Sovereignty and Human Rights: A Sketch

In contemporary European politics, migration issues are among the most contested. Migrants make claims to inclusion—territorially, socially, or politically—which other actors fiercely contest.Footnote ¹ Public authorities have long asserted their “sovereign” power to intervene in such conflicts, designing and enforcing policies of selective in-/exclusion on account of security concerns, foreign policy objectives, economic requirements, or imaginaries of collective identity.Footnote ² Over the past few decades, however, the discretion of public authorities has been restricted by a force they could safely ignore before: the human rights of migrants. A cultural revolution has taken place,Footnote ³ as a result of which actors in migration-related conflicts frequently use human rights language to articulate their interests and self-understandings. For want of an established theoretical concept, my colleagues and I in the MeDiMi project call this transformative process and the ensuing dynamics the “humanrightization of migration discourse.”Footnote ⁴ Humanrightization means a routinized practice of referring to human rights as a normative resource, whether as a legal argument, a moral-political claim, or as a maxim of professional ethics. We observe that humanrightization of discourse in migration societies is taking place on a continuous basis in law, politics, and everyday life.

The remainder of this essay provides a sketch of this phenomenon. Two disclaimers are necessary before we proceed. First, the essay does not pursue comparative objectives but instead focuses on the legal-political context of Europe. Others may feel invited to compare and contrast the European experience with developments in other regional or national contexts. Second, observing the humanrightization of discourse in migration societies does not imply that human rights claims made in migration-related conflicts are necessarily successful. Humanrightization provides for the possibility to contest migration-control practices; the outcome of the challenge is subject to contingent legal and factual circumstances, themselves embedded in a broader set of power relations.

The Belated Revolution

Conceiving of migration as the last bastion of sovereignty overlooks the cultural revolution that the notion of humanrightization captures. The fundamental change to the pre-revolutionary era becomes clearer when one travels back in time to the seventies, described by historians as “the decade of human rights.”Footnote ⁵ In the early 1970s, actors from various backgrounds and affiliations had simultaneously started to use the language of human rights to express their moral and political demands beyond the narrow confines of UN committees and official foreign policy. These included, among others, the exiled opposition against military dictatorship in Latin America, the so-called dissidents in the Communist bloc, and a small London-based organization called “Amnesty International,” which transformed itself into a role model of global campaigning and happened to be awarded the 1977 Nobel Peace Prize.Footnote ⁶

What is striking is the almost complete absence of migration-related issues from this plethora of human rights events, emerging social movements, and intellectual struggles. By way of exception, Samuel Moyn's seminal book mentions but a single example of a migrant group whose interests were framed in the language of human rights: the so-called refuseniks.Footnote ⁷ This struggle was about the denial of exit visas to Jews living in the USSR, which gave rise to advocacy using the new language of human rights. Among other things, a conference in Uppsala in 1972 was dedicated to the study of the right to leave any country, including one's own, laid down in Article 13 of the Universal Declaration of Human Rights (UDHR). This exception is itself telling, since today's conflicts related to migration are almost always about immigration rather than emigration.

At the time, such conflicts did not fall under the rubric of human rights. Think, for example, of the end of the guest workers programs in Europe or the refugee crisis following the U.S. defeat in Vietnam. That migrant workers or asylum seekers could derive rights from international law was beyond the horizon of this time. Refugees in particular were seen as an issue of international security and, increasingly, of humanitarian concerns and civil society action but not yet as holders of a human right to international protection.Footnote ⁸ Certainly, the international labor standards developed at the time and the 1951 Refugee Convention are widely understood today as instruments of human rights protection. However, this perception is the result of a conceptual humanrightization that only took place in the 1990s.Footnote ⁹

The human rights transformations of the 1970s belatedly made their way to the field of migration. Suffice it to observe here that human rights discourse in general has substantially changed since the 1970s. These changes may be captured by the notions of domestication, politicization, and legalization of human rights. In the seventies, human rights practice had a decidedly anti-totalitarian impetus and was mostly concerned with victims abroad. Today, human rights are brought back into the domestic arenas of politics and are mobilized against policies formulated by public authorities in liberal democracies, including migration policies.Footnote ¹⁰ Moreover, the understanding of human rights by many contemporary actors is a “maximalist” rather than “minimalist” one. Back in the 1970s, human rights claims tended to present themselves as indisputable and non-political, whereas actors today frequently use human rights as a normative resource to make highly aspirational and, by implication, contestable demands on contentious issues such as migration. Finally, human rights discourse at present is much more legalized and has become an integral part of professional legal practice. Arguably, the move from human rights language to human rights law reflects both an autonomous development within the legal field and the strategic choices made by civil society actors pursuing their interests through the courts.

A Cornerstone of Humanrightization: Strasbourg Case Law

The human rights of migrants, including refugees, are now extensively discussed in legal scholarship and litigated in courts.Footnote ¹¹ While the turn to human rights law in migration matters cannot be reduced to a single forum, the ECtHR has been a crucial component of this transformation.Footnote ¹²

For non-European readers, a few remarks on the Strasbourg court seem appropriate. The ECtHR is the judicial body of the Council of Europe, a pan-European association of states, and adjudicates on the European Convention of Human Rights (ECHR). The Court has compulsory jurisdiction to hear complaints brought by individual victims of human rights violations after the exhaustion of domestic remedies. Its decisions are binding, though technically only on the parties to the dispute. The ECtHR interprets the Convention as a “living instrument,” a document that must develop over time according to the needs of contemporary societies. After the end of the Cold War, the ECtHR has gained significance, both practically and symbolically. Accepting the jurisdiction of the Strasbourg court came to define what it means to be part of “Europe”; it embodies the European ordre public, as it were. Accordingly, most Constitutional or Supreme Courts in Europe accept the ECtHR's supranational guidance in interpreting their own domestic bill of rights. This includes the EU's Court of Justice in its case law on the EU Charter of Fundamental Rights.

