Derogation from the European Convention of Human Rights in light

Derogation from the European Convention of Human Rights in light of
‘Other Obligations under International Law’
Jean Allain*
1 It has been more than fifteen years since the European Court of Human Rights has
considered the meaning of the clause ‘other obligations under international law’ found in
Article 15; which allows a State Party to “take measures derogating from its obligations
under this Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations under
international law”. The relevance of this phrase should be considered as a number of
international non-derogable rights have emerged in the last decade that place in question
the case-law of the European Court. This study examines the provisions of Article 15,
demonstrating the manner in which the jurisprudence of the European Court has
developed in relation to states of emergency. Consideration is then given to the rights of
the European Convention from which States, having invoked Article 15, have sought to
derogate. Finally, the case-law of the European Court is examined in light of ‘other
obligations under international law’, to demonstrate that not only does the case-law of the
European Court no longer reflect established law in the domain of non-derogable rights,
but brings into question the very essence of Article 15.
2 This is so as States have invoked Article 15 solely to derogate from the provisions of
Article 5 (right to liberty and security) and Article 6 (right to a fair trial). It is specifically
in these areas that the international community, over the last fifty years, has moved to
ensure that jus cogens norms of the right to life and the prohibition against torture are
guaranteed, even in times of emergency, by requiring that the fundamental precepts of the
right to liberty and fair trial be respected at all times. As such, the international
community has progressively moved toward ultimately determining that requirements
manifest in Articles 5 and 6 have assumed the nature of a non-derogable right and thus
are beyond the scope of provisions such as those found at Article 15. While, in theory,
States might seek to derogate from provisions other then Articles 5 and 6 of the
Convention, the absence of half-century of case-law to that effect, speaks against it.
Instead, that the core elements of the right to liberty and fair trial have gained the status
of non-derogable rights means that the case-law of the European Court of Human Rights
revolving around Article 15 has been rid of much of its content and with it most of the
advantages which States Party might seek in invoke a state of emergency under the
European Convention of Human Rights.
I. Derogation under Article 15 of the European Convention
3 There is, built into human rights instruments such as the 1951 European Convention
for the Protection of Human Rights and Fundamental Freedoms, “techniques of
accommodation”, which Rosalyn Higgins noted, allows States to determine the extent to
* Senior Lecturer, School of Law, Queen’s University of Belfast.
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which they will provide for human rights protection within their domestic legal systems1.
One such technique is an internal ‘limitation clause’ within an instrument which, while
establishing a right, includes provisions which then can be utilized to circumscribe that
right. An example of such a limitation clause is to be found in Article 11 of the European
Convention which establishes that “Everyone has the right to freedom of peaceful
assembly”, while allowing for restrictions where they “are prescribed by law and
necessary in a democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others”. A further means of accommodation
within the European Convention is to be found at Article 15, which allows States to go
beyond simply limiting rights, to derogating from them in times of emergency. The
paradoxical nature of such accommodations is that they allow States the possibility to
suspend certain rights in times of emergency as a means of seeking to return to a situation
of normalcy in an expeditious manner; and thus the restoration of the full measure of the
Convention. For instance, say a natural disaster occurred – an earthquake –; a State
seeing that its legislation in the area of Article 11 (freedom of assembly and association)
was inadequate as a result of looting and a descent into lawlessness, could go beyond
simply limiting such a right (ie; “in the interests of […] public safety, for the prevention
of disorder or crime”) by completely suspend the right by means of a curfew and other
measures which would seek to ensure a timely return to the status quo ante.
4 Article 15 of the European Convention while allowing States to derogate from their
human rights obligations in times of emergency also establishes a supervisor role for the
European Court of Human Rights. Article 15 reads:
1. In time of war or other public emergency threatening the life of the nation any High Contracting
Party may take measures derogating from its obligations under this Convention to the extent strictly
required by the exigencies of the situation, provided that such measures are not inconsistent with its
other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from
Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary
General of the Council of Europe fully informed of the measures which it has taken and the reasons
therefor. It shall also inform the Secretary General of the Council of Europe when such measures have
ceased to operate and the provisions of the Convention are again being fully executed.
That supervisory role was explained by the European Court in the 1978 Ireland v. The
United Kingdom case wherein it was determined that it “falls in the first place to each
Contracting State, with its responsibility for ‘the life of (its) nation’, to determine whether
that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in
attempting to overcome the emergency”. However, the Court went on to say that
“[n]evertheless, the States do not enjoy an unlimited power in this respect. The Court
[which …] is responsible for ensuring the observance of the States’ engagements […] is
empowered to rule on whether the States have gone beyond the “extent strictly required
1 Rosalyn Higgins, ‘Derogation under Human Rights Treaties’, The British Yearbook of International
Law: 1976–1977, 1978, p. 281.
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by the exigencies” of the crisis”2. In Brannigan and McBride v. United Kingdom, the
Court elaborated on its supervisory powers, noting that “in exercising its supervision the
Court must give appropriate weight to such relevant factors as the nature of the rights
affected by the derogation, the circumstances leading to, and the duration of, the
emergency situation”3.
5 On the basis of Article 15, States have both procedural and substantive obligations.
As to procedural obligations, States must, under Article 15(3) notify the Secretary
General of the Council of Europe of the imposition, justification of measures taken, and
cessation, of a state of emergency. It is from these procedural requirements, in part, that
the Court will draw information so as to determine whether a State has indeed met its
substantive obligations under Article 15(1). As was noted in the 1996 Aksoy v. Turkey
case, the Court is “competent to examine this issue [procedural requirements of Article
15(3)] of its own motion, and in particular whether the Turkish notice of derogation
contained sufficient information about the measure in question […] to satisfy the
requirements of Article 15 para. 3”4. The relevance of these procedural obligations under
Article 15(3) was made evident in subsequent cases brought against Turkey, wherein the
Court pointed out that the legislative decrees which allowed for derogation – but also the
notifications to the Council of Europe – were only applicable to the south-east of Turkey.
As such, the Court determined that it:
would be working against the object and purpose of that provision [re: Article 15] if, when assessing the
territorial scope of the derogation concerned, it were to extend its effects to a part of Turkish territory
not explicitly named in the notice of derogation. It follows that the derogation in question is
inapplicable ratione loci to the facts of the case5.
