WHEN, WHERE, AND HOW STATES LEARN

Located in Strasbourg, France, the ECtHR adjudicates violations of the European Convention on Human Rights. The Court is part of a postwar European human rights system considered “one of the most far-reaching and successful attempts at an international human rights protection regime” and a model for other systems elsewhere (Christoffersen and Madsen Reference Christoffersen and Madsen2011, 2). The ECtHR has jurisdiction to hear cases across the forty-seven Council of Europe states that are signatories to the Convention. Its judgments are binding on the member states. However, the Convention system, including the Court and the supervisory bodies involved in execution, must uphold the principle of subsidiarity, or deference to domestic legal procedures and the sovereign orders that they represent. The ECtHR gives member states less leeway for violations of certain absolute and nonderogable rights (for example, the right to life and freedom from torture). It affords more deference, or margin of appreciation, when adjudicating rights that touch on politically sensitive areas or culturally specific norms. Such cases might include freedom of expression, family life, or matters of conscience. The Court’s determinations in these more context-specific areas rest on careful balancing of rights within given domestic legal and social orders. The proper measure of this balance, and thus the relationship between jurisdiction and sovereignty, has emerged as one of the most contested issues in ECtHR doctrine and practice in recent years (Spano Reference Spano2014).Footnote ²

The ECtHR largely depends on the records from domestic proceedings in its evaluation of how rights play out in practice in a given context (Keller and Heri Reference Keller and Heri2014). These records come to Strasbourg through applications, domestic proceedings, or official channels for receiving supplementary information (for example, amicus briefs or third-party interventions). The Court is generally not a fact-finding body in its own right.Footnote ³ Exhaustion of domestic remedies is key to the Court’s careful balance between deference to national systems and supervision of member states’ compliance with Convention obligations. The exhaustion process also generates the documentation and evidence through which the Court evaluates domestic procedures and actions. In the case of violations, subsidiarity guarantees that respondent states have broad leeway to determine the scope and specifics of the execution of judgments (Keller and Marti Reference Keller and Marti2015). Once the ECtHR issues a judgment, the Committee of Ministers supervises implementation with the aid of the Department for the Execution of Judgements. In addition to individual measures, including payment of compensation for damages or associated legal costs, the CM may also facilitate general measures to address structural issues at the heart of a violation. While the judicial deliberations of the Court are confidential, state and civil society actors have access to a host of documents that lay out the back-and-forth logics for the execution of a judgment in practice.Footnote ⁴ Member states have wide discretion in responding to violations with domestically appropriate general measures.

Once a case is formally closed, any violations related to the substance of that judgment or underlying causes require new applications before Strasbourg.Footnote ⁵ Because the ECtHR will only consider cases in which applicants have exhausted all domestic remedies, these applications may not fall under the Court’s jurisdiction even if they bear similar fact patterns or speak to similar rights violations. Such new cases may take years to wend their way through domestic proceedings. In the meantime, the facts on the ground and policies may change rapidly.

Taken together, these institutional arrangements make the production and execution of a judgment a collectively negotiated achievement. Judges bring case law, doctrine, and interpretative principles to bear on existing bodies of evidence and domestic legal proceedings. The Department for the Execution of Judgements assists the Committee of Ministers in supervising execution through review of state action plans, and research and consultation with applicants, policy makers, and human rights experts, such as the Council of Europe Commissioner for Human Rights. Within these parameters, states experiment with what execution looks like in practice. Civil society groups weigh in with formal communications to the CM, via the DEJ, and domestic advocacy campaigns. The judgment sets the legal parameters for international human rights supervision within these networks of interested parties. The execution process is where states learn how to balance the exercise of national sovereignty with internationally acceptable implementation of human rights protections.

What satisfactory implementation looks like is thus a matter of dialogue, debate, and persuasion. This sets the stage for state actors to experiment in two areas: first, with execution in cases of concrete violations, and second, in testing the limits of ECtHR jurisdiction and admissibility for possible future cases. This is especially true if respondent states innovate practices not covered by the judgment. NGOs and others may try to keep ahead of these innovations and developments or identify new cases for strategic litigation. However, these cases must find their way through the lengthy system of application. This system of dialogue, supervision, and discretion creates openings for state actors to both implement judgments and carve out space for the exercise of future discretion.

DISTINGUISHING COUNTERPEDAGOGY

The tension between international supervision and national sovereignty has shaped the human rights Convention system (Keller and Stone Sweet Reference Keller, Sweet, Keller and Sweet2008). As state actors learn to govern with and through international legal institutions, they engage in an emerging form of judicial politics: forms of governance that respond to new international constitutional orders like the ECtHR (Stone Sweet Reference Stone Sweet2000, Reference Stone Sweet2007). In this context compliance with international legal obligations is a spectrum and set of negotiations rather than an “all or nothing binary” (Alter, Helfer, and Madsen Reference Alter, Helfer and Madsen2018, 4–5). State actors both engage international courts and curb court authority through specific domestic legal and political strategies (Alter, Helfer, and Madsen Reference Alter, Helfer and Madsen2018). Court authority and compliance is a field of practice rather than a definable set of actions (Alter, Helfer, and Madsen Reference Alter, Helfer and Madsen2018). Compliance may be “partial” (Hawkins and Jacoby Reference Hawkins and Jacoby2010) and contextually and historically variable (Keller and Marti Reference Keller and Marti2015; Madsen Reference Madsen, Alter, Helfer and Madsen2018). As Stone Sweet has shown, policy makers anticipate and construct responses through courts or the domain of formal policymaking. Such responses to judicial influence in political decision making include those through which political actors maneuver to protect policy from future judicial review (Stone Sweet Reference Stone Sweet2007). A court judgment may set the terms of engagement, but within these parameters, we can expect moves and countermoves as different legal actors struggle over the meaning and interpretation of rights in practice (Merry Reference Merry, Goodale and Clarke2009).

