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In the case law of the European Court of Human Rights (ECtHR) the right of States to control migration is firmly established despite strong indications that the effects of migration control are not racially neutral. In this article we attempt to understand how it is possible that the doctrine of sovereign migration control is not considered to breach the prohibition of racial discrimination. We argue that the ECtHR’s approach to migration and racial discrimination fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today's global North. Hence, the ease with which the racialised impact of migration control is accepted as normal and compatible with the prohibition of racial discrimination is consistent with migration law's long history as part of colonial and postcolonial relations.

Since the end of the Cold War, migration law and policy of the global North has been characterised by externalisation, privatisation and securitisation. These developments have been conceptualised as denying access to migrants and as politics of non-entrée. This article proposes to broaden the analysis, and to analyse unwanted migration as merely one form of international human mobility by relying on the concept of the global mobility infrastructure. The global mobility infrastructure consists of the physical structures, services and laws that enable some people to move across the globe with high speed, low risk, and at low cost. People who have no access to it travel slowly, with high risk and at high cost. Within the global mobility infrastructure, travellers benefit from advanced forms of international law. For the excluded, international law reflects and embodies their exclusion before, during and after their travel to the global North. Exclusion is based on nationality, race, class and gender. The notion of the global mobility infrastructure allows for questioning the way in which international law reproduces these forms of stratification.

Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression. In most social sciences and humanities literature, this dichotomy is seen as legitimizing European dominance and exclusion of non-Europeans. However, it is the same dichotomy which is used by asylum seekers to claim inclusion through the grant of asylum. Focusing on the inclusive potential of this exclusive dichotomy allows us to explore the ambiguities inherent in the dichotomy. In asylum claims based on persecution on account of gender and sexuality, it becomes evident that not all human rights are considered equally fundamental. In many cases, asylum seekers are required to renounce human rights in order to prevent persecution, for example by complying with patriarchal family norms. Even where this requirement is rejected, asylum law illustrates the ambiguous relation between Europe and human rights.

Carrier sanctions, by which transport companies are penalised if they do not refuse embarkation to undocumented persons, play a role in perpetuating harms (denial of refugee protection; death) against migrants. They do so because transport companies are obliged to, by legislation of destination states inEurope, North America and Australia. The potential accountability and responsibility of carriers for these harms has not been addressed in literature on human rights law. This article fills this gap through the application of Iris Young’s social connection model to address the contemporary harms of carrier sanctions. We propose that, faced with conflicting legal obligations, carriers have moral and legal obligations to remedy, through strategic actions, the harms to which they contribute. We outline a number of possible practices that carriers can use to do so.

In this article, the case law of the European Court of Human Rights on children's family reunion is examined. The argument is that the Court's case law is necessarily inconsistent. This is so in part as a consequence of the structure of international legal argument, and partly as a consequence of the seeming normative conflict about the legitimacy of migration control. On both points, the Court is torn between two equally legitimate and equally untenable extremes, which forces the Court to take a centrist position and to acknowledge both the legitimacy and the untenable nature of any position. The main part of the article analyses how this takes shape in the legal technicalities in the judgements under review.

This article outlines the relationship between irregular immigration, increased border control, and the number of casualties at Europe's maritime borders. The conclusion is that the number of fatalities is increasing as a result of increased border control. The author argues that States have a positive obligation under international law to address this issue, and formulates concrete proposals to monitor the number of border deaths. © 2007 Martinus Nijhoff Publishers.

This article begins to undertake a human rights analysis of the increasing number of migrants who die annually while trying to cross the borders of Europe in an irregular manner. Over the past 20 years, border policies increasingly focus on (pro-active, extraterritorial, privatized, and securitized) border management instead of on classical (reactive, territorial, and public) border control. On the basis of existing data, it seems plausible to assume that the increasing migrant mortality is an unintended side-effect of this shift from control to management. The article argues that it is possible to collect data, which are more reliable than those presently available, and presents data from a pilot project carried out on Sicily in November 2011. Presuming better data can be collected; two diverging human rights approaches are developed – a conventional approach holding that European states are not accountable under human rights law for these side-effects and a functional approach holding that human rights law does impose obligations on European states in this context. On all four doctrinal issues which are relevant to the problem (jurisdiction, positive obligations, standing, and collective state responsibility), these diverging approaches lead to diverging doctrinal positions. A choice between the two approaches implies not only legal but also moral, ethical, and political choices.

This article looks at the number of migrants who die while trying to reach Europe. It includes a methodological paragraph on how more precise data about this phenomenon can be collected; this paragraph is based on field work on Southern Sicily in November 2011. Furthermore, it analyses how a mainstream approach to human rights would assess the phenomenon, and explores in which ways human rights analysis would have to be amended in order to make the human rights normative framework relevant for border deaths.

The expulsion of the single minor Francine Nsona from the Netherlands to Zaire was deemed not te be in violation of Article 3 ECHR, while the expulsion of the equally single minor Kaniki Mitunga from Belgium to what in the meanwhile had become Congo was held to be contrary to Article 3 ECHR. This paper analyses the argumentative manoeuvres deployed by the European Court of Human Rights to apply the same norm to similar situations with divergent outcomes.