6 With respect to substantive obligations, the Court emphasised in Lawless v. Ireland
the exceptional nature of the right to derogate from the Convention, and that it was
empowered to determine whether the obligations set down in Article 15 were met. The
Court stated:
the Government of any High Contracting Party has the right, in case of war or public emergency
threatening the life of the nation, to take measures derogating from its obligations under the Convention
[…] provided that such measures are strictly limited to what is required by the exigencies of the
situation and also that they do not conflict with other obligations under international law; whereas it is
for the Court to determine whether the conditions laid down in Article 15 for the exercise of the
exceptional right of derogation have been fulfilled in the present case6.
The Court then moved to consider whether there did, in fact, exist a ‘public emergency
threatening the life of the nation’ in line with Article 15(1), by establishing first what it
called the “natural and customary meaning of the words”. The Court considered this
2 Ireland v. The United Kingdom, (1978) 2 European Human Rights Reports 25, para. 207. Note that
unless otherwise indicated, the paragraphs citied in reference to early cases of the European Court
correspond to those found under the Court’s heading “As to the Law”.
3 Brannigan and McBride v. United Kingdom, (1993) 17 European Human Rights Reports 539, para. 43.
4 Aksoy v. Turkey, (2002) 34 European Human Rights Reports 57, para. 86.
5 Sakik and Others v. Turkey (1998) 26 European Human Rights Reports 662, para. 39. See also Sadak v.
Turkey, 8 April 2004, para. 56; Yurttas v. Turkey, 27 May 2004 para. 58; and Abdülsamet Yaman v. Turkey,
2 November 2004 para. 69.
6 Lawless v Ireland, (1979-80) 1 European Human Rights Reports 15, para. 22.
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phrase to be “sufficiently clear”; as it refers to “an exceptional situation of crisis or
emergency which affects the whole population and constitutes a threat to the organised
life of the community of which the State is composed”7.
7 Having decided that Ireland was justified in declaring a state of emergency, the Court
applied the second prong of its test which related to the “exercise of the exceptional right
of derogation”; that is: the Court examined whether the measures taken were ‘strictly
required by the exigencies of the situation’. In seeking to establish the parameters of
what measures would be ‘strictly required by the exigencies of the situation’ the Court
would later invoke its ‘margin of appreciation’ rule, as it considered that the “limits on
the Court’s powers of review […] are particularly apparent where Article 15 is
concerned”8. In Ireland v United Kingdom, the Court noted that the primary
responsibility for determining whether the life of the State was threatened and “how far it
is necessary to go in attempting to overcome the emergency” rests with the State Party. It
then went on to say:
By reason of their direct and continuous contact with the pressing needs of the moment, the national
authorities are in principle in a better position than the international judge to decide both on the
presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this
matter Article 15 para. 1 leaves those authorities a wide margin of appreciation.9
The European Court then considered whether, in the case at hand, the measures were
strictly required, while providing the United Kingdom a margin of appreciation to make
such a determination. Having evaluated the actions of the United Kingdom, the Court
concluded that these could “reasonably have been considered strictly required for the
protection of public security and that, in the context of Article 15 their intrinsic necessity,
once recognised, could not be affected by the restriction of their field of application”. As
a result, “the Court accepts that the limits of the margin of appreciation left to the
Contracting States by Article 15 para. 1 were not overstepped by the United Kingdom”10.
8 A final substantive obligation under Article 15(1) of the European Convention is that
any measures which States take derogating from their obligations, must be consistent
with ‘other obligations under international law’. The European Court of Human Rights
has developed limited jurisprudence regarding this clause; which, as Professor J.G
Merrills notes, “may be regarded as a way of harmonizing the legal position of the
Convention with the situation of general international law”11. In Lawless the Court
determined that, failing reference to this provision by the parties, it was required as a
“function of the Court, which is to ensure the observance of the engagements undertaken
by the Contracting Parties […] to determine proprio motu whether this condition has
been fulfilled in the present case”. Yet, having done so, the Court noted that:
7 Id., para. 28.
8 Ireland v United Kingdom, op. cit., n. 2., para. 207.
9 Id., para. 207.
10 Id., paras. 213 and 214.
11 J.G Merrills, The Development of International Law by the European Court of Human Rights, 1993, p.
207.
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no facts have come to the knowledge of the Court which give it cause hold that the measure taken by
the Irish Government derogating from the Convention may have conflicted with the said Government's
other obligations under international law12.
In the 1989 Brannigan and McBride case, the Court considered the phrase ‘other
obligations under international law’ by making reference to Article 4 of the International
Covenant of Civil and Political Rights (ICCPR), though it added little to the development
of the jurisprudence of this provision13. In that case, the applicants argued that the
notification of derogation was not ‘officially proclaimed’, as required by the derogation
provisions of the ICCPR. The Court, for its part, noted that it “is not its role to seek to
define authoritatively the meaning of the terms ‘officially proclaimed’ in Article 4 of the
Covenant. Nevertheless it must examine whether there is any plausible basis for the
applicant’s argument in this respect”14. Undertaking such an examination, the Court
determined that the public statement made by the British Government of its intension to
derogate from the Convention “was well in keeping with the notion of an official
proclamation”15.
II. Derogations by States and the Jurisprudence of the European Court
9 Having considered the manner in which the European Convention allows for
derogation under Article 15, consideration now turns to the rights which States have
derogated from, as reflected in the jurisprudence of the European Court. The European
Court of Human Right has dealt with approximately a dozen cases in which a State Party
has invoked the derogation provisions of the European Convention. The first of these
cases was also the first dealt with by the Court: Lawless v. Ireland. In that case Mr.
