The Chişinău Declaration, issued by the Council of Europe’s Committee of Ministers on 15 May 2026, is an attempt by signatory States to reframe how the European Convention on Human Rights affects national governments’ capacity to control migration. Meanwhile, concerns about the limits imposed by human rights law in this area are a driving force behind populist political movements across Europe, and will likely play a prominent role in a forthcoming UK by-election that will determine who the next Prime Minister is. Is the Declaration an answer to such concerns? And if it is, does it signify that European governments are prepared to sacrifice fundamental rights on the altar of populist appeasement?
Question: What links Chişinău, the capital of Moldova, and Makerfield, an area that lies between Manchester and Liverpool in north-west England? Answer: More than you might initially think.
Chişinău was the venue for a recent meeting of the Committee of Ministers of the Council of Europe, under whose auspices the European Convention on Human Rights (“ECHR”) exists. The resulting Chişinău Declaration was born of concerns, articulated in an open letter in May 2025 by the leaders of several ECHR member countries, about the way in which the Convention is perceived to limit States’ capacity effectively to address issues arising from migration. In their open letter, the leaders of (among other countries) Poland, Denmark, Austria and Italy argued that the case law of the European Court of Human Rights (“ECtHR”) had “limited our capacity to make political decisions in our own democracies” – particularly in relation to matters such as the deportation of foreign nationals convicted of criminal offences. The reference to “political” decisions and to “our own democracies” signals the view that the Court is guilty of a double form of overreach by (on this account) interfering in matters that properly belong in the political (not judicial) realm and at a national (not European) level.
We will return to Chişinău shortly. But first, what of Makerfield? It is to be the setting for what is likely to be the most consequential by-election in recent British political history. Following devastating results for the Labour Party in elections to the Scottish Parliament, the Senedd and English local authorities earlier this month, Keir Starmer’s authority as Prime Minister and Labour leader is significantly – quite possibly fatally – weakened. The Mayor of Greater Manchester, Andy Burnham, will now (subject to selection by the local Labour Party) seek election to Parliament in the Makerfield by-election, which has been engineered to enable Burnham, if elected, to challenge Starmer for the Labour leadership. Burnham’s principal opponent in Makerfield will be Reform UK. It came a close second to Labour in the 2024 general election and performed very strongly in Makerfield in the recent local elections. Importantly for present purposes, Reform’s populist political agenda is oriented explicitly around anti-immigration policies and opposition to the UK remaining a member of the ECHR, whereas the Labour Party is currently committed to ECHR membership and to retention of the Human Rights Act 1998 (“HRA”), which gives effect to the ECHR in UK law.
For the Labour Party – much criticised in recent weeks for an incrementalist approach to the “change” it promised in its 2024 manifesto, leaving many voters disappointed by a lack of boldness – the Chişinău Declaration represents a “win”. Writing in The Times on 16 May, Yvette Cooper, the UK’s Foreign Secretary, hailed the Chişinău Declaration as evidence that “determined diplomacy and principled, practical reform” can “deliver results” and will “help to tackle migration, improve enforcement and strengthen our border security”. This reflects a form of triangulation that aims to appeal simultaneously to voters on Labour’s left and right flanks. It enables the Party to make the case to those on the right that it is prepared to be tough on immigration by tackling human rights laws that stand in the way of a more confrontational approach while telling those on the left that it remains fully committed to ECHR membership and that all that is happening is that the way in which the Convention is interpreted is to be “modernised”.
Viewed from another perspective, however, the Chişinău Declaration arguably represents the worst of both political worlds. It weakens the Labour Party’s commitment – both actual and symbolic – to human rights standards while at the same time being so incrementalist that it is unclear what, if any, real-world effect it will have. As Lord Sumption has observed, previous political declarations by the Committee of Ministers have had very limited impact. Thus, Reform UK, to Labour’s right, will presumably portray the Chişinău Declaration as “fiddling while Rome burns”. Meanwhile, for parties, like the Greens, to Labour’s left, Labour’s championing of the Declaration will be evidence of its lack of genuine commitment to fundamental rights, bearing in mind that Cooper’s “modernisation” must, if it means anything, mean a weakening of human rights protections.
The Chişinău Declaration
What, then, does the Chişinău Declaration do? The Declaration does nothing in the sense that it is not legally binding on the ECtHR. Rightly, the Committee of Ministers cannot instruct the ECtHR how to interpret or apply the Convention by means of a political declaration such as that issued in Chişinău. However, such declarations can certainly attempt to steer the Court by signalling to it how State parties to the ECHR would like the Convention to be interpreted and applied. It remains to be seen whether, and if so how, the ECtHR will react to such an attempt to steer it. However, as noted above, previous political declarations have tended to have a modest impact at most.
