For much of its existence, the European Convention of Human Rights (ECHR) and its enforcement arm, the European Court of Human Rights (ECtHR), occupied a relatively uncontroversial place in the European and British imagination, credited with landmark advances in civil rights, from protections for journalistic freedom to equality for homosexuals. Yet, 75 years after its founding, the institution that was once seen as a guardian of liberty has become something quite different: a transnational court that functions in practice as a supranational authority, reserving for itself the power to decide, and constantly redefine, what counts as a \u201chuman right\u201d.<\/p>\n
In recent years, the Court has increasingly come into conflict with elected governments \u2014 most notably over questions of migration and deportation. Its critics, particularly in Britain, argue that the Convention has expanded far beyond its original remit, interfering in areas that go to the heart of democratic sovereignty: border control, national security and the prerogative of parliaments to set the law. When nine European leaders signed a joint letter in May this year, questioning whether the ECtHR had overstepped its mandate on migration, the Council of Europe\u2019s Secretary General, Alain Berset, dismissed their concerns outright. \u201cNo judicial body should be subject to political pressure,\u201d he declared. The implication was clear: the ECtHR sits above democratic scrutiny; its authority, derived from moral principle rather than electoral consent, is to be accepted without debate.<\/p>\n
A key turning point came in 2023, when the ECtHR intervened, via Rule 39, to block the UK\u2019s so-called \u201cRwanda plan\u201d, which would send certain asylum seekers and illegal migrants to Africa for processing. Just hours before the first flight was due to depart, a single judge in Strasbourg issued an emergency injunction that grounded it. Whatever one\u2019s opinion of the policy, the episode raised a profound constitutional question: should an unelected foreign judge have the power to overturn a decision approved by a sovereign parliament?<\/p>\n
The debate has only intensified since. Both the Conservatives and Nigel Farage\u2019s Reform UK have pledged to withdraw from the Convention. Even Keir Starmer, while rejecting outright withdrawal, has suggested the Government will review how international human rights law, including the ECHR, is interpreted by British courts \u2014 particularly to stop unsuccessful asylum seekers from blocking deportation.<\/p>\n
Leaving the Convention would not, by itself, solve the complex problem of illegal migration. But across Europe, elected governments \u2014 in Poland, Italy, Hungary, the Netherlands and elsewhere \u2014 have often found themselves constrained when trying to respond to growing public concern over the phenomenon which has become one of the defining political issues of our time. What we are witnessing is not simply a technical legal dispute, but a clash between democracy and a transnational judiciary that increasingly sees itself as a moral authority above politics.<\/p>\n
The European Court of Human Rights has, over the past two decades, engineered what can be described as<\/a> a \u201cquiet power grab\u201d. Through a series of legal innovations and doctrinal reinterpretations, the Court has progressively widened its jurisdiction, often beyond what member states ever agreed to.<\/p>\n One of the Court\u2019s controversial doctrines is that of extraterritorial jurisdiction \u2014 the idea that the ECHR applies even outside a state\u2019s borders. This instrument has allowed the Court to extend its reach into foreign territory and even international waters. In the case of Hirsi Jamaa and Others v. Italy, for instance, the Court ruled in 2012 that Italy could not intercept migrants in the Mediterranean and return them to Libya, despite the operation taking place outside Italian territory. The result was a de facto outlawing of \u201cpushbacks\u201d, which is a core component of border enforcement. In practice, the judgment meant that states could no longer prevent illegal entrants from reaching their shores to lodge asylum claims, no matter the operational or humanitarian cost.<\/p>\n Another key development concerns the doctrine of non-refoulement \u2014 the prohibition on returning individuals to countries where they may face serious harm. Though not explicitly mentioned in the Convention, the ECtHR has expanded this principle far beyond its original postwar intent. In several cases, the Court has ruled that even transfers to other EU countries may be unlawful if conditions there are deemed inadequate. It has also insisted that each deportation must be subject to an \u201cindividualised assessment\u201d of risk \u2014 an administrative nightmare that renders mass removals practically impossible. National security considerations are given almost no weight: even individuals deemed dangerous cannot be expelled if they might face mistreatment abroad.