To Have a Friend, You Need to Be One: Mobilizing Strategies of Third-Party Interveners Before the European Court of Human Rights in an Age of Backlash

In recent years, the European Court of Human Rights (ECtHR, the Court), once a lifeline for migrant rights, has produced rulings that limit safeguards for people on the move. Instead, they legitimize the securitization of borders and the foregrounding of national sovereignty concerns. The developments coincide with, and have sometimes been attributed to, increasing political pressures on the ECtHR: Member states pursuing restrictive migration policies have accused the Court of overstepping its reach, civil society organizations seeking restrictive, selective, or radically reinterpreted human rights protection for migrants have been mobilizing alongside these states. While the weakening allegiance of the Court with migrants has caused disenchantment among some migrant rights organizations, which have consequently turned to other courts, legal mobilization on behalf of migrants in the ECtHR remains high. The aim of this paper is to understand mobilization efforts by these actors in light of a changing climate at the ECtHR. More specifically, it seeks to answer the questions of how and why actors continue to mobilize in the ECtHR despite the restrictive turn in jurisprudence in the realm of migration. To answer these questions, legal mobilization is studied through third-party interventions (TPI), whose prevalence in the ECtHR has grown rapidly over the past two decades, making them a rich yet understudied case for researching the phenomenon. Taking an exploratory approach, the paper combines qualitative document analysis of intervention texts and semi-structured interviews with interveners to gain a richer, more in-depth understanding of mobilization strategies in the changing ECtHR. The (preliminary) findings suggest two conclusions. First, mobilizing actors have adapted their strategies in response to political attacks, not just on the Court but also themselves. The increased use of TPI itself is one consequence thereof. Moreover, as a result of political, financial, and organizational pressures, TPI and other legal mobilization efforts are more frequently joint and more systematically coordinated. Second, in addition to the traditional offensive mobilization for social change, strategies have recently included a more defensive dimension. Awareness of the pressures on the ECtHR prevails among mobilizing actors and is responded to with emboldening legal arguments for the judges and a defensive stance in favor of the Court toward the public. These conclusions have important theoretical implications for research on legal mobilization, specifically concerning legal opportunity structures. They challenge the premise that courts, and the judiciary more broadly, constitute fixed structures through which legal mobilization is facilitated, which may be more open or closed based on various factors. Instead, they foreground the fundamental constructivist nature of these institutions which are shaped by and in turn shape legal and extra-legal mobilization activities.