On 4 November 2020, the European Convention on Human Rights (ECHR), the first international legal instrument to give binding effect to the rights enshrined into the Universal Declaration of Human Rights, celebrated its much-awaited 70^thanniversary. Over the course of its history, as pinpointed by the Council of Europe Commissioner for Human Rights Dunja Mijatović, the ECHR «has become a crucial instrument to protect the rights of hundreds of millions of people in Europe».

This is particularly evident if one considers the pivotal role played by the Convention in ensuring the fulfilment and enjoyment of human rights to migrants. Despite the almost daily violations which we are all aware of – such as: collective expulsions, detention in overcrowded and filthy camps, poor living conditions, or the externalization of migration controls to States where the most basic human rights are blatantly breached –, indeed, it is undeniable that the European Convention has been (and still is) an innovative and fairly effective instrument to afford protection to migrants, whatever might be the reason why they entered – or tried to do so – the territory of a Member State. The first reason of this success lies in the establishment of the European Court of Human Rights (ECtHR), a one-of-a-kind judicial body which has been capable of providing a dynamic and evolutive interpretation of the Convention, defined in the famous Tyrer v United Kingdom judgment as a “living instrument”. In this respect, suffice to mention the case-law of the Court concerning migrants’ extreme poverty and the respect for human dignity (Slingenberg), as well as the jurisprudence stemming from push back at borders or interception at sea.

Strictly related to, inter alia, the issue of push back operations, another reason supporting the assessment of the ECHR as an innovative instrument is the interpretation of the concept of “jurisdiction” by the ECtHR and, in greater detail, its extraterritorial scope. While it is true that examples of extraterritorial application abound in the practice of international human rights law (IHRL), it is likewise undeniable that the European Court has proved to be exceptionally inclined to extend the scope of application of the Convention beyond States’ territories. As far as migration issues are concerned, one can easily recall the Hirsi Jamaa v Italy case, in which the Court found Italy to be in breach of the non-refoulement obligation by sending back to Libya a group of migrants intercepted on the high seas.

Together with the Court, some of the rights set forth in the Convention itself had an innovative and propulsive impact on the whole field of IHRL. In this respect, Article 4 of Protocol No. 4 to the ECHR, enshrining the principle of prohibition of collective expulsion, banned – for the first time – en masse expulsions of aliens by host States. Such a provision had a catalytic effect, leading to the formation of a specular rule of customary international law, as explicitly acknowledged in its works on expulsion of aliens by the International Law Commission.

In conclusion, on the occasion of the 70^th anniversary of the Convention, it is dutiful to acknowledge that the Convention has been a game-changer in the protection of migrants. This is even more important in light of the current time, in which anti-migrant rhetoric and policies spread all around Europe. Against this background, the Convention and its Court cannot but stand as a guardian of migrants’ fundamental human rights.