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Should states be permitted to derogate from the right to liberty and core fair trial rights when faced with terrorist attacks or threats thereof? Discuss in light of the derogation clauses in international and regional human rights treaty bodies and jurisprudence of regional human rights courts.
‘The real threat to the life of the nation…comes not from terrorism but from laws such as these.’
Lord Hoffman’s dissenting opinion in A and Others v Secretary of State for the Home Department, exemplifies the fundamental importance of limiting state power in times of emergency. In this essay it will be discussed whether states should be granted permission to derogate from the right to liberty and core fair trial rights when facing threats of or actual terrorist attacks. This will be examined in relation to the relevant derogation provisions outlined in international and regional human rights covenants with a particular focus on the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). To begin, the writer will engage in a discussion of the aims of derogation clause in human rights instruments and an assessment of the procedural requirements necessary to submit a valid derogation and whether these provide sufficient safeguards for the protection of these core rights. Following this the writer seek to determine whether any derogation can or should be possible in relation to the right to liberty and to fair trial rights. It will be discussed whether, terrorist attacks or threats thereof are grave enough to therefore justify a derogation from fundamental rights. Through an examination of relevant jurisprudence, it will be concluded that while there are compelling reasons for allowing derogation from the right to a fair trial and liberty, this should only be allowed in strict circumstances and in line with the principles of proportionality and necessity. Currently the regulation of government powers is too weak and allows for continuing disproportionate interference with human rights.
Sword or shield?
In times wherein there exists a situation that threatens the life of the nation, states may derogate from human rights. This entails a ‘complete or partial elimination’ of international obligations to human rights for a temporary period. When a derogation is valid it allows governments to suspend their obligations not to interfere with citizens’ rights as well as the obligation to provide any legitimate justification. The ICCPR, the ECHR and the Inter-American Convention on Human Rights all contain provisions that allow for derogations in emergency situations. In contrast, the African Charter on Human Rights is one of many treaties that does not allow for any such derogations. Even the most harrowing conflicts do not warrant African states to suspend the rights of its citizens.
Treaties provide recourse to derogation clauses for a variety of reasons, conceding that where there exists an emergency the government will inevitably take action that will most likely infringe upon human rights. Derogations are justified as a means of shielding the nation from threats and returning them to a state of normality where all human rights are protected by the proper function of democratic institutions. Providing a controlled system through which human rights may be suspended under certain conditions and judicial supervision enables rights to be better protected than where governments are given free rein on extra-legal measures. In such scenarios, however, governments should still strive to accommodate for the emergency within the current legal framework by giving recourse first to the limitations provided for within many of the rights provisions. Such accommodations including limitations, reservations and derogations provide flexibility and to some extent to encourage state ratification, but they are subject to international judicial oversight and restrictions.
For a derogation to be considered valid there are several strict elements that must be complied with. There must exist a public emergency, the measures taken must be ‘strictly required by the exigencies of the situation’, they must involve no discrimination and they must not be inconsistent with other obligations under international law. However, perpetuating states of emergency have become a concern in recent years where states have been prolonging their emergency status despite efforts to deter them. This is particularly worrying in relation to the right to liberty and core fair trial rights which are very commonly infringed in times of emergency predominantly in relation to arbitrary arrest and detention. The primary limitation to government power in these circumstances is the list of non-derogable rights that are listed in each of the international and regional provisions. While some treaties contain a longer list than others, the right to liberty and core fair trial rights are not to be found in these provisions. Thus, is appears that the only protection offered to these fundamental rights are the requirements of a public emergency and the principles of proportionality and necessity.
To derogate or not to derogate?
The right to a fair trial and the right to liberty are considered to be two of the most fundamental human rights and are linked to the enjoyment of many others. At first glance it appears an alarming prospect that these core rights are not included in the lists of non-derogable rights, particularly as this may place fundamental principles such as legality, protections against arbitrariness, the presumption of innocence and the rule of law in jeopardy. However, it would be difficult to have these rights listed as entirely non-derogable as they consist of a non-exhaustive catalogue of protections and their application is not always an exact science. The UN Human Rights Committee (UNHRC) have endorsed the idea, that although not listed, the right to a fair trial should be treated as non-derogable where measures would circumvent the protections of other rights. While this is an important development, derogating from one aspect of the right will not necessarily mean the whole protection has been violated as the right is assessed in each context. The question must therefore be whether the measures eliminated the rights effectiveness.
