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Civil society and the mobilization of European human rights: Minorities and Immigrants in the Strasbourg Court

Final Report Summary - LEGAPOLIS (Civil society and the mobilization of European human rights: Minorities and Immigrants in the Strasbourg Court)

Over the past two decades, the European Court of Human Rights has become the institutional epicenter of a continent-wide'rights revolution'for the marginalised and less advantaged individuals and groups. This is exemplified in the area of claims pertaining to historical minorities, but also of claims raised on behalf of large number of'new minorities'such as asylum seekers, and immigrants. Rights claims on behalf of such individuals and groups have acquired a substantial weight on the tribunal's agenda. Even if they are not numerically predominant, they nonetheless centrally shape its outlook as a highly active and preeminent transnational judicial institution in Europe. While containing a rudimentary set of'first generation'provisions, the Convention has formed the basis for advancing a wealth of rights claims that extend far beyond the minimal rights guarantees originally envisioned. By extending the application and protective net of the Convention into rights claims by minorities, immigrants and asylum seekers, the ECtHR has become the fountain of a'cosmopolitan legal order', a transnational legal system where the fundamental rights of every person deserve protection without regard to nationality or citisenship. In other words, the Convention and the Strasbourg Court can be seen as a central anchor in the legal and institutional frame for a post-national citisenship in Europe.

In incrementally elaborating and expanding the nature and scope of its provisions in response to an ever growing set of rights claims, the Strasbourg Court has succeeded in raising national standards of rights protection. In this regard, it has inadvertently led to a de facto Europeanisation and legalisation of minority and immigrants'protection. Elaborated in a voluminous body of case law, the principles contained in the Convention form an overarching normative structure akin to a quasi-constitutional instrument of European public order. By pronouncing judgments that touch upon nationally sensitive issues, and that have directly implications for public policy matters, the ECtHR has simultaneously furthered its own transformation into Europe's constitutional court in human rights matters.

The LEGAPOLIS project has sought to understand how this transformation has come about, and explain the factors and causes that have contributed to it. Why has the ECtHR progressively extended the scope of Convention rights to address mounting rights claims related to minorities and immigrants? And why have national governments conceded (if they have conceded at all) to judicial scrutiny of their sovereign power to determine how they treat minorities, especially to a European judiciary to which they have not explicitly delegated such a power?

Through a series of case studies and comparative analyses, LEGAPOLIS has explored the proposition that the Court's expansion and institutionalisation has been spanned by processes of social mobilisation and repeat litigation on the one hand, and progressively more expansive interpretations by the Strasbourg Court. It has done so by conducting three case studies focused on a) claims raised by individuals from ethnic minorities (cultural identity, political participation and prohibition of discrimination), b) claims by individuals and minorities under a state of emergency, and c) claims related to the entry and stay of immigrants and asylum seekers. LEGAPOLIS has employed a fundamentally interdisciplinary approach that extensively draws from legal studies but employs a political science and political sociology perspective with insights from European integration studies. In taking a bottom-up approach centring on the role of civil society, it seeks to make a distinct contribution to existing research on human rights and European integration, particularly from an interdisciplinary and contextual approach to law and rights that is highly undeveloped in Europe.

During the 2 years of the project's duration at the EUI, the bulk of the empirical research work was completed. In addition, I also began to examine the primary research material and to develop my main lines of analysis and argumentation with a view to preparing a book-length manuscript provisionally entitled "Transnational civil society and the construction of European human rights law". Significant progress towards writing the book was also made during the course of the project. The empirical research for the LEGAPOLIS project has involved the following:
(a) collection of relevant case law pertaining to the three case studies mentioned above, and its inclusion into a data set; a central task of the project was to trace the development of the relevant case law in order to explore and document the extent to which the ECtHR has expanded its interpretation of rights claimed by minorities, immigrants and asylum-seekers;
(b) review of secondary literature from law, political science and political sociology, both linked but also unrelated to European integration studies; and
(c) review of reports and policy documents by national and international organisations pertaining to the situation of human rights in different countries, but also to socio-legal issues such as the national provisions of anti-discrimination law and schemes of legal aid, among others;

In addition to the above research, the implementation of the LEGAPOLIS project also involved conducting 30 interviews with lawyers and activists from civil society organisations, with representatives from public law firms and human rights organisations, and with ECtHR's judges and legal experts from the Court's Registry. These interviews were conducted in Italy, the UK, Greece, and France. About 2/3 of the interviews were conducted face to face, and another 1/3 were conducted via skype in order to save time and resources. These interviews provide an invaluable source of information and documentation that cannot be obtained from official documents or secondary literature. They have been indispensable in bringing to light the social and political mobilisation processes that centre on human rights law, as well as the transnational networks of lawyers and activists that have over time been created and have spread, helping diffuse awareness about the Convention and legal activism around the Strasbourg Court.

On the basis of the empirical research described above, the project findings show that judicial attention to minority, immigrants and asylum seekers'issues at the European level has been the outcome of growing processes of legal activism, in which minority advocates and human rights defenders have increasingly engaged over the past 15-20 years. Such activism has evolved and taken variable forms over time and across different issue areas. On the whole, it has grown increasingly transnational, with far-reaching consequences for the emergence of a transnational civil society at the European and regional level in the human rights field.

While human rights legal activism originally emerged in some countries (i. e. the UK, where substantial legal support structures have been present, much more so than in other countries) it has tended to spread beyond these states. What has contributed to its transnationalisation has been a) the creation of specialised and professional NGOs, some of which specialise in particular areas of rights (i. e. Roma) and/or their ability to gain access to resources and funding either from organisations like the European Union or from large private foundations (i. e. Soros); b) the creation and rapid expansion of dense networks among committed lawyers and activists across countries, especially from the 1990s onwards, and c) funding made available both from national sources but also international donors