This seminar is organised by the International Migration Institute, an Oxford Martin School Institute and co-hosted with Border Criminologies and the Oxford Human Rights Hub

Speaker: Professor Marie-Bénédicte Dembour, Professor of Law and Anthropology, University of Brighton

Summary: In her book, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (OUP, 2015), revealed a subtle bias operating against the applicant in much of the Strasbourg migrant case law. However, the book did not examine the case law on human trafficking. So, do its findings also apply to this case law?

In the leading cases of Siliadin v. France and Rantsev c. Cyprus and Russia, the European Court of Human Rights did not hesitate to apply the prohibition of slavery and servitude contained in Article 4 ECHR to situations of human trafficking. These well-known judgments of 2005 and 2010 saw the Court reiterate the importance of making safeguards practical and effective. In order to achieve this, the Court stressed that the state must protect individuals from infringements of Article 4 by other individuals. This led it to find a series of positive obligations that are binding on the state.

This approach seems most promising for the protection of trafficked victims. However, a less positive picture emerges, once subsequent struck out cases and decisions of inadmissibility are taken into account. The originally flexible framework that emerged from Rantsev, which could have been expanded further, appears to have become quickly ossified. As a result, victims of trafficking who fear being returned to Nigeria where they had been made to undertake juju ceremonies prior to their journey to Europe are, for example, left unassisted. Too often, the applicant is not believed by the Court, whilst state mistakes or oversight are not sanctioned. The Court’s reasoning is sometimes weak. There are also unfortunate procedural decisions on its part that leave trafficking practices unaddressed.

In the last analysis, it can therefore be said that the recent human trafficking Strasbourg case law displays somewhat of a pro-state bias, despite three additional verdicts of violation of Article 4 having been adopted since Siliadin and Rantsev.

About the speaker

Marie-Bénédicte Dembour is Professor of Law and Anthropology at the University of Brighton. An accomplished researcher and teacher as well as a passionate advocate for migrants’ human rights, she recently authored When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press, 2015). This original and insightful study has been praised by Françoise Tulkens, former judge and Vice-President of the European Court of Human Rights as ‘an intelligent, lucid and courageous book that takes the debate into new territory'. You can discover its main ideas in 30 short podcasts available on Marie’s blog. As a partner in the recent EU-funded MinAs project, Marie co-authored with Jo Wilding the UK national report ‘Whose Best Interests?’, which explores unaccompanied minors’ rights. The report (2015) is also available on her blog.