This article revisits the problem posed by legal status as a tool of civic stratification, through which states construct migrants as legal subjects while simultaneously determining the scope and content of their rights. While largely taken for granted in legal scholarship, legal status categorizations should be recognized as central to the predicaments facing the protection of migrant rights. Examining the extent to which human rights law and other protective international law frameworks constrain states’ ability to differentiate between migrant groups through legal statuses, this article argues that, while these bodies of law impose some restrictions — notably non-derogable guarantees and stratified protections tied to defined status groups — their effectiveness is ultimately limited. As human rights law and institutions largely operate within the framework of civic stratification, they allow states to entrench hierarchical differentiations in ways that directly contradict the principles of universality and equality. Judicial institutions, including the European Court of Human Rights, have proven unable to resolve this contradiction, notably because they share with governments the authority to determine the applicability of human rights to specific legal statuses. Recognizing this structural limit is essential, as it underscores the need to look beyond the framework of human rights law in order to contest states’ unfettered discretion to exclude migrants.

The fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary tool for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work that found that there already is a legal tool with the potential to achieve this reorientation in judicial practice: the principle that we call ‘migratory vulnerability’, once calibrated away from a group-based approach towards a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the ‘comparator’ test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.

This article classifies and theorizes the strategies of divergence that local authorities employ when confronting the discretionary spaces offered by domestic migration law. We propose a distinction between strategies that are either within or outside the perceived boundaries of the law and those that adopt an explicit or an implicit approach to positioning, thus harnessing or downplaying the communicative potential of the law. Based thereon, we introduce a fourfold typology of strategies of divergences that include defiance, dodging, deviation, and dilution. This typology was developed and refined based on field research in local authorities in Greece, Turkey, Italy, and The Netherlands. The case material also leads us into a preliminary exploration of which types of cities and conditions may lead to the adoption of one strategy over another. As such, this article draws attention to the relevance of law within multi-level migration governance and to the meaning of legal ambiguity and discretion as shaped by law and legal interpretation. The strategies of divergence that mould discretionary spaces, in turn, either mitigate or exacerbate legal uncertainty and should be considered a significant factor to account for change in migration governance.

The European Court of Human Rights has struggled to integrate the lived experience of migrants into the legal reasoning that underlies a determination of human rights violations. This article introduces the concept of migratory vulnerability in an effort to remedy that shortcoming by making an already existing legal principle fit for the daunting task posed by migration cases. The objective is to preserve (and potentially expand) the legal effects of the principle of vulnerability whilst approximating it to the more consistent conception of vulnerability theorists, which would remove some of its ambiguities and negative side effects. Migratory vulnerability describes a cluster of objective, socially induced, and temporary characteristics that affect persons to varying extents and in different forms. It therefore should be conceptualized neither as group membership nor as a purely individual characteristic, but rather determined on a case-by-case basis and in reference to identifiable social processes. Depending on its specific expression, migratory vulnerability may give rise to distinct legal effects such as enlarged scopes of protection, shifts in the burden of proof, procedural and positive obligations, a narrower margin of appreciation, and possibly even the ‘triggering’ of proceedings under Article 14 ECHR.

The scaling up of locally organised, city-led routes to resettlement could form part of a larger solution to Europe’s current political crisis and deadlock around migration.

The category of the ‘irregular’ migrant is usually seen as the quintessential non-status under international law, offering states plenty of discretion while providing few practically accessible rights for migrants. At the same time, certain local authorities have struggled to justify more pragmatic responses when dealing with the reception of irregular immigrants. This article explores a recent trend that potentially holds the key to both conundrums: the invocation of international human rights law, in their defence, by local authorities. More specifically, their engagement of human rights can force international institutions to apply and develop norms in this area. Within this story of legal pluralism, nation states are under increasing pressure to live up to the standards that they had previously avoided. Two examples of ‘frontier cities’ operating in very different constitutional and discursive environments will be used to substantiate the argument. The first concerns support by the city of Utrecht of a case concerning emergency social assistance for undocumented migrants before the European Committee of Social Rights. The second example concerns San Francisco as a sanctuary city in the US and a place with a long history of localization of international human rights law. The article closes with a critical reflection on the potential trajectories that this trend might take and what this means for understandings of legal pluralism as well as future research.

The growing influence and self-confidence of local authorities count among the most interesting recent phenomena in global governance. While not entirely oblivious, international law as a field has struggled to get ahead of this dynamic, focusing instead on how to integrate local authorities into static conventional frameworks firmly based on the notion of state sovereignty. However, as a discussion of the global state of affairs and a focus on human rights cities shows, local actors increasingly claim and obtain a key role in the realization of international law. Additionally, they hold important potential to address some of the most pressing challenges to international human rights law concerning its efficacy and legitimacy. This article therefore calls for a proactive approach to the study of local authorities that considers local authorities as a ‘new frontier’ in international law generally and in human rights law specifically. It proposes a critical research agenda for this purpose that could produce important new insights into (i) the continued relevance and legitimacy of human rights as a discourse of governance; (ii) the bearing of domestic constitutional arrangements on the implementation of human rights law and (iii) questions of, and possible shifts in, legal subjecthood in the contexts of ‘state failure’.

