"The European Convention on Human Rights, as well as its interpretation by the Strasbourg bodies, is so riven with exceptions, derogations and state 'get-outs' that the protection afforded by it has been far inferior to what one would have anticipated at its inception."
INTRODUCTION
Individual rights are not absolute. This very clear assertion assumes that, the individual rights are subject to some reasonable restriction for the sake of community interests. The international conventions, covenants, treaties reflects this rationality with the some ‘derogation clauses’ where accepts restricting individuals rights to preserve national security, public order, moral values. The authors of the European Convention on Human Rights also guaranteed this rationality in the convention. The very rationality of protecting public interest and national security in line with individual rights in the most international conventions has brought a compromise between state parties of the conventions and the international organs. While the state parties to the international instruments protecting human rights in one hand attempting to retain their sovereign powers, the international organs are in the tendency to achieve maximum application of treaty or convention terms. This compromise between states and the international organs has long been achieved by the so called derogation clauses. These clauses in the international instruments, mainly, provides states with a wide discretion to determine whether there is a threat to their national security or public order and provides a right to derogate from their treaty obligations. Sure each treaty safeguards some main rights as non-derogable rights. And obligations under international law also secured in the treaty terms. One of the oldest and effective international instruments, European Convention on Human Rights also contains such clause. Article 15 of the ECHR precisely deals state right to derogate. The article put forwards the main requirements that should be satisfied and a notification procedure should be followed. The main concern with the derogation article is that window of vulnerability in the application of article. The very clear assumption that international organs’ lack of supervision powers especially in the time of emergencies strengthened the concerns regarding the abuse of the derogation articles. The wide margin of appreciation provided states in the assessment of emergencies on the other hand creates another important excuse to claim that there is insufficient human rights protection. Nonetheless there are also many advantages of the derogation articles, which at least provide temporary limitation of international conventions rather than total abandonment of treaties or wide reservations of treaty terms. This paper will analyze the ECHR article 15 in accordance with subsequent case law. On the other hand pros and cons of derogation articles will also be discussed in the second part of the paper.
DEROGATION CLAUSE ARTICLE 15:
The convention provides state parties exceptional right for derogation. Convention permits derogations of from the obligations prescribed in the text of convention however this exclusive right firstly limited to the certain situations and this right is not exclusive in the time of emergencies as well. Article 15[1] puts forwards that States Parties do not have any right to derogate from Article 2, "except in respect of deaths resulting from lawful acts of war". On the other hand the second paragraph does not permit any derogation form article 3, 4 and 7. The third paragraph of the article 15 reads the procedure applicable. Accordingly the State Party should keep the Secretary General fully informed of the measures taken and the reasons behind it. It should be noted that the measures taken by the state parties should be exceptional and temporary.
Thus what that it mean to derogate from certain human rights in the time of emergency? It is very clear that the Human rights in essence subject to vast violation in the time of emergencies and should be protected well enough than the time of peace. It is sure that the article 15 can be used to extend the state of emergency and crises as well. The very answer of this question is firstly relies on defining the state of emergency. In the Lawless case[2] after IRA’s declaration of war to Great Britain, Irish government issued 1940 act for giving detention powers to the ministers of state. When IRA attacks intensified during 1956-1958, Irish government acted according to 1940 act and informed Secretary – General of the Council of Europe for the invocation to the article 15, the derogation clause. Lawless arrested according to 1940 act fro being member of the IRA, after his release he took the case before Strasbourg Court. The court in this first case before it found an opportunity to discuss the terms of article 15. Whether there was a public emergency threaten the nation? The very definition of this requirement for the satisfaction of article 15 held by Judge Maridakis, in his individual opinion. He stated that;
“By ‘public emergency threatening the life of the nation’ it is to be understood a quite exceptional situation which imperil the normal operation of public policy established in accordance with the lawfully expressed will of citizens, in respect alike of the situation inside the country and of relations with foreign powers.”[3] The commission identified the public emergency within four main topics; accordingly; “it must be actual or imminent; its effects must involve the whole nation; the continuance of the organized life of the community must be threatened; and the crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.”[4]
In he Lawless case, the Court unanimously concluded that the Irish government satisfied the requirements under article 15, the right to derogate from the treaty obligations. However one of the most important points here that should be underlined is the paragraph 27 of the case;
Whereas the Commission, following the investigation carried out by it in accordance with Article 28 (art. 28) of the Convention, expressed a majority opinion in its Report that in "July 1957 there existed in Ireland a public emergency threatening the life of the nation within the meaning of Article 15, paragraph 1 (art. 15-1), of the Convention"[5]
The commission’s investigation can be conducted after the cease of emergency situation so its fact finding ability is obviously limited. Thus the convention’s ability to protect what it ought to protect in the time of emergency seems limited. A more precise description n the terms of defining and determining the emergency situation is held in the Ireland v. United Kingdom case where the court held 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. 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(1) leaves the authorities a wide margin of appreciation.”[6]
Then in the Lawless case, court turned to the question of as whether the measures taken in derogation from obligations under the convention were ‘strictly required by the exigencies of the situation’. Article 15 of the treaty provides that the state parties may derogate from their obligations only ‘to the extent strictly required by the exigencies of the situation’. This requirement to use the derogation clause is rest on the principle of proportionality. Courts first focus in the Lawless case was on the whether the ordinary law is able to check the growing danger which threatened the Nation. Court concluded that;
“In 1957 the application of the ordinary law had proved unable to check the growing danger which threatened the Republic of Ireland; whereas the ordinary criminal courts, or even the special criminal courts or military courts, could not suffice to restore peace and order.”[7]
The second point of the proportionality was does the measures taken is proportional with the situation. This requirement has been discussed in the Greek case.
