Recently, the leaders of nine European states, out of 46 Council of Europe members, issued a joint statement calling for a fundamental revision of the interpretation of the European Convention on Human Rights (‘ECHR’) on immigration issues.
Initially pioneered by Italy and Denmark, and supported by Austria, Belgium, Czechia, Estonia, Latvia, Lithuania, and Poland, the statement acknowledges commitment to a rule-based international order and “universal and everlasting” ideas underpinning the ECHR, yet questions whether existing treaties match contemporary challenges of immigration. It urges the European Court of Human Rights (‘ECtHR’) to revise its previously adopted interpretations, accusing it of “extend[ing] the scope of the Convention too far as compared with the original intentions”, limiting the governments’ discretion in protecting their “democratic societies and […] populations”, instead “result[ing] in the protection of the wrong people”. The governments call for “restor[ing] the right balance”, arguing that national security, as “the highest priority”, should leave more room for domestic decision-making. Politicians from other states, e.g., the United Kingdom’s shadow home secretary, followed up, declaring that states would have to quit the ECHR unless “radical and fundamental change” occurs.
Lately, the Court has seen various (attempted) démarches by member states both related to immigration (e.g., Belgium’s refusal to comply with the “the reception crisis” rulings or threats by the United Kingdom’s politicians to withdraw from the Convention seen as an obstacle to immigration policies) and beyond (e.g., Poland’s open refusal to comply with ECtHR decisions on judicial reform). It is undoubtedly common for states to disagree with international courts’ rulings. Non-compliance – albeit being a violation of conventional obligations – is not uncommon either. Withdrawal from the Convention – albeit rare (e.g., with a vain precedent of Russia after the Council of Europe already expelled it) – remains a member state’s sovereign prerogative (ECHR, Art. 58).
However, something different sets aside the recent collective statement. It seems to be a distinctively concerted attempt by a relatively substantial number of parties (almost one-fifth) to proactively influence the ECHR’s interpretation by its principal and only independent judicial body. Do sovereign states, as the Convention’s architects and the Court’s founders, have a say in the treaty’s reading if they believe the Court overstrains its interpretation? Or are there limits which, if crossed, encroach upon the Court’s judicial integrity and the very spirit of the Convention?
A ‘living instrument’ for states?
The Convention is “a living instrument” to be interpreted evolutionarily in light of changing realities (Tyrer, ¶31). The doctrine has traditionally been afforded a progressive reading associated with an ever-expanding scope of rights and guarantees due to increasing international protection standards or newly emerging fields of social life (e.g., Selmouni, ¶101; Demir and Baykara, ¶146). Accordingly, limitations to such protections must be read restrictively (Demir and Baykara, ¶146).
On the basis that the Convention is adaptable to changing circumstances, there is nevertheless a plausible claim that it can be interpreted regressively given increasing economic or political burdens imposed beyond their control (Helfer and Voeten, 802-806). However, this undoubtedly demands a massive shift requisite to obtain the necessary “European consensus” on legal, social, ethical, or scientific developments which the living instrument needs to grow (e.g., Hämäläinen, ¶74-75). Where one wants to jump ahead of this slow process, the Convention already enshrines a sufficiently broad basis to react to any emerging threats, allowing for the interference with certain rights and derogation procedure in time of emergency, while non-derogable rights are, by design, left intact in every evolving environment. If governments consider immigration to be a real “crisis” that warrants derogation from edicts of humanity, the Convention provides the tools to react accordingly and alleviate the burden.
Evolution by amendment?
If the aim is to change how a judicial body interprets a rule, a crude yet undoubtedly effective method is to alter the rule’s content. Amendment by protocol can theoretically modify the Convention’s text. However, the governments’ concern relates not to how the Convention defines a particular right, but rather to the contours of various rights as determined by the Court’s interpretive practice. Even if hypothetically possible, amendments are profoundly inadequate to address this issue. This process is onerous and, as any regression of protections would theoretically constitute a derogation from its precursor provisions, it would require unanimity in adoption (VCLT, Arts. 40-41). Moreover, changing the Convention upon every single disagreement in interpretation, even if shared by a certain grouping of states, will turn the treaty into a monstrous chimera with endless lists of modifications and exceptions.
‘Subsequent practice’ modifying the interpretation?
