Derogation from the European Convention of Human Rights and Int'l Law

This essay critically examines Article 15 of the European Convention on Human Rights, which allows states to derogate from their obligations during public emergencies, provided such measures are consistent with 'other obligations under international law.' The essay analyzes the jurisprudence of the European Court of Human Rights in relation to Article 15, demonstrating the evolution of case law concerning states of emergency and the rights from which states have sought to derogate, primarily Articles 5 (right to liberty and security) and 6 (right to a fair trial). It argues that the international community's emphasis on non-derogable rights, particularly concerning the right to life and the prohibition of torture, has diminished the scope of Article 15, questioning the relevance of existing case law. The essay explores the procedural and substantive obligations of states under Article 15, including notification requirements and the Court's supervisory role, and emphasizes the margin of appreciation granted to states. It concludes by highlighting the limited jurisprudence surrounding the 'other obligations under international law' clause and its implications for harmonizing the legal position.

Derogation from the European Convention of Human Rights in light of
‘Other Obligations under International Law’
Jean Allain*
1 It has been more than fifteen years since the European Court of Human Rights has
considered the meaning of the clause ‘other obligations under international law’ found in
Article 15; which allows a State Party to “take measures derogating from its obligations
under this Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations under
international law”. The relevance of this phrase should be considered as a number of
international non-derogable rights have emerged in the last decade that place in question
the case-law of the European Court. This study examines the provisions of Article 15,
demonstrating the manner in which the jurisprudence of the European Court has
developed in relation to states of emergency. Consideration is then given to the rights of
the European Convention from which States, having invoked Article 15, have sought to
derogate. Finally, the case-law of the European Court is examined in light of ‘other
obligations under international law’, to demonstrate that not only does the case-law of the
European Court no longer reflect established law in the domain of non-derogable rights,
but brings into question the very essence of Article 15.
2 This is so as States have invoked Article 15 solely to derogate from the provisions of
Article 5 (right to liberty and security) and Article 6 (right to a fair trial). It is specifically
in these areas that the international community, over the last fifty years, has moved to
ensure that jus cogens norms of the right to life and the prohibition against torture are
guaranteed, even in times of emergency, by requiring that the fundamental precepts of the
right to liberty and fair trial be respected at all times. As such, the international
community has progressively moved toward ultimately determining that requirements
manifest in Articles 5 and 6 have assumed the nature of a non-derogable right and thus
are beyond the scope of provisions such as those found at Article 15. While, in theory,
States might seek to derogate from provisions other then Articles 5 and 6 of the
Convention, the absence of half-century of case-law to that effect, speaks against it.
Instead, that the core elements of the right to liberty and fair trial have gained the status
of non-derogable rights means that the case-law of the European Court of Human Rights
revolving around Article 15 has been rid of much of its content and with it most of the
advantages which States Party might seek in invoke a state of emergency under the
European Convention of Human Rights.
I. Derogation under Article 15 of the European Convention
3 There is, built into human rights instruments such as the 1951 European Convention
for the Protection of Human Rights and Fundamental Freedoms, “techniques of
accommodation”, which Rosalyn Higgins noted, allows States to determine the extent to
* Senior Lecturer, School of Law, Queen’s University of Belfast.
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which they will provide for human rights protection within their domestic legal systems1.
One such technique is an internal ‘limitation clause’ within an instrument which, while
establishing a right, includes provisions which then can be utilized to circumscribe that
right. An example of such a limitation clause is to be found in Article 11 of the European
Convention which establishes that “Everyone has the right to freedom of peaceful
assembly”, while allowing for restrictions where they “are prescribed by law and
necessary in a democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others”. A further means of accommodation
within the European Convention is to be found at Article 15, which allows States to go
beyond simply limiting rights, to derogating from them in times of emergency. The
paradoxical nature of such accommodations is that they allow States the possibility to
suspend certain rights in times of emergency as a means of seeking to return to a situation
of normalcy in an expeditious manner; and thus the restoration of the full measure of the
Convention. For instance, say a natural disaster occurred – an earthquake –; a State
seeing that its legislation in the area of Article 11 (freedom of assembly and association)
was inadequate as a result of looting and a descent into lawlessness, could go beyond
simply limiting such a right (ie; “in the interests of […] public safety, for the prevention
of disorder or crime”) by completely suspend the right by means of a curfew and other
measures which would seek to ensure a timely return to the status quo ante.
