10 December 2025, twenty-seven Council of Europe (CoE) member states delivered a joint statement. This statement has launched the so-called “Chișinău process,” which is expected to lead to the adoption of a political declaration on the European Convention on Human Rights (ECHR) with a focus on migration-related issues. In their joint statement, twenty-seven signatory states framed migrants as a threat to their own populations’ human rights and fundamental freedoms, “including the right to live in peace, freedom and security.” They noted that these rights and freedoms were being threatened by “people who take advantage of our hospitality by committing serious crime; trafficking in human beings and instrumentalisation of migrants.” Accordingly, they sought to ensure that the ECHR is not interpreted in ways that would restrict the policies and practices they have adopted to protect their populations’ rights from the “threats” posed by migrants.
In keeping with the significance of the date of its publication, which coincided with the anniversary of the Universal Declaration of Human Rights, the same statement opened with the signatory states reaffirming their commitment to the ECHR and their belief “in European values, democracy, the rule of law, and human rights.” Does this read as a contradiction or hypocrisy?
In what follows, I argue that it does not make sense to view these as a contradiction or hypocrisy, given that the ECHR was itself designed in a way that makes it possible to hold onto both human rights and exclusion of certain people from its scope. Instead, I suggest reading the states parties’ recent efforts as a reminder to question the fundamental inequalities and exclusions underlying European human rights. To do this, I will first address the recurring argument of CoE member states as to what the drafters could have known about today’s problems. I will then discuss the absence of migration-related rights in the ECHR, despite the fact that a serious reckoning with the Holocaust would require their inclusion.
What did the drafters know?
States’ discontent with the case law of the European Court of Human Rights (ECtHR) on certain issues, most notably migration, has been building into a collective grievance since the 2010s. A discourse on the drafters’ original intentions has accompanied these grievances ever since. The signatory states of the 10 December 2025 statement claim that these “complex and disruptive challenges” associated with migration were either not foreseeable at the time the ECHR was drafted, or not comparable in scale to what they are today. Relying on these arguments, they now demand an adjustment to the ECtHR’s interpretation of Article 3 and Article 8.
The practice of human trafficking that the joint statement of twenty-seven states refers to was not unfamiliar to the twentieth century, and hence likely not to the drafters of the ECHR either. The anti-trafficking regime traces back to the early twentieth century – to the moral panic created by the so-called “white slavery,” behind which there was primarily the military and colonial demand to address the “domestic and sexual needs of the military men and men in the colonies.” Since then, what seems to have changed is the shift in the fear from European women being trafficked to the colonies towards fear from the transfer of non-Western people into Europe. But there are also important continuities. Most notably, there is a strong correlation between support for the first anti-trafficking regulations, such as the League of Nations’ International Convention for the Suppression of the Traffic in Women and Children from 1921, and the need to affirm “territorial boundaries,” as the list of signatory states includes those
seeking to bolster their rule over colonial holdings, new nation-states, and established states with shifting boundaries engendered by World War I.
Contemporary anti-trafficking regulations, such as the 2000 Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, are also criticized for serving the legitimation of securitization and border control regimes rather than providing protection to those subject to forced movement and labour.
It is also hard to assume that the scale of migration was decisive for the drafters to disregard it at the time of the establishment of the ECHR system. If anything, the First World War had displaced large numbers of people, contributing to the institutionalization of passports as a means of regulating and restricting movement. After the Second World War, the need to restrict post-imperial immigration from the colonies had already become the principal ground for arguments about border control. The ECHR was drafted against this background. It is therefore unsurprising that it contains no right to freedom of movement or any right related to migration. It would accordingly be naïve to credit the argument that the drafters, some of which were major colonial powers, were unaware of migration-related problems. Rather than ignorance, their silence reflects a choice that could only have been available to those holding a superior and privileged position.
