On February 12, 2025, the European Court of Human Rights convened hearings for three cases regarding collective expulsions: R.A. and Others v. Poland, H.M.M. and Others v. Latvia, and C.O.C.G. and Others v. Lithuania. Central to these cases was the alleged exploitation of migrants amidst geopolitical tensions with Belarus and Russia, framing these actions as direct assaults on the principles upheld by the Council of Europe. All cases invoked Articles 3 and 4 of Protocol 4, addressing torture prohibitions and collective expulsions respectively.
The strength of the applicants’ arguments was notable, yet their legal strategy raised concerns about the prohibition against collective expulsion. They seemed to implicitly endorse the N.D. and N.T. v. Spain case, suggesting that Article 4 of Protocol 4 may not always connect to the principle of non-refoulement. While the lawyer’s responsibility is effective advocacy, this strategy raises questions regarding future interpretations of the prohibition.
In the previous N.D. and N.T. v. Spain case, the Grand Chamber decided the applicants had willingly endangered themselves while crossing borders unlawfully. Poland, Latvia, and Lithuania echoed this precedent, asserting that legal entry routes existed and were not utilised without valid reasons. They highlighted available options such as border crossings and the potential for humanitarian visa applications, with Latvia suggesting that the applicants exploited their numbers during border crossings to gain leverage.
Legal scholars anticipated this predictable defensive manoeuvre from the governments involved. There was a prevailing sense that overturning the N.D. and N.T. test was unlikely. As pressures mount from Member States regarding migration, the existing legal framework appears increasingly resistant to change.
Following the hearings, reversing the N.D. and N.T. precedent became seemingly impossible. The applicants, instead of challenging the precedent, focused on differentiating their cases from it. In Latvia, for example, a representative noted the stark difference between their case and the aggressive behaviour seen in N.D. and N.T. This tacit endorsement of the reasoning in N.D. and N.T. contrasts sharply with previous resistance to treating migrants as threats.
Notably, legal criticism regarding the N.D. and N.T. case’s implications remains significant. Though the precedent persists, the applicants’ failure to question it directly raises concerns about normalising a detrimental narrative around migrants. As such, the implications extend beyond these cases into the broader discourse surrounding migration and human rights, potentially fortifying the prevailing anti-migrant sentiments embedded in the legal language.
The hearings also opened discussions about Article 4 of Protocol 4, with Judge Bårdsen querying the potential impacts of derogation declarations on outcomes. The applicants asserted that derogations would not affect their cases, citing the intrinsic linkage between Articles 3 and 4 within the ECHR. Furthermore, they expressed doubts regarding possible derogations due to the need for proportional assessments of each migrant’s circumstances.
Questions arise from these assertions because history demonstrates shifting narratives around the volume of migrants, which could enable governments to justify disregard for these protections under certain circumstances. A critical dialogue regarding the absolute nature of Article 4 of Protocol 4 is imperative, particularly as collective rights must always be prioritized, regardless of migrant numbers. Such exploration is essential for understanding the future of collective expulsion protections in the European Human Rights Framework.
The recent hearings by the European Court of Human Rights brought forward significant concerns regarding the future of the prohibition against collective expulsion. Central to the discussion were three cases implicating established precedents that portray migrants as potential threats, raising questions about the adherence to human rights principles, especially concerning Articles 3 and 4 of Protocol 4. The implicit validation of previous rulings and the narratives surrounding migratory crises jeopardise vital protections.
The future of the prohibition against collective expulsion in the European Human Rights legal framework appears precarious due to the implicit endorsement of harmful precedents by legal representatives in recent hearings. As governments lean on established frameworks positioned by N.D. and N.T. v. Spain, the narrative surrounding migrants shifts dangerously towards viewing them as threats. This trend, alongside questions regarding the interdependence of Articles 3 and 4 of Protocol 4, underscores the necessity for a robust and unwavering commitment to protecting collective human rights regardless of migration numbers.
Original Source: www.ejiltalk.org
