Article 15 of the ECHR: Emergency Response vs. Human Rights Protection
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Essay
AI Summary
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.
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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
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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
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
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
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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
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
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)
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)
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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
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
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
ESSAY 13
included the presence of the secret army in the territory of the Republic of Ireland which had
been engaged in activities which would be best deemed as unconstitutional and the use of
violence for attaining this objective; the very fact that the army had been operating out of the
territory of Ireland which jeopardised the relations of the Republic of Ireland with its neighbours
in a serious manner; and the alarming and the steady rise in the terrorist activities from 1956’s
autumn across the first half of the year 1957. Due to the situations surrounding this case, it was
held by the court that the Government of Ireland had been justified in making a declaration that
there had indeed been a public emergency in Ireland which threatened the life of the nation. As a
result of this, the state had the right of applying for the provisions covered under Article 15 of
the ECHR, particularly its part 1, owing to the provisions which had been made for taking the
measures of derogating from the obligations covered under the ECHR31.
In this very case, a letter had been sent by the Irish Government on July 20th, 1957 to the
Council of Europe’s Secretary General where he was informed of the entry into force of Part III32
of Offences against the State (Amendment) Act, 194033 on July 08th, 1957 where it was stated to
bring in the operation of statue where special powers of detention and arrest were conferred
which involved derogation from the obligations imposed through ECHR. It was disputed by the
applicant that the right of the Irish Government to rely on this latter was a valid notice of
derogation, where the assertions failed to fulfil the strict requirements provided under third part
of the ECHR. In this regard, it was held by the Court that there had been fulfilment by the Irish
Government of their obligations covered under part 3 of the Article 15 of ECHR. The court
observed that the July 05th proclamation and Part III of 1940 act had been attached to the July
20th letter. There had been an explanation in this letter that the pertinent measures had been
31 Ibid
32 Offences against the State (Amendment) Act 1940, ptIII
33 Offences against the State (Amendment) Act, 1940
included the presence of the secret army in the territory of the Republic of Ireland which had
been engaged in activities which would be best deemed as unconstitutional and the use of
violence for attaining this objective; the very fact that the army had been operating out of the
territory of Ireland which jeopardised the relations of the Republic of Ireland with its neighbours
in a serious manner; and the alarming and the steady rise in the terrorist activities from 1956’s
autumn across the first half of the year 1957. Due to the situations surrounding this case, it was
held by the court that the Government of Ireland had been justified in making a declaration that
there had indeed been a public emergency in Ireland which threatened the life of the nation. As a
result of this, the state had the right of applying for the provisions covered under Article 15 of
the ECHR, particularly its part 1, owing to the provisions which had been made for taking the
measures of derogating from the obligations covered under the ECHR31.
In this very case, a letter had been sent by the Irish Government on July 20th, 1957 to the
Council of Europe’s Secretary General where he was informed of the entry into force of Part III32
of Offences against the State (Amendment) Act, 194033 on July 08th, 1957 where it was stated to
bring in the operation of statue where special powers of detention and arrest were conferred
which involved derogation from the obligations imposed through ECHR. It was disputed by the
applicant that the right of the Irish Government to rely on this latter was a valid notice of
derogation, where the assertions failed to fulfil the strict requirements provided under third part
of the ECHR. In this regard, it was held by the Court that there had been fulfilment by the Irish
Government of their obligations covered under part 3 of the Article 15 of ECHR. The court
observed that the July 05th proclamation and Part III of 1940 act had been attached to the July
20th letter. There had been an explanation in this letter that the pertinent measures had been
31 Ibid
32 Offences against the State (Amendment) Act 1940, ptIII
33 Offences against the State (Amendment) Act, 1940
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ESSAY 14
undertaken for preventing the offences being undertaken against public order and peace and for
the prevention for maintaining of armed or military forces apart from the ones authorized by the
Constitution. As a result of this, the Secretary General had been provided by the Irish
Government with ample information regarding the undertaken measures and the reasons for
adopting the same. Apart from this, the Government of Ireland had brought forward this
information to the attention of the Secretary General 12 days after the measures derogating from
the obligations under the ECHR had been brought under force, which meant that the notification
had been made in a timely manner. To put it in crux, there was an absence of special provisions
in the ECHR regarding the effect that the concerned state was required to promulgate in the
territory of the derogation notice which was addressed to the Council of Europe’s Secretary
General34.
