How can Early Career Researchers Shape the Law of the ECHR? Some Reflections from the Inaugural Workshop on Writing and Publishing in that Field

* By Matthias Hermes, Reza Khabook, Frederic Kupsch, Angelika Nußberger and Nikos Vogiatzis

In February 2024, the Academy for European Human Rights Protection, University of Cologne and Essex Law School, University of Essex jointly organised and funded a workshop titled “Writing and Publishing in the Law of the ECHR: A Workshop for Early Career Researchers”. More than one year has elapsed since this inaugural workshop, and plans are underway to prepare the second edition in 2026. The purpose of this post is to reflect on the discussions in Cologne and invite comments and suggestions about ways in which the ECHR legal community – and especially early career scholars – can contribute to the development of that field. 

Background

Our starting point was that Early Career Researchers (broadly understood) play (or should play) a crucial role in researching the Convention system and participating in discussions on its future development. If that is so, how should this be made possible? What are the challenges that one might face along the way? Is there any scope for such research to be impactful – either before the European Court of Human Rights or other organs within the Council of Europe system?

Our main purpose was to initiate a conversation and exchange ideas around issues related to writing and publishing in the Law of the ECHR. To that end, the workshop included four panels composed of experienced researchers and practitioners working at the European Court of Human Rights. The panels were followed by a hands-on roundtable session where participants and speakers discussed current projects and developed ideas in small groups.

A brief overview of the sessions

In their opening remarks, Professor Angelika Nußberger and Dr Nikos Vogiatzis outlined the broader aims of the workshop. The starting point was the ever-increasing research in the field of the ECHR, and the ever-increasing debates or contestation regarding the role of the European Court of Human Rights (ECtHR). In parallel to this, we witness significant developments in the Council of Europe (most notably Russia’s expulsion from the organisation and the Reykjavik Declaration that followed). While stressing the valuable contributions of Early Career Researchers (broadly understood) in that field, Nußberger and Vogiatzis pointed out that the aim was to initiate a conversation and exchange of ideas around writing and publishing in this field. This was also meant as a network opportunity so that scholars have an opportunity to meet with each other, identify common interests or challenges, and keep in touch (also with the organisers of this workshop). The importance of connecting theory and practice in the field of the ECHR was also underlined.

With these thoughts in mind, the workshop was organised around 4 key panels and an optional session in smaller groups.

The first panel, titled ‘How to write articles in the Law of the ECHR’ and moderated by Dr Júlia Miklasová, included presentations by Professor Natasa Mavronicola and Dr Cathérine Van de Graaf. Mavronicola presented and explored various topics that a researcher can investigate regarding the ECHR. In this regard, she distinguished between "unaddressed" and "under-addressed" issues. Mavronicola argued that while only a few issues can be categorised as unaddressed, a large number of issues fall within the second category. As an example, she mentioned absolute rights which are not fully discussed in the literature. She also drew participants’ attention to the significance of applying new theories and methodologies to re-study and interpret ECHR topics. 

Van de Graaf explained how early-career researchers can publish their PhD thesis, with a particular focus on the advantages and disadvantages of the article-based format. She then mentioned three stages in the process of obtaining feedback: internal feedback (from co-supervisor, peers and members of an advisory committee or equivalent); external feedback (including from scholarly networks); and, as a last step before publication, peer review reports. She emphasised the significance of considering the intended audience of the research (and the dissemination of results), which will undeniably impact on the publication format.

The chair of the second panel, Dr Sabina Garahan, introduced the next broader topic: different methodologies in the Law of the ECHR. Professor Veronika Fikfak drew on ongoing research projects concerning compliance with judgements of the ECtHR and discussed the use of empirical methods when researching the ECHR. By referring to the significance of research questions as the main factor in deciding on the methodology to be adopted, she underlined that researchers should not view the empirical method as a trend when the research question does not call for its use. 

Professor Giuseppe Martinico underlined the importance of comparative research in the field of the ECHR. He described comparative research as a tool to understand the genesis of many of the Convention's provisions, and to analyse and understand pluralism and consensus. Moreover, it enables the researcher to identify whether the ECHR is accepted or challenged at the national level. 

Professor Kanstantsin Dzehtsiarou, co-editor in chief of European Convention on Human Rights Law Review, and Professor Katharine Fortin, editor in chief of the Netherlands Quarterly of Human Rights, added valuable insights from the editors’ perspective in Panel 3, which was chaired by Dr Nikos Vogiatzis. Although a seemingly obvious point, both emphasised the importance of reading carefully the author and submission guidelines prior to submission.

However, formal requirements are only the starting point: in the words of Dzehtsiarou “what matters is the research done!” Fortin provided insightful indications about elements of a good article. The scope of the article needs to be clear and realistic; it should focus on a central research question backed up with a methodological approach and a clear structure. Both speakers agreed that robust research and a profound engagement with existing literature matter considerably. On the value of peer review, both speakers pointed out the importance of constructive feedback, but also that this can sometimes manifest itself as a dialogue between the author and the reviewer (e.g., in cases where clarifications might be needed). 

In the last panel, titled “What do Judges or Members of Other Organs of the Council of Europe Read? How to Bring Legal Research to the Attention of the European Court of Human Rights?”, chaired by Frederic Kupsch, former judge and vice-president of the ECtHR, Professor Angelika Nußberger and Ana Vilfan Vospernik, lawyer at the Directorate of the Jurisconsult (ECtHR), provided insights from the perspective of the Court. 