4 Article 15 of the European Convention while allowing States to derogate from their
human rights obligations in times of emergency also establishes a supervisor role for the
European Court of Human Rights. Article 15 reads:
1. In time of war or other public emergency threatening the life of the nation any High Contracting
Party may take measures derogating from its obligations under this Convention to the extent strictly
required by the exigencies of the situation, provided that such measures are not inconsistent with its
other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from
Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary
General of the Council of Europe fully informed of the measures which it has taken and the reasons
therefor. It shall also inform the Secretary General of the Council of Europe when such measures have
ceased to operate and the provisions of the Convention are again being fully executed.
That supervisory role was explained by the European Court in the 1978 Ireland v. The
United Kingdom case wherein it was determined that it “falls in the first place to each
Contracting State, with its responsibility for ‘the life of (its) nation’, to determine whether
that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in
attempting to overcome the emergency”. However, the Court went on to say that
“[n]evertheless, the States do not enjoy an unlimited power in this respect. The Court
[which …] is responsible for ensuring the observance of the States’ engagements […] is
empowered to rule on whether the States have gone beyond the “extent strictly required
1 Rosalyn Higgins, ‘Derogation under Human Rights Treaties’, The British Yearbook of International
Law: 1976–1977, 1978, p. 281.
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by the exigencies” of the crisis”2. In Brannigan and McBride v. United Kingdom, the
Court elaborated on its supervisory powers, noting that “in exercising its supervision the
Court must give appropriate weight to such relevant factors as the nature of the rights
affected by the derogation, the circumstances leading to, and the duration of, the
emergency situation”3.
5 On the basis of Article 15, States have both procedural and substantive obligations.
As to procedural obligations, States must, under Article 15(3) notify the Secretary
General of the Council of Europe of the imposition, justification of measures taken, and
cessation, of a state of emergency. It is from these procedural requirements, in part, that
the Court will draw information so as to determine whether a State has indeed met its
substantive obligations under Article 15(1). As was noted in the 1996 Aksoy v. Turkey
case, the Court is “competent to examine this issue [procedural requirements of Article
15(3)] of its own motion, and in particular whether the Turkish notice of derogation
contained sufficient information about the measure in question […] to satisfy the
requirements of Article 15 para. 3”4. The relevance of these procedural obligations under
Article 15(3) was made evident in subsequent cases brought against Turkey, wherein the
Court pointed out that the legislative decrees which allowed for derogation – but also the
notifications to the Council of Europe – were only applicable to the south-east of Turkey.
As such, the Court determined that it:
would be working against the object and purpose of that provision [re: Article 15] if, when assessing the
territorial scope of the derogation concerned, it were to extend its effects to a part of Turkish territory
not explicitly named in the notice of derogation. It follows that the derogation in question is
inapplicable ratione loci to the facts of the case5.
6 With respect to substantive obligations, the Court emphasised in Lawless v. Ireland
the exceptional nature of the right to derogate from the Convention, and that it was
empowered to determine whether the obligations set down in Article 15 were met. The
Court stated:
the Government of any High Contracting Party has the right, in case of war or public emergency
threatening the life of the nation, to take measures derogating from its obligations under the Convention
[…] provided that such measures are strictly limited to what is required by the exigencies of the
situation and also that they do not conflict with other obligations under international law; whereas it is
for the Court to determine whether the conditions laid down in Article 15 for the exercise of the
exceptional right of derogation have been fulfilled in the present case6.
The Court then moved to consider whether there did, in fact, exist a ‘public emergency
threatening the life of the nation’ in line with Article 15(1), by establishing first what it
called the “natural and customary meaning of the words”. The Court considered this
2 Ireland v. The United Kingdom, (1978) 2 European Human Rights Reports 25, para. 207. Note that
unless otherwise indicated, the paragraphs citied in reference to early cases of the European Court
correspond to those found under the Court’s heading “As to the Law”.
