Helga Law Journal - 01.01.2021, Side 156

Helga Law Journal - 01.01.2021, Side 156
Helga Law Journal Vol. 1, 2021 160 International Legal Research Group 161 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.
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