Questions concerning effective remedies in refugee status procedures have recently received a lot of attention in Belgium, most notably in two significant high level cases. The Belgian Constitutional Court found in January 2014 that the fast track procedure of annulment for asylum seekers from safe countries of origin did not provide for an effective remedy. Only one month later the European Court of Human Rights reached a similar conclusion in the S. J. v. Belgium case which concerned the effectiveness of remedies available for migrants appealing to a denial of permission to stay on medical grounds. After describing the context and legal significance in some detail, this article offers a complementary ‘user perspective’, adopting the notion of capabilities to approach the subject from the viewpoint of migrants. Effective remedies represent in the Belgian context not only a procedural right but also a substantive opportunity for migrants to obtain basic capabilities such as life, bodily integrity, and physical and mental health. Reconceptualizing effective remedies as capabilities underlines also the moral responsibility of ‘supporting users’ (such as human rights organizations) and above all the Belgian state.

Adopting a ‘user perspective’ might open promising new avenues to human rights research, especially in a context of global legal pluralism that is characterized by a multiplicity of actors. This article evaluates the conceptual value of the approach by confronting it with three forceful objections to the notions of human rights ‘users’ and ‘usage’ as they emerge from the social sciences, in particular from sociology. These include the ‘Arendtian’ argument concerning the problem of the ‘right to have rights’, the challenge of ontological structuralism, and suspicion about the purchase of a rational choice approach to ‘usage’. While debates on these arguments divide social scientists, they nonetheless provide significant insights into the limitations of agentic approaches to human rights. The theoretical analysis offered in this article leads to the conclusion that robust and constructive ‘user perspective’ research must pay close attention to the properties and behavioural processes of its ‘users’ as well as to the specific constraints that they face in exercising their agency. At the same time, certain conceptual and methodological tools can be transferred from social science literature precisely to tackle these issues. Future research adopting a user perspective cannot but take an interdisciplinary angle which positions any user both in a legal and in a social context.

One way to address the multilayered architecture of international human rights law is to consider the various theories that have focused on the legal effects of globalisation. Based on a review of nine ‘global law’ theories, this article differentiates between three models of human rights integration. ‘Hierarchical integration’ as found in the theories of neo-naturalism, global constitutionalism, and global administrative law implies the recovery of a global hierarchical legal order. ‘Coordinative integration’ asserts that the most feasible approach to human rights integration is to establish links between the constitutive elements of an irreducible global legal pluralism. Its main proponents are theorists of ordered legal pluralism, neo-institutionalism, and systems theory. Finally, a model of ‘conflictual integration’ has been adopted by pragmatic approaches, critical legal studies, and theories of the Global South. These are sceptical of an imposition of order or coordination and hold that the driving force for the development of human rights law is the antagonistic relation between global actors. Our classification offers a clear and systematic way to deal with these fundamentally different notions of ‘human rights integration’.

The Parliament of Kosovo passed a controversial amnesty law in July 2013 within the context of the Brussels-led negotiations between Serbia and Kosovo. This article evaluates the law using a functional framework, thus exploring possible implications with regard to legality, the rule of law, security, the economy, and reconciliation. We find that the amnesty law entails serious problems or risks in each aspect except legality due to its broad scope which includes common and economic crimes while providing possibilities for abuse. Moreover, internationals actors involved in the negotiation process exerted considerable pressure to adopt the amnesty law which raises questions concerning their motives and strategy. We argue that their uncritical attitude can be explained by a combination of four principal factors, including a strong focus on the realist exigencies of diplomacy, internal interests of the European External Action Service, a neglect of non-legal consequences of the law, and a general practice of exceptional and unaccountable policy-making in Kosovo. A functional assessment as offered in this article would have provided a more comprehensive understanding of the possible implications of the law, including the serious risks it poses to the fragile post-conflict situation in Kosovo.

As Obama took office at the beginning of 2009, several new figures attained important advisory positions in his administration. Anne-Marie Slaughter, former Dean of the Woodrow Wilson School at Princeton University, and now Director of Policy Planning in the State Department, is a prime example of the ‘change’ that has come to Washington. In recent years she has been part of a growing academic circle that views networks at the centre of international relations. At the same time, she has promoted the idea that the United States can be ‘the most connected country’ in such a world. By taking a closer look into the discourse of US supremacy and the current state-of-the-art in the theory of transnational networks, this article reveals the divergence between wishful thinking and reality in Slaughter’s position. By analysing her position and introducing three case studies, we conclude that the complexity of power relations in a world of networks makes any assumption of US supremacy highly problematic. Some might ‘mirror’ the beliefs and values of America (Open Society Institute); some might only be a ‘prism’ of various different voices (Al-Jazeera); and some might fall totally outside state control to form ‘shadow networks’ (Khan Network). Ultimately, it is the belief in US exceptionalism that perpetuates the claim that the United States has ‘an edge’ in such a world, with potentially problematic consequences.