Abstract
Europe's external borders have been the site of intense human rights struggles over the last decade. While States are inventing ever new practices to circumvent their human rights responsibility by not responding to rescue calls or using private actors as proxies for refoulement, human rights activists seek to expand State jurisdiction to effectively hold European governments responsible for human rights violations at their borders and on the high seas. At the same time, the rise of populist movements and increasing xenophobia have made expansive human rights interpretation to the benefit of migrants increasingly suspicious in public discourse. The question therefore arises: Does the expansion of migrants’ human rights and State responsibility bear features of ‘human rights overreach’ in the sense that human rights encroach too much on State sovereignty, which may ultimately decrease the acceptance of human rights themselves? Or is it a necessary ‘outreach’ of human rights, that is, an adaptation of human rights to new practices of border protection in order to ensure human rights’ effectiveness?
This paper addresses these questions in three steps. It first briefly presents current struggles about migrants’ human rights in the Mediterranean. It then deals with the increasing critique of human rights overreach in migration matters and assesses judicial practice in reaction to increasing State pressure. The core argument finally developed in this paper is that we should respond to the allegation of overreach by advancing a more political understanding of human rights, which acknowledges the methodological limits of regressive human rights interpretation and defends the idea of human rights as a concrete utopia. The paper develops this argument with a view to the concrete case law on migration issues and suggests how courts and migration law scholars should deal with the challenges of human rights struggles regarding migration.
Keywords
INTRODUCTION
On 27 January 2021, the Human Rights Committee (HRC or Committee) found that Italy had violated Art. 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) by not taking sufficient measures to rescue 200 migrants in distress in the Mediterranean. 1 The HRC held that, due to the close communication between the migrants on board and the Maritime Rescue and Coordination Centre in Rome and the proximity of an Italian naval ship, Italy had sufficient control over the situation to be held responsible even outside its search and rescue zone. Despite receiving several distress calls, both Italian and Maltese authorities had not provided immediate rescue, but rather tried to pass responsibility to the other. This case is paradigmatic of the intense human rights struggles at Europe's external borders over the last decade. While States are inventing ever new practices to circumvent their human rights responsibility by not responding to rescue calls or using private actors as proxies for refoulement, human rights activists seek to expand State jurisdiction to effectively hold European governments responsible for human rights violations at their borders and on the high seas. At the same time, the rise of populist movements and increasing xenophobia have made expansive human rights interpretation to the benefit of migrants increasingly suspicious in public discourse. The question therefore arises: Does the expansion of migrants’ human rights and State responsibility bear features of ‘human rights overreach’ in the sense that human rights encroach too much on State sovereignty, which may ultimately decrease the acceptance of human rights themselves? Or is it a necessary ‘outreach’ of human rights, that is, an adaptation of human rights to new practices of border protection in order to ensure human rights’ effectiveness?
These questions will be at the core of this paper. The next section provides a brief description of the human rights struggles regarding migration control at the EU's external borders (Section 2). I then present three strands of critique arguing that protection of migrants’ human rights at the border is too excessive, that is, that it constitutes human rights overreach (Section 3). This critique merits closer attention as it is often justified with serious concerns about the effectiveness and authority of human rights. The fourth section offers an assessment of the overreach claims in the light of interpretative practices by which courts try to accommodate increasing political pressure in migration matters and the political nature of human rights struggles. I also present strategies by which courts could take the political dimension of human rights better into account (Section 4). My ultimate point is to show that the allegation of overreach is genuinely a politically motivated critique that should be countered by defending the idea of human rights as a concrete utopia. 2 I conclude with a brief summary and possible research agendas for the future (Section 5).
HUMAN RIGHTS OUTSOURCING AND HUMAN RIGHTS OUTREACH AT EUROPE'S EXTERNAL BORDERS
Just a decade ago, it seemed that human rights protection of migrants at the EU's borders had made significant progress. In 2012, in Hirsi Jamaa, the Grand Chamber of the European Court of Human Rights (ECtHR or Court) held that a ‘pushback’ operation by an Italian military vessel outside territorial waters, constituted a breach of the principle of non-refoulement under Article 3 of the European Convention on Human Rights (ECHR) and violated the prohibition of collective expulsion under Article 4 Additional Protocol No. 4 (P4). 3 For many scholars, this signalled that the Court would be willing to accept the extraterritorial application of human rights in ‘pushback’ situations to ensure effective access to protection. 4 Safeguards in particular against ‘hot pushbacks’ – that is, the act of returning migrants before reviewing their need for protection – seemed to be further supported by decisions of the chambers of the ECtHR stressing the right to effective access to protection. 5
Meanwhile, the EU and its Member States increasingly sought to outsource rescue obligations and pushbacks of migrants to third-party countries, 6 while retaining control over the situation through strategic planning of the rescue operations and occasional operational involvement. 7 For years now, the EU and its Member States 8 have been providing critical infrastructure and financial support to enable the Libyan Coast Guard to prevent departures to Europe and return migrants in distress in the Mediterranean to Libya. 9 The EU Member States seem to have brought their outsourcing activities to precision by instructing private vessels instead of naval vessels to rescue migrants in distress, thereby organising ‘privatised push-backs’. 10
Scholars have tried to answer outsourcing strategies by developing new doctrinal arguments to ensure human rights accountability at the EU's external borders, 11 some of which have translated into litigation strategies before the ECtHR. 12 Violeta Moreno-Lax has developed the concept of functional jurisdiction to overcome the exceptional status of extraterritorial jurisdiction. 13 Functional jurisdiction combines criteria for determining jurisdiction, which have been previously used by the ECtHR, 14 and understands jurisdiction as a ‘multifactorial and composite’ exercise of governmental ‘functions’. 15 The core question then is no longer one of spatial or personal control alone, but whether a State's action is determinative of the course of events. 16 This would allow establishing jurisdiction also in situations where EU Member States deliberately seek to avoid their responsibility for human rights violation, but still have determinable control over the situation through strategic policy-making and cooperation. A similar functional understanding of jurisdiction has been applied by the HRC in A.S., where the Committee found the determinable control exercised by Italy sufficient for declaring a breach of human rights. 17 While some welcomed and celebrated this decision, 18 others were more critical. 19
The case for functional jurisdiction and the criticism it has received in scholarly debate reflect a deeper controversy between a liberal-conservative concept and a universalist-transformative concept of human rights. 20 The liberal-conservative concept stresses the limits of human rights’ reach as being just one out of many international legal orders. It emphasises the remaining State sovereignty beyond the reach of human rights and thereby also defends the status quo of international power relations. By contrast, the universalist-transformative concept of human rights asserts that any State action should trigger human rights application irrespective of its territorial dimension and sees human rights as a tool for transforming existing power imbalances. As the latter posture threatens to reduce State discretion in migration matters, it does not come as a surprise that it has also met with extensive criticism.
