SUSPENDING HUMAN RIGHTS: AN INVESTIGATION INTO THE LEGAL POSSIBILITIES AND PRACTICE SUBTITLE

Word count: 49,852

Marlies Vanhooren Student number: 01413451

Supervisor: Prof. Dr. Haeck

A dissertation submitted to Ghent University in partial fulfillment of the requirements for the degree of Master of Laws

Academic year: 2017 - 2018

Acknowledgments Ik zou graag mijn promotor en commisaris, professor dr. Haeck en meneer Van Pachtenbeke bedanken om mij de kans te geven om dit interessante en actuele onderwerp te onderzoeken. Daarnaast natuurlijk ook mijn familie die mij met raad, daad en heel veel zoetigheden bijstonden en mijn vriend voor al het nalezen, de verhelderende discussies en nog meer zoetigheden.

1 Introduction ...... 4 Derogation Models ...... 5 Giorgio Agamben ...... 7 Agamben on Necessity ...... 7 Force-of-law ...... 8 Agamben on Schmitt ...... 8 Agamben on Walter Benjamin ...... 10 Homo Sacer ...... 12 The strategy of the European Court for Human Rights to neutralise a threat to the life of a Member State ...... 14 Human Rights treaty clauses allowing for a derogations ...... 14 a) International Covenant on Civil and Political Rights ...... 14 b) American Convention on Human Rights – Pact of San Jose, Costa Rica ..... 15 c) European Convention for the Protection of Human Rights and Fundamental Freedoms ...... 16 Margin of appreciation ...... 17 Jurisprudence of the European Court of Human Rights on derogations ...... 22 a) Interstate ...... 23 b) Individual applications ...... 30 Contesting applicants ...... 30 Applicants agreeing with the proclaimed public emergency ...... 42 Conclusion ...... 47 National strategies to neutralise a threat to the nation ...... 50 France ...... 50 The French exception ...... 50 “L’état de siège” ...... 50 “L’état d’urgence” ...... 51 Pouvoirs exceptionnelles ...... 55 Aux armes citoyens - the (Fifth) Republic under threat ...... 56 1. French-Algerian war (1954-1962) ...... 57 2. Generals’ Revolt (1961-1963) ...... 59 3. 2005 French riots ...... 62 4. Attacks of November 2015 ...... 62 Germany ...... 66 Germany’s possible reactions to an emergency ...... 66 Defence to threats coming from outside Germany ...... 66 Verteidigungsfall (115A) ...... 66 Process ...... 66 Permitted limitations to basis rights ...... 69 Spannungs- und Zustimmungsfall (80a §1) ...... 71 Bündnisfall (80a §3) ...... 71 Defence against threats coming from inside Germany ...... 72 Threats to the free democratic basis order (Art. 91) ...... 72 Threats coming from natural disasters (Art. 35) ...... 73 Deutschland über alles ...... 73 From 1848 to 1944: one century, two world wars, three constitutions ...... 73 From 1944 until now ...... 79 The United Kingdom ...... 84 Strategies to overcome an emergency threatening the United Kingdom ...... 84 Human Rights Act ...... 84 The Act ...... 84 Its implications ...... 86 The Civil Contingencies Act ...... 89 What is an emergency in the United Kingdom and who has the power to declare one? ...... 89

2 What measures can be taken when a State of Emergency is declared, and who can decide they are necessary? ...... 91 Martial law ...... 96 God save the Queen – The United Kingdom under threat ...... 97 Conclusion ...... 105 Bibliography ...... 107

3 Introduction Human rights typically are suspended when the state faces an emergency that threatens its existence, or the values it embodies. In those situations, States often proclaim a state of emergency, during which certain rights are suspended, in order for those rights to survive the period of tumult. In this dissertation, I will investigate what different models exist to handle a threat to the life of the nation and the traces history left both on the national as on the international level. Because it is not because the intention was to save the democracy, the state or the rule of law by temporarily sacrificing human right for the greater national good, that this means that States always succeed in returning to their normal. The first chapter will deal with the European Court of Human Rights and its role as guardian of the Convention. After all, the Convention system was erected because the Second World War and the decades preceding it had proven that when the situation got though, fundamental rights were the first victims. Today again (still), certain (populist) discourses described human rights as souvenirs of an imaginary better past, where the State didn’t have to deal with all kinds of threats coming from the Other. Contrary to the other main Human Rights Convention Systems, the International Covenant on Civil and Political Rights and the American Convention on Human Rights, the European Court of Human Rights grants its Member States a margin of discretion at a time where one would at first glance expect the most supervision. Does this mean that the European Court of Human Rights is scared of responsibility it was given? In the second chapter I will investigate the national responses to emergencies of France, Germany and the United Kingdom. While the United Kingdom is a common law jurisdiction, the other two are continental law, but does this have an influence in human rights protection, when after all the three countries are Member States of the European Convention of Human Rights? Does the presence of a colonial past influence how France and the United Kingdom deal with emergency situation? And finally, how was it possible to turn a democracy in a fascist totalitarian state and did this transformation leave constitutional traces?

