On May 15, the Committee of Ministers of the Council of Europe (CoE) unanimously adopted a political Declaration on the European Convention on Human Rights (ECHR) at their annual session in Chișinău. What was adopted is more measured than the political statements that preceded it. But the underlying tension – driven by the demand of some states to pursue more restrictive migration policies without being constrained by the Convention – remains. The Declaration is arguably not the catastrophe it could have been but its moderation is beside the point. By purporting to define what Convention guarantees substantively mean, the member states have crossed a line that no diplomatic phrasing can neutralise.

From the “Letter of the Nine” to a Political Declaration

In May 2025, nine governments – led by the Denmark and Italy – published an open letter claiming that the Court had overreached in its interpretation of the Convention’s guarantees. The signatories called for an “open-minded” debate about how the ECHR should be interpreted, ostensibly to restore a balance they claimed had been lost. Many, among them also the Secretary General of the CoE, Alain Berset, read the letter as a frontal challenge to the Court’s authority (for a detailed analysis see here).

The CoE channelled the controversy into a formalised process. An informal ministerial meeting in December tasked the Human Rights Steering Committee (CDDH) with drafting a political declaration. In the margins of that same meeting, a sharper and more alarming joint statement of 27 states reignited the narrative that the Court’s case law was hampering them in their migration policies and called for a more restrictive application of Articles 3 and 8 of the Convention (for a critical analysis see here).

The final Declaration, building on the Steering Committee’s work, was adopted on May 15. Much anticipatory commentary had warned that the final text might formally undercut the Court’s authority (see here, and for an analysis of the author herself here). So, what does it actually say?

A Harder Draft, A Softer Outcome

The good news is that several of the most troubling elements present in the CDDH’s final draft did not survive in the adopted text. This is most likely the price of unanimity: in order to secure the agreement of all member states, some of the more radical demands had to be diluted or dropped. We should not, however, assume that the 27 states behind December’s hardline statement have abandoned those positions. But it is worth noting that they failed to organise a blocking majority for them (the parallels with the draft Copenhagen Declaration of 2018 are worth recalling).

The final Declaration explicitly affirms the independence of the Court – a commitment placed pointedly at the beginning of the document (preamble para. 3). The version adopted no longer includes the provision that would have subjected the Court’s development of Convention guarantees to political dialogue between states and the Court (CDDH Draft para. 11); only their respective roles in applying the Convention remain the subject of that conversation (para. 48).

Equally notable is what else disappeared: the explicit references to the instrumentalisation cases currently pending before the Court (CDDH Draft para. 55; as opposed to para. 37-40 of the final Declaration). In these cases, the Court is called to assess pushbacks of migrants at the Belarusian border carried out against the backdrop of state-facilitated migration flows designed to put pressure on the EU. Framing the passage on instrumentalisation in general terms rather than commenting directly on the pending cases (particularly para. 39) is welcome, though it likely reflects a desire to extend the Declaration’s longevity rather than any principled restraint.

Throughout the text, the Declaration does not explicitly criticise any existing case law. Thus, it abstains from reproducing the prior narrative that the Court hampers effective migration management. Even more laudable, near the end, the Declaration calls on member states to prevent the spread of misinformation about its case law (para. 58). That passage reads at least as a tacit acknowledgement of how states have weaponised that narrative to criticise Court.

The Remaining Problem

These edits matter, but they should not distract from what the Declaration still does: it asserts that the states themselves can pronounce on the substantive content and right interpretation of Convention rights. Such substantial remarks are entirely novel to the established instrument of a political Declaration.

Take the entire subsection on Article 3. The Declaration states that the threshold for inhuman or degrading treatment – a guarantee that is, it bears repeating, absolute and non-derogable (as also acknowledged in para. 22) – should be met only in “very exceptional circumstances” (para. 25).

