9 EU states urge migration law rethink at Europe's top court
Image: AP
The push for more restrictive migration policies from some European governments has pivoted toward Europe's top human rights court. Spearheaded by Italian Prime Minister Giorgia Meloni and her Danish counterpart, Mette Frederiksen, nine
European Union
member states have penned an open letter calling for a reinterpretation of the European Convention on Human Rights to make it easier to "expel foreign national criminals."
The leaders' exact demands are unclear. The signatories say their goal is to "launch a new and open-minded conversation" rather than elicit quick legal changes. But the move in itself is controversial, sparking questions about judicial independence in Europe and the legal architecture designed to protect human rights.
What is the European Convention on Human Rights?
The convention is an international treaty that was drafted and signed some 75 years ago in the aftermath of World War II.
It spells out fundamental rights and freedoms for signatory states, such as the prohibition of torture, the right to a fair trial and freedom of expression. In the 1960s, it was updated to ban the death penalty.
The convention forms the legal backbone of the Council of Europe, the continent's top human rights body. The organization is older than the European Union, and includes most of the continent's countries — it comprised 47 states until Russia was expelled in 2022 over its full-scale invasion of Ukraine.
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Individuals who believe their rights under the convention have been violated can sue their government at the European Court of Human Rights in Strasbourg, after exhausting all national legal pathways.
Recent high-profile cases at the court include orders to ground migrant deportation flights bound for Rwanda from the UK over the African country's track record on rights, and older Swiss women asking the court to order their government to take more action against climate change.
'More freedom to decide'
In the open letter dated May 22, nine European states call for "more room" to "decide on when to expel criminal foreign nationals" and "more freedom" to track "criminal foreigners who cannot be deported." The states also say they "need to be able to take effective steps" against "hostile states" that are "instrumentalizing migrants."
"The world has changed fundamentally since many of our ideas were conceived," they write.
"We now live in a globalized world where people migrate across borders on a completely different scale."
"We believe that the development in the court's interpretation has, in some cases, limited our ability to make political decisions in our own democracies," the letter reads.
The leaders note that their group — which also includes the leaders of Austria, Latvia, Lithuania, Poland, Belgium, Estonia and the Czech Republic — spans the width of Europe's political spectrum.
While Italy's Meloni hails from the hard right, her Danish counterpart is a prominent figure from the EU's centre-left.
"We know that this is a sensitive discussion. Although our aim is to safeguard our democracies, we will likely be accused of the opposite," they write.
'No judiciary should face political pressure'
The Council of Europe's secretary-general appeared unimpressed in a statement he released in response.
"Debate is healthy, but politicizing the court is not.
In a society governed by the rule of law, no judiciary should face political pressure," Alain Berset said on Saturday.
"Institutions that protect fundamental rights cannot bend to political cycles. If they do, we risk eroding the very stability they were built to ensure.
"The court must not be weaponized — neither against governments, nor by them," he added.
A political act?
Basak Cali, a professor focused on international human rights law at the University of Oxford, said the letter was "not a legal way of participating in discussions."
"It's more of a political act," she told DW over the phone. "It's not very legally clear in the letter what they would like to change," she said, adding that the court already "exercises deference to states" in cases related to migration.
"They kind of say that the court should agree with them when it has cases in the future. But the point is that that's not how courts work," she said.
Pointing finger at court is 'simplistic'
Alberto-Horst Neidhardt, a senior migration researcher with the European Policy Centre, said the European Court of Human Rights is not the primary driver of problems EU states face when trying to deport criminals.
"Neither European law nor the convention prevent them from expelling persons who pose a security threat," he explained.
"It has to do with lack of cooperation between member states. It has to do with legal hope loopholes in the framework. It has to do with lack of cooperation by third countries that oftentimes do not want individuals who pose a security threat back on their territory," he told DW. "It's a bit simplistic to just point the finger to the court."
Even if the nine states succeeded in sparking a reassessment of the court, they remain bound by other EU and UN rules on migrant rights.
"This stays as a legal fact, regardless of these kinds of letters," said legal scholar Cali.
Migration: Europe's political hot potato
Though the number of people arriving illegally in Europe has decreased, migration policy remains a fiercely debated issue in the EU — one on which elections can be won or lost. The issue has also contributed toward a rightward political shift in much of Europe.
"All the statistics suggest that we are seeing a reduction in irregular arrivals. In some member states, including Germany, we've seen a reduction of first-time asylum applications … Yet the political rhetoric remains very hostile," Neidhardt said.
He sees the Italo-Danish push as the latest step in a broader bid to address some voters' concerns.
"All these actions may somehow send, in the short term, a political message that is welcome," Neidhardt said.
But in the longer term, he added, the new letter and similar moves will keep migration as a top talking point and will be unlikely to shift opinion away from the extremes and toward the political centre.
"Most likely, they will continue voting for the parties who are somehow sponsoring the most radical solutions to what individuals perceive to be a problem," he said of voters.
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