Article 15 of the ECHR: Emergency Response vs. Human Rights Protection

This essay analyzes Article 15 of the European Convention on Human Rights (ECHR), which addresses the derogation of human rights during national emergencies. It explores the justifications for derogation, such as counter-terrorism measures and the need to protect national security, while acknowledging the potential for abuse of power and infringement of individual rights. The essay examines the limitations on derogation, differentiating between derogable and non-derogable rights and highlighting the importance of striking a balance between the needs of the state and the protection of fundamental human rights. It discusses the mechanisms provided by international human rights treaties, including the identification of non-derogable rights and the distinction between limitations and derogations. The essay concludes by emphasizing the complexities of balancing these competing interests and the need for careful consideration of the impact of emergency measures on human rights.

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)

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).

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

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

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

ESSAY 7
before derogation is adopted and before the same can be made to interfere with the human rights,
reliance has to be made on limitation clauses. The differentiation between limitations and
derogations do refer to the division of the rights, to a certain extent, as derogable and non-
derogable. Through the limitation clauses, it is highlighted that the rights which are concerned
are not absolute as there is a need to balance the exercising of the rights by the other people.
Whereas in derogations, there can be an absolute suspension of the enjoyment of some rights of
the individuals for meeting with the pertinent conditions revolving the crisis19.
Where the counter terrorism acts are such where the applicability of the ordinary laws is
impeded along with the full enjoyment of the specific rights, the states are allowed to adopt the
clauses of derogation. The rights of the states to derogate, is limited to the categorisation of
human rights in the two categories mentioned earlier. The differentiation becomes more
significant as the same brings down the risk of arbitrary denial of the rights in emergency
situations. The key human rights treaties in the international framework admit that certain human
rights can be suspended where a crisis is faced save for the African charter on Human and
People’s Rights. In making differentiation between the rights in diversified categories, there is a
twofold issue. In the first issue, the lists covering the non-derogable rights covered in the treaties
of the human rights fail to match with each other; and in the second issue, through the derogation
provisions’ reading, it comes to be seen that the non-derogable rights are not the only ones which
are enumerated in an explicit manner. Though, when it comes to the reality, things become more
complex, as there are a number of rights present which cannot be defined as being non-derogable
through implication. As a result of these two issues, the identification of this category becomes
especially controversial20.
19 Louise Doswald-Beck, Human rights in time of conflict and terrorism (Oxford University Press 2011)
20 At 15

ESSAY 8
The lists of non-derogable rights are covered under the relevant provisions and these are
stated under ECHR’s Article 15(2), ICCPR’s Article 4 and ACHR’s, Article 27(2). An
agreement has been attained over the suspension of these rights being impossible despite the
emergency present as these are deemed as jus cogens rights, which includes the right of freedom
from torture as covered under Article 4 of the ECHR. Such rights are deemed as absolute in
nature and are deemed as fundamental principles of the global laws through the global
communities. It is worth noting in the context of the other non derogable rights that even though
these cannot be derogated in emergency time, the limitation are still admitted as per the
particularly formulations of the rights which are concerned21. Even though the non derogable
rights’ lists under the ACHR and ICCPR are quite widespread, the ECHR covers the most
restrictive ones. In all of these are included the prohibition of torture and degrading or inhumane
treatment, prohibition of retrospective criminal punishment, right to life and the freedom of
slavery. The list of the ECHR basically includes the rights which can be enumerated in a more
explicit manner. An example of this can be seen in the right of recognition which without any
doubt is implicitly recognized as having fundamental significance under ECHR. Undeniably it is
considered as a major requirement for being deemed as a human being, where the rights and
duties are endowed. For the other rights, the like the freedom of religion, thought and
conscience, even though these are deemed as significant, these are deemed as qualified rights
under the ECHR and result in permission of limitations which are required in a democratic
society. It is also worth noting that a wide list of such non derogable rights cannot be deemed as
desirable as the same could include the rights which cannot be deemed as elementary and when it
comes to derogation, the same can pose a difficulty in satisfying the proportionality test22.
21 Alex Conte, ‘Handbook on human rights compliance while counter-terrorism’ (2008) <http://globalcenter.org/wp-
content/uploads/2008/01/human_rights_handbook.pdf > accessed 22 November 2016
22 At 15

ESSAY 9
For the protection of the aforementioned non derogable rights, the procedural safeguards
have to be applied, for instance, the judicial due process guarantees and control. As has been
aptly pointed out by Landa, there is a possibility of identifying a list of rights which are to be
considered as non derogable on the basis of implications, where the respect of these rights is to
be deemed as indispensable for protecting the ones who have been defined as non derogable in
an explicit manner. Where time of crisis is faced, the special powers are used by the states in an
arbitrary manner, particularly the ones related to arrest and detention. The judicial guarantees, in
this context, becomes the major protector of thee individuals’ right to liberty. This view has been
accepted by the European Courts in Brogan and others v United Kingdom23 where the essence of
ECHR’s Article 5(3) had been highlighted, the objective of which is to guarantee the arrest to
being promptly brought before the same is released or brought before the judge and the same can
never be compromised. Though, the Article 15’s jurisprudence shows that in certain cases, based
on the seriousness of urgent situations, the arrest and detention does take place without judicial
review and on the basis of availability of the safeguards. In the case of Marshall v United
Kingdom24, the detention of seven days had been justified by the Court without any intervention
of the judiciary as the proper safeguards were present; whilst in the case of Aksoy v Turkey25, the
long detention for fourteen days was deemed as unjustified due to the same being done without
the access to a judge and based on the exigency of the situations. The very same rationale
became application with regards to the right to fair trial which is categorized as derogable, where
the safeguards are deemed as non derogable owing to the emergency state26.
23 (1989) 11 EHRR 117
24 App no 41571/98 (ECtHR 10 July 2001)
25 (1997) 23 EHRR 553
26 Julian M Lehmann, ‘Limits to counter-terrorism: comparing derogation from the International Covenant on Civil
and Political Rights and the European Convention on Human Rights’ (2011) 8 Essex Human Rights Review 103

