DRO0008 - Evidence on The Government’s proposed derogation from the ECHR

Written evidence submitted from Dr Alan Greene, Durham Law School (DRO0008)

About the author

I am an Assistant Professor in Law at Durham Law School where my research focuses on states of emergency, counter-terrorism, human rights, and the rule of law.

https://www.dur.ac.uk/law/staff/?id=11734

1. Summary of Evidence

The Government’s proposed ‘presumptive derogations for armed forces in overseas operations’ faces a number of difficulties:

Firstly, no state has ever derogated from an international human rights treaty in the context of its armed forces overseas; however, this is not to say that such derogations are impossible. Key factors explaining this are the limited extra-territorial application of the European Convention on Human Rights (ECHR) and the difficulties in conceptualising such conflicts as ‘threatening the life of the nation’.

A fundamental difficulty with the proposal is the concept of a ‘presumptive’ derogation in and of itself. Each derogation from the Convention must be justified by the contextual specificities surrounding the particular overseas engagement of British armed forces. Notification requirements of Article 15.3 are a vital link in the system of collective guarantee which is the primary aim of the Convention and consequently, the Government must ‘keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. Moreover, they must also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed. It follows therefore that derogations must be justified rather than ‘presumed’.

Even if such derogations are possible, the measures taken must still be proportionate to the exigencies of the situation and, certain rights are non-derogable. In the context of Article 5 and the right to liberty, the utility of a derogation in the context of an international armed conflict is questionable as the ECtHR already interprets Article 5 in harmony with international humanitarian law. While derogations may be useful in the context of non-international armed conflicts, these conflicts would, nevertheless, have to amount to a ‘threat to the life of the nation’.
The proposal for presumptive derogations in British law may damage the legitimacy of the Convention and the ECtHR by challenging the value of human rights norms and by placing the ECtHR in a position whereby it may have to pronounce on politically sensitive issues in order to vindicate these rights. This, in turn, may be utilised by other Contracting Parties to undermine the human rights obligations in their respective jurisdictions and further damage the legitimacy of the ECtHR.

2. Are the substantive requirements of Article 15 ECHR likely to be satisfied in the circumstances in which the Government intends to derogate?

Article 15.1 of the ECHR reads as follows:

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 this 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.[1]

In addition, Article 15.2 states the following:

No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.[2]

Article 15.1 thus contains two separate limbs: first, a state of emergency must exist; and secondly, the measures taken in lieu of a declaration of a state of emergency must be ‘proportionate to the exigencies of the situation’.[3] Article 15.2 then stipulates which rights are non-derogable. The principal focus of this submission will be on the first limb— the existence of a war or other public emergency threatening the life of the nation— as this is the most difficult challenge to the Government’s proposed ‘presumption to derogate for its armed forces overseas; however, reference will also be made to the proportionality of measures in Part 2(b).

a. The Existence of a ‘war or other public emergency threatening the life of the nation’ and extra-territorial derogations

Under Article 15 of the European Convention on Human Rights (ECHR), a Contracting Party can only declare a state of emergency, ‘[I]n time of war or other public emergency threatening the life of the nation’. Save for war, these vague conditions give no real guidance as to what amounts to an emergency.[4] Emergency clauses are, in general, drawn in such broad terms in order to accommodate a diverse array of unforeseen threats as the very nature of emergencies is that they are unpredictable and outside the norm of what can ordinarily be expected. The European Court of Human Rights (ECtHR; the Court) has, however, provided further guidance in interpreting Article 15.

