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1
Introduction
A Judge cannot but lament when such cases as the present are brought into judgment. It is
impossible that the reasons on which they go can be appreciated, but where institutions
similar to our own, exist and are thoroughly understood. The struggle, too, in the Judge’s
own breast between the feelings of the man, and the duty of the magistrate is a severe one,
presenting strong temptation to put aside such questions, if it be possible.
Thomas Ruffin
For a reader from a less cynical age, the elegance of such words may have been proof
enough of a genuine sentiment. Today, however, actions are usually measured by their
effects and their impact, to mention two of the concepts that will follow us throughout this
book. Thomas Ruffin, a highly respected judge at the Supreme Court of North Carolina,
would go on to suggest that it ‘is useless... to complain of things inherent in our political
state’and reach the relentless conclusion that, ‘while slavery exists amongst us in its present
state... it will be the imperative duty of the Judges to recognize the full dominion of the
owner over the slave’.
1
For all its cruelty, it is difficult to deny the sense of inevitability
expressed by Ruffin. Living in the US south in 1829, could he really have decided differ-
ently? Even if he had, would it have made a real difference if one judge had broken rank and
challenged the institutions that demanded the loyalty of many others? It would be left to
history to render the verdict on the ‘institution’of slavery, though at the price of hundreds
of thousands of lives in the US Civil War.
Fast-forward to Europe today. Questions about the function of the judiciary and the
‘duty of the magistrate’remain as topical as ever. The context, however, is a different one.
An impressive legal edifice seeking to protect the human rights of every person towers over
the realm of laws, now offering domestic and European judges the opportunity to pro-
nounce themselves in favour of the marginalised and vulnerable. History, however, seems to
point in a different direction as voices opposing these norms and institutions seem to grow
louder. Various types of courts and tribunals are affected differently. Ironically, Ruffin’s
words are today more likely to be uttered by a domestic judge bemoaning the lack of
autonomy of the domestic legal order and of the sovereign decision of parliament in the face
of international human rights instruments. In contrast, judges at the European Court of
Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) –the focus
of this work –may, like Judge Ruffin but for different reasons, feel a ‘strong temptation’to
set aside demanding questions. When the idea of Europe seems in doubt and supranational
1
North Carolina v. Mann, 13 N.C. 263 (1830), December 1829, Judge Thomas Ruffin.
3
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institutions, including regional courts, are facing a backlash, it may be wiser to avoid issues
that are sensitive in society.
This last proposition is the starting point of this work, which focuses on the demands
that immigration poses to human rights protection systems in Europe. Politically, there has
hardly been a more pressing issue in recent years. In 2015 a record number of migrants
entered European Union (EU) territory through Greece to move on to other Western
European countries via the ‘Balkan route’. A year later, European heads of states came to an
agreement with the Turkish government, which promised to close its borders and retain
Syrian refugees in exchange for payments and visa liberalisation. States such as Hungary,
Croatia and Slovenia have reinforced their borders with walls and fences. Generally, fears of
immigration from within and outside Europe remain the main driver of populist sentiments
in many countries including Italy, where populists were voted into power in 2018. This
story, however, reflects only a part of the truth: across the continent, human rights
defenders including migrants themselves mobilize to demand a better protection of the
rights of vulnerable migrants. They also continue to bring claims on their behalf before
administrative and constitutional courts and, where these turn out to be of limited use for
immigrants, before the ECtHR and the CJEU. As a consequence, these two supranational
courts have come to deliver a respectable number of decisions in this area.
1.1 The Demanding Character of Migrant Rights
What, however, has been the impact of all these rulings on the scope, applicability and
enforcement of human rights of vulnerable migrants throughout Europe? The first impres-
sion may well be described as devastating. Yearly losses of thousands of lives in the
Mediterranean, mass detention and the denial of even rudimentary social services continue
to characterise the reality for many migrants who, at least in principle, should be protected
under multiple international regimes and treaties. Significant problems also seem to exist in
accessing justice, with only a fraction of vulnerable migrants relying on domestic courts,
let alone on international protection instruments. For them, demanding rights represents
either a futile or a fundamentally frustrating experience. Any serious attempt to evaluate the
impact of judgments of the two European courts must therefore consider not only the legal
but also this empirical dimension, with the immense problems that they reveal. Indeed,
dealing with social realities is indispensable both from practical and –as will become clear
towards the end of this work –theoretical angles if human rights scholarship is to remain
relevant. This book seeks to contribute to developing such a grounded perspective and
inform our understanding of the actual relevance of the involvement of the ECtHR and the
CJEU in this domain.
