December 12, 2025
By Dr Esra Demir-Gürsel
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Between the 12th and the 22nd of December, Strasbourg Observers is hosting a blog symposium entitled ‘The Role of the European Court of Human Rights: Progressive, Conservative, or Both?‘ This post introduces the symposium. It also includes posts from Corina Heri, Vera Wriendt, Esra Demir-Gürsel, Harriet Ní Chinnéide and Tobias Mortier, Betül Durmuş and Jens T. Theilan.
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On 4 November, the European Convention on Human Rights (ECHR or the Convention) turned 75. Its birthday has been widely celebrated with social media posts, short articles, panel discussions, and conferences. The celebrations have been particularly loud not only because 75 is a symbolic milestone, but also because the anniversary of the ECHR coincided with intensified criticism of the European Court of Human Rights (ECtHR or the Court).
One of the most concerning recent developments in this regard was the so-called “letter of nine,” a joint statement issued by nine Council of Europe (CoE) member states. The statement criticized the European Court of Human Rights’ (ECtHR or the Court) migration-related case law and called for another round of reforms to the ECHR system. In the meantime, in the United Kingdom, the debate about withdrawal from the Convention has revived once again. What is even more concerning this time around is that the withdrawal rhetoric has gone beyond its usual circles to include more mainstream figures across a broader ideological spectrum. With the informal ministerial meeting that took place on 10 December 2025, coinciding with the anniversary of the Universal Declaration of Human Rights, it seems that a tipping point has indeed been reached for another round of adjustments to the ECHR system.
This symposium is not curated as a direct response to these recent developments. It was brought together to think about the ECtHR through two frames that are not often used to study its case law: conservativism and progressivism. Nonetheless, all contributions have implications for the Court’s role and functions. The symposium can accordingly help raise new questions and offer fresh perspectives on these debates, as it is built on broader concerns that partly overlap with but also extend beyond current discussions surrounding renewed attempts to curb the powers of the Court.
The symposium has originated from a roundtable discussion under the same title that took place at the European Law Unbound Inaugural Conference in September 2025, under the same title as this symposium. The idea behind the roundtable was simple: if each of us examines the Court through the lens of our own research or work, how would we view its role? Do we see it as a conservative institution, a progressive force, or perhaps both? And what might that mean in different contexts?
Drawing from our discussions at the conference, this blog symposium respectively features: Corina Heri reflecting on climate change; Vera Wriedt on nationality and migration, with comparisons to the Inter-American and African human rights systems; Esra Demir-Gürsel on authoritarianism; Betül Durmuş on the Court’s use of United Nations Treaty Bodies’ case law, drawing on her comparative research into two human rights systems; and Harriet Ní Chinnéide and Tobias Mortier offering perspectives shaped by their work as managing editors of Strasbourg Observers, while also drawing on their independent research respectively on procedural review and legitimate aims. All contributors to the Symposium therefore focus on a different part of the Court’s case law or different aspects of its reasoning. Reflecting on the contributions, Jens T. Theilen will close the symposium with an afterword.
Accusations of judicial activism usually call for reforms aimed at redesigning the Court’s operations. A few days ago, the Secretariat of the CoE announced that an informal ministerial conference would take place on 10 December to address recent governmental discontent with the functions and operations of the Court, which stems from the belief that the Court is overreaching its mandate in particular in its migration-related jurisprudence. Secretary- General Alain Berset stated the following regarding the aim of the conference: “Our task is not to weaken the Convention, but to keep it strong and relevant – to ensure that liberty and security, justice and responsibility, are held in balance.”
The wording in the Secretary General’s speech signals something new – at least to my eyes: alongside the usual pairing of ‘liberty and security,’ a new couple that is framed as being in conflict has been added: ‘justice and responsibility.’ The joint statement of 26 states that was delivered to the Conference of Ministers of Justice has also built on a notion of responsibility. The ministers emphasize that they
have a duty to guarantee our populations’ human rights and fundamental freedoms, including the right to live in peace, freedom and security, to preserve the values of our societies, and to effectively protect borders, prevent unlawful border crossings and counter migrant smuggling networks. Yet, 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 instrumentalisation of migrants.
As in previous rounds of similar accusations against the Court, even those who believe that the Convention should be interpreted more narrowly acknowledge that such accusations are unsubstantiated and overstated (e.g., see here). Scholarship on the Court’s migration-related case law shows that it is extremely restrictive, offering protection only in very narrowly interpreted cases (e.g., see here and here). Ironically, criticism of the Court from the opposite direction, for being overly restrained or excessively cautious, usually draws on the very same strand of case law that underpins accusations of activism.