This give-and-take may allow political actors to coopt legal institutions to undercut the rule of law itself. For example, Hungary is emblematic of what Kim Lane Scheppele has called “autocratic legalism,” a process by which increasingly authoritarian leaders in democratic contexts use legal and constitutional methods to push illiberal policies and consolidate power (Reference Scheppele2018). As Scheppele argues, autocratic legalism takes the form of rule of law reforms but lays the groundwork for constitutional changes that undercut the separation of powers. This use of legal and constitutional orders to undercut rule of law is akin to “lawfare,” a process that Comaroff and Comaroff have defined as “the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure” (Reference Comaroff, Comaroff, Comaroff and Comaroff2008, 30).

To these strategies, I add the concept of counterpedagogy. The distinctive element of this concept is that it relies on the material and semiotic ambiguities that accompany the translation of real-world situations into legal frameworks. In the examples above, state and legal actors negotiate sovereignty and judicial authority through a shared language of law. Even when maintaining a law/policy distinction, political actors in the context of judicialized governance operate within the ambit of legal language and legal facts. Thus, as Stone Sweet notes in his analysis of political strategies for anticipating (and evading) judicial review strategies, legal and doctrinal principles such as proportionality “[push] lawmakers and administrators into a judicial mode, requiring them to reason as the judge would, that is, to consider the proportionality of their own activities. Considered in more sociological terms, proportionality itself constitutes a highly institutionalized mode of governance, in that it serves to connect the domain of norms and rights with the domain of interests and decision making” (Reference Stone Sweet2007, 76). Similarly, anticipatory self-restraint or corrective revision to bring legislation in line with court decisions also operates through the language and logics of the law itself (87). In cases of autocratic legalism or lawfare, political actors may undercut the rule of law, but they do so through the hollowed-out forms and language of law itself.

Counterpedagogical moves, by contrast, occur prior to such already judicialized processes. They also occur outside the formal legal and procedural domain. Rather, they operate at the level of the translation processes through which material conditions become legible in legal frameworks. In other words, unlike models of compliance, legal harmonization, isomorphism, or institutional acculturation (Goodman and Jinks Reference Goodman and Jinks2013), counterpedagogy is a practice that plays with the limits of the law to recognize, translate, and render social context into legally legible objects of scrutiny and intervention. For any legal institution to function, complex social realities must be translated into the language of the law (Constable Reference Constable2014) and subtle social interactions must become legally relevant context (Bernstein Reference Bernstein2017). As Anya Bernstein has argued in her analysis of judicial interpretation, legal “interpretation requires an object,” and that “object requires contours to make it visible” (Reference Bernstein2017, 568–69). In order to “situate the thing they interpret against a background that gives it shape and meaning, legal interpreters cobble together diverse factors with unpredictable contours” (569). From this perspective, sovereignty and jurisdiction are relational rather than absolute objects requiring judicial interpretation (Bonilla Reference Bonilla2015; Kahn Reference Kahn2018). They find expression in the relationship between legal frameworks and the material relationships and evidence that give such frameworks relevance and life (Richland Reference Richland2011, Reference Richland2013). Counterpedagogy occurs in this space of mediation and translation. Rather than anticipating or partially complying with legal judgments, state actors learn when and how to shape the conditions in which specific interactions become legible to the ECtHR and to Convention institutions.

Two brief quotations from interviews I conducted as part of a larger ethnographic research project on the Court help illustrate these points.Footnote ⁶ These interviewees indicate that there is a range of action for states beyond simple compliance or noncompliance. They focus our attention on moments of translation and the possibility that states may learn to use legal illegibility to evade future scrutiny by the Court. A lawyer at the Council of Europe who is familiar with the execution process and the work of the Committee of Ministers reiterated this point. We had been discussing the diplomacy that shapes the execution process. I asked about how state actors learned from the engagement. Using the example of Hirsi, I queried, “To what extent are states learning how to respond to just the case, in a way that then informs how they can change policies to evade supervision in the future?”Footnote ⁷ My interviewee, seeking clarification, asked: “Like studying employment law to know how to sack somebody, in a sense?” I clarified that “complying with the letter of the law in a way that is reasonable enough …. But then it becomes very easy to learn what not to do … moving forward.” He then noted,

Here my interlocutor speaks to how different actors understand the scope and in some ways spirit of international human rights supervision. The difference between narrow and concrete interpretations of remediation and redress and a broader spirit of compliance informs the negotiations around sovereignty, subsidiarity, and jurisdiction I have discussed so far. As this interview excerpt shows, a key piece of compliance and execution of judgments is the fact that “[i]f states have worked out the limits” the cases will not reach the Court. The play between states and Convention institutions is not only a matter of doctrine, but of pushing and experimenting with the limits of what reaches the Court in the first place. It is this dynamic that cued me to the issue of legibility or admissibility to the Court as a zone of play.