3 Brannigan and McBride v. United Kingdom, (1993) 17 European Human Rights Reports 539, para. 43.
4 Aksoy v. Turkey, (2002) 34 European Human Rights Reports 57, para. 86.
5 Sakik and Others v. Turkey (1998) 26 European Human Rights Reports 662, para. 39. See also Sadak v.
Turkey, 8 April 2004, para. 56; Yurttas v. Turkey, 27 May 2004 para. 58; and Abdülsamet Yaman v. Turkey,
2 November 2004 para. 69.
6 Lawless v Ireland, (1979-80) 1 European Human Rights Reports 15, para. 22.
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phrase to be “sufficiently clear”; as it refers to “an exceptional situation of crisis or
emergency which affects the whole population and constitutes a threat to the organised
life of the community of which the State is composed”7.
7 Having decided that Ireland was justified in declaring a state of emergency, the Court
applied the second prong of its test which related to the “exercise of the exceptional right
of derogation”; that is: the Court examined whether the measures taken were ‘strictly
required by the exigencies of the situation’. In seeking to establish the parameters of
what measures would be ‘strictly required by the exigencies of the situation’ the Court
would later invoke its ‘margin of appreciation’ rule, as it considered that the “limits on
the Court’s powers of review […] are particularly apparent where Article 15 is
concerned”8. In Ireland v United Kingdom, the Court noted that the primary
responsibility for determining whether the life of the State was threatened and “how far it
is necessary to go in attempting to overcome the emergency” rests with the State Party. It
then went on to say:
By reason of their direct and continuous contact with the pressing needs of the moment, the national
authorities are in principle in a better position than the international judge to decide both on the
presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this
matter Article 15 para. 1 leaves those authorities a wide margin of appreciation.9
The European Court then considered whether, in the case at hand, the measures were
strictly required, while providing the United Kingdom a margin of appreciation to make
such a determination. Having evaluated the actions of the United Kingdom, the Court
concluded that these could “reasonably have been considered strictly required for the
protection of public security and that, in the context of Article 15 their intrinsic necessity,
once recognised, could not be affected by the restriction of their field of application”. As
a result, “the Court accepts that the limits of the margin of appreciation left to the
Contracting States by Article 15 para. 1 were not overstepped by the United Kingdom”10.
8 A final substantive obligation under Article 15(1) of the European Convention is that
any measures which States take derogating from their obligations, must be consistent
with ‘other obligations under international law’. The European Court of Human Rights
has developed limited jurisprudence regarding this clause; which, as Professor J.G
Merrills notes, “may be regarded as a way of harmonizing the legal position of the
Convention with the situation of general international law”11. In Lawless the Court
determined that, failing reference to this provision by the parties, it was required as a
“function of the Court, which is to ensure the observance of the engagements undertaken
by the Contracting Parties […] to determine proprio motu whether this condition has
been fulfilled in the present case”. Yet, having done so, the Court noted that:
7 Id., para. 28.
8 Ireland v United Kingdom, op. cit., n. 2., para. 207.
9 Id., para. 207.
10 Id., paras. 213 and 214.
11 J.G Merrills, The Development of International Law by the European Court of Human Rights, 1993, p.
207.
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no facts have come to the knowledge of the Court which give it cause hold that the measure taken by
the Irish Government derogating from the Convention may have conflicted with the said Government's
other obligations under international law12.
In the 1989 Brannigan and McBride case, the Court considered the phrase ‘other
obligations under international law’ by making reference to Article 4 of the International
Covenant of Civil and Political Rights (ICCPR), though it added little to the development
of the jurisprudence of this provision13. In that case, the applicants argued that the
notification of derogation was not ‘officially proclaimed’, as required by the derogation
provisions of the ICCPR. The Court, for its part, noted that it “is not its role to seek to
define authoritatively the meaning of the terms ‘officially proclaimed’ in Article 4 of the
Covenant. Nevertheless it must examine whether there is any plausible basis for the
applicant’s argument in this respect”14. Undertaking such an examination, the Court
determined that the public statement made by the British Government of its intension to
derogate from the Convention “was well in keeping with the notion of an official
proclamation”15.
