@article{2026:bcker:beyond_der,
title = {Beyond Derogation: Context-Driven Interpretation of Migrants’ Rights as a Novel Justification under the ECHR},
year = {2026},
note = {This article examines how European states have responded to the
so-called ‘instrumentalisation’ of migration at the
Belarus-European Union border by advancing a novel, context-driven
justification for restricting migrants’ rights under the European
Court of Human Rights. Rather than formally derogating under Art. 15
European Convention on Human Rights (ECHR), Poland, Latvia, and
Lithuania contend that exceptional geopolitical circumstances justify
balancing national security against human rights obligations. The
article analyses whether such reasoning – which, if accepted by the
Court, could extend to other alleged crisis situations – can be
grounded in existing ECHR doctrines, particularly the Hassan ruling
and the living instrument doctrine, and finds that neither supports
this approach. Accepting an unwritten, context-based justification
would erode the Convention’s limitation and derogation framework,
weaken legal safeguards, and enable states to dilute human rights
protection under the guise of necessity.},
journal = {Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law},
pages = {633--662},
author = {Bücker, Johanna and Möller, Lina},
volume = {86},
number = {2}
}