Since the adoption of the European Convention on Human Rights, the system has been recognized for its continuous and progressive evolution. Through slow but incremental change, over the past decades we have witnessed the adoption of new protocols that grant individuals access to the European Court of Human Rights, enhance existing rights, such as by abolishing the death penalty, and expand the range of protected rights, from property rights to the prohibition of the collective expulsion of aliens. Human rights have also been strengthened through the evolutive interpretation of the European Court of Human Rights on such issues as the rights of LGBTI persons or the protection of the environment. Certainly, defending human rights has always been a struggle, marked by significant setbacks, even if the overall trend has been, broadly speaking, upward. This slow but progressive evolution of human rights law has largely taken place within a broader climate of progressive development of international law.
This trajectory of progressive development is being tested today by new attitudes towards human rights in particular and international law more generally. As Michael O’Flaherty, the Council of Europe Commissioner for Human Rights, has recently observed:
“In recent years, we have seen a pulling away from the standards, a willingness to say, ‘if I don’t like the standards, they don’t apply to me’…. [In the past] your government might do bad stuff, but it would still make every effort to persuade you that it wasn’t doing the bad stuff. Today, it is just as likely that they will say, ‘Yes, we are doing the bad stuff. And that’s because that is our choice. That is what we need in this particular moment.’”
In May last year, nine Council of Europe member states issued a letter stating that “what was once right might not be the answer of tomorrow” and suggests that the European Court of Human Rights’ progressive interpretation of human rights prevents states from protecting democratic societies, particularly by extending protection to migrants perceived as ungrateful for the hospitality of their host states.
In response to the Letter of 9, the Secretary General of the Council of Europe has called on states to refrain from attacking the Court and instead to use the institutional avenues of the Council of Europe to channel their concerns, which must be fact-based. Since then, we have witnessed a new Letter of 27, as well as reports developed by the Council of Europe steering committee on human rights (CDDH) outlining how a future political declaration on migration might take shape (click here for a list of relevant documents). In less than two months, the Committee of Ministers of the Council of Europe is expected to adopt the so-called Chișinău Declaration.
A number of scholars, activists and human rights institutions have warned against the Letter of 9 and 27, and the risks of the Chișinău Declaration. At the same time, Attorney General Lord Hermer has recently argued that “those of us who champion the convention must also be honest: it is being tested by today’s global challenges as never before – particularly the scale and complexity of migration. Legitimate concerns exist, which is why we are acting with European partners to ensure that it retains public confidence”. In his view, this process “is not about removing fundamental rights, reducing our commitment to the convention or seeking to change the absolute nature of Article 3. But because it is absolute, it must be applied with care, and in a manner that faithfully reflects its focus on the most serious forms of ill-treatment”.
Are the above concerns regarding the Court’s interpretation of human rights on migration legitimate and fact based, can a call for reinterpretation of human rights on migration not lead to reduction of human rights of certain vulnerable groups, how should the Court respond to such calls that are expected to be anchored in the Chișinău declaration. To reflect on some of these issues, we have invited some of the leading scholars and practitioners in the field of ECHR law to contribute to our symposium on the Challenges of Chișinău. We very much hope that these discussions will shed light on these current challenges, and we are profoundly grateful to all the authors for their timely and excellent contributions.
