Fifteen Eighty Four

Academic perspectives from Cambridge University Press


The Dilemma of Migrant Rights

Moritz Baumgärtel

Controversies surrounding the treatment of vulnerable migrants top the news almost daily. And while quite expectedly framed in terms of human rights – the moral lingua franca of our age – it may still be surprising to see the extent to which Europe’s human rights institutions are directly involved in day-to-day developments. The most recent headline, Italy’s arrest of “Sea Watch 3” Captain Carola Rackete, is a point in case. Preceding Rackete’s decision to force her way into the port of Lampedusa was a denial by the European Court of Human Rights of a request for interim measures that would have allowed the passengers to disembark from the boat without any standoff. The Court, however, did not find the conditions on the search and rescue vessel to give rise to “an imminent risk of irreversible harm” to the applicants, which is the legal threshold that such requests must meet. In short, the migrants on board of the “Sea Watch 3” were simply not vulnerable enough.

In short, the migrants on board of the “Sea Watch 3” were simply not vulnerable enough.

It is not difficult to imagine the reverse legal outcome. Faced with a decision on the facts in a highly volatile and confusing situation, the Court could have made a perfectly sound legal argument in favour of disembarkation. It did not. A mere coincidence or part of a larger pattern?

My book Demanding Rights tackles this question systematically, for the first time employing a socio-legal approach to evaluate key judgments of the European Court of Human Rights and the European Court of Justice. The eight rulings, all delivered between 2009 and 2014 and therefore before Europe’s refugee “crisis”, are commonly referred to either as clear “wins” for migrant rights defenders or as outright game-changers in stemming the tide of increasingly restrictive migration policies. But a closer assessment of the evidence reveals a much more mixed picture, which is in tune with the disturbing turn of events that we have all witnessed since. Whether it is the extent to which the two European courts are able to “develop” the law concerning the rights of migrants, to provide meaningful compensation to individual applicants or to influence migration policies beyond or even within states that are parties to the proceedings, their impact generally (though not always!) falls short of the expectations that legal professionals and scholars unassumingly hold.

Demanding Rights is, in this sense, firstly an effort to encourage more extensive and interdisciplinary evaluations of judicial outcomes. Such will be needed once the courts rule on important pending questions such as Italy’s involvement in Libyan “pullbacks” in the Mediterranean. Yet, it must be kept in mind that migration is a domain unlike any other. Migration scholarship teaches us that its character is defined by a unique blend of politicization, racism, identity politics, economic rationales and a structural deficiency in the “right to have rights”, as Hannah Arendt once put it. There is no reason why judiciaries should not be affected by these conditions that have turned migration into one of the most divisive issues of our time. Harnessing the potential of the European Court of Justice and the European Court of Human Rights – in fact two of the most authoritative international courts – can therefore only succeed if based on an appreciation of the demanding nature of migrant rights. The second part of the book sets out how this insight could inform the approach of judges, litigators and human rights scholars. The premise is that realizing the rights of vulnerable migrants is a complex (though not an impossible) task that requires significant adjustments at multiple levels of intervention.

To return to the situation of Captain Rackete, who has in the meantime been released from detention by an Italian judge – her case is now pending before the European Court of Human Rights. The dismissed injunction, while not prejudicial, does not to bode well legally speaking for her claim that Italy had violated European human rights law by denying the ship entry into the port of Lampedusa. But the Italian government might also end up celebrating a Pyrrhic victory. Indeed, Italy’s Interior Minister has been quick to invoke the Court’s rejection in his social media campaign against Sea Watch, unwittingly reinforcing its discursive legitimacy (which could backfire in the future). In the few days since Captain Rackete’s initial arrest, the NGO has also been able to raise over a million euros in donations, which it will use to promote the rights of migrants in distress both on the high seas and in the discursive arena. Perhaps most importantly, the migrant rights movement has, for the first time, a young and authentic face. The potential significance of this becomes clear when looking at the global climate movement. If anything, these effects illustrate the contingency of migrant rights and the importance of taking a second look at the impact of any legal outcome.

Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability (May 2019) is now available to purchase here.

About The Author

Moritz Baumgärtel

Moritz Baumgärtel is an assistant professor at the Faculty of Law, Economics and Governance of Utrecht University and at University College Roosevelt. He is also a fellow of the N...

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