On 15 May, the 46 Council of Europe states adopted the Chișinău Declaration on the ECHR and migration. The Declaration, which follows several extraordinary meetings of the Steering Committee on Human Rights, does not echo the express criticism of the ECtHR’s case law contained in the Letter of 9 and the Joint Statement of 27 States. Unlike the Letter of 9, the Declaration does not note that the states ‘should have more room nationally to decide on when to expel criminal foreign nationals’. Similarly, the Chișinău Declaration does not reiterate the particularly problematic parts of the Joint Statement of 27, including the need to rebalance the interpretation of Article 8 ECHR and to constrain the scope of Article 3 ‘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’.
The initiative of Secretary-General Berset to re-establish discussions on this issue within the Council of Europe by organising an informal ministerial conference on 10 December 2025 appears to have neutralised some of the criticism of the first nine and then 27 states. This was to some extent expected: after all, reaching consensus on a political declaration between all 46 Council of Europe member states involves compromises being made, and not all states joined the pushback contained in the, ultimately, 27-state statement.
The draft elements of the political declaration published by the CDDH on 20 March have largely been copied and pasted into the Chișinău Declaration. The preambulatory clauses acknowledge the ‘extraordinary contribution’ of the ECHR system to human rights and the rule of law and reaffirm the states parties’ ‘deep and abiding commitment’ to the Convention. Additionally, the states’ support for the Court’s independence and its ‘living instrument approach’ to interpretation is also reaffirmed. While these clauses are important, they are not unexpected given the content of previous political declarations from Council of Europe States.
Yet, there are a few points in the Declaration that merit caution and closer attention. One of them is the Committee of Ministers’ assertion that ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’. General interests are mentioned prior to fundamental rights, while the Convention’s purpose is precisely to protect these rights, not the general interest, although the latter can play a role in the form of legitimate aims that a state must pursue when limiting a relative right. Moreover, striking such a balance is not ‘inherent in the whole of the Convention’. As the declaration also emphasises, the prohibition of torture (Article 3), among other provisions, is absolute, so no balance can be struck in Article 3 cases.
The phrase that we just discussed is emblematic of the entire Declaration, which was written with the states in mind, rather than individuals. Apparently, the states need much reassurance about the subsidiarity of the ECHR system. The Convention system is indeed subsidiary; in addition, the Declaration highlights that states have a margin of appreciation (paras 4-5); that the Court is not a court of ‘fourth instance’ (para 11); that states have ‘the undeniable sovereign right to decide on and control’ migration (para 18); and their a ‘fundamental duty to guarantee the right to everyone within their jurisdiction to live in peace, freedom and security, notably by protecting public safety and national security and preventing disorder and crime’ (para 20). It is telling that the states refer to a ‘fundamental duty’ rather than to legal obligations derived from specific Convention rights (or to the rights-limiting clause contained in Article 8(2) ECHR) after ‘notably’. The importance of respecting Article 8 is nowhere underlined. Instead, the first paragraph about Article 8 begins as follows: ‘Article 8 allows public officials to expel a foreign national from their territory even though’ this may interfere with Article 8 (para 31). Once again, the interference with a right takes precedence over the obligation to protect it. It is through these formulations and implied messages that the Declaration calls for caution.
As regards the process leading to this Declaration, never before was the run up to a political declaration by ECHR state parties so short and fast-paced. The road to Chișinău might have been full of curves, but it was a fast road to travel. The doubly unusual process – both in it being triggered by an ‘open letter’, which steps outside formal channels, and then the fast efforts to bring it back into those channels by the Secretary-General, has meant that most input by players other than states has not been formally invited into the process, but rather has been made public ad hoc and at these players’ own initiative. In that sense, many relevant actors have joined the now infamous ‘open-minded conversation’. It has even led to new mobilisations, including by a now very large group of academics working on the ECHR: AGORA Group. Two things stand out from these reactions, they: (1) attempt to set the record straight, to set out the facts on migration and ECHR case-law, rather than preconceived ideas or prejudices about it; and (2) emphasize the value and legal obligations of the ECHR system as such.
On the first point, many have sought to dispel the idea that the Court’s case-law is a main impediment to domestic migration policies. This is also the only route in which the Court could ‘express’ itself in this process, by providing overviews and information on its own case-law on the matter. As a Court document of February 2026 shows, only between 1 and 2 percent of its case-law relates to migration, and only 6 percent of these migration-related cases have led to a violation judgment.
