To make sense of the migration-related jurisprudence of the European Court of Human Rights (ECtHR), scholars tend to identify a certain logic, story or direction in which the case law develops. My point here is not that a certain narrative is correct or another is wrong. Instead, I want to draw attention to the fact that, as Janna Wessels and Jürgen Bast have recently shown, there are three competing narratives, and that it is important to be aware of these – not only, but especially for actors engaged in strategic litigation.

The story that is mostly told goes as follows: For asylum seekers and refugees, Strasbourg is no longer the safe haven it long appeared to be. As the very basic rights of persons on the move – including their right to life – are increasingly threatened by European states, it is no longer a matter of course to turn towards the ECtHR for relief. The ECtHR’s latest decisions, most recently SS et al v Italy, have disappointed those who had placed all their bets on Strasbourg. Based on this narrative, human rights lawyers, NGOs and scholars supporting strategic litigation might no longer regard Strasbourg as the first, obvious and most promising option. UN Treaty Bodies and other ‘soft courts’ are increasingly seen as valid alternatives.

Yet, it is essential to not give in to resignation, and especially, to not give up on the ECtHR. As Europe’s legislation becomes more and more restrictive, it is more important than ever to remind legislators, administrative authorities and courts of the limits set by human rights. And, potentials of UN Treaty Bodies notwithstanding, the ECtHR remains one central place for doing so. Considering that those fighting for an increased closure of Europe rely on very powerful narratives, have strong unification mechanisms and increasingly engage in strategic litigation, too, those fighting for a European migration policy that respects human rights have, in fact, no real alternative to keeping up the work. But continuing to rely on litigation before the ECtHR as one important tool in the struggle for a more humane European migration policy requires the belief that this strategy is not in vain. Keeping up the work requires hope.

The Importance of Narratives for Human Rights Litigation

Placing hope in the ECtHR, in turn, requires hopeful narratives. The stories we tell frame our ideas and influence the decisions we make. For instance, if one believes that the ECtHR is a forum in decline where migrants’ rights are no longer effectively protected, or even that the court has never truly advanced migrants’ rights, one will most likely make different decisions than if one believes that the court remains a central place, maybe even the central place, for promoting migrants’ rights and that it should be strengthened in this role. The connection between narratives on the one hand and law and policy on the other hand is vivid and complex. Obviously, law and policy frame narratives. But it is also the other way round: narratives frame law and policy. It matters which narratives we internalise because this will make a difference for our decisions.

While this holds true for decision-making in very different contexts and for persons in very different capacities, including scholars, judges, policy makers and participants in the public discussion, I focus here on strategic litigators. Two reasons justify this choice. First, strategic litigation plays a central role in the context of migration and asylum law. Nearly all landmark judgements of the past decades were supported by strategic litigators. Given the precarious situation of people on the move, especially when their human rights are violated at borders, given the lack of funding and the difficulties of proof in this context, bringing a case to the ECtHR de facto requires professional support from NGOs and legal scholars. Second, I observe increasing frustration among strategic litigators. While this frustration is understandable, it seems critical to prevent resignation or hard internal fractions which could eventually weaken the camp of those defending the rights of people on the move. Criticising the ECtHR is certainly important – but it is not sufficient. Hopeful perspective, and narratives that unify different fractions of strategic litigators, are essential.

Thinking about narratives, the notion as such requires brief clarification. Two notions deserve mention here. The first is borrowed from literary studies and is accordingly rather narrow. A narrative in this sense is defined as the act of telling a story in court, e.g. witness testimony or judicial fact-finding. The second and broader notion was developed by scholarship on transitional justice. A narrative in this sense is defined as a story which a society tells itself and other societies. For the purpose of the present contribution, I work with this broader notion of narrative and apply it to the context of the professional community following the ECtHR’s migration-related case law. Accordingly, I understand here as a narrative those stories that the professional community constructs to make sense of the ECtHR’s case law; these stories are told to other members of the professional community, to non-professionals and the media, thus informing public opinion.

