Helga Law Journal - 01.01.2021, Page 158

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in the next section) which is sometimes interpreted as, by some scholars,190
endorsing the notion that derogation is a viable alternative to compliance.
4.3 ECHR and the Doctrine of ‘Margin of Appreciation’
The European Court of Human Rights constantly deals with various issues of
law and policy, which have been considered as a matter of domestic jurisdiction
raising problem concerning the authority of the court in scrutinizing the laws and
practices of the contracting states and assessing them against the European
Convention of Human Rights.191 Like most of the international institutions, the
Strasbourg system as well was not set up for the destruction of national
sovereignty and authority, therefore some of the matters must be left to the states
to regulate while the court and other organs exercise a degree of control through
their decisions to achieve the protection of human rights.192
To achieve this purpose, the concept of ‘margin of appreciation’ was
developed, leaving an area of discretion to the contracting parties, which may be
in a better position to decide than the European organs.193 The court’s job
remains to review the lawfulness of the measures and to be sure that the state
has not exceeded its margin of appreciation.194 This concept was the main tool
relied upon by the court when dealing with emergency cases under Article 15.
4.3.1 Significant Cases
Lawless was one of the most important cases that dealt with Article 15 while
facing a political situation. In this case, the court set the criteria for evaluating the
existence of the preconditions dictated by Article 15(1) and extended the motion
of a measure of discretion, which it first adopted in the case of Cyprus,195 applying
it “not only to the question of whether the measures taken by the Government
were ‘strictly required by the exigencies of the situation’ but also to determine
whether a ‘public emergency threatening the life of the nation’ existed”. The
court applied the ‘margin of appreciation’196 doctrine, agreeing with the claims of
the government that derogation from Article 5 (detention without trial) was
required by the exigencies of the situation which was the existence of public
emergency.197 Lawless established and provided guidelines for states considering

190 S Marks, ‘Civil liberties at the margin: the UK derogation and the European Court of Human
Rights’ (1995) 15 Oxford Journal of Legal Studies 79.
191 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 301.
192 ibid.
193 ibid.
194 ibid.
195 [2001] ECHR 331.
196 Albeit, without using the actual term.
197 The judgment was criticized since it was believed that the protection afforded to the individual
had been undermined.
the measures available to them in emergency situations and was also the first case
where the first definition and detailed interpretation of Article 15 was adopted.
Further, Brannigan & McBride where the court explicitly concurred with the
doctrine of wide margin of appreciation and held that “the court explicitly stated
that it fell in the first place to each Contracting State, with its responsibility for
‘the life of [its]nation’, to determine whether that life was threatened by a ‘public
emergency.’”198 According to the court, the national authorities were better
placed than the international judge to decide both on the presence of such an
emergency and on the nature and scope of the derogations necessary to avert it
due to their direct and continuous contact with the pressing needs of the
moment.199
In Brannigan & McBride the Court confirmed that a wide margin of
appreciation should apply in regard to derogations. According to the Court, it
was not its function to do anything more ‘‘than review the lawfulness, under the
convention, of the measures adopted.”200 Even in one of the later cases, A v Secretary of
State for the Home Department,201 concerning a situation of an emergency requiring
derogation, Lord Bingham expressed that “it is the function of political and not judicial
bodies to resolve political questions.”202
The convention, like the other treaties that permit derogation, provides that
certain freedoms and rights are not subject to derogation. If derogable rights are
considered dispensable luxuries to be given up when no longer affordable, then
the non-derogable rights should be absolutely indispensable.203 However, the
Court’s decision in Brannigan & McBride illustrates a polarized way of conceiving
issues, seemingly inferring from the fact that certain rights are listed as non-
derogable that all other rights are fully derogable.204
Where the court adopts a wide margin of appreciation, it accepts the
government’s policy choices. With a narrower margin, arguments about those
choices become possible and the court can be called upon to evaluate alternatives
from perspective that seeks to maximize conformity with convention standards.
Cast in this light, the wide margin of appreciation represents a lost opportunity
for the court to play an engaged role in relation to the issues before it.205
The court’s decision in Brannigan & McBride surely sits uneasily with the
exceptionally important role of international supervision in an emergency
situation.206 Scholars like Zeidy, believe that the court in Brannigan emphasized

198 Brannigan and McBride v United Kingdom, no 14554/89, ECHR 1993 [48].
199 ibid.
200 Ireland v United Kingdom, no 5310/71, ECHR 1977 [241], and Brannigan and McBride v United Kingdom,
no 14554/89, ECHR 1993.
201 A v Secretary of State for the Home Department [2004] UKHL 56.
202 S Humphreys, ‘Legalizing lawlessness: On Giorgio Agamben’s state of exception’ (2006) 17(3)
European Journal of International Law 677,687.
203 S Marks, ‘Civil liberties at the margin: the UK derogation and the European Court of Human
Rights’ (1995) 15 Oxford Journal of Legal Studies 90.
204 ibid.
205 ibid., 93.
206 ibid., 94.