Human rights and the political: Assessing the allegation of human rights overreach in migration matters
| Author | Anuscheh Farahat |
| DOI | 10.1177/09240519221092631 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Human rights and the political:
Assessing the allegation
of human rights overreach
in migration matters
Anuscheh Farahat
Friedrich-Alexander-Universität Erlangen-Nürnberg, Erlangen, Germany
Abstract
Europe’s external borders have been the site of intense human rights struggles over the last
decade. While States are inventing ever new practices to circumvent their human rights respon-
sibility by not responding to rescue calls or using private actors as proxies for refoulement, human
rights activists seek to expand State jurisdiction to effectively hold European governments respon-
sible for human rights violations at their borders and on the high seas. At the same time, the rise of
populist movements and increasing xenophobia have made expansive human rights interpretation
to the benefit of migrants increasingly suspicious in public discourse. The question therefore
arises: Does the expansion of migrants’human rights and State responsibility bear features of
‘human rights overreach’in the sense that human rights encroach too much on State sovereignty,
which may ultimately decrease the acceptance of human rights themselves? Or is it a necessary
‘outreach’of human rights, that is, an adaptation of human rights to new practices of border
protection in order to ensure human rights’effectiveness?
This paper addresses these questions in three steps. It first briefly presents current struggles
about migrants’human rights in the Mediterranean. It then deals with the increasing critique of
human rights overreach in migration matters and assesses judicial practice in reaction to increasing
State pressure. The core argument finally developed in this paper is that we should respond to the
allegation of overreach by advancing a more political understanding of human rights, which
acknowledges the methodological limits of regressive human rights interpretation and defends
the idea of human rights as a concrete utopia. The paper develops this argument with a view
to the concrete case law on migration issues and suggests how courts and migration law scholars
should deal with the challenges of human rights struggles regarding migration.
Keywords
Migration law, migrants’human rights, evasion of human rights, extraterritorial applicability of
human rights, human rights overreach, transformative human rights, human rights regression,
human rights courts, push-backs at sea
Corresponding author:
Anuscheh Farahat, Friedrich-Alexander-Universität Erlangen-Nürnberg, Erlangen, Germany.
E-mail: anuscheh.farahat@fau.de
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(2) 180–201
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519221092631
journals.sagepub.com/home/nqh
1. INTRODUCTION
On 27 January 2021, the Human Rights Committee (HRC or Committee) found that Italy had vio-
lated Art. 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) by not taking
sufficient measures to rescue 200 migrants in distress in the Mediterranean.
1
The HRC held that,
due to the close communication between the migrants on board and the Maritime Rescue and
Coordination Centre in Rome and the proximity of an Italian naval ship, Italy had sufficient
control over the situation to be held responsible even outside its search and rescue zone. Despite
receiving several distress calls, both Italian and Maltese authorities had not provided immediate
rescue, but rather tried to pass responsibility to the other. This case is paradigmatic of the
intense human rights struggles at Europe’s external borders over the last decade. While States
are inventing ever new practices to circumvent their human rights responsibility by not responding
to rescue calls or using private actors as proxies for refoulement, human rights activists seek to
expand State jurisdiction to effectively hold European governments responsible for human rights
violations at their borders and on the high seas. At the same time, the rise of populist movements
and increasing xenophobia have made expansive human rights interpretation to the benefitof
migrants increasingly suspicious in public discourse. The question therefore arises: Does the expan-
sion of migrants’human rights and State responsibility bear features of ‘human rights overreach’in
the sense that human rights encroach too much on State sovereignty, which may ultimately decrease
the acceptance of human rights themselves? Or is it a necessary ‘outreach’of human rights, that is,
an adaptation of human rights to new practices of border protection in order to ensure human rights’
effectiveness?
These questions will be at the core of this paper. The next section provides a brief description of
the human rights struggles regarding migration control at the EU’s external borders (Section 2).
I then present three strands of critique arguing that protection of migrants’human rights at the
border is too excessive, that is, that it constitutes human rights overreach (Section 3). This critique
merits closer attention as it is often justified with serious concerns about the effectiveness and
authority of human rights. The fourth section offers an assessment of the overreach claims in the
light of interpretative practices by which courts try to accommodate increasing political pressure
in migration matters and the political nature of human rights struggles. I also present strategies
by which courts could take the political dimension of human rights better into account (Section
4). My ultimate point is to show that the allegation of overreach is genuinely a politically motivated
critique that should be countered by defending the idea of human rights as a concrete utopia.
2
I con-
clude with a brief summary and possible research agendas for the future (Section 5).
2. HUMAN RIGHTS OUTSOURCING AND HUMAN RIGHTS
OUTREACH AT EUROPE’S EXTERNAL BORDERS
Just a decade ago, it seemed that human rights protection of migrants at the EU’s borders had made
significant progress. In 2012, in Hirsi Jamaa, the Grand Chamber of the European Court of Human
Rights (ECtHR or Court) held that a ‘pushback’operation by an Italian military vessel outside
1. A.S., D.I., O.I., G.D. v Italy Communication No. 3042/2017, CCPR/C/130/D/3042/2017 (United Nations Human Rights
Committee (UNHRC), 27 January 2021).
2. On the notion of concrete utopia in this context Wolfgang Kaleck, Die konkrete Utopie der Menschenrechte (S. Fischer
2021) 31–35 (referring to Ernst Bloch, The Spirit of Utopia (Duncker & Humblot 1918)).
Farahat 181
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