This week, the European Convention on Human Rights (ECHR) turned seventy-five. It is an apt moment to pause and reflect on the extraordinary achievement of a treaty that has shaped the lives of hundreds of millions of people for three-quarters of a century. Yet these are not easy times for human rights. We spoke with Michael O’Flaherty, Commissioner for Human Rights of the Council of Europe, about the Convention’s enduring achievements, the challenges it faces today, and why young people must not lose faith in the universal promise of human rights – the vision of a world free and equal in dignity and rights.

As we speak, the Italian Prime Minister is meeting with several ostensibly like-minded European leaders to discuss ways to curtail and limit the reach of the European Convention on Human Rights – particularly its interpretation as a “living instrument.” Following the May Letter, signed by nine European leaders calling for an open discussion on the ECHR’s interpretation, a first draft of a declaration aimed at limiting that interpretive scope was reportedly circulated in October. The main point of contention appears to concern migration – specifically, the expulsion of migrants accused of crimes.

Many believe that this is a symptom of the Convention coming increasingly under pressure, or that we might even be witnessing the beginning of a profound transformation of European human rights protection. Is this a storm in a teacup, or do you share this observation?

Thank you for your question. If you don’t mind, I’d rather not start with a discussion of meetings in Rome or letters from the nine, because this is literally the 75th anniversary of the Convention, and we should start by celebrating this extraordinary achievement – what has sometimes been described as modernity’s greatest achievement. The Convention has transformed our lives. It has transformed our societies – and to its disadvantage – often quietly in the background.

One may look the Convention from the opposite perspective – all the things that do not go wrong because of the Convention and the way it’s embedded in law, practice, and courts. Millions of individuals have a better life experience because of the Convention. I’m a gay man; I would not have the life I have today as an Irish man were it not for the Norris and Dudgeon cases. This is very personal for me, but it’s very personal for everybody who lives in Bosnia and Herzegovina under the Dayton Agreement, the importance of the Convention for everybody who lives in Northern Ireland due to the Belfast/Good Friday Agreement. This is the achievement of the instrument.

So, let’s approach the Convention with extraordinary respect on the one hand, and with extraordinary care on the other. That is why I’m so very concerned about the recent initiatives and the letter. I won’t even call it a letter – it’s addressed to nobody. This document, which was issued a few months ago by nine states, as well as the reports about a meeting in Rome – I don’t see the logic of it. I see a lot of disinformation about migration swirling around, and at the same time, the Convention and the practice of the Court are being picked as some kind of proxy battleground, allegedly to deal with these other issues. But this attempt against migration will ultimately be unsuccessful. All the fiddling with the Convention and with the practice of the Court in the world is not going to impact migratory flows.

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Around the world, we are witnessing increasingly strategic and deliberate efforts to undermine international institutions and weaken international law. Are Europe’s human rights institutions resilient enough to withstand this trend, or does Europe’s regional human rights system need to be strengthened – whether through institutional reform or renewed political support from member states? As Commissioner for Human Rights, what coalitions, ideas, and actions are being considered or should be mobilized to turn the tide?

I would reject the proposition that this is a worldwide movement to undermine international law. Yes, we see some very unfortunate words, voices, and politics in diverse places, but I don’t see a global movement to unravel all that has been achieved. So let’s be careful not to characterize this in a way that tempts us to raise a white flag at the outset. We must tackle this within the framework of what I just described.

Do we need to change the system? I don’t think so. We can always strengthen the oversight of human rights. We can strengthen the delivery of the judgments of courts. We can better enforce human rights. There’s no question about that. We can strengthen the commitment to human rights in law, policy, and practice.

Frankly, I don’t think this is the right time for institutional rebuilding. Rather, this is a time for renewed political leadership – for those political leaders who are committed to models of democracy, true democracy, a democracy founded on human rights. Some people call it liberal democracy, but I am not a political scientist, so I won’t get into those terms. We need people who care about our societies and who understand the rulebook that guides them to wake up and take on the leadership that is so desperately needed.

That’s what’s needed now.