Vilfan Vospernik presented the work of the Directorate, including the work of the Research Unit, and introduced the Knowledge-Sharing process within the Court, facilitated by the Jurisconsult. It is, in Nußberger’s words, “the backbone of the Court” as it provides valuable input and feedback to the drafters of judgements and decisions. Vilfan Vospernik shed light on the ECHR Knowledge Sharing platform (ECHR-KS) (launched externally in 2022), in which the ECtHR’s case-law and the case-law analytical material is grouped under different themes.

There are many other ways to bring legal academic literature to the attention of the Court. According to Nußberger, a judge reads very selectively as it is already extremely time-consuming to read all the material of the case files so that little time remains for additional reading. However, she suggested that there might be a more indirect way in which academia and practitioners can influence the Court, namely via the submissions of the parties. Innovative ideas may stem from counsel appearing before the Strasbourg Court: if well-argued, the Court might be convinced to rely upon them.

Ideas were offered during the workshop on how authors may send references of their publications with a view to bringing such work to the Court’s attention. Academic authors who so wish may send such references via the ECHR Library (see under the rubric ‘Donations’). 

Reflections on the issues raised in the workshop

The workshop sought to initiate a conversation on how early career researchers can contribute to the development of the Law of the ECHR. Important questions emerged not only regarding writing and publishing in the field, but also access to the Court, readability, impact, comparisons with other regional systems of human rights protection – among others. 

We have been able to start a conversation around these crucial issues, but it would have been too ambitious to anticipate having all the answers at the conclusion of the workshop. We now have further questions that merit discussion, or issues to be explored further, hopefully in a subsequent edition of this workshop. 

To begin with, we could have gone further in unpacking the challenges related to writing and publishing specifically in the Law of the ECHR – as opposed to writing and publishing academic research, in general. Certainly, some challenges are common to academic research regardless of the specific field. A good article will have similar qualities regardless of the topic. The process of converting a doctoral thesis in criminal law into a monograph cannot be too dissimilar from a thesis in human rights law, including in the Law of the ECHR. And yet, we believe that there are specific challenges of that field, both ongoing and emerging in recent years. Some may be based on an overview of the field (Is the field crowded? Are there significant gaps? Can we anticipate key areas in future?); others on specific approaches by the Strasbourg Court (including its approach to absolute rights, as underlined by Mavronicola).

Conversely, we could have looked beyond the ECHR for fruitful comparisons. It is crucial to draw on the international and/or other regional human rights system(s), with a view to understanding (or criticising) the approach of the Strasbourg Court, and vice versa. As the readers of this blog will know, signs of cooperation have been identified in recent years: for example, the African Court on Human and Peoples’ Rights, the Inter-American Court of Human Rights and the European Court of Human Rights in addition to holding meetings at regular intervals, in the context of the Permanent Forum of Institutional Dialogue, jointly produce a report on recent developments. Starting from the premise that there is no regional system of human rights protection without challenges, we intend to explore further these dimensions of cooperation (and avenues for comparison) in the next edition of the workshop.

Regarding impact, while judges may differ on the volume of academic research that can be taken into account, or indeed cited in judgments or decisions (as a rule, the Court will not cite academic literature, but such literature is often cited in concurring or dissenting opinions of the individual judges), the workshop underlined the significance not only of the submissions of the parties, but also of third-party interventions. We are aware (and readers of the blog are aware, too) that a number of leading research Centres and Institutes are regularly engaging with the Strasbourg Court via third-party interventions. This is certainly an area that can be explored further in a workshop of this nature. 

A view held among many participants was that early career researchers should be actively encouraged to publish their work (in blogs, journals or edited volumes) before the completion of the thesis. This is already happening – often, some of the most insightful contributions stem from doctoral candidates. Journals are much more open these days to evaluating the quality of the work as such, regardless of career stage. This, in turn, has a number of obvious benefits, such as engaging with external audiences, building on networks, contributing to the ongoing discussions on challenges that the Court and the Convention system are facing. It would appear that individual careers also benefit from such practice. But one of the questions the workshop did not address is whether, in fact, demands and pressures on early career researchers have substantially increased in recent years and, if so, what could or should the broader academic community do to address this, especially in such a crowded field like the Law of the ECHR. 

Even though the workshop was mainly addressed to early career researchers, many of the challenges noted above should be common to anyone working in this field. The aim is to create and maintain an ongoing conversation (and, possibly, an academic network) in that field, and exchange ideas and good practice in areas of common concern, and, last but not least, encourage young researchers in their endeavours. 

Lastly, building on the various contributions of our participants and speakers in the inaugural workshop, as well as some further reflections of the team now that some time has elapsed, we very much welcome comments and suggestions on areas that could be covered in a possible second edition. In our earlier remarks, we have touched upon some of the issues that we think merit further exploration. First, questions about the field as such: are there specific challenges when  researching or publishing in the Law of the ECHR? Next, there is the comparative dimension: is there scope to increase the comparative research into regional systems of human rights protection and if so, what would be the challenges, in this respect? Then, there are questions of methodology and interdisciplinarity. In addition, we invite reflections on the community of scholars working in this field, and early career researchers in particular: given the undeniable pressures in an ever-competitive academic environment, how can we ensure that contributions by colleagues earlier in their careers are given due space and attention, without unduly impacting on their career prospects? We recognise that these are difficult questions, but we very much welcome comments and suggestions (readers should feel free to contact the authors of this post directly with their suggestions).

