Litigation and Influence: Unpacking the Institutional Dynamics of the Strasbourg Court in Responding to Governments’ Arguments in Migration Case Law

by Jessica Klüger

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To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.

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1. Introduction

Existing scholarship on the Court’s approach to migration policies often views its jurisprudence as increasingly restrictive, framing the discussion around political factors and institutional reforms. Many attribute restrictive outcomes to the colonial context at the time of the Convention’s drafting or the influence of contemporary political conditions, such as the rise of authoritarian or right-wing governments. This last line of reasoning would encompass, among other examples, the joint letter signed by nine governments on 22 May 2025, which expressed concern that the Court has, at times, interpreted the Convention on migration matters beyond its intended scope and requested greater national discretion to make democratic decisions in response to the complex political challenges they face.

The scholarship can be divided into two lines of thought: one perceives the Court as having always been restrictive towards migrant rights, while the other perceives that this trend has emerged more recently. Both groups, however, emphasise the importance of the Court’s reasoning and its strategies in responding to internal and external factors. They argue that judicial interpretations of the Convention’s provisions adapt to the surrounding context.

While political pressures and institutional reforms are critical considerations, this paper highlights a neglected internal factor: the role of litigation in the Court’s operation. It argues that the Strasbourg Court functions as a forum for a “second phase” of rights negotiation, where the meaning, scope, and application of the Convention’s provisions are continuously redefined through the litigation process. While governments initially negotiated and drafted the Convention (“first phase”), different players are involved in the second phase: applicants, respondent governments, sometimes third parties, and judges. The trend toward more restrictive jurisprudence in the context of migration highlights the need to examine the strategies employed by governments during litigation and how the Court responds to them.

If one considers the Court’s judgments from the past decades, governments’ original influence appears to have largely faded from view, becoming part of the legal status quo. Today, applicants’ representatives no longer seek to challenge the previous governments’ interpretation, which the Court has adopted and which is now regarded as an integral part of the law. While jurisprudence is often seen as a result of the Court’s own doing, this paper argues that the current state of the law is profoundly shaped by the past interpretations and actions of the parties. To illustrate this point, one example concerning the collective expulsion case-law (Article 4 of Protocol No. 4) is provided, showing the government’s potential influence in the Court’s jurisprudence.

2. What is the second phase of negotiation?

While the overall scholarship on migration at the ECtHR perceives the interpretative process as a critical focal point for understanding the evolution and the current stance of jurisprudence, academic analysis predominantly rests on the role of judges and judgments. Nevertheless, judicial interpretation is not an exclusive task of judges. For this, and based predominantly on Ingo Venzke’s work, interpretation is seen, simultaneously, as a (i) lawmaking process through litigation, in which meaning is added to the codified law, resulting in its development; and as (ii) arguments from the parties. The idea of a second negotiation phase is introduced, in which the litigation process in multiple individual cases is the stage for an interpretation battle between applicants and respondents where, each with their own interest and arguments, aim to convince the decision-makers that their view is the most accepted, correct or logical one, adding a new layer to the codified law.

2.1. Interpretation as a Lawmaking Process

Ingo Venzke explains that the prevailing view of interpretation until fifteen years ago regarded it as an act of uncovering law, discovering the meaning already inherent in it, or merely clarifying it to apply it to specific cases. In this sense, legal provisions would be born with meanings attached. However, the scholar argues that the Court’s adjudicatory practices go beyond mere clarification or application; they actively develop the law. In this view, interpretation is not merely about revealing what already exists inside the norm but also about shaping its content, creating something new and, therefore, effectively making law. Venzke notes, nevertheless, that this practice has constraints to succeed: one, because it needs to be accepted as legal, and two, because it needs to connect to past and future practices. The view of interpretation as lawmaking is now readily recognised in international legal theory, according to Venzke.