HUMAN RIGHTS OVERREACH: THREE OF THE ARGUMENTS IN MIGRATION LAW
Accusations that human rights jurisprudence and scholarship have gone too far in constraining State sovereignty in migration matters are not limited to the issue of extraterritorial application. They often also aim to criticise the scope and quality of protection of migrants in international human rights law. 21 I suggest understanding this critique as part of a larger debate on ‘human rights overreach’. ‘Human rights overreach’ here denotes an increasing trend in academic discourse to emphasise the limits of human rights as a tool for social change, 22 to stress their allegedly unjust effects, 23 and highlight the perils of expansive human rights interpretation for the acceptance and the impact on human rights. 24 The argument of human rights overreach is not limited to the field of migration law. It has forcefully also been raised in more general terms, 25 often with a view to social rights protection 26 or the role of human rights in combatting climate change. 27 Such criticism merits closer attention, as it often stems from a serious concern about the survival of the international and European human rights architecture in times of increasing skepticism towards international 28 and human rights courts. 29 Given the increasing politicisation 30 of migration issues in recent years and the rise of right-wing populism throughout Europe and the world, it does not come as a surprise that the allegation of excessive human rights interpretation is also motivated by nationalist or xenophobic positions in political discourse. 31 In the following sections, I shall distinguish three distinct versions of the allegation of ‘human rights overreach’ in the context of migration law capturing both academic and political opposition.
Overreach as a threat to effective protection of migrants’ human rights
A first concern is that expansive extraterritorial application of human rights might be detrimental to the effective protection of migrants as it might incentivise new strategies of evasion of State responsibility not only in human rights law, but also in other international legal regimes. One might argue that it is the other way around, namely that expansive interpretation of the scope of human rights reacts to evasive State strategies. Nevertheless, the concern of the critics here can be understood strategically: if expansive applicability, in the end, leads to less human rights compliance, the overall goal to ensure effective human rights protection will be endangered.
In his dissenting opinion on the A.S. case, HRC member Andreas Zimmermann raised precisely this concern. He argued that a broad applicability of the ICCPR to situations where persons are found in distress at sea either in the SAR zone of a State party or close to a ship of the public authorities of a State Party could have ‘the very unfortunate effect of State parties of the Covenant no longer be willing to undertake such obligations […]’. 32 To escape human rights responsibility, States might even avoid coming close to any vessel in distress at sea, thereby undermining the very system of rescue at sea as established under the international law of the seas. It does not seem far-fetched that States would not only try to avoid contact with migrants, but also erect more effective barriers to prevent access to their territories. Moria Paz has shown that this dilemma is not limited to the high seas, but applies to borders more generally. 33 She criticises broad interpretations of human rights applicability based on physical proximity for incentivising States to build up more rigorous barriers for migrants and to avoid contact with anyone who might wish to seek asylum. 34
While it cannot be denied that an expansive human rights interpretation might precipitate new strategies of circumvention, the allegation of overreach seems to assume a unidirectional causality between expansive human rights interpretation and evasive strategies. 35 The invention of more indirect forms of refoulement after the Hirsi judgment seems to confirm such a causality. 36 Things may, however, not be as simple. It was also after Hirsi that Italy started its mare nostrum operation (2013–14) aimed not only at combatting smuggling, but also at rescuing migrants at sea. At the very least, the expansive human rights jurisprudence did not disincentivise the Italian government from rescuing and protecting migrants at sea at the time. 37 Moreover, it might well be that States are strengthening border protection ipso facto while being confronted with an increasing number of migrants. Today, keeping migrants at bay is a deeply rooted strategy applied by the EU and its Member States 38 and has sometimes even been disguised as a solution to the ‘root causes’ of migration. 39 In reality, however, instead of addressing poverty, war, and persecution in the countries of origin, these strategies rather focus on shifting the burden to third countries to prevent arrivals in Europe. 40
Nevertheless, critical reflections on expansive human rights interpretation should not be easily dismissed. A growing strand in legal scholarship on strategic litigation in migration law reminds us that ensuring the protection of migrants through expansive human rights interpretation may turn out to be a ‘cat-and-mouse-game’. 41 It involves the risk of pyrrhic victories and side effects, detrimental to the effective protection of migrants in the long run. 42 This is not to make a case against strategic litigation. It recalls, however, that a careful assessment of the perceived victories in the protection of migrants is advisable.
