Countdown to Chișinău: The Risk of Politicising the ECHR over Migration

It is ironic that Ministers of Justice of the 46 Council of Europe (CoE) member states convened on International Human Rights Day to discuss how they might reduce the scope of their obligations under the European Convention on Human Rights (ECHR). Rather than a much-needed discussion about the effectiveness of the system, for the first time in the history of the CoE, a group of 27 states issued a Joint Statement proposing to diminish the rights of a particular cohort of the population – migrants, broadly conceived – framed as a matter of safeguarding national security and protecting democracy.

The meeting launched an intergovernmental process which will culminate in a ministerial meeting in May 2026, but for some capitals the outcome seems predetermined: to restrict certain migrants’ rights and empower states to pursue even more restrictive measures. Whether states will approach the coming months in the inclusive and evidence-based manner as has been advised (also here and here) remains to be seen, but there are significant risks which require immediate attention to avoid a slippery slope. 

Below, we outline what happened on 10 December in Strasbourg, why it matters and what governments should consider as they embark on what could become a one-way journey with significant consequences far beyond the issue of migration.

What happened on 10 December?

The meeting was a response to a letter issued in May 2025 by nine states led by Denmark and Italy calling for an “open minded conversation” about whether the European Court of Human Rights (ECtHR) has gone “too far” and protected the “wrong people” in its interpretation of the ECHR in migration cases. As to who are the “wrong people”, the Joint Statement focuses principally on foreign criminals, irregular migrants and the issue of instrumentalised migration, but also refers to asylum procedures and migration management in general. The implication was that states’ public policy choices in the migration context are unduly constrained by the ECtHR – a highly contestable assertion. The intervening period has seen months of shuttle diplomacy to rally political support for the spirit of the nine, outside established CoE frameworks. However, in an effort to salvage the integrity of the CoE’s intergovernmental systems, the Secretary General (SG) convened the informal Ministerial meeting to bring the conversation back into the appropriate forum: the Committee of Ministers (CM). 

The outcome was a unanimous decision to negotiate a political declaration on the ECHR and migration, framed in the context of national security, and to develop a recommendation on deterring and fighting the smuggling of migrants. The political declaration will now be shuttled through the CM’s Steering Committee for Human Rights (CDDH) for adoption at the next formal session of the CM in Chișinău in May 2026. 

Additionally, the SG was mandated to engage in international discussions on migration and report back by the end of 2026, notably six months after the political declaration will have been adopted. The SG subsequently stressed the unity of member states, despite the dark cloud of disunity looming overhead. 

Twenty-seven countries, 19 of them EU member states, issued a Joint Statement pre-empting the unanimous statement (and, simultaneously, contradicting their own support for universal human rights protection at the UN) by overtly seeking to constrain rights in the migration context. Notably, France, Germany, Spain and Türkiye were not among the signatories, despite these four countries alone hosting about 50% of all refugees, asylum seekers, and people under temporary protection in Europe. The French Ambassador described the move by the 27 as “insidious”. 

The Joint Statement contains five propositions which are pitched as “imperative to ensure that the Convention framework is fit to address today’s challenges”. 

Article 8 and the expulsion of foreign national offenders 

The first concerns the expulsion of foreign nationals convicted of serious crimes and the correct balance to be struck under Article 8 ECHR (the right to private and family life) in cases where they have acquired ties to their host country. The statement proposes that the balance be “adjusted so that more weight is put on the nature and seriousness of the offence committed and less weight is put on the foreign criminal’s social, cultural, and family ties”. It is uncontentious to say that Article 8 permits a  balancing exercise, and the ECtHR has developed clear and comprehensive criteria for assessing the proportionality of expulsion, including the nature and seriousness of the offence committed. Yet in asserting the need for a rebalancing, the statement takes no account of the way in which the Court has already become increasingly deferential to national decision making in cases concerning the expulsion of settled migrants who have committed crimes, as long as domestic authorities have performed the balancing exercise conscientiously. States such as the UK and Denmark have accorded progressively greater weight to the public interest without their laws or decisions being found in violation of Article 8, except in rare instances. 