II. Derogations by States and the Jurisprudence of the European Court
9 Having considered the manner in which the European Convention allows for
derogation under Article 15, consideration now turns to the rights which States have
derogated from, as reflected in the jurisprudence of the European Court. The European
Court of Human Right has dealt with approximately a dozen cases in which a State Party
has invoked the derogation provisions of the European Convention. The first of these
cases was also the first dealt with by the Court: Lawless v. Ireland. In that case Mr.
Lawless, an admitted member of a splinter group of the Irish Republic Army (IRA), who
had on two previous occasions been arrested: the first leading to his acquittal on weapons
charges; the second leading to his conviction of possession of incriminating documents
(i.e.: “a sketch map for an attack of certain frontier posts between the Irish Republic and
Northern Ireland was found on him bearing the inscription ‘Infiltrate, annihilate and
destroy’”)16. He was subsequently detained trying to board a ship for England in 1957;
12 Lawless v Ireland, op. cit., n. 6, paras. 40 and 41.
13 Article 4 of the ICCPR reads:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under
the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international law and do not involve discrimination solely on
the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the
other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
14 Brannigan and McBride, op. cit., n. 3, para. 72.
15 Id., para. 73.
16 Lawless v Ireland, op. cit., n. 5, para. 19 of the Facts.
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and held on the opinion of the Irish Minister of Justice that he was “engaged in activities
prejudicial to the security of the State” under the Offence against the State Act of 1940,
for nearly five months without appearing before a judge. The Court considered whether
that detention and the Act violated the provisions of Article 5(1)(c) and (3). Article 5(1)
(c) related to the deprivation of liberty in cases of:
the lawful arrest or detention of a person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after having done so;
Whereas Article 5(3) of the European Convention reads:
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be
brought promptly before a judge or other officer authorised by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
10 The European Court reasoned that the “grammatical” meaning (i.e.: ordinary meaning)
of these provisions was clear; and as a result, it having been shown “that the detention of
G.R. Lawless […] was not ‘effected for the purpose of bringing him before the competent
legal authority’ and that during his detention he was not in fact brought before a judge for
trial ‘within a reasonable time’; […] it follows that his detention […] was contrary to the
provisions of Article 5, paras. 1(c) and 3”17. Taking on a grammatical interpretation of
these provisions was, in the Court’s estimation, in keeping with the purpose of the
Convention: to “protect the freedom and security of the individual against arbitrary
detention or arrest”. To interpret the provisions in any other light would mean that:
anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an
unlimited period on the strength merely of an executive decision without its being possible to regard his
arrest or detention as a breach of the Convention; whereas such an assumption, with all its implications
of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the
Convention18.
Despite the finding by the Court that there was no legal foundation for the detention of
Mr. Lawless under Article 5, the Republic of Ireland was found not to be in breach of the
European Convention, as it had derogated from its provisions through its invocation of
Article 15; and the measures were found to have been strictly required by the exigency of
the situation19.
17 Id., para. 15.
18 Id., para. 14.
19 The Court noted that the substance of the 20 July 1957 letter of the Irish Minister for External Affairs to
the Secretary-General of the Council of Europe indicated the following derogation:
“... Insofar as the bringing into operation of Part II of the [Offences against the State] Act, which confers special
powers of arrest and detention [in relation to “unlawful organization” and “activities prejudicial to the preservation
of public peace and order or to the security of the State”], may involve any derogation from the obligations
imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, I have the honour to
request you to be good enough to regard this letter as informing you accordingly, in compliance with Article 15 (3)
(art. 15-3) of the Convention.”. See id., para. 8 of the Facts.
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11 In Ireland v. United Kingdom – a rare instance of an inter-State claim – Ireland sought
to have the United Kingdom respect its obligations under the European Convention in
Northern Ireland. While the European Court would find the United Kingdom in breach
of Article 3 (Prohibition of torture); it also found – though granting the United Kingdom
a ‘wide margin of appreciation’ – that the derogation which had taken place with respect
to Articles 5 and 6 was compatible with the obligations of Article 15. The case revolved
around “a series of extrajudicial powers of arrest, detention, and internment” during the
period between 1971 and 1975, which took place as a result of the ‘Troubles’ among the
two communities – one ‘Loyalist’ (loyal to the British Crown) the other ‘Republican’ (in
favour of an Irish republic north and south of the border) – “divided by deep and long-
standing antagonisms”20. During this period, in an attempt to stem Republican violence,
the United Kingdom authorized a number of special powers which, though modified over
time, allowed for the extra-judicial deprivation of liberty21.
