‘Who’s it going to be next time?’: ECHR rethink is ‘moral retreat’, say rights experts

2025-12-13 06:00

The battle had been brewing for months. But this week it came to a head in a flurry of meetings, calls and one heady statement. Twenty-seven European countries urged a rethink of the human rights laws forged after the second world war, describing them as an impediment when it came to addressing migration.

Amnesty International has called it “a moral retreat”. Europe’s most senior human rights official said the approach risked creating a “hierarchy of people” where some are seen as more deserving of protection than others.

The roots of the clash can be traced back to May, when nine EU states, including Denmark, Italy and Poland, published a letter arguing that the European convention on human rights was hindering their ability to exert sovereignty over their states and deport people who committed crimes. “We have to restore the right balance,” the letter noted. “What was once right might not be the answer of tomorrow.”

This week 27 countries shared these grievances, though several, including France, Spain and Germany, declined to sign the letter, hinting at a divide in how states view the convention.

Speaking to the Guardian this week, Europe’s top human rights official hit out at politicians’ “lazy language”, laced with assumptions and inaccuracies, which led countries to erroneously target human rights legislation.

One example was the “lazy correlation” of migration and crime, said Michael O’Flaherty, the Council of Europe’s commissioner for human rights. “This doesn’t correspond with reality,” he said.

Even so, this distorted perception had been widely peddled. “What’s at issue is this feeding into the misunderstanding in society that we’re opening the door to criminals to run amok in our societies doing untold damage,” he said. “No wonder people get frightened, no wonder people are demanding limits on migration.”

Politicians from across the spectrum were to blame, he said. “What happens is middle-of-the-road politicians use this lazy language, but then it’s instrumentalised by those who would actively promote disinformation.”

He pointed to the UK, where tremendous attention had been given to court cases where the convention on human rights had stymied the expulsion of criminals. “And again here, the figures simply don’t correspond with that,” said O’Flaherty. “The figure is tiny, and it’s completely manageable in any modern rule of law state. And very few of these cases ever reach the European court of human rights because there are all those checks and balances at the national level that kick in first.”

His view was backed by a report, published this week by the University of Oxford, which found that media reporting in the UK was “dominated by often inaccurate or misleading reports” when it came to the impact of the convention on immigration control.

The report also highlighted the many ways in which the convention, whose first signatory was the UK when it launched 75 years ago, safeguards people in workplaces, hospitals and care homes and protects victims of domestic violence and modern slavery.

The history of the convention traces back to the aftermath of the second world war when countries came together to launch the Council of Europe, envisioning it as a guardian of fundamental rights across the continent. These rights were enshrined in the European convention on human rights, a document that has since been signed by 46 countries.

O’Flaherty said he saw no need for the convention to now be modernised, warning that the call by politicians risked creating a “false expectation” among voters. “Is that really going to change migratory flows?” he asked. “Is that going to stop people from crossing the Channel? Is that going to ruin the business model of the migrant smugglers? I don’t think so.”

He also pushed back against the assertion that the convention impeded on states’ sovereignty. Individuals and countries could only make an application to the European court after they had exhausted domestic options, he noted, while the European court of human rights is made up of judges representing every member state. “This is not a bunch of foreign judges imposing something on us,” he said.

Writing in the Guardian this week, the UK’s prime minister, Keir Starmer, and his Danish counterpart, Mette Frederiksen, argued that an update of the convention on human rights was needed to help see off the rise of the populist right.

O’Flaherty rejected the link. “For every inch yielded, there’s going to be another inch demanded,” he said. “Where does it stop? For example, the focus right now is on migrants, in large part. But who is it going to be about next time around? What happens when another small vulnerable, weak, marginalised group catches the eye of some populist schemers?”

Yielding ground on human rights would ultimately serve the interest of these populists by weakening the rule of law, he said, and risk creating a “hierarchy of people”, a notion he described as “very, very worrying” given the convention’s roots in the horrors of the second world war.

He said: “The convention and the whole human rights system emerged out of the most barbarous hierarchisation of rights holders that you could imagine, where you had not only some humans more worthy than others, but certain humans, because of their origin, as having no value whatsoever.

“A universal system of human rights was built, strategically built, to make sure that we could never end up in that nightmare scenario again,” O’Flaherty added. “We’re not there now, of course we’re not. But we have to be very cautious and careful about the ultimate consequences, albeit unintended, of the paths we might embark on.”