In Lawless v Ireland, a ‘public emergency threatening the life of the nation’ was described by the ECtHR as ‘an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the state is composed’.[5] In this case, the ECtHR unanimously found a state of emergency to exist in Ireland arising from:

‘the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957.’[6]

In The Greek Case, the Commission (as distinct from the Court) laid down the following characteristics that a public emergency threatening the life of the nation must have:

It must be actual or imminent.
Its effects must involve the whole nation.
The continuance of organised life of the community must be threatened.
The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.[7]

While these statements appear to set a high threshold for what amounts to a ‘public emergency threatening the life of the nation’, to date, the Court has never found that an emergency did not exist in a state that declared one. Instead, the Court has taken a ‘hands-off’ approach to this issue, deferring to the domestic authorities’ assessments of the situation in their country and affording them a ‘wide margin of appreciation’.[8]

Thus in Lawless v Ireland, while the existence of a terrorist organisation may, prima facie, seem like a strong justification for declaring a state of emergency, it should be emphasised that the IRA’s targets were primarily directed against the UK rather than Ireland. It is for this reason that the existence of the IRA seriously jeopardised ‘the relations of the Republic of Ireland with its neighbour [the UK]’.[9] This finding of a decline in international relations as amounting to a ‘threat to the life of the nation’ has been criticised as the beginning of ‘a markedly deferential attitude toward the national governments as to whether a “public emergency” exists’.[10] This deferential approach to national authorities was further elaborated upon in Ireland v UK where the Court stated that:

National authorities are in principle in a better position 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. In this matter article 15 paragraph 1 leaves the authorities a wide margin of appreciation.[11]

A similarly deferential approach was seen in A v UK (hereinafter Belmarsh) where the UK, following the attacks on the United States on 11 September 2001 derogated from the right to liberty in Article 5.1 in order to detain indefinitely without trial, pending deportation, non-UK citizens who were suspected of terrorist-related activity.[12] The UK’s notice of derogation stated that:

There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.[13]

The ECtHR considered the national authorities, including the House of Lords, as competent to review the decision of declaring emergency, and as the latter was satisfied that the executive acted legitimately, so too was the ECtHR. This however, was despite the fact that the House of Lords, with the exception of Lord Hoffmann’s minority judgment, proffered little scrutiny of the decision to declare a state of emergency, but also deferred to the Government’s assessment of the situation.[14] The ECtHR’s position thus amplified the deference effect seen in the context of national security at a domestic level by multiplying it with an international dimension. What has been found to amount to a ‘threat to the life of the nation’ therefore falls far short of what the literal meaning of the term implies. It should be noted that in the aforementioned Greek Case, the Commission found that an emergency did not exist in Greece; however this is largely attributable to the anti-democratic nature of the then Greek government— a military dictatorship.[15] The Greek Case never made it to the ECtHR as in the aftermath of the decision of the Commission, Greece withdrew from the Council of Europe and denounced the Convention.

Extra-territorial derogations under Article 15 ECHR

Notwithstanding this differential approach, however, the above cases concern declared emergencies within the Contracting Party’s territory. They do not refer to derogations made in an extra-territorial context. Indeed, no state has ever derogated from a human rights treaty in an extra-territorial setting.[16] The difficulty in derogating from the Convention in an extra-territorial setting is that the overseas armed conflicts or operations that the UK armed forces are engaged in must ‘threaten the life of the nation’—the UK. On this issue, Lord Bingham in R(Al-Jedda) v Secretary of State for Defence remarked that:

It is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.[17]

Notwithstanding this, the ECtHR does not object, in principle, to extra-territorial derogations;[18] however, it is difficult therefore to see how UK overseas operations in Afghanistan, Iraq, Libya or Syria could satisfy these requirements as such conflicts must threaten the life of the UK nation. An argument could be made that overseas deployment of British armed forces is in fact necessary to protect the life of the nation; for example, a key justification for the UK’s invasion of Iraq was on the grounds that Saddam Hussein posed an imminent threat to the UK.[19] Such claims would, however, be reviewable by the ECtHR.

