Derogation Issues
Art 15 ECHR
Art 4 ICCPR
Ireland v. UK
· very little discussion of relation of derogation to actual needs of the situation (comparatively to Brannigan and McBride)
· very procedural view
· no question of time limit
· the only argument to the purpose of a derogation arises in the separate opinion of Judge Sir Gerald Fitzmaurice who indirectly addresses the issue
o procedural and substantive argument for considering Art 15 before Art 5
§ invocation of Art 15 implies a tacit recognition that Art 5 has possibly been infringed
§ length of decision would be shorter
§ “Article 15…where applicable to the facts of the case, does not merely excuse acts otherwise inconsistent with Article 5…: it nullifies them qua breaches of the Convention as a whole, - or at least justifies them, so that no breach results…having pleaded Article 15…only after establishing that there has been a breach of Article 5…[puts] that Party in the posture of being, in principles, a Convention-breaker, although it has taken all the steps necessary to invoke and bring into play Article 15…(t)he respondent Party is therefore left in the invidious and false position of having prima facie violated the Convention, and having merely as it were subsequently atoned for that violation…whereas the true situation is that such a Party should be deemed never to have breached Article 5…at all as regards to any acts for which Article 15…was invoked and found applicable.” (para 42 opinion)
In this case then, the substance of the violation is examined first (Art 5) and then excused upon procedural grounds. In Brannigan and McBride the substance of the violation is taken prima facie and the grounds for the derogation are argued (in the separate opinions) much more in depth. Does this reflect a change in focus regarding the purpose or validity of dergoations?
Brannnigan and McBride v. UK:
· What is the purpose of a derogation?
o acts as a reservation?
o temporary measure valid only for as long as it takes for the State to create an alternative which would be compatible under the Convention?
· What is the Court’s role in evaluating the derogation?
o how wide is the margin of appreciation?
o what are the safeguards for non-derogables and what role do they play?
o how convincing do the State’s arguments need to be regarding the substance of the derogation?
o Should the Court evaluate whether the reviews of the offending legislation is done in good faith?
o Should strictness of review increase with the passage of time?
· Question of relation to other rights within the Convention
o other opinion’s discussion of Art 14
o status of Art 13
o Art 5.2 (especially in relation to habeas corpus)
Derogations allow for added flexibility in State obligations in response to a serious national threat. Terrorism, in this instance and in reference to this new “War on Terror,” assumes a lengthy, if not permanent, character. Should a temporary emergency measure be allowed for situations that may be of considerable length? Do derogations like this suggest that terrorism creates a situation in which human rights cannot be enforced?
DEROGATION:
· public emergency
· threatens the life of the nation
· strictly required by the exigencies of the situation
· consistent with other international law obligations
· non-derogables: 2, 3, 4.1, 7
· inform Secretary General of Council of Europe