Lawless, an admitted member of a splinter group of the Irish Republic Army (IRA), who
had on two previous occasions been arrested: the first leading to his acquittal on weapons
charges; the second leading to his conviction of possession of incriminating documents
(i.e.: “a sketch map for an attack of certain frontier posts between the Irish Republic and
Northern Ireland was found on him bearing the inscription ‘Infiltrate, annihilate and
destroy’”)16. He was subsequently detained trying to board a ship for England in 1957;
12 Lawless v Ireland, op. cit., n. 6, paras. 40 and 41.
13 Article 4 of the ICCPR reads:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under
the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international law and do not involve discrimination solely on
the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the
other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
14 Brannigan and McBride, op. cit., n. 3, para. 72.
15 Id., para. 73.
16 Lawless v Ireland, op. cit., n. 5, para. 19 of the Facts.
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and held on the opinion of the Irish Minister of Justice that he was “engaged in activities
prejudicial to the security of the State” under the Offence against the State Act of 1940,
for nearly five months without appearing before a judge. The Court considered whether
that detention and the Act violated the provisions of Article 5(1)(c) and (3). Article 5(1)
(c) related to the deprivation of liberty in cases of:
the lawful arrest or detention of a person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after having done so;
Whereas Article 5(3) of the European Convention reads:
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be
brought promptly before a judge or other officer authorised by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
10 The European Court reasoned that the “grammatical” meaning (i.e.: ordinary meaning)
of these provisions was clear; and as a result, it having been shown “that the detention of
G.R. Lawless […] was not ‘effected for the purpose of bringing him before the competent
legal authority’ and that during his detention he was not in fact brought before a judge for
trial ‘within a reasonable time’; […] it follows that his detention […] was contrary to the
provisions of Article 5, paras. 1(c) and 3”17. Taking on a grammatical interpretation of
these provisions was, in the Court’s estimation, in keeping with the purpose of the
Convention: to “protect the freedom and security of the individual against arbitrary
detention or arrest”. To interpret the provisions in any other light would mean that:
anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an
unlimited period on the strength merely of an executive decision without its being possible to regard his
arrest or detention as a breach of the Convention; whereas such an assumption, with all its implications
of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the
Convention18.
Despite the finding by the Court that there was no legal foundation for the detention of
Mr. Lawless under Article 5, the Republic of Ireland was found not to be in breach of the
European Convention, as it had derogated from its provisions through its invocation of
Article 15; and the measures were found to have been strictly required by the exigency of
the situation19.
17 Id., para. 15.
18 Id., para. 14.
19 The Court noted that the substance of the 20 July 1957 letter of the Irish Minister for External Affairs to
the Secretary-General of the Council of Europe indicated the following derogation:
“... Insofar as the bringing into operation of Part II of the [Offences against the State] Act, which confers special
powers of arrest and detention [in relation to “unlawful organization” and “activities prejudicial to the preservation
of public peace and order or to the security of the State”], may involve any derogation from the obligations
imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, I have the honour to
request you to be good enough to regard this letter as informing you accordingly, in compliance with Article 15 (3)
(art. 15-3) of the Convention.”. See id., para. 8 of the Facts.
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11 In Ireland v. United Kingdom – a rare instance of an inter-State claim – Ireland sought
to have the United Kingdom respect its obligations under the European Convention in
Northern Ireland. While the European Court would find the United Kingdom in breach
of Article 3 (Prohibition of torture); it also found – though granting the United Kingdom
a ‘wide margin of appreciation’ – that the derogation which had taken place with respect
to Articles 5 and 6 was compatible with the obligations of Article 15. The case revolved
around “a series of extrajudicial powers of arrest, detention, and internment” during the
period between 1971 and 1975, which took place as a result of the ‘Troubles’ among the
two communities – one ‘Loyalist’ (loyal to the British Crown) the other ‘Republican’ (in
favour of an Irish republic north and south of the border) – “divided by deep and long-
standing antagonisms”20. During this period, in an attempt to stem Republican violence,
the United Kingdom authorized a number of special powers which, though modified over
time, allowed for the extra-judicial deprivation of liberty21.
12 The European Court noted that these extra-judicial powers fell into “three basic
categories”: initial arrest for interrogation; detention for further interrogation; and
preventive detention or internment. While these three types of powers were modified
overtime, those enforced between 1971 and British direct rule in 1972 are indicative.
With regard to the first power, a police officer could arrest without warrant (it was not
conditional on suspicion) and detain an individual for up to forty-eight hours for the sole
purpose of interrogating a person with an option to arrest “for the preservation of the
peace and maintenance of order”. The second of these powers allowed the police, British
Army or those authorized by the Minister of Home Affairs, to arrest without warrant a
person on suspicion of also acting in a manner prejudicial to the preservation of the peace
of maintenance of order. The arrests were open-ended but in practice were limited to
seventy-two hours. They could take place after an ‘initial arrest for interrogation’ and
generally speaking provided limited access to the courts. Under these same powers,
individuals held could be detained in prison indefinitely, though “in practice, generally,
[this was limited ] to twenty-eight days”22. The final extra-judicial power was vested in
the Minister of Home Affairs who, on the basis of preserving the peace, could intern an
individual without charge for a unlimited time, which was reviewed by a committee
which could recommend, but not order release. “The individual had no right in law to
appear” before this committee, the European Court noted, “to test the grounds for
internment, to examine witnesses against him or to call his own witnesses”23.
13 Under the original system of the European Convention – before the coming into force
of Protocol 11 in 1988 – a ‘European Commission on Human Rights’ shared the
20 Ireland v United Kingdom, op. cit. n. 2, paras. 11 and 15.
21 The United Kingdom provided the Secretary-General of the Council of Europe with six notices of
derogation over the period of 1957 to 1975 in which it “drew attention to the relevant legislation and
modifications” of the ‘special – extra-judicial – powers’ it had invoked. See id., para. 79 and paras. 80-84
of the Facts. Note that in the case brought by Ireland however, only dealt with derogations in force
between 1971 and 1975.
22 Id., para. 83.
23 Id., para. 84. Note that the three categories of powers were modified when the United Kingdom
invoked direct rule in 1972 and again in 1973 by way of the Special Powers Act.
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Convention’s supervisory role with the Court, considering issues first, and providing
reports to the Court when the latter seized a matter. With respect to the case at hand, the
Commission was of the opinion that the British special powers did not comply with
Article 5 (1),(2),(3), and (4). With respect to Article 5(1) the Court made plain that the
detention ‘for the preservation of the peace and maintenance of order’ was ultra vires;
and, generally speaking, those that were detained on ‘suspicion’ could only be held
legally if it was in line with Article 5(3): to bring them “before a competent legal
authority”. “Yet this condition” the Court noted: “was not fulfilled”24. The Court went
on to note that the provisions of Article 5(2 through 4) “place the Contracting States
under an obligation to provide several guarantees in cases where someone is deprived of
his liberty”. Yet the Court would show that each of these provisions was breached.