These two terms, judicial activism or judicial self-restraint, have largely framed discussions about the Court’s role over the past decade. This symposium seeks to move slightly away from these familiar lines of debate by opening new analytical paths for studying the Court.
‘Progressive’ and ‘conservative’ are terms not entirely foreign to the ECHR context, but are used far less frequently than the frames of activism and restraint. As all frames do, they make us view different things or the same things differently, thereby having the potential to enrich our discussions by opening up new lines of inquiry.
Symposium contributors employ these concepts in different ways, and some do so only cautiously or even critically rather than affirmatively. For example, I use these concepts to refer to the Court’s alignment with the status quo. Accordingly, I understand ‘progressive’ as destabilising or challenging existing power structures, and ‘conservative’ as preserving or reinforcing them. Corina Heri focuses on the temporal connotations of the concept of ‘progress,’ which rest on an assumption of advancement over time. Betül Durmuş adopts a spatial notion of progress that attaches such ‘advancement’ (or ‘backwardness’) to particular locations. Vera Wriedt traces the sources of such progressive or conservative stances in the three regional human rights systems: do they stem from the treaties themselves, or do they originate from the jurisprudence? Harriet Ní Chinnéide and Tobias Mortier understand the notions of ‘conservative’ and ‘progressive’ as an intuition that is informed by one’s own background and experiences.
Over the past decade, it has become increasingly common to see ‘friends of the Court’ calling for it to exercise self-restraint. At times, this is justified by the need for the Court to get through these difficult times without provoking hostility from states (e.g., see here). At other times, it appears as an invitation for the Court to devote its limited resources to causes deemed more important and less controversial, such as democratic and rule of law backsliding, rather than, for instance, the protection of migrants (e.g., see here and here).).
Fuad Zarbiyev writes about the ‘legitimating functions of academics,’ by which they can contribute to the legitimation of both ‘self-restraint’ and ‘activism.’ Zarbiyev notes, ‘[i]nternational law scholars display a real complicity with international judges, supplying them the rationalization that glosses over the tensions, arbitrariness, contingencies, and contradictions running through legal practice.’ I read this as a reminder of our responsibility as scholars not only to protect the ECtHR from unjust attacks but also to avoid lending legitimacy to the suspension or exclusion of the rights of some for the sake of maintaining the system as it is.
As noted above, this symposium seeks to open new ways of viewing the Court, enabling us to consider its role in the current legal and political landscape of Europe through different frames. This shift is useful not only for studying the Court itself but also for examining what may remain outside its dominant framings. It may help us to ask and investigate, for instance: what do states’ accusations that the Court is overstepping its mandate lead us to focus on, and what might they cause us to overlook in the bigger picture? What assumptions are embedded in framings of the Court as drawing limits to its own powers to shield itself from state criticism and to preserve its ‘hard-won gains’ in the field of European human rights?
At the current juncture, it is all the more crucial to reflect on possible answers to such questions. In particular, because the states signing the joint statement from 10 December 2025 are placing the blame on migrants for various threats facing their ‘populations’ while accusing the Court of forcing them to act in certain ways or adopt policies not supported by their majority populations. In the face of such attacks, however, if we focus on the survival of the ECtHR, we may risk contributing to the glossing over of the real causes of the problems we are facing today.
Let me explain what I mean by this with the help of a joke Fatma Aydemir once wrote:
A banker, a social welfare recipient and an asylum seeker are sitting at a table. There are 12 cookies in front of them. The banker takes 11 cookies and says to the social welfare recipient: ‘Watch out, the refugee wants your cookie.’
It is supposed to be a funny joke, but it sadly captures who could actually instrumentalize migrants. As in this joke, we are led to believe by the joint statement that migrants are responsible for the violence or poverty in our societies. We are also led to believe that it is the benevolent European states who seek to save the lives of migrants who are dragged to their deaths in tiny boats at sea by the smugglers. Moreover, by pitting justice against responsibility, the CoE Secretary General appears to be searching for an excuse for a successful shift of blame.
Against this backdrop, even if we cannot avoid being complicit in one way or another, we remain responsible for the choices that determine what we become complicit in. It is one choice to search for reasons for the Court to restrain itself as a form of self-protection; it is another choice to look for ways to explain that it is not migrants who are driving people into poverty, but bankers and the economic policies of states that allow bankers to accumulate such wealth; that it is not ‘a handful of criminals’ who threaten our safety, but rather the collapse of our pension and healthcare systems, and the breakdown of our ecological systems. How can we communicate this to people? Shall we discuss if we can turn European human rights and the ECtHR into fora in which such issues can be challenged? We hope this blog symposium and its invitation to search for new ways of viewing, studying, talking and writing about the Court might be useful to initiate such an endeavour.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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