An “Anti-migration international” prepares to challenge the European Court of Human Rights

On the subject of migration, recent events remind me of the downfall of Rishi Sunak. To avoid an electoral debacle, the former British Conservative prime minister latched on to the migration issue. He put forward radical proposals to deport migrants, most notably the “Rwandan solution”. And he attacked the European Court of Human Rights (ECtHR), which was stopping him from putting such plans into practice. In the end, Britain's centre-left opposition triumphed at the general election.

At the time, Sunak seemed to be on his own. Today, things have changed. In an open letter published on 22 May, nine European countries (Denmark, Italy, Poland, Belgium, Austria, Czechia, Estonia, Latvia and Lithuania) challenged the ECtHR for allegedly over-interpreting the scope of the European Convention on Human Rights, to which they are signatories. In these countries’ view, the court is stopping them from exercising their right to expel foreigners who have committed crimes. They want a reassessment of the court's role.

The Council of Europe, to which the ECtHR reports, has rebuked the signatory states. It called for the court not to be politicized, and rejected any weakening of the convention itself.

Slippery slope

“I'm surprised and saddened to see that Belgium is allying itself with countries that have already attacked the justice system head-on”, sighed Françoise Tulkens, a former judge and then vice-president of the ECtHR, when interviewed by Agathe Decleire for the Belgian daily Le Soir. “Belgium has always been at the forefront of these issues. This signature is hard to understand.”

For Tulkens, the argument that the ECtHR has strayed from its original interpretation does not hold up, given the court's dynamic and malleable character. She sees in the open letter an “attack on the rule of law” and believes that the requested re-interpretation would “dig the grave of fundamental rights”. The stakes are high: the ECtHR can prevent deportation if a deportee risks torture or inhuman or degrading treatment in the destination country.

Le Soir also published an op-ed by fifteen university professors. They express outrage at the attitude of the signatories to the open letter.

In the Danish daily Berlingske, Kalinka Aaman Agger interviews Zenia Stampe, spokesperson for the Radikale Venstre (RV, centre-left). Although her party supports the idea of being able to deport criminals of foreign origin, Stampe has questions. “What is the definition of a hardened criminal? Are petty criminals at risk of deportation? And what does it take to be deported?” In her view, the European Convention on Human Rights guarantees a proportional balance between the seriousness of the offence and the offender's attachment to their country of residence.

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For Stampe, the central question is: should we abandon the idea of proportionality in sentencing? “The worst-case scenario is that even people who have foreign origins but Danish passports start to fear that they will be considered second-class citizens, and that we are looking for the first opportunity to get rid of them.”

‘Fundamental rights are not concessions’

For Valigia Blu, Giulio Fedele offers an exhaustive analysis of the letter and its flaws. Among other problems, the Italian journalist observes that the text calls into question “the very concept of human rights, suggesting that their protection must be ‘earned’ and can be lost if a citizen does not conform to the rules of society”:

“[The letter] asserts that some migrants have allegedly chosen not to integrate, ‘isolating themselves in parallel societies and distancing themselves from the fundamental values of equality, democracy and freedom’, to the point of not contributing ‘positively to the society that welcomed them, and opting to commit offences’. For such reasons, [the letter suggests that] their rights should be reduced or attenuated: ‘It is incomprehensible that some people can arrive in our countries, take advantage of our freedom and many opportunities, and even choose to commit crimes’.”

A fundamental question arises when we talk about migration: who has rights? “Fundamental rights are not discretionary concessions, but indispensable guarantees that must be respected for every individual, regardless of his or her conduct, status, political inclination, the existence of a criminal record, or the regular or irregular way in which he or she entered the state’s territory”, says Giulio Fedele.

In Il Manifesto, Giansandro Merli questions the deeper purpose of reassessing the ECtHR's role:

“To dismantle rights, you always start with the borderline cases, the ‘public enemies’. But it never stops there. Donald Trump’s illegal deportations, which also involve people without criminal records and are at the heart of [his government’s] raging dispute with the courts, are proof of this. The letter follows the same pattern. Its tone is moderate, but the signal is clear.”

As an institution, the European Court of Human Rights is a part of the wider world, points out Giansandro Merli. Its budget depends largely on funding from signatory states, and its judges are appointed at national level.

Merli cites Pasquale De Sena, a professor of international law in Palermo: “What is serious is that this [letter] may prelude a collective and concerted failure to comply with ECtHR rulings in this area, if no agreement is reached.”

For his part, Merli remains circumspect: “Whatever [Italian prime minister Giorgia] Meloni may say, the letter has not met with the expected success. Apart from Denmark [and Italy], only seven countries have signed it. The absence of Germany and other major EU countries is significant. Nine out of the 27 EU members is a small number. Nine out of the 46 members of the Council of Europe, where the ECtHR has its headquarters, is even less. But no matter: the way is open.”

One country versus the European Court of Human Rights yesterday, nine today. How many tomorrow?