For 27 European countries, the absolute priority appears to have been reduced to a single obsession: expelling people. This objective has become the “reason of state” that justifies almost everything, including the violation of basic principles of democratic legal orders.
Last week was World Human Rights Day. And, not even on purpose, 27 member states of the Council of Europe — among which, fortunately, Portugal is not included — signed a declaration intended to politically condition the decisions of the European Court of Human Rights (ECtHR) on immigration matters.
In an initiative that is still “informal”, but which, it is announced, will be formally signed in May 2026, these States argue that the ECtHR is unacceptablely hindering migration controls and call for a new approach. Above all, two lines of jurisprudence are at stake: the protection of the family life of immigrants, which has imposed limits on expulsions when they involve separation from the family; and the prohibition of expulsions when there is a risk of torture or inhuman or degrading treatment in the country of destination. States such as Poland or Denmark argue that the European Convention on Human Rights must be “adapted” to current circumstances, given the alleged threat of massive migratory flows — and have managed to convince many others of this.
Now, I have always learned that human rights do not “adapt” to more demanding circumstances. It is when we are under pressure that we realize whether we actually believe in these principles. And it is before those who appear to us as less “deserving” that the universality of human rights is tested. Speeches that legitimize exceptions — whether circumstantial or directed at certain groups — must disgust us, because they carry an obvious danger: their normalization, in the name of interests considered pressing, which one day turn against us.
On the other hand, this initiative denies the very values it aims to protect. We want to protect the public order of our States, but we forget that judicial independence and respect for international commitments are pillars of that same order. A political declaration designed to intimidate the independence of judges in Strasbourg is a frontal attack on the separation of powers and what we hold most sacred in European public order.
Furthermore, the criticisms are clearly exaggerated. Over the past ten years, immigration cases have represented less than 5% of the ECtHR’s caseload, with a very high inadmissibility rate. The Court has consistently reaffirmed that States have broad sovereign power in matters of border control, as long as it is exercised with respect for fundamental rights.
There remains hope of seeing Portugal firm, on the sidelines of this drift. When we start to negotiate the non-negotiable in the name of urgency, we stop defending Europe as a legal and political project, and only build an empty fortress of values. It is in moments of crisis that we define who we are. And we want to be a State that passes the test of true commitment to Humanity.
Assistant Professor at the Faculty of Law of the University of Lisbon