On Wednesday 10 December, which is also Human Rights Day, Ministers of Justice of the Council of Europe will meet in Strasbourg to discuss how the European Convention of Human Rights (ECHR) should be reformed. A group of states will lead the drafting efforts, with a new interpretative declaration expected to be ready by May 2026. The declaration will likely focus on the issue of migration, already raised in the letter authored by nine European leaders in May 2025, calling out the European Court of Human Rights (ECtHR) as limiting their ability to protect ‘our democratic societies and our populations against the challenges facing us in the world today.’ Whilst the Convention and its potential for reform has been discussed in the UK for over a decade, this debate has only recently become part of the wider discourse around the Council of Europe. And whilst the push for reform is currently coming from continental European states (Denmark, Italy, Poland, Latvia, Estonia and others), the debate in these countries differs considerably from the discussion in the UK.

I have spent the last six years travelling around the countries with seats on the Council of Europe, talking to different officials and people who work on the implementation of ECtHR judgments as part of the Human Rights Nudge project. My team and I have also spent this time analysing how countries comply with ECtHR judgments, how they share experiences and good practices and how they adjust their actions according to what other countries in the Council of Europe are doing. We have also undertaken extensive computer simulations to understand how state behaviour in relation to the ECHR spreads around the Council. This research is directly relevant for the discussion currently in the news.

In this post, I would like to make three points: first, to underline how sensitive the current moment is as a tipping point for future significant change to the Convention; second, to warn of the danger of a negative contagion, and finally, to contrast and draw a difference between the European and UK debates on the Convention.

The December Strasbourg meeting comes on the back of a six-month long campaign by nine states, arguing that irregular migration ‘risks undermining the very foundation of European societies’. As the letter of the nine countries says, ‘it is beyond our comprehension how some people can come to our countries and get a share in our freedom and our vast range of opportunities, and indeed, decide to commit crimes’. The key in this context is the European Court of Human Rights, which it is alleged has gone ‘too far as compared with the original intentions behind the Convention’ in its interpretation. The letter alleges that the Convention effectively protects ‘the wrong people’ and poses too many limitations on the states’ ability to decide whom to expel from their territories. The reform – in the form of an interpretative declaration – would send a clear signal to the Court to rein in its expansive approach and walk back some of the protections currently in place. The letter has gained many supporters, including in the UK, despite the Westminster government not being one of the signatories. The Home Secretary, Shabana Mahmood, has published a policy for migration reform, which includes mention of a reinterpretation of the Convention along the lines suggested in the letter.

It is important to underline that since May 2025, the idea behind the letter of the nine has gained Europe-wide support. Several leaders have openly mentioned a need for reform, including leaders of Poland, Hungary, Slovakia and Belgium. According to some reports, reform proposals are supported by more than 20 states of the Council of Europe. It is clear, therefore, that we have reached a crucial point, where the majority of states support reform of the system and where an outcome – in the form of an interpretation – is inevitable.

In the past decade, states have agreed to other interpretative declarations. The Brighton Declaration emphasised the idea of the margin of appreciation, which gives states room to determine how to tackle an issue; the Copenhagen Declaration reasserted the subsidiarity of the European human rights system, with the ECtHR only ruling on an issue if all other options have been exhausted. Again, deference to states was reaffirmed. There have been more positive declarations, such as the Reykjavik Declaration, which was signed at the time of the Ukraine invasion and reaffirmed the unity of European states around ‘our values’, including human rights, rule of law and democracy. Yet, the current situation is substantively different: for the first time, the efforts for reform are led from capitals, not through the Council of Europe Secretariat in Strasbourg, with states holding their written drafts close and circulating them only to other ‘friendly’ states. In addition, the debate is focused on the specific problem of migration and on reducing the rights of a particular group of people. Such focus was not the case in prior debates.

It is clear, therefore, that we have reached a sort of a tipping point, a moment in which there is enough support for reform; a point in which the debate is qualitatively different, with states coordinating with each other (Capital-Capital) the outcome they wish to reach.

Turning to the second aspect: at this sensitive moment in time, there is a danger of contagion. In carrying out the HRNUDGE project, my team and I found that when it comes to implementation of judgments, states learn from one another and imitate the behaviour of other states. In particular, we found that leaders and officials foster friendships and cliques – close bonds and collaboration. These exchanges lead to faster communication, the sharing of practices, and ultimately also to the spread of similar behaviour across the Council of Europe.