A concerning indication of the states’ intentions is that the Joint Statement says 

“The purpose of such a rebalancing is to ensure that we no longer see instances where foreigners convicted of serious crime … cannot be expelled” (emphasis added). 

The removal of any balancing exercise would go against fundamental fair trial principles and potentially other international standards under the Refugee Convention and the Convention against Torture. 

“Constraining” the scope of inhuman and degrading treatment 

The second proposition is that:

The scope of ‘inhuman and degrading treatment’ under Article 3, which is an absolute right, should be constrained to the most serious issues in a manner which does not prevent State Parties from taking proportionate decisions on the expulsion of foreign criminals, or in removal or extradition cases, including in cases raising issues concerning healthcare and prison conditions. 

This proposal to dilute or displace the principle of non-refoulement ‘touches the very core of the Convention’. There is an alarming disjuncture between the acknowledgement that the prohibition of inhuman and degrading treatment is absolute, permitting no derogation or balancing, and the call for states to be able to take “proportionate” decisions in expulsion or extradition cases. 

The proposal purports to maintain the absoluteness of Article 3 by narrowing its scope, i.e. by suggesting that certain forms of ill-treatment that are established as inhuman or degrading should no longer be considered as prohibited in expulsion and extradition cases. Two examples are given; first, “healthcare” cases, concerning the removal of seriously ill individuals (the Court’s threshold for finding a violation being cases where the individual would, if expelled, be “exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”) and secondly, cases where an individual facing extradition would run a real risk of ill-treatment in detention in the destination state. 

Moreover, the phrase “including in cases raising issues concerning healthcare and prison conditions” (emphasis added) suggests that these examples are not meant to be exhaustive and that other forms of inhuman or degrading treatment, such as facing a real risk of violence or of being subject to the death penalty in the destination state, could in future be removed from the scope of Article 3. This leaves the proposition dangerously open-ended and, if implemented, would create uncertainty both as to the threshold for determining treatment falling within the scope of inhuman or degrading treatment and the categories of people protected from it. 

The proposition, as for Article 8, does not acknowledge the already restrictive approach of the ECtHR in expulsion and extradition cases. Nor does it take account of the possibility of host states obtaining diplomatic assurances from destination states as a means of removing the risk of ill-treatment to allow extradition to proceed.

While it is legitimate to discuss the detailed application of Article 3 in expulsion cases in a manner that respects the Court’s independence and interpretive authority (see para 38), we fear that the approach adopted in the Joint Statement crosses a Rubicon. It muddies the waters about the severity of inhuman or degrading treatment, and the absoluteness of its prohibition, in a way that could be exploited by states acting in bad faith within and beyond Europe, not only in expulsion cases, but also within their own jurisdictions. No wonder, then, that the Commissioner for Human Rights Michael O’Flaherty describes such discourse that “throws … into question” the principle of non-refoulement as “unacceptable”. 

Cooperation with third countries 

The third proposition is that states seeking “innovative and durable” solutions to address irregular migration “should not be prevented from entering into cooperation with third countries regarding asylum and return procedures, once the human rights of irregular migrants are preserved”. This refers to the externalisation of asylum and returns procedures and / or border management. The ECtHR does not in principle preclude such policies as long as non-refoulement is upheld, including the duty to assess the risk of denial of access to asylum proceedings in a presumed safe third country. 

The statement says that the rights of irregular migrants will be “preserved” and it could therefore be read as compliant with states’ obligations under the ECHR. However, in practice its effects would have to be determined alongside the rest of the statement, in particular the proposal to “constrain” the scope of inhuman or degrading treatment. 