In the Greek Case; Commission in one hand find that the circumstances did not satisfied the conditions for public emergency, on the other hand concluded that ‘even on the assumption that an emergency existed, the sweeping and unspecified derogations and the measures taken went beyond what was strictly required’[8]
One other center of focus in the application of article 15, the derogation clause, is the court’s attention to the so called “alternative safeguards”. In the Lawless case court found that if the detention commission (which is established according to Act 1940); ‘reports that no reasonable grounds exist for the continued detention of the person concerned, such person shall, with all convenient speed, be released.’[9] That is establishment of a check and supervision body also required essential for the legitimate application to the derogation clauses.
In order to be applicable the measures taken under the derogation clauses should be inconformity with the international law, that is should not be inconsistent with the other obligations of international law. In regard to other obligations of international law, the article 15 provides a safety mechanism in which violation of other international obligations also violates the treaty obligations. In the case of public emergencies, most importantly the provisions of international humanitarian law, precisely the international humanitarian law has been mentioned.[10] On the other hand the state parties’ derogation from the convention terms should not be in conflict with the states other obligations under international law. At the last point the article 15 continues with the notification requirement. Accordingly; “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.”[11]
AKSOY V. TURKEY[12]
Turkish government due to PKK terrorist activities in South- East of Turkey announced public emergency and noticed the Secretary General in 1990. The applicant Aksoy had been arrested on 26 November 1992 for being member of PKK terrorist organization and held in custody for fourteen days. The Turkish law was permitting thirty days custody in the emergency regions.
After Aksoy’s detention for fourteen days, the applicant brought the case before the Strasbourg on the basis of Turkish government’s violation of article 3 of the convention. As described above, the convention and the case law provides a wide margin of appreciation to the state to determine the existence of public emergency. However Aksoy case illustrated that this wide margin of appreciation does not mean the state parties have unlimited discretion. In the Aksoy case court emphasized that the most important limit applied to the states is Court’s ability to rule [w]hether inter alia, the states have gone beyond the ‘extent strictly required by the exigencies’[13]. It is thus [t]he domestic margin of appreciation is…accompanied by a European supervision. On the question of whether the measures were strictly required by the states; the Court considered that the detention period of the Aksoy which was undeniably long and could not be justified on the basis of article 15. In this instant case; Court held that “[t]he investigation of terrorist offences undoubtly presents authorities with special problems; it can not accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long and left the applicant vulnerable not only arbitrary interference with his right to liberty but also to torture.”[14] In this instant case Turkish governments’ allegation was necessity of police investigation in the time of terror in the South East of Turkey. However the Court held that the length of the unsupervised detention was not legitimate and proportional under the convention, article 15.
On the safeguard matters, court held that Turkish state on the lawful detention against torture was inadequate. The applicant allegation at this point was “unsupervised detention together with the lack of safeguards…facilitated the practice of torture”[15]. Moreover Court found that “the reports of Amnesty International (Turkey; a policy of denial, February (1995)) the European Committee against torture and United Nations Committee against torture showed that the safeguards contained in the Turkish criminal code, which were in any case inadequate, were routinely ignored in the state of emergency region.”[16] In considering notification procedure described in the paragraph 3 of article 15, Court’s main focus was on the whether there was sufficient information about the emergency and the measures taken noticed to the Secretary General. Court at this point held that although the notice of derogation contained sufficient information, the long tern unsupervised detention does not meet with the requirement described under paragraph 3 of article 15.
