Introduction
After more than seven decades, human rights law continues to face criticism from scholars questioning both its effectiveness and its conceptual foundations (Pratiwi et al., 2022). This article engages with the debate by highlighting the lack of a convincingly theoretical grounding surrounding the European Court of Human Rights’ (ECtHR) rulings in the context of migration control (Heri, 2024). Political discourses centring and legitimising border violence intensify the urgency of examining the ECtHR’s approach (Alpes, 2025).
Within Europe’s human rights landscape, the European Convention on Human Rights (ECHR) and its interpretation by the ECtHR are fundamental and authoritative instruments. In fact, ECtHR judgments are legally binding on respondent states. The ECtHR functions as the arbiter of the Convention’s application, with its interpretation effectively determining the scope of rights protections in Europe (Heri, 2024).
However, critical scholarship challenges the assumption that the Court’s migration jurisprudence functions as a constraint to dangerous applications of state power. In the ECtHR rulings, border control is presented as a natural and neutral duty of a sovereign state, and its violent implications are framed as isolated exceptions. This application of human rights does not challenge systemic threats to human dignity, and instead legitimises the violent and exclusionary border control that it is supposed to limit (De Vries & Spijkerboer, 2021; Theilen, 2025).
This article critically examines the rationales and interpretive frames shaping the ECtHR’s rulings in the field of migration control. It aims to shed light on the Court’s assumptions, their detrimental effect on racialised and vulnerable groups, and their favouring of racially-charged conceptions of state sovereignty.
Human Rights: The ECtHR Approach
In migration debates, human rights are often framed as fundamental standards that states should meet. Endorsing a human rights-based approach to migration policy is thus presented as both moral and legally mandated political action (Theilen, 2025). The Court has affirmed that the ECHR’s very essence is founded on the respect for human dignity, and that the Convention must be interpreted reflecting its spirit to maintain and promote the ideals and values of a democratic society (Heri, 2024).
At the same time, the ECtHR emphasises subsidiarity (the principle that the institution should step in only once states have failed to deal with a case) as a cornerstone of the Convention (Heri, 2024). The tension between fostering human rights inspired policy progress and the principle of subsidiarity accounts for the Court’s oscillation between activism and deference (Heri, 2024).
A key mechanism highlighting this tension is the European consensus doctrine, whereby the Court looks at member states’ laws and practices to set a shared normative baseline when approaching a policy area (Council of Europe, n.d.). This directly shapes the margin of appreciation, which is the discretionary space states are granted, regarding the implementation of the ECHR (Council of Europe, n.d.). This structure leaves the ECtHR with significant legitimacy in its claims, but also raises serious concerns over how human rights law is applied (Heri, 2024).
Colonial Amnesia: How the ECtHR Disregards the Racial History of Border Management
Notwithstanding its role as a protection mechanism for the vulnerable, the ECtHR’s approach to migrant rights operates within a framework that normalises and legitimises border control as an inherent duty of a sovereign state (Theilen, 2025). This framework is treated as self-evident and neutral, yet it is rooted in a specific racialised and colonial genealogy. By treating sovereign migration control as a neutral and technical operation, the Court obscures the conditions under which it emerged and the communities it affects the most.
The Court’s underlying axiom is that “a State has the right to control the entry of non-nationals into its territory”, known as the ‘Strasbourg reversal’ (Theilen, 2025). Thus, it is the concept of sovereignty, rather than human rights, that ultimately structures the ECtHR’s reasoning on migration matters (Theilen, 2025). Consequently, the task of border work is framed as a country’s obligation (Jegen, 2025).
Additionally, the ECtHR operates on the “good faith” principle, presuming that states comply with the ECHR unless proven otherwise (Alpes, 2025). Research has shown that the Court routinely gives greater weight to state-submitted evidence, even though states frequently withhold documents and obstruct independent monitoring when it comes to border pushbacks (Alpes, 2025). Therefore, when it comes to border control, the ECtHR mechanism reinforces and normalises the states’ authority at their borders.