Acknowledgments: The authors wish to thank both the Academy for European Human Rights Protection, University of Cologne and Essex Law School, University of Essex, for organising and funding the workshop. In addition, this workshop largely materialised due to the support of the Humboldt Foundation as well. Indeed, a Senior Humboldt Fellowship enabled Nikos Vogiatzis to present the idea of the workshop to the Director of the Academy, Angelika Nußberger, and other colleagues in Cologne – and it was wholeheartedly endorsed and taken forward.

Inadmissibility Decision in S.S. and Others v. Italy: A Missed Opportunity in Migration Control Externalization

By Dr. Lena Riemer, LLM (Yale), Assistant Professor of Law at Central European University

In November 2017, a CNN investigation sent shock waves through global media: African migrants were sold in “slave markets” in Libya, sparking global outrage and renewed attention to the humanitarian crisis facing migrants in the country. This revelation came at a time when the situation in Libyan detention camps, where many migrants and asylum-seekers ended up, remained systematically inhumane. Severe violations of human rights law, including jus cogens norms such as the prohibition of torture and arbitrary killings, occurred daily as officially documented in numerous reports (e.g., UN High Commissioner for Human Rights report, A/HRC/37/46 or this report by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, (A/HRC/37/50)). Many of those who were sold or arbitrarily killed had attempted to leave Libya to Italy by boat and were pulled-back by the Libyan coast guards, in cooperation with Italian authorities under their joint Memorandum of Understanding (MoU) of February 2017.

It is against this backdrop of documented human rights that lead counsel Violeta Moreno-Lax together with the de:border // migration justice collective (de:border) and the Association for Juridical Studies on Immigration (ASGI), with support from ARCI, Yale Law School’s Lowenstein International Human Rights Clinic, and the Rosa Parks Human Rights Clinic of the University of Louvain presented the case of S.S. and Others v. Italy to the European Court of Human Rights – a case that many hoped would provide clarity on state responsibility for externalized and “contactless” migration control, also labeled “pull-back by proxy” as it was the Libyan authorities forcing the migrants back to their shores, while the Italians provided technical support, training and financing (for a detailed assessment on protection at sea and the denial of asylum, see here Moreno-Lax).

Pull-backs by Proxy: The November 2017 Incident within Externalization Policies

The case S.S. and Others v. Italy concerned a maritime operation in November 2017, when approximately 150 people fled Libya by boat seeking safety in Europe. When their vessel sent distress signals in international waters of the Central Mediterranean Sea, Italy’s maritime authorities coordinated the rescue operation but allowed Libyan forces to take operational control. The survivors alleged this constituted a systematic practice where Italy, with EU backing, effectively outsources migrant interceptions to Libya to avoid direct responsibility while knowing that migrants face torture, detention, and inhuman treatment upon return.

Of the 150 people who initially set out from Libya, 59 passengers were ultimately rescued and brought to safety in Italy, at least 20 people died before or during these events, and 47 passengers were pulled back to Libya where they faced the documented risks of torture and inhuman treatment. The applicants argued that Italy exercised jurisdiction both through territorial control of the rescue zone and personal authority over the operation, making it accountable for the resulting deaths and abuse. Specifically, they contended that the facts fell within Italy’s jurisdiction within the meaning of Article 1 of the Convention, both ratione loci and ratione personae. They further alleged that Italy had, with the consent of the European Union, established a practice of pull-backs or refoulement by-proxy, thereby placing thousands of migrants at risk of inhuman and degrading treatment while simultaneously circumventing its international and Convention obligations.

The Court’s Decision: A Narrow Interpretation of Jurisdiction

Now, after seven long years of proceedings, the European Court of Human Rights declared the application in S.S. and Others v. Italy last week inadmissible (so far, the decision is only available in French). The judges anonymously found that Italy had not exercised extraterritorial jurisdiction. The Court rejected arguments that Italy’s financial and logistical support to Libya or coordination of rescue operations established sufficient control under Article 1 ECHR. Regarding jurisdiction ratione loci, the Court found that the area in which the applicants had been intercepted, and the international waters of the Central Mediterranean Sea more generally, had not de facto been under the effective control of Italy (paras 81-83). Furthermore, the Court did not accept the applicants’ argument that the financial and logistical support provided by Italy to Libya in managing immigration amounted to the exercise of extraterritorial jurisdiction by the respondent State. On jurisdiction ratione personae, the Court observed that the captain and crew of the Libyan vessel had acted “autonomously” (para. 102) and that there was nothing to suggest that the officers of the Rome Maritime Rescue Coordination Centre (MRCC) had control over the crew of that ship or had been in a position to influence their conduct in any way. Moreover, the mere fact that the search and rescue procedure had been initiated by the Rome MRCC could not, in the Court’s view, trigger an extraterritorial jurisdictional link between the applicants and the Italian state.