The ways in which cases become legible as legal objects (Bernstein Reference Bernstein2017) to the Court happen not only through legal doctrine, admissibility criteria, and precedent. They also lie in the very real material and policy practices through which violations become legible as justiciable events. The second interview example relates to this process of legibility with respect to enforced disappearance cases. Many of these cases focus on violations of the European Convention on Human Rights article 2: the right to life, which guarantees both substantive rights and procedural rights to a fair and full investigation of deprivations of life. Many applicants find their way to the Court as a last and desperate attempt for some kind of justice. They come for compensation for missing and murdered loved ones, to establish the truth of what happened in the ongoing violence and chaos that has become everyday life, and in the hope that someone somewhere will hold state officials accountable.

I asked an ECtHR lawyer with experience of these cases whether they thought the ongoing legal action had unintended consequences. Were state officials in the country we were discussing learning from their mistakes and being smarter about avoiding generating evidence of violations? The lawyer readily agreed, adding: “We adapt, they adapt.” The interviewee told me to look to the case law, and the ways in which states were learning to shape evidence, documentation, and fact patterns to make violations on substantive grounds invisible. As the lawyer explained to me, if states cast a reasonable doubt on the applicant’s claim that it was state officials (and not random masked men and terrorist irregulars) that had killed their brothers, sons, and fathers, it was difficult to bring such cases forward. From the lawyer’s description of specific cases, it became clear that within the standard of reasonable doubt, states had learned to play the evidential game … at least in part. This meant that the domain of struggle to make states accountable was as much about generating evidence to bring a case as it was about a violation judgment or postjudgment execution.

Keller and Heri (Reference Keller and Heri2014) have identified the phenomenon in which states refuse to provide facts, evidence, or documents in enforced disappearance cases as a strategic “wall of silence.” They note that this “‘wall of silence’ maintained before the ECtHR by national authorities in these cases continues the same denial of facts that is a definitional element of enforced disappearance” (745). As Keller and Heri show, the Court has developed a series of responses to these state refusals, including shifts in the burden of proof in enforced disappearance cases and in some contexts additional fact finding. However, as they argue, such responses can only go so far in the absence of domestic fact finding, effective investigations, or even muddying of facts and evidence on the ground.

This interplay between facts, evidence, and legal legibility has informed my understanding of counterpedagogy. First, lawyers within the Convention system anticipate the learning and adaptation that defines interactions among states and the Court. In noting “they adapt, we adapt,” my interlocutor pointed to the way that the Strasbourg institutions and respondent states go back and forth. However, the Court and domestic actors do not use the same modes and means of adaptation. States adapt through shaping material circumstances. The ECtHR adapts through doctrine and interpretative principles, such as standards of evidence. Between the two are the forms through which messy contexts are translated from one epistemic order to another: documents, fact patterns, evidence of domestic hearings, procedures, and investigations (Riles Reference Riles2006).

Counterpedagogy works at this nexus of doctrine, interpretation, and material circumstances. States learn to play such games by using the rigidity of legal doctrine, evidentiary and procedural formalism, and jurisdictional precedent against the necessarily messy translation of real-world context into law. As I show below, in cases where jurisdiction is the key legal issue, this process may include the actual policies and practices through which nation-states interact (or do not) with the bodies of migrants in transit. Human rights frameworks turn actual human beings into sites through which legal and political actors battle over the terms of sovereignty and jurisdiction. This process happens through disputes over what counts as relevant evidence in relationship to existing Court case law.

Beyond subverting the system by acting in bad faith, state actors learn from the limits of the law. They learn to negotiate acceptable terms of execution and innovate sovereignty practices. Evidence, facts, and documentation are the critical input that shape the extent of state discretion and the breadth of CM oversight. For member states, learning to both negotiate acceptable terms of execution and innovate sovereignty practices on the ground is key. More important is modification of the material conditions and ground under which material practice becomes (or more importantly does not become) intelligible.

CASE STUDY: MIGRATION AND ITS COUNTERPEDAGOGIES

Large numbers of vulnerable migrants coming to European shores, combined with Europe’s inadequate policy response and domestic political backlash, has led to an increase in migrant human rights violations.Footnote ⁸ Migrant vulnerabilities emerge in the gaps created by inadequate administrative and legal procedures in messy and fluctuating situations on the ground (Cabot Reference Cabot2014; Tuckett Reference Tuckett2018). States may invoke practical difficulties or legal criteria to challenge the scope of migrant human rights and state responsibility for these populations (Desmond Reference Desmond2018). These challenges have also exposed cracks in NGO strategies to advocate through international instruments and institutions like the ECtHR. As NGO advocates make claims in terms of case law and rights frameworks, they increasingly must confront the actions of state and police actors to guarantee rights in practice as well.

These tensions were evident at a meeting I attended as a participant observer for NGO representatives from migrant rights organizations across Europe. Many of the advocates were bringing cases to the ECtHR alongside their regular domestic advocacy work and were eagerly waiting for the Court to deliver key judgments at Grand Chamber. Such rulings have shaped their ability to secure legal and procedural guarantees for the tens of thousands of refugees crowding camps in Greece and Italy or going through asylum procedures in Germany, Belgium, Spain, and Hungary. As I learned from talking to these NGO advocates, legal gains from Court judgments had not always kept pace with changing conditions on the ground. State strategies in policing migrants and criminalizing human rights defenders outpaced procedural guarantees linked to specific judicial outcomes.Footnote ⁹ The time that judicial activism took (the years necessary to get a case to the ECtHR) was out of sync with the rapidly changing conditions and rights challenges that migrants faced in their everyday lives.

