In a very remarkable initiative, the heads of government and state of no less than nine European states together published an open letter yesterday calling for a shift in interpreting the ECHR in the field of migration, especially relating to 'irregular migration' and the possibility to 'expel criminal foreign nationals'. The letter wants to open up 'an open-minded conversation' on whether the European Court of Human Rights has gone 'too far' in interpreting the Convention in this field.
The letter claims to want to 'restore the right balance'. On one side of that balance, the rhetoric of the letter clearly puts security and safety language and national decision-making-power and democracy. It adds that this vision aligns with the majority of citizens in Europe, in the view of the states behind the letter. The other side of the balance is apparently the current way in which human rights on this issue are protected and interpreted by the Court. It explicitly says Europe is moving 'in the right direction' in tackling irregular migration. And in parallel it explicitly questions the Court's standing case-law. Apparently, the Court's interpretation is seen as a stumbling block.
Concretely, the letter calls for three things:
'- We should have more room nationally to decide on when to expel criminal foreign nationals. For example, in cases concerning serious violent crime or drug-related crime. By its nature such crime always has serious implications for the victims.- We need more freedom to decide on how our authorities can keep track of for example criminal foreigners who cannot be deported from our territories. Criminals who cannot be deported even though they have taken advantage of our hospitality to commit crime and make others feel unsafe.- We need to be able to take effective steps to counter hostile states that are trying to use our values and rights against us. For example, by instrumentalizing migrants at our borders.'
This letter is, in my view, remarkable indeed in at least four respects:
First, the allusion to a hierarchy of considerations that squarely goes against the existing legal understanding of human rights: 'In our opinion, safety and security for the victims and the vast majority of law-abiding citizens is a crucial and decisive right. And, as a general rule, it should take precedence over other considerations.' This might be the most worrying alarm bell in this letter. Human rights adjudication, after all, already in the system of reasoning itself almost always includes balancing. No right is more important than another and considerations of security and safety can (and very often do) feature self-evidently in the equation. The Court has recognised on many occasions that tackling crime and protecting the population are, as several provisions of the ECHR also make explicit, legitimate aims and has acknowledged states have leeway in this respect. Yet, any action should always be in line with human rights standards. The letter's phrasing of hierarchy squarely goes against the idea of there being no hierarchy between rights, nor between people. Tackling important and genuine concerns such as crime should not in passing erode these basic starting points, not only for reasons of a slippery slope, but also stemming from the fundament of human rights for everyone, even for those disliked most by society. The letter's wording of the Court's case-law in some cases having protected 'the wrong people' (read: foreigners convicted of crimes) is in that sense telling and even dangerous from a human rights perspective.
Second, the shape of the initiative: an open letter by heads of state and government, published amongst others on the website of the Italian government. Ostensibly directed at everyone, it of course primarily is aimed at the Court and its case-law. It seems to be a next step in at least two discussions: one of the migration and crime issues the letter directly addresses and in which thus far most legal battles took place within individual cases before the Court - although there were of course many earlier statements by politicians that the Court was binding their hands too much on this - and secondly the broader and long-ranging one - which was primarily put on the agenda by the United Kingdom's earlier governments in the past fifteen years and later also by the Danish one (and echoes of it were heard in several other European countries): whether the Court was over-reaching and should leave more leeway to national policy-making. The renewed emphasis on subsidiarity in amongst others the 2012 Brighton Declaration of the High Level Conference on the Future of the European Court of Human Rights and the subsequent inclusion of such language in the Preamble of the ECHR through Protocol 15, adopted in 2013, were earlier signposts in these heated discussions. By choosing this form of communication, this publicly, the governments behind the open letter putting a new round of pressure on the Court.
Third aspect standing out: by whom this has been put together and in which constellation. The letter indicates it was an initiative of Denmark and Italy, and observers of political news may not be surprised as both states have for quite some time both in discourse and policy been very strict on what they call irregular migration as well as on wanting to be able to expel foreigners convicted of crimes and have clashed in several cases with the case-law of the Court. The letter was made public at the end of the bilateral meeting of Danish Prime Minister Mette Frederiksen and her Italian counterpart Giorgia Meloni in Rome. The other seven joined the initiative of the open letter, in a mix of of states from all over Europe: Austria, Belgium, the Czech Republic, Poland and the three Baltic States Estonia, Latvia and Lithuania. What they all have in common is that they are European Union member states - and of course EU and ECHR law are closely interwoven on the issue of migration. In all of them issues of migration have been quite prominent on the political agendas, for different reasons. Yet, these states are far from unique in this perspective. Thus, equally notable are states that have not joined but which one might have expected. Sweden and the Netherlands with governments also claiming to be very strict on migration and crime (within the Dutch coalition the debate on whether to sign the letter almost caused a crisis and in the end led to a decision not to sign, with those in favour of protecting the Court and the rule of law winning out over those in favour of very strict migration policy, one could say). Finland in which a debate on Russia's instrumentalisation of migration at the borders has caused deep fissures. And, maybe partly less surprising states like Hungary or Slovakia that have governments which would not in any way want to be seen as (even indirectly) criticising Russia, even if especially the government of Hungary is also very known for its anti-migration rhetoric.
The fourth element of note are the rhetorical references to history and the dual tone. The letter speaks of a need to check how existing conventions 'match the challenges that we face today'. It is full of dual messaging: the letter speaks of rights being the cornerstone of democracy, yet states that 'what was once right might not be the answer of tomorrow'. It calls the ideas (of assumedly human rights) that were conceived 'in the ashes of the great wars' as one the one hand 'universal and everlasting' yet at the same time says that 'we now live in a globalized world where people migrate across borders on a completely different scale.' As a historian myself (but others are more expert on this) I would challenge whether this is even completely true, as the post WWII years were marked by enormous degrees of displacement and thus migration across borders in Europe. But apart from that, the constant emphasising of the importance of the rule-based multilateral order yet at the same time calling the Court's interpretation of the ECHR into question, sends a double message. I leave it to communication science scholars on how the letter does this and which various discourses it tries to wed into an uneasy amalgamation, but any reader can see that it the letter clearly makes a divide between useful and unwanted migrants and between domestic democracy and an international court that apparently, in these states' views, binds their hands too much.
To be continued for sure, but whichever shape this 'open-minded conversation' takes, it will be a new test for the European architecture of human rights. Depending on how this is done and to what extent, it could lead to anything from subtle shifts in case-law (the Court indirectly responding to this political messaging) to a protocol changing some parts of the Convention and this shifting the substance of protection. Beyond the immediate subject-matter, which from a historical perspective is truly a sign of our times, the bigger issue at stake is the constant and difficult balancing, pushing and clashing between political and judicial power at both the domestic and international levels. In an era of erosion of the rule of law and increasing political attacks on judiciaries in several European countries, this is not an academic or theoretical debate. The drafters of the open letter seem to be very aware of how it could be read. As they state: 'We know that this is a sensitive discussion. Although our aim is to safeguard our democracies, we will likely be accused of the opposite.' All the more reason to say that this is something to be followed closely, by academics and practitioners. How the call in the letter is put into practice will define the character and salience of the ECHR system for years to come.