<\/p>\n Finally, there is Article 8 of the Convention \u2014 the \u201cright to respect for private and family life\u201d. Once a narrowly defined protection of home and correspondence, it has become a catch-all provision invoked to prevent deportations of convicted criminals and illegal immigrants. The Court has repeatedly ruled that deportations must be halted if an offender has established a family life in the host country, however tenuous. This has led to an avalanche of cases in which serious offenders \u2014 from violent criminals to drug traffickers \u2014 have successfully appealed against removal on Article 8 grounds. British tabloids have gleefully reported cases where criminals were able to avoid deportation because their child liked chicken nuggets<\/a> or questioned their gender<\/a>. But behind the tabloid absurdity lies a serious constitutional reality: an international court has assumed the authority to decide who may remain within a nation\u2019s borders.<\/p>\n The Court\u2019s defenders insist that it merely applies the principles that states themselves agreed to uphold. Yet this is no longer credible. The ECtHR has, by its own admission, embraced the doctrine of the Convention as a \u201cliving instrument\u201d \u2014 meaning that its provisions must be interpreted in light of \u201cpresent-day conditions\u201d. In practice, this gives judges carte blanche to reinterpret and expand the meaning of rights according to contemporary political sensibilities. What began as a limited postwar charter has become an evolving moral code enforced by an unelected elite with a de facto veto power over national law.<\/p>\n The ECHR, however, is only the tip of the iceberg. The Court operates within a wider ecosystem of judicial and technocratic power that extends far beyond Strasbourg. Its rulings are cited by the European Court of Justice, domestic supreme courts and international bodies, and often transcribed into national law. National judges, NGOs and human-rights lobbies use its jurisprudence to influence policymaking. An entire regime of judicialised governance has emerged \u2014 what legal scholar Ran Hirschl has called<\/a> juristocracy: rule by judges.<\/p>\n Over the past half-century, vast areas of public life once decided through political debate \u2014 from migration and security to macroeconomic policy \u2014 have been transferred from parliaments to courts, tribunals and independent authorities. This process of depoliticisation was a deliberate response by political elites to the growing assertiveness of mass democracy. As voting rights expanded in the late 19th and 20th centuries, Europe\u2019s ruling classes feared that popular majorities might use their new power to challenge the economic and social order. The solution was to create institutional checks \u2014 constitutional courts, independent central banks, and supranational treaties and institutions \u2014 that insulated key areas of governance from democratic contestation.<\/p>\n In the postwar decades, this model spread rapidly. Germany, Italy, France and Austria all established constitutional courts with the power to strike down legislation. Internationally, new bodies such as the ECtHR and the European Court of Justice emerged as guardians of a liberal order that placed \u201crights\u201d and markets above popular sovereignty. Even Westminster-style systems like Britain eventually succumbed. In the Seventies and Eighties, political elites across the Anglosphere embraced judicialisation as a means of enforcing policies that might otherwise have faced public resistance.<\/p>\n \u201cPolitical elites across the Anglosphere embraced judicialisation as a means of enforcing policies that might otherwise have faced public resistance.\u201d<\/p>\n Examples include the creation of independent monetary and pricing bodies, and the extensive use of quasi-autonomous non-governmental organisations (quangos) to implement policy at arm\u2019s length from parliamentary control. The 1998 Human Rights Act, which incorporated the European Convention on Human Rights into UK law, epitomises the judicialisation trend. As Hirschl observed, \u201cdeference to the judiciary\u201d served elite interests well: for example, it allowed governments to pursue controversial neoliberal economic and labour reforms while blaming unelected judges or independent bodies for their consequences.<\/p>\n The result is the system we inhabit today: a \u201cconstrained democracy\u201d in which the forms of representation remain, but the substance of political choice has been hollowed out. Immigration policy, once the preserve of parliaments, has become the domain of judges interpreting \u201crights\u201d. Economic and social policies are now dictated by international treaties and constitutional doctrines.<\/p>\n To criticise the ECtHR is not to oppose human rights, but to ask who defines them and by what authority. When \u201crights\u201d are expanded indefinitely without democratic consent, they cease to be instruments of liberty and become tools of control. Governments, meanwhile, though nominally constrained by such courts, often welcome their interference, which allows them to outsource politically costly decisions to unelected judges \u2014 to pursue or preserve policies they privately support but dare not defend \u2014 or simply to evade responsibility for problems they are incapable of solving. This is why politicians\u2019 condemnations of the ECHR, especially coming from the Conservative camp that so spectacularly betrayed the Brexit mandate while in power, ring so hollow.<\/p>\n