12 The European Court noted that these extra-judicial powers fell into “three basic
categories”: initial arrest for interrogation; detention for further interrogation; and
preventive detention or internment. While these three types of powers were modified
overtime, those enforced between 1971 and British direct rule in 1972 are indicative.
With regard to the first power, a police officer could arrest without warrant (it was not
conditional on suspicion) and detain an individual for up to forty-eight hours for the sole
purpose of interrogating a person with an option to arrest “for the preservation of the
peace and maintenance of order”. The second of these powers allowed the police, British
Army or those authorized by the Minister of Home Affairs, to arrest without warrant a
person on suspicion of also acting in a manner prejudicial to the preservation of the peace
of maintenance of order. The arrests were open-ended but in practice were limited to
seventy-two hours. They could take place after an ‘initial arrest for interrogation’ and
generally speaking provided limited access to the courts. Under these same powers,
individuals held could be detained in prison indefinitely, though “in practice, generally,
[this was limited ] to twenty-eight days”22. The final extra-judicial power was vested in
the Minister of Home Affairs who, on the basis of preserving the peace, could intern an
individual without charge for a unlimited time, which was reviewed by a committee
which could recommend, but not order release. “The individual had no right in law to
appear” before this committee, the European Court noted, “to test the grounds for
internment, to examine witnesses against him or to call his own witnesses”23.
13 Under the original system of the European Convention – before the coming into force
of Protocol 11 in 1988 – a ‘European Commission on Human Rights’ shared the
20 Ireland v United Kingdom, op. cit. n. 2, paras. 11 and 15.
21 The United Kingdom provided the Secretary-General of the Council of Europe with six notices of
derogation over the period of 1957 to 1975 in which it “drew attention to the relevant legislation and
modifications” of the ‘special – extra-judicial – powers’ it had invoked. See id., para. 79 and paras. 80-84
of the Facts. Note that in the case brought by Ireland however, only dealt with derogations in force
between 1971 and 1975.
22 Id., para. 83.
23 Id., para. 84. Note that the three categories of powers were modified when the United Kingdom
invoked direct rule in 1972 and again in 1973 by way of the Special Powers Act.
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Convention’s supervisory role with the Court, considering issues first, and providing
reports to the Court when the latter seized a matter. With respect to the case at hand, the
Commission was of the opinion that the British special powers did not comply with
Article 5 (1),(2),(3), and (4). With respect to Article 5(1) the Court made plain that the
detention ‘for the preservation of the peace and maintenance of order’ was ultra vires;
and, generally speaking, those that were detained on ‘suspicion’ could only be held
legally if it was in line with Article 5(3): to bring them “before a competent legal
authority”. “Yet this condition” the Court noted: “was not fulfilled”24. The Court went
on to note that the provisions of Article 5(2 through 4) “place the Contracting States
under an obligation to provide several guarantees in cases where someone is deprived of
his liberty”. Yet the Court would show that each of these provisions was breached.
Article 5(2) mandates that those arrested be informed promptly of the reasons for their
arrest and charges against them. The Court noted that in “point of fact” individuals “were
not normally informed why they were being arrested”25. As to Article 5(3), which
requires that those arrested to be brought promptly before a judge and to be entitled to a
fair trial within a reasonable time; the Court stated that “the impugned measure were not
effected for [this] purpose”. Finally, as regards Article 5(4) and the right of habeas
corpus, the Court determined that “judicial review of the lawfulness of the measure in
issue was […] not sufficiently wide in scope, taking into account the purpose and object
of Article 5 para. 4”26. Thus the Court was in agreement with the assessment of the
European Commission on Human Rights.