To be sure, strong arguments can also be advanced in favour of an involvement of
international courts. With most legislatives and the executives seeking to restrict immigra-
tion, courts may indeed be the best hope for migrants. Indeed, claims have been made that
‘of all state institutions, courts’insulation from democratic pressures makes them structur-
ally the friendliest to immigrants’.
2
The counter-majoritarian argument is as likely to be
applicable to the ECtHR and the CJEU as to domestic judiciaries given that these two courts
2
Joppke and Marzal, ‘Courts, the New Constitutionalism and Immigrant Rights’, p. 824.
4introduction
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hold extensive authority and a high degree of influence.
3
Even more telling, however, may
be the simple fact that both courts continue to be addressed by migrants and their lawyers.
Figure 1.1 illustrates the steady growth of the body of decisions of Europe’s supranational
courts in this domain,
4
with the mid-2000s the point in which their involvement gathered
momentum. Legal scholars, in turn, analyse decisions in a serious but seemingly routine
fashion, almost subconsciously treating any identified legal change as necessarily translating
into changed realities on the ground. Such high expectations are held even by the critical
commentator Marie-Bénédicte Dembour, who expresses her disappointment with the
arguably restrained approach taken by the ECtHR towards the protection of the rights of
vulnerable migrants.
5
With Europe’s courts being used and needed but seemingly also underperforming, this
work addresses the following questions: in practice, how effective have Europe’s two
regional courts been in the protection of the rights of vulnerable migrants? And what could
be done to improve their performance in this regard? As will become clear, there are no
straightforward answers to these questions. The effects of adjudication, even more so at the
0
50
100
150
200
250
300
1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 2017
European Court of Human Rights Court of Justice of the EU
Figure 1.1 Case law of the European courts related to ‘asylum’(by year)
3
Alter, Helfer and Madsen, ‘How Context Shapes the Authority of International Courts’, p. 34.
4
For Figure 1.1, a search was performed using the HUDOC database and covering all ECtHR judgments
(excluding decisions only in English to avoid doubles) mentioning ‘asylum’and with EU Member States
as defendants, yielding 309 hits for the period between 1989 and 2017. A similar search was performed on
EUR-LEX for rulings of the CJEU, yielding 101 hits. This search was limited to judgments in English that
mentioned ‘asylum’, with the subject matter criterion covering only the area of freedom, security and
justice.
5
Dembour, When Humans Become Migrants.
1.1 the demanding character of migrant rights 5
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supranational level, are complex and dependent upon various factors ranging from legal
and judicial strategies to the reception that judgments receive in domestic judiciaries,
parliaments, and even in society. The first part of this book elaborates on these aspects in
a detailed sociolegal analysis of eight key judgments, five of the CJEU and three of the
ECtHR. Accordingly, many aspects need to be considered if the goal is to optimise the
functioning of the two courts. The thread tying these insights together –the central
proposition of this book –is that the human rights of migrants are challenging, even
straining in character. Seemingly obvious at first, this insight becomes more consequential
the more seriously one is willing to take it. Demanding the rights of vulnerable migrants
means to make claims that are demanding: demanding for the courts in Strasbourg and
Luxembourg that have to go out of their way to establish a consistent but progressive line
when faced by hundreds of migration-related cases; demanding for migrant rights defend-
ers, who have to navigate a multitude of constraints to achieve positive outcomes but avoid
counterproductive ones; and demanding for and even of European societies and the
premises upon which they are based. These issues will be elaborated in the second part of
this book.