Overreach as a threat to the authority and legitimacy of international human rights law
A second aspect of the overreach argument concerns itself with the effects of expansive human rights interpretation on the legitimacy and authority of international human rights law. The fear is that expansive human rights interpretation could lead to legal or political backlash. 43 This is based on the familiar assumption that migration matters and particularly decisions regarding admission remain a core domain of State sovereignty. 44 State discretion in migration matters should, therefore, be limited only exceptionally. Such a reticent stance is particularly advocated, when in the given political environment right-wing populists are seeking to exploit the issue of migration to attack the very legitimacy of international courts. 45
In political terms, the risk is that governments might seek to appease right-wing populists at home by increasingly criticising international human rights courts, refusing to effectively implement judgments or even threatening to withdraw from human rights treaties. 46 This is aptly illustrated by the initial version of the Copenhagen Declaration on the reform of the Council of Europe's (CoE) Human Rights System during the Danish Presidency of the Committee of Ministers of the CoE (2017–18). Taking issue with the requirements for expulsion of criminal foreigners developed in the ECtHR's case law, the Danish government openly criticised the dynamic interpretation of the Court. 47 With the goal of ensuring the support of the far-right, the Danish People's Party, the minority government then in power orchestrated an open attack on the ECtHR. 48 Both the Prime Minister and the Minister of Justice labelled the case law as incomprehensible and out of sync with common sense. 49 The declared aim of the Danish Presidency was to ‘bring the Convention back to its core’. 50 The draft version repeatedly mentioned the issue of State discretion in the field of migration law to be protected from the ECtHR, which ‘should not act as a court of fourth instance, nor as an immigration appeals tribunal’. 51 It also said that interventions by the ECtHR should be limited to ‘the most exceptional circumstances’. 52 The Danish government suggested institutionalising dialogue between governments and the Court, which NGOs feared could soon place undue political pressure on the Court. 53 While political opposition to this draft along with the constraining effect of diplomatic negotiations finally led to a much-defused declaration, 54 the episode broadly depicts how governments may use migrant-friendly human rights interpretation to attack the authority of international courts to please right-wing political forces at home.
In legal terms, the fear is that an increasing political critique of decisions by international courts combined with the threat of State party withdrawal may have a chilling effect on international human rights jurisprudence that can ultimately affect the legitimacy of supranational courts. 55 Acting strategically to avoid a loss in necessary State support, international courts may start to reverse some of their more progressive interpretations and apply a more reticent stance in the future. The judgements of the Grand Chamber in Khlaifia and N.D. and N.T. are a case in point as they are perceived by many as a clear backlash. 56 It can hardly be denied that the increasing pressure by right-wing populist movements around Europe and the increasingly authoritarian tendencies of some of the governments exert immense pressure on the ECtHR. 57 At the very least, such a political environment increases the Court's costs for progressive and migrant-friendly interpretations of human rights significantly. Human rights courts are increasingly confronted not only with reluctant compliance, but also with open criticism and threats to their very legitimacy. Nevertheless, causality is again an issue here: Is it the case law that produces political backlash or is political backlash creating a hostile atmosphere to migrants’ human rights irrespective of the case law? It is just as likely to assume that more State discretion will help mitigate the threats of right-wing populism, as it is to assume that attacks will continue anyway, unless the courts fully defer to State interests. Moreover, courts’ legitimacy might also be negatively affected if they become too deferential to States’ behaviour and are ultimately viewed as weak or ineffective actors.
Overreach as a threat to political decision-making in migration matters
A final aspect of the overreach argument criticises overly expansive human rights protection of migrants for depoliticising and eventually moralising migration control. 58 This line of critique basically claims that by making migration an issue of human rights, decisions about inclusion and exclusion tend to be presented as an issue of morality and no longer as an issue of political preference. 59 By mobilizing, in particular, a language of absolute human rights, migrant-friendly actors allegedly seek to present every potential counter-argument as per se illegitimate. 60 This version of the overreach argument echoes a more general critique of human rights as a potential ideological tool that tends to negate open political contestation and exclude matters from political decision-making. 61 The allegation of depoliticisation seems to ignore that the very commitment to human rights has been a deliberate political decision and that human rights struggles themselves have a political dimension. Consequently, holding States accountable to these standards is arguably more of a legal and political rather than a moral argument. However, emphasising the need for democratic decision-making, this critique also links to a classic separation of powers argument. Human rights-based strategies typically involve courts as core actors, thereby reinforcing the power of the judiciary. 62 Human rights overreach in this sense implies that non-majoritarian institutions already play an inordinate role in migration matters.
This argument is not easy to deal with. The very idea of establishing human rights is to limit political discretion and draw lines that even the State parties cannot cross. To uphold the idea of human rights, therefore, implies limitations not only to State sovereignty of authoritarian regimes, but also to the discretion of democratic legislators. This, however, does not mean that any human rights argument ends up in moralising public discourse, as law can be distinguished from morality per se through its own rationale and methodology. 63 Nor does it imply that any argument for progressive or expansive human rights interpretation is an illegitimate political instrumentalisation of human rights against democratic will-formation. Quite to the contrary: it is precisely through reassessing and rearticulating the political in human rights that we can counter such allegations, as I will posit in the next section.
COURTS IN POLITICISED HUMAN RIGHTS STRUGGLES: TOWARDS A MORE POLITICAL UNDERSTANDING OF HUMAN RIGHTS
Concerns regarding overreach challenge the assumption that human rights are by necessity a progressive project leading to ever more protection and raise the question of whether human rights also allow for backward development. To assess the persuasive power of the overreach allegation, as a first step it is helpful to bring to mind the political dimension of human rights and their relation to law's relative autonomy (Section 4.1). As a second step, I will examine five techniques through which courts try to address State pressure towards a more restrictive application even when assessing violations of absolute human rights (Section 4.2). I assert that only some of these strategies can be methodologically defended. As a third step, I will then explore how human rights courts could alternatively deal with the challenge of increasing State pressure in order to keep human rights open for a universalist-transformative reading (Section 4.3). Finally, I will get back to the allegation of excessive political overreach through expansive human rights interpretations (Section 4.4). I will argue that this allegation is not supported by interpretative practice and that it negates the inherent political nature of human rights conflicts while masking its own political intentions.