The very first reading of Article 15 sows that there is recognition of a dichotomy being
present between emergency and normalcy. This very assumption is a key aspect of what can be
deemed as an emergency paradigm. But, the same has been placed up for examination by the
academicians35. After the incident of September 11th, 2001 and in context of the events which
have taken place in the 20th and 21st centuries, an argument has been made that it is not possible
anymore to make a differentiation between emergency and normalcy36. As a result of this flawed
paradigm, there is a standstill in a constant state of emergency in which the so called temporary
powers are prolonged, which means the encroachment of the human rights in a perpetual manner.
Due to these reasons, a number of commentators have moved away from the emergency
paradigm for investigating upon the varied models of accommodating with the crisis where the
34 At 29
35 Mark Neocleous, ‘The Problem with Normality: Taking Exception to “Permanent Emergency”’, (2006) 31
Alternatives 191, 195
36 Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crises always be Constitutional?’ 112 YALE L. J.
1011, 1089N1095 (2003).
undertaken for preventing the offences being undertaken against public order and peace and for
the prevention for maintaining of armed or military forces apart from the ones authorized by the
Constitution. As a result of this, the Secretary General had been provided by the Irish
Government with ample information regarding the undertaken measures and the reasons for
adopting the same. Apart from this, the Government of Ireland had brought forward this
information to the attention of the Secretary General 12 days after the measures derogating from
the obligations under the ECHR had been brought under force, which meant that the notification
had been made in a timely manner. To put it in crux, there was an absence of special provisions
in the ECHR regarding the effect that the concerned state was required to promulgate in the
territory of the derogation notice which was addressed to the Council of Europe’s Secretary
General34.
The very first reading of Article 15 sows that there is recognition of a dichotomy being
present between emergency and normalcy. This very assumption is a key aspect of what can be
deemed as an emergency paradigm. But, the same has been placed up for examination by the
academicians35. After the incident of September 11th, 2001 and in context of the events which
have taken place in the 20th and 21st centuries, an argument has been made that it is not possible
anymore to make a differentiation between emergency and normalcy36. As a result of this flawed
paradigm, there is a standstill in a constant state of emergency in which the so called temporary
powers are prolonged, which means the encroachment of the human rights in a perpetual manner.
Due to these reasons, a number of commentators have moved away from the emergency
paradigm for investigating upon the varied models of accommodating with the crisis where the
34 At 29
35 Mark Neocleous, ‘The Problem with Normality: Taking Exception to “Permanent Emergency”’, (2006) 31
Alternatives 191, 195
36 Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crises always be Constitutional?’ 112 YALE L. J.
1011, 1089N1095 (2003).
ESSAY 15
relance would not be placed over this flawed assumption regarding the separation of emergency
and normalcy. Such substitutive models attempt to find an approach where the human rights and
vindicated and protected, and at the very same time, a state is allowed to respond to the threats in
the rightful manner37.
Derogation clause can be used in dual manner, i.e., as a shield and a sword. Where the
derogation protects the human rights and follows a system of normalcy, the same is deemed as a
sword and where the emergency is delineated as a threat to the life of a nation which obtains the
utmost significance, it becomes a shield. The approach adopted by the ECtHR, along with the
House of Lords in A and Others v The United Kingdom essentially is an ignorance of the issue
regarding the presence of the state of emergency. This approach has been defended by Lord
Walker where he has suggested that the severity threshold as per which for a threat has to qualify
as an emergency, it should not be placed at a very high level for its qualification as an
emergency. This means that no one has to worry about the very first part of Article 15 due to the
reason that the second part of this article is present to safeguard the human rights. There is a
further weakening in the shielding effect of the state of emergency from the already degraded
stance, provided the threshold of low threat severity, along with the wide margin of appreciation
which had been given to the national authorities through the case of Lawless v. Ireland (No. 3).