That the European Convention would become a document that migrants can draw upon to defend their interests and contest measures of migration control was anything but self-evident. Drafted in 1950 by former and actual colonial powers, the European Convention contained several safeguards to prevent non-European subjects from challenging migration policies. Moreover, none of the provisions of the Universal Declaration of 1948 that explicitly addresses human mobility, notably the right to seek and to enjoy asylum in other countries from persecution (UDHR Article 14), made it into the original body of the Convention. And, indeed, in the first three decades of the ECtHR's activity, the rare cases in which governmental measures of migration control were at issue left the applicants empty-handed.Footnote ¹³

However, in the late 1980s a development began which, in hindsight, marks the beginning of a new era in the case law of the Court.Footnote ¹⁴ Over the course of little more than a decade—a fairly short period when talking about judge-made law—the Court transformed several migration-blind provisions of the Convention into core guarantees of migrants. Today, the relevant case law covers a wide range of issues and consists of literally hundreds of judgments that are the bread and butter of migration law scholars and practitioners.Footnote ¹⁵ In the following, I will limit myself to outlining the cornerstones of this transformation.

The first provision to be mentioned is ECHR Article 3 (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”). The foundational case is Soering v. UK, decided in 1989.Footnote ¹⁶ In the course of the 1990s, it became settled case law that ECHR Article 3 enshrines the principle of non-refoulement, that is, the unconditional right not to be subjected to grave human rights violations due to measures of migration control.Footnote ¹⁷ It entails a right to stay for as long as the threat persists, also in cases of looming chain refoulement, and a right to admission in border situations for the purposes of conducting a proper asylum procedure. Under the ECHR, any “pushbacks” of protection-seeking migrants are illegal.Footnote ¹⁸ These rights are accompanied by strong due process guarantees and minimum social rights, also derived from ECHR Article 3.Footnote ¹⁹ In effect, the Convention provides for an enforceable right to claim asylum, including at the European borders. Human rights became the conceptual foundation of refugee law, which in turn fostered a new understanding of the 1951 Refugee Convention, with the two instruments and other human rights treaties complementing each other.Footnote ²⁰

In parallel, the Court carried out a reconstruction of ECHR Article 8 (“Everyone has the right to respect for his private and family life . . . .”). The foundational judgment is Berrehab v. The Netherlands of June 1988.Footnote ²¹ The ECtHR held that the interests of migrants to pursue a normal family life at their place of residence can override the public interests served by means of migration control. Over the course of the 1990s, the Court developed a rich case law on non-expulsion of “settled migrants” and the right to admission of close family members. Expulsion or non-admission of a family member is lawful only if a “fair balance” has been struck between the private and public interests involved and due consideration was given to all relevant circumstances of the individual case.Footnote ²² This excludes, inter alia, any schemes of automatic expulsion following a criminal conviction or unlimited re-entry bans.Footnote ²³ In exceptional circumstances, ECHR Article 8 may even give rise to a right to regularization.Footnote ²⁴ Based on a broad reading of the term “private life,” this rationale was extended to the protection of other social ties developed at the place of residence. The Court considers the entire network of personal, social, and economic relations an essential aspect of the private life of a person.Footnote ²⁵ Thus, the interest of any migrant in staying in the country where such ties exist is protected by ECHR Article 8. The Convention provides for a human right to sojourn in all but name, albeit a conditional one.Footnote ²⁶ Human rights became a source of denizenship beyond nationality.Footnote ²⁷

Human Rights Backlash?

These rough sketches of a complex jurisprudence may suffice to make the point that in the European legal context, well-established instruments of migration control such as expulsion or refusal of entry at the border are not purely within the discretion of states anymore. If such unlimited discretion actually constitutes sovereignty, sovereignty is lost. Public authorities today must justify their action against the yardstick of individual rights derived from human rights law.

The actual impact of the Strasbourg case law on the practice of migration control was and is subject to debate.Footnote ²⁸ More recently, scholars have noted signs of retreat from earlier jurisprudence in border management cases and a trend toward a more deferential approach in its case law on ECHR Article 8.Footnote ²⁹ Some have even diagnosed a “provisional endpoint of three decades of dynamic human rights jurisprudence.”Footnote ³⁰ I would argue that telling such a story of rise and fall is not entirely appropriate. After the initial rapid transformation in the long 1990s, there was no permanent expansion of the protection of migrants’ rights but rather a typical back-and-forth. The ECtHR's approach to migration-related cases has always been somewhat indecisive, oscillating between Utopia and Laodicea, as it were. The Court's revolution has created the possibility to contest measures of migration control on human rights grounds, while at the same time always ensuring that the core instruments of migration control remain in place as a matter of principle.

However, the Court did not sanction a return to the ancien régime of unfettered state discretion in migration issues either. The essential legal doctrines that came into being during the foundational period have not been reversed. This has opened up a discursive space for far-reaching demands for the inclusion of migrants within the framework of the recognized rules of legal argumentation. Such “positivist human rights maximalism” by human rights lawyers and activists will continue to clash with counterclaims made by other actors, including governments—with unpredictable outcomes. It seems humanrightization is here to stay.