When Humans Become Migrants: Study of the European
Court of Human Rights with an Inter-American Counterpoint
by Marie-Bénédicte Dembour (Author)
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.