Can it be argued, then, that the Court should factor in the position of a considerable enough number of states according to fundamental rules of treaty interpretation? Subsequent practice in treaty application is a primary authentic means of interpretation if it establishes the parties’ agreement regarding interpretation (VCLT, Art. 31(3)) or a supplementary means if it simply represents conduct by one or more parties after the treaty’s conclusion (ILC Draft Conclusions on Subsequent Agreement and Subsequent Practice (‘ILC Draft Conclusions’), Conclusion 4). Subsequent practice can narrow or widen the scope of treaty terms, or assist in determining whether the parties’ intention evolved over time (ILC Draft Conclusions, Conclusions 7-8). The aforementioned high-level declaration of leaders, in effect an exercise of executive functions, may serve as an element of subsequent practice for purposes of treaty interpretation (ILC Draft Conclusions, Conclusion 5).
The weight of subsequent practice depends on its clarity, specificity, and repetition (ILC Draft Conclusions, Conclusion 9). One broadly worded declaration on its own is entirely insufficient to meaningfully affect the interpretation of the Convention. Therefore, its assessment needs to be accompanied at a minimum by respective domestic practice, including in light of compliance with the ECtHR’s judgments. If a state decides to comply with rulings on contested issues, yet openly disagrees with the reasoning on a political level, this decision gives rise to inconsistent conduct undermining the probative weight of the practice. If a state decides not to comply in addition to its publicly proclaimed position, then a state is in violation of its international obligations under the ECHR. Under customary international law, inconsistent conduct may constitute “indications of the recognition of a new rule” (Nicaragua, ¶186). But treaty law is a different beast. It is unlikely that obvious non-compliance, even if consistent enough, can legitimately be regarded as “subsequent practice”, since considering otherwise would undermine the whole conventional protection system, forcing the Court to let breaches impact how the Convention is read. If anything, non-compliance can be indicative of the loss of effectiveness or legitimacy of the regulations or institutions, not modifications of the treaty’s content.
The number of states demonstrating claimed subsequent practice is another informative consideration. The voice of one-fifth of the Convention’s parties does not seem representative enough to decisively influence its interpretation. It certainly fails to reflect the necessary understanding of all “the parties as a whole” (ILC Draft Articles on the Law of Treaties with commentaries, 222). Even if the represented states claim to be “specially affected” by immigration, this notion is of little avail as it is intrinsically related to the interpretation of customary international law (North Sea Continental Shelf, ¶73). But standing before treaty law, all states are equal. The range of obligations a state undertakes within a treaty is unmoved by its so-called “specially affected” status.
The equilibrium of the system
Regardless of whether the tactic chosen can legally impact interpretation, the démarche sends a concerning political message. The ECtHR is an independent and impartial institution to be shielded from any external influence. No state or group of states is allowed to induce or pressure the Court into the interpretation it considers appropriate. If states are so eager to refer to the drafters’ intentions, they must keep in mind a key one – to sideline sovereign states from adjudicating upon the rights to which a person is entitled and to place this endeavour under compulsory, supra-state supervisory jurisdiction vis-à-vis individual human beings. Even couched in the soft language of cooperation towards “a new and open minded conversation”, there is a veiled implication that states are allowed to dictate interpretations to the Court, raising the spectre of a politicised Court susceptible to sovereign tantrums.
To abandon obligations because they “[limit] [governments’] ability to make political decisions” has a name – a violation. Premising this endeavour on irregular migration, given current social climates, surreptitiously opens the door to such breaches. But forcing through such reasoning opens the valves to an ever-expanding thread of exceptions on the vague basis of “protect[ing] our democratic societies and our populations against the challenges facing us in the world today”. From intrusive surveillance to abandoning habeas corpus, anything goes if political concerns dictate so. But the ECHR demands another path. Difficult societal issues are to be resolved with good faith deference to basic human rights. They are not to be treated as obstacles to be removed.
The Convention does not protect “the wrong people”, as the governments claim. The Convention does protect a human being. The Convention is blind to whether this human is a convicted criminal or a subsequently canonised saint, a migrant or a former head of state, a homeless person or a billionaire. This blindness serves us well, as it serves well to remind ourselves that anyone may be branded the ‘wrong person’ in the right circumstances.
Opinions expressed in the blog are solely the authors’ and do not necessarily reflect the views of the organisations and institutions they work with.
