Marie-Bénédicte Dembour, When Humans Become Migrants

When Humans Become Migrants is an important critical examination of the approach taken by the European Court of Human Rights (ECtHR) towards migrant applicants which adds significantly to our understanding of this strand of the Court’s jurisprudence. One of the main contributions of the book is its interrogation and analysis of what the author characterizes as ‘the Strasbourg reversal’ (pp 4–5, 184–7). This refers to the way in which the Court, when adjudicating on cases concerning migrant applicants, typically takes as its starting point not the relevant human right but the principle that states have the right to exclude migrants. Given that the ECtHR is a human rights court whose task is to interpret and apply the human rights codified in the Convention, Dembour argues that there is incongruity in the fact that it usually begins its reasoning in these cases by reference to a principle which does not affirm human rights and is nowhere to be found in the text of the Convention. The result is that the Court’s default position in migrant cases is ‘towards the state and away from the claimant’ (pp 4–5). The author makes the powerful point that it would be bizarre were the Court in criminal justice cases to start its reasoning by invoking states’ powers to punish offenders rather than by reference to the fair trial guarantees enshrined in Article 6 of the Convention (p 5).

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