The first perspective on interpretation as an act of revelation perceives international lawmaking as a singular event where the law emerges. In this view, the creation of a legally valid norm marks the end of the lawmaking process. While interpretation gives effect to the law, it is considered entirely separate from the act of creating it. Consequently, once a treaty is negotiated and enters into force, the lawmaking process is deemed complete. The second perspective (the view adopted in this paper), as Venzke explains, frames interpretations as arguments about which meaning should be attributed to a norm text. In other words, the scholar affirms that interpretation does not derive meaning from norm texts but instead assigns meaning to them. In a litigation process, therefore, actors seek to align the law with their interests and aim to present their understanding of the law as the definitive and universal one.

In Venzke’s scholarship cited above, the scholar emphasises the role of courts in lawmaking, a perspective shared by Christian Tams. Tams explains that courts often engage in lawmaking when resolving disputes involving open-textured norms. The scholar challenges the distinction typically made between legal development, widely accepted by scholars, and lawmaking, which is traditionally viewed as outside the courts’ competence. Using the International Court of Justice as an example, Tams highlights its significant contributions to various law-making processes, which have now become ‘commonplace’. Gleider Hernández, using human rights courts as examples, argues that although their primary function is to provide individual redress, these courts inherently perform a lawmaking role. Hernández highlights, for instance, that the Strasbourg Court has embraced a ‘dynamic’ interpretation of the Convention, frequently expanding the scope of its protections.

Still in the realm of International Human Rights Law, Vassilis Tzevelekos observes that the line between interpretation and lawmaking is often blurred. The author contends that international judicial mechanisms not only enhance the enforcement and effectiveness of human rights protections but can also acknowledge the emergence of ‘new’ or ‘renewed’ human rights. This is frequently achieved by expansively interpreting existing laws in an evolutive manner. Throughout their work, Tzevelekos also places significant emphasis on the role of judges in this process. George Letsas notes that numerous scholars, judges and registry members have criticised the Strasbourg Court for its ‘judicial creativity,’ describing it as an ‘illegitimate power of discretion’ that ought to be curtailed. Although some highly criticise lawmaking in courts, Janneke Gerards and Eva Brems have pointed out that little research has been done into the conceptual and practical issues related to the shaping of fundamental rights.

The overview above shows that, in both Public International Law Studies and International Human Rights Law, the debate around the lawmaking process focuses mainly on the role of courts. What about the role of other players in the courtroom? Moreover, especially when it comes to the Strasbourg Court, the lawmaking practice is frequently viewed as resulting in an expansion of the legal scope. What about when the scope of the right is restricted by means of interpretation rather than expanded? The dominant view just described coincides with the scholarship on migration-related cases, which highlights above all the Strasbourg Court’s (judges’) role in the interpretation practice. While the influence of victims in driving progressive judgments has been pointed out with applicants seen as protagonist in the litigation process, and research on strategic litigation of migrants is increasing, the significant role of governments in shaping restrictive interpretations remains largely overlooked, aside from a few notable exceptions to which this study seeks to contribute.

2.2. Interpretation as arguments

As laid out, interpretation plays a crucial role in shaping the law, either by expanding it or by introducing new dimensions. In this context, the litigation process in individual cases can be viewed as a second phase of negotiation and lawmaking. The negotiation concept introduced here differs from the traditional negotiation between states to develop a treaty. Instead, it is a second negotiation phase with different actors and elements. When the Convention was created, the negotiation process was characterised by proposals, compromises, and agreements among government representatives akin to any international treaty. This can be seen as the first negotiation phase that puts into words provisions in favour of a common goal. Nevertheless, the provisions established, although with some detail, continue to be inherently open-textured and frequently need to rely on legal interpretation for their application. Here comes the second negotiation phase.

