Law Essay Article 15 of the ECHR
Added on 2020-04-13
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ESSAY 2
The ECHR, i.e., the European Convention of Human Rights1 is a treaty of the European
Union which aims to protect the human rights in Europe and the fundamental freedoms in its
member states. It is not only a legal document but is a political one as well, where the ECtHR,
i.e., European Court of Human Rights has to constantly walk the tight rope between respecting
the sovereignty of the contracting member state and the vindication of human rights. This tight
delicate rope balancing task becomes more sensitive where a situation takes place which is of
exceptional and imminent danger. Where the question of national security of a state is raised, the
states are required to act in such a manner which can best be classed outside the parameters of
normalcy, for neutralizing the threat, in addition to protecting itself and its citizens. Due to these
reasons2, Article 15 of the ECHR permits the states to derogate from their obligations under the
ECHR where a state of emergency is declared in the nation3. Based on the notice of derogation,
the state gets flexibility and discretion of acting as per the threat, to respond to it, without having
being restrained owing to its duties based on the treaty. Though, when such happens, the human
rights reach their most vulnerable stage as the response of the state has the capacity of majorly
infringing the rights of the individuals, in addition to the state’s liberal democratic order4. In the
following parts, an attempt has been made to show that Article 15 of the ECHR fails in striking a
proper balance between the rights of the states to respond to the national emergencies and in
making certain that the human rights are protected, as the emergencies lead to the human rights
being flouted in an open manner.
1 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as Amended) (ECHR), 1950
2 Christopher Michaelsen, ‘Derogating from International Human Rights Obligations in the ‘War Against
Terrorism’? — A British–Australian Perspective’, (2005) 17 Terrorism and Political Violence, 131
3 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as Amended) (ECHR) Art 15, 1950
4 Alastair Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (3rd edn,
Oxford University Press 2012)
The ECHR, i.e., the European Convention of Human Rights1 is a treaty of the European
Union which aims to protect the human rights in Europe and the fundamental freedoms in its
member states. It is not only a legal document but is a political one as well, where the ECtHR,
i.e., European Court of Human Rights has to constantly walk the tight rope between respecting
the sovereignty of the contracting member state and the vindication of human rights. This tight
delicate rope balancing task becomes more sensitive where a situation takes place which is of
exceptional and imminent danger. Where the question of national security of a state is raised, the
states are required to act in such a manner which can best be classed outside the parameters of
normalcy, for neutralizing the threat, in addition to protecting itself and its citizens. Due to these
reasons2, Article 15 of the ECHR permits the states to derogate from their obligations under the
ECHR where a state of emergency is declared in the nation3. Based on the notice of derogation,
the state gets flexibility and discretion of acting as per the threat, to respond to it, without having
being restrained owing to its duties based on the treaty. Though, when such happens, the human
rights reach their most vulnerable stage as the response of the state has the capacity of majorly
infringing the rights of the individuals, in addition to the state’s liberal democratic order4. In the
following parts, an attempt has been made to show that Article 15 of the ECHR fails in striking a
proper balance between the rights of the states to respond to the national emergencies and in
making certain that the human rights are protected, as the emergencies lead to the human rights
being flouted in an open manner.
1 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as Amended) (ECHR), 1950
2 Christopher Michaelsen, ‘Derogating from International Human Rights Obligations in the ‘War Against
Terrorism’? — A British–Australian Perspective’, (2005) 17 Terrorism and Political Violence, 131
3 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as Amended) (ECHR) Art 15, 1950
4 Alastair Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (3rd edn,
Oxford University Press 2012)
ESSAY 3
Before going forward with the Article 15 of the ECHR, which relates to derogation in the
time of emergency, there is a need to understand the reasons behind derogations. What can a
democratic state do when they are faced with acts of terrorism? Where a challenge, which is a
great threat in lines of terrorism is faced by the states, they tend to adopt a varied ranged of
counter-terrorism measures. This can include entrusting extraordinary powers to executive,
passing special law(s), and even declaring a state of emergency. The majority of regional and
global treaties cover specific provisions where the states are allowed to derogate the obligations
of human rights in special situations. However, this seems as an opposite of the objectives of
these treaties, which have been mainly drafted for protecting the human rights. Though, the
presence of such derogation clauses could be explained in context of history, where reference
needs to be made to the tragedies suffered in the backdrop of the Second World War5. At that
time, the requirement of combating with the totalitarian regimes was deemed as a valid reason
for restricting the sovereignty of the state where the human rights otherwise protected through
the treaties were suspended for securing public order and in interest of the state based on their
own reasons6. Salus populus suprema lex, a Latin expression, shows that amongst the key
objectives of the law is to make certain that the nation as a whole is safe and its welfare is
protected7. This very motivation, at various instances, has resulted in the concealment of the
major contraventions of the human rights.
