On 10 December, the Council of Europe (CoE) ministers met to discuss proposals that could potentially recalibrate the treatment of migration-related issues under the European Convention on Human Rights (ECHR). This meeting deliberately shifted a debate that had been unfolding in political arenas for months onto the Council’s formal institutional stage.

The CoE now finds itself caught between, on the one hand, states driven by internal security concerns and seeking greater discretion, and, on the other hand, the demanding  task of upholding the Court’s role as an independent interpreter of the Convention. While the formal conclusions call, in diplomatic terms, for a political declaration to be prepared for adoption in May 2026, a separate joint statement of 27 States Parties reveals a harsher line, illustrating the CoE’s internal divisions.

The Lead-Up

Pressure to reshape the human-rights framework on migration has been mounting for several years. A narrative has gained traction that the European Court of Human Rights (ECtHR) has developed an overly expansive body of migration-related case law detached from the object and purpose of the Convention – an allegation that oversimplifies the actually not so linear case law of the Court.

At the same time, several states have invoked national security and the challenges of irregular migration to justify increasingly forceful border management and deportations. These arguments have been paired with growing calls for the Court to adopt a more deferential, context-sensitive approach that would effectively lower states’ obligations. How far the Court will accommodate such reasoning remains uncertain. The forthcoming Grand Chamber judgments concerning the “instrumentalisation” of migration at the Belarus–EU border are widely viewed as pivotal in assessing whether claims of a “migration crisis” justify a lower standard of protection.

This trend was further crystallised in May, when nine EU member states issued a widely debated open letter, initiated by Italy and Denmark and notably at the highest political level. The nine signatories voiced concern about what they perceive as an overly expansive interpretive practice of the Court and argued for greater state discretion in migration matters. While the letter is framed as a call for balance, it effectively questions the Court’s authority over states’ treatment of migrants. This reading appears to have been shared by CoE Secretary General Alain Berset, who responded promptly: “Upholding the independence and impartiality of the Court is our bedrock.”

Meeting on International Human Rights Day

 The informal meeting on 10 December was convened by Berset to channel the highly charged political debate outlined above into the “appropriate institutional avenues”. In essence, its purpose, as stated in the press conference, was to initiate a structured process of political negotiation over how the Convention system should operate in the face of complex and increasing migration pressures.

Expectations surrounding the meeting were high. The European Network of National Human Rights Institutions, the Meijers Committee, and the AGORA Group had all issued detailed statements in advance, cautioning against efforts to broaden state discretion at the expense of human rights protection and the authority of the Court. The Court itself was not present at the meeting, in contrast to some previous High-Level Conferences. It did, however, contribute indirectly by publishing a factsheet showing that immigration applications accounted for only 1.5 per cent  of all applications, while violations are found in only six per cent  of these cases.

From Nine to Twenty-Seven, but Growing Ambiguity

The document that attracted the most attention was not the formal, consensual conclusions adopted at the meeting, but a separate joint statement issued by 27 states. Written in a more confrontational tone, the statement asserts, for example, that “the […] freedoms of our populations are challenged by people who take advantage of our hospitality by committing serious crime”. The statement provides a window into the likely heated debate behind the scenes. Although 19 states continue not to support the statement, including sizeable states such as Turkey, Germany, France, Spain, Portugal and Greece, the growing support for the Italian-Danish initiative underscores further polarisation.

Whereas the May letter directly targeted the Court, criticising it for having “extended the scope of the Convention too far as compared with the original intentions”, the joint statement pleads formal loyalty to it while offering more subtle criticism, highlighting in particular the need to reform the interpretation of Articles 3 and 8 ECHR.

After mentioning five immigration challenges, the statement confusingly “refers” to the importance of key principles in the interpretation and application of the ECHR, such as subsidiarity, proportionality, de minimis and the living instrument doctrine. It is far from clear what this mere “reference” is intended to entail in concrete terms.

