Reverse Strategic Litigation by Governments? Negotiating Sovereignty and Migration Control before the European Court of Human Rights

Embedded in mutually reinforcing processes of “humanrightization” in law, politics, and everyday practice, the European Court of Human Rights in Strasbourg (ECtHR, or Strasbourg Court) has become a central actor and forum for conflicts around the inclusion and exclusion of migrants in Europe. The Strasbourg Court has derived specific protections for migrants from the originally “migration-blind” norms of the European Convention on Human Rights (ECHR), such as the prohibition of torture, and respect for family and private life, for example. This extension of the ECHR to migrants means that migration control is no longer purely within the discretion of states.

The contracting states do not in principle contest this development. Open defiance of the ECHR, attempts to renegotiate, or even withdrawal, are rare, although they receive much attention when they do occur. However, I propose that there is a subtle but powerful form of “pushback” by states against an expansion of human rights in the field of migration: an attempt by governments to shape human rights doctrine itself to accommodate their migration control policies. I will argue that when a migration-related case is brought before the Strasbourg Court, governments may engage in “reverse strategic litigation”; they try—and often succeed—in countering human rights from within the Convention's framework in order to legitimize their migration control policies under human rights law.