On this issue that an overseas armed conflict could threaten the UK, Lord Bingham highlighted in Al-Jedda that as the state voluntarily embarked on an overseas military operation from which it could withdraw (the Iraq War), the voluntary nature of such a conflict could not be considered to amount to a ‘threat to the life of the nation’.[20] This reasoning has been criticised by Professor Marko Milanovic, on the grounds that ‘Ireland and the UK could also have given in to the IRA’s demands and thus had averted or mitigate the public emergency. And so could any other state that derogated due to an internal problem.’[21]

It is submitted, however, that Milanovic’s criticism of Lord Bingham’s judgment, depreciates the concept of ‘necessity’ in Article 15 and states of emergency more generally. Although the word ‘necessary’ is not expressly mentioned in Article 15, ‘necessity’ is a fundamental concept that justifies provisions for declaring a state of emergency in international human rights treaties and constitutions.[22] Consequently, derogations under Article 15 must be ‘necessary’ in the sense that they must ‘protect the life of the nation’ rather than being necessary in order to permit the government to undertake the steps they wish to take. Necessity does not mean that the government has ‘no choice’; rather it means that there is such a constraint in choice due to the duress of circumstances that the Government experiences that it has to choose between ‘the lesser of two evils’.[23] Hence, it must sacrifice its ordinary commitment to human rights in order to prevent the greater evil— the threat to the life of the nation— from coming to fruition. The concept of necessity therefore conveys a degree of objectivity in the choice that the Government is taking; however, there will, invariably, be subjective factors at play to determine the best course of action to take. Nevertheless, the degree of objectivity regarding the existence of a state of emergency is often reflected in the fact that there is a convergence of opinion between the Government and opposition in times of crisis that an emergency exits.[24] In contrast, it is difficult to see how such a degree of objectivity could be gleaned from recent decisions to deploy UK armed forces overseas, for example in Iraq and recently to undertake military operations in Syria. Both decisions followed divisive parliamentary debates and in the case of the former, mass public opposition to the decision.[25] Consequently, the recent deployment of UK armed forces overseas lack the modicum of ‘necessity’ required to justify a derogation under Article 15 ECHR.

Separating ‘war’ from ‘other public emergency threatening the life of the nation’?

An alternative approach may be for the UK to argue that as Article 15 allows for derogations ‘in time of war or other public emergency threatening the life of the nation’, only the latter of these two conditions—‘public emergency’— needs to ‘threaten the life of the nation.’ According to this argument, any war, regardless of whether it threatens the life of the nation, would result in conditions under which a state could lawfully derogate from the Convention.

There are a number of difficulties with this argument, however. To date, the ECtHR has not been required to pronounce upon the meaning of ‘war’ under Article 15.[26] Moreover, the UK does not generally declare war in the deployment of armed forces overseas. Indeed, the very phrase ‘war’ is problematic given that it has fallen out of use in international law with the terms ‘international armed conflict’ or ‘non-international armed conflict’ being preferred. War therefore is a somewhat archaic term. Milanovic thus argues that ‘war’ in Article 15 could be subject to three separate interpretations:

a) As a reference to the technical legal concept of ‘war’ as it existed in classical international law;

b) As a reference to the modern concept of international armed conflict, which is like ‘war’ inter-state in nature but is objective and factual, and was indeed meant as a replacement for ‘war,’ with perhaps the addition of belligerent occupation as a sub-species of international armed conflict ;

c) As a reference to any type of armed conflict regulated by contemporary IHL, thus including both international and non-international armed conflict as well as occupation and possibly any third type of armed conflict if it ever evolves through custom or is created by treaty.[27]