Article 5(2) mandates that those arrested be informed promptly of the reasons for their
arrest and charges against them. The Court noted that in “point of fact” individuals “were
not normally informed why they were being arrested”25. As to Article 5(3), which
requires that those arrested to be brought promptly before a judge and to be entitled to a
fair trial within a reasonable time; the Court stated that “the impugned measure were not
effected for [this] purpose”. Finally, as regards Article 5(4) and the right of habeas
corpus, the Court determined that “judicial review of the lawfulness of the measure in
issue was […] not sufficiently wide in scope, taking into account the purpose and object
of Article 5 para. 4”26. Thus the Court was in agreement with the assessment of the
European Commission on Human Rights.
14 In both Lawless and Ireland v. United Kingdom the European Court found not only
potential violations to Article 5, but also, in a general manner, to the provisions of Article
6 of the European Convention related to fair trial. In Lawless, although the Court noted
the rules of Article 6 “are irrelevant to the present proceedings”, it determined
unanimously that “Articles 5 and 6 of the Convention provide no legal foundation for the
detention without trial of G.R. Lawless”27. The resolution to the contradiction in these
statements is to be found, however, in the finding of Ireland v. United Kingdom, where
the Court noted:
assuming Article 6 to be material, the derogations from the guarantees of a judicial nature afforded by
Article 5 perforce involved derogating from those afforded by Article 6. The Court has already held
that the derogations from Article 5 met the requirements of Article 15; in the circumstances of the case,
it arrives at the same conclusion as regards the derogations from Article 6.
In both cases, therefore the Court found that administrative detention without judicial
supervision was not in conformity with an individuals right to liberty but could also be at
odds with their right to a fair trial; though both potential violations were saved by the
derogation under Article 15.
15 In the final case related to events in Northern Ireland where Article 15 was invoked
successfully, the Court considered that the United Kingdom’s derogation had satisfied the
requirements of the European Convention and thus the ‘applicant cannot validly
24 Id., para. 196.
25 Id., see paras. 197 and 198.
26 Id., see paras. 199 and 200.
27 Lawless v Ireland, op. cit., n. 6, paras. 12 and the dispositif.
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complain of a violation of Article 5(3)’. The 1993 Brannigan and McBride v. United
Kingdom case was brought to the Court as a result of Brogan, wherein the United
Kingdom, having withdrawn its derogation, was found in breach of Article 5(3). In
Brannigan and McBride, the applicants had been arrested under the Prevention of
Terrorism Act 1984 and detained for six days and four days respectively without being
brought before a court of law. The British Government, having re-introduced its notice
of derogation so as to avoid a breach of Article 5(3), conceded that, as “both of the
applicants were detained for longer periods than the shortest period found by the Court to
be in breach of [Article 5(3) …] in the case of Brogan and Others, [...] the requirement of
promptness had not been respected in the present cases”. However, as the Court noted,
“the Government further submitted that the failure to observe these requirements of
Article 5 had been met by their derogation of 23 December 1988 under Article 15 of the
Convention”28. The Court, for its part found that, indeed, a breach of Article 5(3) had
transpired, but also accepted that the derogation from that provision was within the ambit
of Article 15 of the European Convention.
16 Where Turkey is concerned, its invocation of Article 15 has not been as successful as
the United Kingdom. In essence, what has been witnessed in the evolving jurisprudence
of the European Court in a number of Turkish cases is the establishment of limits on the
derogation afforded to State Parties. Starting with the 1997 Aksoy v. Turkey case, the
Court established the parameters on extra-judicial detention during states of emergency
so as to conform to the exigencies of the situation. Between 1985 and when Aksoy was
heard, the conflict between Turkish security forces and “sections of the Kurdish
population in favour of Kurdish autonomy” had claimed more than seven thousand lives.
In August 1990, Turkey informed the Council of Europe that: “The Republic of Turkey is
exposed to threats to its national security in South East Anatolia which have steadily
grown in scope and intensity over the last months so as to amount to a threat to the life of
the nation in the meaning of Article 15 of the Convention”, and thus made a notification
that it was derogating from, inter alia, Articles 5 and 6 of the European Convention29.
28 Brannigan and McBride v. United Kingdom, op. cit. n. 3, para. 37 and 38. By way of a letter addressed
to the Secretary General of the Council of Europe dated 23 December 1988, the United Kingdom availed
itself of the right to derogate. That letter reads in part:
“... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed
Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to
bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced.
He informed Parliament that the Government were examining the matter with a view to responding to the
judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the
Government's wish, if it could be achieved, to find a judicial process under which extended detention might be
reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection
and consultation was necessary before the Government could bring forward a firm and final view. Since the
judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to
exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above
enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to
the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations
properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that
the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government
have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue
to do so until further notice ...”. See para. 31.
29 Aksoy, op.cit., n. 4, paras. 8 and 31.
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During the period of this state of emergency, Mr. Zeki Aksoy was arrested as a suspected
member of the Worker’s Party of Kurdistan (PKK) and detained for fourteen days
without judicial supervision. During this period, Mr. Aksoy was subject to ill-treatment
of such a nature that the Court, for the first time, determined that ‘torture’ had taken
place.
17 While the Court agreed with Turkey that there was, in fact, a public emergency
which threatened the life of the nation, it considered that the measure taken, with regard
to unsupervised detention, could not be justified as being strictly required by the exigency
of the situation. The Court stressed “the importance of Article 5 in the Convention
system”:
it enshrines a fundamental human right, namely the protection of the individual against arbitrary
interference by the State with his or her right to liberty. Judicial control of interferences by the
executive with the individual’s right to liberty is an essential feature of the guarantee embodied in
Article 5 para. 3, which is intended to minimise the risk of arbitrariness and to ensure the rule of law.
Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill-
treatment, which, […] is prohibited by the Convention in absolute and non-derogable terms 30.