1.2 Theoretical Underpinnings
Two clarifications are necessary here. The first concerns the definitional question of
‘vulnerability’, which, in short, applies to any migrant who faces a denial of human rights
because of his or her migratory status. As such, the concept serves two functions in this
work. First, it defines its scope by bringing together a number of statuses which are legally
distinct: refugees, asylum seekers, persons with an exceptional leave to remain, and spouses
or parents whose residence permits are dependent on the presence of their family members
(and their degree of affiliation). Other migrant groups are by contrast excluded: persons
using their free movement rights under EU law, for instance, benefit from an incomparably
stronger legal status. Crucially, the distinction between ‘vulnerable’and ‘non-vulnerable’
migrants is not meant to conflate or to erase legal categories; indeed, these will be fully
accounted for in the analyses of the selected rulings. Rather, the distinction is used to enable
the adoption of an additional empirical aspect that captures the exclusionary social and
political processes at play. The second function of vulnerability relates to this last point as it
will also be proposed as a means to connect the legal and the social elements of being a
vulnerable migrant before the ECtHR and the CJEU. Chapter 7 thus outlines in detail a
social-contextual conception of vulnerability that is suitable for this purpose while also
avoiding the essentialisation and stigmatisation of migrants.
The normative standpoint taken in this book is another aspect that requires explication.
What is the basis for the arguable claim that the functioning of the two European courts,
both trusted institutions with a respectable track record of ensuring fundamental rights
protection, could be optimised? Furthermore, what justifies an assessment of the ‘perform-
ance’of the courts that takes as its narrow frame of reference the lived realities of vulnerable
migrants? The only convincing answer to the first question can be specific shortcomings as
revealed in substantive analysis, which is precisely what the first part of this book aims to
provide. Finding a response to the second objection is more challenging. After all, like other
international courts, the ECtHR and the CJEU are based on much broader mandates,
suggesting that evaluations of organizational performance should be tied to the reactions
6introduction
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of their mandate providers, most notably states.
6
As plausible as this may sound, such an
approach is not very helpful when applied to the domain of human rights with its vertical,
and thus much more demanding, character. Should not an ‘effective’human rights court
protect the interests of individuals and groups of persons rather than states? Where self-
binding obligations such as human rights are at stake, states’delegation of authority to
international courts inevitably expands their functions to include the enforcement of laws
and even constitutional review.
7
The objective of the first part of this book is to assess the performance of these tasks, which
are in themselves not controversial. The scope of the evaluation is hereby limited to the two
European courts and the protection of vulnerable migrants. As an analytical undertaking,
such a subject is both complex and theoretically relevant: the entitlements of non-citizens in
the absence of a social contract is arguably what the idea of human rights is all about.
8
However, different views do exist about the extent of such rights, as the polarizing debates
about immigration illustrate. Rather than measuring judicial outcomes against abstractly
defined standards (the identification of which is an impossibility in my view), their evaluation
will therefore be based on the specific parameters that are revealed in the eight selected cases.
In other words, how have the rulings in question been received by those who defend the rights
of migrants? What do their reactions and behaviour tell us about the import of these
presumably important decisions? In this sense, this book adopts the perspective of migrant
right defenders but primarily for methodological reasons. The normative questions concern-
ing the role of migrant rights in society will once again be picked up in Chapter 7, where it is
argued that the rights of vulnerable migrants are indeed entrenched in the demands that
emanate from the self-image that prevails in European societies.
1.3 Methodology and Case Selection
The ‘grounded’character of the evaluation of the key judgments places issues of methodology
centre stage. The basis for the approach that underlies this work is the specific conceptual-
isation of the effectiveness of the European courts. As already mentioned, to appreciate their
influence on the rights of migrants, one must explore various relevant effects including not
only legal but also empirical outcomes. Throughout the first part, this broad orientation will
be reflected in a comprehensive framework that probes each ruling on three interrelated
dimensions of effectiveness: law development, case-specific, and strategic effectiveness.
