Defining Detention: The Intervention of the European Court in the Detention of Involuntary Migrants

This Article examines the European Court of Human Rights’ intervention in the detention of involuntary migrants. It analyzes the use of “carceral migration control” in response to a migration “crisis,” and argues that the actual crisis in the region is one of politics and policies rather than the magnitude of migration. It explores the consequences of a crisis moniker for migration, including shortsighted migration policies, entrenched caricatures of migrants as threatening, and excessive emphasis on punitive rather than humanitarian responses. Responding to migration as a crisis has led states in Europe and elsewhere to shift the movement of people across national borders from a human security issue—protecting people and providing assistance—to a national security issue.

This Article applies the migration crisis framework to analyze the European states’ responses to the most recent rise in involuntary migration to the region. It examines the foundational principles of the European human rights system with respect to migrants. Because both the original text of the European Convention on Human Rights and the early judgments of the European Court of Human Rights strongly favored state sovereignty over migrants’ rights, the Court’s recent decisions on migrant detention in part have gone in a somewhat surprising direction.

An analysis of the European Court of Human Rights’ post-crisis migrant detention judgments reveals that the Court held steadfast to the applicability of the Convention’s prohibition of deprivation of liberty, namely that migrant detention is in fact detention. The case law also shows that the Court has not deviated from its relatively recent and more migrant-protective analysis of whether states’ method of carceral migration control is lawful. Crisis discourse has, however, affected the Court’s treatment of migrant detention claims in judgments regarding the conditions in which states have held involuntary migrants under the specter of migration crisis control. This overall picture illustrates the potential of the European system to extend human rights protections to migrants, but also the power of persistent, ubiquitous crisis discourse to forgive human rights violations.