Governments’ Démarche against the ECtHR: Room for Discussion or Threats to Judicial Integrity
Written by Maksym Vishchyk and Jeremy PizziRecently, the leaders of nine European states, out of 46 Council of Europe members, issued a joint statement calling for a fundamental revision of the interpretation of the European Convention on Human Rights (‘ECHR’) on immigration issues.
Initially pioneered by Italy and Denmark, and supported by Austria, Belgium, Czechia, Estonia, Latvia, Lithuania, and Poland, the statement acknowledges commitment to a rule-based international order and “universal and everlasting” ideas underpinning the ECHR, yet questions whether existing treaties match contemporary challenges of immigration. It urges the European Court of Human Rights (‘ECtHR’) to revise its previously adopted interpretations, accusing it of “extend[ing] the scope of the Convention too far as compared with the original intentions”, limiting the governments’ discretion in protecting their “democratic societies and […] populations”, instead “result[ing] in the protection of the wrong people”. The governments call for “restor[ing] the right balance”, arguing that national security, as “the highest priority”, should leave more room for domestic decision-making. Politicians from other states, e.g., the United Kingdom’s shadow home secretary, followed up, declaring that states would have to quit the ECHR unless “radical and fundamental change” occurs.
Lately, the Court has seen various (attempted) démarches by member states both related to immigration (e.g., Belgium’s refusal to comply with the “the reception crisis” rulings or threats by the United Kingdom’s politicians to withdraw from the Convention seen as an obstacle to immigration policies) and beyond (e.g., Poland’s open refusal to comply with ECtHR decisions on judicial reform). It is undoubtedly common for states to disagree with international courts’ rulings. Non-compliance – albeit being a violation of conventional obligations – is not uncommon either. Withdrawal from the Convention – albeit rare (e.g., with a vain precedent of Russia after the Council of Europe already expelled it) – remains a member state’s sovereign prerogative (ECHR, Art. 58).
However, something different sets aside the recent collective statement. It seems to be a distinctively concerted attempt by a relatively substantial number of parties (almost one-fifth) to proactively influence the ECHR’s interpretation by its principal and only independent judicial body. Do sovereign states, as the Convention’s architects and the Court’s founders, have a say in the treaty’s reading if they believe the Court overstrains its interpretation? Or are there limits which, if crossed, encroach upon the Court’s judicial integrity and the very spirit of the Convention?
A ‘living instrument’ for states?
The Convention is “a living instrument” to be interpreted evolutionarily in light of changing realities (Tyrer, ¶31). The doctrine has traditionally been afforded a progressive reading associated with an ever-expanding scope of rights and guarantees due to increasing international protection standards or newly emerging fields of social life (e.g., Selmouni, ¶101; Demir and Baykara, ¶146). Accordingly, limitations to such protections must be read restrictively (Demir and Baykara, ¶146).
On the basis that the Convention is adaptable to changing circumstances, there is nevertheless a plausible claim that it can be interpreted regressively given increasing economic or political burdens imposed beyond their control (Helfer and Voeten, 802-806). However, this undoubtedly demands a massive shift requisite to obtain the necessary “European consensus” on legal, social, ethical, or scientific developments which the living instrument needs to grow (e.g., Hämäläinen, ¶74-75). Where one wants to jump ahead of this slow process, the Convention already enshrines a sufficiently broad basis to react to any emerging threats, allowing for the interference with certain rights and derogation procedure in time of emergency, while non-derogable rights are, by design, left intact in every evolving environment. If governments consider immigration to be a real “crisis” that warrants derogation from edicts of humanity, the Convention provides the tools to react accordingly and alleviate the burden.
Evolution by amendment?
If the aim is to change how a judicial body interprets a rule, a crude yet undoubtedly effective method is to alter the rule’s content. Amendment by protocol can theoretically modify the Convention’s text. However, the governments’ concern relates not to how the Convention defines a particular right, but rather to the contours of various rights as determined by the Court’s interpretive practice. Even if hypothetically possible, amendments are profoundly inadequate to address this issue. This process is onerous and, as any regression of protections would theoretically constitute a derogation from its precursor provisions, it would require unanimity in adoption (VCLT, Arts. 40-41). Moreover, changing the Convention upon every single disagreement in interpretation, even if shared by a certain grouping of states, will turn the treaty into a monstrous chimera with endless lists of modifications and exceptions.
‘Subsequent practice’ modifying the interpretation?
