By Alice Donald and Andrew Forde
In Greek mythology,
Procrustes made visitors fit his bed by either stretching them or cutting off
their legs. Sure, they would “fit” the bed, but at what cost? Applying an
arbitrary approach to a complex problem and ignoring the harm that may result,
Council of Europe governments are building their own Procrustean bed.
Member states will
meet in Chișinău in May to adopt a political declaration on migration and the
European Convention on Human Rights. It marks the first time that states have
embarked on a process that, judging by its origins and conduct, can only
result in a regression in human rights protection for certain (still
ill-defined) categories of migrants and perhaps, in time, for everyone.
The process stems
from an Informal Ministerial Conference on 10 December
2025, where states instructed the Steering Committee for Human
Rights (CDDH) to prepare elements for the political declaration (see the latest
iteration here). Following meetings in January and February, and another on 10-12 March, the CDDH must report back by 22
March so that Ambassadors can finalise the declaration before the Committee of
Ministers (CM) meets on 14-15 May 2026.
Much has been
written about the Chișinău process and the letter of nine of May 2025 and Joint Statement of 27 states issued in
December, which effectively set its agenda; see our submission
to the CDDH, analyses of the process (Acconciamessa, Donald and Forde, Glas, Krommendijk and
Möller)
and commentaries focusing on the risk of weakening Article 3 in expulsion cases
(Fikfak, Mavronicola).
Here, we argue that
the process has not escaped its problematic origins in the politicised sniping
at the Court from various capitals. It has been rushed and exclusionary, and
brings greater risks than benefits for a system already under pressure. The result
has been a narrative driven by certain states without a clear evidential basis,
with many silent states yet to reveal their hand publicly. We urge member
states to use the remaining weeks to build on points of progress and minimise
the scope for unintended consequences, transforming the Chișinău Declaration
into something constructive for the Convention system and states alike.
Comparison with
Interlaken
The Chișinău
process compares unfavourably with the Interlaken process from 2010-2020. Interlaken
had a clear and constructive purpose – “reinforcing the
effectiveness and sustainability of the Convention system”. While its impact
was mixed, and some states used it as a venue to challenge the authority of the European Court of Human
Rights, it had a solid evidential basis: the unsustainable caseload
in Strasbourg caused by states’ failure to fully implement the Convention and the Court’s
judgments.
The Interlaken process also allowed for
participation by civil society and national human rights institutions (NHRIs), including
through the CDDH and its subcommittees. High-level
conferences stressed the
importance of external consultation, which in turn influenced the declarations,
notably Brighton in 2012 and Copenhagen in 2018.
A rushed and
politicised process
By contrast, the
Chișinău process is unusually compressed. In October 2025, the Secretary
General proposed
a high-level conference and the adoption of a declaration in 2026, but this did
not bind states to a May deadline, which was set by Ministers at the 10
December meeting amid growing political pressure from some states. The timetable – less than six months from start
to finish – was unduly short to consider such consequential issues and
has made it difficult for external stakeholders to contribute (although we
acknowledge, and appreciate, that our unsolicited submission
was informally circulated to CDDH members). It has also largely precluded
consultation or parliamentary deliberation at national level. The “very short deadline” also led the CDDH to
decide, unusually, that comments submitted by participants and observers would only be
discussed when supported by the delegation of a member state.
Not only is the
Chișinău process less inclusive than Interlaken, but it also has more parochial
aims, reflecting some states’ wish for a freer hand to reduce migration and
speed up expulsions while reducing the scope for legal challenge based on the
ECHR. The process must also be seen in the context of the EU Migration Pact, which enters into force in
June, just a month after the declaration. The Pact already pushes the boundaries of human rights law, and
EU states may be hoping that the Chișinău declaration will serve as a
convenient shield for the measures foreseen nationally and collectively under
the Pact.
The CDDH process
It is welcome that the process has
been brought within the proper channel of the CDDH, which allows for structured,
comprehensive and transparent discussions, with the participation of the other Council of Europe
organs and observers drawn from civil society, academia and NHRIs, supported by
an expert secretariat. Yet, many of these potential
advantages now risk being squandered.
The Council of Europe Commissioner for
Human Rights has proposed four yardsticks for the process: that it should be law-based
rather than driven by political considerations; factual and
evidence-based; firm on the principles of the universality of human rights and the
Court’s independence; and transparent to the public.
We now consider how far these have been – or still could be – achieved.
Law-based or political?
The overtly
political origins of the Chișinău process justify the Commissioner’s concern for the
declaration to be legally watertight.