And while it acknowledged “that the investigation of terrorist offences undoubtedly
presented the authorities with special problems”, it went on to say: “it cannot accept that
it is necessary to hold a suspect for fourteen days without judicial supervision. The
European Court continued: “This period is exceptionally long, and left the applicant
vulnerable not only to arbitrary interference with his right to liberty but also to torture”31.
Making reference to Brannigan and McBride and noting that safeguards in Northern
Ireland had protected against “arbitrary behaviour and incommunicado detention”, the
Court determined that:
In contrast, however, the Court considers that in this case insufficient safeguards were available to the
applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer,
doctor, relative or friend and the absence of any realistic possibility of being brought before a court to
test the legality of the detention meant that he was left completely at the mercy of those holding him.
As such, the European Court found such measures did not meet the requirements of
Article 15, that is to say they were not strictly required.
18 While in Demir and Others v. Turkey and Dikme v. Turkey, the Court considered
detention of sixteen to twenty-free days without judicial supervision to be ultra vires
Article 15 – that is, longer than the fourteen day period of detention in Aksoy – in Nuray
Sen v. Turkey, it was called upon to consider the detention of eleven days without
appearance before a court32. The Court noted in Sen that the fact that issues of terrorism
were at play did not give police “carte blanche under Article 5 to arrest suspects for
questioning, free from effective control by the domestic courts and, ultimately, by the
Convention supervisory institutions”. Noting that Turkey had failed to differentiate this
case from Aksoy or Demir, the Court determined that it was “not persuaded to depart
30 Id., para. 76.
31 Id., para. 78.
32 See Demir and Others v. Turkey, (2001) 33 European Human Rights Reports, 43, paras. 49-58.
10

from its conclusions in those two cases”, and thus found that the breach of Article 5 could
not be saved by the provisions of Article 1533.
III. Other Obligations under International Law
19 Although the European Court has been slowly dwindling the number of days which an
individual may be detained without judicial supervision, it has been doing so within the
context of Article 15 and what it considers as being strictly required by the exigencies of
situations in which there exists a state of emergency. The introduction of a thorough
examination of the ‘other obligations under international law’ clause mandates that the
Court distance itself from its previous jurisprudence under Article 15. In essence this
stems from the fact that the judgments of the European Court, regarding derogation under
Article 15, have dealt primarily with issues of judicial guarantees of detained individuals:
that is issues of the right to liberty and security (Article 5) and right to fair trial (Article 6)
which have emerged internationally as rights which can not be derogated from in times of
emergency. It is no understatement to say, therefore, that what should emerge from the
European Court’s evaluation of Article 15 in light of the ‘other obligations under
international law’, is a fundamental rewriting of what is allowed under a state of
emergency within the Council of Europe.
20 Although the European Court of Human Rights has not had the opportunity to
consider the phrase “measures [which] are not inconsistent with its other obligations
under international law” since the rendering of its judgment in Brannigan and McBride
more than fifteen years ago, there has been a marked evolution, in the interim, as regards
such obligations. Where measures would be seen as being inconsistent with ‘other
obligations under international law’ would be in situations where such measures would
violate norms which can not be suspended, even in times of emergencies. Here we are
speaking of ‘non-derogable rights’ such as those enumerated in Article 15(2) of the
European Convention. Article 15(2) establishes that no derogation is to take place from
the right to life (Article 2) “except in respect to deaths resulting from lawful acts of war”;
the prohibition of torture (Article 3); the prohibition of slavery and forced labour (Article
4(1)); and no punishment without law (Article 7). Yet beyond Article 15(2), a number of
non-derogable rights have emerged which will have fundamental implications on the
jurisprudence of the European Court of Human Rights.
21 Before considering the evolution of non-derogable human rights provisions which
have manifest themselves internationally, one should take a moment to consider the
gateway to general international law that Article 15(1) provides. While the European
Convention, at Article 53, establishes safeguards with respect to existing rights; those
safeguards should be considered as being – where international law is concerned –
narrower than those established by Article 15(1). Article 53 reads:
33 Nuray Sen v. Turkey, 17 June 2003, para. 27.
11

Nothing in this Convention shall be construed as limiting or derogating from any of the human rights
and fundamental freedoms which may be ensured under the laws of any High Contracting Party or
under any other agreement to which it is a Party.
The final phrase of this Article 53 speaks not of ‘other obligations under international
law’ as does Article 15(1); but instead of ‘other agreement to which it is a Party’. Thus
while Article 53 safeguards international treaty rights, it is silent on customary
international law. By contrast, the provisions of Article 15(1) by speaking of ‘obligations
under international law’ go beyond the scope of Article 53 and allows for Court
consideration of not only conventional obligations, but those established through custom;
which, as will become apparent, are fundamental to non-derogable rights.
22 The evolution of additional non-derogable rights developing internationally can be
traced to the work of non-governmental bodies which, in 1984, developed non-binding
standards related to derogation during states of emergency. In September of that year, the
International Law Association (ILA), after “6 years of study by a special subcommittee,
and 2 additional years of revisions […] approved by consensus a set of minimum
standards governing the declaration and administration of states of emergency […],
including 16 articles setting out the nonderogable rights and freedoms to which
individuals remain entitled even during states of emergency”34. Of the non-derogable
‘rights’ put forward by the International Law Association in its Paris Minimum Standards
of Human Rights Norms in a State of Emergency, some were already established in law,
for instance, those found in Article 15(2) of the European Convention of Human Rights;
while other proposed rights need not detain us, as this list was reduced when inter-
governmental bodies sought to move beyond lex ferenda to identify non-derogable rights
lex lata35. Worth highlighting however are the standards which the non-governmental
ILA puts forward regarding the right to liberty, wherein it called for the right to
communicate with an attorney “at any time after detention”; the right to have a case
reviewed within 30 days by a “judicial or quasi-judicial body”; and that the remedy of
habeas corpus be available to ensure “the supervisory jurisdiction of a competent court of
law”36. Of further note was the provision regarding fair trial, wherein the International
Law Association called for the “right to be informed promptly and in detail” of charges;
that the “defendant has the right to be presumed innocent until proved guilty according to
law”; and that “no person accused of any offence shall be compelled to be a witness
against himself”37.
34 Richard Lillich, “The Paris Minimum Standards of Human Rights Norms in a State of Emergency”,
American Journal of International Law, Vol. 79, 1985, p. 1072.