On the second point, virtually all non-state actors, from NHRIs to the Commissioner for Human Rights, and from bar associations to human rights NGOs, have emphasized the key importance of upholding Convention norms, implementing the Court’s judgments and respecting its independence. While the open letters of states may have swayed the debate in one direction, virtually all of these other inputs point the other way, buttressing human rights and the Court. Many of these inputs have informally found their way to the CDDH and the Committee of Ministers. The past year has thus both made state critique (by roughly half of the Council of Europe Member States) visible, but equally so the multifaceted support for the ECHR system by many others. As a final point, this whole process shows that the Council of Europe needs to do more to take its self-professed policy of allowing structured civil society input into the organisation more seriously – European democracy does not consist of states alone after all, but also of people, movements and organisations.
We will now address some more specific points of the Chișinău Declaration, primarily those that have not yet been covered extensively in analyses based on the CDDH’s draft elements. Despite the reasons warranting relief about the content of the declaration – and they are many –, these points show that there are also reasons for concern given the affirmation of problematic concepts in its text. In the final section, the blog outlines the possible aftermath of the Declaration.
Diplomatic assurances on extradition and expulsion
On Article 3 ECHR, the prohibition of torture and ill-treatment, the Declaration states that ‘recourse to diplomatic assurances may obviate a risk of violation of Article 3 following expulsion or extradition.’ Indeed, diplomatic assurances have already been used in extradition and expulsion cases and may at times help ensure that a person does not suffer a serious breach of Convention rights by the receiving state. The Court has, in numerous cases, found that diplomatic assurances removed the real risk of breaching Convention rights. At the same time, such assurance can raise serious problems. In other cases, the Court has accordingly found such assurances insufficient because of their vague wording, the absence of monitoring mechanisms, the absence of torture prevention mechanisms, or the presence of endemic practice of torture. In Sultanov v. Russia, the Court ruled that diplomatic assurances offered by a third country (in this case Uzbekistan) did not provide a reliable guarantee against the risk of ill-treatment, given the systemic practice of torture in the country. In its case-law, the Court has established numerous criteria to ensure that diplomatic assurances are credible and reliable and that the real risk of ill-treatment and torture is avoided. The most detailed checklist was established in Othman (Abu Qatada) v. the United Kingdom, in which the Court listed eleven factors for assessing the reliability of diplomatic assurances that go well beyond issues pertaining to Article 3.
The Court has developed the criteria to ensure that diplomatic assurances do not serve as performative acts aimed at bypassing human rights obligations. The Court is mindful of such risks. In fact, even among Council of Europe member states, there have been cases in which diplomatic assurances were not implemented in good faith. For illustration, in Makuchyan and Minasyan v. Azerbaijan and Hungary, an Azerbaijani soldier convicted of the murder and attempted murder of two Armenians in Budapest was instantly pardoned and reinstated to senior positions upon his extradition from Hungary to Azerbaijan, despite the diplomatic assurances offered by Azerbaijan. Hence, even among Council of Europe member states, significant due diligence is required to ensure that diplomatic assurances are not used abusively or manipulatively.
Although the ECtHR has not discouraged the use of diplomatic assurances, according to the UN Special Rapporteur on torture and other cruel, inhumane and degrading treatment, diplomatic assurances are inherently unreliable when the human rights record of the receiving state is particularly flawed or where a state has no effective control over its agents.
The above suggests that diplomatic assurances remain controversial and often fail to eliminate the real risk of Article 3 violations in extradition and expulsion cases. Hence, the Declaration’s statement that diplomatic assurances may obviate a risk of violation of Article 3 following expulsion or extradition should be treated with caution – particularly because the Court has already adopted a rather lenient approach toward diplomatic assurances.
Public confidence
According to the Declaration, states’ ‘migration-related challenges’ are three-fold: the ‘inability to expel or extradite an individual convicted or charged with a serious offence’, ‘mass arrivals’ and the ‘instrumentalisation of migration’. The Declaration states that failing to adequately address these ‘significant, complex, migration-related challenges in various member states (…) may weaken public confidence in the Convention system’ (para 16). This phrase may have been added on the proposal of the UK, as it echoes a central theme of the speech given by the Lord Chancellor and Secretary of State for Justice, Shabana Mahmood, to the Committee of Ministers in 2025, albeit the Declaration uses less strong language (with Mahmood referencing erosions of public trust and departures from public reasonableness in her speech).
