Strasbourg Observers

Blog Symposium “Strasbourg Observers turn ten” (5): Daring to think – the spirit of human rights

April 23, 2020

By Marie-Bénédicte Dembour

Have the Strasbourg Observers really been running only for ten years? On receiving the invitation to celebrate this anniversary, my mind travelled back to the time before your emergence, and I felt rather isolated in my critical approach to the study of the European Court of Human Rights. Long before I joined Ghent’s Human Rights Centre last October, you have provided me – and no doubt others – with a sense of ‘home’. With this post I want to acknowledge my immense gratitude. I shall do so not by tracing the case law since Hirsi Jamaa and Others v Italy but by reflecting upon how my two posts on this case of 2012 were differently read. My point will be to highlight how the Strasbourg Observers have created an essential space for actively engaging and debating what the spirit of human rights might or should entail.

The Strasbourg Observers’ blog as a service to the community of critical scholars

For doing this, allow me first to reminisce on the development of my own scholarship on the ECHR. I published my first article on the Strasbourg case law in 2000. Those familiar with my work might smile at its title: ‘The Cases that were not to be: Explaining the Dearth of Case-Law on Freedom of Religion at Strasbourg’. Amongst my central arguments were the proposition that ‘the paucity of the case-law on freedom of religion is likely to be linked, in the last analysis, to a reluctance by the Strasbourg institutions to protect religious values that are not Christian’. One of my aims was to show that ‘decisions can easily go in one direction or the other without infringing legal logic’ and that the personal inclinations of the judges ‘can be expected to reflect widespread social tendencies – including prejudices’. I argued that ‘human rights law cannot be expected to … offer a definite solution on how to practice pluralism’. This was published in an anthropological volume – which may not have been coincidental as my ideas were not so easily received in the legal scholarly community.

I have the distinct memory of having given a seminar paper in the early noughties in which I dared to suggest that the record of the European Court of Human Rights in combatting racism was disappointing. The human rights lawyers in the room rose as one to defend the Court. Was I not aware of Sander v United Kingdom? I was, but I did not see that it proved a resounding anti-racist stance on the part of the Court. To me, the Court’s affirmation against racism remained a rather empty statement in the absence of assertive violation findings. My interlocutors were no more convinced by my arguments than I was by theirs.

Mine was a rather lone voice. Getting it heard in the legal academic environment was a struggle. I remember a journal rating a submission of mine excellent in terms of knowledge, clarity, structure and referencing, but deciding to reject it on the grounds that my main argument was unpersuasive. Nobody, I was told, and certainly not the reviewer’s students, would ever question the idea that nationality is a natural concept; everyone the reviewer knew accepted this. My main argument – differences of treatment based on nationality are a social construct and may amount to illegitimate discrimination between human beings – was considered beyond the pale.

In fairness, I also encountered support. When I visited the Strasbourg Court for the first time in 2001, I received a warm welcome by the Belgian judge Françoise Tulkens. She found my unconventional approach to the case law refreshing and inspiring, rather than disrespectful or off-the-wall. Also, the publication of my book Who Believes in Human Rights? did not turn me into a pariah at the Court. On the contrary, it seems that the majority of judges (there was at least one exception) found it stimulating.

I nonetheless acquired the reputation of being a most critical commentator of the ECtHR. In this context, seeing the blog of the Strasbourg Observers emerge in 2009 was a beacon of solidarity. Clearly, the blog saw its role as offering critical reflections on the work accomplished by the Court. It meant to help the Court see where it might be accused of adopting a small, narrow, stereotypical or exclusionary perspective on human rights. It was ready to demand from the Court that it should do more for the idea and spirit of human rights. Importantly it was equally interested in discerning where the Court can be applauded and why. In short, the Strasbourg Observers dares to imagine a better human rights future.