The political dimension of human rights struggles and the limits of regression
Due to the relative indeterminacy of law and the persistence of political conflict in modern societies, any human rights conflict is loaded with political preferences (Section 4.1.1). The relative autonomy of law nevertheless allows the identification of methodological limits of regressive interpretation (Section 4.1.2).
Human rights struggles and the relative indeterminacy of law
Human rights law just like any other law does not have an unequivocal meaning that just needs precise articulation in legal practice. Rather it is necessarily indeterminate. 64 Therefore, the concrete level of protection and scope of a human right is always the result of struggles for hegemony and is shaped by power structures in societies. 65 The idea that there is an inbuilt telos that pushes human rights always towards more extensive protection 66 can be explained by its aspirational character, but sits uneasily with the political reality of human rights struggles. There is no automatic progress inbuilt in human rights. Much rather, whether there is progress and what it actually means in practice is part of an ongoing legal and political struggle regarding the concretisation of human rights.
Even where open political conflict is channelled in legal procedure, the potential for renewed legal contestation and even open political opposition persists. In particular, as Martti Koskenniemi emphasizes, 67 in international law any solution to a legal problem needs to ensure both concreteness, that is, responsiveness to State will as the justificatory basis of international law, and normativity in the sense of independence of State will. Since concreteness and normativity are conflicting notions, any legal decision can be criticised for either being apologetic (lack of normativity) or utopian (lack of concreteness). 68 A decision may be re-politicised for instance by claiming a more deferential interpretation or new exceptions to protection. Arguing that the prohibition against collective expulsion should not apply to persons who have committed ‘culpable conduct’ by crossing the border illegally as the Spanish government did in N.D. and N.T. is precisely this sort of claim. The goal is to bring the decision on access to asylum procedures back into the realm of State discretion, where it is then decided on the basis of political preferences.
Given the irreducibility of political conflict in modern societies, 69 it is hard to see how limiting human rights to minimum core obligations, as suggested prominently by John Tasioulas, would facilitate consensus regarding human rights protection. 70 Tasioulas's hope is that a substantial constraint of human rights obligations would mitigate backlash and enhance the acceptance of human rights. 71 However, as appealing as such an approach might seem, it does not sufficiently explain why the content and scope of minimum core obligations should be any less contested than other human rights provisions. The struggle with the interpretation of Article 3 ECHR, a norm that can easily be considered to be universally accepted, illustrates that persistent political conflict renders consensus on the concrete obligations illusory. Are there no limits then to regressive human rights interpretation when political power shifts?
Human rights and the relative autonomy of law
I maintain that law's formal structure still allows the identification of methodological limits of interpretation, even if such limits are typically hard to locate in practice. 72 By limiting valid arguments in judicial proceedings to arguments controlled by legal methodology, law establishes a relative autonomy towards political power and develops its own internal logic. 73 This does not imply that it is possible to identify only one legally valid solution to a case, but it makes it possible to distinguish arguable legal claims from non-arguable claims. 74 However, given the implicit political premises of any interpretation and the particular relevance of State power in international law, law's autonomy is always only relative. 75 From this perspective, human rights law gains legitimacy by shielding law against direct political pressure. For if law becomes perceived as arbitrary or as simply masking political power or a concrete political project, it ultimately loses its legitimacy. Law's legitimacy crucially depends on the ability of many to identify with it, thus requiring openness for constant re-evaluation 76 and presupposing impartiality in the sense that everyone can hope to be able to win a case on the basis of legal arguments. On a rather abstract level, relative autonomy requires distinguishing between struggles regarding the content of human rights and the practice of attacking the human rights system as such or denying the binding force of a right altogether. While the latter constitutes a political act outside (or even against) the law, the former remains in the legal sphere of argumentation even if politically motivated. However, this line is not always easy to draw.
In international law, the relative autonomy of law is particularly precarious given that States have the power to amend international treaties according to their preferences. According to Art. 31(3) of the Vienna Convention on the Law of Treaties (VCLT), States’ interpretation and application of the law can qualify as subsequent practice, which needs to be taken into account when interpreting a treaty. What does this mean for the practice of human rights? Can States shape the content of human rights by simply opposing a particular interpretation even where a court has the last word on the interpretation (as reflected in Article 32 ECHR)? Human rights need to be distinguished in this respect from other international treaties, because they aim at establishing limits to State discretion to protect the position of the individual. The rules of the VCLT, however, primarily envisage bilateral treaties solving conflicts of interests between States. By contrast, they do not fit well to multilateral treaties aiming at protecting individuals against unrestrained State power. Article 31(3) VCLT cannot therefore serve to justify human rights regression merely on the basis of increasing State opposition to the protection of migrants. 77 If that were possible, States would be largely unrestricted in shaping the content of human rights, that is, the very norms that were agreed upon to limit State discretion. In this sense, human rights require a utopian surplus.