35 The Paris Minimum Standards of Human Rights Norms in a State of Emergency set down the following
non-derogable articles:
1) Right to Legal Personality; 2) Freedom from Slavery; 3) Freedom from Discrimination; 4) right to Life; 5)
Right to Liberty; 6) Freedom from Torture; 7) Right to Fair Trial; 8) Freedom of Thought, Conscience and
Religion; 9) Freedom from Imprisonment for Inability to fulfil a contractual obligation; 10) Right of Minorities;
11) Rights of the Family; 12) Right to a Name; 13) Rights of the Child; 14) Right of Nationality; 15) Right to
Participate in Government; and 16) Right to a Remedy.
36 See Article 5(2)(a-c) and (3), The Paris Minimum Standards of Human Rights Norms in a State of
Emergency, id., pp. 1076-1077.
37 Id., Article 7(1), (5), and (9), p.1079.
12

23 Beyond the work of the International Law Association, 1984 also saw the elaboration
of The Siracusa Principles on the Limitations and Derogation of Provisions in the
International Covenant on Civil and Political Rights by a number of international human
rights groups; it also listed a number of non-derogable rights38. Taking a lead from the
1949 Geneva Conventions and their 1977 Additional Protocols, the Siracusa Principles
stress the fact that States have accepted a number of norms regarding penal prosecution
which hold in all circumstances; such as the presumption of innocence and the lack of
obligation on the accused to testify in their own defence or to confess guilt39. Further, the
Principles sought to emphasize that while provisions regarding arbitrary arrest and
detention as well as the right to a fair trial “may be subject to legitimate limitations if
strictly required by the exigencies of an emergency situation, the denial of certain rights
fundamental to human dignity can never be strictly necessary in any conceivable
emergency”. The justification for this pronouncement was that fundamental rights such
as the prohibition against indefinite detention; incommunicado detention; the need for
judicial review of detention; presumption of innocence, etc. were necessary so as to
ensure respect for already established non-derogable rights and allow for an effective
remedy40.
24 Moving from non-governmental to inter-governmental activities, the work carried out
within the United Nations system in identifying emerging norms has been of relevance to
determining the evolution of non-derogable rights41. Over a twelve-year period starting
in 1985, the United Nations Sub-Commission on the Promotion and Protection of Human
Rights undertook studies regarding states of emergency under the stewardship of its
Special Rapporteur, Leandro Despouy42. In his final Report, Mr. Despouy noted that “in
recent years the idea has become established that the state of emergency is an institution
of the rule of law and that, as such, it must satisfy certain conditions and requirements
ensuring legal guarantees to safeguard human rights in situations of crisis”43. Among
38 For the The Siracusa Principles on the Limitations and Derogation of Provisions in the International
Covenant on Civil and Political Rights see UN Economic and Social Council, UN Sub-Commission on
Prevention of Discrimination an Protection of Minorities, Annexed to UN Doc. E/CN.4/1985/4, 1985.
The Siracusa Principles where adopted by the International Commission of Jurists, the International
Association of Penal Law, the American Association for the International Commission of Jurists, the Urban
Morgan Institute for Human Rights, and the International Institute of Higher Studies in Criminal Sciences.
39 Id., see paras. 67 (d) and (f).
40 Id., see paras. 70, and 70(b-f); note: emphasis added.
41 Of note, though not applicable, are two advisory opinions rendered by the Inter-American Court of
Human Rights: Habeas Corpus in Emergency Situations, Advisory Opinion OC-8/87, 30 January 1987;
and Judicial Guarantees in States of Emergency, Advisory Opinion OC-9/87, 6 October 1987. These
advisory opinions do not further the customary law of non-derogable rights as they provide an
interpretation to specific provisions of the non-derogable clause of a treaty: the American Convention (i.e.:
Article 27(2) which reads: The foregoing provision does not authorize any suspension of the following
articles […] or of the judicial guarantees essential for the protection of such rights”). Emphasis added.
42 To avoid the charge of anachronistic writing note that the United Nations Sub-Commission on the
Promotion and Protection of Human Rights is a rather recent title for this body, it having been known as the
United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities from
1947 until its name was changed in 1999.
43 Commission on Human Rights, Administration of Justice: Questions of Human Rights of Detainees:
Questions of Human Rights and States of Emergency, Tenth Annual Report and List of States which, since 1
January 1985, have proclaimed, extended or terminated a state of emergency, presented by Mr. Leandro
13

such safeguards, he notes that “the case law of monitoring bodies has lengthened the list
of those rights whose exercise may not be suspended, by conferring non-derogable status
on other rights that are not explicitly specified in the international legal instruments
themselves”44. These additional non-derogable rights – that is rights which are not
expressly noted in the either the ICCPR or the ECHR – that Mr. Despouy considers are
ancillary rights which, although originally meant to ensure the protection of established
non-derogable rights, have become non-derogable in their own right. Mr. Despouy’s
1997 Report indicated that a number of judicial guarantees, such as habeas corpus, but
also the right to fair trial, and the right to liberty, have indeed become non-derogable.
25 In concluding his last Report, Mr. Despouy made a number of recommendations, the
most noteworthy being one made to the Human Rights Committee that it should draft “a
new general comment on article 4 [re: the derogation provision of the ICCPR] covering
the developments which have occurred, norms and principles, monitoring criteria and
extension resulting from precedents of non-derogable rights, in particular habeas
corpus”45. For its part, the Human Rights Committee – the supervisory body of the
ICCPR – acted upon this recommendation in July 2001. As part of its mandate to
monitor State compliance with the International Covenant, the Human Rights Committee
receives petitions from States or individuals (called ‘communications’) regarding non-
fulfilment of a State’s Covenant obligations; beyond this, the Committee is also
mandated to prepare reports and ‘such general comments as it may consider
appropriate’46. On this basis, the Committee has adopted dozens of ‘General Comments’
which have given flesh to the various provisions of the Covenant so as to assist States in
fulfilling their obligations. It has been said that such General Comments appear to fall
somewhere between ‘judicial decisions and the teachings of the most highly qualified
publicists’ in their juridical value as a subsidiary means of determining international
law47. While this is quite true, the value of such General Comments developed by the
Human Right Committee is to be found in the fact that they emanate from an
authoritative body empowered by the States Party to monitor compliance of the
Covenant. Before going on to consider the additional non-derogable rights as described
by the UN Human Rights Committee, it should be emphasized that because of the
gateway established by Article 15(1) of the European Convention, much of what will be
discussed with respect to the analogous provision of the ICCPR – Article 4 – should be
considered as applying to Article 15 of the European Convention mutatis mutandis.
