Foreign ministers will gather in Chișinău this week for a Council of Europe (CoE) meeting when, amongst other agenda points, member states will consider formally adopting a political declaration concerning the European Convention on Human Rights and migration.
The tensions are not new. Roughly a year ago Italy and Denmark, supported by seven other states, called for a reassessment of aspects of Strasbourg’s migration case law arguing that the European Court of Human Rights had, in some cases, interpreted the Convention in ways that constrained states’ ability to deport foreign nationals convicted of serious offences or respond effectively to irregular migration.
This was followed in December 2025 by a statement backed by 27 Council of Europe member states, including the United Kingdom, calling for a 'new and open-minded conversation' about the interpretation of the Convention in migration cases. Particular concern was directed towards Article 8 rights to private and family life in deportation cases and the operation of Strasbourg jurisprudence in removal and expulsion proceedings.
What made the intervention politically striking was not only its substance, but the breadth of the coalition behind it. This was not simply a campaign led by governments traditionally hostile to supranational adjudication. It included founding Convention states, Nordic democracies and the UK, long central to the post-war human rights framework. Equally revealing, however, was the absence of France, Germany and Spain, exposing a significant division within the Convention system itself.
Furthermore, what initially appeared to be criticism of particular strands of Strasbourg case law has since evolved into something broader: a challenge to the institutional assumptions on which the Convention system rests.
The 134th Session of the Committee of Ministers in Chișinău on 14-15 May will be revealing therefore not only regarding the December declaration but also the very foundation of the Convention and its future protection. The process has already prompted interventions from lawyers’ organisations and NGOs across Europe, including the European Criminal Bar Association.
The central issue is not whether states face genuine migration pressures. They plainly do. Nor is political disagreement with Strasbourg jurisprudence novel in a system designed to constrain executive power. The Convention system has always involved tension between national authorities and the court. The more difficult question is whether Convention rights remain legal guarantees insulated from political pressure, or whether their practical scope may be adjusted when their application becomes electorally inconvenient.
That matters because the Convention was designed after the Second World War precisely as a constraint on state power. Rights under Articles 3 and 8 were never intended to operate only where politically convenient. Their constitutional purpose is most visible where states would prefer greater freedom of action.
This is particularly true in migration, extradition and expulsion cases, where the individuals invoking Convention protections are often those least likely to attract public sympathy. Yet the universality of rights is tested precisely in hard cases. Courts are rarely politically popular when they restrain executive power in high salience migration disputes. That is hardly new.
The concern raised by the present debate therefore extends beyond migration policy itself. Once it becomes accepted that Convention protections may be politically recalibrated for one unpopular category of persons, the principle is difficult to confine. Arguments now deployed in migration contexts - appeals to exceptional pressures, national security and contemporary realities - are readily transferable elsewhere. Similar tensions have already emerged across Europe in disputes involving judicial independence, protest rights and freedom of expression.
These debates also take place against a wider backdrop. At a moment when rule of law guarantees are under visible strain globally (and within parts of Europe itself) the Convention system remains one of the few functioning supranational frameworks capable of constraining state power through law rather than politics.
The issue is not simply the wording of any declaration emerging from Chișinău. It is the precedent embedded within the exercise itself: whether political institutions of the Council of Europe should collectively signal that Convention protections may contract when their operation becomes politically burdensome.
That question becomes still more delicate because interpretive authority under Article 32 rests with the Strasbourg court itself. Political disagreement with Strasbourg judgments is inevitable in a system designed to constrain executive power. But there is a meaningful distinction between criticising jurisprudence and attempting collectively to shape the future interpretive direction of the Convention while related legal questions remain before the court in pending proceedings.
There is also a striking disconnect between some of the political rhetoric and the trajectory of Strasbourg case law over the past decade. The popular portrayal of an aggressively interventionist court systematically obstructing migration control is difficult to reconcile with the jurisprudence itself. In expulsion and extradition cases, the court has frequently shown substantial deference to national authorities, particularly where domestic courts have undertaken detailed proportionality assessments or relied on substantiated diplomatic assurances. In medical removal cases, the threshold established in Paposhvili v Belgium remains notably demanding.
None of this places Strasbourg beyond criticism. But it does suggest that at least part of the present frustration is directed not simply at particular judgments, but at the broader constitutional reality that the Convention operates as an external constraint on sovereign discretion.
The Chișinău discussions are unlikely to resolve these tensions. But they may tell us something important about the direction of travel. What is now under debate is not simply Strasbourg’s migration jurisprudence, but the resilience of the post-war assumption that human rights protections exist precisely to constrain state power at politically difficult moments.
Rebecca Niblock, partner in the criminal litigation team at Kingsley Napley, and Italian criminal lawyer Nicola Canestrini
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