Some significant revisions have been made
in the CDDH document between its first and second iterations. For example, the latest version
omits an earlier suggestion that, in situations of “mass irregular arrivals”,
states may apply “rules-based decision-making … without
necessarily examining individual circumstances in every case”. This proposal ran
counter to the Council of Europe’s
2009 Guidelines on accelerated asylum procedures and was not supported by the Court’s case
law.
Another welcome revision is the removal of a
statement in the section on “instrumentalisation of migration” that the concept
of “democracy capable of defending itself”, as developed in the Court’s case
law under Article 17 (prohibition of abuse of rights), may be relevant. This
could have been read as suggesting that applicants alleging violations during state pushbacks were complicit in their own
instrumentalisation and attempting to undermine the Convention system – a troubling echo of the Joint Statement of 27 states, which referred, without substantiation, to human rights being
instrumentalised by “hostile regimes and individual applicants with ulterior
motives” (emphasis added).
However, other
questionable passages that evince the blurring of the legal and political
remain. These include ambiguous statements that could be read as seeking to
qualify or relativise states’ obligations, e.g. that in determining the minimum
level of severity for inhuman or degrading treatment or punishment, the Court
should “[avoid] unnecessary constraints on decisions to extradite, or to expel
foreign nationals”. This implies, without reference to case law, that the Court
creates "unnecessary constraints” and, moreover, could be read as an
instruction to the Court in disregard of its interpretive authority under
Article 32.
It is problematic,
too, that the CDDH document retains references to case law from which the Court
has expressly distanced itself. For instance, it cites the 2012 judgment in Babar
Ahmad and Others v UK to the effect that “treatment which might
violate Article 3 because of an act or omission of a Contracting State might
not attain the minimum level of severity which is required for there to be a
violation of Article 3 in an expulsion or extradition case”. This relativist
approach was rejected in 2022 by the Grand Chamber in Sanchez-Sanchez v UK, which stated that
the Court “does not consider
that any distinction can be drawn between the minimum level of severity
required to meet the Article 3 threshold in the domestic context and the
minimum level required in the extra-territorial context”.
It is not only
specific passages but also the framing of the Chișinău process that is questionable, in at least
two respects.
First, while the CDDH text states that
the principle of non-refoulement is codified in other international instruments
(the UN Refugee Convention and Convention Against Torture) and reflective of
customary international law, it fails to sufficiently acknowledge that Convention standards
reflect other norms of treaty and customary international law and are applied
consistently with other standards of international human rights law and refugee
law. This omission matters in national contexts, like the UK, where the ECHR has become the focus of opprobrium
of radical right wing parties and public debate is insufficiently informed
about the range of treaty obligations that states have undertaken and their
mutually reinforcing nature.
Secondly, the process has been
framed as a zero sum trade-off between, on the one hand, human rights
(especially migrants’ rights) and, on the other hand, national security
and public safety. For example, the CDDH document underlines in relation
to Article 8 that “the right balance must be struck between individual rights
and interests and the weighty public interests of defending freedom and
security”. Yet, elsewhere, the text recalls that in matters of national
security, the Court affords national authorities a wide margin of appreciation
and attaches significant weight to their decision making. In sum, the text
appears to acknowledge that the Strasbourg framework is capable, without
amendment or reinterpretation, of being applied by domestic authorities in a
way that gives due respect to the public interest and discretion of national
authorities. Certainly, no case law is adduced to suggest otherwise – unsurprisingly given the
Court's increasingly deferential approach to states in
its case law on migrants’ right to private and
family life.
The framing of
human rights and security as being inherently in tension has been contested in the context of anti-terrorism
measures. Similar scrutiny is warranted in the migration context. The
implication that migration correlates with increased criminality at a societal
level has not been substantiated in the Chișinău process and ignores evidence to the contrary. This framing risks reinforcing
intolerance by scapegoating migrants for public policy challenges not of their
making – and highlights the
need for careful presentation of evidence in making any case for change.
The need for
evidence and guidance
This brings us to
the Commissioner’s plea for clarity about the nature and scale of migration-related
issues facing states.
The CDDH text
reveals the potential to misrepresent data. For example, it states that “a
significant reduction in irregular maritime crossings may result in a reduction
in the loss of lives at sea”. Data relating to Mediterranean routes show no
correlation between the number of crossings and the numbers who died or are missing; for example,
when arrivals peaked at more than one million in 2015, there were 4,055 losses,
while in 2016, when some 364,000 people crossed the Mediterranean, there were
5,136. Data analysis would reveal why death rates are variable,
including changes to states’ search and rescue policies,
use of
excessive force and unlawful killings. The text as it stands is
misleading in its suggestion that blocking maritime crossings would necessarily
save lives.