The ECtHR repeatedly describes sovereign migration control as “a matter of well-established international law”, but offers no historical grounding for this claim (Theilen, 2025). Historically, early European political thought did not justify a state’s right to exclude non-citizens. Spanish philosopher and political advisor Francisco de Vitoria, in 1539, argued for a right of all men to travel and reside in a foreign land to justify the colonisation of the Americas (De Vries & Spijkerboer, 2021). Similarly, Hugo De Groot, member of the Dutch political elite and advisor for the East India Company, in 1609, in the context of the Dutch-Portuguese rivalry over control of the routes to the East, asserted that “every nation is free to travel to every other nation and to trade with it” (De Vries & Spijkerboer, 2021). Later, Swiss jurist Emer de Vattel further stated these concepts in “The Law of Nations” in 1758 (De Vries & Spijkerboer, 2021). Even in 1868, the US–China treaty recognised “the inherent and inalienable right of man” to migrate freely, in order to support labour shortages in the United States (De Vries & Spijkerboer, 2021; Theilen, 2025).
The shift toward exclusion emerged once racial anxieties intensified. The sustained inflow of Chinese labourers into the US prompted fears among white populations, leading to the first immigration restrictions. The US Supreme Court then declared that exclusion was an inherent incident of sovereignty, justified because “foreigners of a different race […] who will not assimilate” endangered public peace. This racially grounded doctrine became the template for modern Western immigration law (De Vries & Spijkerboer, 2021). During the decolonisation phase following WWII, the same logic was applied to exclude former colonised subjects (De Vries & Spijkerboer, 2021). The framing of foreigners crossing borders as a threat to a community’s security still dominates discourses on migration policy today.
The ECtHR and its rulings do engage with the historical origins of border control or its racialised justifications (De Vries & Spijkerboer, 2021;Theilen, 2025). An example of this is the ruling in the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom (1985). The case concerns UK reunification rules introduced amid political anxiety over postcolonial migration. Under these rules, a woman could sponsor her husband’s entry for family reunification only if she was a citizen of the United Kingdom and Colonies with a parent born in the UK (Theilen, 2025). The ancestry rule did not apply to wives joining their husbands (Theilen, 2025). An applicant was a Pakistani woman who could not be joined by her husband. Although the policy disproportionately affected non-white applicants, the ECtHR declined to find racial discrimination, recognising only discrimination on the basis of sex (Theilen, 2025).
According to the ECtHR, being states legitimised in excluding non-nationals at borders, it is understandable for them “to give preferential treatment to [their] nationals or to persons from countries with which [they] had the closest links” (Abdulaziz, Cabales and Balkandali v. the United Kingdom, app no. 9214/80; 9473/81; 9474/81). The judges concluded that the disproportionate effect on non-white migrants stemmed from demographic patterns among would-be immigrants rather than the rules themselves, stating:
[…] the mass immigration against which the rules were directed consisted mainly of would-be immigrants from the New Commonwealth and Pakistan, and that as a result they affected at the material time fewer white people than others, is not a sufficient reason to consider them as racist in character: it is an effect which derives not from the content of the 1980 Rules but from the fact that, among those wishing to immigrate, some ethnic groups outnumbered others. (Abdulaziz, Cabales and Balkandali v. the United Kingdom, app no. 9214/80; 9473/81; 9474/81).
Pakistan, which had been under British colonial rule for a century until only 30 years prior to the case, was nonetheless treated as a country with which the UK had no special historical ties (De Vries & Spijkerboer, 2021; Theilen, 2025). The ruling stood on the idea that it is legitimate and natural for states to exclude foreigners and to choose those to be excluded, completely erasing the colonial ties between Pakistan and the UK (De Vries & Spijkerboer, 2021; Theilen, 2025).
