The human rights crusade is running out of road

European Court of Human Rights in Strasbourg
European Court of Human Rights, Strasbourg - FREDERICK FLORIN

Last week, Giorgia Meloni appeared to pull off a coup. The Italian prime minister unveiled her plan to process thousands of asylum seekers in Albania, where it would be cheaper to house and easier to deport them than from Italy.

Ms Meloni struck a deal with the Albanian government, giving Rome control over facilities capable of processing more than 35,000 migrants and refugees a year.

For European leaders struggling to lawfully curb mass migration, these rows of prefabricated housing units – situated outside of the EU’s stringent legal framework – must have been a tantalising sight. Ursula von der Leyen, the European Commission president, urged other EU leaders to consider similar “return hub” agreements. Even Sir Keir Starmer, who previously opposed Britain’s (rather similar) Rwanda plan, expressed “great interest” in Ms Meloni’s initiative.

For a moment, it seemed Ms Meloni had achieved the impossible: sidestepping restrictive human rights laws to curb migration, with tacit approval – but not oversight – from Brussels. Her popularity extended even to the local community in Shengjin, northern Albania, where one resident opened a Meloni-themed restaurant after the town received a cash injection of hundreds of millions of euros.

But the fanfare was short-lived. Days after the centres were unveiled, an Italian court ruled that 12 of the 16 migrants currently housed in Albania must be returned to Italy. Citing an earlier ruling by the European Court of Justice (ECJ), which states that countries like Egypt and Bangladesh cannot be deemed “safe” unless their entire territory is free from danger, judges in Rome intervened, putting the entire scheme in jeopardy.

Ms Meloni’s party decried the ruling as an attempt by “politicised judges…to abolish Italy’s borders”. Indeed, it seems plausible that such an all-encompassing safety standard was conceived to be effectively impossible to satisfy.

The Italian government intends to challenge the ruling, arguing that the designation of safe countries falls within its own competency. In turn, the Italian courts will likely avail of their judicial review powers to strike back.

This tug of war between the courts and governments is becoming a leitmotif of Europe’s immigration woes: Western leaders are increasingly pitting themselves against “human rights” to honour democratic mandates to reduce migrant arrivals.

Earlier this year, Rishi Sunak signalled his intent to push through the Rwanda scheme, even if it meant bypassing European Court of Human Rights (ECHR) rulings. France is notorious for flouting ECHR decisions, particularly in deportation cases, challenging rulings or simply paying fines. Italy has followed a similar path. A large portion of judicial reviews – where courts challenge government policy – in Britain and Europe now centre on migrant and asylum cases.

The more European governments are accountable to their voters, or want to appear so, the more willing they seem to be to ignore human rights. Yet, this often proves to be a losing battle, as courts tend to have the upper hand. Denmark’s former immigration minister, Inger Støjberg, experienced this firsthand in 2021 when she was sentenced to two months in prison by a special court for separating asylum-seeking couples in cases where the woman was under 18. In other words, she acted on her mandate to crack down on illegal migration. Incidents like this serve as a stark reminder to European politicians of who, ultimately, holds the power.

While human rights frameworks are intended to protect individuals, they are increasingly throwing national sovereignty and security onto the pyre in order to do so. As a result, Europeans are predictably beginning to take a dim view of such rights. In the EU, 33 percent of people believe human rights only benefit those who do not deserve them, such as criminals and terrorists, according to a 2020 Ipsos Mori poll.

As lawful avenues for removing people from Europe continue to close off, this scepticism is likely to rise. If human rights become synonymous with uncontrolled migration and neutered parliaments, their legitimacy in the eyes of the public could collapse – paving the way for precisely the kind of illiberalism that their proponents seek to vanquish.

“Nonsense on stilts,” was how Jeremy Bentham described the universal rights of man, fervently proclaimed by American and French revolutionaries and now seen as precursors to modern human rights. Bentham understood that without the will to enforce them, rights were meaningless. Two centuries later, these rights have been enshrined in law and elevated to the judge’s bench. And, as is becoming clear, they risk making a nonsense of the very principles they were meant to uphold, and much else besides.