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The illusion of reining in the European Court of Human Rights
The Chisinau Declaration seeks to redraw the line between the sovereignty of European states and international constraints on immigration. However, a political declaration, such as that by Piantedosi, is not enough to change the rules of the Strasbourg Court.
Matteo Piantedosi – photo: LaPresse
The sudden arrival of migrants in Ceuta has consequences that extend beyond the borders of Spain and the European Union. At the meeting of EU interior ministers, Matteo Piantedosi referred to the Chisinau Declaration, arguing that it should guide the interpretation of international conventions, starting with the ECHR. The Declaration, adopted on 15 May by the Committee of Ministers of the Council of Europe, sets out a broader political agenda: to urge the European Court of Human Rights in Strasbourg to grant states greater discretion in matters of immigration.
It calls for a less rigid interpretation of the prohibition on inhuman and degrading treatment and for greater emphasis to be placed on public order than on the protection of family life. The draft has garnered support regarding the management of irregular migration flows, but faces three obstacles. The first is legal: the Declaration has political, rather than treaty, status and cannot be binding on the Court. To amend the ECHR, States would have to follow the prescribed procedures. The second concerns the balance between public order and family life.
The Declaration would seek to ensure that the former prevails systematically, but it is unlikely that Strasbourg would renege on its own case law and accept that the protection of the family should be sacrificed whenever a State so requests. The third obstacle is even more clear-cut: the prohibition on expelling a person to a country where they risk torture or inhuman and degrading treatment cannot be circumvented, as these are peremptory norms of international law.
What, then, remains of the Chisinau Declaration? What remains is the political agreement aimed at legitimising repatriation centres outside the EU, such as those set up by Italy in Albania. But the precedent set by the agreement between the UK and Rwanda – which was struck down by the UK Supreme Court – shows that even this approach can be blocked by the courts. Above all, what remains is the political significance of the Declaration, emphasised for electoral purposes. Reining in the Strasbourg Court without amending the treaties remains a pipe dream.