The outcome document ‘containing elements for a political declaration’ that the Steering Committee for Human Rights (CDDH) of the Council of Europe published on 20 March 2026 deserves a critical look. Thus, it can be established whether the CDDH managed to take an objective, human rights-centered approach to the issues at stake. Or whether the outcome document instead reflects the spirit of the open letter of the nine states of May 2025, as further developed in the Joint Statement of 27 states of December 2025. While other blogs have already critically reviewed some of the issues at stake, this contribution mainly looks at the messages implicit in the language of the CDDH outcome document.
A fundamental change of circumstances?
The open letter criticizes the “living-instrument doctrine” of the Court, arguing that the interpretation of the Convention by the Court “has extended the scope of the Convention too far as compared to the original intentions”, while the Joint Statement requests that the right of states “to control entry, residence and expulsion of foreigners from their territories” should guide the interpretation of the Convention. The authors of the Joint Statement want to respond to what they see as complex and disruptive challenges posed by recent migration trends. Their proposal implies the logic of the clausula rebus sic stantibus, as codified in Article 62(1) the Vienna Convention on the Law of Treaties (VCLT), which reads as follows (emphasis added):
A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
In short, Article 62(1) sets high requirements for invoking a ‘fundamental change of circumstances’ for withdrawing from or terminating a treaty. These requirements have clearly not been fulfilled in respect of the ECHR, although such claims can be found in arguments of the extreme right. The so-called Chișinău process appears to attempt at a softer version of the logic of the clausula rebus sic stantibus, insinuating that the migration context requires changes in interpretation of the Convention obligations. Although a political declaration has no legal force, according to Article 31(3)(a) VCLT a later agreement of the Contracting Parties on interpretation and application of a treaty can be expected to have some impact on its interpretation – even if the agreement is not expressed in a legal form like an amendment or protocol. Therefore, this process has to be taken very seriously as it might effectively reduce the level of human rights protection.
Restrictive motives
It must be conceded that the decision to involve the CDDH as the competent body for human rights in this process was the proper approach. However, the outcome document still leans too strongly to the objectives of the initiators of this process, i.e. to request the Court to develop a new, more restrictive interpretation of the Convention in order to make expulsion and removals easier. The initiating states see the Strasbourg case law as standing in the way of a stricter approach in the field of migration policy. Human rights appear to be in conflict with a stronger focus on governmental sovereignty, partly driven by populist governments or by governments afraid of a populist trend which identifies migration as its main issue. Consequently, these states aim at a reinterpretation of the Convention so they can limit the relevant human rights more easily. The parallel introduction of a more restrictive Migration and Asylum Pact by the European Union is also an important motive. For example, the new rules of the future EU return regulation should be protected against anticipated “judicial activism”.
In the debate on migration leading to the Chișinău process, both the existing problems like mass arrivals or expulsion of criminals are overstated, as well as the role of the Court in their solution. Consequently, the Court has been made a scapegoat for the inability of states to return larger numbers of migrants without a valid title of residence. The spirit of the Letter of Nine, which argued against protecting “the wrong people”, is still present. The complex text elaborated by the CDDH puts a comparable spin on the issue, which reveals itself in numerous vague and even contradictory statements. For example, the draft mirrors the intentions of the Letter of Nine in that it largely prioritizes the security objectives of states over the protection of human rights. References to (national) security appear no less than 33 times in the text.
While the draft elements recognize the independence of the Court as well as the principle of non-discrimination, they emphasize all the limitations which the Court has developed in its already restrictive jurisprudence on the matter. They ask for more self- constraint of the Court by repeatedly referring to the principles of subsidiarity and margin of appreciation and by requesting a balancing test which leans more strongly on state interests. The language is revealing: the Court is requested to achieve a balance between individual rights and “weighty public interests of defending freedom and security” (para. 34). The document also suggests avoiding “unnecessary constraints” (p. 10 and 27) on state decisions.
There are several calls to take the “context” better into account (for example para. 55). The Introduction already refers to the mandate of the CDDH to prepare the elements for a political declaration in the (para. 1):
context of the contemporary challenges posed both by irregular migration and by the situation of foreigners convicted of serious offences, taking duly into account in particular governments’ fundamental responsibility to ensure national security and public safety.
The obvious intention is to signal to the Court that, because the states are experiencing a higher migration pressure, a more restrictive interpretation of the Convention is required. Similarly, the references to balancing really intend a rebalancing to give more attention to security interests and state sovereignty. The draft therefore reflects an unprecedented “regressive intent” as Donald and Forde explain.
There are indeed new challenges like instrumentalization of migration as a kind of hybrid weapon, employed by Belarus and Russia to put pressure on Council of Europe member states, which the declaration calls disruptive. Again, while recognizing the prohibition of collective expulsions, the CDDH mentions the “right balance” (para. 40) and expresses the expectation that the Court will develop an “adequate response”. In the Grand Chamber hearing of 12 February 2025 on the three pertinent push back cases, intervening states had the opportunity to express their expectations more clearly, which they used to argue for a restrictive approach. In the context of the instrumentalization of migration, states with an external border are addressed as “frontline states”, while asylum seekers mainly appear as a security risk. However, the CDDH also refers to relevant conditions of review identified by the Court, such as, the existence of adequate asylum processes and guarantees against removal to countries of origin (paras. 64 ff).
The text also repeatedly refers to “seeking guidance” from the Court, whether this relates to the conditions of detention in third states (para. 28) or the living conditions incompatible with human dignity (paras. 30, 48) in the receiving countries of persons removed. Behind these references appears to be a disguised expectation of reducing standards of protection which domestic courts may then follow as their interpretation of the Convention is sometimes considered too generous.
The document uses the term “innovative solutions”, blurring the fact that this part is about externalizing human rights and asylum obligations, which might leave the persons involved without proper human rights protection. This term is a euphemism covering the hidden unpleasant reality, which should have no role in a human rights context. The intention of certain states to avoid being held accountable by circumventing their human rights obligations is obvious. In 2025, the Court declared the case of S.S. v Italy inadmissible, despite serious human rights violations having been committed by the Libyan coast guard. That coast guard had acted from a boat recently provided by Italy and in a process under Italian involvement. Italy thus successfully managed to externalize human rights violations and was not held accountable for the obvious complicity. The restrictive standard of “effective control” for extraterritorial jurisdiction (para. 46) leads to a lack of accountability. Similar issues exist with the role of Frontex, where, however, the CJEU in Hamoudi v. Frontex only recently overruled the dismissal of the complaint of a victim of push backs by the General Court.
Conclusion
While the CDDH draft undoubtedly has brought important improvements as compared to the Joint Statement of 27 by providing a detailed account of the practice of the Court, the main message of the CDDH outcome document remains the same. It clearly aims at making expulsions easier by lowering the level of human rights protection. The language is still suffering from some ambiguities if not contradictions which need to be addressed. The European Network of National Human Rights Institutions (ENNHRI) has clarified that security and human rights are not opposites but that “protecting security requires the respect of human rights”. Furthermore, the pertinent report of the Council of Europe Commissioner for Human Rights on externalized asylum and migration policies and human rights of September 2025 should be given more attention as it identifies gaps of protection and accountability and contains a number of recommendations from a human rights perspective. Also, Amnesty International, the League of Human Rights and the International Commission of Jurists, which observed the CDDH meetings, have summarized their multiple concerns in a letter of 30 March to governmental and Council of Europe representatives, which so far has not been made public. All states parties to the Convention have a responsibility to preserve the role of the Court against open or disguised pressure leading to a degradation of the level of protection that the Convention provides – which usually starts with the weakest group, but risks being extended to the system as a whole.