9
Law
development effectiveness refers to the contribution that international courts make from a
legal-doctrinal standpoint whenever they clarify and offer interpretative guidance on provi-
sions of international law. Both the ECtHR and the CJEU are not only highly authoritative
but are also known for their ability and willingness to adopt teleological interpretations of
their instruments. Analysis will focus on identifying precisely this kind of legal change. The
6
Shany, Assessing the Effectiveness of International Courts.
7
Alter, The New Terrain of International Law.
8
For a recent theory of human rights based explicitly on the experience of migrants and specifically on
boat persons, see Mann, Humanity at Sea.
9
This division builds on, and adapts a taxonomy introduced by Laurence Helfer, taking the first two
dimensions directly from his discussion. Helfer identifies four dimensions of the effectiveness of inter-
national courts: case-specificeffectiveness,erga omnes effectiveness, embeddedness effectiveness and
effectiveness in developing international law; Helfer, ‘The Effectiveness of International Adjudicator’.
1.3 methodology and case selection 7
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second notion, case-specific effectiveness, sheds light on the impact that a judgment has on the
two parties to a case. These include, on the one hand, the claimants, in this case migrants
seeking remedies of alleged human rights violations. On the other hand, insights will be
offered on the influence that a ruling has had on the law and the policies of the state in
question. Third and innovatively, the chapters examine the strategic effectiveness of European
court rulings. This broader category includes both a relative and an absolute dimension. In
‘relative’terms, comparisons will be made between the approaches pursued by the ECtHR
and the CJEU to determine which court has, on a specific question, had the higher strategic
value for migrant rights defendants. The ‘absolute’strategic effectiveness is evaluated by
looking at the wider impact of a ruling on the policies of the EU and ‘non-involved’states
as well as the reception that it has received from migrant rights defenders.
10
The broad conception of effectiveness and the ‘thick’description resulting from it
required limiting the analysis to a few specific decisions. As the European courts have
produced a substantive body of rulings in recent years, the choice was made to take a
purposeful and methodical approach to case selection. The focus was specifically on finding
the most pertinent rulings that, rather than being mere routine applications of certain
provisions, are likely to have made a more systematic impact on the lives of vulnerable
migrants. In other words, cases were selected to be suitable to inform an effectiveness
analysis as conceived above.
For the purposes of case selection, a list of twenty-five judgments of the ECtHR and
CJEU respectively were preselected, based on the attention that they have received in legal
scholarship. As a next step, ‘proxy’indicators were created to provide a preliminary analysis
of the relative significance of these cases that was undertaken on 30 July 2015. Table 1
shows the eight selected cases with their proxy indicators (a more detailed overview of the
scores of the non-selected cases are attached in Tables A.1 and A.2 in the Annex). In the
case of the ECtHR, all three judgments were handed down by the Grand Chamber. M.S.S.
and Hirsi in particular received extraordinary public coverage and in scholarship as
reflected in their Google and Google Scholar scores.
11
Tarakhel (like M.S.S.) was included
as it is related to the Dublin Regulation, thus offering the possibility of analysing a ‘chain’of
subsequent cases for their impact. In addition, it set a record for the number of third-party
interveners.
12
By contrast, four relatively high-scoring cases were rejected in terms of
relevance either because of the narrow scope of persons affected or because strong doubts
10
As such, it incorporates what Helfer refers to as ‘erga omnes effectiveness’, a perspective that looks at the
wider systematic impact that judgments have on states other than those involved in a dispute. See also
Helfer and Voeten, ‘International Courts as Agents of Legal Change’.
11
The search tag used in Google was the application number of the case and ‘ECHR’(both in quotation
marks). Similar results were not taken into consideration. On Google Scholar, the same search was
performed with ‘European Court’instead of ‘ECHR’in order to prevent the showing of unrelated articles
from disciplines. The results for G, GS, and E were standardized against expected hits because the
amount of hits is correlated to the time that has passed since the judgment was delivered. Expected hits
were computed based on the correlation between time and hits for all the preselected cases, with outliers
removed. Values higher than 1 imply higher-than-usual relevance, whereas values below 1 denote lower-
than usual relevance. The value can also be used to draw conclusions as to the degree of relevance. For
example: M.S.S. received 7.51 more Google Scholar hits than expected, while Darren Omoregie counted
0.75 times the hits than were expected. These values are thus across cases and years.
