April 07, 2015
I am happy to share with the readers the recent publication of my chapter “On the Road to Substantive Equality: Due Process and Non-discrimination at San José,” written for the book When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint, by Marie-Bénédicte Dembour (Oxford University Press 2015).
The book – whose episodes you can follow on Dembour’s Blog When Humans Become Migrants – examines the treatment that migrants’ claims receive at the European Court of Human Rights and the Inter-American Court of Human Rights. It argues that the two courts approach migrant cases from fundamentally different perspectives. The European Court of Human Rights treats migrants first as aliens, and then as human beings. By contrast, the Inter-American Court of Human Rights approaches migrants first as human beings, and secondly as foreigners.
My chapter focuses on two cases decided by the Inter-American Court: Pacheco Tineo v. Bolivia (concerning the expulsion of a family of asylum seekers) and Nadege Dorzema et al. v. Dominican Republic (concerning the killing and injuring of a group of Haitian nationals and the collective expulsion of the survivors). The chapter argues that these cases may serve to illustrate that the San Jose Court is advancing at different speeds in its migration/asylum case law depending on the road taken. While the Court is travelling the due process road firmly, it is travelling the non-discrimination road with some hesitations. Yet both roads are ultimately taking the Court towards a more substantive notion of equality.
The other chapters of the book discuss high-profile migration/asylum cases, including East African Asians, Abdulaziz, Cabales and Balkandali, Saadi and M.S.S. at Strasbourg and Yean and Bosico, Vélez Loor and various Advisory Opinions on the rights of migrants at San Jose.
As flows from the book, the treatment of migrants is one of the most challenging issues that human rights law faces today. The rapidly expanding migration/asylum case law in both courts reflects its salience in today’s societies.