26 On 24 July 2001, the United Nations Human Rights Committee adopted General
Comment Number 29 entitled ‘Derogations from Provisions of the Covenant during a
State of Emergency’ which sets out a number of recently emerged non-derogable rights.
Despouy, Special Rapporteur appointed pursuant to Economic and Social Council Resolution 1985/37, UN
Doc. E/CN.4/Sub.2/1997/19, 23 June 1997, para. 8.
44 Id., para. 9. Note that when speaking of monitoring bodies, it is clear from his report, that Mr. Despouy
is speaking not only of UN treaty monitoring bodies, but also of international judicial organs.
45 Id., para. 187.
46 See Article 40 of the International Covenant on Civil and Political Rights. For the possibility of State to
State petitions see Article 41; and for individual petitions see Article 1 of the 1966 Optional Protocol to the
International Covenant on Civil and Political Rights.
47 See Jean Allain, “Internalising the Requirements of International Law: Perpetual States of Emergency
in Egypt and Syria”, International Law in the Middle East: Closer to Power than Justice, 2005 p. 201.
14

As the Human Rights Committee noted in this General Comment: “The fact that some of
the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being
subject to derogation does not mean that other articles in the Covenant may be subjected
to derogations at will, even where a threat to the life of the nation exists”48. General
Comment 29 moves to provide illustrative examples of non-derogable rights beyond
those mentioned in Article 4(2) of the ICCPR. In doing so, the Human Rights Committee
invokes the International Covenants requirements, found at Article 4(1), to also take into
consideration ‘other obligations under international law’. The Committee makes plan
that the ICCPR (like the ECHR) looks beyond its own provisions allowing derogation, by
saying that these “cannot be read as justification for derogation from the Covenant if such
derogation would entail a breach of the State’s other international obligation, whether
based on treaty or general international law”49.
27 The Human Rights Committee then points to two types of international obligations
which must be taken into consideration when taking measures during states of
emergency: “States parties may in no circumstance invoke article 4 of the Covenant as
justification for acting in violation of humanitarian law or peremptory norms of
international law”50. Considering these two items in turn, the relevance of humanitarian
law to states of emergency would obviously come into play if a State was involved in an
international conflict wherein the provisions of humanitarian law would become
applicable. Likewise; the provisions of Common Article 3 of the 1949 Geneva
Conventions would apply in a state of emergency which was precipitated by an “armed
conflict not of a international character”, that is to say a civil war. As to peremptory or
jus cogens norms, such norms are, by reference to provisions of the Vienna Convention
on the Law of Treaties, those which are “accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted”51.
Such norms are of a higher order of law wherein there can be no justification for their
breach. To use the language of the international law of State responsibility, while
generally speaking a State which violates a provision of international law may invoke a
‘circumstance which preclude wrongfulness’ such as force majeur or consent of the
wronged party; no justification is allowed for the transgression of a jus cogens norm,
these are violations ipso jure52. A number of these peremptory norms, wherein no
justification could be proffered, even in times of emergency, have manifest themselves
internationally, and will now be considered
48 Human Rights Committee, General Comment Number 29: States of Emergency (article 4), UN. Doc.
CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 6. Note that General Comment 29 replaces General
Comment 5 of 31 July 1981. For the provisions of Article 4(2) of the ICCPR see supra. n. 12.
49 Id., para. 9.
50 Id., para. 11.
51 See Articles 53 and 64. For consideration of peremptory norms in a different context see: Jean Allain,
“The Jus cogens Nature of Non-Refoulement”, International Journal of Refugee Law, Vol. 13, 2001, pp.
533-558.
52 For a consideration of the regime of State responsibility see James Crawford, The International Law
Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, 2002.
In large part, such peremptory norms have evolved not on the basis of treaty law, but their recognition
as being jus cogens has been manifest by state practice backed by opinio juris, in other words: through
international customary law; thus highlighting the importance of the wording ‘other obligations under
international law’ as opposed to the wording of Article 53 of the ECHR, as noted earlier.
15

28 It is now time to turn to the illustrative examples provided in General Comment 29 of
provisions which, in the Human Rights Committee’s opinion, “cannot be made subject to
lawful derogation”53. The Committee notes the following non-derogable rights: a) “All
persons deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person” (Article 10 of the ICCPR); b) “The prohibitions
against taking of hostages, abductions or unacknowledged detention”; c) protection of
specific minority rights such as prohibition against genocide; d) the deportation or
forcible transfer of populations which would constitute a crime against humanity; and e)
the engaging in propaganda for war or advocacy of “national, racial or religious hatred
that would constitute incitement to discrimination, hostility or violence”54. Beyond these
illustrative examples, the Human Right Committee notes that Article 2(3) (Article 2(3)(a)
is word-for-word Article 13 of the ECHR), regarding the right to a remedy, “is not
mentioned in the list of non-derogable provisions […] but it constitutes a treaty
obligation inherent in the Covenant as a whole”. As such, while States may take
measures strictly required by the exigencies of the situation, they must comply with this
“fundamental obligation” by “providing a remedy that is effective”55. The Committee
further considered that it is inherent that the rights explicitly recognized as being non-
derogable “must be secured by procedural guarantees, including judicial guarantees. The
provisions of the Covenant relating to procedural safeguards may never be made subject
to measures that would circumvent the protection of non-derogable rights. Article 4 may
not be resorted to in a way that would result in derogation from non-derogable rights”56.