Some human rights treaties even provide for explicit prohibitions of regression. Art. 2(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR or Covenant) contains a non-regression clause and explicitly stipulates the aim of progressively striving for the ‘full realisation’ of the rights enshrined in the Covenant. Nevertheless, even the ICESCR allows for some limitation of rights in Article 4 ICESCR and it is still debated whether and to what extent financial constraints can also legitimise some regression. 78 Unlike the ICESCR, other human rights treaties both at the UN and at the regional level do not explicitly prohibit regression of human rights protection. Although the preambles of the ECHR and the ICCPR include a reference to ‘promoting’ (ICCPR) and ‘further realizing’ (ECHR) human rights, these aspirations lack doctrinal effect and force when compared to Article 2(1) ICESCR. In the context of civil and political rights, regression therefore seems to be prima facie legally possible. It is still controversial whether an implicit prohibition of regression can be deduced from the aspirational character of human rights. 79
Despite skepticism in scholarship, human rights courts in fact practice regressive interpretation to balance competing normative and institutional goals and ensure continuing support of States. 80 However, they hardly ever do so explicitly, 81 as precedents – that is, comprehensive and coherent interpretations of a right in prior case-law – significantly raise the bar for justifying diverging or even regressive interpretation. 82 Instead, one of the core doctrinal instruments for continuously re-calibrating the relation between individual and State interests is proportionality review. 83 It allows taking into consideration both individual and State interests as well as the concrete circumstances of a case. Depending on how strict the scrutiny applied is, this may leave more room for State discretion or provide more human rights protection. Moreover, new policy goals and concerns may lead to balancing results that significantly differ from past decisions. In this perspective, international human rights law already possesses doctrinal tools to allow taking into account State interests and nuancing its effects in practice. The elusive practice of balancing has, however, also been criticised for a lack of coherence and reliability. 84
Moreover, proportionality review is not available when it comes to absolute human rights, such as Article 3 ECHR or Article 4 P4. Absoluteness implies that the right ‘admits of no qualifications or exceptions; it cannot be subject to derogation under Article 15 ECHR; and it applies to everyone no matter what’. 85 Consequently, State interest cannot, by definition, be taken into account when applying an absolute right. Therefore, any interpretation leading to a broader scope of protection of an absolute right tends to become immune against later regressive interpretation. On the other hand, there is a serious risk of losing State support and becoming a purely utopian norm should States consider an absolute right to be interpreted in an excessively broad manner. This also seems to be the rationale behind some strands of the overreach critique. How do courts then react to increasing State pressure aimed at curtailing the protection offered by absolute rights?
Coping strategies of courts and the law's formal structure
Given the unavailability of a ‘balancing exercise’ for absolute human rights, courts apply a variety of other techniques to react to State pressure, which are aimed at achieving a more restrictive interpretation of absolute human rights. Due to the law's formal structure, these techniques can be assessed in light of legal methodological standards.
One technique is a stealth balancing of interests in the context of absolute rights. The ECtHR has adopted this strategy notably in Babar Ahmad and others v UK. 86 This case concerned six applicants who invoked non-refoulement under Article 3 ECHR against their extradition from the UK to the US, where they feared to face a mandatory life sentence without the possibility of parole and degrading detention conditions. In a remarkable decision, the Court held that a ‘treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case’. 87 By accepting a distinction in treatment between ECHR States and non-ECHR States, the Court significantly relativised the absolute character of Article 3 ECHR. The Court also contributed to undermining the universality of the protection against torture by suggesting that the minimum level of severity is only exceptionally reached when extradition to a ‘State which had a long history of respect of democracy, human rights and the rule of law’ is concerned. 88 Such an interpretation is clearly at odds with the absolute character of Article 3 ECHR.
A second technique is distinguishing facts rather than justifying potentially regressive decisions. The recent decision in N.D. and N.T. neatly illustrates this practice. While in fact reducing the standard of protection against collective expulsion, the Grand Chamber of the ECtHR based its decision on the peculiar facts of the case. It argued that ‘Spanish law afforded the applicants several possible means of seeking admission to the national territory’ 89 and that the applicants ‘did not make use of these legal procedures, but instead crossed the border in an unauthorised manner (in this instance taking advantage of their large numbers and using force)’. 90 Distinguishing facts and taking context into account in principle lies within the limits of legitimate interpretation even if it leads to some form of relativism. 91 Nevertheless, the assessment and the relevance of facts may be controversial and critics of the Court's jurisprudence may conclude that the Court got the facts wrong. Again, N.D. and N.T. is a case in point. UNHCR and the Commissioner for Human Rights of the Council of Europe argued that access to legal procedures in Spain was effectively unavailable to asylum seekers in Morocco. 92 The Court, however, found their reports to be inconclusive. 93 The lack of a coherent law on evidence before human rights courts further complicates the legal assessment of such practices and transforms legal struggle into a struggle about establishing facts.
A third technique applied by the Court is recalibrating the extent of State obligations required by an absolute human right. The Khlaifia case provides an illustration of this technique. In this case, the Chamber held that Article 4 P4 requires providing a proper individual procedure in which applicants could lodge their protection claim. It based this decision on prior case law 94 and held that the refusal-of-entry decisions issued to the applicants in this case did not sufficiently prove that an individual assessment has taken place as they contained identical wording and ‘did not contain any reference to the personal situations of the applicants’. 95 It further argued that the government ‘failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders’. 96 Unlike the chamber, the Grand Chamber ruled it sufficient that the applicant simply had a ‘genuine and effective possibility of submitting arguments against his or her expulsion’ and that ‘those arguments [were] examined in an appropriate manner by the authorities of the respondent State’. 97 It explicitly held that an individual interview is not necessarily required in any case. 98 Moreover, the Grand Chamber considered it sufficient that other migrants in similar situations had successfully claimed the need for protection, even if the government could not prove that an individual assessment of the concrete applicants had taken place. 99 For the Court, the existence of other successful cases provided sufficient evidence of the general possibility to lodge such a claim. 100 Adapting the extent of States’ obligation under a human right is in principle a methodologically permissible strategy provided that it does not render the accessibility and implementation of a right illusory. 101 Whether this is the case or not depends again to a considerable extent on the interpretation and assessment of the concrete facts at hand.