Narrative 1: A Communitarian Turn

The currently prevalent narrative on the ECtHR’s migration-related case law in the context of migration was mentioned already. I call it here the ‘narrative of a communitarian turn’ (Janna Wessels and Jürgen Bast, in their recent paper cited above, call it the ‘endpoint narrative’). According to this view, the past decades were characterised by a gradual expansion of migrants’ rights (for a sensible critique of this narrative see the contribution by Dana Schmalz in this symposium). A line is drawn from the case of Soering decided in 1989 where the Court for the first time established that Art. 3 of the Convention entails a prohibition of refoulement, to the case of M.S.S. in 2011 where the Court expanded this prohibition to intra-EU constellations, and further to the case of Hirsi of 2012 where the Court held that jurisdiction can also be established on the high seas.

The case of N.D. and N.T., decided in 2020, where the Court removed certain constellations at land borders from the prohibition of collective expulsion, is usually identified as a turning point. Since then, proponents of this narrative argue, the case law has developed in a different direction, giving governments more leeway and increasingly restricting the rights of migrants. This decline in the case law is seen as confirmed by the decision in M.N. and others v Belgium, decided in 2020, where the court held that the refusal of visa at embassies does not violate the Convention; and most recently by the decision in S.S. and others v Italy, decided in May this year, where the court found a lack of jurisdiction and dismissed the case as inadmissible.

It seems that most legal scholars currently work with this narrative of a communitarian turn. Opinions on this decline in the case law, however, vary.  Some focus on a critique of the ‘backsliding’ on the protection of migrants’ rights as such. Others focus on a critique of the so-called overreach hypothesis i.e. the idea that the earlier expansive interpretation of migrants’ rights has contributed to the following backlash. Yet others understand the provisional endpoint of dynamic human rights jurisprudence as the politically inevitable consequence of the past decades, and explicitly call for more ‘flexibility’ on the part of governments (as Daniel Thym in his contribution to this symposium).

The narrative of a communitarian turn is prevalent not only in scholarship, but in practice, and especially in human rights litigation, too. Many actors engaging in human rights litigation are frustrated, perceive their work as increasingly pointless or even regard litigation before the ECtHR as a test of their hypothesis that it upholds ‘legal black holes’. This puts strategic litigators in an extremely difficult position. They work with a narrative that takes their hopes away. No wonder that this often feels like tilting at windmills.

While this frustration is not new, and perhaps not avoidable, it is crucial to not lose sight of all the cases in which human rights are upheld before the ECtHR. The narrative of a communitarian turn is built around landmark cases and, as such, comes with the risk of overlooking the everyday victories. In fact, a large number of cases, including interim measures, are successful. Very often, it is the ECtHR which reminds and obliges European states, especially EU member states, to respect the human rights of people on the move.

Narrative 2: A Still Colonial Court

The second narrative is that of a ‘still colonial court’. In a nutshell, proponents of this narrative argue that there has never been true progress (accordingly, Janna Wessels and Jürgen Bast call it the ‘no-progress narrative’). One straight line is drawn from Soering of 1989 to S.S. and others of 2025. Unlike in the first narrative, N.D. and N.T. is not seen as a turning point, but only as the point where the formerly hidden lack of progress became more visible. Remarkably, a very early version of this narrative is based on a comparison of the jurisprudence of the ECtHR to that of the Inter-American Court, finding that the European court has always shown comparatively much deference to governments. More recently, this narrative is, on the one hand, supported by the observation of so-called ‘maritime legal blackholes’, i.e. spaces of not only de facto but de jure rightlessness, where migrants are deprived of their right to have rights. On the other hand, decolonial and anti-racist theories – even more fundamental decolonial critiques of the foundations of international migration law notwithstanding – argue that the ECtHR’s judgments remain marked by Europe’s colonial past and that the court has failed to truly recognise humans from other regions as equals.