In this context, I was speaking with a litigator who had worked on migrant rights for many years about Hirsi Jamaa, the 2012 Grand Chamber case in which the ECtHR found that Italy violated the Convention when it sent migrants back to Libya during a humanitarian maritime search-and-rescue operation. The case involved eleven Somali and thirteen Eritrean nationals who were part of a larger group that left Libya aboard three vessels destined for Italy. Italian Revenue Police and the Italian Coast Guard intercepted the vessels thirty-five nautical miles south of Lampedusa and transferred the migrants to Italian military ships, which returned them to Tripoli. The Grand Chamber found that this pushback operation violated the applicants’ Convention rights with respect to article 3 on the prohibition of torture, article 4 of Protocol 4 against collective expulsion, and article 13 for lack of effective remedy (Hirsi Jamaa v. Italy 2012). It was a key case because it extended Convention protections to third-party nationals not on European soil. Many in the NGO community saw this extension of Italian rights obligations to open sea as a victory and a new baseline for rights protections.

The lawyer I spoke with, however, was more skeptical. He had encountered, in his words, too many migration advocates who saw Hirsi Jamaa as “their answer” to the jurisdictional question of European human rights for third-country nationals. They would be disappointed, he noted: The jurisdictional power of the Court could only reach so far on the high seas. Advocates would need to confront this, eventually. He compared this jurisdictional advocacy strategy to “blue tack”: It (the strategy) might stretch to extend jurisdiction in some cases, but eventually a case would come along that set precedential limits in how far the Court would go in challenging state sovereignty and domestic decision making.Footnote ¹⁰ He suggested that the result might be a new case that drew a much harder, clearer line across the Mediterranean, past which neither migrants nor rights protections might pass. As I learned in interviews, human rights lawyers and strategic litigators are constantly scanning the horizon for new cases that might help elaborate or clarify key points of law and create more capacious human rights protections. For migrant rights advocates, the ECtHR has been a critical node for expanding and articulating rights, even given its deep limitations in this area (Dembour Reference Dembour2015; Desmond Reference Desmond2018). Yet, this strategy has the potential to backfire, as the mood of the Court, the learning curve of respondent states, political winds, and domestic pressure on migration shift as well.

Hirsi was significant on several grounds, many of which speak to the legal authority of the Convention even in sensitive areas such as border control. The case also put Frontex (The European Agency for the Management of Operational Coordination at the External Borders of the Member States of the European Union) on notice that it is bound by Convention principles. Extraterritorial bureaucratic and managerial institutions will not escape the gaze of the Court. The judgment created a precedent for extending ECtHR jurisdiction to maritime search-and-rescue operations, providing clear-cut tests to establish state responsibility even in international waters and in the context of so-called clandestine immigration. This legal obligation challenges the legitimacy of so-called pushback operations, in which European states cooperate with third countries to stem migrant and refugee flows.

Significantly, the Court drew on a number of international legal principles and customary law, especially in establishing a state’s “effective control.” The judgment came back several times to the test of whether a ship was “flying the national flag” and argued for robust tests for “effective control” over migrants (Hirsi 2012). It thus extended European states’ obligations to third-party nationals and the Court’s extraterritorial jurisdiction on the high seas based on even a brief period of effective control by Italian ships and personnel. It established that bilateral agreements to police Europe’s external borders (like those signed between Italy and Libya) did not supersede Convention obligations. It also established that Italy should have been on notice about the in-country conditions in Libya and the likelihood that returned migrants would be subject to inhumane and degrading treatment in violation of article 3. Finally, in finding a violation of article 4 of Protocol 4, the Court clarified the practical application of measures against collective expulsion and the need for individualized assessment of asylum claims. This affirms the necessary procedural guarantees to which refugee and asylum seekers are entitled, even under difficult conditions.Footnote ¹¹

The other significant, albeit not strictly precedential, aspect of this judgment is the Court’s extensive use of third-party reports and fact finding. The Court drew on external research to show that Italy should have been on notice of conditions in Libya, including the high likelihood that that returned migrants would be subject to inhumane and degrading treatment or sent on to countries of origin where violation of article 3 was also likely. On this last point, the judgment, citing UNHCR (United Nations High Commissioner for Refugees) language, referred to the possibility of “chain refoulements” (Hirsi 2012, ¶ 143).Footnote ¹²

The judgment thus set the pattern for assessing jurisdiction and state responsibility in future cases at sea. It established Italian responsibility on the high seas and extended the legal notion of a border based on state practices, rather than sovereign territory. It also set the evidential criteria for how to recognize this sovereignty in practice. It offered an example of the kinds of third-party knowledge and expertise sufficient to make this case—indirectly creating models for NGOs and experts to counter the respondent state’s account of a particular migration encounter. The judgment was in this sense a road map for the way that judges, applicants, and state respondents would specifically establish Court jurisdiction and national sovereignty. Paradoxically, domestic discretion in these cases rested on eliding evidence of effective control over migrants. This meant giving up legal sovereignty to ensure sovereignty over borders in practice.