As there is no guidance from the case law on this issue, any of the three interpretations may be followed. If interpretation (c) were followed, separating ‘war’ from ‘public emergency threatening the life of the nation’ could, for example, legitimate derogations from the Convention in international and non-international armed conflicts that did not ‘threaten the life of the nation’. It would merely be for the Court to assess whether such an international or non-international armed conflict did exist. Again, this argument has not been litigated before the Court; however, the Council of Europe’s own guide to Article 15 conceptualises war at the upper end of the scale of what constitutes a state of emergency with ‘any substantial violence or unrest short of war…likely to fall within the scope of the second limb or Article 15.1, a “public emergency threatening the life of the nation.”’[28] This interpretation is in line with other international human rights treaties. The text of Article 15 is closely based on that of Article 4 of the United Nations International Covenant on Civil and Political Rights (ICCPR). Article 4 of the ICCPR allows a state to derogate ‘[I]n time of public emergency which threatens the life of the nation’.[29] Notably, Article 4 does not mention ‘war’. The reasons for this, however, are not that a state cannot derogate in a time of war but that ‘while it was recognised that one of the most important public emergencies was the outbreak of war, it was felt that the covenant should not envisage, even by implication the possibility of war, as the United Nations was established with the object of preventing war’.[30]

Under this understanding of Article 15, a ‘war’ or armed conflict can only justify a derogation under Article 15 if it ‘threatened the life of the nation’. To parse ‘war’ from ‘public emergency threatening the life of the nation’ would be a fundamental misinterpretation of Article 15. ‘War’ is not just an illustrative example of a public emergency threatening the life of the nation; it is a ‘core’ or paradigmatic example of this. The phrase ‘Public emergency threating the life of the nation’ subsequently expands Article 15 to conditions falling short of this. To interpret war as amounting to a phenomenon that does not amount to a ‘threat to the life of the nation’ is to flip Article 15 on its head, making war the term in Article 15 that expands its application and the phrase ‘public emergency threatening the life of the nation’ the limiting aspect of Article 15. Consequently, ‘war’ under Article 15 must be considered a ‘core’ example of a phenomenon that can amount to a ‘public emergency threatening the life of the nation’. It follows that if the actions of British armed forces overseas are not engaged in an armed conflict that ‘threatens the life of the nation,’ then the state cannot lawfully derogate under Article 15.

‘The nation’

Further arguments in this regard may be to interpret ‘the nation’ to mean not the UK but rather the state or community in which the armed conflict is taking place.[31] Again, there is no case law on this issue and it would be difficult to reconcile this argument with principles laid down in Lawless and The Greek Case as to what constitutes a state of emergency. For example, this argument would not be compatible with statements in Lawless that the emergency must affect ‘the whole population and constitutes a threat to the organised life of the community of which the state is composed.’[32] It would also be difficult to reconcile with the statement in The Greek Case that an emergency should ‘involve the whole nation’.[33]

On this issue, it may be argued that the ECtHR’s jurisprudence on this issue may itself be irreconcilable with these statements. For example, that the IRA only posed a threat to Northern Ireland as distinct from the UK as a whole, or that Turkish derogations regarding the PKK and Kurdish political violence related to specific areas in Turkey in which there is a substantial Kurdish population. Firstly, on this issue, even Lord Hoffmann who dissented in Belmarsh on the grounds that al-Qaeda did not pose a threat to the life of the nation nevertheless conceded that the IRA did. Lord Hoffmann argued that ‘it was reasonable to say that terrorism in Northern Ireland threatened the life of that part of the nation and the territorial integrity of the United Kingdom as a whole.’[34] A similar logic therefore could also be applied to Turkish derogations. Consequently, although these emergencies may be conceptualised as ‘local’, as they affected the territorial integrity of the entire state, it follows that they did amount to a threat to the life of the nation rather than just a part of it.[35] Moreover, the conflict in Northern Ireland did have a ‘spill-over’ effect to the rest of the UK with attacks being carried out, for example, in Birmingham, Brighton, and Guildford.