4 Derogation Models According to Tom Hickman, two different strategies exist to tackle public emergencies. One argues to deal with these situations in a legal manner and to include derogation clauses in constitutions or in human rights treaties, whereas the other warn for the dangers this system would bring along and favour extra- legal emergency action. The champions of the extra-legal measures model mainly focus on the impossibility to be prepared for everything. Emergencies require a range of executive action and fast decisions. Putting too many limitations and brakes on the course of action is considered counterproductive and to result in an escalation of the situation.1 It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution.2 Next to that, it is argued that insertion of an emergency within the legal regime could possibly result in a contamination of human rights provided for in that same Constitution. This Lockean view does not ask for uncontrolled power for the executive, but rather would replace juridical with political accountability.3 Another split can be seen in the understanding of derogation. He considers there to be two approaches: the limitation model and the derogation model. The first characterises derogation as mere qualifications on rights because of which it does not require a special justification. The second is the more familiar approach, which sees derogation as a mechanism for States to be liberated from their human rights obligations. Contrary to a limitation of the scope of the rights, the derogation model temporarily suspends some (most) rights.4 If States validly derogate, they are also released from their obligation to justify why they have interfered with those rights. Because of this “unbridled” release, there needs to be some sort of “minimum human rights, from which no derogation is allowed. This second approach appears therefore as the stricter one. If a State of Emergency exist, than that State can validly derogate and they are consequently released from that double obligation. Because the duty to uphold all human rights falls away, there is no human rights supervision with regard to the interferences with those rights. This does not mean all supervision is left behind; the supervision remaining is a legal one. The actions of the Government are required to remain within the law, albeit they can leave the human rights regime behind. “If detention on reasonable suspicion is strictly required then it is

1 Tom Hickman Public Law after the Human Rights Act (Hart Publishing 2010) p333-334. 2 Korematsu v US 323 U.S. 214 (1944) p244. 3 Hickman Public Law after HRA, p334. 4 Andraz Zidar ‘WHO International Health Regulations and Human Rights: from Allusions to Inclusion’ in Myriam Feinberg, Laura Niada-Avshalom and Brigit Toebes (eds.) National Security, Public Health: Exceptions to Human Rights? (Routledge 2016) 123, p125.

5 unnecessary to require detention itself to be subject to the standards of justification required by human rights norms set out in the treaty.”5 Because the majority of human rights can be set aside, the risk of contamination is of course smaller when States operate in such a “double layered system.” Furthermore, because of legal supervision, there is no room for arbitrary governmental action beyond judicial scrutiny. It then becomes crucial to evaluate the validity of the derogation. Oren Gross and Fionnuala Ní Aoláin on the contrary argue that three different kinds of models exist: models of accommodation, the “Business as Usual” model and the extra-legality model. The first seems the typical derogation model: in case of an emergency some constitutional and legal constraints are suspended or “relaxed.” A typical example would be the Roman dictator.6 Although the flexibility of such models makes them seem very appealing, Gross and Ní Aoláin warn for the slippery slope that they might transform into. The advantage of flexibility is exactly what makes this model turns into a nightmare for supporters of the “Business as Usual” model. The latter are constitutional and legal absolutist, whose desire is to neutralise public threats within the constitutional framework. There is no different set of laws or different constitutions for an emergency, war and the normal situation, but only one to regulate them all. The main critique by realists given to this model is that it is considered naïve in disregarding the extremity an emergency situation can cause.7 Both the model of accommodation and the “Business as usual” model represent the constitutional counterpart to the extra-legal measures model elaborated on by Tom Hickman. All three strategies discussed in the chapter dealing with national emergency responses are of the constitutional model of accommodation. 8 As Giorgio Agamben, a contemporary Italian politico-juridical philosopher, emphasizes that the stakes are high, the next section will give the floor to Carl Schmitt, notorious for advocating very far-reaching extra-legal power for the executive. I will however only discuss him through Agambens State of Exception,9 in which Schmitt features as part of a dialectic with Walter Benjamin.

