The letter claims to want to ‘restore the right balance’. On one side of that balance, the rhetoric of the letter clearly puts security and safety language and national decision-making-power and democracy. It adds that this vision aligns with the majority of citizens in Europe, in the view of the states behind the letter. The other side of the balance is apparently the current way in which human rights on this issue are protected and interpreted by the Court. It explicitly says Europe is moving ‘in the right direction’ in tackling irregular migration. And in parallel it explicitly questions the Court’s standing case-law. Apparently, the Court’s interpretation is seen as a stumbling block.
Concretely, the letter calls for three things:
‘- We should have more room nationally to decide on when to expel criminal foreign nationals. For example, in cases concerning serious violent crime or drug-related crime. By its nature such crime always has serious implications for the victims.
– We need more freedom to decide on how our authorities can keep track of for example criminal foreigners who cannot be deported from our territories. Criminals who cannot be deported even though they have taken advantage of our hospitality to commit crime and make others feel unsafe.
– We need to be able to take effective steps to counter hostile states that are trying to use our values and rights against us. For example, by instrumentalizing migrants at our borders.’
This letter is, in my view, remarkable indeed in at least four respects:
First, the allusion to a hierarchy of considerations that squarely goes against the existing legal understanding of human rights: ‘In our opinion, safety and security for the victims and the vast majority of law-abiding citizens is a crucial and decisive right. And, as a general rule, it should take precedence over other considerations.’ This might be the most worrying alarm bell in this letter. Human rights adjudication, after all, already in the system of reasoning itself almost always includes balancing. No right is more important than another and considerations of security and safety can (and very often do) feature self-evidently in the equation. The Court has recognised on many occasions that tackling crime and protecting the population are, as several provisions of the ECHR also make explicit, legitimate aims and has acknowledged states have leeway in this respect. Yet, any action should always be in line with human rights standards. The letter’s phrasing of hierarchy squarely goes against the idea of there being no hierarchy between rights, nor between people. Tackling important and genuine concerns such as crime should not in passing erode these basic starting points, not only for reasons of a slippery slope, but also stemming from the fundament of human rights for everyone, even for those disliked most by society. The letter’s wording of the Court’s case-law in some cases having protected ‘the wrong people’ (read: foreigners convicted of crimes) is in that sense telling and even dangerous from a human rights perspective.
The fourth element of note are the rhetorical references to history and the dual tone. The letter speaks of a need to check how existing conventions ‘match the challenges that we face today’. It is full of dual messaging: the letter speaks of rights being the cornerstone of democracy, yet states that ‘what was once right might not be the answer of tomorrow’. It calls the ideas (of assumedly human rights) that were conceived ‘in the ashes of the great wars’ as one the one hand ‘universal and everlasting’ yet at the same time says that ‘we now live in a globalized world where people migrate across borders on a completely different scale.’ As a historian myself (but others are more expert on this) I would challenge whether this is even completely true, as the post WWII years were marked by enormous degrees of displacement and thus migration across borders in Europe. But apart from that, the constant emphasising of the importance of the rule-based multilateral order yet at the same time calling the Court’s interpretation of the ECHR into question, sends a double message. I leave it to communication science scholars on how the letter does this and which various discourses it tries to wed into an uneasy amalgamation, but any reader can see that it the letter clearly makes a divide between useful and unwanted migrants and between domestic democracy and an international court that apparently, in these states’ views, binds their hands too much.
To be continued for sure, but whichever shape this ‘open-minded conversation’ takes, it will be a new test for the European architecture of human rights. Depending on how this is done and to what extent, it could lead to anything from subtle shifts in case-law (the Court indirectly responding to this political messaging) to a protocol changing some parts of the Convention and this shifting the substance of protection. Beyond the immediate subject-matter, which from a historical perspective is truly a sign of our times, the bigger issue at stake is the constant and difficult balancing, pushing and clashing between political and judicial power at both the domestic and international levels. In an era of erosion of the rule of law and increasing political attacks on judiciaries in several European countries, this is not an academic or theoretical debate. The drafters of the open letter seem to be very aware of how it could be read. As they state: ‘We know that this is a sensitive discussion. Although our aim is to safeguard our democracies, we will likely be accused of the opposite.’ All the more reason to say that this is something to be followed closely, by academics and practitioners. How the call in the letter is put into practice will define the character and salience of the ECHR system for years to come.