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Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the European Convention on Human Rights

Published online by Cambridge University Press:  06 March 2019

Alan Greene

Extract

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The European Convention of Human Rights (ECHR) is as much a political as it is a legal document. The European Court of Human Rights (ECtHR) constantly walks the delicate tight rope between vindicating human rights and respecting the sovereignty of contracting states. This balancing act is particularly sensitive when a situation of “exceptional and imminent danger” exists. In such instances of national security the state may need to act in a manner beyond the parameters of normalcy in order to neutralize the threat and protect both itself and its citizens. Article 15 of the ECHR therefore allows states to derogate from its obligations under the convention when a state of emergency is declared. On foot of a notice of derogation, a state has more discretion and flexibility to act accordingly to respond to a threat without being constrained by its obligations under the treaty. However, it is also in these conditions that human rights are at their most vulnerable as the state's response may encroach severely on individuals' rights and the liberal-democratic order of the state.

Type
Articles
Information
German Law Journal , Volume 12 , Issue 10: Special Issue Legitimacy and the Future of the European Court of Human Rights , 01 October 2011 , pp. 1764 - 1785
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended by Protocols 11 and 14, hereinafter “ECHR”), June 2010, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf (last accessed 29th September 2011).Google Scholar

2 E.g. The “margin of appreciation” doctrine, for example, acts as a protector for state sovereignty. See Handyside v. the United Kingdom, Judgment of 7 December 1976, 24 Eur. Ct. H.R. (ser. A, 1976).Google Scholar

3 Questiaux, Nicole, Study of the Implications for Human Rights of Recent Developments concerning situations known as States of Siege or Emergency, UN Doc. E/CN4/2 of 27 July 1982.Google Scholar

4 See Neocleous, Mark, The Problem with Normality: Taking Exception to “Permanent Emergency,” 31 Alternatives 191, 195 (2006). Neocleus undertakes a literature review in this area to conclude that “permanent emergency” is now the dominant mantra of the left and indeed, of the libertarian right as well.Google Scholar

5 On 11 September 2001, two hijacked airliners flew into the World Trade Centre Towers, New York destroying them and killing thousands. A third plane crashed into the Pentagon Building, Washington. A final plane crash-landed in Pennsylvania, killing all on board. In total, 2,753 people lost their lives. See generally, National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, available at http://www.gpoaccess.gov/911/pdf/fullreport.pdf (last accessed 29th September 2011).Google Scholar

6 See Oren Gross, Chaos and Rules: Should Responses to Violent Crises always be Constitutional?, 112 Yale L. J. 1011, 1089-1095 (2003).Google Scholar

7 See Giorgio Agamben, State of Exception 4 (2005); see also Gross, id. at 1089-1094.Google Scholar

8 For examples of an extra-legal/extra-constitutional approach see Gross, id. at 1096; Tushnet, Mark, Defending Korematsu? Reflections on Civil Liberties in Wartime, Wisconsin Law Review 273, 304-307 (2003). See also Nomi Claire Lazar's rejection of the state of exception discourse in Nomi Claire Lazar, States of Emergencies in Liberal Democracies (2009). Dyzenhaus argues that the rule of law expressly prohibits an exception, either within or outside the legal order. See generally, David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (2006).Google Scholar

9 See Zuckerman, Ian, One Law for War and Peace? Judicial Review and Emergency Powers between the Norm and the Exception, 13 Constellations 522, 524 (2006).Google Scholar

10 See Oren Gross & Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice Chap. 2 (2006).Google Scholar

11 As the US Supreme Court declared of the applicability of the US Constitution in a time of war in Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).Google Scholar

12 A v. Secretary of State for the Home Department 2 W.L.R. 87 (2005); A and Others v. United Kingdom [hereinafter “Belmarsh”], Judgment of 19 February 2009, 3455 Eur. Ct. H.R. 5 (2009). This case concerned the legality of the indefinite detention of the applicants in Belmarsh Prison, London under s.23 of the Anti-Terrorism, Crime and Security Act 2001.Google Scholar