14 In both Lawless and Ireland v. United Kingdom the European Court found not only
potential violations to Article 5, but also, in a general manner, to the provisions of Article
6 of the European Convention related to fair trial. In Lawless, although the Court noted
the rules of Article 6 “are irrelevant to the present proceedings”, it determined
unanimously that “Articles 5 and 6 of the Convention provide no legal foundation for the
detention without trial of G.R. Lawless”27. The resolution to the contradiction in these
statements is to be found, however, in the finding of Ireland v. United Kingdom, where
the Court noted:
assuming Article 6 to be material, the derogations from the guarantees of a judicial nature afforded by
Article 5 perforce involved derogating from those afforded by Article 6. The Court has already held
that the derogations from Article 5 met the requirements of Article 15; in the circumstances of the case,
it arrives at the same conclusion as regards the derogations from Article 6.
In both cases, therefore the Court found that administrative detention without judicial
supervision was not in conformity with an individuals right to liberty but could also be at
odds with their right to a fair trial; though both potential violations were saved by the
derogation under Article 15.
15 In the final case related to events in Northern Ireland where Article 15 was invoked
successfully, the Court considered that the United Kingdom’s derogation had satisfied the
requirements of the European Convention and thus the ‘applicant cannot validly
24 Id., para. 196.
25 Id., see paras. 197 and 198.
26 Id., see paras. 199 and 200.
27 Lawless v Ireland, op. cit., n. 6, paras. 12 and the dispositif.
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complain of a violation of Article 5(3)’. The 1993 Brannigan and McBride v. United
Kingdom case was brought to the Court as a result of Brogan, wherein the United
Kingdom, having withdrawn its derogation, was found in breach of Article 5(3). In
Brannigan and McBride, the applicants had been arrested under the Prevention of
Terrorism Act 1984 and detained for six days and four days respectively without being
brought before a court of law. The British Government, having re-introduced its notice
of derogation so as to avoid a breach of Article 5(3), conceded that, as “both of the
applicants were detained for longer periods than the shortest period found by the Court to
be in breach of [Article 5(3) …] in the case of Brogan and Others, [...] the requirement of
promptness had not been respected in the present cases”. However, as the Court noted,
“the Government further submitted that the failure to observe these requirements of
Article 5 had been met by their derogation of 23 December 1988 under Article 15 of the
Convention”28. The Court, for its part found that, indeed, a breach of Article 5(3) had
transpired, but also accepted that the derogation from that provision was within the ambit
of Article 15 of the European Convention.
16 Where Turkey is concerned, its invocation of Article 15 has not been as successful as
the United Kingdom. In essence, what has been witnessed in the evolving jurisprudence
of the European Court in a number of Turkish cases is the establishment of limits on the
derogation afforded to State Parties. Starting with the 1997 Aksoy v. Turkey case, the
Court established the parameters on extra-judicial detention during states of emergency
so as to conform to the exigencies of the situation. Between 1985 and when Aksoy was
heard, the conflict between Turkish security forces and “sections of the Kurdish
population in favour of Kurdish autonomy” had claimed more than seven thousand lives.
In August 1990, Turkey informed the Council of Europe that: “The Republic of Turkey is
exposed to threats to its national security in South East Anatolia which have steadily
grown in scope and intensity over the last months so as to amount to a threat to the life of
the nation in the meaning of Article 15 of the Convention”, and thus made a notification
that it was derogating from, inter alia, Articles 5 and 6 of the European Convention29.
28 Brannigan and McBride v. United Kingdom, op. cit. n. 3, para. 37 and 38. By way of a letter addressed
to the Secretary General of the Council of Europe dated 23 December 1988, the United Kingdom availed
itself of the right to derogate. That letter reads in part:
“... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed
Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to
bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced.
He informed Parliament that the Government were examining the matter with a view to responding to the
judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the
Government's wish, if it could be achieved, to find a judicial process under which extended detention might be
reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection
and consultation was necessary before the Government could bring forward a firm and final view. Since the
judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to
exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above
enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to
the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations
properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that
the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government
have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue
to do so until further notice ...”. See para. 31.