The S.S. and Others v. Italy Case: Seven Years to Inadmissibility

The inadmissibility of the case is little surprising given the current climate on matters of migration in Europe but nevertheless constitutes a missed opportunity to address states’ increasing tendency to externalize migration control and to circumvent core obligations of the European Convention, such as Articles 2, 3 and 4 of the Convention and Article 4 of Protocol No. 4 that had been at the core of this proceeding. The crux of the case centered on whether jurisdiction was established according to Article 1 ECHR. This provision holds that the exercise of jurisdiction is a necessary condition for a member state to be responsible for any acts or omissions. Only in very exceptional cases can such acts outside the territories of the member states trigger jurisdiction within the meaning of Article 1 ECHR (see e.g.: ECtHR Catan and Others v. the Republic of Moldova and Russia). One of these exceptions is based on the power or control exercised over the person of the applicant (ratione personae) (see: ECtHR Banković and Others v. Belgium and Others, Medvedyev and Others v. France, Al-Skeini and Others v. the United Kingdom, Hirsi Jamaa and Others v. Italy). Hence, in order for the Strasbourg Court to have found Italy responsible for violations of the ECHR, the applicants would have needed to convince the court that they were under the continuous and exclusive de jure and de facto control of the Italian authorities.

Beyond Inadmissibility – the Broader Implications of the Decision

Before sitting down to write this contribution, I went back to my very first academic blog post on the submission of this case written in 2017 to see what I had written then on the possible outcome. Even then I had noted that “it will be a difficult task to establish such a link, but not an impossible task.” Unfortunately, since then, the political climate has become a far tougher one when it comes to protecting migrants’ rights and the glimpse of hope that I expressed then, evaporated last week. Even then in 2017, it seemed a long but necessary shot that the judges would deem the Article 1 threshold met to protect migrants’ core rights, and there was hope that there might be another Hirsi moment that would stop states from circumventing core obligations. In today’s political climate and given the Court’s restrictive jurisprudence since 2015 (e.g., Khlaifia and Others v. Italy and especially in 2020 with N.D. and N.T. and Others v. Spain), it seemed even more impossible that the Court would return to its previous more progressive approaches. This is particularly worrisome as the decision comes at a critical time when externalization trends are increasingly en vogue among ECHR member states. A prominent example is the implementation of the EU’ New Pact on Migration and Asylum with its border procedures, talks of return hubs outside the EU, or the spreading notion of exporting the “Rwanda-model” beyond Denmark and the UK. At the same time, migration has become a topic where states incrementally push for more unilateral action and less control by courts such as the ECtHR. More and more states loudly demand less “interference” with their sovereign rights to control migration, which became strikingly visible in the letter from last month in which nine EU countries, spearheaded by Italy and Denmark, called for a reinterpretation of the European Convention on Human Rights to facilitate deportations of foreign nationals convicted of crimes and demanded to be allowed to “take effective steps to counter hostile states” that use the “instrumentalization” of migrants “against” them. The public charge, the framing, the wording, and the substance constitute a clear challenge to the ECtHR’s authority and judicial independence. They also reflect the broader political climate in which migration control increasingly takes precedence over fundamental principles of human rights protection. For example, the reference to “instrumentalization” is particularly dicey as three important cases on the so-called “instrumentalization” of migration against Poland, Lithuania, and Latvia are pending at the Grand Chamber (C.O.C.G. and Others v. Lithuania, H.M.M. and Others v. Latvia and R.A. and Others v. Poland ) in which the respondent states argue that the Court needs to lower its threshold for core standards such as non-refoulement in such circumstances so that these states can effectively protect their borders with Belarus. This letter and the inadmissibility decision thus come at a crucial time where the ECtHR more than ever needs to take a strong stand to not further undermine core and fundamental principles of due process at the border.

At the same time, this decision should be seen as a moment of reflection for those engaging in strategic litigation before the ECtHR on migrants’ rights, as the current Court’s jurisprudential trajectory in these matters, raises the urgent question of whether advancing certain cases may inadvertently entrench state practices by providing judicial cover for restrictive migration control policies, as has been the case in the aftermath of N.D. and N.T. v. Spain.

The Implications: Insulating States from Accountability

Overall, this narrow interpretation of extraterritorial jurisdiction effectively insulates states from accountability under the ECHR when they delegate migration control enforcement to third parties, regardless of the predictable consequences of such arrangements, that the judges themselves acknowledge to exist (para. 110). For that reason, despite the little chance of a progressive interpretation of Article 1, the inadmissible ruling in S.S. and Others v. Italy leaves a bitter taste, particularly given the well-documented human rights violations that migrants face in Libya and the clear causal link between European policies of externalization and these violations. It is likely that states feel now even more empowered to circumvent their human rights obligations by operating through proxies, even when they provide the funding, training, and coordination that makes such operations possible. As European states continue to develop increasingly sophisticated methods of externalizing migration control, the need for clear legal standards on state responsibility becomes ever more urgent. The S.S. and Others v. Italy decision, unfortunately, fails to provide such clarity. As highlighted above, the implications of this decision extend far beyond the immediate case, potentially affecting how courts and the ECtHR evaluate the responsibility for human rights violations in an era of increasingly complex and externalized migration control mechanisms.

