Overcoming the Dilemma of Migrant Rights? The Case for a Strategic Approach of the European Court of Human Rights

Over the last few years, the European Court of Human Rights (ECtHR) has played a very visible role in discussions on migration, one of the most contentious political issues in Europe today. Legal scholarship in particular has pointed to certain judgments as crucial for keeping restrictive migrant policies at bay. This paper questions this view on the basis of socio-legal research and shows that the case law of the Court is in fact characterised by a significant inconsistency, a permanently “dilemmatic adjudication” which diminishes the impact of even the most rights-affirming judgments in practice. It further argues that the Courts ought to adopt a strategic approach to migration-related cases if it wants to maintain its authoritative position and secure the effectiveness of its own judgments in this domain. The paper begins by providing specific examples from the migration domain (samples of a larger empirical research) of judgments of the ECtHR displaying incoherence, doubt, and ambiguity as the Court becomes increasingly involved in migration affairs. As will be seen, this gives domestic courts and governments in turn the opportunity to adopt their own and often narrower interpretations of the case law. Referring to this status quo as “dilemmatic adjudication”, this paper highlights the institutional repercussions of this phenomenon, in particular the adverse effect that this may have on the authority of the ECs in the longer term. The second part focuses on how the ECtHR could address this problem by employing a strategic approach to adjudication, albeit not an open and public one. This would firstly mean that that the Court would try to actively anticipate “hard cases” and to establish internal common guidelines on how to deal with them across chambers and other international courts, and especially the Court of Justice of the EU (CJEU), with the goal of ensuring consistency. The paper then outlines how the concept of “vulnerability” of particular groups, already regularly invoked by Strasbourg, could be transformed into a legal principle that would enable the Court to overcome its ‘statist assumptions’ (Costello 2016). However, for this purpose, vulnerability would have to be based less or at least not exclusively on group-specific histories of discrimination, but also on empirical understanding of social processes of exclusion. The paper finally explores how the legitimacy of the ECtHR, and possibly the CJEU, could be reinforced in this domain, for example by elevating the status and visibility of post-judgment monitoring mechanisms.