Unintended Consequences

One story that can be told about the development of legal protections for certain forced migrants in European human rights law is, in terms of the scope of protection, a progressive one. From expanded definitions of who is entitled to refugee protection, to the development of complementary protection in human rights law, the ambit of that which the law purports to cover has moved wider. This might be seen as part of the broader trend in the expanding coverage of international human rights law generally. Yet a corresponding, opposite story can also be told: a diminution on the part of many European states’ commitments to refugee protection, as evidenced in the expanded scope of non-entrée measures, from visa restrictions to carrier sanctions, push-back operations and an unwillingness to engage in significant refugee resettlements. This backlash trend can also be identified in European human rights policy generally. It might be said, then, that just as the scope of legal protection in general, and such protection accorded to certain migrants in particular, has expanded, so too European states’ willingness to provide such protection has diminished. This paper asks: How can and should the causal relationship, if any, between these two chronologically overlapping, normatively divergent developments be understood? In particular, have progressive legal developments played a causal role in the broader trend of resistance to the protection of forced migrants? And, moreover, given the actuality of such resistance, what is at stake when legal developments continue to push in a progressive direction?