In light of all this, the affirmation that the joint statement aims to develop “an adequate response to protect the Convention system from attempts to distort and weaken it” seems paradoxical.

Misconstrued Challenges

The statement also feeds into three buzzing narratives. It holds that “the rights and freedoms of our populations are challenged by: people who take advantage of our hospitality by committing serious crime; trafficking in human beings; and the instrumentalisation of migrants.” Each of these three claims merits closer scrutiny.

First, the focus on criminality is unsurprising given recent debates, but it seems a misplaced starting point for the states’ broader aim of limiting migration flows. After all, the vast majority of individuals protected under the Court’s “far-reaching” migration case law at Europe’s borders are not offenders, nor do they statistically turn into such upon arrival. And even if they were, human rights are not constructed as rights that can be forfeited.

Second, migrant smuggling is not a threat to the system but a threat generated by the current European migration scheme. In the absence of safe and accessible legal pathways, smugglers often become the only available means for people to reach Europe. Weakening human-rights protections will not diminish smuggling.

Third, the challenge of “instrumentalisation” originates with states such as Russia or Belarus, not with the migrants caught in these geopolitical manoeuvres. Any effective response must target the actors engaging in instrumentalisation and should thus not be addressed under the human rights framework.

The discussion of these challenges illustrates that arguments relied on in the debate frequently misrepresent the Court’s immigration case law, as also noted by Ní Chinnéide and Sevrin, the CCBE, or the Meijers Committee.

The Ambiguity of the Conclusions

By contrast, the conclusions that were adopted by consensus employ a notably more diplomatic tone – so much so that it is difficult to discern what substantive direction the process is now expected to take. They reflect an effort to navigate a contested political landscape without falling on either side.

The first operative paragraph, in particular, seeks to accommodate competing concerns without articulating any real path to reconciliation. It invites the Committee of Ministers to: “prepare a draft political declaration reaffirming the obligation to ensure the effective enjoyment of the rights and freedoms guaranteed by the Convention to everyone within the jurisdiction of member states in the context of the contemporary challenges posed both by irregular migration and by the situation of foreigners convicted of serious offences, taking duly into account in particular governments’ fundamental responsibility to ensure national security and public safety”.

This duality involving security and human rights also appears in the recitals. It is of utmost importance that the conclusions underline the Convention’s scope of application “to everyone within the jurisdiction” (Article 1), but the joint statement casts doubt on the sincerity of this pledge since it aims to exclude or at least lower the protection for migrants to address the highlighted challenges.

The ministers further instructed the Steering Committee for Human Rights (CDDH), consisting of high-ranking government experts in human rights and civil society organisations as observers, to report back before 22 March 2026 in order  to facilitate adoption at the formal CoE Ministerial Meeting in Moldova on 14-15 May 2026. The conclusions also call for the drafting of a new recommendation on migrant smuggling.

The Aftermath

What is clear is that the idea of drafting a 17th Additional Protocol – the only formal route to amend the Convention – has been put on hold, at least for now, as confirmed in the press conference.

This does not mean that concrete effects are not to be expected. The Court is generally responsive to political declarations and such texts impact its decision-making, as research has shown (see Berset, Donald and Forde and Glas). In any event, the outcome of the meeting is unlikely to quell the debates, particularly in the United Kingdom, about a possible withdrawal from the Convention system.

In our view, it is positive that the political dialogue takes place within the institutional framework of the CoE rather than in Europe’s back rooms. The rhetoric highlighted in this post, often from the highest political level, is, however, a reason for caution. While we do not aim to simply “brush aside” different viewpoints, as rightly cautioned against, we think that the discussion should be held on the basis of sound and substantial arguments. The CDDH will hopefully provide a solid factual basis with an accurate depiction of the Court’s case law.

It remains to be seen which voices will eventually prevail in the declaration. In any case, the December meeting underscores that the CoE faces a delicate challenge, where states’ claims of seeking “balance” may mask attempts to further limit migration flows at the expense of human rights.