The Steering Committee’s ‘Preliminary Draft Text’ for the Chișinău Declaration: Nothing is Wrong with the ECtHR’s Migration Case-Law

In the past months the academic community has tried to understand what the European Court of Human Rights (ECtHR or ‘the Court’) could have done wrong regarding the interpretation of the European Convention on Human Rights (ECHR or ‘the Convention’) in the field of migration. The question was, what could have induced its Contracting States to claim that it had gone ‘too far’ and to raise doubts as to whether the ECHR still ‘match[es] the challenges that we face today’ (22 May 2025 open letter of 9 governments)? These States even called for realigning the interpretation of the Convention to ‘complex and disruptive challenges’—irregular migration, instrumentalisation of migration, and expulsions of foreigners who committed crimes—that ‘were either unforeseen at the time the Convention system and the Convention were drafted or have evolved significantly since then’ (10 December 2025 joint statement of 27 governments). Scholars (including this author, here and here) observed that the ECtHR was already so cautious in deferring to States’ interests that they struggled to see how and why States could be so disappointed (Ní Chinnéide and Sevrin, Schmalz, Riemer and Acconciamessa), nor to anticipate what they wanted to change (Donald and Forde).

A few days ago, we had a preliminary answer which builds on the views of those States’ representatives. Their answer, like ours, is: nothing is all that wrong with the ECtHR’s migration case-law, at least not in the sense that it is excessively in migrants’ favour. On  30 January 2026 the Council of Europe’s Steering Committee for Human Rights (CDDH) published its ‘Preliminary Draft Text for the Outcome Document Containing Elements for a Political Declaration to be adopted at the next session of the Committee of Ministers (Chișinău, 14-15 May). The text was prepared by the Secretariat on the basis of the views expressed by the members of the CDDH and other participants to the extraordinary meeting held on 13-15 January 2026, in response to the mandate conferred to it in the ‘conclusions’ adopted at the Informal Ministerial Conference held on 10 December 2025. The draft therefore sets out the preliminary views of the Contracting States: the CDDH is an inter-governmental body which is composed by representatives of the highest possible rank in the relevant field designated by each government (CM/Res(2021)3).

The draft provides elements which the representatives consider necessary to be included in the declaration to allow the fulfilment of ‘the obligation and necessity for the States Parties to protect their borders’, which in their view is supported by a ‘wide consensus within the international community’ (§ 16). One might doubt on which basis they asserted that the protection of borders is an ‘obligation’, instead of merely a ‘right’ deriving from territorial sovereignty, and which the ECtHR has never questioned. Be this as it may, what is striking is that the preliminary outcome of the CDDH’s work does not at all confirm the ‘the-ECHR-is-broken-here-and-needs-fixing’ narrative that States used in order to set in motion this whole ‘reform process’; a narrative according to which the Convention, as it stands, is not capable of addressing the complex security challenges that arise from modern forms of migration. In fact, in the CDDH’s document the problems of the Court’s case-law in the field of migration are identified entirely outside the ECHR and the ECtHR.

The CDDH’s assessment of the case-law

If one looks at the CDDH’s assessment of the Court’s case-law, there is no single reference to specific judgments that went too far, or to general principles or lines of case-law considered problematic and requiring correction.

The CDDH acknowledged, for example, that the Court has been ‘very cautious’ in finding that removal of foreigners would be contrary to Article 3 ECHR (prohibition of torture and inhuman and degrading treatments), and clarified that only the most serious forms of ill-treatments, identified on the basis of a ‘rigorous’ assessment, could lead to such a conclusion (§ 23-25). It also noted how the Court has been strict in finding that seriously ill persons could not be removed, clarifying that the threshold is met only in ‘very exceptional circumstances’ (§ 28). Similarly, it observed that the Court also accepted that the risks which prevent removal could be obviated by obtaining diplomatic assurances from receiving States (§ 31). In this text, therefore, there is no attempt to try to ‘dilute’ the protection conferred by Article 3, as currently interpreted by the Court (on the risks that this dilution would entail, Mavronicola).

As regards Article 8, the CDDH acknowledged that the Court has shifted to process-based review, deferring to the competent national authorities, unless there are ‘strong reasons’ (§ 37), and clarified that ‘only in exceptional circumstances’ would family links prevent expulsions (§ 38). The only veiled criticism is where the CDDH stressed that ‘it is important that the Court […] provides sufficient detail of any strong reasons for substituting its assessment of proportionality for that of domestic courts’ (§ 39). However, figures show that this is done in an extremely low number of cases, and the Court already does provide reasons, stressing what was missing or contradictory in the domestic courts’ assessments (Martinez Alvarado v. the Netherlands, 2025, § 48; Sharafane v. Denmark, 2024, § 61; and P.J. and R.J. v. Switzerland, 2024, § 55; Nguyen v. Denmark, 2024, §§ 36-40).

The CDDH also recognised that the Court has taken due regard of the ‘considerable difficulties’ experienced by States on the EU’s external borders ‘in coping with increasing influxes of migrants and asylum seekers’ (§ 42). Very recently, in S.S. and Others v. Italy it also considered itself unable to question States’ decisions to manage mass arrivals of migrants at sea by providing financial and technical assistance to other States’ coastguards (§ 44). It was also noted that since N.D. and N.T. v. Spain, the Court progressively adapted the prohibition of collective expulsion to States’ decisions on how to manage official entry procedures (§ 47) and seems to have implicitly accepted the possibility of accelerated asylum procedures (§ 57).

