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

ISBN : 9780199667833

Marie-Benedicte Dembour
576 ページ
163 x 236 mm

Tthe 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.


1. Introduction
2. The alien in the social imagination of the founding texts
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 foreighers: Nationality as a central human rights issue (Advisory opinion 4/84)
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. Reparations are a Big Issue: Taking Human Rights One Step Further (Yean and Bosico)
11. Migrants, not criminals: Inter-American determination v. European hesitations (Velez Loor )
12. Domestic asylum procedures aside: Scrutinising Strasbourgs 'Scrutiny' (M.S.S.)
13. The Darkest Case Law: Condoning Rightlessness (Bonger et alia)
14. On the Road to Substantive Equality: Due Process and Non-discrimination at San Jose (Nadege Dorzema and Pacheco Tineo) - by Lourdes Peroni
15. Conclusion: The Way Forward


Marie-Benedicte Dembour is Professor of Law and Anthropology at the University of Brighton She has also taught at the European University Institute, the Vrije Universiteit Brussels, and the University of Oxford. She has authored and edited numerous previous titles.