State Sovereignty v Migrants’ Rights: Who Wins before the European and Inter-American Court of Human Rights?

by | Nov 8, 2012

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About Laura.Hilly

Dr Laura Hilly is a barrister at the Victorian Bar in Australia. She practices in public, commercial and employment law with a special focus in her practice on anti-discrimination law and matters arising from the Charter of Human Rights and Responsibility Act (Victoria). Laura completed a BCL (with distinction), MPhil and DPhil at the University of Oxford where she studied with the support of a Rhodes Scholarship and a Clarendon Scholarship. Her doctoral thesis was supervised by Professor Sandra Fredman QC FBA and Professor Nicola Lacey CBE FBA and considered the impact of intersectional diversity on the decision making processes of final appellate courts in Australia, South Africa and England and Wales. She was also a Post-Doctoral Fellow at the University of Oxford, the Deputy Director of the Oxford Human Rights Hub and a former Chair of the Oxford Pro Bono Publico. Laura has taught in the areas of administrative law, human rights and litigation and dispute management at the University of Oxford, Australian National University and University of Melbourne. Laura’s undergraduate degrees are from the Australian National University, where she graduated with first class honours, the University Medal in Law and the Supreme Court Judges’ Prize. She is and Associate of the Oxford Human Rights Hubs, a member of the Board of Directors of Canberra Community Law and List G Barristers, member of the Victorian Bar Pro Bono Committee, Chair of the Open Justice Committee Sub-Committee at the Victorian Bar, Member of the Advisory Board of the Centre for Employment and Labour Relations Law at the University of Melbourne, and a Monitor for the Public Law section of the Commercial Bar Association.

On Tuesday this week, the Oxford Human Rights Hub (OxHRH) in conjunction with the Oxford Migration Law Discussion Group (OxMLDG) welcomed Professor Marie-Benedicte Dembour, Professor of Law and Anthropology at the University of Sussex.

Professor Dembour gave an engaging presentation entitled ‘State Sovereignty v Migrants’ Rights: Who wins before the European and Inter-American Court of Human Rights?  This presentation drew upon her work on her upcoming monograph, provisionally titled ‘Migrant First, Human Second? Comparing the Approaches of the European and Inter-American Courts of Human Rights to Migrant Cases’.

Professor Dembour juxtaposed case law demonstrating the Inter-American Court of Human Rights’ comparatively ‘human-centric’, or ‘human-rights-first’ approach to cases involving migrants’ rights with what she identified as a ‘State-centric’ or ‘State-first’ approach taken by the European Court of Human Rights.  She pointed to possible causes for these divergent approaches: the textual differences between the European and American Conventions on Human Rights; the social make-up of the European and Latin-American continents which reverberates with the distinctive political history and migration patterns characteristic of the two continents; and the orientations of the judges sitting on the respective benches, resulting in a particular judicial ‘habitus’ where precedents are established which set the parameters of future judicial reasoning and activity.

Professor Dembour recognised that her thesis is controversial, but asked why academics and practitioners have been reluctant to criticise the  European Court of Human Rights’ case law on migrants’ rights.

Her presentation was followed by a lively discussion, with questions from, among others, Shirley Ardener (Anthropology), Meghan Campbell (Law), Anne Koch (Refugee Studies Centre),  Dr Martin Ruhs (COMPAS) and Mimi Zou (Law).

Both OxHRH and the OxMLDG were delighted to collaborate on this inter-disciplinary event, bringing together academics and students with an interest in migration law and human rights from the broader Oxford community.

Laura Hilly is a DPhil Candidate at the University of Oxford and a Co-Editor of the Oxford Human Rights Hub Blog.


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