Rather than through proposals and compromises, the second phase unfolds as an ongoing litigation process where the meaning of the words and terms used in the Convention is shaped. In this phase, different players are involved: applicants alleging rights violations, respondent governments defending their practices, sometimes third parties supporting their respective side’s argumentation and decision-makers assessing facts and argumentation while simultaneously concerned with the Court’s legitimacy and well-functioning. Thus, initially, the legal text is negotiated through drafting processes until a final agreement is reached. Subsequently, the approved document undergoes further negotiation regarding its application, this time through interpretative practices during litigation by all parties involved. Considering this negotiation between the parties, lawmaking in the courtroom cannot be viewed as an exclusive practice of judges, with the latter depending on the arguments of the former.

This notion of a second negotiation phase is built on Venzke’s book How Interpretation Makes International Law, in which the author does not restrict the analysis of lawmaking to the role of courts but also to the influence of other actors. According to Venzke, when the meaning of a legal text is disputed, each actor involved attaches its interpretation to it and takes the law to be on its side. ‘Whoever controls this process’, the author argues, ‘controls the meaning of the treaty (…)’. A successful interpretation, therefore, can transform (create) and control law.

Given the low prospect of, on the one hand, the ratification of a new enforceable human rights treaty (particularly due to the political climate surrounding issues such as migration) and, on the other hand, the withdrawal from existing treaties or pure non-compliance (due to political repercussions), the importance of legal change through interpretation (a second negotiation of rights) is immense. This holds true regardless of the parties’ intentions, whether aiming for progressive or restrictive change, the latter being the most common aim for states in the context of migrants’ rights.

Venzke gives multiple examples, including the Strasbourg Court. However, the author illustrates the theory in depth by applying it to the General Agreement on Tariffs and Trade and the World Trade Organisation adjudicating bodies, an international judicial institution dealing with conflicts between states. The present paper explores and enlarges the theory in relation to judicial institutions of international human rights law, which deals with conflicts between states and individuals. In this context, the Court is seen as an arena for interpretation battles between the parties, which use different strategies to control the meaning, scope and application of the provisions to their interests. Over time, judgments evolve into precedents, collectively forming the body of jurisprudence, from which the decision-makers aim not to depart to create consistency and ensure legal certainty.

With each new judgment, jurisprudence can either follow the established legal path (reinforcing previous interpretations or introducing a minor refinement) or alter the course of prior understanding by broadening its scope or narrowing its application. In the present paper, this phenomenon is called ‘jurisprudence development’ as a specific form of lawmaking. As a result, the prevailing interpretations of individual cases gradually shape the consistent application of provisions and, as Venzke argues, ultimately influence the meaning of the law itself.

Another way to explain this is to imagine a scenario in which complex migration-related cases involve circumstances not explicitly covered by law. In such cases, applicants claim a broad and progressive interpretation that accommodates their situation. They present arguments that justify their views, often supported by non-governmental organisations through third-party interventions. In contrast, respondents seek to uphold existing policies by arguing for a more restrictive reading of the law. Third-party interventions from other governments may further reinforce this restrictive stance. Ultimately, the Court weighs the arguments from both sides and determines the most persuasive legal interpretation, striving to maintain institutional impartiality while also remaining attentive to states’ compliance with the Convention and its effective implementation. This impartiality fosters trust and the continuity of the system: applicants continue to rely on the Court rather than seeking alternative avenues, while respondents adhere to its rulings and remain engaged with the legal system. Over time, as judgments set precedents and shape jurisprudence, interpretations transition from contested arguments into established law.

A practical and widely known example of this dynamic is the case of N.D. and N.T. v. Spain, where the respondent government, supported by third-party interveners, appears to have influenced the Court’s interpretation that pushback practices without any identification do not automatically constitute a violation of Article 4 of Protocol 4. Central to this reasoning was the notion of the applicants’ ‘culpable conduct.’ The Court adopted a framework which mirrored Spain’s line of argumentation (para. 204): ‘culpable conduct in pushback cases exists (1) when migrants attempt to enter a state’s territory in an unauthorised manner, (2) despite the existence of legal avenues and (3) without demonstrating a valid justification.’ The Grand Chamber legal test (para. 211) followed the exact one set out by Spain. The ‘culpable conduct’ exception to collective expulsion first appeared in Berisha and Haljiti v. The former Yugoslav Republic of Macedonia (para. 2) and continues to be the object of interpretation battles, featuring prominently in the most recent oral hearings in R.A. and Others v. Poland, H.M.M. and Others v. Latvia, and C.O.C.G. and Others v. Lithuania.