12
It thus warranted inclusion even if other indicators were not as precise. The reason for this was that the
ruling was delivered only about half a year before the indicators were computed.
8introduction
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existed about their value for vulnerable migrants.
13
For the CJEU, five rulings were selected.
Elgafaji,Zambrano and N.S. and M.E. all display high numbers of third-party interveners,
standardised search engine scores and references by both courts. Another two decisions
from the Netherlands were added to that selection, both dealing with applications of
homosexual asylum seekers. While the cases have received substantive interest from
third-party interveners and score comfortably above average on the search engine indica-
tors, they are especially interesting because they were closely related and decided by the
Court in quick succession. The high importance of the five selected cases is also under-
scored by the fact that four of them were handed down by the Grand Chamber. As in in the
case of the ECtHR, one high-scoring case was not selected because the legal outcome did
not appear valuable from the standpoint of migrant rights protection.
14
Looking at the
entire range of judgments by both courts, they involve seven states: the Netherlands (three
times), Belgium (twice), Greece, the United Kingdom, Ireland, Switzerland, and Italy (one
case each).
15
The ‘sample’of cases ends up being representative as the countries also feature
prominently in the list of preselected rulings.
16
Table 1.1 Selected key cases and their proxy indicators’scores
Case Name RS C YD I G GS CJ AG E
European Court of Human Rights
M.S.S. BE/GR G 2011 4(2) 1.33 7.51 2 5 1.36
Hirsi Jamaa IT G 2012 1(0) 1.49 5.08 1 1 0.84
Tarakhel CH G 2014 9(5) 1.05 0.38 0 0 0.71
Court of Justice of the EU
Elgafaji NL G 2009 8(7) 1.45 1.11 2 4 4
Zambrano BE G 2011 8(7) 3.29 5.06 7 8 4
N.S. and M.E. UK/IE G 2011 18(13) 2.46 3.72 5 10 5
X, Y and Z NL 4 2013 6(4) 1.53 2.05 3 3 1
A, B and C NL G 2014 7(5) 1.40 1.08 0 0 0
RS = Respondent State, S = Section (G = Grand Chamber), YD = Year of Decision, I = Interveners (thereof Member
States), G = Google prominence, GS = Google Scholar prominence, CJ = References in CJEU Judgments, AG =
References in AG Opinions, E = Prominence in ECtHR decisions (for ECtHR) / References in ECtHR decisions (CJEU)
Search results as of 30 July 2015
13
More specifically, Saadi v. Italy and Chahal were concerned specifically with persons suspected of
terrorist activities. The high scores for Mamatkulov can be explained by the Court’sfinding that the
non-compliance with interim measures amounted to a violation of Article 34 of the ECHR. While
constituting an important general precedent, its practical effect is limited to persons such as migrants
who have applied to the Court. Finally, in Saadi v. the United Kingdom, the Grand Chamber tackled the
question of immigration detention but did not find a violation of the Convention.
14
The Dutch case of O and B is not particularly rights-affirming as it required third-country nationals
wishing to settle in the country of their EU national spouse to show that the former had been ‘genuinely’
resident in the EU country of which they were not a national, but in which they had lived previously. The
key case favouring the rights of migrants is Zambrano that, having higher scores on the proxy indicators,
was selected for a detailed analysis.
15
Indeed, Italy also played a central role in Tarakhel where the ECtHR was confronted with the question of
whether a family of asylum seekers could be returned from Switzerland to Italy under the Dublin regulation.
16
See Tables A.1 and A.2 in the Annex.
1.3 methodology and case selection 9
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Combining legal analysis with empirical perspectives upon the impact of the judgments,
the evaluation provided in the first part of this book represents a sociolegal study that
combines methodologies of different disciplines. Legal analyses of the import of rulings
forms the basis for the assessment of law development effectiveness. Here, discussions also
notably include those relevant cases that emerged later than the selected rulings but which
could not, for practical reasons, be included in the detailed effectiveness analyses.
