Background
On 15 May 2026, all 46 Council of Europe member states adopted the Chișinău Political Declaration, a document that, according to the UK Foreign Secretary's press release the day before, was set to deliver "an updated interpretation of Articles 3 and 8" of the European Convention on Human Rights and help the UK "take stronger action against illegal migration.”
The Declaration did not emerge from a void. It has its roots in longstanding complaints from contracting states about the approach taken by both the European Court of Human Rights (“the Court”) and domestic courts to migration-related cases under Articles 3 and 8. Such complaints became more prominent during the Interlaken Reform Process between 2010 and 2019, when reform of the Court's procedures was frequently linked to concerns about perceived overreach in migration cases.
Things picked up pace in May 2025, when nine EU/Council of Europe states, led by Italy and Denmark, published the so-called "letter of the nine." It called for what it described as "a new and open-minded conversation about the interpretation of the European Convention on Human Rights." Whether that conversation was genuinely open-minded is debatable: the letter's proposals pointed firmly in one direction, namely, toward a more restrictive approach to migration cases under Articles 3 and 8. The Council of Europe's Secretary General and Deputy Secretary General responded within days, stressing the importance of judicial independence, impartiality, and avoiding the politicisation of the Court.
The UK's involvement began on 18 June 2025, when the Lord Chancellor gave a speech in Strasbourg that both restated the UK's firm commitment to the Convention and supported the concerns raised in the letter of the nine. From there, momentum built quickly. At an informal Justice Ministers' conference on 10 December 2025, all 46 Council of Europe states agreed to draft a political declaration, to be adopted at a Foreign Ministers' conference in Chișinău, Moldova, the following May. Unlike some previous political declarations under the Convention, this process was driven entirely by the contracting states, with no involvement or representation from the Court itself.
Notably, on the same day as the Justice Ministers' conference, 27 contracting states signed a separate, unofficial joint statement taking an even more stringent line. It identified five specific "challenges" said to be faced by member states:
- The expulsion of foreign nationals convicted of serious crimes
- The need for clarity about the threshold for inhuman or degrading treatment under Article 3
- The need for "innovative and durable solutions" to migration (think offshore processing hubs, return hubs, and similar schemes)
- Decision-making processes in migration cases
- The "instrumentalisation" of migration: the novel and politically sensitive idea that migration flows are sometimes deliberately directed by hostile states to destabilise the Council of Europe
That joint statement also reiterated several key Convention principles — subsidiarity, the importance of border control, and the idea of "democracy capable of defending itself" — all of which resurface, in one form or another, in the final Declaration.
Adoption of the Declaration
The Declaration was formally adopted by all 46 contracting states at the Foreign Ministers' conference in Chișinău. The day before, the UK Foreign Secretary, Yvette Cooper MP, issued a press announcement making some striking claims about what the Declaration achieved. Among them:
- The UK would be able to "take stronger action against illegal migration" because Council of Europe Foreign Ministers were "set to agree an updated interpretation of Articles 3 and 8."
- The Declaration would support "ambitious domestic efforts to restore order and control," including cracking down on individuals "exploiting the system" to avoid deportation.
- The Declaration represented "a more modern interpretation" of the Convention.
- It would further help courts ensure serious criminals could not frustrate deportation or extradition, and that Article 8 family rights would be "properly balanced" against the public interest, including the ability to deport foreign criminals and address national security threats.
On any view, this checklist was an ambitious one.
What does the Declaration actually do?
The Declaration is wide-ranging, and it opens on a genuinely positive note: a reaffirmation of support for the Convention system as a whole, and of the contracting states' continuing commitment to it. This is a markedly warmer opening than the “letter of the nine” managed back in mid-2025.
But the final recital before the operative provisions sets the tone for what follows. It recalls that "inherent in the whole of the Convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights." That notion of balance is nothing new. Indeed, it has been central to the Convention's interpretation since its earliest case law. What is notable, however, is the side of that balance on which the Declaration comes down.