This refusal to acknowledge colonial entanglement illustrates how the Court’s statist framework is sustained by historical amnesia. Describing migration control as neutral “international law”, leaving to the state the discretion of choosing who to let in (and therefore categorising Pakistani as aliens), conceals that the very categories of insider and outsider are products of imperial history (De Vries & Spijkerboer, 2021). Moreover, it erases earlier European conceptualisations of mobility that justified and allowed for the invasion and domination of other peoples (Jegen, 2025).
A Hierarchy of Victims: Vulnerability in the Eyes of the ECtHR
The ECtHR’s approach to vulnerability reproduces the same structural blind spots identified in its broader migration jurisprudence. Just as the Court erases the racial-colonial history of sovereign migration control, it frames vulnerability as an inherent attribute of certain individuals rather than as the result of political decisions, border regimes, and legal architectures (Theilen, 2025).
By doing so, the ECtHR shifts attention away from the systemic production of migrant precarity, focusing on a narrow, individualised assessment of risk, which allows states to consider vulnerability as an exceptional situation rather than a direct consequence of their actions (Baumgärtel, 2020). Through the consensus doctrine, states have effectively constructed a human-rights accountability mechanism where it is up to them to decide which violations are sufficiently credible to act upon (Alpes, 2025).
The ECtHR’s application of the concept of vulnerability remains tied to rigid legal classifications. It uncritically distinguishes between asylum seekers and “other” migrants, between regular and irregular migrants. Hence, vulnerability becomes a protection granted by states, a discretionary act of high morality or extreme courtesy, rather than a condition generated through state action (Theilen, 2025).
In this logic, the state determines whose experiences are legally recognisable and worthy of remedy. However, precisely because they are illegalised, migrants who are not classified as asylum seekers, may end up even more exposed to state violence and discrimination (Theilen, 2025). Again, this obscures the reality that migration law actively produces vulnerability: its purpose is to deny rights and freedoms to certain people, generating precarity and danger for those seeking to relocate “illegally” (Baumgärtel, 2020).
Furthermore, there is a concerning trend to progressively shrink the population to the condition of vulnerability that applies to. In fact, the ECtHR is found to increasingly recognise only some asylum seekers, primarily children, the elderly, and people with disabilities, thereby introducing hierarchies of protection within a group that is exposed to danger (Theilen, 2025). It follows that, while framed by states and the ECtHR as protective, the concept of vulnerability functions primarily as a tool to withhold rights from those who do not fit the definition (Theilen, 2025).
Alternative Views of Human Rights
Decolonial approaches to human rights offer a different viewpoint from the statist, individualised framing that dominates ECtHR jurisprudence. These traditions centre socio-economic self-determination as the principal factor to determine human rights compliance, thereby framing mobility as a potential means of autonomy under conditions of ongoing neo-colonial entanglements (Jegen, 2025).
Under this tradition, human rights serve the purpose of political and economic safety, and liberation (Pratiwi, et al., 2022; Jegen, 2025). For many decolonial thinkers, human rights discourse historically supplemented international arguments for collective self-determination; individual rights and collective emancipation are treated as mutually reinforcing rather than opposed, in contrast to their practical separation in ECtHR migrational reasoning (Jegen, 2025). Therefore, these approaches may offer inspiration on how to intervene in the courtroom with a critical approach which distributes actual justice (Alpes, 2025).
Conclusion
The ECtHR’s approach to human rights in the context of migration control, is structured through assumptions that naturalise sovereign border control and silence the racial and colonial histories from which it emerged. By treating migration control as a neutral state function, the ECtHR legitimises practices that produce exposure to risk, while limiting its scrutiny to individualised harms. Its reliance on state classifications and the consensus doctrine reinforces a system in which states determine whose claims are true enough to call for protection. Thus, the ECtHR’s interpretation of human rights reproduces systems of exclusion, framing violence at the border as exceptional rather than systemic.
Decolonial approaches offer a reminder that human rights could be aimed at fostering socio-economic self-determination and collective liberation. Reopening the debate on the ECtHR’s applications of human rights in the context of migration control may produce critical and actionable strategies that effectively protect the vulnerable from state violence.
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