Description
Migration is sometimes referred to as the 'last bastion of sovereignty'—an area in which states enjoy 'unfettered discretion.' However, the 'discovery' of migrants' human rights, i.e., the growing recognition that human rights protection extends to migrants, challenges this presumed right to exclude by imposing limits on how governments can design their migration policies. Crucially, States do not, in principle, contest this notion. On the contrary, they have an interest in upholding human rights law. This creates a dilemma as they seek both a functioning system of human rights protection and the ability to maintain discretion to exclude unwanted migrants. This paper proposes that States respond to this tension by engaging in a form of "reverse strategic litigation." They attempt—and often succeed—in countering human rights within migration-related human rights jurisprudence to legitimize their migration control policies under human rights law. This is because human rights are not static but are constantly renegotiated, reinterpreted, and reshaped. Just like the applicants, responding States strategically act in human rights litigation. They activate and leverage exclusionary elements within the law to shape doctrine in line with their interests. This is a very powerful approach: If States succeed in molding the very meaning of human rights law to accommodate their interests in excluding migrants, they can mitigate and limit the potential of human rights law to impose restrictions on their migration policies—while upholding the human rights system rather than withdrawing from it.| Period | 7 Dec 2023 |
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| Event title | HRRN - The Universal Declaration of Human Rights at 75: Rethinking and Constructing its Future Together |
| Event type | Conference |
| Location | Gent, BelgiumShow on map |
| Degree of Recognition | International |