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5 - From Dilemmatic to Strategic Adjudication

from Part II

Published online by Cambridge University Press:  03 May 2019

Moritz Baumgärtel
Affiliation:
Universiteit Utrecht, The Netherlands
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Summary

This chapter recounts how adjudication by the European courts displays incoherence, doubt, and ambiguity as they become permanently involved in migration affairs. This, in turn, gives domestic courts and governments the opportunity to adopt their own and often narrower interpretations of the case law, with potentially adverse consequences for the reputation and authority of the European courts in the longer term. Referring to this phenomenon as ‘dilemmatic adjudication’, this chapter proposes an alternative and strategic approach to adjudication that actively anticipates ‘hard cases’ and establishes common guidelines for dealing with the issue across courts and chambers. It further outlines how the concept of ‘vulnerability’ of particular groups, already regularly invoked by the ECtHR, could be built up as a legal principle that enables the courts to develop a progressive and consistent case law. The chapter finally addresses the question of reputational legitimacy of the two courts, arguing that it could be reinforced in this domain: for example, by elevating the status and visibility of post-judgment monitoring mechanisms.
Type
Chapter
Information
Demanding Rights
Europe's Supranational Courts and the Dilemma of Migrant Vulnerability
, pp. 101 - 120
Publisher: Cambridge University Press
Print publication year: 2019

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