13 Lawless v. Ireland [hereinafter “Lawless”], Judgment of 1 July 1961, 3 Eur. Ct. H. R (ser. A, 1961).Google Scholar

14 See Belmarsh, supra note 12, at para. 178.Google Scholar

15 As delineated by lexicological sources, the Oxford English Dictionary defines an emergency as “a serious, unexpected, and often dangerous situation requiring immediate action;” Emergency Definition, Oxford English Dictionary (2010), available at: http://www.oed.com/view/Entry/61130?redirectedFrom=emergency#eid (last accessed: 27 September 2011); Merriam Webster's Dictionary defines an emergency as (1)“the unforeseen combination of circumstances or the resulting state that calls for immediate action or (2) an urgent need for assistance or relief;” Emergency Definition, Merriam-Webster Dictionary (2010), available at: http://www.merriam-webster.com/dictionary/emergency (last accessed: 29 September 2011).Google Scholar

16 See generally, Herbert Lionel Adolphus Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958).Google Scholar

17 Hence the emphasis of the “unforeseen” or “unexpected” nature of the crisis in the lexicological definitions outlined above; see supra note 15. See also Oren Gross, Once More Unto the Breach: The Systematic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies 23 Yale J. Int'l L. 437, 438 (1998).Google Scholar

18 The second definition proffered by Merriam-Webster's only refers to the response element of emergency, and there is no mention of what phenomenon would induce such a need; see supra note 15.Google Scholar

19 See, for example, Washington State Legislature, The Washington State Emergency Action Plan, (2000), available at: http://www.emd.wa.gov/plans/documents/emergency_operations_plan.doc (last accessed: 27 September 2011), which includes as an integral part of the definition of emergency that the response must be “beyond routine incident response resources.” Similarly, the Irish Office of Emergency Planning requires the phenomenon to be “beyond the normal capabilities of the principal emergency services” before an emergency can be declared. See Office of Emergency Planning, Department of Defence, Strategic Emergency Planning Response (2004), available at: www.emergencyplanning.ie/media/docs/1SEPG.doc (last accessed: 29 September 2011).Google Scholar

20 Ferejohn, John & Pasquino, Pasquale, The Law of the Exception: A Typology of Emergency Powers, 2 international journal of constitutional law 210 (2004).Google Scholar

21 See Gross, supra note 17, at 439-440.Google Scholar

22 Id. Google Scholar

23 Id. Google Scholar

24 See Agamben, supra note 7.Google Scholar

25 See Lillich, Richard, The Paris Minimum Standards of Human Rights Norms in a State of Emergency 79 Am. J. Int'l Law 1072, 1073 (1985) [hereinafter “The Paris Minimum Standards”]. See also Questiaux, supra note 3, at 15.Google Scholar

26 See Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies 294 (2002).Google Scholar

27 See Rossiter, id. at Chap. 1; Niccolo Machiavelli, Discorsi sopra la prima deca di Tito Livio (The Discourses on Livy) Chap. XXXIII-XXXV (ca. 1517); Gross & Ní Aoláin, supra note 10, at 17-26; Ferejohn, & Pasquino, , supra note 20, at 211-213, 223-228.Google Scholar

28 See Gross, supra note 6, at 1073-1082.Google Scholar

29 Id. Google Scholar

30 Id. Google Scholar

31 See Agamben, supra note 7; see also Gross id. at 1089-1094.Google Scholar

32 E.g. Ireland was under an official declaration of emergency in accordance with Art.28(3)(3) of its constitution from the outbreak of World War II in 1939 until 1976. The day after it was lifted, a new state of emergency was declared to deal with the increasingly violent situation in Northern Ireland. This lasted until 1995; See the Constitution of Ireland, enacted 1 July 1937. Israel has effectively been in a state of emergency since its inception as a sovereign state in 1949. See Adam Mizock, The Legality of the Fifty-Two Year State of Emergency in Israel, 7 Davis Journal of International Law and Policy 223 (2001). Egypt has been in a persistent state of emergency since 1981, and for all but four years since 1957. Despite a popular movement that ousted President Hosni Mubarak in February 2011, at the time of writing (July 2011), the state of emergency he declared in 1981 remains in force. On 24 February 2011, Algeria lifted its 19-year state of emergency following a period of popular public protest. The state of emergency proclaimed in Syria on 9 March 1963, effectuating Legislative Decree No. 51 of 22 December 1962, remained in force until 21 April 2011. However, one can hardly describe the condition in Syria at the time of writing to correlate with normalcy, equating instead with a de facto state of emergency. See Questiaux, supra note 3, at 26.Google Scholar