A very thin silver lining, though it can equally be read as an apology or a shuffling of responsibility, lies in the Court’s concluding remarks (paras. 109-113), where the judges adopt an almost apologetic tone, acknowledging that the applicants’ argument that bilateral migration agreements with third countries can indeed expose highly vulnerable individuals to serious risks of fundamental rights violations is valid. The Court further emphasized that international law regimes still apply, notably, rules on rescue at sea, refugee protection, and state responsibility. This is particularly relevant given that since 2011, the International Criminal Court has been investigating crimes in Libya, with increasing attention since 2017 to grave human rights violations against migrants and refugees in detention. While this acknowledgment may offer some rhetorical comfort, it does little to address the practical reality that these alternative legal avenues often prove inadequate, too lengthy or inaccessible for the very migrants who find themselves caught in the web of externalized migration control.

New Book on Superior Courts Network

The Council of Europe has just published an edited volume entitled The Superior Courts Network - A Community of Practice in the Service of Justice. The compilation includes contributions by former judges of the European Court of Human Rights as well as judges from several highest domestic courts across Europe, amongst others. It includes chapters on how the network came about, on what it adds to practice and on how the judges themselves experience it. This is the abstract: 

'Launched by the European Court of Human Rights in 2015, the Superior Courts Network (SCN) has matured into a vibrant, operational-level community in the service of human rights, the rule of law and justice. Ten years on and spanning 111 member courts in all 46 Council of Europe member States, the SCN remains dedicated to sharing knowledge and know-how for the mutual benefit of judiciaries across Europe and beyond.

This anniversary compilation offers unique perspectives on the Network’s genesis and evolution, as well as on its influence on domestic jurisprudence. These insights make a strong case for the added value of judicial dialogue and collaboration in the shared implementation of the European Convention on Human Rights.'

Not Vulnerable Enough, not Assimilable Enough: Promising Victimhood in Latvia and Lithuania’s ECtHR Pushback Arguments

By Maria Gevorgyan, Central European University

 

In recent years, pushbacks, the practice of forcibly returning asylum seekers without access to legal procedures, have become a central issue in European border politics. On 12 February 2025, the European Court of Human Rights (ECtHR or Court) Grand Chamber heard three landmark pushback cases at the Belarus border, including H.M.M. and Others v Latvia and C.O.C.G. and Others v. Lithuania, among over 30 pushback-related applications pending before the Court. Their context has been further shaped by Lithuania’s recent submission to the International Court of Justice (ICJ), accusing Belarus of violating its obligations under the UN Protocol against the Smuggling of Migrants. The hearings illuminate evolving interpretations of pushback practices and their implications beyond the individual claims under Article 3 and Article 4 of Protocol No. 4 of the European Convention of Human Rights (ECHR or Convention). The respondent states framed their arguments within the broader geopolitical narrative of a 'hybrid war' allegedly orchestrated by Belarus to justify an unwritten exception to absolute rights, despite the Court’s established rejection of any balancing in such cases. This submission examines how the responding states, namely Latvia and Lithuania, framed their arguments not only in legal terms but also through the lens of deservingness. Using the concept of promising victimhood, it examines two key courtroom rationales: vulnerability and assimilability, paradoxical criteria demanding asylum seekers be both vulnerable and assimilable. It shows how this deservingness logic, once mainly political, is now entering legal reasoning before the ECtHR.

 

The EU-Belarus Migration Standoff

Tensions at the EU-Belarus border began in the summer of 2021, when Belarus eased visa rules for nationals, predominantly from Middle Eastern and African countries, and, in coordination with local travel agencies, facilitated their arrival in Minsk. It also stopped preventing irregular crossings into the EU. In response, Latvia and Lithuania alongside Poland swiftly amended domestic laws to restrict asylum access for irregular arrivals and allow summary returns without individual assessments. By mid-August 2021, Latvia and Lithuania saw a sharp spike in entries and detentions:  Latvia registered 386 asylum applications in a single month, more than the total of   2018 (185) and 2019 (195) combined.. Lithuania reported over 4,000 irregular entries.

 

Respondent States’ Legal Arguments and the Hybrid Warfare Narrative

In H.M.M. and Others v. Latvia, 26 Iraqi Kurds, including children, reported being held in a tent with inadequate conditions, subjected to abuse, pushbacks and pressured into agreeing to return to Iraq. In C.O.C.G. and Others v. Lithuania, four Cuban nationals were repeatedly expelled by Lithuanian border guards to remote areas and pushed back by Belarusian forces. Despite these cycles, they were eventually granted international protection in Lithuania. A central argument in the respondent governments’ submissions was that the situation at the Belarus border amounted to a form of hybrid warfare with Poland citing efforts to ‘undermine regional security’ and Lithuania accusing Belarus of weaponizing Convention to undermine democracy.

These attempts, often coupled with an overly expansive reading of the Grand Chamber’s judgment in N.D. and N.T. v. Spain which introduced a two-tier test under Article 4 of Protocol No. 4 ECHR, permitting exceptions to the prohibition on collective expulsions as well as Ždanoka v. Latvia (No. 2), in which the Court acknowledged that where the Court recognised that it ‘does not operate in a vacuum’ (para. 55).  The respondent states asked the Court to consider the exceptional nature of the situation, advocating for a broad margin of appreciation in interpreting both the non-refoulement principle guaranteed under Article 3 ECHR and Article 4 of Protocol No. 4. They effectively urged the Court to move away from its established case law affirming the absolute nature of these protections, invoking security concerns without offering substantive legal arguments, despite repeated questions from the bench.