Limiting the applicability of human rights through a restrictive application of jurisdiction clauses constitutes a fourth technique to accommodate State concerns. Thus far, the ECtHR has limited the extraterritorial application of human rights to exceptional constellations in which a State exercises effective control either over persons or over territory. 102 It is yet to be seen whether the Court is willing to develop its jurisprudence further in the direction of a more functional interpretation 103 and to expand jurisdiction to all situations, in which States actually intend to exercise governmental functions and determine the course of events, even if outside their territory. Restrictive interpretation of jurisdiction clauses can in principle be justified methodologically. As mentioned earlier, whether one tends to interpret jurisdiction broadly or restrictively ultimately depends on the underlying premises about the role of human rights either as universal norms that should bind all State action irrespective of territorial dimensions or as a legal regime that binds States primarily within their territories.
A broad interpretation of jurisdiction may entail the risk of increasing States’ resistance against international human rights more generally as is expressed by some of the overreach concerns. On the other hand, a restrictive interpretation of jurisdiction may have serious repercussions in human rights discourse. In particular, when it comes to protection against refoulement, access to procedure is pivotal due to the lack of a human right to enter a country. Depending on the definition of jurisdiction, outsourcing border control may therefore effectively exclude an entire group from access to protection. Access to protection and protection against refoulement in such a scenario will only be a right in theory for many. Restrictive interpretations of jurisdiction may therefore signal a dual standard to assess State action depending on the site of action. Moreover, if human rights remain silent on evasive strategies rather than adapt to new modes of governance, they risk becoming irrelevant for a significant part of the exercise of public power. It may ultimately erode the credibility and legitimacy of human rights if States can ‘buy out’ their responsibility through cooperation with private or external actors. I suggest that we understand doctrinal attempts such as functional jurisdiction in this specific context. They seek to doctrinally capture a situation, in which a State contributes in such a way to a human rights violation that the lack of accountability would ultimately undermine the very foundations of human rights protection. Rather than constituting an overreach of human rights, such approaches should be understood as a form of human rights outreach intended to secure the universal claim and normativity of human rights. Restrictive interpretation of jurisdiction may therefore be a legally permissible strategy. It will, however, produce at least ambiguous effects in human rights discourse.
Finally, a fifth technique by which courts seek to answer State pressure is inventing new exceptions to the application of an absolute right. This technique is particularly attractive for a court where recalibrating jurisdiction is not available given the concrete facts of the case. In N.D. and N.T., it was quite clear that Spain exercised effective control over the applicants by all standards of the Court. The Court therefore had to apply a different strategy. It asserted ‘that it was in fact the applicants who placed themselves in jeopardy by participating in the storming of the Melilla border fences on 13 August 2014, taking advantage of the group's large numbers and using force’. 104 In view of the Court, this constituted a ‘culpable conduct’ 105 as the applicants did not make use of ‘the existing legal procedures for gaining lawful entry to Spanish territory’. 106 The Court had already ruled in prior case law that a violation of Article 4 P4 cannot be found ‘if the lack of an expulsion decision made on an individual basis is the consequence of the applicants’ own culpable conduct’. 107 However, in Hirsi Jamaa, the Court found a violation of Article 4 P4 despite the fact that the applicants sought to reach Italy in large numbers and without making use of any official procedures for legal entry. The situation was in fact comparable to that in N.D. and N.T. In earlier case law the rationale seemed to be that if the collectivity of the decision resulted from submitting identical cases at the same time, States were allowed to issue identical decisions even under Article 4 P4. 108 However, culpable conduct was not considered to prevent the applicability of the very procedural requirements implied by Article 4 P4. Quite to the contrary, in Hirsi Jamaa, the Court insisted that the lack of ‘any form of examination of each applicant's individual situation’ constituted a violation of Article 4 P4. 109 Hence, collective application for protection did not constitute a reason to exempt States from carefully examining the individual situation of each applicant. Against this background, the Court in N.D. and N.T., de facto introduced a new exception to Article 4 P4 by arguing that the procedural standards implied by this absolute right do not apply if the applicants made use of their large numbers and tried to enter the country outside of the official border crossing points.
Such a practice is difficult to reconcile with the absolute nature of the right. Moreover, there is a serious risk that such a reduction threatens the very universality of human rights in the sense of its applicability irrespective of nationality. Since the ‘culpable conduct’ test is not generally used by the Court to assess the responsibility of States for human rights violations, applying it in the context of a prohibition against collective expulsion at the borders signals that States are less bound to comply with their human rights towards non-citizens or newcomers than they are towards their own citizens and residents. Since human rights by definition apply to everyone, exclusion of a particular group of individuals is hard to justify as it runs counter to the very core rationale of human rights. Human rights then, no longer provide perceptible limits to State discretion towards a particular group of individuals, a situation that may ultimately significantly endanger the authority of human rights and their ability to effectively challenge State power.