The Human Rights Committee concludes its consideration of non-derogable rights by
saying the following:
Safeguards related to derogation […] are based on the principles of legality and the rule of law inherent
in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed
under international humanitarian law during armed conflict, the Committee finds no justification for
derogation from these guarantees during other emergency situations. The Committee is of the opinion
that the principles of legality and the rule of law require that fundamental requirements of fair trial must
be respected during a state of emergency. Only a court of law may try and convict a person for a
criminal offence. The presumption of innocence must be respected. In order to protect non-derogable
rights, the right to take proceedings before a court to enable the court to decide without delay on the
lawfulness of detention, must not be diminished by a State party’s decision to derogate from the
Covenant57.
29 In developing General Comment 29, the Human Rights Committee has utilized the
provisions of Article 4(1) of the International Covenant to canvas ‘other obligations of
international law’ to seek to determine what provisions have attained the status of a non-
derogable right. As a result, a number of limits have been placed upon States Party to the
ICCPR when seeking to invoke a state of emergency, as measures taken must be
consistent with these extra-Covenant obligations. Just as the provisions of Article 4(1) of
the Covenant open a gateway to ‘other obligations of international law’; so too does
Article 15(1) of the European Convention allow for consideration of the ICCPR (and as a
53 General Comment Number 29, op. cit., n. 48, para. 13.
54 See id., para. 13.
55 Id., para. 14.
56 Id., para. 15.
57 Id., para. 16.
16

derivative, the work of the Human Rights Committee); but Article 15(1) also opens the
possibility of looking beyond the ICCPR and consider, proprio motto, those elements of
international law which are noted within General Comment 29: such as humanitarian law
and peremptory norms of international law.
30 The manner in which the non-derogable rights as laid out in General Comment 29
touch on the established derogation jurisprudence of the European Convention is thus
instructive. For instance, the notion of “unacknowledged detention” which the Human
Rights Committee says is prohibited in an absolute manner “even in times of emergency
is justified by [its] status as a norm of general international law; can be assimilated to
Article 5(1) of the European Convention which establishes that everyone has a right of
liberty and security of the person, while making plain that deprivation of liberty can only
take place in specific cases, which it enumerates58. Further, Article 5(3) and (4) related to
judicial supervision would also come into play so as to ensure that an unacknowledged
detention did not take place. Article 5(3), it will be recalled, mandates that those arrested
or detained be brought before a judge promptly and be entitled to a fair trial; while
Article 5(4), for its part, reads:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the
detention is not lawful.
31 In essence, the provisions just mentioned of the European Convention are related to
judicial guarantees which are at the heart of the General Comment 29. The Human
Rights Committee is explicit about the requirements which are found nearly word-for-
word in Article 5(4) of the European Convention regarding the entitlement of those
detained to take proceedings before a court to enable a judicial body to decide without
delay on the lawfulness of a detention. Likewise the Human Rights Committee speaks of
the fundamental requirements of the right to a fair trial as being non-derogable; which
therefore touch on the provisions of Article 6 of the European Convention generally, and
specifically those of Article 6(1) and (2). Thus, the Human Rights Committee notes that
to ensure that the right of a fair trial is respected only a “court of law may convict a
person for a criminal offence”, which would be in line with the provisions of Article 6(1)
58 Article 5(1) reads in full:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to
secure the fulfilment of any obligation prescribed by law;
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done so;
d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of
a person against whom action is being taken with a view to deportation or extradition.
17

which speak of the determination of “any criminal charge against him, everyone is
entitled to a fair and public hearing […] by an independent and impartial tribunal
established by law”59. Finally, the Human Rights Committee considers that the
presumption of innocence is non-derogable and thus mirrors the provision of Article 6(2)
which state that “[e]veryone charged with a criminal offence shall be presumed innocent
until proved guilty according to law”.
IV. Conclusion
32 While the drafters of the European Convention set up a system of dichotomous rights
as between derogable and non-derogable; they also moved to establish two different
categories of derogable rights. The Convention establishes derogable rights that have
internal limitation clauses, which States Party often invoked in circumstances such as
those found to be in ‘the interests of national security or public safety’. By contrast, the
provisions of Articles 5 and 6 do not have the same means of accommodation; instead in
these areas of the administration of justice, the State is not allowed to balance its
obligations, but must instead either maintain its ordinary application of the right or
invoke a state of emergency and derogating from it. As a result, while States have been
able to limit – without reference to derogation or Article 15 – for example: freedom of
assembly and expression, as might be ‘necessary in a democratic society in the interests
of national security’; no such accommodation is allowed under Articles 5 and 6. These
articles mandate that the ordinary laws apply or Article 15 be invoked so that derogation
might take place: no middle-ground is envisioned by the Convention. While other
derogable rights within the European Convention also lack such internal limitation
clauses (for example: Article 12: right to marry), over half a century of case-law shows
that the exclusive target of derogation under Article 15 of the Convention has been
Articles 5 and 6. However, as much of the content of the right to liberty and fair trial has
gained the status of non-derogablilty, fundamental questions about the usefulness of
Article 15 must be raised. If the only articles of the Convention which States, in the past,
have sought to limit by means of Article 15 can no longer be effectively derogated from,
what is the value of retaining Article 15 as a provision of the Convention?
33 In the fifteen years since the Court considered the phrase ‘other obligations under
international law’ of Article 15(1), there has been a marked evolution in non-derogable
rights beyond the Council of Europe. Internationally, States have gradually accepted that
there needs to be judicial guarantees over liberty and fair trial, even in times of
emergency, and that no margin of appreciation – no matter how widely construed –
would allow for the suspension of rights which may place in jeopardy jus cogens
59 Article 6(1) of the European Convention reads in full:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.
18

imperatives prohibiting torture or protecting of the right to life. The work of the United
Nations Human Rights Commission, manifest in General Comment 29, is indicative of a
number of rights which have evolved through opinio juris and State practice to become
non-derogable. The gateway of the provision of Article 15(1) of the Convention
mandates that a State Party’s derogations be consistent with other obligations under
international law. It thus requires the European Court to look beyond its own
jurisprudence to determine whether, for instance, obligations under humanitarian law or
peremptory norms of general international law clash with a State’s derogation in times of
emergency under the European Convention. In noted cases, these provisions have
become non-derogable and touch essentially on the case-law which the Court has sought
to lay down under Article 15. The fact that the European Court has busied itself
considering derogations from fair trial provisions and those of the right to liberty means
that this jurisprudence – in light of ‘other obligations under international law’ – looks
very much outdated.
19