The need for efficient justice

The fourth proposition is that states “should not be prevented from applying clear rules and processes to facilitate timely decisions under Article 8 that can then be enforced, and which reflect the appropriate balance between the individual’s rights and the public interest”. Again, this is apparently uncontentious: improving the quality and efficiency of justice is a key function of the Convention system and striking an appropriate balance case-by-case is the desired outcome. Yet the statement can be construed as ambiguous – or even as bad faith – in that it implies that the ECHR or the Court are significant obstacles to efficient justice. To sustain such a proposition requires data and evidence that are missing from this debate, in part because relevant data is not always gathered by national authorities. At national level, and when examining the Court’s case law in the round, existing data suggests that the purported impact of the ECHR on immigration decisions has generally been greatly overstated.

Instrumentalisation of migration

Finally, the statement calls for recognition of the “extremely sensitive geopolitical context” and the need to ensure national security and public safety in cases where human rights are instrumentalised by “hostile regimes and individual applicants with ulterior motives”.

This reflects the framing used by Poland, Latvia and Lithuania in cases pending before the Grand Chamber concerning pushbacks and other ill-treatment of asylum seekers on the Belarus border.  The three governments argue that the Court should apply the ECHR in a context-specific manner given the actions of Belarus in facilitating irregular migration through inducements and coercion to pressurise its neighbours. 

No evidence has been adduced to suggest that applicants in these or other pushback cases have “ulterior motives” and research indicates that people seeking asylum in Poland, Latvia and Lithuania are frequently from nationalities with relatively high asylum recognition rates. Further, according to the Commissioner for Human Rights, the asserted threat to national security is “unconvincing” (and here one can note the comparatively low numbers of asylum seekers in the states concerned). As Krommendijk and Möller venture, any effective response must target the state actors engaging in instrumentalisation (as is currently being pursued by Lithuania at the ICJ) and not the individuals being instrumentalised. 

The Joint Statement is premature in its inference that the Court is not sufficiently mindful of the geopolitical context, since the pending cases are the first time it has considered instrumentalised migration. Worse still, this may be an attempt to influence the Court in active proceedings. And, as with the Article 3 and Article 8 cases discussed above, it appears that state pressure has already begun to shift the Court towards a more deferential stance. 

Invoking the living instrument principle to justify regression

The Joint Statement refers to the Court’s principles of interpretation that the 27 states view as relevant in the irregular migration context. What stands out is the reference to the living instrument doctrine, with the states urging account to be taken of “developments, both factual and legal, that have evolved significantly in recent decades and were unforeseen at the time the Convention was drafted”. This is a remarkable instance of the living instrument doctrine being invoked in order to call for regression in human rights protection – and a potentially significant regression for entire categories of people at that. The principle that the ECHR should be interpreted dynamically has been applied over decades to ensure the “further realisation” of rights, an objective set out in the Convention, on matters ranging from the rights of LGBTQ+ people to protection from intrusive digital technologies. The letter of nine states in May accused the Court of having “extended the scope of the Convention too far as compared with the original intentions behind the Convention”. 

There is thus a disjuncture at the heart of the 27 states’ position, first challenging the very principle of dynamic interpretation, only to invoke it in defence of a regressive stance. The position can also be viewed as ahistorical: the drafters of the ECHR had lived through the rise of extremist politics, the “barbarous hierarchisation of rights holders”, and mass movements of refugees, and it was this experience that led them to create the Convention.

What should states now consider?

Now that the die has been cast, the objective must be to avoid a situation where a political declaration – purposefully or accidentally – undermines fundamental principles of international law, including the independence of the judiciary, and amplifies an atmosphere of hostility towards migrants. It is important to ask whether seeking to diminish the rights of a specific group and decisively influence the adjudicatory function of the European Court of Human Rights risks:

i) breaching states’ duties under international law, the object and purpose of the the CoE Statute and the ECHR, in particular Article 32 regarding the Court’s interpretive authority;

ii) being incompatible with Heads of State and Government commitments (Reykjavik, 2023);

iii) causing contagion across other normative or regulatory frameworks, now or in the future;

iv) undermining the credibility of European states in their human rights and rule of law advocacy in foreign policy.

Political engagement with the ECHR system is essential (see here and here) and the unanimous decision to convene an intergovernmental process is therefore positive. It must, however, be guided by principles that would mitigate the risks identified above.

