Europe uses migrants as a reason to relax its human rights convention

LondonSeventy-five years after its approval (November 4, 1950), the European Convention on Human Rights The European Convention on Human Rights (ECHR) is at the heart of the continent's political debate. Unregulated immigration, security, and the rapid advancement of technologies like artificial intelligence have reopened the discussion about how far a convention born from the ashes of World War II can—or should—be reinterpreted. But the fundamental question is more delicate: to what extent can the ECHR be made more flexible without jeopardizing the basic protections it is theoretically meant to guarantee?

The jurist Nando Sigona, director of the 'Institute for Research on International Migration and Superdiversity From the University of Birmingham, he is clear on this point: an "overly flexible" interpretation can become a gateway to "weakening safeguards." The ECHR works because it establishes solid minimum standards. If these are diluted to accommodate political pressures, especially in highly polarized areas like immigration, the protective foundation can erode slowly but inexorably. "Rights that can be stretched too far cease to function as a guarantee," he emphasizes, in statements to ARA.

The debate has become particularly visible after nine European Union countries – Austria, Belgium, Czech Republic, Denmark, Estonia, Italy, Latvia, Lithuania, and Poland – sent an open letter to the ECHR in the spring. Council of Europe calling for a reinterpretation of the ECHR to facilitate the expulsion of foreign criminals. The signatories argued that the current guidelines of the European Court of Human Rights, especially in cases involving asylum seekers, impose excessive restrictions on state sovereignty. All EU members are signatories to the convention. The Council of Europe, the international political body not affiliated with the EU, monitors and enforces the work of the European Court of Human Rights (ECHR).

London Pressure

The same pressure from the nine countries mentioned is also being exerted from the United Kingdom, where Prime Minister Keir Starmer has stated that his government is committed to changing the way the right to privacy and family life is interpreted. so that undocumented immigrants cannot use it for thwarting his expulsion from the country.

At the meeting on December 10 in Strasbourg, the justice ministers of the 46 members of the Council of Europe agreed to open a six-month process to redefine the role of the Convention. They also agreed to draft a political declaration—scheduled for next spring in Moldova—that reaffirms the commitment to fundamental rights, but also to national security. In principle, it should not entail a formal reform of the text, but it will send a clear signal to the ECHR to adopt interpretations "more in line" with the current context. Alain Berset, the Secretary General of the Council of Europe, said a few weeks earlier, in a very unusual interview on the BBC, that "I am open to participating in all political discussions, to see what we should discuss, perhaps change or adapt."

The division among the 46 members of the European Commission—opened in the spring by the nine EU member states with the aforementioned letter, plus the United Kingdom—became visible in Strasbourg in a parallel declaration. Twenty-seven of the 46 signatories of the HREC—including the United Kingdom, Denmark, and Italy—demanded more profound changes, especially regarding the application of Article 3, which prohibits inhuman or degrading treatment. This blog denounced the fact that current jurisprudence prevents the deportation of serious offenders based on the grounds of inadequate prison or health conditions in the destination country, and called for restricting this protection to the most extreme cases. France, Germany, and Spain have refused, consolidating a two-speed Europe in terms of human rights.

The margin of appreciation: the back door?

A key part of the debate in the coming months will revolve around the so-called margin of appreciation for states. But what exactly is it? It is a legal principle according to which the European Court of Human Rights (ECtHR) recognizes a certain degree of discretion for each state to decide how to apply human rights within its own social, cultural, and political context. It is a tool created to prevent Strasbourg from dictating rigid uniformity that does not take local circumstances into account. However, as Sigona reminds us, this margin "is not a license to empty rights of their content." And as Kirsty Hughes, from the Faculty of Law at the University of Cambridge, explains in the ARA, many of the current proposals "stretch the margin to the limit with the aim of turning temporary exceptions into permanent rules." The great risk is that this flexibility will be used opportunistically to "reduce obligations without going through formal reform," which would make it more difficult to detect the drift. Changing the text of the European Convention on Human Rights requires the approval of all 46 signatory states, and this is not currently under consideration. The Strasbourg Court has demonstrated over decades its capacity to evolve: its jurisprudence incorporates new challenges, from terrorism to digital surveillance technologies. But this evolution must be "progressive and coherent," notes Andrew Forde, assistant professor of European law and human rights at Dublin City University. "The challenge is to preserve the Court's legitimacy while remaining true to its founding objective: protecting citizens from abuses of state power." Current circumstances may lead some states to address their particular challenges—the migration crisis, transnational crime, security issues—as if they were "exceptional" situations. However, as Sigona points out, for those affected, these exceptions "become everyday experiences." An interpretation too focused on immediate interests can, paradoxically, cause the Court to lose its ability to protect precisely those who are least able to defend themselves. And some legal experts warn of what might be called the lesson of Martin Niemöller's confession, which begins: "First they came for the communists, and I didn't speak up because I wasn't a communist..."

In other words, could a restrictive reinterpretation of rights initially applied to migrants weaken the rights of everyone? Professor Sigona answers without hesitation: "Yes." When tools like Article 3 (prohibition of torture and ill-treatment) or Article 8 (privacy and family life) are curtailed for an unpopular social group, "it is almost inevitable that these limitations will eventually be applied to other groups." It is a mechanism well known to specialists in the field: erosion begins at the edges of the system, but over time it moves toward the center. Arguing that the modifications "only affect migrants, they are actually reconfiguring the architecture that protects all citizens," the professor concludes.