From “Original Intentions” to “Unforeseeable Change of Circumstances”: The 2025 Escalation of Pressure Towards the ECtHR

While “[t]oday, Europe faces the perfect storm” that, in the words of the Secretary General, “threatens to undo the peace, stability and hard-won progress the Council of Europe has helped deliver across an entire continent over the past 75 years”, it appears that European States not only forgot that they adopted in 1950 the European Convention on Human Rights (ECHR or “the Convention”) as the “moral compass” to guide them through similar dark times; they are actually turning against it and the “guardian” that they entrusted to remind them of this commitment.

Indeed, the 22nd May 2025 “open letter of the nine” Governments, criticising the Court’s interpretation of the Convention regarding the challenges posed by migration, has triggered wider calls for reforms. The latter culminated, on 10th December 2025, in an informal ministerial meeting, which led to the adoption of conclusions setting in motion initiatives aimed at taking into account their concerns. On the same day, the group of nine, which became twenty-seven, issued a joint statement that clearly anticipates the requests that they will advance in the next phases of the process. 

However, despite the rhetoric of reaffirmation of States’ commitment to the Convention and to the independence of the Court, those developments are rather the manifestation of an ongoing escalation in portraying the Convention and the Court as the main obstacle preventing them from properly addressing the challenges posed by the “instrumentalisation” of migration, migrant smuggling and human trafficking. In so doing, they are inverting the Convention’s foundational role as guardian of rights into a scapegoat for political difficulties.

An Escalation of Pressure on the ECtHR and the Narrative Shift: from “Original Intent” to “Changed Circumstances”

While the content and aims are the same, there are relevant differences between the May letter and the documents issued on 10 December.     

First of all, the support for the need for reforms grew. The May letter was supported by only nine States Parties, but the number of those more critical States rose to twenty-seven in the joint declaration. The inclusion of the UK among these states is particularly ominous given its documented history of ever louder push-back and exit threats, signalling that withdrawal from the Convention system is not merely hypothetical rhetoric but an increasingly tangible possibility should the Court continue delivering judgments these States find politically unpalatable. Moreover, the fact that the ministerial conclusions were adopted by consensus demonstrates that all States Parties agree on the need to do something, although they probably have less radical views. 

Secondly, the tone has changed drastically. The one of the letter was clearly drafted in a confrontational and a-technical manner, by using the first person plural (“we”), and was clearly political, by stressing, as opposed to their commitment to human rights, a “strong sense of commitment to our countries and feel a great responsibility for our societies. While the joint statement of the twenty-seven follows the same rhetoric of “the ECHR is broken here and needs fixing”, the conclusions of the ministerial conference are more diplomatic and procedural, and specifically admitted that the issue must be  dealt with      through the proper institutional channels of the Council of Europe.

The reasons for this need are partly different. In the May letter, States relied on contradictory arguments to justify their position. On the one hand, they argued that it was “necessary to start a discussion about how the international conventions match the challenges that we face today”, thereby implying that they do not agree anymore on some of the obligations they accepted by ratifying the Convention. On the other hand, they considered that, by choosing to protect “the wrong people”, the Court “extended the scope of the Convention too far as compared with the original intentions behind the Convention”, therefore accusing the Court of having overstepped the limits of its interpretative competence.

Neither the conclusions nor the joint statement reiterated the argument of original intentions. Probably, they realised that the drafters were actually guided by universal aspirations: the travaux préparatoir     s show that it was Italy that proposed to change in Article 1 of the Convention     from the expression “citizens” or “persons living in” the States’ territory to “everyone within their jurisdiction”. The drafters specifically recorded in the minutes that “the aim of this amendment is to widen as far as possible the categories of persons who are to benefit by the guarantees contained in the Convention” (reproduced in Schabas’s Commentary, at p. 85). They also probably realised that the developments in the Court’s case     law were not arbitrarily imposed by the Court, but were based on developments in the international legal framework, resolutions and recommendations issued by States in the context of the Council of Europe or other international organizations, and their practice. As such, they were duly justified in the light of the interpretative criteria set out in Article 31 of the Vienna Convention on the Law of Treaties (one of us supported this argument in this paper; of the same opinion, Schmalz).

Therefore, implicitly admitting the fallacy of their arguments, States changed strategy, from correcting previous mistakes, to adapting to new circumstances. This is already evident in the ministerial conclusions, which indicate that the aim of this process is securing “an effective, focused and balanced Convention system” which allows to abide with “ the fundamental responsibility of governments to ensure national security, public safety and the economic well-being of the country, as well as their sovereign right to protect their borders, whilst respecting without discrimination the core values of human rights, democracy and the rule of law, and conscious of the financial challenges encountered by multilateral co-operation on migration issues”. This      is even more clear in the requests advanced in the joint statement. For the twenty-seven     , the “imperative to ensure that the Convention framework is fit to address today’s challenges” can be reached also using       the “living instrument” doctrine. In their view, the latter imposes “taking appropriate account of the developments, both factual and legal, that have evolved significantly in recent decades and were unforeseen at the time the Convention was drafted”. 

This is      the first time that the living instrument doctrine is invoked to justify regressive outcomes. The main requests of the twenty-seven are clear. On the one hand, the (already restrictive) balancing requested by Article 8 between the social, cultural and family ties of a foreign convicted of criminal offences and the risks for public safety should put more weight on the nature and seriousness of the offence, and ensure that “we no longer see instances where foreigners convicted of serious crime […] cannot be expelled”. On the other hand, and while admitting that the prohibition of “inhuman and degrading treatment” in Article 3 is absolute, they consider that this notion must be “constrained to the most serious issues” and “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”. 

