June 09, 2026
By dr. Daniel Thym
Debates about migration often follow binary descriptions, such as the juxtaposition of state interests and migrant rights. Real life is often more ambiguous, as the Chișinău Declaration, adopted on 15 May 2026, illustrates well. Its focus on migration confronts one of the hottest topics in contemporary politics which holds the potential of serious clashes between governments and the Strasbourg Court, including the real risk of withdrawal, not least by the UK after the next general election.
Among most experts on migration and human rights, the role of the ‘bad’ and ‘good’ guy are clearly assigned: any criticism of the Court is presented as following the ‘backlash’ rationale of illiberal nationalism. The consensual agreement on the Chișinău Declaration indicates that this may be too simple. States share the conviction that ‘the search for a fair balance’ (Preamble) is an ongoing endeavour and that dynamic interpretation need not be a one-way street to enhance the rights of migrants (paras 12, 16, 40).
In order to assess the Chișinău Declaration, my comments distinguish two competing readings concerning its potential ramifications in the medium-term: continuation of the status quo or subtle-rebalancing. They need not be mutually exclusive, since the document combines, like any product of diplomatic negotiations, countervailing preferences. It merged the priorities of the States that are sceptical of the Court with the position of those Contracting Parties which put an emphasis on the independence of the judicial process, although they may share some concerns.
The focal point of the Declaration is the section on ‘migration-related issues’ (paras 16-47). It presents itself as the ‘best of’ statements from the ECtHR’s repertoire on the authority of State Parties to control and restrict migration. They had been compiled by the Steering Committee for Human Rights (CDDH) whose outcome document contains numerous references to the pertinent judgments. This document was a masterpiece of institutional diplomacy, since it managed to channel the criticism into the path-dependent contingencies of the judicial output, by means of rephrasing the criticism in terms which had been recognised as being legitimate in the case law. All 46 members of the Committee of Ministers agreed to the Declaration by consensus, in contrast to the split among governments in December of last year.
Crucially, the emphasis on tough language, in the sense of selectively highlighting control-oriented statements of the Strasbourg Court without challenging previous judgments as such, does not reverse the protective credentials of earlier judgments. These judgments had mostly been delivered during 1989 and the early 2010s—a period some have called ‘the revolution’ on migration, in contrast to the previous restraint. Nevertheless, previous instances of dynamism had never been a one-way street towards ever more rights for migrants. Judgments had always contained restrictive elements as well. These caveats dominate the Chișinău Declaration.
This contemporary relevance of judgments delivered more than a decade ago explains why the press unit of the Court told only half of the story when it highlighted the absence of dynamism in recent years. States may be unhappy with rulings delivered many years ago which are being upheld by domestic authorities and courts throughout Europe on a daily basis, even if the ECtHR does not find violations often these days. Recent reform efforts have focused on the primary responsibility of domestic authorities and courts to apply the Convention in accordance with the principle of subsidiarity. The political appetite for the Chișinău Declaration has been fed, in part at least, by such domestic developments. We shall see that one of the legally most tantalising elements of the Chișinău Declaration concerns the plea for restrictive ‘guidance’ at the national level.
Implications of the Chișinău Declaration on the Convention system in the medium-term will depend on the reaction of the Strasbourg Court and on what States wanted to achieve in the first place. Some might be reasonably happy if they achieve ‘symbolic’ victories in high profile cases involving criminals and the ‘instrumentalisation’ of migration. The Chișinău Declaration contains ample recommendations, as we shall see, on what such subtle re-balancing and responses to new challenges might look like. Critical academics and NGOs would disapprove of each such reorientation, but judges in Strasbourg might weather the storm with limited collateral damage. The bulk of the dynamic case law would remain intact.
An alternative outlook perceives the Chișinău Declaration as an interlude for further clashes, either because the ECtHR refuses to follow the guidance or because States want to achieve more than subtle re-balancing. Some governments might aim for deep structural adjustment which effectively reverses some of the dynamic interpretation. If that was the case, lingering tensions and anti-court sentiment would persist and might even be reinforced if some actors are left with the impression that the Chișinău Declaration had few consequences.
Seen from this perspective, the focus on control imperative on the surface of the Chișinău Declaration would be more significant than the reaffirmation of the case law in the carefully drafted wording. A first litmus test may be the Grand Chamber judgment on the pushback practices in response to the instrumentalisation of migration. In other areas, deep structural adjustment can arguably not realistically be achieved by means of a political declaration, or the interpretative reversal of dynamism by the Court itself. It might require the adoption of a legally binding Additional Protocol.
