CoE: Declaration on migration paves way for ‘two-tier’ human rights system.

Photo by @Erik Mclean on pexels.com 

Europe’s human rights system is facing a dangerous contradiction: strengthening borders while weakening the very protections it was built upon. On 15 May 2026, the Council of Europe’s 46 member states adopted the Chișinău Declaration, a political statement on migration that critics warn could gradually erode protections for people on the move and refugees under the European Convention on Human Rights (ECHR).

The declaration does not formally amend the Convention and is not legally binding. Yet its importance lies in the political direction it signals. By framing migration as a challenge requiring a different interpretation of human rights obligations, it risks paving the way for a two-tier system in which migrants and refugees receive weaker protections than others.

At the centre of concern is Article 3 of the ECHR, which absolutely prohibits torture and inhuman or degrading treatment. This protection underpins the principle of non-refoulement, which forbids states from deporting individuals to countries where they face a real risk of torture, abuse, or other serious harm. Human rights organisations fear the newly adopted document signals growing political support for narrowing these safeguards in migration cases, despite their absolute nature under European law. 

The declaration was adopted amid increasing pressure across Europe for stricter border controls, faster deportations, and expanded powers to manage migration flows. It repeatedly refers to the “challenges” states face when applying the Convention in migration contexts and calls for reflection on how these obligations should operate.

Against this backdrop, particular criticism has focused on the declaration’s endorsement of “new approaches” to migration management, including offshore “return hubs”. These external processing centres, designed to transfer or deport migrants outside European territory, have become increasingly prominent in European political debates. However, similar proposals have either been ruled unlawful by domestic courts or faced repeated legal challenges, while consistently raising serious human rights concerns, including risks of arbitrary detention, restricted access to asylum procedures, and exposure to abuse. 

The declaration also positively references migration cooperation agreements with countries outside the Council of Europe region, despite documented human rights violations against migrants in several partner states. Human rights organisations have repeatedly warned that outsourcing migration control to third countries increases the risk of unlawful returns, violence, exploitation, and detention in unsafe conditions.

Another controversial aspect concerns the treatment of so-called “instrumentalised migration”, where migration movements are allegedly used by hostile states or actors to destabilise European countries. Critics warn that framing migration primarily as a security issue risks legitimising practices that conflict with the Convention, including pushbacks, arbitrary detention, and denial of access to asylum procedures.

These issues are particularly significant as the European Court of Human Rights is currently examining cases involving alleged abuses at the borders of Latvia, Lithuania, and Poland. n this context, the declaration appears to contribute to a broader political effort to portray the Court as an obstacle to migration control, despite the fact that it has historically granted states considerable discretion in border management and national security matters. 

Beyond migration policy itself, the Chișinău Declaration reflects a deeper shift in Europe’s political and legal landscape. The ECHR system was built on the principle that human rights are universal and apply equally to everyone, regardless of nationality or legal status. Introducing differentiated standards for migrants and refugees risks weakening that principle and normalising the idea that some groups are less deserving of protection than others.

For many observers, the danger lies less in the declaration’s immediate legal effect than in the precedent it may create. Once exceptions begin to emerge for one category of people, broader protections may become increasingly vulnerable to political pressure and changing security narratives.

The debate surrounding the Chișinău Declaration therefore extends far beyond migration management. It has become part of a broader struggle over the future of universal human rights protection in Europe, and whether fundamental rights remain truly universal, or increasingly dependent on who is seeking them.

written by Clara Pescatori