Challenging Strasbourg
The May 2025 Letter and the Pushback Against the European Court of Human Rights
Since 22 May 2025, a disquieting letter has been circulating: nine leading EU politicians are calling for “a new and open-minded conversation about the interpretation of the European Convention on Human Rights,” with particular reference to migration.
The signatories seek to explore whether “the Court, in some cases, has extended the scope of the Convention on Human Rights too far compared with the original intentions behind the Convention, thus shifting the balance between the interests that should be protected.” At the core of their appeal lies a demand for more national discretion in deciding when to expel criminal foreign nationals.
This letter raises not only political and ethical questions but also significant legal concerns. Before examining these implications, it is important to provide a brief overview of its content.
Regular and irregular migration: what is the problem and who is to blame?
The letter begins by reaffirming the signatories’ commitment to European values, the rule-based international order, democracy, and the inviolable dignity of the individual. The signatories then turn to address the so-called European migration challenge. They acknowledge that while many migrants successfully integrate and make valuable contributions to their host societies, others remain socially segregated or even engage in criminal activity. Although the latter problem concerns only a minority of immigrants, the letter argues, it risks undermining the very foundations of European societies.
Throughout the letter, the signatories refer variously to “Europe’s challenges with migration,” the need to “regain control of irregular migration,” and problems posed by “criminal foreign nationals.” While all these issues present serious challenges, they cannot be casually lumped together if meaningful solutions are to be found.
The signatories, however, seem to suggest that they have identified the main culprit behind this “polycrisis”: the European Court of Human Rights (ECtHR). They appear determined to address what they see as the Court’s overreach:
“[A]s leaders, we also believe that there is a need to look at how the European Court of Human Rights has developed its interpretation of the European Convention on Human Rights. Whether the Court, in some cases, has extended the scope of the Convention too far compared with the original intentions behind the Convention, thus shifting the balance between the interests that should be protected.”
Even the premises on which this letter is based leave the reader puzzled: Do these politicians aim to address migration as a whole, only irregular migration, or merely the problems associated with foreign nationals who engage in criminal activity? Depending on the answer, the relevance and impact of ECtHR jurisprudence on these developments (if any) will vary considerably.
The ECtHR jurisprudence on migration
The question of whether, and to what extent, the jurisprudence of the ECtHR has influenced migration into the territorial area covered by the European Convention on Human Rights (ECHR) is a complex one. The ECtHR began addressing migration issues relatively late1) but has since issued a series of judgments with significant impact on international migration law.
Among the most notable decisions is Soering v. United Kingdom (1989), in which the Court declared illegal the extradition of an applicant to a country where they faced the risk of inhuman or degrading treatment In M.S.S. v. Belgium and Greece (2011), the Court prohibited returning an applicant to Greece under the Dublin rules where they would face inhuman conditions and a lack of remedies.
In Hirsi Jamaa v. Italy (2012), the Court found that push-back operations on the high seas, returning migrants to Libya where they faced a risk of inhuman and degrading treatment, violated the prohibition of collective expulsion and the requirement of access to effective remedies.
In Tarakhel v. Switzerland (2014), the transfer of an Afghan family to Italy under the Dublin framework was found to violate Article 3 due to the absence of adequate guarantees concerning the children’s age and the preservation of family unity.
More recently, in J.A. and Others v. Italy (2023), the Court ruled that the prolonged stay in the Lampedusa hotspot constituted inhuman and degrading treatment.
Nevertheless, much of the scholarly literature remains critical of the ECtHR’s willingness to robustly and consistently defend the human rights of migrants.2) In contrast, the signatories of this letter seem to believe the Court has gone too far.
The questions raised
This development raises several questions: Should we abandon our understanding of the ECHR as a “living instrument”?
There can be no doubt that doing so would entail the loss of one of the Convention’s most characteristic features. Moreover, the “living instrument” approach has inspired human rights protection systems across the globe. A retreat from this approach could trigger a broader global regression in human rights jurisprudence.
Even if the decision were taken to abandon this dynamic interpretative approach, a further question would immediately arise: how far back should the ECtHR jurisprudence be reversed? From which specific rulings or lines of reasoning should the Court now depart? Such a retreat could potentially compel the ECHR system to abandon some of its most important achievements.
