Book Review: When Humans Become Migrants

Guest post by Rachael Owhin, a recent University of Oxford MSc in Migration Studies graduate and Global Ambassador for the Powerlist Foundation. You can follow her on Twitter @rachaelowhin.

Review of When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint by Marie-Bénédicte Dembour (Oxford University Press, 2015)

With a title as hard hitting as When Humans Become Migrants one would hope the content of the book would be equally as striking, and thankfully it is. Through it, legal anthropologist Marie-Bénédicte Dembour challenges our thinking about the position and humanity of migrants, even before opening the book. She shows how it’s become second nature to think of migrants as a subset of individuals who aren’t afforded the same rights as nationals of a country. Dembour’s conceptual approach―contrasting the treatment of migrants in the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACHR)―provides a unique, highly relevant, and timely contribution to the field of human rights law and migration studies. She uses inadmissibility decisions, dissenting judgements (which are largely ignored in legal commentary), and an examination of the history and case law of the Inter-American Court to critique the ‘enduring and controversial character of the principles followed by Strasbourg’ (p. 24).

More specifically, Dembour employs the IACHR to show the existence of a system that takes a pro homine approach, which is ‘willing to put human rights, including the rights of migrants, at the start of its reasoning’ (p. 153), rather than as an afterthought or an exception to the rule of state sovereignty, as she shows to be the case in the ECtHR. Throughout the book, she examines the historical case law related to migrants in each of the Courts, showing how each ruling and event has had an impact on the system we see today. Based on this analysis, Dembour argues that the human rights of migrants are secondary in Strasbourg―that is, migrants are objects of state sovereignty rather than subjects of human rights (p. 159)―and at the heart of the ECtHR is the protection of states. It was not, therefore, formed with the best interests of all future migrants in mind.

When Humans Become Migrants is divided into 15 chapters organised into three sections: Foundations, Consolidation, and Prospects. In the first section, by providing a detailed history of the circumstances surrounding the drafting of the European Convention of Human Rights (ECHR) in 1950 and the American Convention of Human Rights in 1969, Dembour illustrates how the European and Inter-American Courts are so starkly different politically, socially, and institutionally. The splendour of this section is found in chapter 2, in which the author traces historically how the founding texts of each Court came about. Dembour explains that it’s not the texts themselves but the ideas and social and political contexts surrounding their drafting that has led to the difference in the two Courts’ treatment of migrants. She shows, for instance, how seeds planted during the drafting of the ECHR, the shortcomings of cases like the East African Asians case, and confirmation of the idea that states have the right to control the entry and residence of ‘aliens,’ as confirmed in cases such as ABC, set the scene for what was to come in later years.

In the book’s second section, Dembour considers the emergence of an important jurisprudence in key areas such as deportation and social security prohibition, as they relate to the human rights of migrants. The perpetual declarations of inadmissibility of expulsion cases seen in the first 30 years of the ECtHR’s inception―which meant that no migrant case was brought to Strasbourg until 1988 even though 90 applications had been lodged before then―was a result of the entrenchment of the aforementioned stance taken toward migrant cases at the inception of the system. By using cases like Berrehab, she brings to the fore the discrimination involved in identifying people on grounds of nationality, as foreign nationals are deported on the basis of the single fact that they were born in said unfavourable country. This is a well-known pattern of logic, but Dembour manages to illustrate how unreasonable it is to make decisions about a human being’s future based on the flippancy of nationality, showing how normalised deportation has become.

In the final section, recent case law is reviewed in order to consider if the arguments explored in the first two sections―(1) that Strasbourg is essentially pro-state and (2) the Inter American court is pro-human―will continue into the future. Dembour dedicates a chapter to the more recent case of Vélez Loor, in which the IACHR insisted that immigration detention must be a ‘last resort’―an approach that’s striking when contrasted with Strasbourg’s use of immigration detention. She also uses this final section to take a brief look at five important cases, which, if space permitted, would have constituted their own chapters, as there is a wealth of relevant case law in this area.

Three things are particularly distinctive about this book. First, the use of the IACHR as a counterpoint is novel since it’s not a court that many human rights lawyers know a huge amount about. Second, a detailed focus on historical context runs throughout the book, adding depth to the examination of each legal decision considered. For example, Dembour’s close examination of the journeys of the ‘colonial clause’ and ‘alien clause’ into the European Convention helps show why migrants aren’t treated like human beings. Third, the most impressive aspect of the book is the author’s sophisticated choice of cases used to illustrate her key premise. Dembour doesn’t make comparisons between cases that ‘match’ on the basis of facts, or use the numerous obvious cases available which display the ECtHR’s default position of state sovereignty. Rather, she uses cases like the East African Asians case (examined by the European Commission rather than ruled on by the European Court) where there actually was a victory for the migrant applicants; and findings like those in Advisory Opinion 4/84 of the IACHR in which there wasn’t a victory for the non-nationals who could no longer gain citizenship after one year of residence in Costa Rica. Rather than merely focusing on the final ruling of each case, Dembour highlights nuances in the reasoning behind each decision, picking up the biases and purposes of each Court.

Though heavily focused on legal systems and case law, there’s much for non-legal scholars, especially policy makers and journalists, to gain from reading this book, particularly at a time when the UK is reconsidering its position in the EU. The book encourages readers to take a step back from all they consider ‘normal’ about the position and rights of migrants, and convincingly shows how they are devalued and, in some cases, have their rights forfeited once they commit the cardinal sin of moving across borders, becoming migrants. Dembour shows that migrants essentially don’t have the right choose a place they find safe and suitable for their families to live in―all basic rights enshrined in international legal instruments and afforded to those who stay in their ‘countries of origin.’

By synonymising ‘migrant’ with ‘human,’ Dembour reveals how migrants have become so detached from their foremost status as human beings in the European Court of Human Rights. The book leads the reader to question the very existence of the so-called migrant crisis the world is currently weathering, as surely these are simply human beings, with human rights, moving around the world.

Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.

__________

How to cite this blog post (Harvard style)

Owhin, R. (2016) Book Review: When Humans Become Migrants. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/06/book-review-when (Accessed [date]).