Yesterday marked the 75th anniversary of the ECHR. A reason to celebrate, but also a moment to pause and reflect critically. In many respects, both the Convention and the Court have achieved remarkable progress. Yet in some states, their impact has become increasingly precarious in recent years. Are there lessons to be learned from how certain countries have slid into open authoritarianism, like Russia, or, more subtly, into increasingly autocratic forms of governance? Moreover, how can we explain the change of attitude also in the older western democracies?

Let me start with losing Russia. I don’t think you can learn much from autocratic, despotic regimes moving away from human rights. It’s too late – they’re gone. The rule of law is corroded, respect for human rights is gone, checks and balances are gone. Hence, the departure of a regime – I won’t say a country – such as that of the Russian Federation is not something from which one learns any lessons, other than the need to step in much earlier and engage far more vigorously and creatively in supporting and standing up for the democratic forces within such societies.

But turning to your main question, I have no problem with critiquing human rights law or human rights institutions – but it must be fact-based. Right now, the discussion around the Convention is full of misinformation and disinformation. It’s based on some bizarre notions – and let me be clear, I’m talking about impressions that have been created, sustained, and multiplied – such as the idea that migrants may be less deserving of human rights protection, that there is a very high degree of criminality within migrant communities, and that we can’t deport or expel criminals within those communities. None of these claims hold up.

And by the way, I’m not calling for open borders. I’m simply calling for respect for international law – for the principle of non-refoulement, and for the opportunity to apply for asylum. No more than that.

Fact-based critique is absolutely fine. But that critique – entirely legitimate as it is – must respect certain red lines that are fundamental to human rights and to democracy. One of those is the independence of the courts.

So yes, let’s have debates and discussions around judgments. We can be critical of judgments – no problem – but let’s acknowledge the autonomy and dignity of those judgments, and let’s do so in a way that helps judges consider how things might be done differently in the future. A healthy critique of our institutions and our courts is something to be actively promoted, but always based on facts, and always within respect for those essential red lines.

Let’s also keep in mind that the human rights treaty system – whether the UN system, which I know very well, or the European one – is a shared communitarian commitment to upholding human rights within the community of the States Parties. And we must be careful, again, that cherry-picking or selective engagement with parts of the system does not undermine that core principle – the central energy that drives and sustains the system itself.

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Let’s turn to another area where many had expected faster progress: the relationship between the ECHR and the European Union. The CJEU rejected the EU’s accession to the Convention the first time in 2014 (Opinion 2/13) and is now faced with the similar task again.

Would it be fair to characterise the ECHR–EU relationship as two agents vying for the upper hand? If not, how would you explain the lack of compromise needed to strengthen human-rights protection collectively? The ball is yet again with the CJEU – how do you anticipate the next phase of this relationship, and what, in your view, is really blocking this progress of the EU’s accession to the Convention?

I really look forward to the accession of the EU to the European Convention on Human Rights – for multiple reasons. One is that I used to work for the EU. I used to be Director of its Fundamental Rights Agency, so I was an insider, and I repeatedly saw how valuable it would be to have a human rights point of reference that was not within the institution itself – not within the EU pillar. There would be this autonomous, external validation, which would be very reassuring in terms of human rights compliance within the EU, and I still firmly believe that.

The EU has achieved a lot in terms of human rights, but it also needs to grow in its awareness of itself as the EU in the world and not be entirely self-referential, including its judiciary. I feel that accession would be enriching, just as our national courts have been so greatly enriched by the role of the European systems – the European Court of Justice and the European Court of Human Rights. It would be no different for the EU.

More generally, I would welcome accession because it would promote coherence in human rights law and protection across the European continent. It would help to break down what I see as a rather artificial divide between the so-called “fundamental rights” of the EU and the “human rights” of the Council of Europe. And indeed, let’s not forget the human rights framework of the United Nations system, within which we are all situated as well.

Creating complementarity, mutual referencing, and understanding across these bodies of law will make it easier to demand respect for human rights for individuals living in our territories. Hence, I continue to very actively promote and encourage accession for these and related reasons.