Based on the content of the letter, it appears that the primary concern of its signatories is to curtail the Court’s jurisprudence insofar as it hinders the expulsion of individuals convicted of crimes. However, this jurisprudence is intricately connected with other advances in human rights protection. To cite just one example, the “Soering jurisprudence” was developed in the context of a criminal case, but its significance extends far beyond such cases, as is well established.
Furthermore, even if it were theoretically possible to separate jurisprudence related to “severe” criminal cases from other categories – such as less severe criminal offences or civil or administrative matters – leaving the latter unaffected by the proposed reforms, this would do little to address Europe’s broader migration challenges, which the letter itself identifies as a primary concern. Why then, this apparent fixation on “criminals”?
One is left with the impression that the emphasis on “criminals” serves as a pretext to question the ECtHR’s jurisprudence on migration as a whole. As already mentioned, in most cases, it would be impossible to isolate a distinct body of case law that applies exclusively to severe criminal cases and to excise from it all elements introduced by the Court’s “dynamic interpretative approach” that transformed the ECHR into a “living instrument”. How, for instance, could the Soering jurisprudence be limited to non-criminals? Should the prohibition of torture and inhuman or degrading treatment no longer apply to (alleged) criminals? Such a move would plainly place the ECHR system behind both the standards of the UN Human Rights system and those of comparable national and regional systems. Although the letter does not explicitly propose such outcomes, it is difficult to see how they could be avoided, despite the vague language of the letter.
Even more worryingly, some international lawyers have endorsed the initiative and interpreted it even more broadly. They argue that Article 3 ECHR has been interpreted too expansively and that it should become possible to expel “foreign criminals” who have committed “serious crimes.” According to this view, such individuals have “forfeited” the right to the highest standards of fundamental rights.3)
But can this claim be sustained? Does this mean that the Soering jurisprudence would no longer apply? Could “murderers and rapists” now be extradited to countries where they would face inhuman or degrading treatment, or even torture? Or do these international lawyers simply fail to grasp the scope of the jurisprudence, or fail to appreciate its relevance?
Even if it were possible to carve out an exception under the ECHR for migrants who have committed (or are merely accused of committing?) “serious crimes” (and who would determine what constitutes a “serious crime”?) there is a serious risk that such an exception would effectively dismantle the protection of migrants under the Convention altogether.
The letter raises numerous additional questions and concerns. If the letter was intended to have a practical impact, we must ask: to whom is it addressed? To the European Court of Human Rights itself? Do nine member states (out of 46) possess the authority to call upon the Court to revise its interpretation of the ECHR? Could even all member states acting together compel such a change? The answer is no. Neither the ECHR nor general international law attributes such powers to the member states collectively, let alone to a minority of them. Would such political interference with the activities of an independent international court be politically and legally acceptable?
The Council of Europe responded swiftly and decisively to these concerns. On 24 May 2025, Alain Berset, the Secretary General of the Council of Europe, issued a statement firmly defending the ECtHR’s independence and the need to uphold the rule of law in Europe:
“Upholding the independence and impartiality of the Court is our bedrock. Debate is healthy, but politicizing the Court is not. In a society governed by the rule of law, no judiciary should face political pressure. Institutions that protect fundamental rights cannot bend to political cycles. If they do, we risk eroding the very stability they were built to ensure. The Court must not be weaponized — neither against governments, nor by them.”
Conclusions
Perhaps the letter of the nine was mainly intended for an internal audience. Its cautious language appears designed to preempt and mitigate anticipated criticism, as acknowledged within the letter itself:
“We know that this is a sensitive discussion. Although our aim is to safeguard our democracies, we will likely be accused of the opposite.”
While the initiative has prompted widespread critique, the responses from some international lawyers reveal how quickly long-standing achievements in human rights protection can be called into question.
At the same time, there is no doubt that the ECHR and its judicial machinery are indeed in urgent need of reform. The ECtHR’s jurisprudence on migration is only one – arguably not even the most urgent – element warranting reassessment, ideally within the EU framework.
