For example, as undocumented asylum seekers, the members of PrintRights are members of a group designated as "vulnerable" under European human rights law, and this designation has been utilized to argue for fulfillment of their basic needs and protection of their human dignity (e.g., Conference of European Churches [CEC] v. the Netherlands, 2014;MSS v. Belgium and Greece, 2011). Though vulnerability discourse is a powerful motivator for human rights protection (Al Tamimi, 2016;Baumgärtel, 2019;Fineman, 2010;Peroni & Timmer, 2013), it creates a discursive risk of reifying a group as definitionally vulnerable (Butler, 2016;Mayrhofer, 2020). The case of PrintRights is unique in that it problematizes monolithic understandings of both vulnerability and human rights law. ...
PrintRights, a cooperative of undocumented asylum-seekers in Amsterdam, manufactured facemasks during the Covid-19 pandemic; first distributing them to undocumented migrants residing in the city’s emergency shelter system and then selling them on-line to the wider public. By distributing facemasks with a message, PrintRights performatively inhabited the right to distribute printed works, legally resisting alienage law prohibitions on employment. Engaging the theory of Judith Butler, this article analyzes the relationship between PrintRights’ resistance, vulnerability and human rights discourse. Drawing on fieldwork conducted with PrintRights, this article shows the potential of human rights discourse to support undocumented migrant resistance.
... Two judgments can serve to illustrate the differentiation regarding the interpretation of inherent migrant vulnerability (Baumgärtel 2019(Baumgärtel , 2020. In the case of H.A. and others v Greece, 9 concerning undocumented migrants, there was an attempt to find an analogy with the case of M.S.S. v Belgium and Greece. ...
... When the Court reached a conclusion on vulnerability linked to the notion of belonging to a highly vulnerable population group, it focused on the pertinent circumstances. This type of logic has been broken in some recent cases of inadmissible vulnerabilities 11 that have qualified or constrained the extent of internal vulnerability attributable to such subjects (Ippolito 2018, Baumgärtel 2019). ...
The current theoretical socio-legal approach to vulnerability and vulnerable individuals, groups and populations is complex and wide-ranging. Unlike other traditional categories of “vulnerable groups”, the specific dimensions of migrant vulnerability raise issues that have not been properly resolved by laws, policies or judicial interpretation. This paper seeks to review and explain the reasons for the black-and-white legal categorical distinction between two types of people who migrate: “voluntary” migrants (economic, undocumented), and forced migrants (asylum seekers, refugees), based on their presumed internal or external “vulnerability”. It also reviews European asylum law to analyse the complex classification of asylum seeker/refugee vulnerability. This can help explain why some “particularly vulnerable categories” in compounded situations of intersectional vulnerability risk falling between the cracks. There is an urgent need to reassess the bivalent categories and the compact dimensions of migrant vulnerability, in order to find balanced internal coherence in the regulations that manage heterogeneous migration processes.
... The third section reviews the construction of fallacies and legal assumptions used to maintain the valence of some "vulnerable" and "non-vulnerable" categories in the migration context (Barrère, 2016). To conclude, the conceptual problems of the phrase migrant vulnerability (Baumgärtel, 2019), a category defined using a modifier (Cole, 2016: 113), will be analysed and discussed in the context of the European migration and asylum system. ...
En els darrers anys, s’ha produït un debat jurídic, filosòfic i doctrinal sobre la taxonomia de la vulnerabilitat des de l’angle ontològic i el del "plantejament col·lectiu", així com des de les perspectives crítica, relacional i interseccional. Això no obstant, aquesta àmplia reflexió teòrica no ha aconseguit incorporar completament la tan necessària revisió semàntica dels conceptes de vulnerabilitat i migrant, sobretot pel que fa a la interpretació jurídica d’una de les col·locacions que més s’està veient últimament: vulnerabilitat de les persones migrants. En concret, les definicions que se n’han fet fins ara han provocat problemes d’interpretació jurídica, incloent-hi ambigüitats i vaguetats. També han portat a elaborar arguments basats en fal·làcies o hipòtesis sobre com s’identifica les persones vulnerables o no vulnerables en els contextos migratoris. En aquest article s’analitzen aquests problemes conceptuals i s’exploren les limitacions de la interpretació jurídica de l’expressió vulnerabilitat de les persones migrants. L’objectiu és demostrar que l’ambigüitat i la vaguetat conceptuals tenen conseqüències jurídiques i polítiques pel que fa a l’ús de categories exclusives per identificar les persones vulnerables en el sistema europeu d’immigració i asil.