FROM JUDGMENT TO EXECUTION: MANEUVERING AFTER HIRSI

The Grand Chamber issued Hirsi Jamaa in 2012. However, execution of the judgment stretched on for years following the actual decision. Italy and the Committee of Ministers (the executive body of the Convention system) only finalized the action plan for execution after several years of back and forth over proposed legislative and policy shifts at the domestic level.Footnote ¹³ The Italian government’s final Action Report in 2016 outlined an extensive program including new immigration and asylum legislation establishing procedural guarantees, interpretation and mediation services, health and wellness services in reception centers, and procedures for individual identification for third-country nationals rescued at sea. Following Hirsi, Italy launched the Praesidium project, which provided new procedures for intake of migrants, mainly in Sicily. This included medical examinations, legal information, and special support training for naval crews in compliance with human rights in maritime search-and-rescue operations. In 2013, Italy also launched Mare Nostrum, a large-scale humanitarian mission covering the Mediterranean and in particular the Sicilian canal. In accordance with the judgment, Italy suspended bilateral agreements with Libya in 2011.

Mare Nostrum was discontinued following Frontex’s Triton effort.Footnote ¹⁴ Frontex rolled out Triton in full compliance with Regulation (EU) No. 656 of 15 May 2014 of the European Parliament and Council establishing rules for border surveillance maritime vessels. These rules apply to border surveillance operations carried out by member states at their external maritime borders, a measure meant to bring all external border control in line with principles of nonrefoulment and fundamental international humanitarian law and human rights principles. Operation Triton explicitly takes up the policy of no pushbacks and is in line with ECtHR rulings.

From the perspective of the formal record of execution, Hirsi looks like a great success. The Court established its jurisdiction in cases of open waters operations in the Mediterranean and drew a legal line in the sand (or water) with respect to pushback. In response, Italy, first on its own and later in coordination with the EU and Frontex, embraced procedural guarantees. Thus Italy, in the words of its final Action Report to the CM, “fully reaffirmed the old tradition of reception in the new context of immigration policy.”Footnote ¹⁵

However, if we look at the Court and its judgments as only one institutionalized location in an ongoing contestation over political power and sovereignty, we see another story emerge. Italy seems to have shifted its border control policies in ways that evade the strict letter-of-the-law limitations imposed by the Hirsi judgment. While recent Italian bordering practices within the Mediterranean do not directly violate Hirsi’s legal logics, they undercut the conditions that made Hirsi a legally and evidentially effective case before the Court. The Hirsi judgment effectively modeled how jurisdiction is established and under what conditions states must uphold human rights obligations within contested Mediterranean borders. Establishment of that jurisdiction is a fact-intensive process that includes evidence of (1) effective control over migrants in situ, (2) the national character of the ship in question, and (3) a preponderance of evidence—often produced by third-party NGOs—that puts a country on notice of possible future violations. These conditions made encounters on the high seas a legally legible and actionable object of intervention.

If Italy met the Hirsi judgment with a series of measures designed to comply, it also learned the lessons of the sovereignty-jurisdiction-evidence nexus well. In the early 2010s, Italy had what human rights scholar Paolo Cuttitta called a “humanitarianized” sea border (Reference Cuttitta2018). A search-and-rescue attitude combined with NGO presence meant Italy’s engagement with migrants could be clearly and directly documented. As Cuttitta has shown, subsequent policies in the Mediterranean include increasing securitization and the active criminalization of both migrants and the NGOs that assist them. At the same time, Italy has outsourced border policing to Libya. This move allows Italy to retain sovereign control over its borders by evading ECtHR jurisdiction and human rights obligations. Hirsi showed how Italian sovereignty—and thus Court jurisdiction—was grounded in material engagement with migrants. In response to these precedents, Italy has learned to retain sovereignty over its territorial borders by shifting sovereignty over migrants in practice to a third country. The reach of the Convention becomes much more ambiguous when Libyan crews are involved, especially if third-party actors like NGOs are not there to document Italian coordination.

POST-HIRSI POLICY ENVIRONMENT FOR SEARCH AND RESCUE

The Hirsi Jamaa judgment preceded a surge in migration to Europe in 2015 and was implemented during several months and years of massive European refugee flows. This case highlights the difficulty of execution in the context of historical and social transformations, as well as the mismatch between the facts and analysis in a judgment and the fluctuating conditions that affect an ongoing execution process. Within this context of unfolding pressures on migrants, states, and advocates, Italy both complied with the judgment and engaged in policies that specifically undercut the material-evidential basis on which Court jurisdiction was grounded. This dynamic is clear from the summary of the final resolutions available on the Department for the Execution of Judgements Web site and researcher and NGO documentation of high seas policies after 2012, including an extensive report by the Forensic Oceanography (FO) group. According to these sources, Italy suspended the bilateral agreements with Libya that were the bases for interception on the high seas and pushback efforts in 2012.Footnote ¹⁶ At this point, Italy formally disavowed the pushback strategy, in line with the judgment. The final summary for the Committee of Ministers notes that

These guarantees apply when migrants arrive on Italian soil for processing after SAR operations, putting new protections in place, even as other policy shifts and practices undermined efforts to secure migrants human rights at sea. In an analysis of Italian policies post-Hirsi, Annick Pijnenburg has noted that the biggest challenge in search-and-rescue cases is “to convince the Court that Italy exercised jurisdiction” (Reference Pijnenburg2018, 128). Italy severed the ties that bound Italy to Libya as a matter of coordinated migration policy. These ties had created a trackable web of responsibility, laying the groundwork for evidence of coordination, de jure responsibility, and jurisdiction. Post-Hirsi, Italy (and the EU) established a different set of policy connections that they based on aid and assistance, in the guise of material and technical support to the Libyan Coast Guard (Forensic Oceanography 2018). The new policy web includes European Union training of Libyan Coast Guard (LYCG) personnel through EUNAVFOR MED, since 2016, and an Italian Memorandum of Understanding for coordinating in “the development sector to combat illegal immigration, human traffickers and contraband, and on enforcing border security” (Forensic Oceanography 2018, 9–10). Alongside these forms of indirect coordination, Italy also provided resources including ships as well as surveillance and reconnaissance equipment.