This phrasing around public confidence presupposes that the public is familiar with the Convention system and has formed an opinion on it. Furthermore, it presupposes that public confidence may be influenced by how ‘migration related challenges’ are addressed. However, the likelihood of all three presumptions being true is slim, particularly given that recent statistics show that the majority of people in six Council of Europe states surveyed admit to knowing little about the ECHR. In the UK, 49 percent say they do not know very much about the ECHR, and 15 percent say they do not know anything at all. In France, Germany, Italy, Poland, and Spain, people say ‘they know little (42-53%) to nothing (15-29%) about the Convention’. A case in point is that 90-85 percent of respondents in these five states think the ECtHR is an EU body.
This approach prioritizes alleged public opinion over the realities of the Court’s (modest) migrant-related protections. It is additionally problematic because it could be interpreted as implying that the Court is responsible for something that it is not: addressing ‘migration-related challenges’ and their effect on public confidence. The Declaration leaves room for this interpretation because it fails to clarify who is responsible.
More likely, it is the process preceding the Declaration and its content that will weaken public confidence in the ECHR system. By focusing on just one theme – migration – the Declaration potentially reinforces the ‘false narrative’ in the national media and politics that the Court’s migration case-law is highly problematic. Why else adopt the Declaration at all? This narrative is prevalent in the UK, for example, where three-quarters of media reports (n=379) that ‘mentioned the ECHR focused on the application of the Convention in immigration control’, with ‘many’ such reports being ‘based on misconceptions’. This narrative has also taken hold in the Netherlands. The Dutch parliament adopted a motion by a two-thirds majority noting that the deportation of asylum seekers who have exhausted all legal remedies and ‘criminal asylum seekers’ often (‘regelmatig’) cannot take place as this would breach the ECHR. However, the government has recently explained that the ECHR provides sufficient scope for the deportation of (settled) foreign nationals who have been convicted of criminal offences, and that the ECHR does not constitute a major obstacle for the Netherlands. A similar discussion has taken place in Switzerland, where a parliamentary motion alleging ECHR-imposed limitations on states’ ability to act against ‘criminal migrants’ garnered objections from the Executive, who noted that the ECtHR’s case-law did not go beyond that of domestic courts.
Rather than linking public support for the Court to the resolution of ‘migration challenges’ by an unnamed actor, the states could have adopted Amnesty International’s, FIDH’s and the ICJ’s recommendation to ‘recognise that compliance with the Convention system and its obligations is instrumental to ensuring public confidence in it’. This would have complemented what the Declaration recognises: that the States Parties to the Convention have the primary obligation to secure Convention rights to everyone withing their jurisdiction.
‘A democracy capable of defending itself’
One particularly problematic concept in the Declaration is the idea of ‘a democracy capable of defending itself’ (para. 39). This reference insinuates that human rights may be voided for certain groups of ‘others’ in the event of external pressures from hostile States, paving the way for a hollowing-out of the rights of people on the move when their claims arise at scale – particularly given the conceptual flexibility of the terminology used. Here, and in other respects touched on above, the Declaration declares a hierarchy of interests, subordinating the rights of the individual to the ‘weighty public interests of defending freedom and security’. In doing so, it ignores inconvenient obligations: for example, it embraces the limitation of an expulsee’s Article 8 rights in the public interest, without however mentioning the rights of that person’s family – including particularly minor children whose rights would be impacted by the removal of a parent (paras. 31-33), an issue previously if hesitantly examined by the Court in its case-law. This omission, if construed as a failure to endorse that case-law, may put additional pressure on the Court’s protection of children in these situations.