29 Aksoy, op.cit., n. 4, paras. 8 and 31.
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During the period of this state of emergency, Mr. Zeki Aksoy was arrested as a suspected
member of the Worker’s Party of Kurdistan (PKK) and detained for fourteen days
without judicial supervision. During this period, Mr. Aksoy was subject to ill-treatment
of such a nature that the Court, for the first time, determined that ‘torture’ had taken
place.
17 While the Court agreed with Turkey that there was, in fact, a public emergency
which threatened the life of the nation, it considered that the measure taken, with regard
to unsupervised detention, could not be justified as being strictly required by the exigency
of the situation. The Court stressed “the importance of Article 5 in the Convention
system”:
it enshrines a fundamental human right, namely the protection of the individual against arbitrary
interference by the State with his or her right to liberty. Judicial control of interferences by the
executive with the individual’s right to liberty is an essential feature of the guarantee embodied in
Article 5 para. 3, which is intended to minimise the risk of arbitrariness and to ensure the rule of law.
Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill-
treatment, which, […] is prohibited by the Convention in absolute and non-derogable terms 30.
And while it acknowledged “that the investigation of terrorist offences undoubtedly
presented the authorities with special problems”, it went on to say: “it cannot accept that
it is necessary to hold a suspect for fourteen days without judicial supervision. The
European Court continued: “This period is exceptionally long, and left the applicant
vulnerable not only to arbitrary interference with his right to liberty but also to torture”31.
Making reference to Brannigan and McBride and noting that safeguards in Northern
Ireland had protected against “arbitrary behaviour and incommunicado detention”, the
Court determined that:
In contrast, however, the Court considers that in this case insufficient safeguards were available to the
applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer,
doctor, relative or friend and the absence of any realistic possibility of being brought before a court to
test the legality of the detention meant that he was left completely at the mercy of those holding him.
As such, the European Court found such measures did not meet the requirements of
Article 15, that is to say they were not strictly required.
18 While in Demir and Others v. Turkey and Dikme v. Turkey, the Court considered
detention of sixteen to twenty-free days without judicial supervision to be ultra vires
Article 15 – that is, longer than the fourteen day period of detention in Aksoy – in Nuray
Sen v. Turkey, it was called upon to consider the detention of eleven days without
appearance before a court32. The Court noted in Sen that the fact that issues of terrorism
were at play did not give police “carte blanche under Article 5 to arrest suspects for
questioning, free from effective control by the domestic courts and, ultimately, by the
Convention supervisory institutions”. Noting that Turkey had failed to differentiate this
case from Aksoy or Demir, the Court determined that it was “not persuaded to depart
30 Id., para. 76.
31 Id., para. 78.
32 See Demir and Others v. Turkey, (2001) 33 European Human Rights Reports, 43, paras. 49-58.
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from its conclusions in those two cases”, and thus found that the breach of Article 5 could
not be saved by the provisions of Article 1533.
III. Other Obligations under International Law
19 Although the European Court has been slowly dwindling the number of days which an
individual may be detained without judicial supervision, it has been doing so within the
context of Article 15 and what it considers as being strictly required by the exigencies of
situations in which there exists a state of emergency. The introduction of a thorough
examination of the ‘other obligations under international law’ clause mandates that the
Court distance itself from its previous jurisprudence under Article 15. In essence this
stems from the fact that the judgments of the European Court, regarding derogation under
Article 15, have dealt primarily with issues of judicial guarantees of detained individuals:
that is issues of the right to liberty and security (Article 5) and right to fair trial (Article 6)
which have emerged internationally as rights which can not be derogated from in times of
emergency. It is no understatement to say, therefore, that what should emerge from the
European Court’s evaluation of Article 15 in light of the ‘other obligations under
international law’, is a fundamental rewriting of what is allowed under a state of
emergency within the Council of Europe.