It is an open legal question as to whether these various responses, from aid and assistance to indirect coordination, will establish sufficient “responsibility links” within the ECtHR’s case law to implicate Italy and trigger Court jurisdiction (Pijnenburg Reference Pijnenburg2018, 414). As scholars have demonstrated, migrant destination countries often make use of this kind of sovereignty arbitrage by funding and supporting border policing in sending country contexts (De Genova and Peutz Reference De Genova and Peutz2010; Andersson Reference Andersson2014). Italy’s relationship with Libya walks the precise legal and jurisdictional line that Hirsi established. According to the FO report, since 2016, the new policies included extensive training of LYCG personnel, funding for ships, and tracking equipment, often couched in the guise of aid and assistance. The key evidential markers: The Italian ships flying Italian flags and military and police personnel that cinched the Hirsi case are no longer in the picture.

If severing pushback agreements undercut the legal and paper trail for Italian responsibility, new patterns during SAR efforts point to the ways that Italy eliminated material evidence of its involvement in patterned ways (see Forensic Oceanography 2018, 56). These patterns, according to FO researchers, journalists, and NGO and SAR groups, included careful and systematic avoidance of migrants in distress. In analyzing sixteen incidents on the high seas, FO found evidence of coordination between the Italian Maritime Rescue Coordination Center (IMRCC), the Italian Navy, and the Libyan Coast Guard (Forensic Oceanography 2018, 57–58). This coordination happens through an observable but legally ambiguous form of noninvolvement. For example, the IMRCC received information of boats and migrants in distress, transferred the information to the LYCG, and stood by, while “refraining from rescuing the migrants” themselves (58). In these contexts, observers have seen the Italian Navy pull back and wait for LYCG to arrive, even when migrants are in severe distress (69). It is “the transfer of SAR coordination to the LYCG [that] allows these interceptions and pull-backs to be disguised as routine rescue activities” (66). In addition, not only did Italy continue to criminalize SAR NGO activities, but during SAR operations, Italian and Libyan forces prevented NGOs from getting to migrant boats to assist in the rescue (62–64), creating even greater difficulty in documenting and generating evidence for the kind of sovereignty-jurisdiction nexus that was so important in Hirsi.

The question is whether the ECtHR accepts this new pattern as the material and evidential basis for effective control. This test will come with another high-profile application to the Court that was filed in a joint effort by Global Legal Action Network (GLAN) and Association for Juridical Studies on Immigration (ASGI).Footnote ¹⁸ The case involves a tragic encounter between the Libyan Coast Guard, migrants, and a search-and-rescue operation in November 2017 in which at least 20 of 130 migrants died in a botched rescued attempt.Footnote ¹⁹ The facts of the case exemplify Italy’s post-Hirsi policy shift that FO documented: pullbacks, coordination with Libya through indirect involvement, and the prevention of NGOs from assisting the migrants. Reports by independent researchers and NGOs indicate that the migrants died when the Libyan Coast Guard interfered with rescue attempts by Sea Watch, a small search-and-rescue NGO working off Italian waters. Survivors and the parents of two children who died in the botched rescue, represented by the GLAN and ASGI, allege violations of the same ECHR protections that were claimed in Hirsi Jamaa: article 2 (right to life), article 3 (prohibition of torture and inhumane or degrading treatment), and article 4 (prohibition of collective expulsions) of Protocol 4.Footnote ²⁰ In this case, the applicants hew closely to the Hirsi Jamaa precedent. With Italy hampering the work of NGOs, establishing an evidentiary record for an even more subtle set of practices and policies will be challenging. Migrant advocates are attempting to stretch the blue tack of ECtHR jurisdictional authority established in Hirsi Jamaa. Whether it is stretched to the breaking point remains to be seen.Footnote ²¹

STATE POWER, ILLEGIBILITY, AND HUMAN RIGHTS

Migration cases demonstrate the limits of human rights law to respond to bordering practices, particularly in territorially ambiguous spaces. Except for rare cases that raise explicit legal questions about extraterritorial jurisdiction,Footnote ²² limits to the scope of the Convention are most explicit in instances of such migration. Migrant human rights cases raise the fundamental question of who is responsible, because people on the move are often caught in ambiguous or overlapping jurisdictions. This creates what legal anthropologist Jeffery Kahn has called “geographies of discretion” (Kahn Reference Kahn2017). The 2017 tragedy highlights how vulnerable and contingent rights protections can be to state actions that exploit the gaps within the legal framework itself.

As I have shown here, establishing national sovereignty (such as effective control) and legal jurisdiction rises and falls with the evidential record that different actors can bring to bear. States and courts may invoke or deny state sovereignty and responsibility by framing and reframing the material circumstances of a case. In the process, states experiment with this sovereignty-jurisdiction-evidence nexus to game the legibility of particular bordering practices.