When Humans Become Migrants

We are used to hear and to say that human rights are indivisible and interconnected. I subscribe to this view. In line with this, I also believe that the spirit of human rights commands the adoption of a generous and all-encompassing approach, one that is suspicious of borders and artificial boundaries. Our legal training, however, teaches us to carefully distinguish issues. The warning against easy amalgamation is analytically useful. It can nonetheless also turn out to be morally perilous.

To me, a particular manifestation of this danger is our willingness to categorise human beings by reference to their nationality and then to use this categorisation in order to allow some people to move around the world and settle more or less where they wish, whilst preventing others from doing so. My expectation is that one day this will be regarded as a discrimination on par with racism and sexism. Not everybody sees it this way, of course. For a lot of people, the denial of rights to migrants is not a human rights issue. It is this divergence of views which prompted me to write When Humans Become Migrants.

The book painstakingly studies the Strasbourg (and Inter-American) migrant case law. As I began researching it in 2009, I was privileged to be able to interview the ECtHR’s Jurisconsult. He doubted there was enough material for a book. Although this was before the migrant case law exploded, I believe that regardless of this unexpected development I would have found more than enough material.

Indeed, the book’s first part ended up being largely historical (and could have been a book in itself). Amongst other issues, I discussed the absence in the ECHR of specific migrant rights, the colonial clause, and the sliding towards ‘the Strasbourg reversal’ right from the very first migrant case decided by the Court. Thus, although the rights to nationality, asylum and guarantee of due process in case of expulsion were inscribed in the American Declaration of Human Rights and the Universal Declaration of Human Rights (both signed in 1948), they were remarkably bypassed in the ECHR (signed in 1950). But for Article 63 (now Article 56), the four European colonial powers of Belgium, France, the Netherlands and the UK – which had no inkling they were about to lose their colonies – would not have adhered to the Convention. Abdulaziz, Cabales and Balkandali v UK not only determined that there was no right to family reunion under the Convention but it also opened the way for ‘the Strasbourg reversal’ – whereby the Court (often) starts its reasoning with the principle that states have the right to control the entry and residence of foreigners, thus strangely relegating to the second place the right claimed by the migrant under the Convention.

The rest of the book dissects the migrant case law which appeared at increasing rate from the late 1980s to the mid-2010’s. It is interested in how judicial reasoning has proceeded and with what effect, what assumptions have been made, what has not been said. The overall aim is to reflect upon the ethos beyond the development of the case law.

To me, the book’s greatest success would be if it managed to persuade originally indifferent or sceptical readers that migrant rights are as core to human rights as any other human rights, and that they need to be widely interpreted and practiced.

The gargantuan task of shifting the core of human rights

However, I was warned by my doctoral supervisor already three decades ago that publications have a life of their own. That they develop independently from their author’s control or intentions has certainly been the case with my Strasbourg Observers’ posts. Indeed, the post that has propelled me to become one of the five most-read authors of this blog is not the post of mine that I would have wished to be read by most people.

Obviously it is its subject which triggered its exceptionally big audience. Hirsi Jamaa is not only a Grand Chamber and unanimous judgment, it is also the first judgment which substantively addressed the issue of push-backs of irregular migrants. My post dutifully summarised it: the attribution of jurisdiction to Italy for something which had happened outside its territory (an issue which has attracted abundant legal commentaries), the finding of violation of the prohibition of collective expulsion under Article 4 (ditto too), the multiple findings of violation of Article 3 (due, I noted, to a relaxation of the burden of proof imposed on the applicant), and the violation of Article 13. All this would have seemed to force a change of direction in European migration policy, had the judgment been taken to its logical conclusion. My post concluded that its ground-breaking pronouncements had much to offer for the defence of irregular migrants. It nonetheless also intimated that the way the Court had dealt with reparation tempered this optimism, which was to be discussed the next day. A second post accordingly focused on the way the Court ‘consider[ed] that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated’ (para 211). This addition, I explained, seemed to annihilate much of the judgment’s potential positive impact.