As to why it’s not happening – you mentioned “agents.” I don’t think they are jockeying for power but rather to protect their institutions, which is entirely legitimate. The courts of each of these institutions have a responsibility to protect the bodies of law whose oversight they are charged with. I believe that both courts – including the Court of Justice of the European Union – act with absolute integrity. I would never question that. But it’s simply the difficult, rocky path of a marriage – of negotiating the match in a way that respects both partners. And so it’s slow. For me, it’s frustratingly slow, but progress is being made.

I was so glad when negotiations restarted a few years ago after a long pause. It’s now back with the Court of Justice. I couldn’t speculate on what the Court will decide, but I very much hope that the outcome will bring us a step closer to what I would describe as that marriage.

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Many young people studying international human rights law struggle with the gap between the law in the books and the realities on the ground. Recently, an editorial on our blog compared the work of international lawyers to that of Sisyphus – pushing the same rock uphill, only to watch it roll back down again. What would you say to students and young researchers in this field? How can they sustain hope and conviction in the work they’ve chosen?

It’s a great question, and I really get it. I encounter it all the time as I am constantly meeting with young people. I’m meeting with very strong pushback, as I am legitimately asked: How can you stand up for human rights when our countries tolerate genocide in Gaza? How can you stand up for human rights when our countries stand back and do nothing despite the unfolding horrors in Sudan? How can you speak up for human rights when there’s talk of allowing Russia to gain some negotiated settlement regarding Ukraine?

They are all entirely legitimate questions. But for goodness’ sake, let’s not sacrifice human rights on the altar of deep disappointment about the behaviour of our political leaders. We must never allow the political leaders – and how dare they – to somehow claim ownership of human rights, as though their failures, compromises, and weaknesses should allow this great achievement of human rights to wither away.

We must continue to believe in human rights as the only universally agreed roadmap for achieving human dignity – the human dignity enshrined in the Universal Declaration of Human Rights. That is one of the glories of the European Convention: it is a legal articulation of the content of the Universal Declaration. There is no alternative. And how can we build, how can we even dream of a better future, without the vision of a world free and equal in dignity and rights? Every young person I meet continues to believe in that dream. And we have a duty to work with them, to support them, and to accompany them towards that future.

Sisyphus. Well, Sisyphus was reinterpreted by Albert Camus, who said that he is not a legend or a myth of despair but a legend and a myth of eternal effort. Camus said, reflecting on Sisyphus, that we must never cease to hope in the possibility of a future – because if we cease to hope in the possibility of a future, there is no future. And it is in that spirit that I will continue to invest in human rights. I will continue to invite young people to invest with me – to believe in a future that can be different, even if it is so very difficult to achieve.

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Editor’s Pick

by MAXIMILIAN STEINBEIS

Bataclan, Le Carillon, La Belle Équipe, Petit Cambodge, Stade de France: on 13 November the Paris terror attacks will mark their tenth anniversary. The perpetrators, or those who are still alive, were put on trial in 2021–22, and it is a great piece of luck that among those who sat through it day after day for nine months, witnessing this painstaking reconstruction of an unbearably ghastly sequence of events from the first minute to the last, was a great writer who has turned it into a unforgettable book. A trial is a process, the German term is literally this: “Prozess”. As a reader of that book you become privy to that process: the unbearably ghastly is in no way less ghastly, but it does become a good deal less unbearable. To come to terms with the crime. To put an end to its spell. That is what the rule of law can do. To remember this, with this book in hand, is not the worst way to mark the anniversary.

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The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

Not only is the ECHR a “living instrument” (and hopefully will remain one). In fact, this is a rather fitting metaphor for legal constructs in general. We grind, refine, and oil them until they develop a life of their own, with their own “organs”. And like all living things, such instruments have a few basic existential needs.

One of these is money. A fiery reminder of this comes from the mayors of 13 German municipalities (Kommunen) in a joint open letter. They are calling for a “readjustment of the principles of municipal financial allocation” amidst dramatic shortages. KYRILL-ALEXANDER SCHWARZ (GER) explains how those shortages are linked to a structural constitutional problem.

