Helga Law Journal - 01.01.2021, Blaðsíða 156

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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International Covenant on Civil and Political Rights (ICCPR)179. For the sake of
brevity, we will briefly cover what the various clauses of Article 15 focus on.
Article 15 has three clauses. Article 15(1) defines the circumstances in which
Contracting States can validly derogate from their obligations under the
Convention. It also limits the measures they may take in the course of any
derogation. Article 15(2) protects certain fundamental rights in the Convention
from any derogation. Article 15(3) sets out the procedural requirements that any
State derogating must follow.
Article 15(1) allows for states to take measures derogating from its
conventional obligations, ‘‘provided that such measures are not inconsistent with
its other obligations under international law.”180
The court has not been required to interpret the term war in any of the
emergency cases yet and therefore, the same would not be an issue of contention
in the present essay. Most of the cases concerned with Article 15 are concerned
with the interpretation of the term “public emergency threatening the life of the
nation” that has been interpreted by the court as an exceptional situation of crisis
or emergency affecting the whole population and constituting a threat to the
community of which the state is composed.181
4.2.1 Public Emergencies
Public emergencies present a problem for states, with regards to balancing the
efforts to overcome the emergency and restore order while at the same time
respecting the fundamental rights of individuals. In 1959, the phrase “public
emergency threatening the life of the nation” was defined for the first time by
the European Commission of Human Rights in its report on Lawless, where the
Commission pointed out the French authentic text of the lawless judgment from
which the court adopted its definition, the text mentioned not only the word
‘exceptional’ but also the word ‘imminent’ which created an additional criteria to
be examined by both the Court and the Commission.182 Although the phrase was
defined by the Commission in the Lawless case, through the Greek case it became
more elaborate. The Commission expressed that in order to be qualified as
“public emergency,” an emergency must have the following characteristics:

- It must be actual or imminent,
- its effect must involve the whole nation,

179 (n 1).
180 Article 15(1) as a whole reads|: “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 [the] 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.”
181 Lawless v Ireland, no 332/57, EHRR 1961.
182 MM El Zeidy, ‘The ECHR and States of Emergency: Article 15 -A Domestic Power of Derogation
from Human Rights Obligations’ (2003) 4 San Diego International Law Journal 281.
- the continuance of the organised life of the community must be
threatened,
- the crisis or danger must be exceptional in the normal measures or
restrictions permitted by the Convention for the maintenance of public
safety, health and order, are plainly inadequate.183

Despite the fixed criteria of crises affecting the whole population, in practice
the standard has been relaxed. For instance, in Ireland v United Kingdom,184 the
court accepted the argument that the whole population may be affected by
incidents or events in only a part of the state, and that the derogation may be
restricted to that part.
A number of conceptual tensions or oppositions appear when the states
tend to defend the human rights derogations in the name of emergency in the
state. One of them is the implicit counterpoint between emergency and normality
and therefore, an emergency is understood as an exceptional vesting of powers
in the executive that would normally belong to the judiciary or legislature.185 The
government asserted and the Court accepted that an emergency relating to
Northern Ireland had existed at least since the early 1970s and highlighted an
important feature of the emergency/normality antinomy if emergency measures
pretend to aim at the achievement of future normality they often, in fact, become
a deferring normality.186 This process of normalization has been noted by a
number of observers of UK anti-terrorist legislation.187
The second precondition for a valid derogation is that the derogation must
be “strictly required by the exigencies of the situation”; generally the Convention
organs have been satisfied with the fulfillment of this condition if a respondent
government showed some colorable basis for believing that the derogatory
measures were necessary at the time, for instance in Ireland v UK where the Court
found that the Government was ‘reasonably entitled’ to consider that departures
from the convention were ‘called for.’188 Along with a series of decisions
comprising those in Brogan,189 as well as Brannigan, one can observe a pattern of
Court providing a wide margin of appreciation to the states (discussed in detail

183 European Commission of Human Rights, The Greek Case : Report of the Commission : Application No.
3321/67-Denmark v. Greece, Application No. 3322/67-Norway v. Greece, Application No. 3323/67-
Sweden v. Greece, Application No. 3344/67-Netherlands v. Greece (1969) 72.
184 Ireland v United Kingdom, no 5310/71, ECHR 1977.
185 Moreover, emergency denotes the distinctive notion of duration, in that, it is a limited departure
from an otherwise enduring sense of normality and has to be justified by the promise of restoration,
or creation, of normality in the future as conveyed by one of the dissenting opinions in Brannigan and
McBride (Brannigan and McBride v United Kingdom, no 14554/89, ECHR 1993) by Judge Makarczyk.
186 ibid, 86.
187 ibid.
188 Ireland v United Kingdom, no 5310/71, ECHR 1977 [212]-[220].
189 Brogan v United Kingdom, [1988] 11 EHRR 117.