States were also allusive on the possibility of taking more radical measures if the Court does not conform to their interpretative demands (although it has been observed that the Court might be doing it already). In particular, the joint statement used almost exactly the wording and requirements of the rebus sic stantibus clause, as codified in Article 62 of the Vienna Convention on the Law of Treaties, concerning termination or withdrawal in case of fundamental changes of circumstances. Indeed, the joint statement stipulates that “[t]hese complex and disruptive challenges – that our societies face and which test the capacity of our current framework – were either unforeseen at the time the convention system and the Convention were drafted or have evolved significantly since then”. The overlap of this sentence with the language of Article 62 is so substantial that it might not be a coincidence, but rather an allusion to the measures available – treaty renegotiations or even withdrawal – if States’ demands are not met. 

A similar allusion was somehow made by the Secretary General at the press conference after the ministerial meeting, when asked whether States will stop at the political declaration or are rather considering more radical initiatives, such as changing the Convention. He replied that what was started was      a process, and like other processes, one cannot predict the outcome in advance. He stressed, however, that states are committed to guaranteeing results that meet their needs.

Strategic Pressure? The Wider Context Behind the Informal Ministerial Conference Conclusions

When considering the timing of these two documents vis-à-vis three pending key Grand Chamber cases relating to push-backs at the EU-Belarus border (C.O.C.G. and Others v. Lithuania, H.M.M. and Others v. Latvia, and R.A. and Others v. Poland), one has to wonder whether the participating States are driving      a collective, and escalating a strategic pressure campaign to influence the      outcome of these cases      to reshape the jurisprudence on rights at the border once and for all. Since 2021, in response to Belarus’s deliberate facilitation and violent forcing of migrants and asylum seekers across its borders as a geopolitical tool to pressure the EU, Lithuania, Latvia, and Poland implemented increasingly drastic pushback measures, forcibly returning migrants to Belarusian territory without individual assessments of their circumstances. The three pending Grand Chamber cases concern whether these States’ violent pushbacks and denials of access to asylum procedures violated fundamental Convention rights, including the non-refoulement principle (Article 3), the prohibition of collective expulsion (Article 4 of Protocol 4), and the right to an effective remedy (Article 13), in a context where the respondent states invoke “instrumentalization” by Belarus to justify their actions (see also Baranovska). 

In the fall of 2024, the Court relinquished jurisdiction to the Grand Chamber in all three cases, highlighting their broader implications for the interpretation of these core Convention rights. The subsequent hearings in early 2025 revealed a coordinated effort by Lithuania, Latvia, and Poland to discredit the applicants as undeserving and dishonest, while urging the Court to profoundly “adjust” its non-refoulement jurisprudence to permit exceptions to its non-derogable character when “instrumentalization” of migrants is alleged.This      at times disturbing to watch      courtroom strategy during the Grand Chamber hearings presaged the wider political campaign that followed: all three respondent States signed the May 2025 letter and participated in the December conference framework, with both documents directly echoing the legal arguments advanced during the hearings. As Dana Schmalz observed in her analysis of the open letter initiated by Denmark and Italy, the May letter already “openly calls for a politically motivated restrictive interpretation of migrants’ rights and, in its assumptions, breaks with the spirit of universality of human rights     ”. Just to top it off, in June 2025, the government of Lithuania lodged a case against Belarus at the International Court of Justice alleging Belarus is violating the United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air, emphasizing the “instrumentalisation” frame that was already visible at the Grand Chamber hearing before the ECtHR. Now, in December 2025, looking at all these events collectively, a strategic approach seems to appear: aiming at reframing migration from a human rights matter into an existential security threat, although on the basis of unconvincing arguments, and exerting continuous pressure on the Court. By embracing the “instrumentalisation” discourse, these States seek to recharacterize individual protection claims as threats to State sovereignty rather than human rights obligations, thereby seemingly creating political and institutional pressure on the Grand Chamber to endorse exceptions to absolute Convention guarantees when states invoke geopolitical manipulation of migration flows.

Conclusion: Defending the Convention From Whom?

In this intervention, we have argued that the trajectory from May’s “letter of the nine” to      December’s ministerial conference conclusions exposes a calculated escalation of pressure on the ECtHR. 

By invoking the language of fundamental changes in circumstances, echoing the rebus sic stantibus doctrine, States have moved from critiquing the Court’s interpretation to questioning the treaty’s continued applicability itself. 

What we are witnessing is a fundamental inversion and a “moral retreat”: States are recasting the instrument they created to constrain power in times of crisis as an obstacle to sovereign action. The December conference conclusions solemnly affirm the participating states’ commitment to “preserving the integrity of the Convention system”, yet this proclaimed dedication rings hollow when examined against their actions. The documents frame the threat as external, migration weaponized as hybrid warfare by Belarus, criminal networks exploiting vulnerabilities, and asylum seekers instrumentalized as geopolitical tools. But the true threat to the Convention system’s integrity is      far more internal: States systematically seeking to limit their own human rights obligations through coordinated political pressure on the Court’s independence. This inversion follows a classic authoritarian playbook, recasting rights protection itself as the security threat, rather than recognizing that undermining judicial independence and absolute human rights guarantees is what actually imperils the rule of law and the Convention system’s foundational architecture. 

As the Grand Chamber prepares to deliver its judgments in the three instrumentalization cases, the question is whether it can withstand the insidious pressure from within: Contracting States attempting to instrumentalize veiled withdrawal threats to reshape decades of human rights jurisprudence in their favour. In short, the analysis of the ministerial conclusions and the joint statement confirms the impression of the CoE Commissioner for Human Rights, which warned the Contracting States that they “are embarked on an extremely consequential pathway in terms of the well-being of Europe’s human rights protection system”. 

This post should be read as a companion piece to “Countdown to Chișinău: The Risk of Politicising the ECHR over Migration”, by Andrew Forde and Alice Donald.