Article 15 of the ECHR is a derogation clause which gives the member states the chance
of derogating their obligations related to securing of some particular rights and freedoms granted
5 Frederick Cowell, ‘Sovereignty and the question of derogation: an analysis of the Article 15 of the ECHR and the
absence of a derogation clause in the ACHPR’ (2013) 1 Birkbeck Law Review 135.
6 Ronald St. J. McDonald, ’Derogations under article 15 of the European Convention on Human Rights’ (1997) 36
(1-2) Columbia Journal of Transnational Law 225
7 César Landa, ‘Executive power and the use of emergency’ in Salinas de Frias et al (eds), Counterterrorism
International Law and Practice (Oxford University Press 2012).
Before going forward with the Article 15 of the ECHR, which relates to derogation in the
time of emergency, there is a need to understand the reasons behind derogations. What can a
democratic state do when they are faced with acts of terrorism? Where a challenge, which is a
great threat in lines of terrorism is faced by the states, they tend to adopt a varied ranged of
counter-terrorism measures. This can include entrusting extraordinary powers to executive,
passing special law(s), and even declaring a state of emergency. The majority of regional and
global treaties cover specific provisions where the states are allowed to derogate the obligations
of human rights in special situations. However, this seems as an opposite of the objectives of
these treaties, which have been mainly drafted for protecting the human rights. Though, the
presence of such derogation clauses could be explained in context of history, where reference
needs to be made to the tragedies suffered in the backdrop of the Second World War5. At that
time, the requirement of combating with the totalitarian regimes was deemed as a valid reason
for restricting the sovereignty of the state where the human rights otherwise protected through
the treaties were suspended for securing public order and in interest of the state based on their
own reasons6. Salus populus suprema lex, a Latin expression, shows that amongst the key
objectives of the law is to make certain that the nation as a whole is safe and its welfare is
protected7. This very motivation, at various instances, has resulted in the concealment of the
major contraventions of the human rights.
Article 15 of the ECHR is a derogation clause which gives the member states the chance
of derogating their obligations related to securing of some particular rights and freedoms granted
5 Frederick Cowell, ‘Sovereignty and the question of derogation: an analysis of the Article 15 of the ECHR and the
absence of a derogation clause in the ACHPR’ (2013) 1 Birkbeck Law Review 135.
6 Ronald St. J. McDonald, ’Derogations under article 15 of the European Convention on Human Rights’ (1997) 36
(1-2) Columbia Journal of Transnational Law 225
7 César Landa, ‘Executive power and the use of emergency’ in Salinas de Frias et al (eds), Counterterrorism
International Law and Practice (Oxford University Press 2012).
ESSAY 4
under the ECHR in exceptional situation and in a limited and supervised manner8. This article’s
text is based on the United Nations draft Convention on Human Rights’ Article 4, which late on
went to become the fourth article of the ICCPR, i.e., International Covenant on Civil and
Political Rights9. There are three parts in Article 15. The first part gives the explanation of the
situations in which the member states have the option of derogating from their obligations under
the ECHR in a valid manner and also limits the measures which could take place during this
derogation course10. Under part 2 of this article, some of the fundamental rights are protected
which are covered in the ECHR, from any kind of derogation11. Under part 3 of this article, the
procedural requirements have been set out which the member states, making the derogation, are
required to adhere to12.
