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Episode five: The Strasbourg reversal, or why legal technique matters

In this episode I identify an interpretative practice of the European Court of Human Rights that I call the “Strasbourg reversal”.

[podcast]https://blogs.brighton.ac.uk/humanrights/files/2015/02/hrm5_the_strasbourg_reversal-20e6ctl.mp3[/podcast]

The previous episode introduced the Adulaziz, Cabales and Balkandali v United Kingdom case of 1985. Basically, the ruling established that migrants have no automatic right to be reunited with close family members.

This was the result of the European Court balancing the human right to family life enshrined in the European Convention on Human Rights with the “well established principle in international law” according to which states have a right to control “aliens”.

Such a balancing exercise between the rights of the applicant and the rights of the defendant state is unavoidable. However, what is strange is that in migrant cases the Court often fails to start its reasoning with the Convention. Instead the Court tends to consider first the rights of the state before turning and paying attention to the rights of the applicant.

I argue that this is a legally strange way to proceed. Given that the Court was established to make authoritative rulings on the Convention, one could expect the relevant Convention provisions to be at the starting point of the Court’s reasoning. The fact that the Court starts from the opposite end, namely the presumed state interests, is what leads me to say that a “Strasbourg reversal” affects the migrant case law.

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