THE MARGIN OF APPRECIATION
One other limitation may be regarded as “margin of appreciation” whereby the doctrine developed as a balancing mechanism between the international protection of human rights and the states sovereign actions. Application of doctrine[17]introduced on three basic steps. First an essential phase of the doctrine is to investigate if there are common existing state practices among the state parties. Thus a European consensus is sought for the application of margin of appreciation doctrine. On the second phrase some narrow margin of appreciation is granted to the state governments for the sake of protecting democratic governments and basic liberties such as freedom of press in the Sunday Times case. On the third occasion, Court advocates using ‘the textual analysis of relevant convention provisions to determine the breadth of the margin in different cases’[18]
Although the margin of appreciation doctrine mainly assumes the use of the convention in a realistic way and renders it generally applicable there are some skeptical views for the application of doctrine in a way to escape form the state obligations. For instance Judge Macdonald expressed once that;
“The argument assumes that there is still a need for some pragmatic device which can accommodate the sovereignty concerns of the Contracting States. But perhaps the Convention system is now sufficiently mature to be able to move beyond the margin of appreciation and grapple more openly with the questions of appropriateness which that device obscures…The margin of appreciation should not permit the court’s evasion of its responsibility to articulate the reasons why its intervention in particular cases may or may not be appropriate. Until this responsibility is taken more seriously, the principled reasons which both justify and limit the Court’s role will remain buried beneath the pragmatism of the margin of appreciation, and the emergence of a theoretical vision of its role in the European legal order will continue to be limited.”[19]
WHY DEROGATION CLAUSES ARE NEEDED IN THE ECHR
It is not only European Convention on Human Rights but other international instruments related with the human rights protection also have such derogation clauses which permit state parties temporary suspension of the treaty terms in the time of emergencies which threaten the public order and national security.
Thus what is the rationale behind the authors of the convention placed such derogation clauses to the international treaties. The very reason behind this given right to the states to abstain from treaty terms in the times of emergency might be hindered in the term of “temporary.” It is sure that temporary suspension of treaty obligations is much more advantageous than the permanent denouncement of treaty terms. According to Christoph Schreuer;
“In the absence of such a legal safety valve, states might hesitate to join convention or might attach more significant reservations to their accession. Moreover, in situations of actual emergency, such as war, civil strifes or revolution, national elites may regard compliance as a low priority and may resort to broader claims to derogation like “necessity” or may even denounce the convention altogether.”[20]
As Schreuer also indicated, derogation clause of the ECHR (this is also applicable to the other conventions) provides an attractive nature to the convention to become party, otherwise governments’ willingness to join to the convention might diminish. Thus the derogation articles provide an encouragement to the state parties to adhere international treaties to protect the human rights.
Schreuer in his article Derogation of Human Rights in Situations of Public Emergency; the Experience of European Convention on Human Rights, listed six main points where derogation clauses can be used;
- Foremost and most fundamental is the principle of reasonable accommodation between the necessities of community interest and justified particular individual interests.
- Derogations must be accompanied by official proclamations and notifications giving all relevant details.
- Derogations must be subject to effective outside supervision in order to prevent abuse
- Derogations must be used only in the situations of absolute necessity in which other means can not be reasonably be expected to safeguard public order.
- Derogations must be applied subject to strict proportionality. This means ;(1) that the derogation should only apply to those rights which have to be limited to cope with emergency; and (b) that the limitation should only apply to the extent absolutely required.
- Derogation should be withdrawn as soon as circumstances permit.[21]
As all these points listed in the Schreuer’s article illustrates how an effective international protection of human rights can be achieved at national level, does the international organs are empowered likewise?
The derogation articles actually refer to a compromise between national authorities and international bodies for the enactment of the obligations listed in the international instruments protecting Human Rights. International protection of human rights, ipso facto, requires national cooperation. States, in regard to joining to the international human right treaties, most often tends to protect their sovereignty. This tendency, not surprisingly related with their national security and public order. Derogation clauses, also margin of appreciation given to the national authorities in these circumstances are the compromises between the international and national organs for the protection of human rights.