The use of the derogation clause during the drafting of ECHR, ICCPR and even ACHR,
i.e., the American Charter on Human Rights13, could never be doubted. As a result of this clause,
8 ECHR, art 15
9 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47
(entered into force 23 March 1976) [ICCPR]
10 ECHR, art 15 (1)
11 ECHR, art 15 (2)
12 ECHR, art 15 (3)
13 American Charter on Human Rights , O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123
under the ECHR in exceptional situation and in a limited and supervised manner8. This article’s
text is based on the United Nations draft Convention on Human Rights’ Article 4, which late on
went to become the fourth article of the ICCPR, i.e., International Covenant on Civil and
Political Rights9. There are three parts in Article 15. The first part gives the explanation of the
situations in which the member states have the option of derogating from their obligations under
the ECHR in a valid manner and also limits the measures which could take place during this
derogation course10. Under part 2 of this article, some of the fundamental rights are protected
which are covered in the ECHR, from any kind of derogation11. Under part 3 of this article, the
procedural requirements have been set out which the member states, making the derogation, are
required to adhere to12.
The use of the derogation clause during the drafting of ECHR, ICCPR and even ACHR,
i.e., the American Charter on Human Rights13, could never be doubted. As a result of this clause,
8 ECHR, art 15
9 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47
(entered into force 23 March 1976) [ICCPR]
10 ECHR, art 15 (1)
11 ECHR, art 15 (2)
12 ECHR, art 15 (3)
13 American Charter on Human Rights , O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123
ESSAY 5
the courts of human rights gave affirmations that in certain scenarios, the derogation clauses
represented the only manner of facing the emergency state and for the purpose of protecting and
preserving the democratic society. However, there is a high possibility of such measures
resulting in the abuse of power14. Even when the content of the derogation provisions covered in
the three quoted treaties is different in some manner, the very objective which underlines this
clause remains the same without any doubt, as the states are allowed to derogate from some
rights in a legal manner, where the objective is to establish the state of normalcy in the state
against and for making certain that the fundamental human rights are protected. However, in
such emergency times, the risk of contravention of human rights becomes higher and graver
owing to the possibility of the derogation powers by the states. However, in this context, it is
crucial to note that the freedom of actions is not without any limited. The same is properly
restricted through the identification of certain rights which cannot be derogated and which
cannot be given away with, even in times of emergency even when these are required to be
derogated through strict procedural or substantive conditions. However, in emergency situations,
when push comes to shove, even in absence of the particular provisions, the application of
human rights obligations are derogated covered under both the ordinary law and ECHR owing to
its inadequacy. This requires the manner to be drawn in which a better coordination could be
attained in the way the state responds to the extraordinary situations and for controlling the
restriction of derogable rights only15.
14 Habeas Corpus in Emergency Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human Rights),
Advisory Opinion OC-8/87, Inter-American Court of Human Rights Series A No 18 (30 January 1987).
15 di Martina Elvira Salerno, ‘In the fight against terrorism, does Article 15 of the ECHR constitute an effective
limitation to states’ power to derogate from their human rights obligations?’ (April 2016)
<http://www.giurisprudenzapenale.com/wp-content/uploads/2016/04/Scarica-il-contributo.pdf> accessed 22
November 2017
the courts of human rights gave affirmations that in certain scenarios, the derogation clauses
represented the only manner of facing the emergency state and for the purpose of protecting and
preserving the democratic society. However, there is a high possibility of such measures
resulting in the abuse of power14. Even when the content of the derogation provisions covered in
the three quoted treaties is different in some manner, the very objective which underlines this
clause remains the same without any doubt, as the states are allowed to derogate from some
rights in a legal manner, where the objective is to establish the state of normalcy in the state
against and for making certain that the fundamental human rights are protected. However, in
such emergency times, the risk of contravention of human rights becomes higher and graver
owing to the possibility of the derogation powers by the states. However, in this context, it is
crucial to note that the freedom of actions is not without any limited. The same is properly
restricted through the identification of certain rights which cannot be derogated and which
cannot be given away with, even in times of emergency even when these are required to be
derogated through strict procedural or substantive conditions. However, in emergency situations,
when push comes to shove, even in absence of the particular provisions, the application of
human rights obligations are derogated covered under both the ordinary law and ECHR owing to
its inadequacy. This requires the manner to be drawn in which a better coordination could be
attained in the way the state responds to the extraordinary situations and for controlling the
restriction of derogable rights only15.
14 Habeas Corpus in Emergency Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human Rights),
Advisory Opinion OC-8/87, Inter-American Court of Human Rights Series A No 18 (30 January 1987).
