Humboldt-Universität zu Berlin - Integrative Research Institute Law & Society (LSI)

Migration is sometimes pitched as the ‘last bastion of sovereignty’ – an area in which States should enjoy ‘unfettered discretion’. The ‘discovery’ of the human rights of migrants, i.e., the increasing recognition that human rights protection extends to migrants especially by the European Court of Human Rights, however, challenges such a presumed power to exclude and places limits on the ways in which governments can design their migration policies.

This talk proposes that one response of Contracting States to this development is ‘reverse strategic litigation: they try – and succeed – to counter human rights from within in migration-related human rights jurisprudence in order to legitimise their migration control policies under human rights law. Acting as ‘doctrinal entrepreneurs’, they activate and harness exclusionary elements within the law in order to shape doctrine to accommodate their interests in excluding migrants. This is a very powerful approach: If States succeed in shaping the very meaning of human rights law, they can defuse and limit the potential of human rights law to place restrictions on their migration policies.

Janna Wessels is Associate Professor at the Amsterdam Centre for Migration and Refugee Law (ACMRL), Vrije Universiteit Amsterdam. Prior to joining the ACMRL, Janna Wessels held positions at Justus Liebig University Giessen and the University of Technology Sydney (UTS). She received her PhD in refugee law from the Faculty of Law, University of Technology Sydney and the Faculty of Law, Vrije Universiteit Amsterdam (joint degree). Janna is a member of the Dutch Meijers Committee – Standing Committee of Experts in International Immigration, Refugee and Criminal Law, an Affiliate of the Refugee Law Initiative (London), and a member of the German Network Migration Law. 

Janna Wessels’ research investigates the link between human rights and migration law and policy. She is the author of the monograph “The Concealment Controversy. Sexual Orientation, Discretion Reasoning and the Scope of Refugee Protection” (CUP 2021, paperback 2023) and co-author of “Human Rights Challenges to European Migration Policy. The REMAP Study” (Hart/Nomos 2022, open access). Her current research focuses on strategic litigation by states in migration-related cases before the European Court of Human Rights (Dutch NWO Veni project and Principal Investigator of the DFG funded MeDiMi project “Who is Empowered by Strasbourg? Migrants and States before the ECtHR”).