Hirsi makes evident two theories of sovereignty in the ECtHR’s approach to migration, as well as the evidential patterns that each requires in order to be legally authoritative.Footnote ²³ On one hand, sovereignty is highly territorialized. As Marie-Bénédicte Dembour (Reference Dembour2015) has argued, the ECtHR jurisprudence has generally approached questions of migrant rights through deference to nationally defined categories of belonging. This privileging of nation-state categories of belonging undercuts migrant claims as rights-bearing subjects. This tension between fundamental rights and nation-state sovereignty produces the migrant as always “alien” (Dembour Reference Dembour2015). In this sense, the Convention system, like other human rights systems, shores up a system of territorial nation-states as the unit of internationalist legal governance. When state power is territorialized, the “recognition of bodies as inside or outside territory is legally consequential” (Volpp Reference Volpp2012, 2).

At the same time, Court case law deterritorializes national sovereignty through the category of effective control. The applicants in Hirsi argued that sovereignty is a relational and situated exercise of power grounded in specific interactions. Indeed, it is this understanding of Italy’s exercise of state power that the Court foregrounded in ruling that there was a violation. At issue is not whether a migrant is deserving of protections tout court, but rather the material question of how the law defines state power and responsibility in nonplaces using a legal vocabulary originally grounded in a system of territorial sovereignty. Anthropologist Marc Augé (Reference Augé1992) coined the term “nonplaces” to refer to spaces of transit and transience. For Augé, such sites are defined by the hypermobility and anonymity of way stations for people on the move: places that are somewhere and nowhere amid global flows of people, ideas, goods, and the like. In the context of migration, such nonplaces—points of transit and transience—take on particular legal significance. Open seas, border fences, and similar spaces are nonplaces because they possess a surfeit of possible legal meaning. They are super-loaded with the possible links that trigger rights, responsibilities, and jurisdiction. This means Court authority and jurisdiction are a matter of marshaling material evidence in relationship to particular theories of sovereignty in order to make rights violations legally legible. These relationships are grounded in evidential markers (of practices, of effective control) that trigger both Court jurisdiction and corresponding rights obligations.

The ECtHR’s two theories of sovereignty reflect its encounter with state power. State power relies not only on the exercise of legitimate violence, pace Weber, but on the obfuscation of the boundary between legitimate and illegitimate violence (Das Reference Das2006). Anthropologist Veena Das suggests that “as a rational entity, the state is present in the structure of rules and regulations embodied in the law as well as in the institutions for its implementation” (162). Yet, she argues, state power also is derived from the production of confusion. This “magic” of the state is central to understanding how state power suffuses and shapes everyday practice: power is derived from “an oscillation between the rational and the magical” (162). Her ethnographic examples demonstrate how victims of state-condoned violence in India must appeal to that same state for justice and recompense. Victims of violence are haunted by the potential of state terror, which emanates from the rational state but cannot be contained by it. The different expressions of power leave ordinary people struggling to interpret the boundaries between rational rule and excess violence, legality and illegality. Illegibility is both the experience and mode of power of this “magic” of the state.

It is not only from the perspective of local populations that the relationship between law and state violence can be illegible. Scholars of human rights will recognize this uneasy coexistence of rule-bound codes of conduct and the excesses of state violence. Doctrinal concepts such as proportionality, balancing, and margin of appreciation govern the extent to which state violation of rights is legitimate within the eyes of international human rights law. Working out this relationship is precisely the task of an international body like the ECtHR: The Court must determine whether the evidence before it embodies the rational or magic state, the legal or illegal expression of power. In this sense, the work of a judgment is to make legible and actionable fundamentally confusing and messy situations on the ground.

As the ECtHR works out the limits of the relationship between legal and illegal expressions of power, it teaches state actors how to comply with the Convention and applicants how to appeal to the law through the language of rights. Yet even as some actors, such as litigators, judges, or advocates, try to interpret power, policy makers or police can also produce illegibility or legal confusion. The learning process goes both ways: pedagogy and counterpedagogy. If the ECtHR lays out the legal limits of state sovereignty, it also points to the more ambiguous zones of state power outside the ambit of its jurisdiction. A compliance framework does not capture such state responses because they oscillate between rule-bound responses and the production of zones of unintelligibility beyond the reach of the Court.

The emergence of nonplaces as legal jurisdictions creates real challenges for securing human rights for migrants in transit. And as in Hirsi, the legal issue comes down to the fact-intensive labor of establishing a nonplace within the rubric of a legal system locked into assumptions about nationally and territorially bound units of nation-state sovereignty. In this context, the production of facts and evidence is shaped not only by state power but also by the framing theories of sovereignty that different legal actors bring to bear on the case. Legal facts, as Lawrence Rosen has argued, are not pregiven (Reference Rosen2006). They are ways of representing relationships in the world through legally defined parameters and agreed upon conventions. In this way, “each legal system must address its goals and its construction of the believable simultaneously. Whether skeletized or fleshed out, a society’s legal process will, then, be characterized by its way of creating categories of the knowable and relating them to the ways in which facts are constructed in the culture at large” (69–70). International legal systems and courts also participate in this cultural production of the believable. Nonplaces become states and states become responsible through the actions of state agents: border guards, maritime search-and-rescue workers, the Coast Guard. The intersection of material practices of truth-making and legal theories of sovereignty sets parameters through which this legal contest over migrant human rights takes place.

Sovereignty is thus an emergent and evidential game with life-or-death stakes, as different actors try to fix jurisdiction by determining where and what kind of national space is in play. Paradoxically, Italy shores up room for discretion and state exercise of power by displacing direct effective control to third parties. In this context, borders are the external limit that both protect and enact sovereignty over the territory of the nation-state. An ambiguous border thus becomes an indeterminate zone, a space of death, exception, and “rightlessness” (De Leon Reference De Leon2015; Paik Reference Paik2016). Sovereignty in this context is a kind of zero-sum game. It is enacted through its territorialization, and the border zone remains outside the limits of law. The Hirsi decision hinges on the relationship between borders and negative state sovereignty.