While the UNHRC has not provided the right to liberty with the same fundamental status, it acknowledges that there should be limits to the states power to derogate. They note that the fundamental guarantees against arbitrary detention affirm that even situations covered under article 4 cannot justify a violation that is unnecessary or unreasonable. Furthermore, the prohibition on taking hostages, abductions or unacknowledged detention as enshrined in international law place further limitations on interferences as they cannot be the subject of a derogation. The UNHRC have dealt with a relatively small number of complains in relation to article 4 but have demonstrated that measures that derogate from fair trial and liberty rights must be assessed on a case-by-case basis and in line with the principles of proportionality and necessity.
In contrast, the European Court of Human Right (ECtHR) have expressly stated that they do not regard fair trial rights or the right to liberty to constitute non-derogable protections. Conversely, earlier court jurisprudence emphasises the importance of fair trial rights even when national security is threatened. If history is to be any indication of the nature and behaviour of states, it would be naive to suggest that provisions for derogation should be stripped away, as governments will continue to interfere. In times of genuine emergency, the right to a fair trial and liberty are derogated from to allow for a reduction of the threat and return the state to democratic normality. While some argue that we should first and foremost deal with threats within normal criminal procedures, to try to contain an emergency in normal legal regimes is counterproductive. Therefore, to make these rights completely non-derogable would be of no practical sense and would present with inherent difficulties.
A Public Emergency
For a derogation from fair trial rights, the right to liberty or indeed any derogable right to be considered justifiable it must first be established that there is a public emergency that is threatening the life of the nation. One of the primary areas of debate has focused on whether terrorist attacks or the threat of terror can reach this threshold. Following the attacks of September 11th, 2001, the question of what constitutes terrorism has been highly contested with many international definitions growing in breadth and ambiguity. The UN security council specifies that terrorism includes a criminal act committed with the intent to cause death or serious injury, irrespective of motivation and committed for the purpose of provoking a state of terror. This ‘definition’ was intended to aid governments in the creation of domestic characterisations, however there continues to be wide variation. The UK domestic classifications are particularly vague and far reaching yet have been supported by regional human rights courts. It may be impossible to create one single, legal definition of terrorism and the absence of a concise definition causes difficulty in the assessment of whether every act of terrorism or threat could be considered to be an emergency.
The UNHRC have noted that not every catastrophe will be sufficient to declare a public emergency. Article 31 of the Vienna convention requires that provisions are interpreted in accordance with their ordinary meaning in light of their context and purpose. The ECtHR have also indicated that this provision must be taken at its ‘natural and customary meaning.’ When the derogations clauses are taken at their objective and literal construction the onus for demonstrating an emergency appears to be very high. The ECtHR has laid down three requirements necessary to make such a determination and the ICCPR has generally followed suit. However, the ECtHR allows a wide margin of appreciation on this point to the domestic state. The situation must be imminent, effect the whole population and pose a threat to the organised life of society. The situation must be exceptional in that normal measures as permitted under the convention will be inadequate.
Since the events of 2001, states have been operating in a system of defensive democracy where the threat of terrorism is usually considered to constitute a direct threat to the life of the nation. The lawless case has been the subject of significant criticism in its failure to produce strict preconditions for valid derogations. It is argued that the heavily deferential positions set forth allows for a presumptive stance that where a derogation has been made there exists a state of emergency. This allows for the determination of an emergency to be decided in the political sphere and not the legal one. The threshold is therefore lowered and may even allow for ‘mundane phenomena’ to justify derogations. This is evident in the case of A v UK in which the European judges did not challenge the existence of an emergency in the aftermath of 9/11 despite the UK being the only European state incapable of containing the threat within normal convention measures.
The lawless case was the first case to be heard in front of the new European court and it has been argued that this was a significant factor in its unanimous decision. Furthermore, there has only been one case whereby a state of emergency was rejected and this was more so to do with the antidemocratic regime than the existence of an emergency.It appears that the state of emergency precondition has become an ineffective safeguard against human rights interference, acting only as a procedural formality that allows for the enactment of laws contrary to human rights. While the margin of appreciation is not absolute, the court should not defer so blindly. The example of the current perpetuating state of emergency in Turkey should be evidence in favour of a greater level of judicial oversight of derogation measures.