The Declaration continues to express that deficient healthcare (para. 25), socio-economic hardships (para. 26), poor detention conditions (para. 27) and a generally poor human rights record of the receiving state (para. 28) should not suffice on their own to establish a risk that prevents states from returning migrants under non-refoulement, at least not automatically. Effectively, this can be read as an implicit call upon the Court to narrow the scope of Article 3 in the migration context.

On expulsion and deportation of foreign nationals who have committed criminal offences, the Declaration insists that only national law should govern the decision (para. 21), and that “unnecessary constraints” by the Court should be avoided (para. 23). The principle of subsidiarity is invoked throughout (paras. 1, 4, 5, 6, 32, 52, 55).

The Declaration also fails to engage properly with the Court’s case law. It underlines that the states enjoy a particularly wide margin of appreciation in matters of national security (para. 32). The CDDH Draft, from which this formulation was taken, supported the claim with references to the Court’s case law (Fn. 16). It cited Gaspar v. Russia as a source for the wide margin (para. 43). Yet, this reference is misleading: In that case, the Court immediately qualified its statement (para. 44) and eventually found a violation. The Draft passes over this qualification in silence. Although the final Declaration omits the footnotes, its assertion of a wide margin still relies on this non-differentiated reading of the Court’s case law.

Similarly, the Declaration asserts that a diplomatic assurance can “obviate” an Article 3 risk (para. 30) without engaging with the Court’s demanding requirements for when such assurances are actually sufficient to rebut that risk (cf. particularly Othman (Abu Qatada) v. the United Kingdom).

Throughout the Declaration, sweeping state powers are qualified by the reminder that they must of course be exercised in conformity with the Convention (para. 24, 35). In practice, however, these compatibility clauses carry little independent weight. They do not define, limit, or condition the powers in question and remind a lot of the hollow human rights compatibility clauses in the EU’s New Pact on Migration and Asylum.

Finally, the Declaration emphasises the need to respect the circumstances of a case and adapt a “context-specific” application of Convention rights. This echoes the context-driven interpretations the responding Governments have advanced in the oral hearings of the instrumentalisation cases (see above). This risks the gradual creation of a Convention underclass: groups whose rights are formally guaranteed but contextually diluted wherever states deem the circumstances sufficiently exceptional (see here). The AGORA group, in an immediate response, raised the same concern, warning that differentiated standards would create a hierarchy of rights-holders and risk eroding protection for other groups in the future.

Why This All Matters

What makes the Chișinău Declaration different from prior political declarations and particularly troubling is its substantive content and the ambition behind it. Previous declarations had sought to influence how the Court operates – its procedures, its docket management, its relationship with domestic courts (for an overview see here). This Declaration goes further: it purports to shape what the Convention guarantees mean. This qualitative shift is why the Declaration’s diplomatic tone cannot be mistaken for relief.

The entire process was driven by states whose primary interest is in narrowing the Convention’s reach in migration matters and to place national security interests above the individual rights of migrants. That the final text is more measured and softened than prior Drafts is likely thanks to the influence of the states that already declined to join the December statement (notably the states receiving the most migrants, Germany, France, and Turkey were among them). But their moderating influence should not be mistaken for resolution of the underlying and ongoing conflict.

What Comes Next

The Declaration does not formally bind the Court, but it shapes the interpretive environment in which it operates. It signals to domestic courts, state agents, and the public what member states collectively believe the Convention means. The Court itself is not immune to such signals. If the Declaration’s practical effect is limited to prompting more detailed reasoning in migration judgments, that would be the best outcome one could hope for.

But the deeper problem is structural. A political declaration that claims interpretive authority over the Convention, however diplomatically worded, normalises that claim. The line crossed at Chișinău is not defined by the harshness of the text, but by the fact that it contains substantive demands at all. Whether the states’ promised respect for the Court’s independence amounts to more than lip service remains to be seen.

The post Crossing a Line in Plain Sight appeared first on Verfassungsblog.