The assertion of Michael O’Boyle was that the Strasbourg Machinery provides that an outer
bulwark of defence, against the panicky or the arbitrary summon of an urgency power was thus
not realised. On existence of a situation of emergency, by deferring to the national authorities,
particularly executive, there was a stretching of the phrase regarding the threat to the nation’s
life, to such a point where the same becomes useless in the matter of controlling the actions of
37 Alan Greene, ‘Separating Normalcy from Emergency: The Jurisprudence of Article15 of the European
Convention on Human Rights’ (2011) 12 German Law Journal 1766
relance would not be placed over this flawed assumption regarding the separation of emergency
and normalcy. Such substitutive models attempt to find an approach where the human rights and
vindicated and protected, and at the very same time, a state is allowed to respond to the threats in
the rightful manner37.
Derogation clause can be used in dual manner, i.e., as a shield and a sword. Where the
derogation protects the human rights and follows a system of normalcy, the same is deemed as a
sword and where the emergency is delineated as a threat to the life of a nation which obtains the
utmost significance, it becomes a shield. The approach adopted by the ECtHR, along with the
House of Lords in A and Others v The United Kingdom essentially is an ignorance of the issue
regarding the presence of the state of emergency. This approach has been defended by Lord
Walker where he has suggested that the severity threshold as per which for a threat has to qualify
as an emergency, it should not be placed at a very high level for its qualification as an
emergency. This means that no one has to worry about the very first part of Article 15 due to the
reason that the second part of this article is present to safeguard the human rights. There is a
further weakening in the shielding effect of the state of emergency from the already degraded
stance, provided the threshold of low threat severity, along with the wide margin of appreciation
which had been given to the national authorities through the case of Lawless v. Ireland (No. 3).
The assertion of Michael O’Boyle was that the Strasbourg Machinery provides that an outer
bulwark of defence, against the panicky or the arbitrary summon of an urgency power was thus
not realised. On existence of a situation of emergency, by deferring to the national authorities,
particularly executive, there was a stretching of the phrase regarding the threat to the nation’s
life, to such a point where the same becomes useless in the matter of controlling the actions of
37 Alan Greene, ‘Separating Normalcy from Emergency: The Jurisprudence of Article15 of the European
Convention on Human Rights’ (2011) 12 German Law Journal 1766
ESSAY 16
the state. Even till the present date, there has been a single example where the declaration of
emergency had been rejected by the European Commission. This case was that of Denmark v
Greece38, which is also referred to as the Greek Case, and a key point to note here is that this
case had never been referred to the ECtHR. Though, it had been argued by Gross and Ní Aoláin
that this decision was related to the fact that the same was an anti-democratic regime in which
the state of emergency had been declared in Greece, instead of a proper and objective analysis of
whether there was a seriousness in the threat which had been posed over the state by the
communist insurgents39.
The shielding effect had been further damaged in A and Others v The United Kingdom by
the ECtHR through the elimination of the exceptional nature regarding the phenomena to
compulsorily trigger a state of emergency through the declaration that the Article 15 covered
emergency does not have to be temporary necessarily. Instead of this, the duration just becomes
another factor in the determination regarding whether the undertaken measures prove to be
proportionate to the exigency of the present circumstances. This results in the uprooting of the
Article 15 in a fundamental manner, as being a symbol of the normalcy emergency dichotomy
since the objective of restoring this normalcy is neglected through the ECtHR. This shows that
Article 15 can no longer be defined as a shield, which could protect the human rights from being
encroached since the emergency and normalcy are no longer two mutually exclusive states.
Instead, these are positioned in a manner where they have an inverse proportional relation
towards each other through the dominance of Article 15’s “business as usual” limb. This leads to
the status quo fluctuations in between the varied degrees of emergency and normalcy. At times,
there is more likeliness towards normalcy instead of emergency where the exigencies of the
38 (Application No.3321/67)
39 At 37
the state. Even till the present date, there has been a single example where the declaration of
emergency had been rejected by the European Commission. This case was that of Denmark v
Greece38, which is also referred to as the Greek Case, and a key point to note here is that this
case had never been referred to the ECtHR. Though, it had been argued by Gross and Ní Aoláin
that this decision was related to the fact that the same was an anti-democratic regime in which
the state of emergency had been declared in Greece, instead of a proper and objective analysis of
whether there was a seriousness in the threat which had been posed over the state by the
communist insurgents39.