However does the ECHR or other international treaties offers grounds for valid reasons for declaration of emergencies? In analyzing the article 15 of ECHR, the guaranteeing tools for valid application of article 15 will be discussed. However in general does international bodies are really powerful to analyze the legitimacy of the emergency situation? Put simply the emergency situations are those situations where vast violation of human rights occurred. According to Joan F. Hartman; there are five basic reasons why the international bodies are powerless to balance the emergency situations properly. For Hartman “first derogation situations are so sensitive ones …in such situations states concerned with their sovereignty… and not pay heed to, the limits imposed by the international organs”. As Hartman pointed correctly, the sovereignty matters where the states are mostly tend to control in the time of emergency gains tremendous importance and any international limitation to it can be easily disregarded by the states.[22] For Hartman, other two important deficiencies of international organs are their lack of fact-finding ability in the emergency situations and their failure to review derogation claims. On the forth point, Hartman emphasized a fact that;
“the international organs make no sua sponte review of suspected derogations even though massive violations may be occurring, and those derogation notices which are submitted to the organs are scrutinized only through delay-ridden complaint and reporting procedures.”[23] This practical and procedural gap might be the most important deficiency for the international protection of human rights. This fact merely put international conventions into uselessness tool in the times of emergencies. The final point made by Hartman is that lack of efficient sanctions against to the violator states. For Hartman; “the lack of effective sanctions against states breaching their obligations is the most substantial and insoluble deficiency in the treaty system”[24]
CONCLUSION
Article 15 of the European Convention on Human Rights is one of the key articles of the convention. Authors of the convention, there is no doubt, considers the encouragement embodies in the article for the states to join to the treaty with minimum reservations. Although the article 15, the right to derogate from the treaty obligations, as discussed above has many inefficiencies for the superior protection of human rights, the case law have been shown that Courts, and also commission’s assessment criteria for the application of article 15 is relatively high. Although the margin of appreciation provided to the state parties might limit the ECHR’s ability to protect what it intended to protect, the realities and states willingness to participate with the treaty terms can only be achieved with the established compromise. The ECHR is a living instrument, that is should always be interpreted with the days conditions and circumstances, The Court’s activism, as in all articles of the convention,, is also applicable to the article 15 and its requirements.
As the paper in many parts assumed, the tools such as derogation, the margin of appreciation creates a balance between the national and international organs and this balance should not be denied.
BIBLIOGRAPHY
BOOKS AND ARTICLES
Alastair Mowbray, Cases and Materials on the European Convention on Human Rights, Oxford, 2004
Miriam Gani and Penelope Mathew, eds., Fresh Perspectives on the'War On Terror', ANU E-press, Canberra, July 2008, retrieved from the web http://epress.anu.edu.au/war_terror/mobile_devices/ch07s02.html accessed on 28/06/2010
Hartman, Joan F., ‘Derogation from Human Rights Treaties in Public Emergencies--A Critique of Implementation by the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations’, 22 Harv. Int'l. L. J. (1981)
Christoph Schreuer, “Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights,” (1982) 9 Yale J. World Pub.
CASES
Aksoy v Turkey (1996) 23 EHRR 553.
Lawless v Ireland (No 3) (1961) 1 EHRR 15
Ireland v United Kingdom (1978) Series A No 35
Greek Case (1969) 12 Yearbook ECHR 1
[1] “Derogation in time of emergency
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.”
[2] Lawless v Ireland (No 3) (1961) 1 EHRR 15;
[3] Alastair Mowbray, Cases and Materials on the European Convention on Human Rights, Oxford, 2004
p. 840
[4] Miriam Gani and Penelope Mathew, eds., Fresh Perspectives on the'War On Terror', ANU E-press, Canberra, July 2008, retrieved from the web <http://epress.anu.edu.au/war_terror/mobile_devices/ch07s02.html< accessed on 28/06/2010, See also Greek Case (1969) 12 Yearbook ECHR 1
[5] Supra Note 3. p. 836
[6] Ireland v United Kingdom (1978) Series A No 35, [78]‑[79].
[7] Supra Note 3, p.837
[8] Greek Case (1969) 12 Yearbook ECHR 1, Christoph Schreuer, “Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights,” (1982) 9 Yale J. World Pub.p.124
[9] Supra Note 3, p. 838
[10] Christoph Schreuer, “Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights,” (1982) 9 Yale J. World Pub .p.130
[11] Aksoy v Turkey (1996) 23 EHRR 553. Supra Note 3, p. 853-857
[12] ECHR, Article 15, Paragraph 3
[13] Supra Note 3, p.854
[14] Ibid, p.855
[15] Ibid, p.855
[16] Ibid, p.856
[17] Supra Note 3, p.630
[18] İbid.p. 630
[19] Ibid. p.631
[21] Ibid. p.116
[22] Hartman, Joan F., ‘Derogation from Human Rights Treaties in Public Emergencies--A Critique of Implementation by the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations’, 22 Harv. Int'l. L. J. (1981), p. 2
[23] Ibid. p.2
[24] Ibid. p.3
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