In light of this, framing the current attempts by European states to limit the ECtHR’s interpretation as an attempt to introduce a “hierarchy of people” to the ECHR system ignores the fact that the ECHR was already designed in a way that would preserve such hierarchies. This is not only achieved through the exclusion of migration-related rights. As the growing research on the colonial origins of European human rights emphasizes (e.g. see here and here), the possibility given to colonial states to exclude their colonial territories from the protection of the ECHR also makes clear the hierarchies built into the ECHR system between the metropole and the periphery. Moreover, these exclusions were not built in the ECHR only by design, they were introduced despite the Holocaust and Europe’s responsibilities in it.
But what about “never again”?
The historical origins of the ECHR are widely associated with the Holocaust and “never again” (e.g. see here and here). Yet, not only did the memory of Holocaust gain a prominent place only around the mid-1960s, but more strikingly there is an unexpected silence on the mass killing of Jews in the historical records of the ECHR’s drafting. The ECHR is not alone in this regard. The same surprising scarcity of references to the Holocaust has also been pointed out in relation to the other human rights documents of the postwar period, such as the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Even though repeated references to the war and Nazi crimes exist, the Holocaust as such is largely absent in the drafting debates (e.g., see here, here, and here). The reasons and implications for this silence are debated among historians (in particular, see here). Some indicate the efforts to avoid particularistic explanations for the need to recognize universal human rights. Others emphasize the need to refrain from discussions that would expose the complicity of the Allied powers in the Holocaust (e.g., see here and here).
In the European context, the silence on the Holocaust reminds us of the mismatch created by the absence of migration-related rights from the ECHR, given the lessons European states could have drawn from the Holocaust. As is well known, while some European states collaborated with Nazi Germany, most others – including those that did not – failed to provide refuge to those fleeing Nazi persecution. A conference that brought together thirty-two countries in 1938, including European states, in France to discuss the situation of Jewish refugees was even applauded by Adolf Hitler for its participants’ collective refusal to open borders to Jews, with the Dominican Republic reportedly being the only exception. Despite all this, however, the ECHR includes neither a right to nationality nor a right to asylum. What is more, this exclusion is not even the result of a disagreement among the drafters.
However striking it may be, the absence of a right to asylum and a right to nationality is very much in line with how the drafting states approached, or failed to approach, Nazism and fascism in Europe. In the Travaux Préparatoires, there is no reckoning with their own complicity and failures. In the European context, such a reckoning occurs, at least to a certain extent, only after the end of the Cold War. Instead, Nazism, fascism, and alongside them communism, are framed as sources of the evil, and thus as something external to Europe and its values. This perspective not only fails to account for the role of European economic, social, and political arrangements themselves in the atrocities of the Second World War, but also constrains and shapes the measures allegedly taken to prevent their repetition. Above all, perhaps, they underestimated the racism underlying Nazi crimes. Instead, Nazi Germany was – and to some extent still is – seen as an anomaly or an aberration, rather than as something rooted in racism and colonialism, or even in the widespread antisemitism that pervaded the continent.
Outlook
I began this blog post by asking whether there is any contradiction in upholding human rights, the rule of law, and democracy while at the same time excluding migrants from their scope. I have tried to show that the ECHR was designed in a way that made it possible to hold onto both simultaneously. I therefore think it does not make sense to approach this simply as a contradiction or hypocrisy. As was criticized from the outset, the ECHR was designed to be an instrument of distinctly European human rights. By extending the protection of the ECHR to migrants only in very exceptional circumstances (see here and here), the ECtHR has also contributed to sustaining this distinctly European human rights regime.
States may want us to discuss whether the inclusion of migrants within the protective scope of the ECHR is against the drafters’ “original” intent or whether the ECtHR has a mandate to interpret the ECHR in an evolutive manner. Limiting ourselves to such discussions keeps us assuming that the story of the ECHR is a constant progress that is now under the threat of reversal. Instead, I suggest we resist treating this latest step by the states parties as a product of the current moment, and see it as yet another exposure of the structural inequalities and exclusions that have made a European human rights regime possible in the longue durée.
This is all the more crucial at this moment, as we witness radical shifts in the postwar world order. It is therefore precisely the right time for a genuine reckoning with its institutions and with how and why they have failed some of us.