The shielding effect had been further damaged in A and Others v The United Kingdom by
the ECtHR through the elimination of the exceptional nature regarding the phenomena to
compulsorily trigger a state of emergency through the declaration that the Article 15 covered
emergency does not have to be temporary necessarily. Instead of this, the duration just becomes
another factor in the determination regarding whether the undertaken measures prove to be
proportionate to the exigency of the present circumstances. This results in the uprooting of the
Article 15 in a fundamental manner, as being a symbol of the normalcy emergency dichotomy
since the objective of restoring this normalcy is neglected through the ECtHR. This shows that
Article 15 can no longer be defined as a shield, which could protect the human rights from being
encroached since the emergency and normalcy are no longer two mutually exclusive states.
Instead, these are positioned in a manner where they have an inverse proportional relation
towards each other through the dominance of Article 15’s “business as usual” limb. This leads to
the status quo fluctuations in between the varied degrees of emergency and normalcy. At times,
there is more likeliness towards normalcy instead of emergency where the exigencies of the
38 (Application No.3321/67)
39 At 37
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ESSAY 17
pertinent circumstances would not allow major encroachment over the human rights. In a reverse
situation, where the circumstances are less normal, i.e., where there is more of an emergency like
situation, the more draconian measures would be allowed. This results in the Article 15 being
interpreted to corroborate more properly to such a view where the emergency states become
merely another factor in the restriction of the absolutist claims of some specific human rights. As
is the right to freedom of speech restricted by the other person’s rights of his name, in the same
manner, the right to privacy, liberty and the other related rights could be derogated during an
emergency which would be limited to another person’s right to security. Thus, only the role of
the Article 15 as a sword is left40.
The need for the declaration of an emergency based on Article 15 could still result in the
shielding of the human rights to a certain extent since the jurisprudence of this article can be
differentiated from that of normalcy in an easy manner. The normalization of exception or the
creeping effect thus becomes mitigated. Though, the low threat severity threshold in terms of
crisis has to cross for constituting an emergency, in addition to there being an absence of proper
scrutiny of the decision making the divergence just a formality. In the case of Brannigan and
McBride v the United Kingdom41, it was held by the ECtHR that the detention of the applicants
based on the Prevention of Terrorism (Temporary Provisions) Act, 1984 since there had been no
contravention of the right to liberty of the applicant based on Article 5 of the ECHR due to the
emergency declaration made by the UK based on Article 15. This took place despite an earlier
decision given in the case of Brogan v the United Kingdom, which was nearly the same case in
terms of the facts. In this case, the court held that there had been an infringement of the rights of
the applicant since at that time there had not derogation order been filed with the ECHR. Thus,
40 At 37
41 258 Eur. Ct. H.R. (ser A, 1993)
pertinent circumstances would not allow major encroachment over the human rights. In a reverse
situation, where the circumstances are less normal, i.e., where there is more of an emergency like
situation, the more draconian measures would be allowed. This results in the Article 15 being
interpreted to corroborate more properly to such a view where the emergency states become
merely another factor in the restriction of the absolutist claims of some specific human rights. As
is the right to freedom of speech restricted by the other person’s rights of his name, in the same
manner, the right to privacy, liberty and the other related rights could be derogated during an
emergency which would be limited to another person’s right to security. Thus, only the role of
the Article 15 as a sword is left40.
