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When Humans Become Migrants

When Humans Become Migrants Study of the European Court of Human Rights with an Inter-American Counterpoint

Author: Marie-Bénédicte Dembour
Publisher: Oxford University Press
ISBN: 9780199667840

Published In: March 2015
Format: Paperback , 560 pages
Jurisdiction: European Union ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9780199667833

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Examines the way in which two of the world's foremost human rights courts, the European Court of Human Rights and Inter-American Court of Human Rights, engage with claims lodged by migrants
Assesses whether the two courts remain true to their purpose of upholding human rights in migrant cases, and shows the differences in their approaches
Combines both a close analysis of the relevant case law with sociological insight and historical awareness
Shows how the different social, moral, and political conceptions prevalent in Europe and Latin America can explain their different reasoning and contrasting outcomes

The treatment of migrants is one of the most challenging issues that human rights, as a political philosophy, faces today. It has increasingly become a contentious issue for many governments and international organizations around the world. The controversies surrounding immigration can lead to practices at odds with the ethical message embodied in the concept of human rights, and the notion of 'migrants' as a group which should be treated in a distinct manner. This book examines the way in which two institutions tasked with ensuring the protection of human rights, the European Court of Human Rights and Inter-American Court of Human Rights, treat claims lodged by migrants. It combines legal, sociological, and historical analysis to show that the two courts were the product of different backgrounds, which led to differing attitudes towards migrants in their founding texts, and that these differences were reinforced in their developing case law.

The book assesses the case law of both courts in detail to argue that they approach migrant cases from fundamentally different perspectives. It asserts that the European Court of Human Rights treats migrants first as aliens, and then, but only as a second step in its reasoning, as human beings. By contrast, the Inter-American Court of Human Rights approaches migrants first as human beings, and secondly as foreigners (if they are). Dembour argues therefore that the Inter-American Court of Human Rights takes a fundamentally more human rights-driven approach to this issue. The book shows how these trends formed at the courts, and assesses whether their approaches have changed over time. It also assesses in detail the issue of the detention of irregular migrants. Ultimately it analyses whether the divergence in the case law of the two courts is likely to continue, or whether they could potentially adopt a more unified practice.

Readership: Students and scholars of migration and human rights; NGO and government legal advisers and policy-makers concerned with migration

1: Introduction
Part I: FOUNDATIONS
2: The alien in the social imagination of the founding texts (Art. 16 ECHR v. Art. 22 ACHR)
3: Rejecting the legacy of empire: Postcolonial dereliction (East African Asians case)
4: Dislocating families: The Strasbourg reversal (Abdulaziz, Cabales and Balkandali)
5: Not so threatening foreigners: Nationality as a central human rights issue (Advisory opinion 4/84)
Part II: CONSOLIDATION
6: Shattering Lives: The normalisation of deportation (After Berrehab)
7: The sleeping beauty awakens late: An absolute prohibition with many buts (Around Soering)
8: Social protection: All are equal but some are more equal than others (After Gaygusuz)
9: The Voice of the Inter-American Court: Equality as Jus Cogens (Advisory Opinions 16/99 and 18/03)
10: Reparation is a big issue: The impact of human rights protection (Yean and Bosico)
Part III: PROSPECTS
11: Migrants, not criminals: Inter-American determination v. European hesitations (Vélez Loor v. Saadi and Tabita)
12: Domestic asylum procedures aside: The meaning of scrutiny at Strasbourg (M.S.S.)
13: Sanctioning rightlessness: The ultimate discrimination (Bonger and I.)
14: The course of the Inter-American Court (by Lourdes Peroni)
15: CONCLUSION

Marie-Bénédicte Dembour is Professor of Law and Anthropology at the University of Brighton. She was previously at the University of Sussex. She has been a visiting scholar/tutor/Professor at various European institutions, including the Free University of Amsterdam, the Free University of Brussels and the University of Oxford. When Humans Become Migrants was written with the support of a Leverhulme Major Research Fellowship.