 

The Paradox of Promising Victimhood in Latvia and Lithuania’s Legal Reasoning

Originally developed by Chauvin and Garcés-Mascareñas hers the concept of promising victimhood captures how migrants are selectively deemed deserving. The ‘ideal asylum seeker’ must meet contradictory demands: they must show vulnerability from exceptional displacement while also proving assimilability. Welfens extends this with three tensions: cultural, political, and economic. This concept provides a useful framework to analyse how its two central rationales manifest in the arguments of Latvia and Lithuania before the Court.

Applicants in both the Latvian and Lithuanian cases fall into multiple vulnerability categories: they are asylum seekers subjected to pushbacks, placed under exclusive state control, and in some instances, have faced or undergone removal. The Latvian case also involves minors, triggering an additional layer of heightened vulnerability. However, Latvia and Lithuania challenged applicants’ vulnerability by framing them as autonomous, downplaying harm from pushbacks and questioning their need for protection based on origin, means, or minor infractions.

 

1.     Vulnerability related to migration

A key factor enabling the Court’s assertiveness under Article 3 is the vulnerability of applicants. M.S.S v. Belgium and Greece cemented the recognition of asylum seekers as particularly vulnerable under Article 3 (paras 232 and 251). Even when not explicitly invoked, vulnerability shapes the Court’s reasoning, including in recent ‘Greek hotspots’ (see M.A. and others v. Greece). Consequently, it is logical that the states attempt to construct a line of argumentation that challenges this vulnerability.

Beyond overlooking vulnerabilities linked to migration, both states disregarded the risk of ill-treatment upon return,  asserting Belarus was safe without substantiating this claim. The Council of Europe (CoE) Commissioner for Human Rights, in a third-party intervention, noted the absence of a functioning asylum system in Belarus. According to applicants, Latvian officials were aware of the abuses, with the Interior Minister calling Belarusian practices ‘inhumane,’ and the Defence Minister acknowledging violence and forced border crossings. Lithuania too, according to submissions, was aware of systemic violations, engaging potential Article 4 obligations.

While applicants typically must show individualized risk under Article 3 non-refoulement, vulnerability can lower this threshold. Particularly in extra-Dublin returns, the Court has found that members of persecuted ethnic, religious, or political groups face a real risk in non-EU or non-CoE countries (compare, for instance, Hirsi Jamaa and Others v Italy and Savriddin Dzhurayev v Russia).

 

2.     Vulnerability related to exclusive state control

All applicants were apprehended and subjected to measures amounting to deprivation of liberty, often for return purposes and in remote or makeshift border zones.Under Article 3 jurisprudence, such exclusive state control is a key source of vulnerability, particularly in the context of deprivation of liberty (see Rezmiveș and Others v Romania, para 72). Despite this, both Latvia and Lithuania denied any additional vulnerability stemming from their own conduct. In Latvia, applicants, including families, reportedly faced repeated violence under Order No. 518, including electroshocks and beatings, as well as inadequate shelter, food, and forced separations. In Lithuania, they reportedly endured at least six pushbacks into remote forests, often 10 hours from official crossings, spending over two weeks in snow, developing frostbite, injuries, and PTSD before being detained. The CoE Commissioner for Human Rights explicitly noted before the Court that such pushbacks placed asylum seekers in ‘great vulnerability.’

 

3.     Vulnerability of minors

In the Latvia case, the applicants included children. Minor asylum seekers’ vulnerability is especially influential under Article 3 .Latvia appeared to disregard the compounded vulnerability caused by its actions toward minor asylum seekers. Minors as young as 10 months were reported effectively deprived of liberty, a fact Latvia denied, claiming children stayed with families upon parental request. Judge Mits underscored the distinction between the situation of detained children and detained adults, raising the question of the alternatives to placing children with adults. In Latvia’s case, the pushback conditions, already harmful to adults, reportedly posed an even greater risk to minors, whose early developmental stage makes them especially vulnerable.   

In Tarakhel v. Switzerland, the Court held that extreme vulnerability overrides immigration status and that conditions causing stress or trauma to children may violate Article 3 (para 99). Moreover, importantly for the case in question, even accompanied children were considered extremely vulnerable (paras 99, 119). In A.B. and Others v France, the Court emphasized that child immigration detention must be a last resort (paras 110-115).

 

4.     Assimilability: cultural, political, and economic considerations

Having shown how states sought to undermine vulnerability, I now turn to the second rationale of the promising victimhood framework: assimilability. This concerns not only doubts about the ‘legitimacy’ of protection claims, such as the argument that applicants knowingly crossed the border despite ineligibility, but also broader cultural, political, and economic factors shaping who is seen as deserving of protection.

Lithuania’s response to claims of discrimination against Cuban nationals compared to Ukrainians warrants closer scrutiny. The government argues the cases are not comparable, as Ukrainians fall under the EU’s Temporary Protection Directive, due to the ongoing military conflict, whereas Cuban applicants are not fleeing ‘from a military aggression’. However, this framing ignores context: the Cuban applicants fled persecution after the July 2021 protests in Cuba, reportedly the largest since the 1994 Maleconazo, accompanied by serious human rights violations that forced thousands to flee the country. Furthermore, after escaping to Russia, they reportedly faced renewed threats, including forced conscription into its war in Ukraine.