Proportionate and necessary
It is the understanding of both international and regional human rights bodies that interferences with the right to a fair trial and the right to liberty must be those which are strictly required by the exigencies of the situation in that they must be necessary to protect the nation and be proportionate to those aims. An examination of the proportionality of a measure will typically be assessed in relation to the criteria of severity, duration and scope. The limits within which these will be examined have not been specified but the court will consider the importance of the right violated and whether less stringent measures could have been put in place. It is contended that while states will argue that the ‘greater the need…the greater the permissible derogation’ proportionality is not an exact science. Nor has it been applied strictly by the European courts who allow for a wide discretion to states in these matters also.
While not affording as stringent conditions as those under the ICCPR, the ECtHR has indicated that this margin is not as wide as that in relation to a determination of a state of emergency. They will scrutinise more heavily the measures taken pursuant to that situation particularly in relation to the safeguards available against abuse of rights. In the Lawless case the court found that the application of ordinary law had proved ineffective in combatting the nationalist threat. In the case of Turkey, the court has found on multiple occasions that arbitrary detention of suspects for fourteen days or more to be a substantial interference with article 5 and 6 rights noting that police do not have ‘carte blanche’ powers. The case of Turkey is juxtaposed with the situation in Northern Ireland in which effective procedural safeguards were considered to be in place. The fact that this issue has been examined on multiple occasions is evidence of the need for clear and stringent criteria or limits in regard to potential derogations from these fundamental rights.
Fundamental questions are raised about the degree to which the convention can protect citizens against arbitrary interferences. The convention has proved to be impractical in the regulation of government powers to detain individual in contravention of these rights. This is particularly striking in light of the recent reluctance of the court to accept applications in respect of derogation measures primarily due to the non-exhaustion of domestic remedies. This requirement is limited to measures ‘likely to be effective and available.’ It is questionable whether systems that operate in an ongoing state of emergency can be relied upon to conduct independent and reliable investigations to achieve effective remedies. The approach of the court to derogation seems to be at odds with the progressive traditions in other areas of their jurisprudence. In light of broader international obligations, it is clear that a ‘fundamental rewriting’ of the courts approach should be considered. At a time where the threat of terror is growing it is imperative that the court thinks more imaginatively about fair trial rights and the right to liberty so as to afford them greater protections.
As it has been discussed throughout this essay, while derogations may be necessary, the protections available for the fundamental right to liberty and core fair trial rights are not sufficient. The ECtHR offers a margin of appreciation that is too wide and allows for violations to go on unjustifiably. While the UNHRC has acknowledged the important status of these rights, in many instances, their comments go unenforced and violations continue to occur. Few cases have been brought to their attention and many victims continue without remedies. The mechanisms regionally also provide little assistance to applicant’s due to their reluctance to accept cases and the deference that they show to states. It is true that to declare the right to liberty and a fair trial as completely non-derogable would create huge difficulties which in turn could threaten human rights. Interpretations of article 15 should provide ‘a place for progressive adaptation’ but too large a margin does not allow for a rigorous enough review of emergency measures. The threat of terrorism has proven to be a challenge to which the current derogations clauses are unsuited  and we must consider reform. The introduction of oversight mechanisms, such as a requirement of periodic reporting could be employed to allow for a stricter application of proportionality and a reduction of the margin of appreciation.  Derogations should be utilised as a shield against threats to democracy, peace and human rights. Instead they are being allowed to be used as a sword of government control. 
