Facing the challenge of migratory vulnerability in the European Court of Human Rights
| Author | Moritz Baumgärtel |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
| DOI | 10.1177/0924051919898127 |
| Subject Matter | Articles |
Article
Facing the challenge
of migratory vulnerability
in the European Court
of Human Rights
Moritz Baumga
¨rtel
Utrecht University, the Netherlands
Abstract
The European Court of Human Rights has struggled to integrate the lived experience of migrants
into the legal reasoning that underlies a determination of human rights violations. This article
introduces the concept of migratory vulnerability in an effort to remedy that shortcoming by
making an already existing legal principle fit for the daunting task posed by migration cases. The
objective is to preserve (and potentially expand) the legal effects of the principle of vulnerability
whilst approximating it to the more consistent conception of vulnerability theorists, which would
remove some of its ambiguities and negative side effects. Migratory vulnerability describes a cluster
of objective, socially induced, and temporary characteristics that affect persons to varying extents
and in different forms. It therefore should be conceptualized neither as group membership nor as a
purely individual characteristic, but rather determined on a case-by-case basis and in reference to
identifiable social processes. Depending on its specific expression, migratory vulnerability may give
rise to distinct legal effects such as enlarged scopes of protection, shifts in the burden of proof,
procedural and positive obligations, a narrower margin of appreciation, and possibly even the
‘triggering’ of proceedings under Article 14 ECHR.
Keywords
Migrants, vulnerability, ECtHR, M.S.S., positive obligations
1. INTRODUCTION
The politicized question of migration has been a persistent headache for the European Court of
Human Rights (‘ECtHR’ or ‘Court’). Eminent scholars and practitioners have criticised the Court’s
approach from diametrically opposed perspectives to the extent that its institutional legitimacy is
Corresponding author:
Moritz Baumga
¨rtel, Utrecht University, Domplein 29, 3512 JE Utrecht, the Netherlands.
E-mail: m.g.n.baumgartel@uu.nl
Netherlands Quarterly of Human Rights
2020, Vol. 38(1) 12–29
ªThe Author(s) 2020
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DOI: 10.1177/0924051919898127
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put in doubt.
1
On the one hand, its interference with immigration policies has been alleged to
amount to ‘judicial activism’ through which it asserts itself as Europe’s asylum court.
2
On the other
hand, it has been claimed that its deferential attitude to States and their sovereign right to control
migration has left notable gaps in human rights protection.
3
Strikingly, both types of critiques do
without a systematic inquiry into the structural reasons behind the steadily rising number of
migration cases before the ECtHR.
4
This is even more surprising given that questions regarding
the vulnerability of migrants such as asylum seekers were at the heart of the landmark ruling in
M.S.S. v Belgium and Greece (‘M.S.S.’) more than nine years ago.
5
Already then, they underlined
the urgent need to come to terms with when, how, and why migrants become vulnerable and how
these complex factors should influence legal reasoning. If at all, critics discuss the challenge of
migrants’ vulnerability abstractly and in an empirical vacuum, evaluating the principle from within
the familiar confines of legal doctrine and related considerations of the separation of powers.
6
Building on my recent book which raises the possibility in general terms,
7
this article introduces
the concept of migratory vulnerability in an effort to remedy this lack of theorization and make the
principle fit for the daunting practical tasks of doing justice to immigration cases. The objective is
to preserve and possibly expand the legal effects of the principle of vulnerability whilst approx-
imating it to the more consistent conceptions of vulnerability theorists, thus removing some of its
ambiguities and negative side effects. In short, migratory vulnerability as presented here describes
a cluster of objective, socially induced, and temporary characteristics that affect persons to varying
extents and forms. It therefore should be conceptualized neither as group membership nor as a
purely individual characteristic, but rather determined on a case-by-case basis and in reference to
identifiable social processes. Depending on its specific expression, it will give rise to distinct legal
effects such as enlarged scopes of protection, shifts in the burden of proof, procedural and positive
obligations and a narrower margin of appreciation, possibly even ‘triggering’ proceedings under
Article 14 ECHR. This article, in short, introduces migratory vulnerability as a tool for the Court to
‘capture’ more reliably and consistently the lived reality of individual migrant applicants, which
would, in turn, enable the Court to find the appropriate legal responses to the cases in question.
In this contribution the argument for the legal principle of migratory vulnerability consists of
three building blocks, starting in section 2 with a short depiction of vulnerability as an analytical
concept, referring in particular to the insightful works of Fineman. Section 3 deals with vulner-
ability as used generally in the case law of the ECtHR, comparing it to the previously described
1. For a recent analysis of the Court’s approach to migration cases that seeks to make sense of its approach using a ‘neo-
republican’ framework, see Lieneke Slingenberg, ‘The Right Not to be Dominated: The Case Law of the European Court
of Human Rights on Migrants’ Destitution’ (2019) 19 Human Rights Law Review 291.
2. See Marc Bossuyt, International Human Rights Protection: Balanced, Critical, Realistic (Intersentia 2016) and Marc
Bossuyt, ‘Judges on Thin Ice: The European Court of Human Rights and the Treatment of Asylum Seekers’ (2010) 3
Inter-American & European Human Rights Journal 3.
3. See most notably Marie-B´en´edicte Dembour, When Humans Become Migrants: Study of the European Court of Human
Rights with an Inter-American Counterpoint (OUP 2015) and Cathryn Costello, The Human Rights of Migrants and
Refugees in European Law (OUP 2016).
4. Moritz Baumga¨rtel, Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability
(CUP 2019) 5.
5. M.S.S. v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011).
6. See Marc Bossuyt, ‘Categorical Rights and Vulnerable Groups: Moving Away fromthe Universal Human Being’ (2015)
48 George Washington International Law Review 717, 739-741.
7. Baumga¨rtel (n 4) 113-114, 150-152.
Baumga
¨rtel 13
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