Beyond Strasbourg: The Chișinău Declaration in Europe’s Multi-Level Human Rights Architecture

Political declarations are not new to the system established through the European Convention on Human Rights (ECHR). The Chișinău Declaration, recently adopted by the Council of Europe’s Committee of Ministers, nevertheless differs from earlier declarations that primarily addressed institutional questions, subsidiarity and the relationship between Strasbourg and domestic authorities. It engages directly with substantive questions under Articles 3 and 8 ECHR in the sensitive field of migration, articulating expectations concerning Convention obligations and flagging doctrinal questions, such as the scope for the expulsion of certain groups of migrants. These substantive dimensions have understandably attracted considerable scholarly attention and prompted concern and criticism.

The Chișinău Declaration’s novelty extends beyond these substantive dimensions, though. For the first time, a political declaration expressly addresses domestic courts alongside the ECtHR. This move matters. Domestic courts occupy a central position within the Convention system. Yet they also form part of a broader interpretative environment in which Convention rights are interpreted and applied by judicial and quasi-judicial actors operating within and beyond that system. The Chișinău Declaration therefore raises questions not only about its place within Convention interpretation, but also about its wider effects within a multi-level interpretative architecture extending well beyond Strasbourg.

Political Declarations in Convention Interpretation

Whether, and how, political declarations may influence Convention interpretation depends first on their place within the general framework of treaty interpretation. In line with the Vienna Convention on the Law of Treaties, subsequent agreements and subsequent practice are part of treaty interpretation (Article 31(3) VCLT), both reflecting a common understanding of the parties after the conclusion of a treaty. The work of the International Law Commission confirms that the formal requirements for agreements and practice are comparatively low (Draft Conclusions 4, 5, 6). Political declarations are thus in principle capable of expressing such a common understanding. The decisive question, however, is whether treaty parties can be said to have ‘taken a position regarding the interpretation of the treaty’ (Draft Conclusion 6).

The framing of the Chișinău Declaration casts doubt on such qualification. Its substantive provisions largely summarise the existing legal situation (e.g. para 31), describe current legal and factual challenges from the perspective of treaty parties (e.g. para 20), invite clarification on particular issues (e.g. para 26), and refer open-endedly to boundaries set by the Court’s case law (e.g. para 25). Even where the declaration expresses expectations concerning rights interpretation (e.g. para 33), its wording remains procedural and suggestive. Overall, this may indicate where treaty parties seek greater room for manoeuvre, but it cannot readily be said that they thereby ‘express a legal opinion’ regarding the interpretation of the Convention itself.

In this light, the declaration could most plausibly be understood as a supplementary means of interpretation under Article 32 VCLT. This does not render the declaration irrelevant. Supplementary means may become particularly relevant where the ordinary means of interpretation fail to yield an ‘acceptable meaning’. Yet, like interpretative means more generally, they do not necessarily determine interpretative outcomes. Rather, they function as interpretative considerations capable of ‘inform[ing] and perhaps even “nudg[ing]” the European Court of Human Rights (ECtHR) in a certain direction’.

The ECtHR’s practice thus far broadly supports this understanding. Where the Court has engaged with political declarations, it has generally treated them not as independent sources of interpretation, but as materials supporting, contextualising or reinforcing conclusions reached through other interpretative means. In Burmych and Others v Ukraine, political declarations informed the delineation of responsibilities between the Court and the Committee of Ministers (paras 188–193; 212). Elsewhere, they have supported interpretations reached through ordinary interpretative methods (Yüksel Yalcinkaya v Türkiye, para 417) or reinforced arguments concerning the ‘shared responsibility’ of Convention parties (Grzęda v Poland, para 324). More recently, individual judges have invoked political declarations in separate opinions when debating majority decisions in light of the expressed will of the Convention parties (Verein KlimaSeniorinnen Schweiz and Others v Switzerland; Cannavacciuolo and Others v Italy).

Past practice nevertheless provides only limited guidance as to how the Court may approach the Chișinău Declaration. Earlier declarations emerging from the Interlaken process were predominantly concerned with the institutional functioning of the Convention system and the relationship between Strasbourg and domestic authorities. The Chișinău Declaration is different. It engages much more directly with substantive interpretative outcomes (e.g. paras 25; 33). Existing practice therefore cannot predetermine how the Court will respond when political expectations concern the substance rather than the structure of Convention protection. What it does suggest is that political declarations may influence interpretation without determining it and, in doing so, shape the broader interpretative environment within which rights adjudication takes place (see separate opinions in Grzeda v Poland; Muhammad and Muhammad v Romania).

Domestic Courts Newly Confronting Political Declarations

The Chișinău Declaration addresses not only the ECtHR. For the first time, a political declaration expressly addresses domestic courts in their role as guardians of Convention rights (para 29). As a result, the declaration is unlikely to remain confined to Strasbourg. It may increasingly become part of the repertoire of Convention-based argumentation before domestic courts, invoked by governments and litigants alike. Once litigants begin relying on the declaration as evidence of the expectations of Convention parties, domestic courts will increasingly have to engage not only with the declaration itself, but also with Strasbourg’s treatment of it. This adds a new dimension to the domestic adjudication of Convention rights. Domestic courts must now determine both the place of political declarations within domestic rights adjudication and the consequences of that engagement for domestic rights protection.