15 di Martina Elvira Salerno, ‘In the fight against terrorism, does Article 15 of the ECHR constitute an effective
limitation to states’ power to derogate from their human rights obligations?’ (April 2016)
<http://www.giurisprudenzapenale.com/wp-content/uploads/2016/04/Scarica-il-contributo.pdf> accessed 22
November 2017
ESSAY 6
For striking a balance between the rights of the individuals and the needs of the society,
the international human right treaties have provided different mechanisms. It is useful to take
into consideration, in this context, the very nature of derogation in comparison to its limitations,
without being confused in the two terms. Both the clauses have the objective of interfering with
the human rights, yet they have a diversified objective. As per the General Comment No. 29 on
the ICCPR’s Article 4, the derogation from certain obligations of the covenant in emergency
situations are clearly distinguished from the limitations or restrictions which are allowed in
normal condition despite the provisions of this covenant16. There is a need to observe that the
requisites which have to be fulfilled for the limitation are without any doubt less strict when
compared to the standard of necessity which is a requirement for the derogation. For tackling the
exception situations, indeed the national authorities have been granted certain special powers,
which when exercised could result in the contravention of human rights. As against the
derogations, the limitations are made used of in the peace time and the same is allowed to make
intrusion with the human rights based on the collective demands particularly the ones covered
under the provision. During the peace times, the derogations are deemed as illegal and in the
emergency states, they become justified. Derogation, as per Schreuer, covers the suspension of
some rights during the public emergency times, instead of their abrogation17. The reasons which
justify the use of these clauses are declaration of exceptional and temporary emergency stage
where the life of the nation is threatened18. There is a strict need of clarifying that the derogations
are deemed as the only solution for the order and peace to be restored. The meaning of this is that
16 UN Human Rights Committee, ‘General Comment 29 Article 4: derogations during a state of emergency’ (2001)
UN Doc CCPR/C/21/Rev1/Add11 para 4.
17 Christoph Schreuer, ‘Derogation of human rights in situations of public emergency: the experience of the
European Convention on Human Rights’ (1982-1983) 9 Yale Journal of World Public Order, 113.
18 Ed Bates, ‘A ‘public emergency threatening the life of nation’? The United Kingdom’s derogation from the
European Convention on Human Rights of 18 December 2001 and the ‘A’ case’ (2006) 76 (1) The British Year
Book of International Law 245
For striking a balance between the rights of the individuals and the needs of the society,
the international human right treaties have provided different mechanisms. It is useful to take
into consideration, in this context, the very nature of derogation in comparison to its limitations,
without being confused in the two terms. Both the clauses have the objective of interfering with
the human rights, yet they have a diversified objective. As per the General Comment No. 29 on
the ICCPR’s Article 4, the derogation from certain obligations of the covenant in emergency
situations are clearly distinguished from the limitations or restrictions which are allowed in
normal condition despite the provisions of this covenant16. There is a need to observe that the
requisites which have to be fulfilled for the limitation are without any doubt less strict when
compared to the standard of necessity which is a requirement for the derogation. For tackling the
exception situations, indeed the national authorities have been granted certain special powers,
which when exercised could result in the contravention of human rights. As against the
derogations, the limitations are made used of in the peace time and the same is allowed to make
intrusion with the human rights based on the collective demands particularly the ones covered
under the provision. During the peace times, the derogations are deemed as illegal and in the
emergency states, they become justified. Derogation, as per Schreuer, covers the suspension of
some rights during the public emergency times, instead of their abrogation17. The reasons which
justify the use of these clauses are declaration of exceptional and temporary emergency stage
where the life of the nation is threatened18. There is a strict need of clarifying that the derogations
are deemed as the only solution for the order and peace to be restored. The meaning of this is that
16 UN Human Rights Committee, ‘General Comment 29 Article 4: derogations during a state of emergency’ (2001)
UN Doc CCPR/C/21/Rev1/Add11 para 4.
17 Christoph Schreuer, ‘Derogation of human rights in situations of public emergency: the experience of the
European Convention on Human Rights’ (1982-1983) 9 Yale Journal of World Public Order, 113.
18 Ed Bates, ‘A ‘public emergency threatening the life of nation’? The United Kingdom’s derogation from the
European Convention on Human Rights of 18 December 2001 and the ‘A’ case’ (2006) 76 (1) The British Year
Book of International Law 245
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