The key argument of the book When Humans Become Migrants, by Marie-Bénédicte Dembour, is that the European Court of Human Rights tends to treat migrants first as “aliens” – and only second as human beings. This attitude is contrasted with the more human rights driven approach of the Inter-American Court of Human Rights.
Why is this important? Because the treatment of migrants is one of the most challenging issues that human rights, both as a practice and as a political philosophy, faces today. This has only become more so since publication in March 2015.
My hope is that the arguments the book develops will generate a healthy and constructive debate. Its findings and conclusions are admittedly controversial. They therefore needed to be supported and documented at some length, which resulted in a rather long book. At the same time, the main ideas are easy to grasp. I invite you to get acquainted with them in less than three hours, by listening to the series of 3 to 5 minute podcasts below (which were originally published in blog form on this website).
If you want more details, the book remains the place to go. You can order your copy directly from Oxford University Press.
1. Do migrants have human rights too?
Introduces the series by asking: is the European Court of Human rights striking the right balance when it comes to protecting the human rights of migrants?
2. What did the Convention say?
Goes all the way back to the early history of human rights law in Europe in order to understand the foundations of the Strasbourg migrant case law.
3. When Asians were expelled from East Africa
Explains how the European Convention on Human Rights was not meant to reach colonial subjects through a discussion of the East African Asians case (1973).
4. Family reunion is not a right
Discusses the first migrant case to have come before the Strasbourg Court: Abdelaziz, Cabales and Balkandali (1985).
5. The Strasbourg reversal, or why legal technique matters
Argues that the migrant case law suffers from a “Strasbourg reversal” that puts state sovereignty before human rights.
6. The different approach of the Inter-American Court of Human Rights
Turns to another system of human rights protection that puts the rights to migrants first.
7. Strasbourg wakes up to the predicament of migrants
Discusses the moment when migrants began to be able to make successful applications at Strasbourg – in the late 1980s.
8. The inconsistent success of migrant human rights cases in the 1990s
Explains how the growing success of some migrants at Strasbourg gave way in the 1990s to a case law “lottery” regarding the expulsion of second-generation and other migrants.
9. When my father’s family fled their Belgian home
Asks: what you would you do if you and your loved ones were at risk?
10. Who was Soering?
Discusses the win, in 1989, of an applicant (a German national) who claimed at Strasbourg he could not be sent to another country (the US) because, once there, he would face inhuman treatment (the death row phenomenon).
11. Tamils being returned to civil war
Looks at another landmark case of the same period, Vilvarajah v. UK (1991), in which the Strasbourg Court found no violation of the Convention when the applicants were failed asylum seekers who were tortured upon their forced return to Sri Lanka.
12. The optimist says the bottle is half empty
Explains why I think it is crucial to stress the weaknesses of the Strasbourg case law rather than just focusing on its strengths.
13. All equals?
Discusses the applicant’s victory in Gaygusuz v. Austria (1996). This was a legally settled foreign worker who had contributed to a national social security system but was denied the opportunity to draw on a pension fund simply because he was a foreigner.
14. Treating nationals and non-nationals equally: a human rights duty
Discusses the way we currently allow nation states to treat nationals and non-nationals differently and controversially but forcibly argues this is wrong.
15. The Inter-American Court takes a different approach to human rights
Starts highlighting how the approach of the Costa Rica-based Inter-American Court of Human Rights differs from that of the European Court of Human Rights.
16. A Court ready to stand up against states
Continues exploring the approach taken by the Inter-American Court by discussing Yean and Bosico (2005), concerning children of Haitian descent born in the Dominican Republic.
17. What effects do we want human rights judgments to have?
Contrasts how the Inter-American and European Courts approach the question of how to handle a case if they know the state will fiercely resist a ruling of violation.
18. Will the Inter-American and European Courts of Human Rights ever converge?
Explains further how the two courts work rather differently – even though they are both tasked with applying broadly similar human rights conventions.
19. Immigration detention is not to be resorted to lightly
Discusses the Inter-American case Vélez Loor v. Panama (2010).
20. Tabitha’s story
Asks how bad detention must be before the Strasbourg Court finds it contrary to the Convention through a discussion of the Tabitha’s case (2006).
21. MSS sees Belgium and Greece condemned
Highlights how the MSS case (2011) stands out in the sea of Strasbourg losses for migrants as a resounding victory, which is rightly celebrated.
22. Why MSS is so important
Carries on explaining why MSS is such an important case.
23. Shutting the Strasbourg doors (Maaouia)
Argues that one cannot assess the merits of the Strasbourg system without considering also its failures, including Maaouia v. France (2000) which found Article 6 (fair trial guarantees) not to apply in immigration and asylum procedures.
24. Vainly knocking on the doors of Strasbourg
Stresses the categorical effect and tremendous consequences of negative findings by the European Court of Human Rights.
25. The stateless of Europe
Turns to the plight of people who live in Europe without enjoying any status in law, without the Strasbourg Court having found this problematic under the Convention (and hardly anyone apparently having noticed and denounced this).
26. Can a child ever be just a ‘fait accompli’?
Discusses the Strasbourg Court case law about the expulsion of parents deemed illegal migrants, who have young children in the expelling state.
27. Jesus Vélez Loor has a story worth turning into a film
Observes that even the Inter-American Court of Human Rights, highly praised in this series, cannot deliver a perfect world.
28. The way forward is to expand ECHR guarantees
Reflects about ways to remedy the weaknesses identified in this series and recommends that the Strasbourg Court expands its interpretation of especially Articles 3, 6 and 14 of the European Convention on Human Rights.
29. The Strasbourg procedures also need a re-think
Stresses that procedures are very important too, as the can make or break a case, and recommends a generous approach by the Strasbourg Court regarding e.g. admissibility, friendly settlements, and the burden of proof.
30. The right to act humanely
The book When Humans Become Migrants ends by asking whether the right to be humane should top any human rights list. Given the question has lost none of its pertinence since the book was written, it also ends the podcast series.