The Encroachment of Populism Upon Human Rights

This post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.

The German thinker Freidrich Hegel famously noted that ‘the only thing that we learn from history is that we learn nothing from history.’ Hegel’s observation comes to mind as we continue to witness the rise of populism and the challenges this turn in politics poses to the international human rights framework. As is well known, individual rights and liberties are universal and have existed across different cultures from time immemorial. It was, however, the atrocities committed by Europeans against other Europeans identified as the ‘other’, that led to the legal edifice constructed in the aftermath of the Second World War that we now consider to be international human rights law. European atrocities against those in their colonies, or the eradication of indigenous persons by non-native settlers in the Americas or Australia, for example, were not the catalyst for the international human rights movement. Pointedly, it was the identification of individuals as ‘others’ and their subsequent persecution and attempted annihilation that led to the accompanying moral urgency which ensured enough of a consensus that many foundational documents were adopted, even during the ideological struggles of the Cold War. But we are now seemingly forgetting what led us to the realisations that all humans are equal and worthy of protection. And that is what this blog will focus on.

Populism, be it left or right wing, has – despite some assertions to the contrary – never left the global political scene; be it nationalistic, ethnically orientated, religious or on another basis. Populism can be seen as a movement that puts the partial interests of the mobilized above the interests of others, while claiming to represent the entirety of society. It is often about presenting a unified populace against ‘corrupt elites’, or ‘others’ who are deemed to be diluting the purity of society. Both these ‘targets of vitriol’ can be seen in the context of the policies of some populist leaders but populism almost always seeks to blame societal problems on a morally inferior ‘other’. These are usually minorities of some description, often – but not always – those who have immigrated recently.

In the context of the Council of Europe this challenge can be seen very clearly. The Council of Europe is important for a number of reasons. First, the establishment of the Council of Europe was a direct consequence of the atrocities committed in Europe prior to and during the Second World War.  Second, the European Convention on Human Rights is widely deemed the most successful of the regional human rights treaties. Finally, the Contracting Parties to the Convention and members of the Council have long considered themselves to be ‘global champions’ of human rights and other liberal values, such as democracy and the rule of law. Accordingly, if such States turn to populism and start ostracising ‘others’ within their borders, then the prognosis for the regional let alone global system for human rights protection is somewhat dire. Alas, that is precisely what is seemingly happening.  

For a number of years now, there has been increasing emphasis upon the European Convention being subsidiary to the nation state in the protection of rights. In the grand scheme of things, that makes perfect sense. If national authorities are not adequately protecting rights, any matters which are awry can be corrected by national judges. That is not only quicker and less costly, but it also has the perception of greater legitimacy as it is not being imposed by a ‘foreign court’. That perception of ‘foreignness’, however, no matter how unfortunate, is useful to those who wish to engender opposition to the Court as the foreign is very definition of the ‘other’. More recently, however, the concept of ‘otherness’ as related to migrants has become a calling card not only of the populists but has become part of mainstream politics in many European states.  

In May 2025, 75 years after the Convention was adopted, an ‘open letter’ was issued by nine Governments, criticising the Court’s interpretation of the Convention regarding the challenges posed by migration. Strikingly the nine governments were of differing political persuasions.  The nine stressed that they should have more room nationally to decide on when to expel criminal foreign nationals, and freedom to decide on how our authorities (emphasis added) can keep track of, for example, criminal foreigners who cannot be deported from our territories. 

By December 2025, the nine had become twenty-seven. On 10 December 2025 (pointedly International Human Rights Day, as it is the date in 1948 when the UDHR was adopted), in an informal ministerial meeting, a series of conclusions were adopted setting out concerns as to how the Convention is being interpreted. What is noteworthy here is the use by the twenty-seven of the Court’s own use of the ‘living instrument’ approach against it and arguing that it equally justifies ‘regressive measures’ and not just the progressive development of rights. The ‘living instrument’ approach, of course, has been used by the Court to allow it to develop Convention obligations in light of societal and cultural evolution.  Here the majority of Contracting Parties to the Convention are now arguing that the ‘living instrument’ approach can also be used to justify the watering down of protections, as the obligations are becoming too onerous for them. The focus of the Conclusions by the twenty-seven is very much about the ‘other’ in the context of ‘foreigners convicted of serious offences’ within the borders of the Contracting Parties. The Conclusions also fire a shot across the bows of the Council of Europe by stressing that there is a need for a different approach in light of ‘the contemporary challenges posed … by irregular migration and by the situation of foreigners convicted of serious offences, taking duly into account…governments’ fundamental responsibility to ensure national security and public safety.’ Here the Conclusions are firmly suggesting that states are unable to protect the general populace, as they cannot deport foreign criminals and deal with the stem of irregular migrants.  

The distinction and focus in the Conclusions between nationals and foreigners (or ‘others’) brings us full circle to where we started and the past atrocities committed due to the dehumanisation of the ‘other’. To come back to Hegel, it is imperative that this time we do learn the lessons of history and whatever the future developments of the Convention system are, they must not unpick the essence of the fact that all humans – and not just some – are worthy of protection.