Maria Merkouraki argues that a May 2025 joint letter from nine EU member states signals a sovereignty-led pushback against the European Court of Human Rights. This backlash erodes Article 10 protections of the European Convention on Human Rights — and the long-term viability of judicial diplomacy in Europe
In May 2025, nine European Union member states — including Denmark, Italy, and Poland — sent a joint letter challenging the jurisprudential direction of the European Court of Human Rights (ECtHR) concerning migration. Framed as institutional dialogue, these countries sought to redefine the boundaries of supranational judicial authority, presenting the ECtHR’s role as intrusive rather than integrative. Meanwhile, official statistics from the EU Justice Scoreboard 2025 indicate judicial independence remains stable or improved in most EU member states. In contrast, the Rule of Law Report 2025 suggests protecting judicial independence, mitigating corruption threats, and enhancing media freedom.
EU member states have challenged the jurisprudential direction of the European Court of Human Rights on migration, reflecting the increasing politicisation of judicial oversight mechanisms
Their action reflects the increasing politicisation of judicial oversight mechanisms. It highlights growing tensions between sovereignty-driven policy-making and human rights obligations anchored in Article 10 of the European Convention on Human Rights (ECHR). It also raises serious questions about the EU’s normative power, and its ability to act as a credible guardian of liberal democratic values across member states.
The focus on migration is particularly revealing. By targeting ECtHR rulings that prohibit collective expulsions or require judicial oversight of deportation proceedings, the letter frames the protection of migrant rights as unwarranted interference in domestic policy-making. This challenges the authority of the Court, but also undermines broader protections under Article 10. These protections are critical for civil society actors, journalists, and migrants who speak out about border practices, detention conditions, and asylum procedures.
The resulting chilling effect on expression around migration — in increasingly securitised public spheres — signals a rollback of fundamental rights in terms of national sovereignty.
Judicial diplomacy once operated through mechanisms of trust, citation, and shared doctrinal development. Yet today’s judges — particularly at the supranational level — are no longer neutral interpreters. They are entangled in a broader geopolitical contest over legal authority and democratic norms.
Today’s judges are no longer neutral interpreters; they are entangled in a broader geopolitical contest over legal authority and democratic norms
However, amid democratic backsliding and strategic legal nationalism, judges are increasingly instrumentalising these mechanisms — or, at times, disregarding them altogether.
The European Judicial Training Network (EJTN) supports over 30,000 judges. The Network promotes transnational capacity-building around digital rights, freedom of expression, and judicial independence. Institutional training, however, is no substitute for political will. As governments increasingly apply legal obligations selectively, supranational coherence is beginning to falter.
Presented as an invitation to reform, the 2025 letter reflects a potentially troubling logic: the de-legitimisation of judicial independence under the banner of national sovereignty. Legal scholars describe this as a form of 'autocratic legalism', in which legal rhetoric is used strategically to weaken accountability mechanisms. Rather than engaging in good-faith critique, the signatories of the letter appear to seek a recalibration of judicial authority in their favour, limiting human rights scrutiny under Article 10.
The ECtHR's soft enforcement model — dependent on state compliance — has reached a critical point. ECtHR data from 2022 reveals that 85% of Article 10 cases referenced comparative jurisprudence. Yet, according to Council of Europe evidence from 2023, five years later, over 30% of related judgments had still been only partially implemented. According to European Network of Councils for the Judiciary evidence from 2023, in Hungary, judicial independence fell to 52%, while Sweden and Germany maintained high levels. This disparity reveals a systemic weakness: supranational jurisprudence is only as strong as its national reception.
Judicial disengagement is not isolated. Poland’s 2021 Constitutional Tribunal ruling questioned the Convention’s authority. Spain’s 2023 high court decision on deepfakes illustrated selective divergence. These examples show how some states refuse to internalise Strasbourg jurisprudence when it clashes with domestic political priorities. This erosion of judicial harmonisation threatens Article 10 protections, particularly regarding disinformation, hate speech, and platform accountability. More broadly, such trends undermine the EU’s ability to act as a model of rule-of-law governance. This affects both its internal cohesion and external credibility.
In the digital age, judges face new challenges. They must now rule on algorithmic bias, media pluralism, and AI-generated misinformation — issues often lacking clear legal precedent. The ECtHR’s cautious approach in the 2015 case Delfi AS vs Estonia shows the difficulty of balancing state obligations and platform responsibilities. Such cases require not only legal expertise but awareness of broader political dynamics.
In the digital age, judges are ruling on algorithmic bias, media pluralism, and AI-generated misinformation — issues which often lack clear legal precedent
The EJTN’s 2024–25 programmes address disinformation law, judicial resilience, and digital standards. These are welcome steps. Without effective enforcement tools or political insulation, however, they risk remaining pedagogical in theory, and limited in impact.
To prevent judicial diplomacy from becoming merely symbolic, we need stronger institutional mechanisms. We must:
Judicial diplomacy today is a contested space, not a given. Article 10, foundational to democratic discourse, has become a focal point in ongoing struggles over transnational rights enforcement. As some states retreat into sovereignty-driven policymaking, courts must adopt a dual approach. They should use restraint where necessary, but assertiveness where legal order is under threat.
This is not only a legal challenge — it is a test of EU’s common ideals. The future of the ECtHR will hinge not just on legal reasoning, but on the political courage of courts, and the resilience of Europe’s human rights system. The EU’s credibility as a normative power is also at stake. If it cannot reinforce judicial independence and Article 10 protections, it risks jeopardising not only judicial diplomacy, but its own identity-path as a strong community of shared values.
