Derogation from the European Convention of Human Rights in light
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Added on 2021-07-08
Derogation from the European Convention of Human Rights in light
Added on 2021-07-08
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Derogation from the European Convention of Human Rights in light of‘Other Obligations under International Law’Jean Allain*1It has been more than fifteen years since the European Court of Human Rights hasconsidered the meaning of the clause ‘other obligations under international law’ found inArticle 15; which allows a State Party to “take measures derogating from its obligationsunder this Convention to the extent strictly required by the exigencies of the situation,provided that such measures are not inconsistent with its other obligations underinternational law”. The relevance of this phrase should be considered as a number ofinternational non-derogable rights have emerged in the last decade that place in questionthe 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 hasdeveloped in relation to states of emergency. Consideration is then given to the rights ofthe European Convention from which States, having invoked Article 15, have sought toderogate. Finally, the case-law of the European Court is examined in light of ‘otherobligations under international law’, to demonstrate that not only does the case-law of theEuropean Court no longer reflect established law in the domain of non-derogable rights,but brings into question the very essence of Article 15. 2This is so as States have invoked Article 15 solely to derogate from the provisions ofArticle 5 (right to liberty and security) and Article 6 (right to a fair trial). It is specificallyin these areas that the international community, over the last fifty years, has moved toensure that jus cogens norms of the right to life and the prohibition against torture areguaranteed, even in times of emergency, by requiring that the fundamental precepts of theright to liberty and fair trial be respected at all times. As such, the internationalcommunity has progressively moved toward ultimately determining that requirementsmanifest in Articles 5 and 6 have assumed the nature of a non-derogable right and thusare 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 theConvention, 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 statusof non-derogable rights means that the case-law of the European Court of Human Rightsrevolving around Article 15 has been rid of much of its content and with it most of theadvantages which States Party might seek in invoke a state of emergency under theEuropean Convention of Human Rights.I. Derogation under Article 15 of the European Convention3There is, built into human rights instruments such as the 1951 European Conventionfor the Protection of Human Rights and Fundamental Freedoms, “techniques ofaccommodation”, which Rosalyn Higgins noted, allows States to determine the extent to*Senior Lecturer, School of Law, Queen’s University of Belfast.1
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, whileestablishing a right, includes provisions which then can be utilized to circumscribe thatright. An example of such a limitation clause is to be found in Article 11 of the EuropeanConvention which establishes that “Everyone has the right to freedom of peacefulassembly”, while allowing for restrictions where they “are prescribed by law andnecessary in a democratic society in the interests of national security or public safety, forthe prevention of disorder or crime, for the protection of health or morals or for theprotection of the rights and freedoms of others”. A further means of accommodationwithin the European Convention is to be found at Article 15, which allows States to gobeyond simply limiting rights, to derogating from them in times of emergency. Theparadoxical nature of such accommodations is that they allow States the possibility tosuspend certain rights in times of emergency as a means of seeking to return to a situationof normalcy in an expeditious manner; and thus the restoration of the full measure of theConvention. For instance, say a natural disaster occurred – an earthquake –; a Stateseeing 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 beyondsimply limiting such a right (ie; “in the interests of [...] public safety, for the preventionof disorder or crime”) by completely suspend the right by means of a curfew and othermeasures which would seek to ensure a timely return to the status quo ante. 4Article 15 of the European Convention while allowing States to derogate from theirhuman rights obligations in times of emergency also establishes a supervisor role for theEuropean Court of Human Rights. Article 15 reads:1. In time of war or other public emergency threatening the life of the nation any High ContractingParty may take measures derogating from its obligations under this Convention to the extent strictlyrequired by the exigencies of the situation, provided that such measures are not inconsistent with itsother obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or fromArticles 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 SecretaryGeneral of the Council of Europe fully informed of the measures which it has taken and the reasonstherefor. It shall also inform the Secretary General of the Council of Europe when such measures haveceased 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. TheUnited Kingdom case wherein it was determined that it “falls in the first place to eachContracting State, with its responsibility for ‘the life of (its) nation’, to determine whetherthat life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go inattempting 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 [...] isempowered to rule on whether the States have gone beyond the “extent strictly required1Rosalyn Higgins, ‘Derogation under Human Rights Treaties’, The British Yearbook of InternationalLaw: 1976–1977, 1978, p. 281.2