‘New approaches’
Another concerning concept is that of ‘new approaches’ (which were referred to as ‘innovative solutions’ in the CDDH draft text, and seems to be the only amendment in the final Declaration compared to the draft text), which is the description given by the Declaration to notoriously problematic third-country return hubs. The endorsement entailed in its description of these new approaches to mass migration flows (para. 46) is troubling in the face of a practice which has attracted preliminary measures orders from the Court in the past, and which Council of Europe Commissioner for Human Rights Michael O’Flaherty has repeatedly described as problematic and resulting in ‘human rights violations in various countries worldwide’, requiring a precautionary approach from States. Domestic courts, too, have declared such plans illegal. One much-discussed initiative in this regard, the UK’s contested ‘Rwanda flights’ plan, was declared incompatible with the principle of non-refoulement by the UK Supreme Court in 2023. Against this backdrop, the Declaration’s approach risks sending a signal that incentivizes or rewards state creativity in finding new ways to avoid their human rights obligations in the face of the pressures presented by migration.
Aftermath of the Declaration
Focusing solely on the text of the Declaration, there is no reason for the Court to change its migration case law. One reading of the Declaration could be that states ask the Court be ‘clear and consistent’ and to give ‘further guidance’ and clarifications on migration issues that they find complex and of important. As recently appointed ECHR Judge Corinna Wissels confirmed, rather than providing a reason to change its case law, the Declaration may provide a reason for the Court to explain its reasoning more clearly, which is also something that domestic judges do when a case is politically sensitive.
Yet, although the heavy criticism evident in the earlier letters from groups of states about the Court’s migration case law has faded in the declaration, the message throughout the process leading up to it has been clear: certain states take issue with the Court’s migration case law and feel that it should exercise more restraint. This is not a new message, and it cannot be ruled out that the Court is receptive to it irrespective of the content of the Declaration. Previous high-level declarations on the Court have taught us that, in the words of its President, the Court ‘has been receptive to the messages conveyed in [previous political] declarations, which have also as a general rule been helpful to the Convention system’. Most importantly, as a result of these declarations, the Court now places greater importance on the subsidiarity principle. Empirical research has clearly demonstrated that the Court becomes less willing to develop its case-law in the face of state pushbacks.
It is illustrative that the Court emphasizes the importance of domestic authorities’ assessments in its aforementioned document on ‘case-law on migration matters’, dated February 2026. In addition to a section titled ‘subsidiarity and shared responsibility’, the Court explains that, if ‘domestic authorities (…) have carried out a rigorous assessment of whether the individual would face a real risk of ill-treatment in the destination country’, it ‘is unlikely to find that the removal would breach Article 3, even if the security conditions in that country are difficult’. The Court also highlights that, in ‘recent’ Article 8 cases concerning the expulsion of migrants for criminal offences, it emphasised that ‘where the domestic courts have carefully examined the facts, applying the Convention case-law, and have weighed up the applicant’s personal interests against the more general public interest’, it will not ‘substitute its own assessment of the merits for that of the competent national authorities, except where there are strong reasons for doing so’.
At the same time, the Court has felt free to ignore a number of requests set out in previous political declarations. For example, it has so far ignored the invitation in the Copenhagen Declaration, which is repeated in the Chișinău Declaration, to ‘adapt its procedure to make it possible for other States Parties to indicate their support for the referral of a case to the Grand Chamber when relevant, which may be useful for drawing the attention of the Court to the existence of a serious issue of general importance within the meaning of Article 43(2) of the Convention’.
One might wonder whether the 27 states, and especially the 9, are truly satisfied with the Chișinău Declaration, given that it offers little to no criticism of the Court’s migration case law and makes no request for the Court to amend this body of case law. Consequently, they may relaunch their attack on the Court again as soon as it adopts a new judgment on extradition, expulsion or pushbacks at the Belarusian border. Even worse, one might question whether states are committed to complying with the ECHR system and the spirit of the Chișinău Declaration. For illustration, Denmark already plans to adopt deportation legislation that, as (now caretaker) Prime Minister Frederiksen explained, experts might describe as ‘breaking the Convention’.
The Chișinău Declaration itself does not mention any follow-up measures. Certain members of the Parliamentary Assembly of the Council of Europe have supported a motion for a resolution that calls on the Assembly to ‘play an active role in the process launched by the Secretary General concerning migration, human rights and security’ (see also here). However, this motion has not yet been discussed in the Assembly. Nevertheless, other actors in the Council of Europe and beyond will be watching closely to see what direction the Court’s migration case takes. On this blog (and our special resource page on the future of the Convention), we will certainly keep you informed of new developments.