As to the substance of the declaration, it takes the concerns expressed last year by some heads of government and runs with them. For example, it emphasises States’ “undeniable sovereign right to decide on and control foreign nationals’ entry into and residence in their territory”, glossing (at least to some extent) over the fact that ECHR members have chosen to limit that sovereign right by committing, among other things, to those aspects of the Convention that regulate their capacity to (for example) deport foreign nationals to countries in which they would face a real risk of ill-treatment. The Declaration also says that the “inability to expel or extradite an individual convicted or charged with a serious offence can lead to significant challenges for States, including in relation to their fundamental duty to guarantee the right to everyone within their jurisdiction to live in peace, freedom and security, notably by protecting public safety and national security and preventing disorder and crime”. Here again, the Declaration seeks to reframe States’ obligations by implying that the “fundamental duty” in question, because of its fundamentality, trumps other considerations. That position, however, is difficult to sustain given that one of those other considerations takes the form of an absolute, non-derogable right.
The right in question is that which Article 3 confers: namely, the right not to be tortured or to be subjected to human or degrading treatment, and the right to respect for private and family life. Unlikely many Convention rights, treatment in breach of Article 3 cannot be rendered lawful because it constitutes a proportionate means of securing some public interest. This does not, however, deprive the courts of all judicial latitude: a decision must, after all, be made about the threshold at which ill-treatment triggers Article 3; interpretively raising that threshold would necessarily permit forms of ill-treatment that would otherwise breach Article 3. Article 3 does not only prohibit ill-treatment by ECHR members: according to the Court’s long-standing case law, it extends to preventing States from deporting individuals to countries in which they would face a real risk of relevant ill-treatment. The Declaration does not suggest that the Court should change that fundamental principle and says that the Article 3 right must remain “absolute”. In the next breath, however, the Committee of Ministers effectively argues that the right, albeit still “absolute”, should be interpreted differently – in other words, more narrowly – in order to make deportation legally possible in circumstances in which it would otherwise have been unlawful.
Engaging in what arguably amounts to little more than sophistry, the Declaration says that “all possible steps” must be taken – “compatibly with Convention obligations”, which, presumably, means reinterpreted obligations that are thereby rendered less onerous from States’ perspective – to avoid situations in which someone is enabled to “evade justice” by resisting deportation to face trial or incarceration. The Declaration therefore says that in assessing whether there is a real risk of ill-treatment in the destination State, the Court should be resistant to arguments about, for example, differential levels of healthcare (“There is no obligation for the returning State to alleviate the disparities between its own healthcare system and the level of treatment existing in the receiving State”) and that “diplomatic assurances may” – and, implicitly, sometimes should – “obviate a risk of violation of Article 3 following expulsion or extradition”. To some extent, it might be observed that the Court’s case law already does at least much of what the Declaration asks for – for instance, it already leaves scope for the operation of diplomatic assurances. This leads to one of two conclusions: either the Declaration, in this regard, amounts to little more than political posturing – politicians “telling” the Court to do what it already does in order to demonstrate their “tough on immigration” credentials – or it seeks to press the Court to dilute Article 3 by facilitating deportation in the future in circumstances in which it would presently be unlawful.
The Declaration also addresses Article 8 – the right to respect for private and family life – which is sometimes used to resist deportation where, for example, it would involve geographically separating members of a family. Here, the Declaration arguably seeks to put a finger on the scale by saying that the “right” balance must be struck between the rights of the individual and the “weighty” – a word that does not appear in the Convention – “public interests of defending freedom and security in the societies of the States Parties”. Similarly, emphasis is placed on the margin of appreciation, which accords latitude to national authorities, particularly in relation to questions implicating national security. There is emphasis too on the increasingly “process-based” nature of the review carried out by the ECtHR – which emphasises the primary role of domestic courts when it comes to examining the balance between individual rights and competing interests – and support for States developing immigration policies, like the UK government’s now-abandoned Rwanda scheme, that “include co-operation with third countries”. Again, however, the Declaration is, at least to some extent, pushing at an open door: the Court already extends a substantial margin of appreciation on national security matters; it has already embraced, to a considerable extent, a process-oriented conception of its role; and when the UK Supreme Court considered the lawfulness of the then UK government’s Rwanda policy, it did not find that such a policy was inherently incompatible with the ECHR. The question therefore once again arises: is the Declaration merely performative or does the Committee of Ministers intend or expect the Court materially to change its approach? Perhaps the answer is “both”, given the inevitability of some diversity of views among the governments of the 46 Council of Europe members.