Table of Cases
- A and Others v Secretary of State for the Home Department  UKHL 56
- A v UK (2009) 49 EHRR 29
- Aksoy v Turkey (2002) 34 EHRR 57
- Al Nashif v Bulgaria (2002) 36 EHRR
- Brannigan and McBride v UK (1993) 17 EHRR 539
- Brogan v UK (1988) 11 EHRR 117
- Demir and Others v Turkey (2001) 33 EHRR 43
- 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. (Commission Decision, 1970)
- Ireland v UK (1978) 2 EHRR 25
- Koksäl v Turkey App.No.70478/16 (ECtHR,2017)
- Lawless v Ireland No.3 (1961) 1 EHRR 15
- Mercan v Turkey App.No.56511/16 (ECtHR,2016)
- Murray v UK (1994) 19 EHRR 193
- Salah Skeekh v The Netherlands App.No.1948/04 (ECtHR,2007)
- Zihni v Turkey App.No.59061/16 (ECtHR,2016)
Table of Legislation
- African Charter on Human Rights CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)
- The European Convention on Human Rights November 1950 ETS 5
- Inter-American Convention on Human Rights 22 November 1969
- The International Covenant on Civil and Political Rights 16 December 1966, 999 UNTS 171
- The Siracusa Principles on the Limitations and Derogation of Provisions in the International Covenant on Civil and Political Rights, UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc.E/CN.4/1985/4, 1985
- UN Security Council Resolution 1566 (2004)
- Vienna Convention on the Law of Treaties 23 May 1969 UNTS 1155
- Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (OUP, 2010)
- Gross and NiAoilain, Law in times of crisis; Emergency powers in theory and practice (CUP, 2006)
- Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (3rd Ed, OUP, 2014)
- Legg, The Margin of appreciation in International Human Rights law (OUP, 2012)
- Frédéric Mégret, ‘Nature of Obligations’, in Daniel Moeckli et al (eds) International Human Rights Law (OUP, 2010)
- Scheinin, ‘Terrorism’ in Daniel Moeckli et al (eds) International Human Rights Law (OUP, 2010)
- Allain, ‘Derogation from the European Convention of Human Rights in light of ‘other obligations under international law’ (2005) 11 E.H.R.L.R 480
- Backircioglu and Dickson, ‘The European convention in conflicted societies: the experience of Northern Ireland and Turkey’ (2017) 66(2) I.C.L.Q 264
- Burchill, ‘When does an emergency threaten the life of the nation – Derogations from Human Rights obligations and the War on international terrorism (2005) 8 Y.B.N.Z.Juris 99,99
- Criddle and Fox-Decent, ‘Human Rights, Emergencies and the Rule of Law’ (2012) 34 H.R.Q 39
- Hickman, ‘Between Human rights and the rule of law: Indefinite detention and the derogation model of constitutionalism’ (2005) 68 Mod.L.Rev 655
- Greene, ‘Defining Terrorism: One size fits all?’ (2017) 66 I.C.L.Q 411
- Greene, ‘Separating Normalcy from emergency: the jurisprudence of Article 15 of the European Convention on Human Rights (2011) 12(10) German law Journal 1764
- Lillich, ’The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 Am.J.Int’l.L.1072
- MacDonald, ‘Derogations under Article 15 of the European Convention on human rights (1998) 36 Colum.J.Transnat’l.L. 225
- Marks, ‘Civil liberties at the margin: The UK derogation and the European Court of Human Rights (2005) O.J.L.S 69
- McGoldrick, ‘The interface between public emergency powers and international law (2004) 2 Int’l.J.Const.L.380
- Mokhtar, ‘Human rights obligations v derogations: article 15 of the European convention on human rights’ (2004) 8(1) Int.J.H.R 65
- Muler, ‘Limitations to and derogations from economic, social and cultural rights’ (2009) 9 H.R.L.R. 557
- Olivier, ‘Revisiting General Comment No.29 of the United Nations Human Rights Committee: About fair trial rights and derogations in times of public emergency’ (2004) 17 L.J.I.L.405
- Yordan Nugraha, ‘Human rights derogations during coup situations’ (2018) 22(2) I.J.H.R 194
- CTITF Working Group on Protecting Human Rights while countering terrorism, Right to a fair trial and due process in the context of countering terrorism, October 2014 < https://www.un.org/counterterrorism/ctitf/en/uncct/basic-human-rights-reference-guides> Accessed 15th April 2018,7
- Scheinin, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (A/63/223) (2008)
- Turkey 2017/2018, Amnesty international (2018) <https://www.amnesty.org/en/countries/europe-and-central-asia/turkey/report-turkey/> Accessed 28th March 2018