The Convention has been received into the domestic legal orders of all Convention parties. Domestic courts therefore encounter Convention rights in a different interpretative setting than the ECtHR. The treatment of political declarations by the ECtHR provides important orientation, but cannot simply be transposed into domestic adjudication. Domestic courts must instead determine how political declarations fit within the interpretative framework through which Convention rights are applied in their own legal order. This is ultimately a question of domestic interpretative methodology. The answer will depend on how Convention rights are received within a particular legal order. In Austria, for example, Convention rights form part of domestic constitutional law, requiring courts to determine how political declarations fit within the framework of constitutional interpretation.

The effects of the declaration on domestic rights protection remain to be seen. One point, however, is already clear: even if future Strasbourg jurisprudence were to rely on the Chișinău Declaration in ways that lower the Convention standard, this need not translate into a corresponding lowering of domestic protection. Domestic courts remain responsible for determining the relevance and transferability of Strasbourg jurisprudence in the disputes before them – a judicial task that has long proved complex and, at times, controversial. Moreover, Convention rights do not necessarily exhaust the domestic framework of rights protection. They often operate alongside other domestic fundamental rights guarantees which, as in Austria, may provide stronger protection than the Convention minimum. To the extent that the declaration influences the interpretation of Convention rights, it may reshape an important benchmark for domestic rights adjudication. Yet domestic courts remain free to maintain higher standards of protection on the basis of those autonomous domestic guarantees (Article 53 ECHR). What they will likely have to do, however, as the declaration increasingly enters the vocabulary of domestic litigation, is justify such decisions more explicitly. The consequences of the Chișinău Declaration at the domestic level are thus unlikely to be uniform.

Beyond the Convention System

The interpretative questions raised by the Chișinău Declaration do not end with Strasbourg and the domestic courts of the Convention parties. The European Union (EU) is not yet party to the ECHR and the Court of Justice of the EU (CJEU) can therefore not readily be understood as one of the domestic courts addressed by the declaration. Nevertheless, given the central role played by EU Member States throughout the Chișinău process, the declaration is likely to be invoked in proceedings at the EU level. Together with the Convention’s continuing role within EU fundamental rights law, both through the EU Charter of Fundamental Rights (CFR) and the general principles of EU law, this suggests that the declaration’s implications extend beyond the Convention system.

The declaration’s potential legal relevance within EU law stems primarily from the Convention’s close relationship with the Charter. Through Article 52(3) CFR, corresponding Charter rights must guarantee at least the level of protection afforded by the Convention as interpreted by the ECtHR. The declaration may affect the Convention benchmark informing Charter rights in two ways. First, through the interpretation of the Convention by the CJEU itself. As the Convention remains an international treaty, the declaration would be treated within the general framework of treaty interpretation, thus as a supplementary means. Secondly, the declaration may become relevant through Strasbourg’s future case law. To the extent that the ECtHR incorporates the declaration into its interpretation of Convention rights, that understanding may itself shape the Convention benchmark informing Article 52(3) CFR.

Yet this does not exhaust the matter. The declaration speaks to the interpretation of Convention rights, not Charter rights. Even if it influences the Convention benchmark, it does not automatically follow that the same considerations should shape corresponding Charter rights. As the final interpreter of the Charter, the CJEU must determine whether, and to what extent, such interpretative developments should carry over into the distinct framework of EU fundamental rights law. This becomes particularly significant where future reliance on the Chișinău Declaration would contribute to a lowering of Convention standards. While Article 52(3) CFR establishes a Convention floor, developments within the Convention system do not necessarily dictate corresponding developments under the Charter. Article 53 CFR may therefore reinforce the non-regression logic underlying the EU fundamental rights framework and the continued maintenance of higher levels of protection within EU law.

Increased Expectations on Judicial Reasoning

The Chișinău Declaration engages with substantive interpretative outcomes across multiple levels of rights adjudication. Yet it neither determines the meaning of Convention rights nor legally binds courts to particular interpretative results. Whether the expectations it expresses are embraced, distinguished or ultimately rejected remains a matter for judicial interpretation.

Once introduced into the Convention system, however, the declaration becomes part of a broader interpretative environment extending beyond Strasbourg. Courts across Europe may increasingly be required not only to justify how they interpret rights, but also how they position themselves vis-à-vis the expectations expressed in the declaration itself. Its most immediate effect may therefore be felt less through doctrinal change than through the growing need for courts to explain and defend their interpretative choices within an increasingly contested European human rights space.

Whether this development ultimately strengthens or complicates the judicial protection of rights remains to be seen. More certain is that it places greater expectations on courts across Europe’s interconnected human rights architecture and, with them, a greater burden on judicial reasoning.