The wider political context
The Chişinău Declaration has already attracted strong criticism. Among other things, it has been portrayed as a backdoor attempt to “relativise” Article 3 by diminishing its status as an absolute right. More generally, there are concerns that if the ECtHR – or, indeed, domestic courts – yield to the pressure that the Declaration arguably attempts to apply, a gradual diminution in human rights protection might result. It is certainly possible to understand why such concerns are being articulated. From one perspective, the Declaration can be portrayed as an expression of defeat by European governments that prefer to sacrifice the fundamental rights of the most vulnerable in order to attempt to tame the forces of populism. From another perspective, however, the relatively modest nature of the Declaration risks stoking precisely those forces – for it is far from clear that the Declaration will yield tangible real-world results that would appease them – while simultaneously eroding ECHR members States’ shared commitment to protecting relevant rights.
Viewed from the vantage point of the UK’s domestic political landscape, the Labour Party’s position begins to collapse in on itself. Reform UK-sympathetic voters in Makerfield who are concerned about migration are very unlikely to be persuaded by a political declaration issued in Chişinău that, concerning though it may be from a human rights perspective, delivers nothing like the sort of change that Reform itself, through its advocacy of ECHR withdrawal followed by radical reform of immigration law, is proposing. Meanwhile, left-leaning voters are likely to be appalled by Foreign Secretary Yvette Cooper’s view, expressed in her recent Times article, that the way courts have thus far interpreted rights as fundamental as “freedom from torture” has “not always kept up with a changing world – especially [in relation to] migration”. The clear implication is that such rights must now be reinterpreted – that is, weakened – in order to enable the enactment of more aggressive migration policies.
At some point, triangulation becomes intellectually impossible – and that point has arguably been reached in this context. If the (absolute) right not to be tortured is – as Cooper claims elsewhere in her article – a right that still “endures”, migration policy must surely fit around it, rather then vice versa. Conversely, politicians are, of course, free to argue – as Reform UK does – that a muscular migration policy is more important than adherence to existing fundamental human rights standards, and that those standards must therefore yield in the service of stricter migration controls. It is, however, impossible to have one’s cake and eat it, which is arguably what the Labour Party – and, by extension, other signatories to the Chişinău Declaration – are attempting to do by professing an ongoing commitment to relevant rights while seeking to persuade the Court to move the goalposts far enough to facilitate migration policies that would otherwise be in breach of those rights. Ultimately, this reduces to a smoke-and-mirrors exercise that pretends adherence to human rights norms that are textually unchanged but which are interpretively transformed in order to make way for policy agendas that seek to appease the forces of populism.
The Makerfield by-election will certainly not be exclusively about migration. But in a constituency that voted heavily for Reform UK in this month’s local elections and decisively for Leave in the Brexit referendum – in which immigration featured prominently – migration will undoubtedly be part of the debate. So too will the various political parties’ stances on human rights laws that currently constrain migration policy. Should the Labour Party place weight on the Chişinău Declaration in order to demonstrate its capacity to balance its simultaneous commitments to upholding human rights and controlling migration, it will ultimately be speaking with a forked tongue. Either the Declaration will make a material difference to the ECtHR’s approach, meaning that the protection of fundamental, including absolute, rights will have been weakened, or it will not, in which case it will have amounted to nothing more than window-dressing designed to please the populist right without actually enacting tangible change. In those circumstances, voters who wish to see radical, rather than incremental, changes to migration policy will find parties much more closely aligned with their views than the Labour Party is. The same, needless to say, is true of voters who recognise that a genuine commitment to fundamental rights – including absolute rights such as the right to be free from torture or inhuman or degrading treatment – does not permit the luxury of sacrificing such rights (by interpretive sleight of hand or otherwise) on the altar of political or economic expediency.
Thus the Chişinău Declaration, viewed from the perhaps unlikely vantage point of Makerfield in north-west England, epitomises the very issue that explains why the by-election is happening in the first place: namely, the Labour Party’s current inclination to (attempt to) triangulate away difficult, but ultimately critical, policy choices, thereby yielding a policy programme that aims to appeal to everyone but which ultimately pleases no-one. The outcome of the by-election will tell us, among other things, whether, in doing so, Labour has triangulated itself into the political wilderness and paved the way for the UK’s first fully populist government – for if Reform cannot be defeated by the Burnham candidacy, it is surely odds on to win the 2029 general election. In those circumstances, the razed-earth policy likely to be applied to the UK’s human rights landscape will make the Chişinău Declaration seem almost banal.