This example shows that interpretation outcomes are not the product of a single case but rather an ongoing negotiation that unfolds across case law, with states acting as “repeated players”. States frequently receive complaints concerning similar or identical situations, particularly those related to migrants. Therefore, the negotiation process involves an interpretation battle over concepts, terms, meaning, scope, and their application, which occurs back and forth – not always within the same case but continually through multiple applications. Furthermore, as noted earlier, the interpretation put forward by the parties must align with the evolving legal context, including societal practices and precedents, to increase its likelihood of acceptance by the Court.

Venzke observes that the likelihood of an interpretation being accepted depends not only on the content of the claim but also on the semantic authority of its author. To illustrate this, the scholar compares the influence of his own writings with that of an international body. It is acknowledged here that legal argument is not the sole factor influencing a decision, and law is not necessarily neutral. While the authority of applicants (migrants) and respondents (governments) might not be the same, the concept of authority cannot be applied in the same way in and outside the courtroom. At least in theory, in the former context, the parties are meant to be on equal terms, having to submit their interests to the language and logic of law. While from a critical perspective on law and politics, the content of the claim may not be the only determining element, it still undoubtedly plays a crucial role in shaping outcomes. In this sense, court lawmaking sustains a higher balance of powers to parties (individual rights-holders (and NGOs) and governments) when compared, for example, to the negotiation of treaties between states, which gives civil society a limited role. Nonetheless, as repeated players, governments enjoy a considerable advantage over applicants, including those backed by civil society organisations pursuing strategic litigation. These actors are still bound to prioritise their clients’ immediate needs, which can limit their capacity to pursue broader policy-oriented goals.

3. Conclusion

Applying this theoretical approach to the present context, the Convention text was negotiated by governments; this is the traditional form of negotiation in Public International Law, when each state, with its own interests, debates and agrees on a common goal, which is finally codified. This is the first phase of negotiation and lawmaking. Once in force, the meaning and scope of each provision and, consequently, its application are negotiated by the applicants and respondent governments through the continuous process of interpretation by argumentation. The parties aim to convince judges and influence decisions based on their interests, while the judges decide on the prevailing interpretation according to human rights standards and the institution’s continuity. The judgment, reflecting the prevailing interpretation, creates a precedent that, over time, evolves, shaping the meaning of the law and its application. This is the second phase of negotiation and lawmaking. As Gammeltoft-Hansen and Aalberts explain, ‘interpretation and framing’ are part of the ordinary modus operandi of international law.

In Venzke’s words, ‘when law is a product of interpretative practice, crucial questions would be who the actors are and how they argue’. If jurisprudence is seen as restrictive towards migrants, more should be added to the existing literature on governmental litigation strategies and their impact.[1] While this research focuses on migration, one of the most politicised topics at the moment, this type of analysis can be pursued concerning any provision and topic. It holds the potential to uncover patterns in the Court’s jurisprudence, deepen our understanding of legal practice, trace how we arrived at the current legal landscape, envision where it may be heading, and consider how we can more effectively shape it. This framework also encourages scholars and practitioners not to treat jurisprudence as fixed or unchangeable, but rather as something open to contestation, even when it appears to have already solidified into law.

[1] Scholars such as: Tanja Aalberts,Thomas Gammeltoft-Hansen, Moritz Baumgärtel, Conall Mallory, Marie-Pierre Granger, Jonas Bornemann, Janna Wessels and Mónica Ávila Currás.