According to the Ministers of the Council of Europe, a political declaration on migration and the European system of human rights protection is urgently needed considering the “migration crisis” and migrant smuggling European States and societies are facing. They cite the overly high standards of protection of migrants’ rights provided by the European Court of Human Rights, which limit States’ (re)action to the “crisis”, and the need to restore States’ sovereignty, excessively limited by European “judicial activism”. The December 2025 joint statement of 27 States was preceded by what is known as the “Letter of 9”, disclosed in May 2025 at the initiative of Denmark and Italy, where nine States called for much more restraint by the European Court when dealing with migration issues and the restoration of States’ full sovereignty in this area. The populist narrative put forward by a group of States is well-known and has already been patiently debunked in the Chisinau Symposium published on the ECHR Blog (for all the materials and the contributions, see here), and also by other scholars, journalists and the European Court itself, including those discussing the misuse of “crisification” vocabulary, as extensively analyzed by Violeta Moreno-Lax within European Union migration policy.
However, on the eve of the Chisinau meeting of Member States of the Council of Europe with the purpose of finalising the “political declaration” on the topic, it is important to conduct a broader reflection on the state of international human rights institutions and norms and, even more broadly, on the situation of the international legal order. The aim of the present post is to come back to the roots of the political message behind the Chisinau process; but also to highlight that, while migrants are taken as scapegoats in Europe – to blame the European Court and to challenge its pivotal and historic role in promoting human rights, democracy and the rule of law –, other disadvantaged groups, such as women and girls, LGBTQ+ people, Indigenous Peoples, or ethnic minorities are used as scapegoats in Geneva, New York, Banjul, Arusha or San José (Costa Rica) with the same political objective: to criticise achievements in favour of equality and dignity on behalf of States’ sovereignty. Therefore, the pushback over the European Court’s so-called judicial activism or abuse of the “living instrument” doctrine that would hamper States’ efforts to fight against migrant smuggling must be construed for what it is: a deeply concerning symptom of a general and universal trend of State pushback over otherness, whatever face it has.
From Chahal to Chisinau: The Long Dismantling Strategy of the Non-Refoulement Principle
The Chisinau process and the narrative underlying the Steering Committee for Human Rights (CDDH) document did not begin with the open letter of nine of May 2025: the attacks on the European Court’s interpretation of the absolute prohibition of refoulement under Article 3 of the ECHR in expulsion and extradition situations lead back to the 1990s, and are closely linked to the Soering v. UK (1989) and Chahal v. UK (1996) judgments. Since the 1990’s, the question of the absolute nature of the prohibition of removal from territory of terrorists was already raised: in the extradition case of Saadi v. Italy (2008), the UK argued in its third-party intervention that, considering the international terrorism context, the Chahal approach should be revised by the Court. In this regard, the State affirmed that
[…] the threat presented by the person to be deported must be a factor to be assessed in relation to the possibility and the nature of the potential ill-treatment. That would make it possible to take into consideration all the particular circumstances of each case and weigh the rights secured to the applicant by Article 3 of the Convention against those secured to all other members of the community by Article 2. Secondly, national-security considerations must influence the standard of proof required from the applicant.
A few months later, in the A. v. the Netherlands judgment, the same State – supported by Lithuania, Portugal and Slovakia – again challenged the “Chahal jurisprudence”, i.e. the affirmation by the European Court of the absolute prohibition of removal from territory in case of risk of ill-treatment based on Article 3 of the ECHR. The interveners stressed that “because of its rigidity, that principle had caused many difficulties for the Contracting States by preventing them in practice from enforcing expulsion measures.” Further in their intervention, they reaffirmed the need for a reassessment of the Chahal jurisprudence.
Therefore, the core-principle of the absolute prohibition of torture and other ill-treatment under Article 3 ECHR in removal from territory cases, as one of the values of a democratic society stressed by the European Court in Selmouni v. France, has long been challenged – not only in this context of migration but, from the 1990’s on, also in other situations. In Saadi v. Italy, the UK – one of the drafters of the ECHR –, added that the absolute prohibition of ill-treatment in extradition/expulsion cases “did not reflect a universally recognised moral imperative and was in contradiction with the intentions of the original signatories of the Convention”. In the 1990’s and 2000s, States used the counter-terrorism argument and from the 2010s, it has been replaced by the “migration crisis” narrative.
Against this background, Esra Demir-Gürsel has rightly explained that massive migration and forced displacement of persons due to the Second World War are consubstantial to the drafting process of the ECHR. Consequently, European States cannot pretend that the challenges raised by human mobility were unknown when they drafted the ECHR, except if they publicly assume, such as Judge Pejchal did (in one of the most problematic individual opinions ever written by an international judge), that the ECHR should be reserved for European citizens and taxpayers.
Universal backlash over disadvantaged and disfranchised persons and groups
The call for a wider State margin of appreciation for assessing the non-refoulement principle in migration contexts in Europe is not only problematic considering the unequal, or even racist discourse it openly or indirectly echoes (see the CDDH document). Seen in a broader perspective, it is deeply concerning in the sense that it relies on an exclusionary approach to human rights, irreconcilable and blatantly at odds with their universality.
