Introduction to ECHR: Protecting Human Rights and Fundamental Freedoms
The ECHR, i.e., the European Convention of Human Rights 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 reasons, 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 nation. 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 order. 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.
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 War. 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 reasons. 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 protected. This very motivation, at various instances, has resulted in the concealment of the major contraventions of the human rights.
Derogation and State of Emergency: Reasons Behind the Need for a Balance
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 under the ECHR in exceptional situation and in a limited and supervised manner. 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 Rights. 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 course. Under part 2 of this article, some of the fundamental rights are protected which are covered in the ECHR, from any kind of derogation. Under part 3 of this article, the procedural requirements have been set out which the member states, making the derogation, are required to adhere to.
The use of the derogation clause during the drafting of ECHR, ICCPR and even ACHR, i.e., the American Charter on Human Rights, could never be doubted. As a result of this clause, 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 power. 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 only.
Overview of Article 15 of the ECHR: A Derogation Clause for Exceptional Situations
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 covenant. 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 abrogation. The reasons which justify the use of these clauses are declaration of exceptional and temporary emergency stage where the life of the nation is threatened. 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 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 crisis.
Differentiation between Derogation and Limitations
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 controversial.
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 concerned. 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 test.
Categories of Human Rights: Derogable and Non-Derogable
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 Kingdom 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 Kingdom, 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 Turkey, 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 state.
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 Kingdom and case of Lawless v. Ireland (No. 3).
Non-Derogable Human Rights: A Controversial Concept
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 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 present.
The Need for a Better Coordination of the States during Emergency Situations
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 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 emergency.
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 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 ECHR.
Conclusion: Article 15 Fails to Strike a Proper Balance between States’ Rights and Human Rights
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 III of Offences against the State (Amendment) Act, 1940 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 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 General.
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 academicians. 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 normalcy. 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 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 manner.
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 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 Greece, 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 insurgents.
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 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 left.
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 Kingdom, 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, 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 normalcy.
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 both.
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 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 power.
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 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.
Offences against the State (Amendment) Act, 1940
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.
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)
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)
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)
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
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.
Conte A, ‘Handbook on human rights compliance while counter-terrorism’ (2008) <https://globalcenter.org/wp-content/uploads/2008/01/human_rights_handbook.pdf > accessed 22 November 2016
ECHR, ‘Derogation in time of emergency’ (November 2017) <https://www.echr.coe.int/Documents/FS_Derogation_ENG.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) <https://www.giurisprudenzapenale.com/wp-content/uploads/2016/04/Scarica-il-contributo.pdf> accessed 22 November 2017
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