CONCLUSION: UNINTENDED CONSEQUENCES OF JUDICIALIZED POLITICS

This article has argued that national sovereignty and Court jurisdiction are constituted not only within case law, but also within the material circumstances that give rise to the “evidence” of nation-state action and presence. It is precisely by using the legal reasoning of the Court and the architectures of the execution process that nation-states have learned to expose and inhabit these spaces of negative sovereignty and nonplace jurisdiction. In an ironic twist, respondent states may retrench national sovereignty by effectively using the limits of legal categories—jurisdiction, subsidiarity, rules of evidence—and the complex illegibility of material practice.

My analysis points to the ways that European states can abide by legal obligations and norms established by the ECtHR while also adopting practices that push migrant rights outside the ECtHR’s jurisdiction. In response to the Hirsi decision, the Italian government sought to comply with the rule of law and the judgment execution process. Italy’s pullback strategy is a story of resistance to migrant human rights. But it is resistance that is strongly shaped by the limits and possibilities of sovereignty as they are laid out by the Convention’s legal apparatus itself. In other words, if this were a case merely of Italy’s refusal to engage with human rights and the rule of law, especially following the electoral turn to anti-immigrant and rightist politics, this would be a more straightforward story. What seems to be happening, however, is the attempt to engage a ruling by circumventing the spirit of the law in following its letter to the logical conclusion. The Court may find, down the road, that such proxy moves and pullback strategies defy human rights norms. But in the meantime, states learn to experiment with new forms of repression and policing within a judicialized sphere of action.

These more subtle forms of engagement with the Convention system are important considerations for strategic litigators and advocates who set their sights on Strasbourg. Increasingly, human rights advocates and NGOs have turned to judicial institutions in their pursuit of justice for migrants and other vulnerable populations (Kawar Reference Kawar2011, Reference Kawar2015). This broader judicialization of politics means that legal institutions are increasingly important and contested sites for the terms and conditions of human rights in practice (Couso, Huneeus, and Sieder Reference Couso, Huneeus and Sieder2010). As civil society actors have turned to international courts to hold states accountable, it is important to consider the long-term and unintended consequences. NGOs have learned to use international venues to generate responses to domestic human rights concerns and pressure recalcitrant states to comply with international human rights norms (Cichowski Reference Cichowski2016). Yet, states are also using international venues to opposite effect: Ironically, they can mobilize international supervisory bodies to shore up national discretion over the use of human rights protections. This is true even when violations are found.

Counterpedagogies thus point to a critical new phase in this transnational scaling of human rights advocacy through international legal institutions. If NGOs paved the way for new and innovative advocacy strategies in a globalizing context, we must now ask how states learned to use international institutions to play sovereignty games. Judgments become the site by which advocates push the boundaries of legal authority and jurisdiction in human rights. But execution of those judgments also provides spaces for state actors to learn to exercise power in the negative spaces of ECtHR jurisdiction. In turn, experiments in sovereignty and bordering on the ground will open up the possibility that the Court hears new cases that may shift the legal requirements and evidentiary basis for establishing sovereignty and responsibility.

It remains to be seen whether the Court is consistent in its treatment of jurisdiction and sovereignty on the high seas. It is possible that Italy, Greece, and other countries with a large influx of asylum seekers and refugees will continue to engage in pullback deals with non-Council countries. These cases will stretch the limits of the Court’s reasoning in establishing effective control and the kind of situational jurisdiction of the cases discussed here. Relatedly, Council of Europe countries may continue to block or criminalize NGOs and advocacy groups involved in search and rescue as these are groups that provide the main evidentiary basis for sovereignty in practice. A more processual understanding of sovereignty requires evidence that establishes sovereignty as a legal fact.

I offer an extended account of the ECtHR and the spaces for power and negotiation that it makes possible. I have hoped to show that the rule of law in practice does not always produce clarity. It can also generate illegibility that masks state violence and power. In my conversation with the human rights litigator who thought it was only a matter of time before a state would beat the NGOs at the jurisdictional arbitrage employed in the Hirsi Jamaa case, I asked whether this kind of advocacy was still worth it. Given the possible negative consequences, should advocates continue to try push the limits of ECtHR jurisdiction? Sure, he grudgingly agreed. “If you drive a truck at the wall, the Court has to absorb the kinetic energy in other ways.” It seemed like an apt metaphor for engaging a massive human rights bureaucracy that at times gives and at other moments takes away. Human rights litigation is a blunt but powerful instrument that creates energy, ripple effects that might be converted into other strategies and forms of impact. Implicit in the metaphor, of course, was the question of who, upon the impact of collision, would get hurt. Pushing jurisdiction in one case might mean the foreclosing of human rights protections in countless others. Given the evidence of “policy mobilities” and shared practices in dealing with migration in Europe, it is possible that one instance of counterpedagogical practice may give rise to others (Peck and Theodore Reference Peck and Theodore2015).Footnote ²⁴ The criminalization of NGOs providing solidarity, services, and documentation on the high seas and elsewhere is not an isolated problem, and Hirsi only opened the doors for new cases. It is this struggle over sovereignty and jurisdiction, as much as the content of case law itself, that will determine the extent of migrant human rights in Europe for years to come.