Lastly, the CDDH noted with some concern the absence of case-law on instrumentalisation of migration, defined in the document as ‘situations where migratory movements, including unlawful border crossings, are deliberately facilitated, encouraged or exploited by States or other actors […] with the aim of exerting pressure on, destabilising or undermining a member State and European democracies’ (§ 49). It therefore stipulated that ‘States Parties look forward to receiving guidance from the forthcoming Grand Chamber judgments’ (§ 54). This situation, however, cannot be attributed to the Court, considering that it rules on individual cases and that its judicial function ‘is by definition reactive rather than proactive’ (Verein KlimaSeniorinnen Schweiz [GC], 2024, § 481).

In short, there is no specific criticism to the Court’s case-law in the migration field, apart for a general call for consistency (§ 68) and for the need to take context into account (§ 69), but without identifying any example of lack of consistency or failures to take context into account.

The actual problems identified by the CDDH and the solutions proposed

Then what is it that needs to be fixed?

It appears that States now claim that they are not dissatisfied with the Court’s case-law, but with its domestic application by their national judges which, in their view, did go too far (see, however, the report of the Bonavero Institute, showing how domestic rulings are also misrepresented).

The CDDH stressed that ‘where a Contracting State considers that its domestic courts have misapplied the Court’s jurisprudence, there is no avenue whereby a State can contest the outcome before the Court’ (§ 21). This is obvious, since the ECHR is a system for ‘the maintenance and further realisation of human rights and fundamental freedoms’ (Magyar Helsinki Byzottság v. Hungary [GC], 2011, § 150), and not States’ rights, whose object and purpose is ‘raising the general standards of protection of human rights’ (Konstantin Markin v Russia [GC], 2012, § 89) and that, in the light of Article 53, ‘reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level […], but never limits it’ (Shamayev and Others v. Georgia and Russia, 2005, § 500).

However, this is exactly what seems to bother the Contracting States. They are concerned, in particular, by the impossibility of correcting rulings in which ‘[t]he Court’s judgments […] have been applied by States Parties’ domestic courts in numerous expulsion and extradition cases involving a range of circumstances’ without considering the specific context in which the ECtHR had issued its findings (§ 26), and also by the situation ‘where there is no directly applicable case law from the Court, [and] domestic courts may seek to apply principles taken from judgments concerning the situation in States Parties’ and might issue findings which go beyond what is strictly required from the Court’s case-law (§ 27). The main problem, therefore, seems to concern those cases ‘where domestic courts may have inadvertently gone beyond the requirements of the Court’s case-law’ (see the ‘possible elements’ indicated at p. 21).

The CDDH also proposed solutions. On the one hand, they would ask the Court to provide more guidance to the domestic courts on how to apply its judgments (§§ 26-27, 54, 60, 68). On the other, they are considering doing it themselves: in their view, States may ‘bring forward detailed national measures on how relevant Convention rights […] should be applied in their national legal system in the specific context of expulsion, removals or extradition’ (§ 21). This could be done, for example, through ‘internal administrative policy guidance, whose Convention compatibility may be challenged before domestic courts, or through legislative standards’, and even by requiring courts to follow the guidance provided ‘in an appropriate form by an intergovernmental committee such as the CDDH’ itself (p. 19).

Conclusions

What conclusions can we draw from the CDDH’s preliminary draft?

The first (straightforward) observation is that the whole ‘reform process’ was initiated on political and not solid factual and legal bases (Forde and Donald): the ‘let’s take our sovereignty back from the ECtHR’ narrative which guided the Contracting States was advanced without even considering how deferent the Court has been towards that sovereignty (Krommendijk and Möller). Now States seem to look ‘merely’ for guidance from the Court. It is clear, however, that this entire initiative is aimed at clarifying which direction they want such guidance to take.

The second is that States are not so much dissatisfied with the ECtHR, but with their own national courts. This is quite contradictory, if one considers that the Interlaken reform process was premised on upholding the ‘better placed’ argument, according to which domestic authorities are in a better position than the ECtHR to enforce Convention rights in their legal systems. However, it appears that governments consider that ‘national courts know better’ only when those courts rule in their favour, and that the margin of appreciation counts only when aimed at lowering human rights standards, and not at raising them.

Lastly, and this is quite concerning, it seems that that the ‘reform process’ is not only an attack against the ECtHR but, more generally against the independence of the European judiciaries. According to the European governments, the concrete application of human rights standards to specific circumstances might be determined by the executives (whether domestically, through ‘administrative policy guidance’, or internationally, by an inter-governmental body). And this is clearly an attempt to reduce the capacity of judiciaries to limit governments’ discretion.

In the end, nothing might substantially change in the Court’s case-law in general (De Sena and Russo), although we might ask ourselves how much all this pressure and public criticism will succeed in influencing the outcome of the instrumentalisation cases. Be this as it may, in the meantime the Contracting States have seriously compromised the legitimacy of a human rights system which, with all its imperfections, has been working well for 75 years.