The substantive text falls into three broad parts:
General principles. These cover primary responsibility, national implementation of case law, subsidiarity and the margin of appreciation, non-discrimination, effective remedies, shared responsibility, and the right of individual application. On one reading, this is reassurance, a signal that states are not intending to abandon the Convention system. Equally, the specific principles chosen (subsidiarity and the margin of appreciation) are ones that tend to affirm the primacy of the state in the interpretative process.
The role and jurisdiction of the Court. Two provisions stand out. Paragraph 9, under a "shared responsibility" heading, states that the Court should "focus its efforts on identifying serious or widespread violations, systemic and structural problems, and important questions of interpretation and application."
The difficulty with this paragraph is its view of the Court’s role. The Court has never resiled from its jurisdiction to rule on individual breaches simply because they do not raise systemic issues. The right of individual petition is, in fact, reaffirmed elsewhere in the Declaration. This paragraph reads as something of a warning shot to the Court, echoing the reminder elsewhere in the Declaration that the Court is not a "court of fourth instance."
A second notable provision reminds the Court to give "appropriate consideration to present-day conditions" in applying the Convention. This is a slightly unusual invocation of the "living instrument" doctrine, which is normally used to justify a more expansive, liberal interpretation of Convention rights, as opposed to a more restrictive one.
Migration-specific issues. These cover expulsion and extradition, Article 3, Article 8, mass arrivals, instrumentalisation, decision-making, and "new approaches," including third-country processing, return hubs, and transit-country cooperation.
On Article 3 specifically, three things stand out:
- First, the Declaration frames its discussion by reference to the high threshold for absolute protection under Article 3, using this to caution against decisions that allow deportation to be frustrated, acting effectively as a warning to domestic courts to pause before entertaining Article 3 challenges to removal.
- Second, it reiterates the “very exceptional circumstances” required for a health-related Article 3 claim to succeed, as per the well-known Paposhvili test, and confirms the lack of obligation on states to address disparities between their own healthcare systems and those of the receiving state.
- Third, and perhaps most interestingly, the Declaration makes two explicit pleas for further guidance from the Strasbourg Court: on the cumulative effect of socio-economic factors that do not individually breach Article 3 (paragraph 26), and on cumulative conditions of detention that do not individually breach Article 3 (paragraph 27). Both read as states asking the Court to give them more restrictive guidance on problems they are currently struggling with domestically.
Pulling this together, the dominant theme is pressure, both vertical and horizontal. Vertical pressure runs both upward (from states to the Strasbourg Court, urging restraint and requesting guidance) and downward (from Strasbourg-facing rhetoric to domestic courts, reminding them of Article 3's high threshold). Horizontal pressure comes through an explicit encouragement, in paragraph 49, for states to engage in third-party interventions in cases before the Court, a mechanism that can be genuinely powerful when states act collectively, as it was in the 2020 Grand Chamber case of M.N. and Others v Belgium, where a joint UK/France/Norway/Latvia intervention on Article 1 jurisdiction was reflected almost verbatim in the Court's judgment.
The legal effect, or lack thereof
In short, in strictly legal terms, the Declaration's effect is limited. It is not legally binding. It does not and cannot create a new definition of Articles 3 or 8. It does not even function as the kind of interpretive or contextual document that might normally be brought to bear on treaty interpretation under Article 31 of the Vienna Convention on the Law of Treaties, not least because the Court itself had no role in its drafting.
At most, it might fairly be described as a pan-Council of Europe statement about where the public interest lies on certain contested issues. It may well be relied upon, both in Strasbourg and domestic litigation where it may be deployed by public authorities as evidence of a pan-European consensus on particular questions of public interest. Given that UK cases actually reaching Strasbourg are relatively rare, it is in the domestic courts where this document is most likely to be cited.
Such declarations are nothing new, and indeed, have become more common since the Interlaken process began. The 2012 Brighton Declaration, for instance, formally wrote the concepts of subsidiarity and margin of appreciation into the Convention's text, having previously existed only in the case law.
Commentary since Chișinău has noted that the Declaration appears to sidestep, for now, the more radical prospect of a Protocol 17 permitting substantive amendment of the Convention. That may be a relief to some, but is unlikely to be the last word. It remains to be seen how the Declaration will be deployed in domestic litigation and, crucially, how such deployments will be received by the judiciary.
This article was written by David Blundell KC.
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