33 E.g. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, also known as the Patriot Act, enacted in the aftermath of 11 September 2001, originally contained 16 provisions due to sunset on 31 December 2005. 14 of these were made permanent, and the remainder repeatedly renewed. They are now expected to sunset on 1 June 2015. The Northern Ireland Emergency Powers Act 1973 (EPA), was renewed in 1978, 1987, 1991 and 1996, before being replaced by the Terrorism Act 2000 (2000 Act). The 2000 Act re-enacted the EPA 1996 provisions under Part VII, subject to annual renewal. This lapsed on 31 July 2007, ending the 34- year life of the so-called “emergency provisions.” Similarly, the Prevention of Terrorism (Temporary Provisions) Act 1974 (PTA) despite a sunset clause that was repeatedly renewed repeatedly every 5 years, until replaced by the Terrorism Act (2000), which made the measures permanent.Google Scholar

34 See Neocleus, supra note 4, at 191-194. Neocleus himself rejects this argument, suggesting instead that “permanent emergency” is primarily caused by the use of emergency powers to deal with an increasing array of phenomena of ever-decreasing severity.Google Scholar

35 This is illustrated by the fact that “terrorism” avoids a universally accepted legal definition. See Jorg Friedrichs, Defining the International Public Enemy: The Political Struggle Behind the Legal Debate on International Terrorism 19 Leiden Journal of International Law 69 (2006).Google Scholar

36 The “terrorist” shares many of the same substantive characteristics of the “partisan” fighter: an irregular soldier who generally utilizes hit-and-run tactics against a militarily superior force. It is therefore in the advantage of the partisan to blend into the background of the ordinary population in order to evade detection and by extension, attack the enemy most effectively. See generally Carl Schmitt, Theory of the Partisan (2007).Google Scholar

37 See Chesney, Robert & Goldsmith, Jack, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079 (2008).Google Scholar

38 Al Qaeda has been described loosely as merely constituting a shared ideology as opposed to an organization. See Burke Jason, Al Qaeda, Foreign Policy (FP) 18 (2004). Naim considers Al Qaeda to be a “loose network of individuals united by a shared passion for a single cause,” similar to NGOs. See Moises Naim, Missing Links: Al Qaeda, the NGO, FP 100 (2002). General consensus appears to be that Al Qaeda, particularly in the aftermath of 11 September 2001, operates as a loose network of independent cells, with a diminished centralized command structure. See Chesney & Goldsmith, supra note 37, at 2109.Google Scholar

39 Burke argues that Al Qaeda seeks not to conquest, but to beat back western crusades from Islamic territory. Nevertheless, Wedgwood describes Al Qaeda's methods as shifting from pogrom to extermination of western peoples. See Ruth Wedgwood, Al Qaeda, Military Commissions, and American Self-Defense, 117 Political Science Quarterly 357 (2002). This is corroborated by the severity of the attacks of 11 September 2001, which undermines the now-defunct idea that terrorist groups would limit the magnitude of their attacks in order to prevent would-be sympathizers to their cause from becoming disenfranchised. See Chesney & Goldsmith, supra note 37, at 1094.Google Scholar

40 As described by UN Secretary General Ban ki-moon: Bin Laden's death is ‘watershed moment’ says Ban Ki Moon (sic), BBC News, May 2, 2011, available at: http://www.bbc.co.uk/news/world-us-canada-13260609 (last accessed: 27 September 2011).Google Scholar