The meaning of ‘presumptive’

While, the ECtHR does not object, in principle, to extra-territorial derogations; a further difficulty with the Government’s proposal is the very idea of a ‘presumptive derogation’. The UK’s armed forces may certainly be engaged in an overseas armed conflict that may amount to a threat to the life of the nation; however, whether such an armed conflict satisfies this condition is contextually specific to the armed conflict in question. Each armed conflict or deployment of troops overseas must be assessed on its merits in order for a derogation to be justified under Article 15. Consequently, the proposed ‘presumptive’ derogation obliterates this requirement and, as a result, is incompatible with the Convention. That stated, it appears that the Ministry of Defence is acutely aware of this as it has stated that there will be an intention to derogate only if it is ‘possible in the circumstances that exist at the time’.[36] If this is true, it raises the question of what, if anything, is novel about this proposal, save for the fact that it would be the first time a state derogated from a human rights treaty on the grounds of an extra-territorial conflict. In essence, it would not be ‘presumptive’ as the Government would still have to undertake the necessary assessment as to the conditions warranting the justification of a state of emergency and communicate this decision to the Secretary General of the Council of Europe in accordance with Article 15.3 of the Convention.

B. Non-Derogable Rights and Proportionality

The second limb of Article 15.1 is that the measures taken must be ‘proportionate to the exigencies of the situation’. A state therefore is not given ‘carte blanche’ to act as it sees fit once a valid emergency has been declared.[37] Moreover, Article 15.2 states that no derogation is permitted from Article 2 (right to life), except in respect of deaths resulting from lawful acts of war, or from Articles 3 (prohibition on torture or inhuman and degrading treatment), 4.1 (prohibition on slavery) and 7(no punishment without law). The prohibition of torture or inhuman and degrading treatment or punishment can come under pressure during a state of emergency, particularly with regards to the detention and interrogation of suspected combatants.[38] Litigation pertaining to Article 3 therefore cannot be prevented by the Government’s proposal to presumptively derogate from the ECHR.

‘Proportionate to the exigencies of the situation: Article 5 ECHR

On this question of proportionality, Article 5 ECHR —right to liberty —is likely to be the right subject to derogation in the context of UK overseas actions. While again the Court may defer to national authorities on this question, it has in the past been more willing to find that the measures taken by a state following a declaration of a state of emergency have not been ‘proportionate to the exigencies of the situation’. In the aforementioned Belmarsh case, the majority of the House of Lords and the ECtHR found that the measures enacted by the British Government were disproportionate and discriminatory, differentiating arbitrarily between non-nationals suspected of international terrorism, and UK citizens who were considered to present the same threat qualitatively. The measures were thus not rationally connected to the objective of combating terrorism.[39]

Article 5 contains a detailed list of situations in which detention is permissible; however, detention of a person during an international armed conflict in accordance with international humanitarian law is not expressly listed. In cases such as Al-Jedda v United Kingdom [40] and Al-Skeini v United Kingdom,[41] the ECtHR appeared to be establishing the principle that where jurisdiction is established and no lawful derogation has been made, the State is required to fulfil its obligations under the ECHR. This would imply that no further flexibility would be afforded to the state with regards to Article 5.[42] However, in Hassan v United Kingdom, the Grand Chamber of the ECtHR held that the Convention had to be interpreted in parallel with international instruments which applied in time of war.[43] In this regard, the Court found that as the standards followed by the UK in detaining the brother of the applicant in Iraq satisfied the requirements stipulated by international humanitarian law, there was no breach of Article 5. It is difficult to see therefore how a derogation could lower the protection of the right to liberty below that secured by international humanitarian law. This raises the question of what, if anything, would be the effect of a successful derogation seeing as the ECtHR already interprets Article 5 in line with international humanitarian law when a derogation is not in place. Furthermore, this calls into question claims made by those who contend that international human rights law poses an unduly harsh burden on British armed forces that impacts upon the operational effectiveness of troops on the battlefield.