Money naturally also restricts the federal legislature. Add to this is another basic need, namely the need for harmony (or rather: consistency): after the Federal Constitutional Court found in its 2021 triage ruling that “the legislature” had violated its duty to protect persons with disabilities, it has now declared the triage provisions in the Infection Protection Act unconstitutional: the federal level, it held, lacks legislative competence in the first place. THORSTEN KINGREEN (GER) laments the decision: it could hardly make the legislature’s task any more difficult.

By contrast, the Federal Constitutional Court took a more harmonious approach in its Egenberger ruling, which we discussed in detail last week (you can find all contributions in our new Spotlight). The Court clarifies, in line with EU law, that churches cannot require religious affiliation for all employees – from priest to gardener. MATTHIAS MAHLMANN (ENG) explains how this crucial modification constitutes a substantial, constitutionally well-justified, and most welcome shift.

Thanks also to the Federal Administrative Court’s careful cultivation, the living Constitution has grown a little further. In the COMPACT case, the court faced the question of how to deal with “hybrid” actors who pursue unconstitutional aims as an association while at the same time publishing media products. In its judgment, the Court grants freedom of expression and freedom of the press a scope that they had not previously enjoyed in association bans. Yet SANDRA LUKOSEK (GER) argues that the Court failed to fully explore and delineate this scope – had it done so consistently, she suggests, the ban might well have been upheld.

The Labour Court in Braunschweig also had to deal with what appears to be a constitutionally hostile association. The AfD-aligned “Zentrum”, a self-proclaimed trade union, sought access to a Volkswagen plant, but failed in court. For DANIEL WEIDMANN (GER) however, this is no reason for complacency: far-right works council members could still cause considerable harm within company representation bodies – even if the “Zentrum” is never recognised as a trade union by a labour court.

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Intellectual Property and the Human Right to a Healthy Environment
Edited by Elena Izyumenko

“This book presents a set of eclectic views centred on the themes of the right to a healthy environment, climate change, clothing upcycling and intellectual property law. The intersection of these legal norms highlights the challenges of reconciling intellectual property law with the human right to a healthy environment. Each chapter is written in an easy to digest style that makes it a good reference point for students and scholars.”

– Ian Fry, Australian National University, Former UN Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change (2022–2023)

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The AfD itself long advocated conscription, only to make a recent U-turn. A sudden change of heart? Hardly – the move is calculated, argues FABIAN ENDEMANN (GER): being in opposition allows the AfD to paint the spectre of an imminent authoritarian state that would send conscripts into a “foreign war”.

France, too, is painting spectres on the wall – above all that of migration – and using it to justify rights violations. On 16 October, the Committee on the Rights of the Child published a report holding France responsible for violations of the rights of unaccompanied minor migrants. JASPER KROMMENDIJK and LINA SOPHIE MÖLLER (ENG) use this as an opportunity to analyse how national courts respond to the non-binding findings of UN treaty bodies – and what this means for child rights protection.

Meanwhile, Mexico is confronted with real and terrifying spectres: in the practice of enforced disappearance, the disappeared linger between life and death, in an unbearable limbo for their families. The UN Committee on Enforced Disappearances has now triggered emergency measures for the first time. RODOLFO GONZÁLEZ ESPINOSA (ENG) sees Mexico at a crossroads: will international attention lead to real reform, or will deeply entrenched impunity prevail?

Sometimes, living instruments fail to recognise living beings as such. The CJEU ruled in Iberia that acompanion animal lost during an international flight counts as “baggage” under the Montreal Convention. MARINE LERCIER (ENG) criticises how the Court, in effect, turns dogs into lost suitcases – and in doing so ignores the social reality of human-animal relationships.

There is no life without death. On 7 October 2025, Catarina de Albuquerque – the “mother” of the human rights to water and sanitation – passed away. In a moving obituary, PIERRE THIELBÖRGER (ENG) honours her extraordinary life’s work and her influence on an entire generation.

Catarina de Albuquerque dedicated her life to the essentials – and reminds us that this is a shared responsibility: the protection and preservation of all that is living, with or without living instruments.

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That’s it for this week. Take care and all the best!

Yours,

the Verfassungsblog Team

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