As we have seen, shielding human rights from attempts to undermine their authority is a particularly challenging task for courts and human rights bodies in times of high politicisation of the policy issues under review. 110 Politicisation always entails a form of polarisation of discourse that is likely to increase political pressure on the courts. Courts are caught in a dilemma: on the one hand, they risk losing authority and legitimacy if they back down to State pressure and, on the other hand, they risk losing the necessary support of States in implementing human rights and upholding the human rights system, if they expand the scope of protection and applicability of human rights in reaction to evasive strategies. 111 The concrete techniques applied by courts in reaction to increasing State pressure can only partly be defended in light of methodological standards. However, even where they are permissible in this sense, the concrete outcome of a decision significantly depends on the underlying human rights concept. What is more, some of the techniques applied by the ECtHR – such as the invention of exceptions to absolute rights – risk undermining the conditions for a universalist-transformative reading of human rights altogether. Foreclosing such a reading is particularly harmful to the human rights system as powerless and marginal actors typically face an uphill battle in achieving effective protection against an established restrictive interpretation. It potentially runs counter to the very idea of human rights to protect the powerless against State discretion. How can courts then come to terms with the inherent and irresolvable tension between universality and State sovereignty and address the political nature of human rights struggles more directly?
Between State pressure and universality: How could courts react?
In the following section, I will offer a few strategies available to courts to proactively confront increasing State pressure and still preserve the possibility of a universalist-transformative reading of human rights. The desire to ensure reliability of human rights adjudication in spite of increasing political pressure has led some authors to argue in favour of a more strategic adjudication that would also enhance the legitimacy of human rights courts' judgments on migration issues. 112 Moritz Baumgärtel has advocated for strategic adjudication as an approach whereby courts try to overcome the described dilemmas in migration cases through strategic anticipation of ‘hard cases’, a strong focus on deliberation within and between courts and the establishment of common guidelines to deal with such cases. 113 More specifically, he argues that the Court of Justice of the EU (CJEU) and the ECtHR should strive for more consistency in their jurisprudence by recognising precedents across the courts. 114 In his view, the creation of proper precedents would equip human rights courts with additional persuasive power in politically sensitive issue areas. 115 Strategic adjudication in this sense would follow an explicit rights-affirming agenda in migration cases. 116 Given the latent risk that political disagreement with a particular judgment in highly politicised policy areas spills over to fundamental contestation of the legitimacy of courts and opposing the human rights system as such, a strategic reflection of adjudication and its often hidden underlying political assumptions is certainly laudable. The development of a solidified layer of guiding standards for the interpretation of each human right may indeed enhance the coherence of reasoning and in some constellations also the authority of human rights courts. 117
However, courts should be careful not to saturate the interpretation of human rights too much, as maximalist interpretations equally imply dangers. 118 Not only is complete coherence unavailable given the irresolvable tension between responsiveness and concreteness – or between apology and utopia. 119 Rather, what is also the case is that thick precedents – judgments that establish extensive guidelines and seek to provide a comprehensive interpretation of a provision – enhance the risk of interpretative closure in both directions (progressive and regressive). The more detailed and complete the precedent is, the more the risk of prescribing concrete policy measures and thereby over-constitutionalising migration matters. This may again provoke new accusations of overreach and charges that human rights only represent political preferences. 120 Alternatively, human rights courts could also ease political pressure and increase legitimacy by deploying a case-by-case approach with more minimalist reasoning. Such an approach has the benefit of limiting the effects of restrictive interpretation to specific cases, thereby also minimising its damaging potential. It also preserves the conditions for dynamic and even transformative human rights interpretation. While minimalist interpretation avoids human rights overdetermination, it also bears some risks and may be perceived as politically motivated for other reasons. Deciding on a case-by-case basis risks giving the impression of unprincipled, apologetic judgments that answer more directly to political pressure. Moreover, there is a certain probability that a case-by-case approach encroaches upon legal certainty and predictability if it is not sufficiently aligned with prior case-law and general principles. This has precisely been the concern in N.D. and N.T., where the ECtHR, as we have seen, based its decision on the specific facts of the case.
Both strategies entail significant risks in the context of highly politicised debates about migration. Either way, human rights courts need to actively confront the dilemmas of the political nature of human rights to deal with the inherent and irresolvable tension between universality and State sovereignty. To make more active use of dissenting and concurring opinions may be a promising strategy. Dissenting and concurring opinions can not only be used as a reservoir for rights-affirming arguments, 121 but they can also be used to identify regressive tendencies in the majority's case law. 122 While dissents are often associated with the risk of damaging a court's authority by giving the impression of unprincipled decision-making, 123 they may indeed have significant strategic advantages when used carefully, particularly in times of political pressure. Dissents signal that there is rarely only one possible and methodologically sound solution available to a case and that alternative interpretations may prevail in the future. Thereby, they may increase the authority of a court as a forum, in which different readings of human rights are heard and transparently discussed. 124 In fact, argumentative transparency and justification are key to ensure legitimacy, as is the acceptability of decisions that may run counter to one's own political interests. 125 In addition, where the majority decision crosses the boundaries of sound legal methodology, dissents can be useful to point out such failures. In times of crisis, dissents may raise awareness for regressive tendencies, thereby allowing to better define tipping points in human rights law and to mobilise politically against human rights regression. However, dissenting opinions are not an available tool for all courts that may play a central role in migration matters. The CJEU for instance does not foresee the possibility of dissents. The opinions of the General Advocates may, however, serve a similar function by highlighting the variety of possible legal arguments in the struggle for the appropriate interpretation of migrants’ human rights.
It should be clear by now that human rights are not necessarily always leaning towards a progressive, rights-affirming direction. Rather, this is a matter of continuous legal and political struggle. Both theoretically and doctrinally, regressive interpretation of human rights is possible within certain limits. To define those limits and to ensure that regressive interpretation does not undermine the very system of human rights protection is the challenging task of human rights courts today. This, of course, also requires the courts to carefully consider which interpretative strategy can still be justified methodologically, and in what cases deferring to State interest would arguably cross this line.