A more fundamental concern lies in the procedural inefficiencies of the ECHR system itself. The fact that over 95 percent of complaints are declared inadmissible is arguably the system’s far more serious problem. This procedural bottleneck represents a genuine challenge to the rule of law in Europe. Reforming the ECHR is thus both legitimate and necessary, but it should happen within a broader framework — perhaps at a conference of states — where priorities are established based on actual needs and competences, and grounded in thorough and informed discussion.
Migration indeed poses a serious challenge for Europe, and public expectations for effective governmental responses are high. However, if national governments – either individually or through EU mechanisms –fail to find viable solutions, attacking the ECtHR is the wrong response. To undermine a judicial institution already struggling with dysfunction is incompatible with a commitment to the rule of law in Europe.
A final observation is warranted. Although the controversy sparked by the May letter – serious as it may appear – will likely prove to be a storm in a teacup, largely due to the strong counter-reaction it provoked, it should not be downplayed in terms of the danger it poses to the defense of fundamental human rights and the rule of law. This controversy once again confirms something particularly dear to this author: that the high-quality teaching of international law is more important today than at any time in history.
References
↑1 | See Marie-Bénédicte Dembour, The Migrant Case Law of the European Court of Human Rights, in: B. Cali et al, (eds.), Migration and the European Convention on Human Rights, Oxford University Press 2021, pp. 19-40. |
---|---|
↑2 | Ibid. See also recently Jens T. Theilen, Framing Migration in Human Rights: How the Reasoning of the European Court of Human Rights Legitimises Border Regimes, in: 27 European Journal of Migration 2025, pp. 66-93. |
↑3 | The following declaration has been made in this context: “Ich stehe für einen hohen Grundrechtsschutz. Bei einer schweren Straftat hat man diesen allerdings verwirkt.“ See „Die Presse“ 24 May 2025, p. 10. |
FOCUS is a project which aims to raise public awareness of the EU Charter of Fundamental Rights, its value, and the capacity of key stakeholders for its broader application. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the European Commission can be held responsible for them.
I think this contribution overlooks that the potential of the ECHR to evolve in a dynamic fashion is not limited to the direction the author may prefer. In other words: The evolution of ECHR jurisprudence towards a less expansive stance on migration is just as much part of the potential of the living instrument tool box as evolution towards a more expansive stance. This is something the advocates of a more dynamic approach need to keep in mind: Just because that method may have led to results that you preferred in the past, does not guarantee that the same will be true in the future.
Naturally, member states can advance their position through reasoned arguments (like this letter) and if that fails consider alternatives envisioned under PIL (amendment or leaving the ECHR altogether).
This is PIL working according to its fundamental features and not a deviation from them.
Many thanks for your remarks. However, the points my commentary made, were quite different ones. I expressed no “preference” for a “direction” in which the ECtHR jurisprudence should evolve. I neither stated that the evolutionary interpretation could move only into “one direction” (as far as it possible to speak about “directions” in this context). I rather requested the same what I am demanding from my students: Coherent thinking and logical argumentation. In this sense, the unclear and contradictory reasoning of the letter has to be criticized, as it mixes together various present-day challenges such as migration in general, illegal immigration, migrants becoming criminals and the difficulties to “expel criminal foreign nationals”.
To infer that the ECtHR would be responsible for this whole malaise is strong stuff. And similarly irritating is the assumption that 9 signatories of the ECHR out of 46 could prescribe to the ECtHR how this Court should decide. Should all 46 be enabled to do so? I doubt. And 9 out of 46 are neither legitimized to re-state what the present prevailing interpretation of the ECHR is (by the way: are these politicians even legally legitimized to speak in this context for their countries, to state authoritatively what the interpretation of this Convention is or should be, in the name of their countries, their people?).
And a last point: Those who feel that the Soering jurisprudence should abandoned should have the courage to state this openly and bear in mind the consequences.
You say that 9 out of 46 are not legitimized in “prescribing” ECHR jurisprudence.
The Cambridge English Dictionary gives the following definition for the verb “prescribe”:
“to tell someone what they must have or do, or to make a rule of something
example: Penalties for not paying taxes are prescribed by law.”
