The Trajectory of the European Court of Human Rights in Migration Matters

Abstract

The paper contributes to the debate on the current state of the ECtHR’s case law in the field of migration. We argue that the more restrictive judgments of recent years should be seen in the context of a post-revolutionary constellation, in which the Court simultaneously activates and mitigates the Utopian potential of human rights for the interests of migrants. We emphasize that the building-up of a migration-related jurisprudence in the long 1990s represents nothing less than a revolution. One fails to recognize the fundamental departure from the past if one describes the case law of the ECtHR as merely paying lip service to human rights or, in the language of the Book of Revelation, it being a Laodicean court. We also do not share the view that the ECtHR has reached an endpoint of ever-increasing expansion of the rights of migrants. Ever since the initial transformation, there was rather a typical back-and-forth between ‘progressive’ and ‘restrictive’ judgments and lines of reasoning. The Court has opened up space for contesting migration control in the name human rights – a space between Utopia and Laodicea which its jurisprudence navigates without a destination.