NWO Veni project: 'Countering human rights from within: Framing State interests in human rights language in migration-related jurisprudence'

The European Court of Human Rights (ECtHR) is a central forum for ‘jurisgenerative deliberations’ on the human rights of migrants in Europe. In recent years, scholars have diagnosed a tendency of the Court to rule against the human rights of migrants and in favour of the State accused of human rights violations (‘Strasbourg reversal’). This reinforces the imbalance of power and raises the question of why States appear to be more successful than migrant advocates in litigation. While research has examined the impact and shortcomings of strategic litigation by migrant advocacy groups, we have hardly any understanding of the (tacit) mechanisms that States use to influence the Court’s decision. This project is one of the first to open this black box. I hypothesise that States act as strategic litigants who contest the ECtHR's migrant-related jurisprudence by making use of the indeterminacy of the human rights language and doctrine. Rather than remaining limited to a reactive-defensive mode, responding to the claims of migrants and seeking to contain jurisprudence, States adopt an active-offensive mode, activating and harnessing exclusionary elements within human rights law in order to shape legal doctrine according to their interests and reinforce the exclusion of migrants through human rights law. To examine this, I will use the novel interdisciplinary method of discourse analysis of legal doctrine. This will allow me to develop a taxonomy of doctrinal arguments used by States (a ‘tool box’). Building on this, I will deconstruct the underlying system of tensions that guide the production of these arguments. This opens up the possibility to develop alternative ways of arguing. My findings will (1) explain why the ‘Strasbourg reversal’ continues to assert itself, (2) equip lawyers and advocacy groups with new arguments to combat it, and (3) contribute to a deeper understanding of human rights law generally

Speaking Human Rights. Translating Migration Control Measures into Human Rights Language

Imagine the situation in refugee camps at the borders of Europe, the de facto detention of asylum seekers, or push backs at the Mediterranean Sea. From the outset it seems that human rights norms forbid such practices. However, States often successfully litigate before the European Court of Human Rights to ensure that their migration control practices are not unlawful under human rights law. How do States do this? The research of Wessels is the first to provide a comprehensive analysis of the legal techniques that governments strategically deploy to use human rights litigation in their favour.