Can it be argued, then, that the Court should factor in the position of a considerable enough number of states according to fundamental rules of treaty interpretation? Subsequent practice in treaty application is a primary authentic means of interpretation if it establishes the parties’ agreement regarding interpretation (VCLT, Art. 31(3)) or a supplementary means if it simply represents conduct by one or more parties after the treaty’s conclusion (ILC Draft Conclusions on Subsequent Agreement and Subsequent Practice (‘ILC Draft Conclusions’), Conclusion 4). Subsequent practice can narrow or widen the scope of treaty terms, or assist in determining whether the parties’ intention evolved over time (ILC Draft Conclusions, Conclusions 7-8). The aforementioned high-level declaration of leaders, in effect an exercise of executive functions, may serve as an element of subsequent practice for purposes of treaty interpretation (ILC Draft Conclusions, Conclusion 5).
The weight of subsequent practice depends on its clarity, specificity, and repetition (ILC Draft Conclusions, Conclusion 9). One broadly worded declaration on its own is entirely insufficient to meaningfully affect the interpretation of the Convention. Therefore, its assessment needs to be accompanied at a minimum by respective domestic practice, including in light of compliance with the ECtHR’s judgments. If a state decides to comply with rulings on contested issues, yet openly disagrees with the reasoning on a political level, this decision gives rise to inconsistent conduct undermining the probative weight of the practice. If a state decides not to comply in addition to its publicly proclaimed position, then a state is in violation of its international obligations under the ECHR. Under customary international law, inconsistent conduct may constitute “indications of the recognition of a new rule” (Nicaragua, ¶186). But treaty law is a different beast. It is unlikely that obvious non-compliance, even if consistent enough, can legitimately be regarded as “subsequent practice”, since considering otherwise would undermine the whole conventional protection system, forcing the Court to let breaches impact how the Convention is read. If anything, non-compliance can be indicative of the loss of effectiveness or legitimacy of the regulations or institutions, not modifications of the treaty’s content.
The number of states demonstrating claimed subsequent practice is another informative consideration. The voice of one-fifth of the Convention’s parties does not seem representative enough to decisively influence its interpretation. It certainly fails to reflect the necessary understanding of all “the parties as a whole” (ILC Draft Articles on the Law of Treaties with commentaries, 222). Even if the represented states claim to be “specially affected” by immigration, this notion is of little avail as it is intrinsically related to the interpretation of customary international law (North Sea Continental Shelf, ¶73). But standing before treaty law, all states are equal. The range of obligations a state undertakes within a treaty is unmoved by its so-called “specially affected” status.
The equilibrium of the system
Regardless of whether the tactic chosen can legally impact interpretation, the démarche sends a concerning political message. The ECtHR is an independent and impartial institution to be shielded from any external influence. No state or group of states is allowed to induce or pressure the Court into the interpretation it considers appropriate. If states are so eager to refer to the drafters’ intentions, they must keep in mind a key one – to sideline sovereign states from adjudicating upon the rights to which a person is entitled and to place this endeavour under compulsory, supra-state supervisory jurisdiction vis-à-vis individual human beings. Even couched in the soft language of cooperation towards “a new and open minded conversation”, there is a veiled implication that states are allowed to dictate interpretations to the Court, raising the spectre of a politicised Court susceptible to sovereign tantrums.
To abandon obligations because they “[limit] [governments’] ability to make political decisions” has a name – a violation. Premising this endeavour on irregular migration, given current social climates, surreptitiously opens the door to such breaches. But forcing through such reasoning opens the valves to an ever-expanding thread of exceptions on the vague basis of “protect[ing] our democratic societies and our populations against the challenges facing us in the world today”. From intrusive surveillance to abandoning habeas corpus, anything goes if political concerns dictate so. But the ECHR demands another path. Difficult societal issues are to be resolved with good faith deference to basic human rights. They are not to be treated as obstacles to be removed.
The Convention does not protect “the wrong people”, as the governments claim. The Convention does protect a human being. The Convention is blind to whether this human is a convicted criminal or a subsequently canonised saint, a migrant or a former head of state, a homeless person or a billionaire. This blindness serves us well, as it serves well to remind ourselves that anyone may be branded the ‘wrong person’ in the right circumstances.
Opinions expressed in the blog are solely the authors’ and do not necessarily reflect the views of the organisations and institutions they work with.
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