More broadly, the political declaration
should be accompanied by data and case law analysis that provides a public
evidence base both for the perceived problems and the proposed solutions. There is no uniform
migration experience across European states, but rather a variety of policy
challenges experienced to different degrees by different states. For member
states to arrive at targeted and effective solutions, the necessary starting
point is a triage of the issues they face. This should encompass factors that may impede the efficient
removal of individuals who have no legal right to remain in a state, such as
resource constraints, administrative blockages and problems in cooperation with
receiving states.
If, in addition, governments consider
that domestic decision makers are not keeping pace with the Court’s case law,
they have the opportunity – indeed responsibility – to
correct them, whether through guidance, legislation or a more active domestic
litigation strategy, as the UK Attorney General has advocated. Further, if as the CDDH text
states, member states need "further guidance” from the Court on questions
of interpretation, they may seek an Advisory Opinion from the
Court under Protocol No. 16 or engage in dialogue with other Convention actors,
which would serve to reinforce the principle of subsidiarity – properly
conceived – and avoid fundamentally compromising the system.
Firm on core
principles
On the question of
universality, the Commissioner has ventured that, “Any discourse that suggests a hierarchy of rights holders on
the basis of their being more or less deserving is deeply problematic”. By
design, or by consequence, if certain groups of rights-holders are singled out
and states make it clear how they want the Court to go in its reasoning, we are
moving towards a managed retreat from the very idea
of universal human rights protection.
Another key concern
is respect for the interpretive authority of the Court under Article 32,
especially in the section of the CDDH text on “instrumentalisation” of
migration. It includes a definition of instrumentalisation which is, without a
citation, adapted from an EU source; states that instrumentalisation
“may raise new legal and factual issues”; and adds that member states “look
forward to receiving guidance from the forthcoming Grand Chamber judgments in
the pending cases”. This passage strays uncomfortably close to pressurising the
Court and usurping its interpretive authority: to date, neither the Court nor
the Council of Europe has defined instrumentalisation, and the Court has not
determined whether it raises new legal issues. Pronouncements by member states
on pending cases also appear ill-suited to a
declaration that aspires to longevity.
Transparency
The CM notes in its
2017 Guidelines for civil participation in political decision
making that participation is “at the very heart of the idea of
democracy” to help ensure that public needs are met and democratic pluralism
upheld. Information, it adds, should be “provided in a timely manner allowing
for substantive input while decisions are still reversible” (emphasis
added).
The Chișinău
process falls short of these standards. While publication of the CDDH texts is
welcome, submissions by governments, participants and observers have not been
published due to the “interest in ensuring an
appropriate environment in which to conduct negotiations on these sensitive
issues”. This relative lack of transparency has been exacerbated by the
unreasonably rushed and non-inclusive nature of the process.
Meaningful
engagement serves multiple purposes, including ensuring better quality, more
acceptable, more legally robust and practically implementable outcomes. Civil
society actors are key partners in building the public trust and confidence in
the Convention system to which the CDDH text aspires.
Conclusion
The Chișinău
process is moving into the political negotiation phase where states will hope
to reach unanimity. It
remains to be seen how the CM will manage the process between now and the
Moldova summit, but what does seem clear is that states committed to a
rules-based international order and those “on the fence” still have significant
leverage to make Chișinău a win-win proposition – an honest acknowledgement of
challenges and a tool for progress. But this requires clear-eyed
reflection by member states: they need to examine the veracity and “shelf-life”
of their current positions and reflect on alignment with their longer-term
interests at a time when Europe faces an aggressor to the east, uncertainty to
the west and the risk of international rupture.
Political
engagement with the ECHR system is not only welcome, it is essential. We need
more good faith political engagement, not less. States should maximise their
use of the robust feedback loop in the Council of Europe, raising specific
concerns including within the framework of the CM, the network of superior
courts and the Parliamentary Assembly.
And what of
Procrustes? He was ultimately undone by Theseus, champion of Athenian
democracy. Theseus used no weapon, he simply applied Procrustes' own arbitrary
standard to the giant himself – finishing him on his own bed. If member states
weaken the European human rights system to solve today’s migration challenges,
they may find that the same approach of diminishing protections and expanding
state powers will, one day, be used to target the very democratic freedoms they
currently seek to defend.