20 Although the European Court of Human Rights has not had the opportunity to
consider the phrase “measures [which] are not inconsistent with its other obligations
under international law” since the rendering of its judgment in Brannigan and McBride
more than fifteen years ago, there has been a marked evolution, in the interim, as regards
such obligations. Where measures would be seen as being inconsistent with ‘other
obligations under international law’ would be in situations where such measures would
violate norms which can not be suspended, even in times of emergencies. Here we are
speaking of ‘non-derogable rights’ such as those enumerated in Article 15(2) of the
European Convention. Article 15(2) establishes that no derogation is to take place from
the right to life (Article 2) “except in respect to deaths resulting from lawful acts of war”;
the prohibition of torture (Article 3); the prohibition of slavery and forced labour (Article
4(1)); and no punishment without law (Article 7). Yet beyond Article 15(2), a number of
non-derogable rights have emerged which will have fundamental implications on the
jurisprudence of the European Court of Human Rights.
21 Before considering the evolution of non-derogable human rights provisions which
have manifest themselves internationally, one should take a moment to consider the
gateway to general international law that Article 15(1) provides. While the European
Convention, at Article 53, establishes safeguards with respect to existing rights; those
safeguards should be considered as being – where international law is concerned –
narrower than those established by Article 15(1). Article 53 reads:
33 Nuray Sen v. Turkey, 17 June 2003, para. 27.
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Nothing in this Convention shall be construed as limiting or derogating from any of the human rights
and fundamental freedoms which may be ensured under the laws of any High Contracting Party or
under any other agreement to which it is a Party.
The final phrase of this Article 53 speaks not of ‘other obligations under international
law’ as does Article 15(1); but instead of ‘other agreement to which it is a Party’. Thus
while Article 53 safeguards international treaty rights, it is silent on customary
international law. By contrast, the provisions of Article 15(1) by speaking of ‘obligations
under international law’ go beyond the scope of Article 53 and allows for Court
consideration of not only conventional obligations, but those established through custom;
which, as will become apparent, are fundamental to non-derogable rights.
22 The evolution of additional non-derogable rights developing internationally can be
traced to the work of non-governmental bodies which, in 1984, developed non-binding
standards related to derogation during states of emergency. In September of that year, the
International Law Association (ILA), after “6 years of study by a special subcommittee,
and 2 additional years of revisions […] approved by consensus a set of minimum
standards governing the declaration and administration of states of emergency […],
including 16 articles setting out the nonderogable rights and freedoms to which
individuals remain entitled even during states of emergency”34. Of the non-derogable
‘rights’ put forward by the International Law Association in its Paris Minimum Standards
of Human Rights Norms in a State of Emergency, some were already established in law,
for instance, those found in Article 15(2) of the European Convention of Human Rights;
while other proposed rights need not detain us, as this list was reduced when inter-
governmental bodies sought to move beyond lex ferenda to identify non-derogable rights
lex lata35. Worth highlighting however are the standards which the non-governmental
ILA puts forward regarding the right to liberty, wherein it called for the right to
communicate with an attorney “at any time after detention”; the right to have a case
reviewed within 30 days by a “judicial or quasi-judicial body”; and that the remedy of
habeas corpus be available to ensure “the supervisory jurisdiction of a competent court of
law”36. Of further note was the provision regarding fair trial, wherein the International
Law Association called for the “right to be informed promptly and in detail” of charges;
that the “defendant has the right to be presumed innocent until proved guilty according to
law”; and that “no person accused of any offence shall be compelled to be a witness
against himself”37.
34 Richard Lillich, “The Paris Minimum Standards of Human Rights Norms in a State of Emergency”,
American Journal of International Law, Vol. 79, 1985, p. 1072.
35 The Paris Minimum Standards of Human Rights Norms in a State of Emergency set down the following
non-derogable articles:
1) Right to Legal Personality; 2) Freedom from Slavery; 3) Freedom from Discrimination; 4) right to Life; 5)
Right to Liberty; 6) Freedom from Torture; 7) Right to Fair Trial; 8) Freedom of Thought, Conscience and
Religion; 9) Freedom from Imprisonment for Inability to fulfil a contractual obligation; 10) Right of Minorities;
11) Rights of the Family; 12) Right to a Name; 13) Rights of the Child; 14) Right of Nationality; 15) Right to
Participate in Government; and 16) Right to a Remedy.
36 See Article 5(2)(a-c) and (3), The Paris Minimum Standards of Human Rights Norms in a State of
Emergency, id., pp. 1076-1077.
37 Id., Article 7(1), (5), and (9), p.1079.
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