and pushbacks at the Moroccan-Spanish border: from illegal State practice to endorsement by the European Court of Human Rights. A turn of events “made in Spain”

Abstract

The jurisprudential U-turn in the case of N.D. and N.T. v. Spain was heavily criticised, among other things, for its lack of predictability. Indeed, the ECtHR was accused in this case of inventing all sorts of new limitations to Article 4 of Protocol No. 4. However, as I argue in this paper, these new limitations may not have been invented by the ECtHR, but rather drawn from Spain—the first State in the Council of Europe to implement and to legalise land pushbacks, and also the one which convinced the ECtHR to create an exception to Article 4 of Protocol No. 4. Far from what may seem at first sight, this is a crucial—and problematic—difference. Indeed, it would suggest an atypical “bottom-up” influence from the State level to the ECtHR which would raise, in turn, a series of substantive and methodological issues with regards to the ECHR. This is an avenue worth exploring because it may cast a new light on the case of N.D. and N.T. and help fully grasp the real extent of the Grand Chamber’s U-turn. Therefore, the question explored is structured in three parts: Part I outlines the relevant Spanish framework; Part II discusses the bottom-up influence of this framework on N.D. and N.T. from a substantive point of view; Part III approaches it from a methodological point of view. The paper concludes with some final remarks on this influence from below.