17
The
second and third dimensions of case-specific and strategic effectiveness required the
processing of empirical information, including statistical data,
18
grey literature such as
policy and NGO reports, media sources, as well as submissions to and conclusions of
monitoring bodies such as the Council of Ministers of the Council of Europe (CoE).
Furthermore, twenty-five qualitative interviews were conducted across Europe between July
2014 and January 2016, featuring twenty-eight persons who were either directly involved in
the selected cases or engaged in devising and coordinating legal strategies to promote
migrant rights. Using a snowball technique, the list of interviewees included six legal
representatives of migrants, eight government officials, three judges from one of the
European courts, eight NGO representatives and two persons working for a relevant
international organisation. Interviews were semi-structured, using interview guides, and
lasted between thirty to a hundred minutes.
1.4 Outline of the Book
As stated, this work is divided into two parts, each of which is concerned with a specific
aspect of the demanding character of migrant rights. In the first part covering Chapters 1–4,
the word ‘demanding’represents a gerund as we explore how and to what effect claims can
be made before the two European courts on behalf of vulnerable migrants. The basis for this
analysis is the assessment of the eight key judgments mentioned above. The second part,
which encompasses Chapters 5–8, builds on the first part and discusses in more conceptual
terms the consequences that arise from migrant rights being invoked. The word
‘demanding’here takes the form of an adjective, drawing attention to the challenges that
such demands create for the two European courts, migrant rights litigators and society in
general.
Chapter 2 analyses whether the European courts have been able to ensure the protection
of vulnerable migrants who struggle to legitimate their claim to residency, arguably the
most important precondition for accessing a whole range of other rights. The focus will be
on four high-profile rulings, all of which have been delivered by the CJEU. The first case,
Elgafaji, dealing with claim of persons originating from countries characterised by high
degrees of generalised violence, reveals how the Court’s approach, if not fully committal,
17
More specifically, practical effects (on policy and actors) often become clearly identifiable only after some
time has passed. The inclusion of later cases could have also caused methodological problems given the
resources and time intensity of the three-pronged effectiveness evaluation. For the legal analysis, all
rulings were taken into account that were delivered before July 2018.
18
Quantitative data concerning the numbers of migrants coming into and moving across Europe were
taken from Eurostat, the European Commission’soffice for statistical information. Data points were also
extracted from the HUDOC and EUR-Lex databases that give access to the decisions of the ECtHR and
the CJEU. The HUDOC database can be accessed at http://hudoc.echr.coe.int/eng, while the EUR-Lex
database can be found at http://eur-lex.europa.eu/homepage.html?locale=en.
10 introduction
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can lead to confusing and therefore suboptimal outcomes from the perspective of migrant
rights. The protection from persecution on the grounds of sexual orientation is the subject
of two closely interrelated rulings in X, Y and Z and A, B and C. Taken together, these
provide some indication of how the decisions of the European courts can have a practical
impact in buttressing and even accelerating progress in contexts where practices are already
changing. The last part deals with a somewhat different claim based on family ties, focusing
on the contentious Zambrano case. Here, the CJEU used subsequent rulings to actively
backpedal when it presumably went too far for EU Member States.
The third chapter deals with some of the most acclaimed judgments of the European
courts as it evaluates three cases that are concerned with the controversial returns of asylum
seekers under the EU’s Dublin Regulation, whose main features will shortly be introduced. As
will become clear in the detailed analysis of M.S.S., the ECtHR engaged in active law
development by challenging the presumption that such transfers are per se in accordance
with human rights standards. However, other rulings, including notably the CJEU’s decision
in N.S. and M.E., undermined this progress temporarily, requiring the ECtHR to reaffirm its
stance once again in Tarakhel. While all three cases display a high degree of strategic
orientation, the systemic impact of these judgments has been relatively limited to a morator-
ium regarding transfers to Greece. The evaluation of case-specific effectiveness in this area
relates mostly to specific cases or to instances with similar sets of facts and is achieved either
through the executive or the domestic judiciary rather than through legislative amendments.