It is to the first post which I owe my participation in this symposium. It attracted some 12,000 views. By contrast, the second post has had some 2,000 views. I find this discrepancy puzzling: could it be due, at least in part, to the subject of the second post which most academic lawyers would consider ‘incidental’? Certainly, the issue of reparation –which the Court itself exceptionally and no doubt purposefully chose to address in this case– is left out in even the most learned commentaries about Hirsi Jamaa (and there are many). This in turn raises the question of what is ‘core’ and what is ‘marginal’.

As an anthropologist, I tend to approach human rights law not only as an object of normative study but also as a social practice that deserves to be explored empirically, i.e., something that happens ‘on the ground’. As I have explained here, I want to place judicial pronouncements which have become major jurisprudential principles in social and political context. I pay attention to the minute details without which human rights law would not be what it is. I am interested in contradictions, ambiguities, and silences which cry out to be addressed. Putting this differently, I contribute to mainstreaming issues which many colleagues may find uninteresting, lacking in pertinence or simply not helpful for their arguments. What I seek to do, then, is to enlarge the core of human rights.

Of course, I am not alone in this endeavour. Let me give an example again related to migrant rights. In 1983, appalled by the Strasbourg record in this area, the Director of Human Rights of the Council of Europe organised a high-profile event specifically to bring the issue on the agenda. The Funchal Colloquy was attended by politicians, civil servants, judges, lawyers and others. It invited the participants to ask themselves ‘whether human rights are not still, in many cases, citizens’ rights’. The resulting recommendations – such as the need to establish the principle of a right of entry, to keep refusals exceptional, to subordinate expulsion to judicial proceedings – have lost none of their urgency today. In other words, they have not yet made it into the core of human rights.

By the time I interviewed the Jurisconsult in 2009, the Court had assuredly nonetheless moved ahead. It had adopted a string of very important judgments in the field of migration including, in a non-exhaustive list, Berrehab v the Netherlands, Soering v United Kingdom, Gaygusuz v Austria, Saadi v Italy, and M.S.S. v Belgium and Greece was already in the pipeline. However, there had also been – besides Abdulaziz, Cabales and BalkandaliVilvarajah v United Kingdom, Maaouia v France, N v United Kingdom, Saadi v United Kingdom, and countless migrants’ applications summarily dismissed as inadmissible.

This is what made the Jurisconsult doubtful that there was enough material for a book. For him, the Strasbourg migrant case law amounted to a few well-established and clear principles, which he explained to me in less than one hour. In his perspective, there was hardly anything more to add, nothing really worth researching. The case law was coherent; it had not triggered any serious resistance from within the Court. In my perspective, however, the many voids which these truly minimal principles had created was precisely the reason why a book was urgently needed.

This brings us back to the Strasbourg Observers, and your embrace of a large, critical and nurturing approach, which provides both food-for-thought and encouragement. To me, the main role you fulfil is not so much to keep readers informed about the latest Grand Chambers’ judgments (however useful this is) as to maintain a platform where human rights black holes can be discussed, which your readership is then free to take up further.

Addendum on human rights in unprecedented times

I always advocate inclusivity and doing away with boundaries. Doing this in the midst of the present coronavirus crisis is not without irony.

Europeans are currently confined to their homes. Managing this is easier for some than for others for whom confinement is a physical, psychological or economic ordeal of such magnitude that it can kill them. Many people in Europe are nonetheless able to carry on with their lives in reasonable security and comfort. The consequences of the crisis are on a different scale in economically less privileged regions of the world where social distancing is not an option for a large part of the population.

Today, we live in a world where confinement is not only a duty but almost also a privilege, in that it is accessible to some but denied to others for whom it is either an impossibility or a catastrophe. The capacity to live in confinement has thus become a human rights issue in a very different sense from the way we are used to approaching liberty restrictions.

No doubt the current crisis and its aftermath will throw many human rights issues we have never considered before. We need to keep the spirit of human rights alive and well.

Thank you to the Strasbourg Observers for already playing a part in this. Happy anniversary and long life to you and to everyone who reads this.

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