The need for the declaration of an emergency based on Article 15 could still result in the
shielding of the human rights to a certain extent since the jurisprudence of this article can be
differentiated from that of normalcy in an easy manner. The normalization of exception or the
creeping effect thus becomes mitigated. Though, the low threat severity threshold in terms of
crisis has to cross for constituting an emergency, in addition to there being an absence of proper
scrutiny of the decision making the divergence just a formality. In the case of Brannigan and
McBride v the United Kingdom41, it was held by the ECtHR that the detention of the applicants
based on the Prevention of Terrorism (Temporary Provisions) Act, 1984 since there had been no
contravention of the right to liberty of the applicant based on Article 5 of the ECHR due to the
emergency declaration made by the UK based on Article 15. This took place despite an earlier
decision given in the case of Brogan v the United Kingdom, which was nearly the same case in
terms of the facts. In this case, the court held that there had been an infringement of the rights of
the applicant since at that time there had not derogation order been filed with the ECHR. Thus,
40 At 37
41 258 Eur. Ct. H.R. (ser A, 1993)
ESSAY 18
the declaration of emergency which came before the case of Brannigan and McBride v the
United Kingdom seems solely motivated through the decision given in Brogan v the United
Kingdom. It could further be argued that Article 15 does not insist upon a very strict segregation
amidst emergency and normalcy, and the two cases of Brannigan and McBride v the United
Kingdom and Brogan v the United Kingdom are enough to show the lawful divergence amongst
them. Though, the same is not grounded due to the factual differentiation between these two
cases. Instead, the same is motivated due to the declaration of state of emergency as a
consequence of the case of Brogan v the United Kingdom instead of creation of two
differentiated lawful regimes, and that the first part of this article merely operates as a procedural
barrier for the states. Thus, there is nothing beyond the simple administrative protocol which has
to be undertaken instead of a clear demarcation line between emergency and normalcy42.
Where this formal barrier is once crossed, the sole mechanism for tempering with the
actions of the stated based on this article would be the proportionality test which is covered
under the second part of this article, which measures have to be adopted based on the proportion
of the exigency of a particular situation. This is not distinguishable from the methodology of
ECtHR in the non Article 15 cases. The ECtHR, in effect, just acts out in the manner of
“business as usual”. Though, the proportionality test remains subjected to a wide margin of
appreciation which would result in a major level of deterrence in emergency periods to the
executives, in spite of the persistence that the identical rule becomes applicable over peace and
war both43.
To conclude, the discussion carried in this write up thus provided a thorough analysis of
the Article 15 of the ECHR which relates to the derogation of human rights when it comes to the
42 At 37
43 Ibid
the declaration of emergency which came before the case of Brannigan and McBride v the
United Kingdom seems solely motivated through the decision given in Brogan v the United
Kingdom. It could further be argued that Article 15 does not insist upon a very strict segregation
amidst emergency and normalcy, and the two cases of Brannigan and McBride v the United
Kingdom and Brogan v the United Kingdom are enough to show the lawful divergence amongst
them. Though, the same is not grounded due to the factual differentiation between these two
cases. Instead, the same is motivated due to the declaration of state of emergency as a
consequence of the case of Brogan v the United Kingdom instead of creation of two
differentiated lawful regimes, and that the first part of this article merely operates as a procedural
barrier for the states. Thus, there is nothing beyond the simple administrative protocol which has
to be undertaken instead of a clear demarcation line between emergency and normalcy42.
Where this formal barrier is once crossed, the sole mechanism for tempering with the
actions of the stated based on this article would be the proportionality test which is covered
under the second part of this article, which measures have to be adopted based on the proportion
of the exigency of a particular situation. This is not distinguishable from the methodology of
ECtHR in the non Article 15 cases. The ECtHR, in effect, just acts out in the manner of
“business as usual”. Though, the proportionality test remains subjected to a wide margin of
appreciation which would result in a major level of deterrence in emergency periods to the
executives, in spite of the persistence that the identical rule becomes applicable over peace and
war both43.
To conclude, the discussion carried in this write up thus provided a thorough analysis of
the Article 15 of the ECHR which relates to the derogation of human rights when it comes to the
42 At 37
43 Ibid
ESSAY 19
emergency situation before a nation. It is important that in doing so, a correct balance is struck
between the right of the states for responding to the national emergencies and for ensuring the
protection of human rights in a continued manner. It has been famously established that the
derogation clauses are deemed as an indispensable measure in the fight against terrorism for
guaranteeing the minimum standards for the human rights protection and for preventing the right
of derogation from being used in an arbitrary manner by the states. The qualification of some
rights in this regard, as being non derogable helps in limiting the freedom of action of the states.
Though, they still continue to have a huge discretion in determining the situation where some
particular human rights can easily be derogated from. And yet, the Article 15 of the ECHR helps
in proving that some stringent requirements have to be undertaken in order for such undertaken
derogation to be valid and it is also noted that the effectiveness of the wide discretion can be
thwarted through acknowledgement of the same. There is a need for the courts to recognize a
narrow margin for undertaking a proper and stringent scrutiny, in addition to the independent
review of the Article 15 conditions and also for ensuring that the human rights are effectively
protected. Even though the freedom of action continues to be with the states in emergency cases,
the urgency pretext for undertaking the counter terrorist actions cannot be used for justifying the
abuse of power44.
