Does Article 15 of the European Convention on Human Rights achieve the correct balance between allowing States to tackling situations involving a national emergency and ensuring continued protection of human rights?

Secondly, Article 15(1) the Convention stipulates that States that choose to derogate (i.e. from derogable rights), should only do so "to the extent strictly required by the exigencies of the situation". Thirdly, and crucially to the interpretation of Article 15 (as regards the question of derogability), it is also stated in Article 15(1) that any derogating measures "are not [to be] inconsistent with [the State's] other obligations under international law". This affirms for the specific context of Article 15, the general rule contained in Article 53 of the Convention, that "Nothing in this Convention shall be construed as limiting or derogating from any of the human rights or 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". These references to the Contracting Parties' other international obligations are important because all the High Contracting Parties to the ECHR are also party to the UN International Covenant on Civil and Political Rights (ICCPR) and to the Geneva Conventions as well as other international human rights treaties.

Finally, Art. 15(3) ECHR States that "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 therefore". Which should act as a mechanism for ensuring the derogating States are still able to be held accountable to the Court.

As far as the question of (non-) derogability is concerned, the ICCPR, like the ECHR, lists a number of rights from which Contracting Parties may not derogate - but two of the rights listed (in Art. 4 ICCPR) as non-derogable in the ICCPR are not mentioned in Article 15 ECHR. These are the rights contained in Articles 11 and 18. The latter of which States that "Everyone shall have the right to freedom of thought, conscience and religion". Article 11 is less significant and States that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation". The ICCPR also States in Article 4(1) that derogations must "not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin".

The stipulations in Art. 15 ECHR and Art. 53 ECHR, referred to above, mean that when derogating from the ECHR, States are still required to act in accordance with the ICCPR and other international treaties including the Geneva Conventions. Contracting Parties to the ECHR which are also party to the ICCPR and the Geneva Conventions may therefore not derogate from the right to freedom of religion, or the right not to be imprisoned for civil debts, and may not discriminate in the application of their derogating measures, even though these latter restrictions are not, as such, contained explicitly in the Convention.

3. Application of Art. 15 in practice

The Court is very cautious in applying Art. 15; it gives a wide "margin of appreciation" to States. The concept of the "margin of appreciation" is that the Courts assume that the domestic governments are "in principle better placed than the international judge .. to decide on the presence of such an emergency", this approach by the Court was first developed in the Greek Case1. From the point of view of the Court it is reasonable that the domestic authorities are better equipped to evaluate (often historical and deep-entrenched) political instability which has lead to the types of national emergency for which countries have derogated. It is of importance that Art. 15 has mostly applied not to "real" wars but to low-intensity insurgencies and terrorism, i.e. to situation which do not usually really threaten the collapse of the State concerned (although they can still be very serious) and which also tend to last for very long, ill-defined periods: it is always difficult to determine when a terrorist threat has disappeared. In Brannigan & McBride2, three human rights organisations3, in a third party intervention, argued that the "margin of appreciation" should be increasingly limited with regard to such "semi-permanent quasi-emergencies", and that the "margin of appreciation" should be reduced over time (i.e. Northern Ireland and the IRA terrorist threat). However, the Court rejected this. In Brogan and Others v. The United Kingdom4 the partly dissenting opinion of Sir Basil Hall, concurred that "Having regard to the need to strike a balance between the interests of the individual and the general interest of the community, I do not consider that the legislature has prescribed an obviously excessive period [of detention]". This further emphasises the stance of the Court when it comes to accepting the decision of a domestic authority that the 'exigencies' justified the measures taken.

Also, the requirement that States must inform the Secretary-General of the Council of Europe of the measures taken and the reasons for them is not, in practise, used to impose upon the States a strict duty to justify their actions in detail. This safeguard too therefore does not impose any serious constraints on States which is another criticism by human rights organisations.

4. Conclusion

A derogation clause is clearly required in order to encourage a larger number of States to adopt a general level of human rights protection while also allowing States to deal with exceptional threats to national security (political instability in Greece, Northern Ireland, Cyprus and Turkey are recent examples). States are also unable to derogate from what are arguably the most important human rights; the right to life (except when death results from lawful acts of war), prohibition of torture, prohibition of slavery and forced labour (only Article 4(1), the rest of Article 4 can be derogated from in time of war or other public war threatening the life of the nation) and finally the prohibition of punishment without law, which prevents citizens being prosecuted retrospectively.

Interestingly, it would appear from the text of Article 15 that the Courts will be strict on the States that derogate from the derogable Articles of the ECHR, particularly when the term 'national emergency' appears to have a very different now than it perhaps did after the Convention was created (i.e. post World-War II Europe), where one of the main priorities was to prevent the atrocities that occurred during a full-scale world-war. There is therefore a conflict between the apparently strict text of the Article and the reluctance that the Court has shown to interfere with States decisions about the existence of, and measures required in order to deal with national emergencies. This is seen by the Courts tendency to rule in favour of the States, as was the case in Lawless v. Ireland5: "Adopting, as it must, this approach, the Court accepts that the limits of the margin of appreciation left to the Contracting States by Article 15 para 1 (art 15-1) were not overstepped by the United Kingdom...". This serves to highlight, as I hope this essay has done, that perhaps a correct balance is not in fact achieved in practise by Article 15 and that in situations involving national emergencies, the protection and enforcement of human rights is potentially vulnerable to say the least.

Bibliography

> Alistair Mowbray - 'Cases and Materials on the European Convention on Human Rights'

> Harris, O'Boyle and Warbrick - 'Law of the European Convention on Human Rights'

> Susan Marks - 'Civil Liberties at the Margin: The UK derogation and the European Court of Human Rights' 15 OJLS (1995)

Electronic Reference

> Westlaw UK - EU database

> Iolis CD ROOM 2002 / 2003 - 'European' and 'International' sections

> http://www.echr.coe.int/ (HUDOC)

Commission Report of 5th November 1969, YB ECHR Vol.12

2 (1993) 17 EHRR 539, ECtHR

3 Amnesty International, InteRights & NCCL

4 Series A, No. 145-B (1988)

5 A.3 (1961) 1 EHRR 15