Navigating the impasse of strategic litigation at the Melilla border

This paper interrogates how processes of racialisation observed at the EU’s external borders can be replicated within jurisprudence on the lawfulness of collective expulsions. For this, it examines the case of N.D. and N.T. v Spain at the European Court of Human Rights (ECtHR). The sociolegal analysis shows that courtrooms function not only as arenas for contesting violent exclusions, but also constitute spaces shaped by race and colonial legacies themselves. In this case, the own culpable conduct test shifts the responsibility for border violence from the state to the applicants because they came irregularly and as part of a group, allegedly using force. The judgment reflects the impasse reached by strategic litigation in challenging pushbacks at the Spanish-Moroccan border in Melilla before the ECtHR. In response, it led to certain reorientations, including explicit engagements with the role of racialisation processes and colonial continuities in border violence. In addition, it is central to work more closely with migrant-led collectives in devising litigation strategies to support their struggles for freedom of movement, truth, and justice.