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Vol 21 No 11 Nov/Dec 2016

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When Humans Become Migrants: Study of the European Court of Human Rights With an Inter-American Counterpoint


ISBN13: 9780199667840
Published: March 2015
Publisher: Oxford University Press
Country of Publication: UK
Format: Paperback
Price: £29.99
Hardback edition , ISBN13 9780199667833



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Tthe treatment of migrants is one of the most challenging issues that human rights, as a political philosophy, faces today. It has increasingly become a contentious issue for many governments and international organizations around the world.

This book examines the way in which two institutions tasked with ensuring the protection of human rights, the European Court of Human Rights and Inter-American Court of Human Rights, treat claims lodged by migrants. It combines legal, sociological, and historical analysis to show that the two courts were the product of different backgrounds, which led to differing attitudes towards migrants in their founding texts, and that these differences were reinforced in their developing case law.

The book assesses the case law of both courts in detail to argue that they approach migrant cases from fundamentally different perspectives. It asserts that the European Court of Human Rights treats migrants first as aliens, and then, but only as a second step in its reasoning, as human beings. By contrast, the Inter-American Court of Human Rights approaches migrants first as human beings, and secondly as foreigners (if they are). Dembour argues therefore that the Inter-American Court of Human Rights takes a fundamentally more human rights-driven approach to this issue.

The book shows how these trends formed at the courts, and assesses whether their approaches have changed over time. It also assesses in detail the issue of the detention of irregular migrants. Ultimately it analyses whether the divergence in the case law of the two courts is likely to continue, or whether they could potentially adopt a more unified practice.

Subjects:
Human Rights and Civil Liberties
Contents:
1. Introduction

PART I: FOUNDATIONS
2. The Alien in the Social Imagination of the Founding Texts: (Art.
16 ECHR v. Art.
22 ACHR)
3. Rejecting the Legacy of Empire: Postcolonial Dereliction (East African Asians case)
4. Dislocating Families: The Strasbourg Reversal (Abdulaziz, Cabales and Balkandali)
5. Not so Threatening Foreigners: Nationality as a Central HUman Rights Issue (Advisory Opinion 4/84)

PART II: CONSOLIDATION
6. Shattered Lives: The Normalization of Deportation (After Berrehab)
7. The Sleeping Beauty Awakens Late: An Absolute Prohibition with Many Buts (Around Soering)
8. Social Protection: All Are Equal But Some Are More Equal Than Others (After Gaygusuz)
9. The Voice of the Inter-American Court: Equality as Jus Cogens (Advisory Opinions 16/99 and 18/03)
10. Reparation is a Big Issue: The Impact of Human Rights Protection (Yean and Bosico)

PART III: PROSPECTS
11. Migrants, Not Crimianals: Inter-American Determiniation v. European Hesitations (Velez Loor v. Saadi and Tabita
12. Domestica Asylum Procedures Aside: The Meaning of Scrutiny at Strasbourg (M.S.S)
13. Sanctioning Rightlessness: The Ultiamte Discrimnation (Bonger and I.)
14. The Course of The Inter-American Court (by Lourdes Peroni)
15. Conclusion