... This is also supported by the description in the article of Koppelman, who describes cases that become strategic as another model of strategic litigation (table Google Scholar entry 2). Baumgärtel argues that cases can also become strategic after the judgment has been issued (Baumgärtel 2019). Such cases are not part of the concept of strategic litigation as defined in this article: a case cannot become strategic after the judgment has been delivered. ...
This article conceptualises the term “strategic litigation” in order to provide for a definition of it. Strategic litigation is a tool increasingly used in Europe by individuals and organisations to attain different objectives. Next to that, there is increasing academic attention for the topic. Nevertheless, the exact definition of “strategic litigation” remains unclear. Therefore, this article uses the research method of conceptualisation as well as a database research and additional literature to provide for a definition. It looks firstly at the background concept, involving the range of meanings associated with the term “strategic litigation”, after which a systematised concept is formed. Thereby, use is made of the “necessary and sufficient conditions” (NSC) approach, to develop the conditions necessary and/or sufficient for a case to fit within the category of strategic litigation. Moreover, the external conceptual relations of the term are explored.
... 2, 251 (2011). The assessment of European courts' interpretation of vulnerable migrants' rights, based on a combination of empirical research, interviews, and theoretical analysis was made by Moritz Baumgärtel (2019). 10 UNHCr Resettlement Submission Categories, https://www.unhcr.org/558bff849.pdf ...
The purpose of the paper is to analyse the European Agenda on Migration from the perspective of people who, for some reason, are susceptible to harm or have found themselves in a challenging situation (i.e. are “vulnerable”), and answer the question of whether the Agenda has taken notice of this issue in any way. The analysis proceeds in five parts. It begins by outlining the complexity of vulnerability with particular emphasis on the role of the adopted perspective and the situation of migrants. Next, it describes the EAM objectives in terms of vulnerable persons. On the basis of several communications, proposals, working documents and reports that the EU has formulated since May 2015, the Agenda’s theoretical assumptions have been compared with their implementation in practice. Part four attempts to answer whether the influence of the COVID-19 pandemic on the situation of vulnerable migrants has been reflected in EU operational documents. The final part presents the New Pact on Migration and Asylum (as the latest achievement in the discussed area) with particular attention paid to vulnerable persons. The research was based predominantly on official EU documents, binding and non-binding, and the latest literature on the subject.
... 3 Strikingly, both types of critiques do without a systematic inquiry into the structural reasons behind the steadily rising number of migration cases before the ECtHR. 4 This is even more surprising given that questions regarding the vulnerability of migrants such as asylum seekers were at the heart of the landmark ruling in M.S.S. v Belgium and Greece ('M.S.S.') more than nine years ago. 5 Already then, they underlined the urgent need to come to terms with when, how, and why migrants become vulnerable and how these complex factors should influence legal reasoning. ...
The European Court of Human Rights has struggled to integrate the lived experience of migrants into the legal reasoning that underlies a determination of human rights violations. This article introduces the concept of migratory vulnerability in an effort to remedy that shortcoming by making an already existing legal principle fit for the daunting task posed by migration cases. The objective is to preserve (and potentially expand) the legal effects of the principle of vulnerability whilst approximating it to the more consistent conception of vulnerability theorists, which would remove some of its ambiguities and negative side effects. Migratory vulnerability describes a cluster of objective, socially induced, and temporary characteristics that affect persons to varying extents and in different forms. It therefore should be conceptualized neither as group membership nor as a purely individual characteristic, but rather determined on a case-by-case basis and in reference to identifiable social processes. Depending on its specific expression, migratory vulnerability may give rise to distinct legal effects such as enlarged scopes of protection, shifts in the burden of proof, procedural and positive obligations, a narrower margin of appreciation, and possibly even the ‘triggering’ of proceedings under Article 14 ECHR.
Refugee law has historically formed an important part of refugee studies. Yet, in the past decades, the legal study of refugees has increasingly developed out of sync with refugee studies more generally. The purpose of this special issue is to help bridge the gap between refugee law and refugee studies and foster a broader transdisciplinary research agenda on law within refugee studies scholarship. The special issue serves two overarching purposes. The first is to exemplify and celebrate methodological heterodoxy in refugee law scholarship—deliberately foregrounding perspectives often marginalized within more mainstream legal scholarship. To this end, this issue presents a range of contributions that draw on methods and theories from different disciplines in the study of refugee law, including anthropology, history, psychology, political science, organization studies, and data science. Second, by anchoring this special issue in the Journal of Refugee Studies, we hope to convince the wider refugee studies community that empirical and interdisciplinary legal methods may provide new and important insights into some of the core debates on and long-standing challenges to refugee law.