ESSAY 10
The derogation making does not have to be a concession where the state provides that it
would not be able to ensure that the rights covered under the ECHR would not be granted.
Though, in practice, when the derogation is lodged for the member state to another state, it
measures that there may be an incident where derogation from the ECHR is a possibility or may
be involved. As a result of this, where an applicant makes a complaint that the rights given under
the ECHR have been contravened during the period of derogation, the courts would begin with
the examination of the measures which could be adopted or could be justified based on the key
articles of the ECHR. Only when the same cannot be justified, the court would go forward with
determining if the derogation had indeed been valid, and this can be established through the case
of A and Others v The United Kingdom27 and case of Lawless v. Ireland (No. 3)28.
The applicants in A and Others v The United Kingdom, had been subjected to stern
restrictions. After the terrorist attacks on United States of America on September 11th, 2001, it
was believed by the government of UK that some foreign nations who were present in the nation,
were giving a support network for the operations of the Islamist terrorist who were linked to al-
Qaeda and as a result of this, they represented a major threat to the nation. Due to a high number
of such foreign nationals not been able to be deported due to the risk of suffering bad treatments
in the nations from which they originated, it was held by the government as an important thing to
form an extended power allowing the detention of these overseas nations. This was done due to
the reasonable belief of the Secretary of the State that the presence of these individuals in the
nation was a high risk to the national security of the nation and there was a reasonable suspicion
of the person being an international terrorist. As this detention scheme was considered by the UK
government, which was not compliant with right to liberty and security given under Article 5 of
27 (Application no. 3455/05)
28 (Application no 332/57)

ESSAY 11
the ECHR, a notice of derogation was issued under Article 15 of the ECHR where the provisions
of Part 4 of the Anti-Terrorism, Crime and Security Act 2001 were set out and this included the
power of detaining the overseas nationals who were certified as being suspected international
terrorists who for the time being could not be removed from the nation. The complaint was
raised by eleven applicants who made a complaint regarding them having been held at a high
security regime which was under a statutory mechanism, and also argued that there was an
absence of public emergency which threatened the life of the people of the nation during the
pertinent time period. Three major arguments were put forward for supporting the position of the
applicants. In the first instance they stated that this emergency was neither real nor impending.
The second contention which was made was that this derogation was not one of temporary
nature. And the final argument was that the practice of the other states was such that no one had
derogated from ECHR, in addition to the informed view of the national and international bodies,
which suggested that a public emergency’s existence was not present29.
The court took into consideration all the factors which were applicable in this case and
accepted that there had been a public emergency which was threatening the life of the nationals.
The Secretary of State had put enough evidence before the domestic courts to show that there
was a threat of a major terrorist attack which was planned against the nation. This was in
addition to the closed evidence which had been placed before the SIAC, i.e., Special Immigration
Appeals Commission. Save for one, all the national judges had accepted that the danger posed
before it was a credible one. Even though there was a lack of an attack by al-Qaeda in the nation
till that time period when the derogation order had been passed the Court stated that there could
not be consideration that the national authorities had to be criticized for fearing that such an
29 ECHR, ‘Derogation in time of emergency’ (November 2017)
<http://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf> accessed 22 November 2017

ESSAY 12
attack was a possibility for the nation. A member stated could not be simply expected to wait for
the disaster to take place before it adopts the measures of dealing with the same. A high margin
of appreciations was enjoyed by the national authorities with regards to the assessment of the
threats and the potential threats as per the information which is at their disposal. Due to these
reasons, the weight had to be attached to the judgment of the Parliament and of the executive on
this very issue. A lot of attention had to be given to the national courts’ views as these are placed
better in assessing the evidence which is related to the presence and subsistence of the
emergency30.
In Lawless v. Ireland (No. 3), the applicant made an allegation that due to him being a
suspected member of the IRA, i.e., the Irish Republican Army, he had been held in a military
detention camp in Ireland from July to December of 1957 and in doing so, he was not brought
before the judge during the pertinent time frame. When the matter reached before the ECtHR, in
the general context of Article 15 of the ECHR, they made an observation that the customary and
the natural meaning of the words regarding the other public emergency being a threat to the life
of the nation had been very clear. This meant that an exceptional situation of an emergency or
crisis was present which had the affect over the entire population of the state and this constituted
as a key threat towards the organized life of the entire community which formed the State. With
regards to the examination of the facts and situations which led the government of Ireland to
make the July 05th, 1957 proclamation which implemented special detention powers was
accompanied with the conception which was found in this case by the court. The presence of
public emergency which threatened the life of the nation at that time was deduced in a reasonable
manner by the Government of Ireland based on a combination of different factors. These factors
30 Ibid