It has been a testing year for the European Court of Human Rights, from the letter of nine states in May 2025 to the Joint Statement of 27 to the Chișinău process that will culminate in a political declaration on migration on 15 May 2026. The origins of the process (opportunistic sniping from various capitals) and its conduct (rushed, opaque and exclusionary) have provoked mounting concern that it could trigger regression in human rights protection, including in respect of the absolute prohibition of torture and other severe ill-treatment, based on what Ed Bates calls a “false and … damaging narrative”.
In this piece, we build on our previous calls for evidence-based scrutiny, principled engagement and an inclusive and transparent process. As member states head into the final push for consensus ahead of the summit in Chișinău, we emphasise some of our remaining headline concerns.
Regressive intent
High-level political engagement with the CoE is an important but rare commodity which has tended to be reserved for times of crisis or profound change. In 1993, states set the CoE on a path of expansion; in 1997, states focused on democratic stability and agreed to set up a Commissioner for Human Rights; in 2005, the focus was on effectiveness and coherence; and in 2022, in the Reykjavik Declaration, states proclaimed “unity around values”, articulating a new role for the organisation given the return of conflict to Europe. Numerous other ministerial level political declarations were issued in the intervening years, in particular in the framework of the Interlaken process. The common denominator was a focus on advancing the implementation of the ECHR and judgments of the Court.
Here is where the Chișinău process differs profoundly: from the outset, it was intended to limit states’ obligations, reduce the likelihood or impact of future litigation, and provide political cover for any number of future initiatives aimed at limiting migration, especially asylum seeking. Far from being united around values, certain states seem joined by the desire to evade some of the universal human rights they once championed. To put it another way, although cloaked in ostensibly reassuring or ambiguous language, the Chișinău Declaration can only result in a reduction in human rights protectionfor certain (still ill-defined) categories of migrants. It is therefore regressive in its intent, and this is entirely unprecedented.
The outcome document containing elements for a political declaration arising from the recently-concluded CDDH (Steering Committee for Human Rights) process draws its structure, and much of its content, directly from the letter of nine and Joint Statement of 27. This fact should give states pause for thought, as the implications are striking. Within a period of 11 months, what began as a minority of nine states managed to lead a heave against rights developed over 75 years, and the rest of the states have either aligned with the nine or raised no principled objections, at least publicly.
Nor is the timing coincidental; the declaration has been timed to be adopted before the entry into force of new rules on migration introduced under the EU Pact on Migration and Asylum on 12 June 2026, which will directly affect the majority of Council of Europe (CoE) members, and indirectly affect several others. The intention seems clear that the Chișinău Declaration might provide legal and political cover for already questionable provisions of the EU Pact.
Contesting the framing of the Chișinău process
It is important to interrogate the very premise of the Chișinău process and the way in which states have framed the connection between human rights and migration.
The suggestion that the Chișinău process was necessary due to “significant, complex challenges” that were unforeseen by the drafters of the Convention or have since evolved significantly is ahistorical. As Esra Demir-Gürsel argues, it fails to recognise that the ECHR was drafted against the background of the mass scale displacement of people in war, and a desire to restrict post-imperial migration. This, she reminds us, is precisely why the drafters, which included major colonial powers, ensured that the Convention did not contain the right to freedom of movement between states, or to asylum or nationality. Governments also seem to ignore the extent to which the Court itself has sometimes “taken up anti-migration arguments based on sovereignty and democracy”.
It is further problematic that, from the letter of nine onwards, certain dichotomies have been asserted without a clear evidential basis: that protection of human rights (and especially migrants’ rights) is inherently in conflict with national security, public order and democracy.
This framing has been challenged by, among others, the European Network of National Human Rights Institutions and the CoE Commissioner for Human Rights, as well as being the subject of academic inquiry. The suggestion that migrants are responsible for increased crime is not borne out by evidence (see here and here), even as it has been asserted loudly in the context of political challenges to the ECHR.