Basing the two limbs of Article 15, as being the two barriers, which protect the human
rights, is not accurate. The need for the emergency state has to be present for derogating from the
obligations of treaty fails to do much for protecting the human rights. In an ideal scenario, there
has to be a clear differentiation amidst emergency and normalcy which allows the former to be
brought forward only when the situation which threatens the life of the nation is declared. There
44 Ibid
emergency situation before a nation. It is important that in doing so, a correct balance is struck
between the right of the states for responding to the national emergencies and for ensuring the
protection of human rights in a continued manner. It has been famously established that the
derogation clauses are deemed as an indispensable measure in the fight against terrorism for
guaranteeing the minimum standards for the human rights protection and for preventing the right
of derogation from being used in an arbitrary manner by the states. The qualification of some
rights in this regard, as being non derogable helps in limiting the freedom of action of the states.
Though, they still continue to have a huge discretion in determining the situation where some
particular human rights can easily be derogated from. And yet, the Article 15 of the ECHR helps
in proving that some stringent requirements have to be undertaken in order for such undertaken
derogation to be valid and it is also noted that the effectiveness of the wide discretion can be
thwarted through acknowledgement of the same. There is a need for the courts to recognize a
narrow margin for undertaking a proper and stringent scrutiny, in addition to the independent
review of the Article 15 conditions and also for ensuring that the human rights are effectively
protected. Even though the freedom of action continues to be with the states in emergency cases,
the urgency pretext for undertaking the counter terrorist actions cannot be used for justifying the
abuse of power44.
Basing the two limbs of Article 15, as being the two barriers, which protect the human
rights, is not accurate. The need for the emergency state has to be present for derogating from the
obligations of treaty fails to do much for protecting the human rights. In an ideal scenario, there
has to be a clear differentiation amidst emergency and normalcy which allows the former to be
brought forward only when the situation which threatens the life of the nation is declared. There
44 Ibid
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ESSAY 20
is a need for the exception to be covered in a firm manner in the lines of such differentiations
which protect the human rights where the condition of normalcy is prevalent. In place of this,
there is a need for the need that the emergency state being declared as more than being just an
administrative process, which facilitates the human rights encroachment, instead of containing
them. The focus has to be placed over the measures for being in proportion to the exigency of the
situation based on the blurring of lines of differentiation between emergency and normalcy.
There is no obsoleteness in the emergency paradigm. Only when the potential of Article 15 is
realized, for acting as not just the sword which derogates the human rights, but also as the shield
which is meant to protect these, can the human rights be vindicated. Thus, in the present context,
Article 15 proves to be inapt in protecting the human rights and just functions as their
derogation.
is a need for the exception to be covered in a firm manner in the lines of such differentiations
which protect the human rights where the condition of normalcy is prevalent. In place of this,
there is a need for the need that the emergency state being declared as more than being just an
administrative process, which facilitates the human rights encroachment, instead of containing
them. The focus has to be placed over the measures for being in proportion to the exigency of the
situation based on the blurring of lines of differentiation between emergency and normalcy.
There is no obsoleteness in the emergency paradigm. Only when the potential of Article 15 is
realized, for acting as not just the sword which derogates the human rights, but also as the shield
which is meant to protect these, can the human rights be vindicated. Thus, in the present context,
Article 15 proves to be inapt in protecting the human rights and just functions as their
derogation.
ESSAY 21
Bibliography
Primary Sources
Statutes and statutory instruments
Offences against the State (Amendment) Act, 1940
EU legislation and cases
American Charter on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123
Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights, as Amended) (ECHR), 1950
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).
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]
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.
European Court of Human Rights
A and Others v The United Kingdom (Application no. 3455/05)
Aksoy v Turkey (1997) 23 EHRR 553
Brannigan and McBride v the United Kingdom, 258 Eur. Ct. H.R. (ser A, 1993)
Bibliography
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Statutes and statutory instruments
Offences against the State (Amendment) Act, 1940
EU legislation and cases
American Charter on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123
Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights, as Amended) (ECHR), 1950
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).