The political in human rights and the accusation of overreach
Having clarified the inherently political dimension of any human rights struggle and the strategies available to courts in that respect, we can now get back to the accusation that a progressive and expansive interpretation of migrants’ human rights constitutes an illegitimate political intervention in human rights law. I have already shown that expansionist arguments in migration cases can often be understood as an attempt to defend the normativity and universality of human rights. What is more, human rights interpretation is necessarily informed by and based on political considerations and corresponding conceptualisations of human rights. One may adhere to a more liberal-conservative concept of human rights, stressing their function to preserve the status quo of distribution of power and defending State sovereignty in migration matters or favour a universalist-transformative concept of human rights that hopes to use human rights as a tool to transform unequal power structures in our societies. Both concepts are legitimate albeit politically motivated concepts of human rights. Arguing in favour of more State discretion in migration law is therefore no less political than defending a more migration-friendly interpretation of human rights. 126 To be political as a human rights lawyer therefore is neither avoidable nor reproachable, rather to ‘take a stand on political issues’ is a prerequisite for achieving justification in legal decisions. 127 It is therefore anything but surprising that the different conceptions of human rights also transpire through court decisions and dissents in migration cases. The use of political considerations in human rights struggles may only be considered ‘of the wall’ if it is used to attack or undermine the very normativity of human rights. Nevertheless, the allegation of human rights overreach typically comes with the implicit or explicit assertion that a more ‘moderate’ interpretation, 128 that is, one deferring more to States interest, would be more legitimate and perhaps even more legal than a universalist-transformative interpretation of human rights.
Yet, as we have seen, regressive interpretation does by far not always conform to standards of legal methodology. At the same time, calls for a broader interpretation of jurisdiction in case of evasive State practices in the field of migration can often be based on legal arguments previously applied by the ECtHR. One may find this convincing or not depending on the concept of human rights one adheres to, but it is certainly not an unduly political claim. Rather, such an interpretation reflects a universalist-transformative concept of human rights. Such a concept is no more (il)legitimate than a liberal-conservative reading of human rights; it is just a different equally legitimate reading that can be expressed through legal arguments in legal proceedings, but also defended politically in public discourse.
If one favours – as I do – an idea of human rights being an instrument of social transformation and emancipation, social and political embeddedness of human rights in everyday life is pivotal. Considered as such, human rights are understood as a ‘concrete utopia’ that aims at a more just society in which the power of some can no longer determine the fate of many. 129 The point here is not to defend an abstract normative ideal, but rather to understand human rights in a critical perspective, both as a tool for revealing and criticising power relations and as a practice of constantly renegotiating solutions to conflicts about such power relations. 130 In this perspective, human rights inform political struggle and conversations about political conflicts here and now, thereby creating space for imagination. For human rights to actually lead to societal transformation, they need to effectively shape the practice of people in the ongoing struggle about their realisation. This requires defending human rights and their transformative reading in broader public discourses, 131 both in regard to the morality of human rights and the power relations at the heart of any human rights issue, which often might not be fully captured in legal discourses. In this perspective, litigation is a crucial tool to raise public awareness for paradigmatic cases reflecting deeper power imbalances and injustices. However, litigation alone will not and cannot be sufficient to overcome the structural dimension of such power imbalances. The fact that strategic litigation in migration matters is often accompanied by political campaigning is therefore not a sign of illegitimate moralisation or politicisation of law, but a necessary precondition to ground human rights in public discourse and unleash their transformative potential. Of course, litigation may not in all cases immediately end an evasive State practice. In fact, it might sometimes even lead States to develop new strategies to circumvent their human rights obligations, as has been pointed out by some of the human rights overreach critics. However, the political discourse surrounding strategic litigation may fortify the need to justify political power in light of human rights and highlight the repercussions of human rights violations at our borders for our self-perception and the power relations within. Only if human rights are continuously invoked in public and political discourse, can they become a public language for discussing and challenging the power relations underneath the surface of legal disputes and highlight the fundamental inequalities and mechanisms of exclusion involved in the EU's current migration policy.
CONCLUSION
In this paper, I have responded to increasing allegations of human rights overreach regarding the protection of migrants at the EU's external borders by suggesting that we should advance and defend a more political understanding of human rights. This requires admitting that the constant struggle about the concretisation of human rights is always and necessarily political. As a result, case law will never be fully coherent, but rather oscillate between concreteness and responsiveness, between universalism and State sovereignty. Nevertheless, the formalism of legal methodology preserves law's autonomy and allows distinguishing methodologically acceptable arguments from non-legal considerations. These methodological boundaries ought to be respected and highlighted, particularly in times of high politicisation. More specifically, there is a serious risk that human rights’ very normativity is undermined if governments can circumvent human rights obligations through new forms of governance without any effective answers given by human rights courts. It is the challenging task of human rights courts to assure these limits in the field of migration despite immense political pressure, which implicitly also attacks the very legitimacy of the international human rights system. To deal with these challenges, courts should rely on more transparent reasoning, including the use of dissents as a tool to highlight alternative interpretations and identify tendencies of regression. Migration law scholarship, in turn, should strive to clarify the doctrinal limits of regressive human rights interpretation intended to defer to State interest.
Finally, I have argued that the accusation of a human rights argument being politically motivated is absurd given the inherently political dimension of any vision and interpretation of human rights. Struggles about migrants’ human rights, however, do not take place only in courts, but need to be embedded in broader public discourse to establish a public language for discussing and challenging power relations. To better understand this dynamic and the repercussions of these struggles is one of the core challenges of human rights and migration scholarship today.
Footnotes
Acknowledgement
The author wishes to thank Nora Markard for her insightful comments on an earlier version of this article and owes gratitude to two anonymous reviewers who provided helpful and constructive critique to this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