- UN Human Rights Committee, General Comment No 29 – States of Emergency, UN Doc CCPR/C/21/Rev.1/Add.11, 31 August 2001
- UN Human Rights Committee, General Comment No 35 – Article 9 Liberty and Security of person, UN Doc CCPR/C/GC 16 December 2014
Blogs and Websites
- O’Boyle, Can the ECtHR provide an effective remedy following the coup d’etat and declaration of emergency in Turkey? EJIL:Talk! March 19th 2018<https://www.ejiltalk.org/can-the-ecthr-provide-an-effective-remedy-following-the-coup-detat-and-declaration-of-emergency-in-turkey/> Accessed 28th March 2018
- Turkey extends state of emergency for 7th time, Anadolu Agency, 18th April 2018 <https://aa.com.tr/en/todays-headlines/turkey-extends-state-of-emergency-for-7th-time-/1122052> Accessed 26th April 2018
 Article 4
 Article 15
 Ibid 564
 E.g. no reservations are permitted in respect of derogation clauses McGoldrick (n.5)410
 Article 4 ICCPR; Article 15 ECHR; Article 27 IACHR
 Turkey extends state of emergency for 7th time, Anadolu Agency, 18th April 2018 <https://aa.com.tr/en/todays-headlines/turkey-extends-state-of-emergency-for-7th-time-/1122052> Accessed 26th April 2018
 Article 15 ECHR contains 4, Article 4 ICCPR contains 7 and Article 27 IACHR contains 11
 CTITF Working Group on Protecting Human Rights while countering terrorism, Right to a fair trial and due process in the context of countering terrorism, October 2014<https://www.un.org/counterterrorism/ctitf/en/uncct/basic-human-rights-reference-guides>Accessed 15th April 2018,7
 Scheinin, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’(A/63/223) (2008)  on article 6; Aksoy v Turkey (2002) 34 E.H.R.R.57  on article 5
 UN Human Rights Committee, ‘General Comment No.29-States of Emergency’, UN Doc CCPR/C/21/Rev.1/Add.11 31 August 2001 
 Olivier (n.22)
 UN Human Rights Committee, ‘General Comment No.35-Article 9 Liberty and Security of Person’ UN Doc CCPR/C/GC 16 December 2014 
 Ibid 
 Ibid 
 CTITF Working Group (n.20)1
 Schenin (n.21)
 Hickman (n.6)658
 Scheinin (n.21)555
 UNHRC (n.23) 
 Nugraha (n.11)196
 Lawless (n.41)
 Ireland v UK (n.30)
 Ibid French Translation: the word imminent is absent in the English Translation; The Greek Case: Report of the Commission, App.No.3321/67-Denmark v Greece, App.No.3322/67-Norway v Greece, Application No.3323/67-Sweden v Greece, App.No.3344/67-Netherlands v Greece. (Commission Decision, 1970) 
 Hickman (n.6)655
 Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (OUP,2010)38
 Greene, ‘Separating Normalcy from emergency: the jurisprudence of Article 15 of the European Convention on Human Rights (2011) 12(10) German law Journal 1764,1778
 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (OUP,2014)825
 Dickson (n.48)37
 The Greek case (n.45); Gross and NiAoilain, Law in times of crisis; Emergency powers in theory and practice (CUP,2006)274-275
 Brannigan and McBride v UK (1993) 17 EHRR 539where a declaration was motivated by the decision in Brogan v UK; Greene (n.55)1783
 Mokhtar, ‘Human Rights Obligations v Derogations: Article 15 of the European Convention on Human Rights (2004) 8(1) I.J.H.R.65,79
 MacDonald, ‘Derogations under article 15 of the European Convention on Human Rights’ (1998) 36 Colum.J.Transnat’l.L.225,243-244
 Mokhtar (n.58)74
 Lawless (n.41); see also Ireland v UK (n.30) 
 Aksoy (n.21); see also Demir and Others v Turkey (2001) 33 EHRR 43-
 Brannigan (n.55) 
 Dickson (n.48)78
 O’Boyle, Can the ECtHR provide an effective remedy following the coup d’etat and declaration of emergency in Turkey? EJIL:Talk! March 19th 2018<https://www.ejiltalk.org/can-the-ecthr-provide-an-effective-remedy-following-the-coup-detat-and-declaration-of-emergency-in-turkey/> Accessed 28th March 2018
 UNHRC (n.26); see also The Siracusa Principles on the Limitations and Derogation of Provisions in the International Covenant on Civil and Political Rights, UN Economic and Social Council, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc.E/CN.4/1985/4, 1985;Lillich, ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 Am.J.Int’l.L.1072
 Allain (n.76) 
 Ireland v UK (n.30) 
 Harris (n.52)842
 MacDonald (n.59)233
 Harris (n.52)847-848
 MacDonald (n.59)1781-1782
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