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]
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.
European Court of Human Rights
A and Others v The United Kingdom (Application no. 3455/05)
Aksoy v Turkey (1997) 23 EHRR 553
Brannigan and McBride v the United Kingdom, 258 Eur. Ct. H.R. (ser A, 1993)
ESSAY 22
Brogan and others v United Kingdom (1989) 11 EHRR 117
Denmark v Greece (Application No.3321/67)
Lawless v. Ireland (No. 3) (Application no 332/57)
Marshall v United Kingdom App no 41571/98 (ECtHR 10 July 2001)
Secondary Sources
Books
Doswald-Beck L, Human rights in time of conflict and terrorism (Oxford University Press 2011)
Landa C, ‘Executive power and the use of emergency’ in Salinas de Frias et al (eds),
Counterterrorism International Law and Practice (Oxford University Press 2012).
Mowbray A, Cases, Materials, and Commentary on the European Convention on Human Rights
(3rd edn, Oxford University Press 2012)
Journal articles
Bates E, ‘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
Cowell F, ‘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.
Greene A, ‘Separating Normalcy from Emergency: The Jurisprudence of Article15 of the
European Convention on Human Rights’ (2011) 12 German Law Journal 1766
Brogan and others v United Kingdom (1989) 11 EHRR 117
Denmark v Greece (Application No.3321/67)
Lawless v. Ireland (No. 3) (Application no 332/57)
Marshall v United Kingdom App no 41571/98 (ECtHR 10 July 2001)
Secondary Sources
Books
Doswald-Beck L, Human rights in time of conflict and terrorism (Oxford University Press 2011)
Landa C, ‘Executive power and the use of emergency’ in Salinas de Frias et al (eds),
Counterterrorism International Law and Practice (Oxford University Press 2012).
Mowbray A, Cases, Materials, and Commentary on the European Convention on Human Rights
(3rd edn, Oxford University Press 2012)
Journal articles
Bates E, ‘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
Cowell F, ‘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.
Greene A, ‘Separating Normalcy from Emergency: The Jurisprudence of Article15 of the
European Convention on Human Rights’ (2011) 12 German Law Journal 1766
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ESSAY 23
Gross O, ‘Chaos and Rules: Should Responses to Violent Crises always be Constitutional?’ 112
YALE L. J. 1011, 1089N1095 (2003).
Lehmann JM, ‘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
McDonald RSJ, ’Derogations under article 15 of the European Convention on Human Rights’
(1997) 36 (1-2) Columbia Journal of Transnational Law 225
Michaelsen C, ‘Derogating from International Human Rights Obligations in the ‘War Against
Terrorism’? — A British–Australian Perspective’, (2005) 17 Terrorism and Political Violence,
131
Neocleous M, ‘The Problem with Normality: Taking Exception to “Permanent Emergency”’,
(2006) 31 Alternatives 191, 195
Schreuer C, ‘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.
Websites and blogs
Conte A, ‘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
ECHR, ‘Derogation in time of emergency’ (November 2017)
<http://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf> accessed 22 November 2017
Gross O, ‘Chaos and Rules: Should Responses to Violent Crises always be Constitutional?’ 112
YALE L. J. 1011, 1089N1095 (2003).
Lehmann JM, ‘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
McDonald RSJ, ’Derogations under article 15 of the European Convention on Human Rights’
(1997) 36 (1-2) Columbia Journal of Transnational Law 225
Michaelsen C, ‘Derogating from International Human Rights Obligations in the ‘War Against
Terrorism’? — A British–Australian Perspective’, (2005) 17 Terrorism and Political Violence,
131
Neocleous M, ‘The Problem with Normality: Taking Exception to “Permanent Emergency”’,
(2006) 31 Alternatives 191, 195
Schreuer C, ‘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.
Websites and blogs
Conte A, ‘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
ECHR, ‘Derogation in time of emergency’ (November 2017)
<http://www.echr.coe.int/Documents/FS_Derogation_ENG.pdf> accessed 22 November 2017
ESSAY 24
Salerno dME, ‘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
Salerno dME, ‘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
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