This challenges Lithuania’s narrow distinction based solely on armed conflict. But is it truly about armed conflict? Viewed through the lens of promising victimhood, it reflects the second rationale of deservingness: assimilability, shaped not only by culture, but also by ethnic and political markers, as Welfens and Abdelaaty note.

As a CBS reporter in Kyiv said , ‘This isn’t a place like Iraq or Afghanistan...’, while an Al Jazeera anchor remarked, ‘We are talking about Europeans leaving in cars that look like ours to save their lives.’ These statements are far from tangential. Domestic publics tend to empathize with refugees who share a common identity, while racialized ‘others’ are seen as threats. Policymakers in democracies often align refugee policy with these sentiments, especially when admitting ‘kin’ is seen as politically safer. What crystallizes here is the underlying assumption that the suffering of Europeans is more urgent and more deserving of empathy than that of racialized ‘others’ escaping distant conflicts. This logic is evident in Lithuania’s stance, which overlooks Cuba’s repressive history and the applicants’ multilayered vulnerability, such as persecution in Russia and the risk of forced conscription into its war against Ukraine, a reality faced by many migrants there. Despite the applicant’s arduous journey and likely trauma, they are portrayed as undeserving simply because they are not fleeing an armed conflict, framing applicants’ actions as a matter of personal choice.Another key assimilation argument is economic: migrants are often seen as voluntary economic actors rather than asylum seekers, making them less deserving of protection. Latvia highlighted applicants’ extended stays in Belarus, implying a lack of direct persecution, while Lithuania, taking this argument further, cited evidence of applicants previously living and working in countries like Russia and Armenia. Lithuania also focused on applicants’ financial means, citing ‘pricey flights’ and ‘taxi service’, to suggest agency, equating economic autonomy with ‘undeservingness’ and undermining their vulnerability.

New arguments surfaced during the final stage of the hearings when Lithuania asserted that it had reviewed the applicants’ backgrounds and found administrative offences such as small thefts or travelling without tickets, infractions that were invoked to suggest a lack of worthiness, even though they bear no relevance to protection under international law. In this framework, Lithuania weaponizes economic autonomy. In doing so, it imposes a paradox: the ideal asylum seeker must be vulnerable enough to require protection, yet not so resourceful as to appear to have agency.

 

Conclusion 

This analysis revealed the paradox at the heart of ‘promising victimhood,’ a paradox mirrored in the states' line of argumentation: asylum seekers are expected to meet conflicting demands, to be sufficiently vulnerable yet not strategic, visibly harmed yet devoid of agency.  Even then, their perceived deservingness ultimately hinges on broader considerations such as ethnic and cultural 'fit' and the political interests of the receiving state.

Given the broader restrictive turn in European asylum policy, the significance of the upcoming Grand Chamber judgments cannot be overstated. Latvia and Lithuania’s logic of deservingness is echoed in the recent letter by nine EU leaders, including Latvia and Lithuania, which calls for a reinterpretation of the ECHR in the field of migration and openly questions whether the Court has protected the ‘wrong people.’ These rulings will determine not just individual outcomes but whether absolute protection can persist amid mounting political pressure to elevate 'deservingness' into a legal threshold.

A Media Psychological Analysis of the Open Letter of Nine European States on the ECHR

By Sharon Coen, Associate Professor of Media Psychology at the University of Salford and Thalia Magioglou, Assistant Professor of Psychology at the University of Westminster

 

On May 22nd 2025 nine representatives of European countries have co-signed an open letter in which they are arguing that the current interpretation of the European Convention of Human Rights is preventing nation states from being able to autonomously decide how to deal with immigrants who have committed crime. The letter has already attracted criticism for politicizing the work of the European Court of Human Rights and therefore dragging the application of the rule of law (i.e. the judicial power) in the political arena.  In his reaction post in this blog, Antoine Buyse appeals to communication scholars to examine how the letter conveys its message by appealing to particular discursive strategies. We therefore decided to respond to the appeal and offer an analysis of the communication strategies adopted by the authors to convey their message.

 

Reading this letter from a cultural/political/discourse perspective there is a combination of a binary discourse opposing “right” on the side of the signatories to “wrong”, with no mention of specific facts or legal documents to justify these positionings.  “We are leaders of societies that safeguard human rights”. Opposed to “They have learned our languages… Others have come and chosen not to integrate, isolating themselves in parallel societies and distancing themselves from our fundamental values of equality, democracy and freedom. In particular, some have not contributed positively to the societies welcoming them and have chosen to commit crimes”. 

 

The form of discourse adopted aims, as it is stated in the last phrases, to enforce a new interpretation of the European Convention of Human Rights. This implies that the European Convention of Human Rights is not interpreted in a “right” way by the European Court of Human Rights that represents the judicial power. This is an interesting statement since the signatories of the letter represent the executive power in their respective countries. In democratic states the judiciary sector is to be independent from the executive power. 

 

The construction of democracy and human rights that is adopted is presented to be embodied de facto by the signatories of the letter and the silent majority of European citizens they claim to represent, whereas immigrants are presented to occupy the opposite position as contestants of these foundational values. Although there are three different categories of immigrants mentioned in the letter, criminality seems to exist only in immigrant communities and to be unknown to European societies.

 

What is worrying is a binary form of logic throughout the document where generalised entities that are presented as homogeneous, are opposed as versions of “defenders of democracy” on the one side, to the “opponents of democracy” on the other. In this binary logic there are no questions or a need to investigate - there are certainties. However, these certainties are not, at least in this text, associated with specific studies or facts. 

