For NGOs and academics, the Council of Europe is undermining the concept of universal protection of human rights

Brussels – “Human rights exist to prevent us from repeating the darkest moments of our history.” This was stated by Eve Geddie, director of Amnesty EU, the Brussels office of Amnesty International, on her social media channels. Geddie refers to the policy statement on migration adopted on 15 May in Chișinău, Moldova, sounding the alarm: “To rewrite them for a new ‘era’ means returning to a policy where some people are regarded as less deserving of rights than others based on their migration status, their nationality, their race. This harms us all.”

Last Friday, the foreign ministers of the 46 member states of the Council of Europe approved a text outlining a common position on migration, following reservations expressed by Italy and Denmark regarding the European Court of Human Rights’ handling of migration-related cases. In other words, the rulings of the European Court of Human Rights judges jeopardise the EU’s policy of deportations and outsourcing procedures to third countries, as they apply the rights of migrants and asylum seekers too strictly. The declaration highlights key aspects of the European Convention on Human Rights and the European Court of Human Rights systems, but grants greater sovereignty to states and introduces exceptions to the protection of human rights in certain areas. For example, when it states that “national authorities, which in principle are in a better position than an international court to assess local needs and conditions, enjoy a margin of discretion in the implementation of the Convention at the national level, subject to the Court’s review of constitutionality.” Or when it sets out in black and white that “States have the indisputable sovereign right to decide on and control the entry and stay of foreign nationals on their territory” and “have the right to establish their own migration policies, potentially in the context of bilateral or regional cooperation, and to pursue immigration control as a matter of public interest.”

The declaration recognises that countries “exposed to mass arrivals” may “pursue new approaches to address and potentially deter irregular migration,”,including “the processing of applications for international protection in a third country, ‘return centres’ in third countries and cooperation with transit countries.” This passage was justified by the “significant and complex challenges related to migration, some of which were unforeseen at the time the Convention was drafted.” 

Furthermore, according to the statement, “the inability to expel or extradite an individual who has been convicted of, or” – even merely “accused of” – “a serious crime can pose significant challenges for states.” Furthermore, the concept of “exceptional circumstances” is introduced in the context of Article 3 of the Convention on Human Rights, namely the provision stating that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” This is because the declaration explains that if a person is expelled or extradited, “the quality of healthcare available in the receiving State should entail a real risk of treatment contrary to Article 3 only in exceptional circumstances” and that “the State of return has no obligation to bridge the disparities between its own healthcare system and the level of healthcare available in the receiving State.” The same applies to the impact of socio-economic factors on Article 3. “In the event of expulsion, the courts and competent national authorities could benefit from further guidance on how to assess a range of individual socio-economic factors, within the meaning of Article 3, which may have a negative impact on the individual’s situation, but which do not individually constitute inhuman or degrading treatment, and on the role that the general socio-economic situation of the receiving country plays in such an assessment.” In light of this, according to the ministers, “the use of diplomatic assurances may avert the risk of a breach of Article 3 following expulsion or extradition.”

It is precisely the provisions relating to Article 3 that are among the most alarming, according to the group of academics
Agora,

 an independent pan-European platform comprising more than 900 experts committed to defending the integrity and effectiveness of the European Convention on Human Rights system. In a press release published on social media, the organisation has defined the Chișinău process as “the first in the history of the Council of Europe in which certain states have set themselves the objective of permanently reducing the protection of human rights for certain categories of people.” It refers in particular to the section of the declaration concerning Article 3 of the Convention, whose interpretation is restricted to “to the most serious forms of ill-treatment,” suggesting that it is not absolute. On this subject, Andrew Forde, a professor at the University of Dublin and member of Agora, has underlined: “Whether by choice or by consequence, if certain groups of rights-holders are discriminated against and afforded weaker protection, we are heading towards a controlled retreat from the very idea of universal human rights protection.” Furthermore, “once exceptions and differentiated standards take hold, the way is opened for the erosion of other groups’ rights in the future, whenever political expediency so requires” and, “by calling into question the fundamental principles of the ECHR system, states risk raising the metaphorical walls of Europe, while at the same time weakening its foundations.”