But states do not only share good practices; they also share how compliance can be reduced or avoided, and which arguments work to persuade the system to close the supervision of compliance with judgments. In fact, in our simulations, we found that negative behaviour – behaviour of noncompliance or minimalist compliance – is much more contagious than positive behaviour. This is partly because of negative bias, which spreads faster than positive messages, but also because such behaviour requires less of states and creates unity and camaraderie between states and leaders – an ‘us versus them’ thinking.

What Ministers of Justice bring to Strasbourg with them this week matters. Is it going to be proposals that attack the Court, require reductions of rights, and reinterpretations of specific provisions of the Convention, or will it be proposals that reassert our commitment to the Convention and the independence of the Court, whilst suggesting that some sort of a change is needed? Will our leaders allow negative bias to spread or will they bring positivity to the room? This is not merely a theoretical question. In her proposals, the UK Home Secretary has suggested she intends to pursue an interpretative declaration to Article 3, which prohibits torture and inhuman and degrading treatment. Whilst European discussions are currently focused on an interpretative declaration to Article 8, on right to family life and effectively family reunification in the context of migration, a change to Article 3 touches the very core of the Convention. Prohibition of torture and inhuman and degrading treatment is an absolute right. It allows for no balancing. There is no margin of appreciation for states, nor any deference to them. Asking the Court (or rather telling it) to change its understanding of the ‘inhuman and degrading’ concept strikes at the very heart of the Convention protections and looks like an attack – or at least a challenge – to the Court’s independence. Bringing an Article 3 reinterpretation proposal into the room would mean setting the discussion on the wrong course. Some reflection is needed. Whatever the domestic discussion, at this crucial moment for Europe, the UK has to be vocal at the international level about its commitment to the core values and the system of human rights protection.

My final point relates to the differences between the European and the UK discourse. The discussion in Europe is not and does not revolve around withdrawal. This has never been the case. There are several reasons for this: the Treaties of the European Union clearly incorporate the EU’s commitment to human rights as one of its core values; the potential future accession of the EU to the Convention would also preclude the possibility of withdrawal; finally, there is an inherent belief that the Convention is a reflection of European values and that it serves as a tool for good. Any problems that may arise from its application can be resolved through a reinterpretation or even a renegotiation, not withdrawal. Even in populist circles, the discussion in relation to the Convention remains within these parameters.  

Colleagues have already explained why withdrawal from the Convention would not serve the UK well. There is the obvious absence of a written constitution, which arguably means there are few obstacles to the widening of executive power and restriction of judicial review. The attacks on domestic judges and the broader rule of law crisis across Europe (and beyond) advise against this move. But there is also the concern that for it to produce actual results, a withdrawal from the Convention would necessarily have to be followed by withdrawal from other international treaties, such as the Refugee Convention, that provide similar protections to migrants. Such a move would further isolate the UK at the international level. At a moment, when states have to work together to address serious issues – from Ukraine, to Gaza, to climate change and other challenges – the reputational costs of such a move would much surpass anything suffered as a consequence of Brexit.

If the UK can learn anything from other Europeans, it is that it is better to work within an existing system, rather than look in from the outside. The ECHR system offers a number of options for reform: from an interpretative declaration to a subsequent agreement, the latter constituting an amendment to the existing Convention, potentially with a narrower set of rights. The Convention can be reinterpreted and redrafted if states so wish. An interpretative declaration will only take six months, while an agreement would take a bit more time. The relevant interlocutors – the Council of Europe and the Court – are listening and ready to engage in the discussion. But proposing amendments to Article 3 or openly contemplating leaving the Convention goes much too far and undermines the very core of the human rights system.

Veronika Fikfak is a Professor of Human Rights and International Law at University College London and Principal Investigator of Human Rights Nudge, funded by the European Research Council. Veronika is also a judge ad hoc at the European Court of Human Rights and a member of the Permanent Court of Arbitration. This blog is cross posted also on the Constitution Unit Blog.

(Suggested citation: V. Fikfak, ‘ECHR Reform: A Danger of Contagion in Relation to Article 3’, U.K. Const. L. Blog (9th December 2025) (available at https://ukconstitutionallaw.org/))