The shorter Chapter 4 concentrates exclusively on the ECtHR ruling in Hirsi. This
decision on a ‘pushback’operation by the Italian authorities in 2009 received a lot of
attention and remains hitherto the only notable pronouncement on the growing tendency
of states to externalise migration control. The somewhat more tentative analysis of the
various dimensions of effectiveness begins by contextualising Hirsi within a larger body of
rulings of the ECtHR concerning extraterritorial human rights obligations, on which this
judgment is firmly based. However, the argument will be made that the decision is not as
significant as usually portrayed, particularly because Italian policy had already changed
before the judgement. What is more, the applicants represented only a fraction of the actual
passengers on the migrant boat, with the question of compensation also raising doubts
regarding the import of the case. The strategic impact is high insofar as the symbolic value
of the judgment is concerned but lower in practical terms.
The second part of the book begins by addressing the first demand that migrant rights
create for the (European) judiciary. More specifically, Chapter 5 recounts how adjudication
by the European courts displays incoherence, doubt, and ambiguity as they become
permanently involved in migration affairs. This, in turn, gives domestic courts and govern-
ments the opportunity to adopt their own and often narrower interpretations of the case
law, with also potentially adverse consequences on the reputation and authority of the
European courts in the longer term. Referring to this phenomenon as ‘dilemmatic adjudi-
cation’, this chapter proposes an alternative and strategic approach to adjudication that
actively anticipates ‘hard cases’and establishes common guidelines on dealing with the
issue across courts and chambers. It further outlines how the concept of ‘vulnerability’of
particular groups, already regularly invoked by the ECtHR, could be build up as a legal
principle that enables the courts to develop a progressive and consistent case law. The
chapter finally addresses the question of the reputational legitimacy of the two courts,
arguing that it could be reinforced in this domain: for example, by elevating the status and
visibility of post-judgment monitoring mechanisms.
1.4 outline of the book 11
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In Chapter 6, the focus shifts towards migrant rights defenders as the question is
addressed of whether strategic litigation in Europe can be optimised against the background
of the demanding character of migration rights. Offering a broad review of the literature, it
first defines some of the characteristics and constraints inherent in strategic litigation. Based
on these parameters, it then explores the issue of case selection, using insights from the first
part of the book to illustrate how cases arise in practice and how such modalities entail
sometimes positive, sometimes negative consequences for migrants and their defenders.
Another important aspect dealt with in this chapter is consolidating actions to be taken
both at the national and the European level, their objective being the optimal ‘exploitation’
of existing case law. Finally, attention is turned to tactics that actively ‘set the stage’of
litigation to enhance the judicial and that could reinforce the reputational capital of the
European courts.
Chapter 7 seeks to contribute to human rights theory, arguing that a reconceptualization
of human rights as existential commitments is necessary if migrant rights are to become a
reality in Europe. It begins with a brief presentation of seminal scholarship that, based on
societal arguments related to dependency, identity and costs, has drawn attention to the
inherently contested and uncertain character of migrant rights. It then turns to human
rights theory for answers to these objections, finding that these can be found neither in
approaches that solidify human rights as law nor in those that equate it to social norms.
Instead, it affirms that the most adequate response can be found in recent works that have
conceptualised human rights as existential commitments, though adding to their phenom-
enological account a perspective of human rights as self-conception held by persons and
societies. Depending on their identity, human rights can be more or can be less demanding.
The final section of this chapter returns yet again to the legal sphere and more specifically to
the principle of vulnerability. The argument, here, is that vulnerability conceived as a
‘socially induced’condition could be used to reconnect legal and existential human rights
commitments that exist in Europe, thus offering the European courts a tool to promote
migrant rights in line with the expectations held by society.
The concluding chapter brings together the insights from both parts. It offers a conclu-
sive evaluation of the effectiveness of the European courts as institutions protective of
vulnerable migrants. It also returns to the question of the ‘demandingness’of migrant
rights, summarising the arguments made in the second part while also relating them to the
wider context of migration politics in Europe and the direction of scholarship in this
domain.
12 introduction
available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108677837.004
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