by the exigencies” of the crisis”2. In Brannigan and McBride v. United Kingdom, theCourt elaborated on its supervisory powers, noting that “in exercising its supervision theCourt must give appropriate weight to such relevant factors as the nature of the rightsaffected by the derogation, the circumstances leading to, and the duration of, theemergency situation”3.5On the basis of Article 15, States have both procedural and substantive obligations.As to procedural obligations, States must, under Article 15(3) notify the SecretaryGeneral of the Council of Europe of the imposition, justification of measures taken, andcessation, of a state of emergency. It is from these procedural requirements, in part, thatthe Court will draw information so as to determine whether a State has indeed met itssubstantive obligations under Article 15(1). As was noted in the 1996 Aksoy v. Turkeycase, the Court is “competent to examine this issue [procedural requirements of Article15(3)] of its own motion, and in particular whether the Turkish notice of derogationcontained sufficient information about the measure in question [...] to satisfy therequirements of Article 15 para. 3”4. The relevance of these procedural obligations underArticle 15(3) was made evident in subsequent cases brought against Turkey, wherein theCourt pointed out that the legislative decrees which allowed for derogation – but also thenotifications 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 theterritorial scope of the derogation concerned, it were to extend its effects to a part of Turkish territorynot explicitly named in the notice of derogation. It follows that the derogation in question isinapplicable ratione loci to the facts of the case5.6With respect to substantive obligations, the Court emphasised in Lawless v. Irelandthe exceptional nature of the right to derogate from the Convention, and that it wasempowered to determine whether the obligations set down in Article 15 were met. TheCourt stated:the Government of any High Contracting Party has the right, in case of war or public emergencythreatening 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 thesituation and also that they do not conflict with other obligations under international law; whereas it isfor the Court to determine whether the conditions laid down in Article 15 for the exercise of theexceptional right of derogation have been fulfilled in the present case6.The Court then moved to consider whether there did, in fact, exist a ‘public emergencythreatening the life of the nation’ in line with Article 15(1), by establishing first what itcalled the “natural and customary meaning of the words”. The Court considered this2Ireland v. The United Kingdom, (1978) 2 European Human Rights Reports25, para. 207. Note thatunless otherwise indicated, the paragraphs citied in reference to early cases of the European Courtcorrespond to those found under the Court’s heading “As to the Law”.3Brannigan and McBride v. United Kingdom, (1993) 17 European Human Rights Reports539, para. 43.4Aksoy v. Turkey, (2002) 34 European Human Rights Reports 57, para. 86. 5Sakik 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. 69.6Lawless v Ireland, (1979-80) 1 European Human Rights Reports 15, para. 22.3
phrase to be “sufficiently clear”; as it refers to “an exceptional situation of crisis oremergency which affects the whole population and constitutes a threat to the organisedlife of the community of which the State is composed”7. 7Having decided that Ireland was justified in declaring a state of emergency, the Courtapplied the second prong of its test which related to the “exercise of the exceptional rightof derogation”; that is: the Court examined whether the measures taken were ‘strictlyrequired by the exigencies of the situation’. In seeking to establish the parameters ofwhat measures would be ‘strictly required by the exigencies of the situation’ the Courtwould later invoke its ‘margin of appreciation’ rule, as it considered that the “limits onthe Court’s powers of review [...] are particularly apparent where Article 15 isconcerned”8. In Ireland v United Kingdom, the Court noted that the primaryresponsibility for determining whether the life of the State was threatened and “how far itis necessary to go in attempting to overcome the emergency” rests with the State Party. Itthen went on to say:By reason of their direct and continuous contact with the pressing needs of the moment, the nationalauthorities are in principle in a better position than the international judge to decide both on thepresence of such an emergency and on the nature and scope of derogations necessary to avert it. In thismatter Article 15 para. 1 leaves those authorities a wide margin of appreciation.9The European Court then considered whether, in the case at hand, the measures werestrictly required, while providing the United Kingdom a margin of appreciation to makesuch a determination. Having evaluated the actions of the United Kingdom, the Courtconcluded that these could “reasonably have been considered strictly required for theprotection 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”. Asa result, “the Court accepts that the limits of the margin of appreciation left to theContracting States by Article 15 para. 1 were not overstepped by the United Kingdom”10. 8A final substantive obligation under Article 15(1) of the European Convention is thatany measures which States take derogating from their obligations, must be consistentwith ‘other obligations under international law’. The European Court of Human Rightshas developed limited jurisprudence regarding this clause; which, as Professor J.GMerrills notes, “may be regarded as a way of harmonizing the legal position of theConvention with the situation of general international law”11. In Lawless the Courtdetermined 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 undertakenby the Contracting Parties [...] to determine proprio motu whether this condition hasbeen fulfilled in the present case”. Yet, having done so, the Court noted that: 7Id., para. 28.8Ireland v United Kingdom, op. cit., n. 2., para. 207.9Id., para. 207.10Id., paras. 213 and 214.11J.G Merrills, The Development of International Law by the European Court of Human Rights, 1993, p. 207.4
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