• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

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?

Extracts from this document...

Introduction

ECHR Essay - December 2002 Alexander Korff 000378523 Article 15 - Derogation in time of emergency 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? 1. Introduction The international guarantees for the protection of human rights are of special importance in times of war or national emergencies, as it is precisely then that States will be most likely to deviate from the standards of human rights that would be accepted in times of peace. There are clear reasons why, to give an example, States may require that the period of time for which a person is detained is extended. The interpretation of whether the measures taken were justified at the time and whether the steps taken were 'strictly' necessary and whether a national emergency even exists need to be scrutinised closely by the Courts when overseeing States who have derogated from certain Convention rights. To answer the above question it is necessary to look both at the precise wording of Article 15 and at the way in which that Article is applied by the European Court of Human Rights. ...read more.

Middle

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. ...read more.

Conclusion

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. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Human Rights Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Here's what a teacher thought of this essay

4 star(s)

Very well written, and focused. But perhaps a little too descriptive.

3.5 / 4 Stars.

Marked by teacher Edward Smith 05/09/2013

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Human Rights Law essays

  1. Bellinger v Bellinger case note

    It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion...they are pre-eminently a matter for parliament'5. Similarly, in the case of Fitzpatrick6 when determining the word 'family' from the Rent Act 1977 Lord Sylnn of Hadley addressed what the role of the courts was.

  2. This essay will be divided into four sections. In the first section, the issue ...

    This essay will be divided into four sections. In the first section, the issue about toleration and freedom of speech is discussed. In the second section, the idea of hate speech will be defined. And the related issue of hate speech will be discussed in third section.

  1. The common law of defamation is structured around Article 10 of the European Convention ...

    As Judge Bray stated, "there is no doubt that to give rise to an action in defamation there must be a publication by the defendant. That is the foundation of the action."7 Previously any person at common law who distributed a defamatory statement was liable, including not only the author,

  2. human rights

    Many people believe that the HRA is one of the major achievements of this government. Because the Convention is now over 50 years old some of the language that it uses is quite outdated. However, the ECHR has often stressed that the Convention is a 'living instrument'.

  1. The Human RIghts Act Has Revolutionised the Way Judges Interpret Statutes. Discuss.

    However, although the HRA 1998 does not oblige the English courts to follow the jurisprudence of the Strasbourg Courts, they should do so in the absence of special circumstances. [4] Statutory Interpretation in the English Courts 5 The modern approach to statutory interpretation is the purposive approach where judges interpret a statute according to its purpose as intended by Parliament.

  2. Human Rights Act 1998: Are all human rights absolute and inalienable?

    Article 15 ECHR permits the derogation of a Contracting Party's commitments under the Convention 'in time of war or other public emergency threatening the life of the nation...'. [11] In the aftermath of the September 11th, 2001 attacks on Washington and New York, the UK government entered a derogation under

  1. What kind of responsibility do some states have for the rights of the subjects ...

    It is the new rule of international law. It consists of several principles, united by the idea that sovereignty is not a privilege but a duty. In accordance with this concept, sovereignty gives states not only the right to control their internal affairs, but also imposes a responsibility to protect the people living outside the borders of these countries.

  2. Human Rights - Articles 6 and 8 applied to fictitious cases.

    Mike would, therefore be unable to bring the case based on Article 8 and would have to base his claim on an existing common law. However, as stated by Glidewell JL in Kaye v Robertson and Sports Newspapers Ltd [1991] FSR 62 there is no right to privacy in English Law.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work