 

Several rhetorical and logical strategies are adopted in the letter to persuade readers of the validity of its claims. We present them in the context of Aristotle’s triad in persuasive communication: Ethos (appeal to credibility and authority); Pathos (appeal to emotions); Logos (appeal to logic) and highlight how all three components are leveraged to frame immigration as an existential threat to sovereign Nation states, and by implication the Human Rights Commissioners’ interpretation of the European Convention of Human Rights as dangerous to national safety and sovereignty and then provide an in depth analysis of a crucial passage illustrating the logical faux pas underpinning the whole communication.

 

Ethos (Appeal to Credibility and Authority)

 

Claims to expertise are essential ingredients of persuasive communication. In the letter, authority is established by repeatedly stressing that the signatories are heads of state and government, and leaders of member states (“As leaders”, “We want to use our democratic mandate…”). Credibility is established by emphasising commitment to human rights, democracy, and multilateral institutions (without offering any – even anecdotal – evidence). Authority is also implied by presenting [false] consensus in the appeal to bipartisan unity (we belong to different political families, yet we agree on this) and the claim that their views are representative of the majority (“we believe that we are strongly aligned with the majority of the citizens of Europe in our approach.”).

 

Pathos (Appeal to Emotion)

 

The letter appeals primarily to moral outrage (by artificially creating a dichotomy between law abiding citizens and foreign criminals who have “taken advantage of our hospitality” to “commit crimes”) and fear (by suggesting that immigrants pose an existential threat “it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”). Finally, it expresses moral indignation: “it is beyond our comprehension”.  Such appeals are often used as strategies to disengage morally in the immigration debate.

 

Logos (Appeal to Logic and Reason)

 

The logical progression of the argument is as follows: when migration is characterised by lack of integration (which is presented as a choice operated by migrants, rather than a responsibility of the host country), it leads to crime and wider societal harm, hence the need for reform. The ‘right’ way to be an immigrant is actually presented not as integration, but as assimilation (see Berry’s work on acculturation strategies for the distinction): “They have learned our languages, believe in democracy, contribute to our societies and have decided to integrate themselves into our culture.” Consequently, the European Court of Human Rights has overreached its remit by preventing Nation states to freely decide on deportations.

 

In the letter, freedom and opportunities are presented as rights host nations share with immigrants – by implication, freedom and opportunities are not seen as universal human rights – they belong to states and their citizens who can deny them at their will. However individual nation states are prevented from doing so, as illustrated by examples listed without citing data (Cherry-picking).

 

Framing – the letter frames the immigration and human rights debate as an issue of crime without presenting sufficient data or evidence. Immigrants are presented as a threat and something extraneous to the sovereign citizenry. This is achieved using the following strategies:

- False balance: the letter presents illegal immigration as a substantial proportion (“irregular migration has contributed significantly to the immigration”), when we know it is a small minority.

- False balance: Immigrants who integrate vs. those who isolate. This is presented as a choice made by immigrants in equal proportions, and no consideration of context.

- Us-vs-them framing is used for Othering the immigrants.

 

Anticipation of Criticism

 

The signatories knew the letter would be widely criticised, hence they employed rhetorical strategies to offset this.

 

- Pre-emptive rebuttal: we will likely be accused of the opposite. This strategy disarms critics and presents the original authors as thoughtful and misunderstood.

- Appeal to an inclusive Social Identity (we, our societies, our citizens) to mask exclusionary implications of proposed policies.

- Primus inter pares: establish authority by highlighting their leadership roles ‘As leaders…’

“we believe that we are strongly aligned with the majority of the citizens of Europe in our approach. We want to use our democratic mandate…”

 

To illustrate, a particularly rich sentence is the following:

“It is beyond our comprehension how some people can come to our countries and get a share in our freedom and our vast range of opportunities, and, indeed, decide to commit crimes. Although this concerns only a minority of immigrants, it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.”

- “It is beyond our comprehension”: Moral outrage

- “come to our countries and get a share in our freedom and our vast range of opportunities”: Social identity appeal, Zero-sum fallacy: implies that immigrants ‘take a share’ of a delimited resource (freedom, opportunities)

- “and, indeed, decide to commit crimes”: Attribution bias: attributes criminal behaviour to an active decision made by individual immigrants – ignoring all the situational factors.

- “Although this concerns only a minority of immigrants, it risks undermining the very foundation of our societies.” Hyperbole: this is an exaggeration at best – misrepresentation at worst: how can a minority, who is responsible for a minority of crimes, be responsible for the very foundation of our society?

- “it risks undermining the very foundation of our societies. It harms the trust between our citizens and it harms the trust in our institutions.” Fear appeal: immigrants pose an existential threat.

 

Overall, our analysis convenes with Antoine Buyse’s own: “the letter clearly makes a divide between useful and unwanted migrants and between domestic democracy and an international court that apparently, in these states' views, binds their hands too much.”.  In this piece, we demonstrated how the message construction was achieved from a media psychological viewpoint. The adoption of such language - especially in the context of a polarising issue such as immigration - is problematic. Academic work in the area shows how this type of framing, as well as the rhetorical strategies adopted can lead to major misunderstandings and misinterpretations of the social issue the signatories are trying to address.