In this respect, the “migration crisis” narrative in Europe used for restricting the adjudication and monitoring functions of the European Court is not different from the worldwide backlash on women’s rights noted by the United Nations Working Group on Violence against Women and Girls, which has had a direct impact at the UN during the 2026 Commission on the Status of Women in New York and more broadly on the UN; the increasing hostile discourse against LGBTQ+ rights that would threaten “traditional family values” and “children’s rights”; the pushback over domestic democratic institutions, the rule of law and fair election processes, which has triggered massive State withdrawals from the African Court of Human and Peoples’ Rights’s jurisdiction to receive individual complaints (Article 34-6 of the African Charter on Human and Peoples’ Rights); and States’ attacks on the Inter-American Court of Human Rights’s progressive stance on LGBTQ+ people’s, Indigenous Peoples’, or other disadvantaged holders’ rights. Other regional and universal human rights monitoring bodies are also criticised by States in other parts of the world for preventing them from defending their sovereignty and their society against these minorities defying the way of life of the majority.
Therefore, before dismantling what has been progressively and carefully built at the European level since 1959, States’ decision-makers must understand what is at stake in Chisinau. The “reform” is not about providing the European Court and States with temporary technical tools and means of overcoming a “crisis”, but about opening a dangerous Pandora’s box where others should not be protected on an equal basis but must be treated differently – now migrants, and then women, ethnic minorities, non-citizens, elderly persons, persons with disabilities, LGBTQ+ persons, persons deprived of liberty, persons who use drugs and all others whose way of being and living is perceived as threatening to national security, national identity, national values, national demography, or national economy. The justifications might change from a period to another and from Europe to Africa or the Americas, but the rationale is the same.
Restraining the European Court’s So-called Judicial Activism by Limiting Dynamic Methods of Interpretation
Indeed, the pushback over human rights and their monitoring bodies not only concerns substance: the methods used by States are also similar in Strasbourg, Geneva, Arusha or San José. The bodies are labelled as “activist” or “militant”; they exceed their mandate; and the methods of interpretation they use are considered as breaching the States’ “original” intent. In this regard, the criticism of the “living instrument” principle of interpretation in the letter of nine is not limited to the European system, nor to migration issues. It is instead observable within the UN or other regional mechanisms regarding any kind of human rights matters, including those dealing with the right to life. It is exemplified by Canada’s pushback on the positive obligations theory developed by the UN Human Rights Committee regarding article 6 of the International Covenant on Civil and Political Rights (ICCPR, 1966): in its recent periodic review (2026), the State called for an “originalist” interpretation of the ICCPR, contesting that the “original intent” was to impose positive obligations on States related to climate change or health of migrants.
In the same vein, in April 2019, a group of Latin American States led by the then Brazilian Head of State, Jair Bolsonaro, attacked the Inter-American Court of Human Rights for using external sources when interpreting the American Convention on Human Rights – what the Court has named the “international corpus juris”. They called for following the European model of self-restraint, subsidiarity and respect for States’ margin of appreciation (for a study of pushback and backlash over the Inter-American system, see here).
And yet, it is important to note that, while the level of protection provided by the different bodies and their so called “activism” may vary, the criticisms by States are the same. Compared to other universal and regional bodies, the European Court is probably the least “activist” organ in terms of asylum seekers and migrants’ protection against pushbacks, interpretation of States’ jurisdiction, and consideration of States’ security narrative, among other issues. The standards set forth by the Inter-American Court, the UN Human Rights Committee or the UN Committee on the Rights of the Child regarding the prohibition of discrimination against migrants as a jus cogens norm, asylum seekers’ rights at borders or in migration offshore facilities, and State’s extraterritorial jurisdiction are higher, more comprehensive, and much more protective than those applied by the European Court.
This means that, analysed from a broader global stance, the European Court’s so-called “activism” in its migration jurisprudence is not supported by objective and concrete data. It equally means that even when the European Court is far behind the other human rights bodies in terms of level of protection – such as in the N.D. and N.T. v. Spain judgment –, States are still unsatisfied.
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In this regard, the Chisinau process is symptomatic of a longstanding, multilayered and deep institutional and substantial crisis, not only at the Council of Europe but also more globally, at the multilateral level. It is not only a regressive step promoted by populist governments. At the institutional level, it reflects a general fatigue vis-à-vis judicial or non-judicial accountability mechanisms, also visible in the other regional and universal systems. States are increasingly reluctant to be subjected to institutions they have themselves freely created or accepted.
The Chisinau process equally represents an unprecedented pushback against almost 80 years of acquis in international law. The raison d’être of human rights instruments, including the ECHR, lies in Article 1 of the Universal Declaration of Human Rights, i.e. the equality in dignity and rights of individuals. One of the main achievements of regional and universal human rights mechanisms is precisely to give concrete content to this provision. Revising the conditions of applicability and the application of the absolute prohibition of torture and ill-treatment for a category of rights-holders would therefore mark the moral bankruptcy of the whole human rights project as drawn from 1948.