While governments refrain from criticising the Court openly in the Chișinău Declaration, they seek to achieve subtle re-balancing within the case law. Even so, the final text, adopted by consensus, does not provide judges with definite guidance. Its seven pages combine elements supporting change with a reaffirmation of the status quo, occasionally in the same paragraph. Against this backdrop, our comments will assess the possible implications in the event that judges acquiesce the plea for re-balancing. Such an outcome is far from certain, since the Chișinău Declaration equally contains elements supporting continuity. Political declarations can influence the interpretation of Convention, but the Court in Strasbourg retains the ultimate authority to decide on their significance.
Human rights limits to expulsion under Article 8 ECHR are subject to a classic justification test when States justify interferences with the right to private and family life in light of principle of proportionality. Settled case law has laid down various factors for the ensuing balancing exercise (para 31). In such scenarios, the principle of subsidiarity and the margin of appreciation are ideally placed to add value, since the proportionality test leaves ample room for domestic authorities to assume responsibility and may even allow for country-specific solutions (paras 32-33).
In a novel twist, the Chișinău Declaration goes further when it invites States ‘to develop and clarify domestic frameworks’ for how to apply the Convention (para 21). This must probably be read as a plea for legislative guidance, rather than administrative or judicial balancing. In the British legal system, the Parliament could amend the Human Rights Act to limit the power of courts to challenge legislation. The same might effectively occur under the Danish tradition of judicial restraint, given that the Folketing has recently adopted legislation on automatic expulsion.
Against this backdrop, the ECtHR might soon be confronted with the question whether the plea for the ‘continuing further development’ (para 4) of the principle of subsidiarity and the margin of appreciation can cover legislative forms of abstract balancing which leave little—or no—room for considering personal characteristics (para 5). The effects of such a solution would depend on the structure of the domestic legal system in the different State Parties. What could work for the UK, Denmark, and some other countries, might be unavailable in Italy or Austria where (constitutional) courts exert principled oversight of domestic legislation.
While such an outcome might possibly suit Article 8 ECHR, it sits uncomfortably with the idea of an absolute guarantee not subject to interferences, as is the case for Article 3 ECHR (paras 22-23). Nevertheless, the Declaration can be read to favour domestic guidance on the scope of the prohibition of refoulement as well (paras 21, 29). It seems to me that this idea is misplaced. Judges in Strasbourg may leave the assessment of the facts on the ground to domestic authorities and courts, but they retain the authority—and responsibility—to define the meaning of torture and inhuman and degrading treatment for the Convention legal space uniformly.
The Refugee Convention is limited to persecution on political, religious, and several other grounds, but this is not the end of the story. In contemporary Europe, the prohibition of refoulement stretches much further under human rights law. Protection against general security risks in countries of origin, irrespective of persecution there, was introduced first by EU legislation in the form of ‘subsidiary protection’, but it is also covered by Article 3 ECHR nowadays. One step further, the ECtHR embraced ‘extreme material poverty’ (here, paras 249-254). The reminder that the ECHR should be interpreted ‘in accordance with relevant norms and principles of public international law’ (para 12) may be read as an indirect critique of such dynamism.
The Chișinău Declaration supports a careful approach in this respect, rather than calling for an outright rollback that overturns previous instances of dynamism. The basic contours of the case law are reaffirmed but should be handled carefully (paras 25-26). Such restraint has defined the Court’s perspective on medical cases for some years, whereas Strasbourg’s stance on extreme material poverty within the EU’s Dublin system is difficult to assess. The general principles set out in the Grand Chamber’s Tarakhel judgment remained abstract, thus rendering it difficult to distil definite standards (here, paras 93-99). In recent years, the Court has rarely dealt with follow-up cases, meaning that there is hardly any guidance on how to assess the situation in a specific country.
At the domestic level, however, German courts alone decided no less than 5,000 Dublin cases last year. Dutch, Swiss, and some other courts are equally active (here, p. 52). Even if these States laid down restrictive domestic guidance, as the Declaration seems to suggest (para 26), it is wholly uncertain whether the self-confident judiciary in these countries would follow suit. In theory, the ECtHR might take up the—hidden—call for regional solutions (para, 18) and reactivate two decisions of 2000 and 2008 which had refused to apply Article 3 ECHR to intra-European transfers by deferring to inter-state cooperation and obligations under EU law. However, the Chișinău Declaration does not support such return to the status quo ante. In contrast to Article 8 ECHR, it is difficult to imagine what subtle re-balancing might look like, especially if few cases reach Strasbourg in the first place.
‘New ways’, or ‘innovative solutions’, receive a lot of attention in Brussels and national capitals these days. They include the transfer of asylum seekers to safe third countries and ‘return hubs’ for persons without protection needs. The Chișinău Declaration advocates such initiatives (paras 45-47). While the political message is apparent, it is less clear what legal solution States exactly had in mind. Two doctrinal elements might be relevant.