While the ‘narrative of a still colonial court’ is adopted by a much smaller community than the first one, it is increasingly present, especially among legal scholars, practitioners and NGOs who identify as critical. As NGOs increasingly acknowledge the importance of representing within their staff the persons they work for – and, I am convinced, rightly so – anti-racist and decolonial perspectives are increasingly present among human rights litigators, too.

As a consequence, human rights litigators are faced with a difficult struggle: they work with laws and courts, especially the ECHR and the ECtHR, the structure of which they sharply criticise. This struggle is difficult, of course, but it is not new. Decolonial human rights scholars have thought this through. It is possible to find hope and to continue the struggle for rights of ‘the oppressed’ by relying on the language of ‘the oppressors’. A critique of the conceptual basis of human rights, including their history, their doctrinal and institutional structures, is compatible with the acknowledgement that, in practice, human rights remain one of the most important strategies for emancipation from colonial structures.

Narrative 3: Humanrightization  

The third narrative is that of ‘humanrightization’ as established by the MeDiMi research group. This narrative is the most recent and has, until now, not received as much attention as the former two. Yet, it is particularly appealing because it acknowledges the ups and downs in the case law but at the same time sees the ECtHR as a central forum for advancing migrants’ rights. In short, proponents of this narrative argue that the earlier jurisprudence since Soering must be seen as nothing less than a revolution, as Janna Wessels and Jürgen Bast have put it, because it, for the first time, allowed migrants to formulate their claims in the language of human rights. Seen from this perspective, the decline since N.D. and N.T. is not fundamental – the revolutionary achievement is not unsettled. The key point is that the claims of migrants can be articulated in the language of human rights. For this narrative, the outcome of individual cases is not the most important. Instead, the most important is that ‘migration control is no longer purely within the discretion of states’, i.e. the humanrightization of migration matters as such – which so far remains. Not even the worst losses before the ECtHR question the historical achievement that people on the move can rely on human rights.

Humanrightization is a narrative that has the potential to fuel hope, despite and because of all the darkness in current European migration policies. It supports an attitude of ‘keep calm and carry on’, even when a landmark case is lost. The narrative of humanrightization advances the view that a certain back and forth is probably unavoidable. This does not mean to not criticise the ECtHR when it betrays its own doctrinal principles: criticism, and when needed in fundamental terms, must remain essential. But for strategic litigators to keep up their work, zooming out and adopting the perspective of humanrightization might be a useful additional tool: it could help dealing with backward steps in the case law without losing hope for a step forward in the next case.

Giving Up on the ECtHR is No Option

If the professional community tells the story that Strasbourg, the place that has long been seen as the beacon of human rights, is backing down, there is a true risk that this might become a self-fulfilling prophecy. Actors engaged in strategic litigation and like-minded scholars should be careful which stories they spread. Otherwise, they risk losing hope themselves, lowering their efforts before the ECtHR – and thus, in the mid-term, involuntarily reinforcing a tendency they oppose. While the impression that the ECtHR has given in to the political interest of European states is certainly very justifiable, we should be careful to not fall into the trap of telling a story which we then make true.

Despite all deficiencies in the migration-related jurisprudence of the ECtHR, despite the court’s doctrinal acrobatics to come to results that can be accepted by politically strong European states, despite its colonial history, despite its structural insufficiencies, and despite all stories of backlash – the ECtHR remains one of the most meaningful institutional achievements of post-World-War II Europe, and it is a fairly resilient one. When recent case law from Strasbourg does not meet justified expectations, when it is doctrinally weak and lacks political courage or perpetuates coloniality, we must name this – of course. At the same time, human rights defenders must not lose faith in their work. Giving up on Strasbourg would only play into the hands of those who want to weaken the rights of people on the move, and ultimately weaken the European human rights system altogether. In the current political context, looking for sparks of hope has become utterly necessary.

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