It should be noted, however, that Hassan referred to the UK’s involvement in an international armed conflict as it is only in an international armed conflict that the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law.[44] Consequently, it could still be the case that the judgments in Al-Skeini and Al-Jedda are applicable to non-international armed conflicts and in such non-international armed conflicts, a valid derogation would have a material impact on the degree of protection afforded to detainees. Thus in Mohammed v Secretary of State for Defence the Court of Appeal found that the detention of a senior Taliban Commander for over three months violated Article 5 ECHR as there was no basis in either domestic or international law for detention of such duration in a non-international armed conflict.[45] A valid derogation in such instances could lower the protection afforded by Article 5; however, on this issue the Court of Appeal found that even if international humanitarian law standards were applied, the detention in this case would have failed the ‘irreducible core procedural requirements’ stipulated by international humanitarian law on the grounds that that the appellant’s detention had not been reviewed by an impartial and objective authority.[46] Consequently, Dr Jane Rooney argues that the solution in this case would not necessarily be to derogate from the Convention but for Parliament to draft legislation for detention in situations of non-international armed conflicts.[47] Ultimately, however, the same point made in 2(a) of this report would still have to be addressed: namely, that in order for a valid derogation to be made for the purposes of detaining individuals in the context of a non-international armed conflict, such a non-international armed conflict would have to threaten the life of the UK nation.

Conclusions

It follows that the stated rationale behind the proposal—‘ to protect Armed Forces from persistent legal claims in future overseas operations’— will not necessarily be fulfilled by a presumption to derogate from the Convention.[48] While such a derogation may give armed forces greater leeway with regards to, for example, Article 5 ECHR and the deprivation of liberty, such detained individuals would nevertheless have recourse to British courts and, ultimately, the ECtHR. Moreover, the claim that international human rights standards pose an undue burden on the armed forces is one that is highly questionable and not supported by existing case law.

3. Are there any wider implications of the UK derogating from the extra-territorial application of the Convention in military operations, such as effects on other countries or on the European system for the collective enforcement of human rights?

A fundamental difficulty with the Government’s proposal is that it has the potential undermine the legitimacy of the ECtHR at a time when it is already in a precarious position. The legitimacy of an international human rights court such as the ECtHR is dependent upon the degree to which its judgments are implemented by Contracting Parties. More than ever, however, its judgments are facing resistance from Contracting Parties. A key illustration of this is the UK’s approach towards the ECtHR judgment in Hirst (No.2) v United Kingdom regarding the enfranchisement of prisoners.[49] The stalemate between the United Kingdom and the ECtHR on this issue of prisoner-voting has lasted for more than a decade and despite the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, recommending in 2013 the implementation of the Hirst judgment, this has not been acted upon and the respective parties seem further apart than ever.

The causes and ramifications of this legitimacy crisis of the ECtHR are not limited to the UK. A similar robust resistance to prisoner enfranchisement can be found in Russia where the Russian Parliament in December 2015 passed a law empowering the Russian Constitutional Court to declare rulings of international bodies ‘impossible to implement’. Shortly thereafter, in April 2016, the Russian Constitutional Court ruled that the enforcement of Anchugov and Gladkov v. Russia is impossible under the existing constitutional constraints.[50] Russia has also taken issue with ECtHR judgments regarding the vindication of the rights of LGBT people. In Alekseyev v Russia, the Court found that a Russian ban on a gay pride parade in Moscow breached the right to freedom of assembly (amongst others) under Article 11 ECHR and thus awarded the applicant €3,000 in damages.[51] A member of the Russian parliament responded that Russia was ready to pay €3,000 every year to the organisers of gay pride parades but there would be no such parades in Moscow.[52]

There is further evidence that this contagion is spreading throughout the Convention system, undermining the legitimacy of the ECtHR and encouraging other Contracting Parties to defy the Court. Ed Bates, for example, notes that Azerbaijan’s continued imprisonment on spurious grounds of Ilga Mammadov, a political activist, in defiance of a judgment of the ECtHR is evidence of this.[53] Consequently, the legitimacy of the ECtHR is being weakened at a time when there are profound human rights concerns across the continent, placing the ECtHR in a position whereby it is becoming increasingly difficult for it to protect and vindicate these rights.