Five principles that should underpin the CDDH process

First, the process must be evidence-based and transparent. States should begin by specifying what problem they seek to remedy. The Joint Statement makes sweeping claims – that the ECtHR hampers border control, that migration increases criminality, that some human rights applicants have ulterior motives – without substantiating these assertions (and while ignoring evidence to the contrary). It takes no account of the already restrictive approach by the Court in migration cases. The political declaration should be accompanied by data and case law analysis that provides a public evidence base both for the perceived problems and the proposed solutions.

Secondly, the process should be inclusive and participatory. The expertise available within the CDDH Secretariat should be complemented by the involvement of National Human Rights Institutions (via ENNHRI), civil society, academia and other interested parties. 

Thirdly, any political declaration should re-articulate and demonstrate commitment to fundamental principles such as those contained in the Reykjavik Declaration, including judicial independence, which is at the heart of the rule of law. Nothing should undermine the independence of the ECtHR during future discussions. 

Fourthly, the process should be non-regressive. To misuse the process to unwind normative progress under the guise of the living instrument doctrine would be incompatible with Article 53 of the ECHR (the “floor, not ceiling” clause).

Fifthly, states should adopt a “do no harm” approach. The Joint Statement wades into sensitive areas of law with loose and open-ended political language, which could give rise to increased hostility to refugees and people seeking asylum. Moreover, it cannot be assumed that this is a sui generis, once-off situation: a potential unintended consequence could be to permanently diminish human rights protections, not only for migrants and marginalised groups, but for everyone.  

Conclusion 

The Joint Statement implies that the Court’s interpretation of the ECHR is at the core of states’ difficulties in the migration context. Yet, migration cases represent a tiny fraction of the applications pending before the European Court of Human Rights – 922 out of almost 60,000, most of which are likely to be found inadmissible. Additionally, there is no uniform migration experience across European states, but rather states experience a variety of public policy challenges. Thus, each state needs to examine what problem, if any, it faces. Is the problem the Court’s interpretation of the ECHR, or rather domestic factors such as resource constraints, administrative delays, or judicial interpretations of the Convention – or other factors such as the lack of effective returns agreements? In reality, governments may find that they have more discretion to adjust their immigration policies and decisions than they realise. If, after triaging issues at the national level, states still wish to take action, they should do so with precision rather than a “smash-and-grab” performative intervention. For instance, states could consider developing an active domestic litigation strategy or increase dialogue between the ECtHR and national superior courts to maximise jurisprudential coherence. 

The political logic of the 27 states, of “weakening the Convention system to save the system”, is unconvincing. It concedes a swathe of territory to radical right parties in framing the ECHR and the ECtHR as existentially problematic in respect of border control, but will not satisfy their constituencies. The temptation to lay the blame on the Court risks backfiring, since performative gestures will not change anything on the ground, but only further reinforce radical right framing without having anything practical to show for it. As the Commissioner for Human Rights ventures, “[f]or every inch yielded, there’s going to be another inch demanded”. Autocratic regimes are on the rise and will welcome any indication that universal protections can be casually weakened. In a context of threats to the rule of law-based international order, governments must avoid sending the message that if something is politically difficult in Europe, they simply lower standards to make their lives easier. To do so is to risk doing permanent damage to the ECHR system for the sake of uncertain outcomes in respect of immigration control.  

Process-wise, time is short. The CDDH must report back before 22 March 2026, which leaves barely 10 weeks to complete the technical work before the CM negotiates the final declaration for adoption in Chișinău in May 2026. The clock is ticking, then, on efforts to transform states’ imprecise and divergent positions into a more broadly acceptable political declaration. Such a declaration would not be legally-binding, but will undoubtedly be closely considered by the Court. It would not require unanimity (for which the Athens Declaration is a precedent), but its authority would be significantly diminished if it does not have consensus and particularly if it is not supported by states like France, Germany, Spain and Turkey which host most of the refugees in Europe.