First, the Grand Chamber concluded in Ilias & Ahmed that any transfer to a third states will usually require a ‘legal procedure resulting in a legal decision’, although the transfers might possibly take place ‘[i]n the absence of such [individual procedure]’ on the basis of information about the general level of safety (here, paras 134-141). The emphasis on country reports and the safety of democratic States can be read as an indirect plea for such generalised decision-making (paras 28, 43). Such an outcome would mirror the idea of legislative guidance under Article 8 ECHR, although it might still be subject to judicial review, albeit at a country-specific level only.
Such ‘fair, clear, predictable, and timely’ decision-making is essential for asylum and return proceedings (paras 41, 44). Procedural backlogs make it difficult to return unsuccessful asylum applicants, consume scarce resources, and can undermine public trust in the asylum system. To be sure, any change of direction of the ECtHR would not have immediate consequences for States bound by EU legislation. However, this need not prevent judges in Strasbourg from distinguishing between human rights law and statutory prescriptions, rather than incorporating legislative guarantees into the Convention, thereby effectively preventing legislative change on which the Chișinău Declaration puts such an emphasis (paras 18-19).
Second, the Declaration states categorically in the context of the prohibition of refoulement: ‘The Convention does not purport to be a means of requiring the States Parties to impose Convention standards on other States’ (para 28). However, this is precisely what the Court did when it expanded the scope of Article 3 ECHR beyond the Refugee Convention. Besides the aforementioned scenario of socio-economic harm (paras 25-26), return to a third state requires the country of destination to provide safeguards against all the dangers covered by the wide European understanding of Article 3 ECHR. This can have tangible repercussions. The British Supreme Court blocked the ‘Rwanda plan’ amongst others because the Rwandan asylum system did not follow the wide European understanding of subsidiary protection during civil wars.
Over the past forty years, the Strasbourg Court expanded the protective reach of the Convention, even though some might still deem the glass to be half empty. The Chișinău Declaration follows the same script, albeit under sign reversal: the ‘living instrument’ doctrine and interpretation in light of ‘present-day conditions’ is supposed to limit—rather than expand—migrants’ rights (paras 12, 37, 40). Such ‘reversed dynamism’ might be unusual, but it is arguably inherent in the vision of the Convention as a ‘constitutional instrument of European public order’, since constitutions are about more than the protection of individual rights.
It is widely known that the debate about instrumentalisation concerns scenarios where neighbouring countries, notably Belarus and Russia, facilitate migratory movements to exercise political pressure (para 38). Sooner or later, the Grand Chamber will have to rule on three pending cases. Given that Article 3 ECHR is an absolute guarantee, these judgments will revolve around what the provision requires in the first place, rather than considering the justification of interferences (paras 22-23, 39-40). The Declaration contains contradictory signals in this respect, for instance when it calls for the respect for migrants’ rights and consideration of their ‘conduct’ in terms of irregular border crossings at the same time (para 38).
Space precludes detailed comments, but three considerations are warranted. First, the Declaration may indirectly refer to Article 33(2) Refugee Convention, which lays down an exception from the prohibition of refoulement for persons posing a severe security risk, when it reminds the Court to interpret the Convention in light of international law (para 12). Second, judges might possibly distinguish domestic negative obligations of result from external positive procedural obligations of conduct, also considering that Conventions standards should not be projected onto third states (para 28). Third, they might develop further an exception in the N.D. & N.T. judgment which had been based on the ‘own conduct’ criterion. Its doctrinal contours remained vague but the outcome demonstrated, nonetheless, that interpretative dynamism need not be a one-way street.
Almost a century ago, US President Franklin D. Roosevelt was unhappy with several judgments of the Supreme Court which had blocked legislation promoting the ‘New Deal’. The Democratic President had prepared a ‘court-packing plan’ which it aborted when the Supreme Court suddenly changed course. Historians contest whether this was a deliberate move. In any case, the long history of American constitutionalism shows that there can be ‘constitutional moments’ when basic contours of seemingly ironclad lines of interpretation become fluid and are rewritten. The gradual expansion of migrant rights by the ECtHR from 1989 onwards was such an exercise in adapting the interpretation to present-day conditions.
The Chișinău Declaration invites the Court to repeat this exercise with regard to migration in the years to come, albeit in a different direction. We have seen that such an endeavour need not necessarily involve the deep structural reversal of previous innovations but could come about by means of subtle re-balancing, together with occasional about-turns, especially in high-profile judgments, notably on instrumentalisation. While many will contest the idea of further change to the benefit of States, such an outcome need not be the end of the rights of migrants. It might, to the contrary, prevent a scenario where judicial standstill eventually leads to the destruction of the Convention system. The Chișinău Declarations gives rough indications at best, thus leaving the burden on the Strasbourg Court to decide whether and if so to what extent it follows suit.
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