41 Jansen, Michael, Zawahiri announced by Al Qaeda as successor to late Bin Laden, Irish Times, Jun. 17, 2011, available at: http://www.irishtimes.com/search/archive.html?rm=listresults&filter=dateasc&keywords=Zawahiri+announced+by+AlQaeda+as+successor+to+late+Bin+Laden&daterange=&day1=1&mon1=1&vear1=1859&day2=1&mon2=1&vear2=1859 (last accessed: 27 September 2011). See also President Barack Obama's indications that the war on terror is likely to continue: CNNPolitics, Statement from President Obama on death of Osama bin Laden, Cnn, May 2, 2011, available at: http://articles.cnn.com/2011-05-02/politics/statement.obama_1_qaeda-bin-terrorist-attacks?_s=PM:POLITICS (last accessed: 27 September 2011).Google Scholar

42 See generally, Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (1988).Google Scholar

43 Id. Google Scholar

44 See the above discussion at note 8.Google Scholar

45 See Zuckerman, supra note 9, at 524.Google Scholar

46 See Gross & Ní Aoláin, supra note 10, Chap. 2.Google Scholar

47 Id. Google Scholar

48 See Zuckerman, supra note 9, at 524.Google Scholar

49 See Gross & Ní Aoláin, supra note 10, at 89.Google Scholar

50 See ex Parte Milligan, supra note 11.Google Scholar

51 Id. at 125.Google Scholar

52 See Gross & Ní Aoláin, supra note 10, at 103.Google Scholar

53 Cohen, Jean, Whose Sovereignty? Empire or International Law? 18 Ethics and International Affairs 1 (2004).Google Scholar

54 Korematsu v. United States, 323 U.S. 214 (1933).Google Scholar

55 See Gross & Ní Aoláin, supra note 10, at 95.Google Scholar

56 Id. at 96.Google Scholar

57 Tushnet, Mark, Controlling Executive Power in the War on Terrorism, 18 Harv. L. Rev. 2673, 2675 (2005).Google Scholar

58 See Zuckerman, supra note 9, at 532-533.Google Scholar

59 Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty and the Courts 45 (2007). See also Gary Lawson, Ordinary Powers in Extraordinary Times: Commons Sense in Times of Crisis, 87 B. U. L. Rev. 289, 311 (2007).Google Scholar

60 Commentators such as Ackerman envisage a role for the legislature in determining the existence of an emergency. However, these models often leave it to the executive to make the initial declaration, which is subsequently scrutinized by the legislature. For Ackerman, each subsequent renewal of a declaration of emergency would require an increasing majority. See Ackerman, Bruce, The Emergency Constitution, 113 Yale L.J. 1029 (2004).Google Scholar

61 See Posner, & Vermeule, , supra note 59.Google Scholar

62 Id. Google Scholar

63 Londras, Fiona de & Davis, Fergal, Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms, 30 Oxford Journal of Legal Studies 19 (2010).Google Scholar

64 See generally, Henkin, Louis, Is there a “Political Question” Doctrine?, 85 Yale L. J. 597 (1976). See also David Dyzenhaus, supra note 8, at 18-19.Google Scholar

65 See Henkin, id. Google Scholar

66 See Carl Schmitt, supra note 42, at 5.Google Scholar

67 Council of Europe, Preparatory Work on Article 15 of the European Convention on Human Rights 5 (1956). The British submission that there should be a derogation clause was seen to be an almost “textual reproduction” of Article 4 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter “ICCPR”].Google Scholar

68 ICCPR, id. Google Scholar

69 Article 15 of the ECHR also recognizes that some rights, such as the right to life (article 2) and the right to be free from torture or cruel and inhumane punishment (article 3) may not be deviated from, even during a state of emergency. See ECHR, supra note 1.Google Scholar

70 Hartman, Joan, Derogation from Human Rights Treaties in Public Emergencies 22 Harv. In'tl L. J. 5 (1981)Google Scholar