The Legitimacy of the ECtHR and Derogations

In light of this, the Government’s proposals to introduce a presumptive derogation from the Convention may add to this legitimacy crisis by placing an already weakened Court in a situation whereby it may have to pronounce on an issue of national security— an area where the court’s legitimacy is already weak. A key reason for the ECtHR’s deferential approach to national authorities with regards to states of emergency is that courts in general are reluctant to scrutinise closely decisions made in the area of national security by the democratic branches of government. According to this argument, courts lack the expertise to make decisions in this area, particularly where decisions pertaining to national security are made based upon sensitive information, the public dissemination of which may hamper, state security. Moreover, courts also lack the democratic legitimacy to do so as they are not accountable to the electorate for their decisions.[54] These pressures are further compounded for an international court like the ECtHR whose legitimacy and jurisdiction is dependent upon the consent of Contracting Parties. Consequently, the ECtHR would be in a difficult position should it make an adverse finding against a Contracting party that measures taken in the name of national security violated the Convention.

On this very issue, the ECtHR is already in a precarious position. On 21 July 2016, Turkey declared a state of emergency following the failed military coup aimed at ousting President Recep Tayyip Erdoğan.[55] The first decree issued under the new emergency powers in Turkey authorises detention without review by a judge for up to 30 days.[56] The Council of Europe’s Commissioner for Human Rights has already expressed ‘profound concern’ at the human rights implications of the measures included in the first emergency powers decree:

This period is exceptionally long and will apply not only to those suspected of Involvement in the coup attempt, but all persons suspected for involvement in terrorist offences and organised crime, during the validity of the state of emergency.[57]

Furthermore, the decree includes a simplified administrative process for removing a judge from office and 2,700 judges were subsequently removed following the coup and the Council of Europe has expressed concern at the consequences this may have for the rule of law in Turkey.[58]

Following this declaration of a state of emergency, a number of high profile Turkish officials, including President Erdoğan himself, suggested that the reintroduction of the death penalty may be a possible response to the attempted coup. Article 1 of Protocol 13 of the ECHR states as follows:

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Moreover, Article 2 of Protocol 13 states that:

No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.[59]

In the event that Turkey introduces the death penalty it will be in clear breach of Protocol 13. Doctrines such as the margin of appreciation doctrine are sometimes referred to as ‘avoidance doctrines’ in that they allow a court to side-step a politically contentious issue, thus leaving it to the political branches of the state to be resolved, or to deal with it at a later date. Should Turkey reintroduce the death penalty, the ECtHR would be unable to avoid making an adverse finding against Turkey.

In this context, the precarious position that the ECtHR is in regarding Turkey becomes clear. An international court making judicial pronouncements on hypersensitive issues such as national security is on a headlong collision course with the respondent Government in question. If the ECtHR is facing resistance to the implementation of its judgments in other areas by other Contracting Parties, this may encourage others, such as Turkey, to do likewise. In the event of a flagrant breach of the Convention such as a reintroduction of the death penalty by Turkey, the entirety of the Convention system would be undermined. While the Council of Europe could suspend Turkey from membership using Article 46.4 of the Convention, this provision, to date, has never been used.[60] Moreover, it is difficult to see how, in practical terms this could improve human rights protection in Turkey. In such a scenario, political pressure from other Contracting Parties becomes imperative. However, if these other Contracting Parties are themselves refusing to enforce their Convention obligations they are in no position to implore Turkey to enforce the judgments of the Court.

Consequently, the UK should take positive steps in vindicating its international human rights obligations under the ECHR and avoid political rhetoric that may damage the legitimacy of the ECtHR. The proposal for presumptive derogations in British law damages the legitimacy of the Convention and the ECtHR by challenging the value of human rights norms and by placing the ECtHR in a position whereby it may have to pronounce on politically sensitive issues in order to vindicate these rights. This, in turn, may be utilised by other Contracting Parties to undermine the human rights obligations in their respective jurisdictions.