The alleged zero-sum trade off between human rights and national security – which is still evident in the preparatory documents – is problematic and intellectually dishonest. It has been empirically debunked on grounds including the value of human rights treaties as a pre-condition for intelligence cooperation and the need to maintain public trust in the institutions that safeguard security. It also contradicts the CoE’s own well-established policy of “democratic security”. To quote Secretary General Berset, “[a]t a time when the European security architecture is being reshaped, our role is to uphold what cannot be compromised: democracy, human rights and the rule of law”.
The invocation of the concept of a “democracy capable of defending itself” in the context of the “instrumentalisation” of migration is similarly disingenuous. This appears in the CDDH outcome document, although the reference in earlier iterations to Article 17 ECHR (prohibition of abuse of rights) was removed. The wording in the outcome document could still, however, be read as suggesting that applicants alleging violations during state pushbacks were attempting to undermine the Convention system – a disturbing echo of the Joint Statement of 27 states, which referred, without evidence, to human rights being instrumentalised by “hostile regimes and individual applicants with ulterior motives” (emphasis added).
Seeking guidance or applying pressure?
The inference throughout the Chișinău process has been that the European Court of Human Rights unduly ties the hands of elected politicians. Yet the most striking aspect of the CDDH documents is the fact that at no point do they criticise the Court’s case law in specific terms, either in respect of particular judgments or principles of interpretation. Instead, the outcome document at numerous points calls for “guidance” or “clarity” from the Court on various issues. These calls are not unreasonable in themselves; specific aspects of the Court’s case law would benefit from further dialogue in respect of domestic judicial application.
However, governmental pronouncements from states must be read in the context of the power imbalance between states and the Court, which is constrained from entering the political fray. While some states may genuinely be inviting constructive dialogue and respecting the Court’s interpretive authority, the outcome clearly desired by others is for the Court to become more deferential than it already is in its migration-related case law. Overall, set against the Joint Statement, it is difficult not to see the text as constituting improper pressure, especially where cases are currently pending e.g. regarding “instrumentalisation”. We note, too, that for states to express views about pending cases sits uneasily within a document that aspires to longevity.
Judges of the European Court of Human Rights will not read such requests for clarity in abstracto. They understand precisely what the majority of states are asking them: “tell us what we want to hear”. In that regard, states arguably have already achieved their objective of putting pressure on the Court. As the outcome document acknowledges, states already have multiple ways of seeking guidance and clarity. All of these could be pursued without the need for a political declaration. For example, states can interact with the Court through the Superior Courts’ Network, the Court’s Knowledge Sharing platform, requests for referrals to the Grand Chamber, third party interventions, meetings between the Court and Committee of Ministers (CM), as well as through the under-utilised Protocol 16 Advisory Opinion mechanism. It is striking that the outcome document encourages states to consider ratifying Protocol 16, when states that have driven the Chișinău process (including Denmark, Italy and the UK) have not done so.
Conclusion
Members of the CDDH have produced a consensus text which needs to be signed-off at official level before being adopted by ministers. In practice this means being agreed at the level of the Committee of Ministers Rapporteur Group on Human Rights in April, and the CM Deputies (i.e. all member state Ambassadors) in the week of 6 May, prior to the Chisinau ministerial on 14-15 May.
The window of opportunity to make amendments is rapidly closing. Whilst it is possible that some governments might seek to harden the language further, the desire for consensus will probably dissuade states from opening up the text one way or the other.
Ultimately, what will all of this achieve? The declaration will be largely performative, an exercise in exculpating national politicians and scapegoating the Court for domestic discontent around immigration, often inflamed by the very national actors that now seek to externalise responsibility to Strasbourg. The declaration is unlikely to make a visible difference to migration; as we have argued elsewhere, governments should have first examined their domestic policy and practice and may find that they have more discretion to adjust their immigration policies, decisions and judicial interpretations than they realise. Certainly, the declaration will not strengthen the unity or credibility of the CoE. Rather, its language could be weaponised in the context of future “innovative” actions taken by states to block migrants, raising Europe’s metaphorical walls and simultaneously weakening its foundations.