71 See Preparatory Work on Article 15 of the European Convention on Human Rights, supra note 67.Google Scholar

72 Lawless, supra note 13.Google Scholar

73 Dickson, Brice, The European Convention on Human Rights and the Conflict in Northern Ireland 37 (2010).Google Scholar

74 Lawless, supra note 13, at para. 28Google Scholar

75 Id. Google Scholar

76 Id. Google Scholar

77 See for example, Gross, supra note 17, at 460-464.Google Scholar

78 Ireland v the United Kingdom, Judgment of 18 January 1978, 25 Eur. Ct. H.R. (ser. A, 1978).Google Scholar

79 The Siracusa Principles have attempted to shed some light on the equivalent phrase contained in Article 4 of the ICCPR, declaring that in order for conditions to amount to a threat to the life of the nation, they must constitute a situation of exceptional and actual or imminent danger. See The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights 7 Human Rights Quarterly 3,7 (1985). Similarly, the Paris Minimum Standards outline that “public emergency” means “an exceptional situation of crisis or public danger, actual or imminent, which affects the whole population, or the whole population of the area to which the declaration applies and constitutes a threat to the organized life of the community of which the state is composed.” See Lillich, supra note 25, at 1073.Google Scholar

80 See Gross, & Ní Aoláin, supra note 10, at 271.Google Scholar

81 Gross, Oren & Fionnuala Ní Aoláin, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, 3 Human Rights Quarterly 623, 631-634 (2001). The “margin of appreciation” doctrine was subsequently expressly referred to in Ireland v. the United Kingdom, supra note 78.Google Scholar

82 See Dickson, supra note 73, at 37.Google Scholar

83 See Gross & Ní Aoláin, supra note 81.Google Scholar

84 See Dickson, supra note 73, at 37.Google Scholar

85 See Belmarsh, supra note 12.Google Scholar

86 Id. Google Scholar

87 Id. at para. 173.Google Scholar

88 See Friedrichs, supra note 35.Google Scholar

89 Id. at 88.Google Scholar

90 See Belmarsh, supra note 12, at para. 96.Google Scholar

91 Id. at 134.Google Scholar

92 See Belmarsh, supra note 12, at para. 96.Google Scholar

93 See per Lord Bingham's summary in the House of Lords, supra note 12, at 110.Google Scholar

94 Id. Google Scholar

95 See Belmarsh, supra note 12, at paras. 96-97.Google Scholar

96 See Belmarsh, supra note 12, at para. 209.Google Scholar

97 See Dyzenhaus, supra note 8, at 179.Google Scholar

98 Id. Google Scholar

99 O'Boyle, Michael, Emergency Situations and the Protection of Human Rights A Model Derogation Provision For a Northern Ireland Bill of Rights, 28 Northern Ireland Legal Quarterly 160, 182 (1977).Google Scholar

100 A discussion of this case may be found at Gross & Ní Aoláin, supra note 10 at 273-276.Google Scholar

101 Id. Google Scholar

102 See Belmarsh, supra note 12, at para 178.Google Scholar

103 Id. Google Scholar

104 This is essentially the theory propounded by Nomi Claire Lazar in supra note 8.Google Scholar

105 See Ashworth, Andrew, Crime, Community and Creeping Consequentialism, Criminal Law Review 220 (1996).Google Scholar

106 Brannigan and McBride v. the United Kingdom, 258 Eur. Ct. H.R. (ser. A, 1993).Google Scholar

107 Brogan v. the United Kingdom, Judgment of 29 November 1988, 145-B Eur. Ct. H.R. (ser. A, 1988).Google Scholar

108 See Gross & Ní Aoláin, supra note 10, at 278-279.Google Scholar

109 See Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR 14 (2001).Google Scholar

110 See Neocleus, supra note 34.Google Scholar

111 Ignatieff argues that the state's politicians have an incentive to prefer a strong executive response, given the political gain this can incur and conversely, the adverse consequences of the public perceiving politicians to be under reacting to a terrorist threat. See Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror 58 (2005); Cole, David, Enemy Aliens, 54 Stan. L. Rev. 953, 955 (2002).Google Scholar

112 See Hart, supra note 16.Google Scholar

113 See generally, Schmitt, supra note 43. See also Oren Gross, The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers and the “Norm-Exception” Dichotomy, 21 Cardozo L. Rev. 1825, 1847-1848 (2000); Dyzenhaus, supra note 8, at 35-54.Google Scholar

114 As per the UN Human Rights Committee's General Comment on Article 4, a discussion of which can be found at: Sarah Joseph, Human Rights Committee: General Comment 29, 2 Human Rights law Review 81, 82 (2002).Google Scholar