In which part of the letter do you identify such an act of prescription? The signatory countries make an argument as they are entitled to do. Our law reviews are full to the brim with lawyers, judges and academics more or less directly telling the Strasbourg court how they should rule, how the should evolve their jurisprudence. But as soon as states are doing the same (which has been a feature of PIL since time immorial) they are somehow not legitimate?
Indeed the letter is very measured and has a clear aim: To start a wider conversation on how the ECHR can be adapted for current purposes. To operate under the assumption that the letter is supposed to be the end of the debate, when it actually is just its beginning, would be erroneous.
Dear MG,
it is up to you to re-read (for not to say to re-write) the “letter of the 9” in a sense that would be more in line with international law.
So let´s assume that this letter really wanted to promote “a wider conversation on how the ECHR can be adapted for current purposes” (this letter clearly does not say this!). If this should be the intent we want to read into this letter (in a “dynamic” interpretation ignoring the wording of the text) in principle this would be a fine outcome I could agree with. But let´s at least at this point stick to international law. In fact, in this case these politicians should convene an international conference for a reform of the ECHR. A further issue would be, whether they are allowed to so, according to the constitutional law of their home countries. By the way: There would be much to think anew in the context of such a conference, not only how we could expel criminal foreigners more easily and to what extent the ECHR stands in the way of such measures.
Some insightful analysis, but you seem to make a lot of assumptions on the Court’s jurisprudence. Through its dynamic interpreration the Court has significantly altered the trade-offs and carve-outs that the Convention contains to balance between different rights. Soering was a convicted murderer and if I remember correctly the Court found that the death penalty wasn’t in violation of the ECHR, though life on death row (whilst processeing appeals) constituted degrading treatment.
You can look at this letter as an amicus curiae rather than some malign interference. The practical consequense would be that states are less inclined to respect or comply with the Courts rulings. The Court’s activism thus affects its legitimacty.
Dear Seneca,
as to Soering: the threat of the “death row syndrome”, the severe psychological distress experienced by prisoners while awaiting execution, often for extended periods, is considered to constitute “inhuman or degrading treatment” and therefore stands in the way of extradition to countries applying the death penalty. This is no longer a particularity of the ECHR area.
Furthermore, the Soering jurisprudence has now a broader purview, covering “torture, inhuman or degrading treatment” in general.
Of course, any politician who wants to do so is free to ask for a reversal of this jurisprudence. The letter of the 9 does not contain such a request, assumedly for good reason.
The problem is: What do these politicians really want?
Some of my points were:
– The requests should be clearly spelled out.
– They should be addressed to the competent organs and institutions.
– Their presentation should follow the procedures foreseen by international law.
– Furthermore, it would probably also be desirable that pertinent national constitutional rules on the conclusion and the amendment of international treaties be regarded when national politicians ask on the international level for the amendment of international conventions their home countries are signatories of.
Dear Professor Hilpold,
thanks for the reply. I agree that the substantial issues are more interesting, though it is expected that political calls for reform are not written using the tenor or detail of a legislative proposal.
My point is that the (maybe) curious mix of countries may say something and many legal academics have a tendency to treat and discussion for reform as a sign of backsliding and in the long run a threat to human rights or (liberal) democracy.
As to the last point, which seem to be of a procedural nature, I have a hard time grasping what would be the problem? Are not prime ministers and presidents by virtue of their office to represent their country in issues like this?
Dear Seneca,
as to the first point: I fully agree that the ECHR needs a broad discussion about a thorough reform, in particular about the very low rate of admissibility of complaints (below 5%!), while, in an objective perspective, many more complaints would deserve admission (see, for examle, the groundbreaking contributions in this field by Prof. Steven Greer, btw a former ECtHR judge). Presently, the academic discussion about the ECtHR is in large parts epistemic.
As to the second point: Your are right that according to the VCLT Prime Ministers and Presidents have full powers by virtue of their positions. But this applies for the international level. I doubt whether they had this power to act according to their national constitutions. In some countries not even the coalition partners of these politicians had been informed about this action in time. So this initiative has been highly problematic from several perspectives.