02.10.2025 Magdalena Kmak och Witold Klaus
The text is co-published on the Tålking Rights a blog powered by the Insitute for Human Rights at Åbo Akademi University.
In recent years, the European Court of Human Rights (ECtHR) has faced mounting pressure from the Council of Europe Member States to recalibrate its approach to migration and border control. Just in May 2025, nine Council of Europe member states signed a letter urging the ECtHR to prioritize in its jurisprudence countries’ security over the rights of the people on the move.
In a recently published article analysing judgments issued by the ECtHR in so-called pushback cases, we argue that the Court is increasingly accommodating political shifts and pressures to prioritize state sovereignty over individual rights. This leads to weakening the protection of claimants against practices of collective expulsion, resulting in (1) lowering the standards of protection of people on the move; (2) shifting the emphasis from human rights protection at the border towards protection of the border itself; and (3) limiting human rights protection of certain groups. These changes also result in reshaping ECtHR’s foundational mandate to ensure the fundamental rights enshrined in the European Convention on Human Rights (ECHR). In this blog post, we discuss the politicization of the ECtHR and show the most recent examples of increased pressure on the Court to roll back the human rights of migrants.
Prohibition of Collective Expulsion
Under the ECHR, the protection from pushbacks—practices of summarily forcing back people crossing or attempting to cross the international border without an individual assessment of their human rights protection needs—is based on Article 4 of the Protocol No 4 prohibiting collective expulsion. In its landmark ruling in Hirsi Jamaa and Others v. Italy (2012), the ECtHR affirmed that states exercising control over migrants—even in international waters—must uphold the ECHR. In consequence, people rescued by a vessel at sea cannot be transferred or pushed back to any country that is known for violating human rights or ill-treating people on the move.
However, this protection standard has been steadily eroded. The turning point came with N.D. & N.T. v. Spain (2020), where the Grand Chamber of the ECtHR introduced the concept of ‘own culpable conduct.’ People on the move who crossed borders irregularly or in large groups were deemed to have given up their right to protection from collective expulsion. This marked a significant departure from earlier rulings, where only one’s own conduct during expulsion procedures was considered relevant. Now, even pre-border behavior can disqualify individuals from legal safeguards.
Judicial Restraint and Political Pressure
Political pressure from Member States has played a role in these developments. Existing research supports the argument that courts are responsive to policies or desires of society, and while adjudicating, they strive to satisfy numerous expectations and audiences. For international courts, the most significant actors are state governments. Judges give them a lot of attention to make sure that the legitimacy of the Court is sustained and that governments will support the Court itself and implement its judgments. Interviews with ECtHR judges reveal their awareness of geopolitical consequences. Judges acknowledge the need to ‘connect practice to the people’ and to understand the ‘difficulties that the state can encounter.’ On the other hand, during the adjudicating process, judges themselves are affected by their personal values when exercising their discretion.
States take advantage of the responsiveness and positionality of the judges through increased pressure on the ECtHR and by nominating more conservative judges to the Court. The latter has been recently called for by the former president of the Belgian Constitutional Court, Marc Bossuyt, who, addressing concerns of several EU member states related to migration and asylum, has urged European governments to nominate more conservative judges to the ECtHR and to update asylum rules. In a striking criticism of the apparently too high reception standards for asylum applicants as set up by courts, Bossuyt has compared these standards to whipping. ‘A lack of decent reception for asylum seekers is clearly not of the same order as whipping. In none of the EU Member States, there is a real risk that asylum seekers will be whipped’.
This rhetoric is very concerning, not only because it urges the Court to significantly lower the existing standards of protection of the people on the move, or because it comes from a former high-level judge. Most importantly, this rhetoric openly and dangerously positions people on the move as inferior in their dignity, justifying their differential treatment. In our opinion, such an argument would have never been presented if the issue were concerning Belgian or other EU citizens. This exposes the xenophobic shift in the perception of the judiciary.
Conclusion
The ECtHR’s shift from a mandate to protect individual human rights to one that foregrounds state sovereignty reflects a broader trend of securitization of migration and an increased tendency to inflict harm on the people on the move. Many states not only put open—like in the letter quoted above—or more subtle—in governments’ opinions presented to adjudicating cases—pressure on the Court but also seem to be willing to ground more and more openly their own practices in their domestic rather than international law. This happens notwithstanding whether the ECtHR responds positively or negatively to their political preferences.
There is a danger that ECtHR, through its jurisprudence, will not only diminish the protection of certain groups of persons but it will also diminish the role of human rights as such and, in consequence, its own legitimacy. With multiple pending cases and increasing political pressure, the ECtHR faces difficult choices. We acknowledge the complexity of the Court’s position and the Court’s decisions as well as the differences between the lower sections of the Court and the Grand Chamber, which have been particularly visible in the N.D. & N.T. case. The challenge is to reaffirm the commitment to human rights without alienating member states or triggering withdrawals from the ECHR.
Magdalena Kmak is a professor of Public International Law, with a specialisation in Migration and Minority Research, at Åbo Akademi University. Magdalena received her PhD in 2009 from the Institute of Law Studies, Polish Academy of Sciences. She holds the title of Docent in law and globalisation (University of Helsinki). Her research interests encompass mobility, migration and exile studies, public international law, human rights and international and European refugee and migration law. Magdalena is a PI and Consortium Director in the project ‘Diversity, Trust and Two-Way Integration (Mobile Futures)’ funded by the Strategic Research Council established within the Research Council of Finland (2021–2027). She is also co-founder of the Nordic Network on Climate Related Displacement and Mobility.
Witold Klaus is a professor at the Institute of Law Studies, Polish Academy of Sciences (head of the Department of Criminology and of the Migration Law Research Centre) and a research fellow at the Centre of Migration Research at the University of Warsaw. He serves as editor-in-chief of the oldest Polish criminological journal, ‘Archiwum Kryminologii’ (Archives of Criminology). He has held scholarships from: the British Academy (UK), the Max Planck Institute, Bielefeld University (both Germany) and the US government. His main areas of academic interest include refugee and immigrant rights, deportation studies, crimmigration, victimology and the victimisation of marginalised groups in society. He is a member of European Society of Criminology where he co-leads the Working Group of Immigration, Crime & Citizenship.
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