5 Hickman Public Law after HRA, p335. 6 As our only source on the Roman dictator is Titus Livius’ Ab Urbe Condita6 (Usually translated as “The History of Rome,” but literally meaning: from the founding of the city), spanning the seven hundred years from the founding of Rome until Livius’ present day. The length of the period Livius tried to cover, the fact that his sources are not all known and that not everything he wrote is preserved, made me chose not to include a history of the Roman institution of dictatorship in this Masters’ thesis, despite the unwavering intrigue. 7 Oren Gross and Fionnuala Ní Aoláin Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press 2006), p9-10. [Gross and Ní Aoláin Law in Times of Crisis] 8 Gross and Ní Aoláin Law in Times of Crisis, p43, 198, 275. 9 Giorgio Agamben State of Exception (translated by Kevin Attell Universtiy of Chicago Press 2005). [Agamben State of Exception]

6 Giorgio Agamben Agamben on Necessity Necessity has no law Giorgio Agamben starts The State of Exception with the justifying accusation that there still is no theory of the state of exception in public law. He identifies two reasons for this, the first being that the problem of a state of exception seems to be comprehended as a factual rather than a genuine juridical problem. The second is that, although there is no theory, the debate seems to be held partly by authors who claim such a theory would be illegitimate. They follow the maxim necessitas legem non habet and argue that the exception is founded on the state of necessity and can therefore not have a juridical form. The question of borders becomes all the more urgent: if exceptional measures are the result of periods of political crisis and, as such, must be understood on political and not juridico-constitutional grounds, 10 then they find themselves in the paradoxical position of being juridical measures that cannot be understood in legal terms, and the state of exception appears as the legal form of what cannot have legal form.11 On the other side of the discussion, Agamben fights for the legitimacy of a theory of the state of exception. The exception is the suspension of law itself. If law the law employs that suspension of itself as the “originary means of referring and encompassing life,” then a theory of that suspension is required to define the relation that both binds and abandons the living being to the law.12 Contrary to necessity as a source of law or the ground of its suspension, a theory that only saw the light in the Modern Era, Agamben refers to the concept of necessity as it was used in the middle Ages. In particular, he refers to the work of Gratian, who, contrary to popular belief, does not empower necessity to make the illicit licit. According to Agamben, Gratian uses the exception as a means to justify one specific case of transgression, out of necessity.13 Necessity is not a source of law, not does it properly suspend the law; it merely releases a particular case from the literal application of the norm.14 The moderns based themselves on a different reading of Gratian, causing this entire statement to reverse. This theory was upheld throughout the ages as can be seen for instance in the use of necessity as means of justification to confer legislative power to the executive. Agamben refers to Santi Roma, who concludes that everyone who does not accept the existence of a source of law beyond legislation is incorrect. He claimed there were two sources of law: legislation and necessity.

10 Francesco De Martino Storia della costituzione romana (1973 Jovene) p320 as cited in Agamben State of Exception p1. 11 Agamben State of Exception, p1. 12 Ibid. 13 Agamben State of Exception, p24-25. 14 Agamben State of Exception, p25. In that particular situation alone, because of necessity, the law is not applied.

7 Force-of-law Full power, or plein pouvoirs, is the conferral of the power to issue decrees having the force of law to the executive on the basis of what Agamben calls “full power laws.” Their origin is found in the plenitude potestatis, or the complete power of the pope in a time preceding the separation of powers. Many, of which Agamben specifically mentions Swedish jurist Herbert Tingsten, believe this to equate to the state of exception, or at least to characterise it, whereas Agamben emphasizes it to only be one possible mode of action of the executive in a state of exception. A state of exception, he claims, is kenomatic;15 empty of law.16 Force of law on the other hand point to the capacity to bind and has since the French Revolution been attributed to “those acts declared by the representative assemblies of the people.” Today however, it points to the efficacy of the law, the power to produce legal effects. The concept has become a relative one, pointing to the middle of a hierarchy led by a constitution and concluded by executive degrees and regulations. From a technical point of view force of law does not refer to law, but to the decrees that the executive can issue in certain particular situations. In this way, formally non-laws gain the applicability of formal law. The fusion of both is an essential characteristic of a state of exception, with as point of culmination Eichamnn’s claim that “the words of the Führer have the force of law.” Albeit an essential characteristic of a state of exception, not the confusion between acts of the legislative power and those of the executive, but the separation between force-of-law from law is the main contribution of the state of exception. A state of the law is defined during which the norm is in force, but is not applied and acts that do not have the value of law, acquire its force.17 The state of exception is an anomic space in which what is at stake is a force of law without law (which should therefore be written: force-of-law). Such a “force-of- law,” in which potentiality and act are radically separated, is certainly something like a mystical element, or rather a fictio by means of which law seeks to annex anomie itself.18 Agamben on Schmitt The German juridico-political theorist Carl Schmitt’s main goal is to inscribe the State of Exception in the juridical context, although, according to Agamben, he realises that in its core, the State of Exception cannot take a juridical form. Despite this realisation, Schmitt would paradoxically argue in favour of the articulation of the state of exception with juridical order, since, as the State of Exception does not equate to chaos, there is an order in it, even if it not a

15 From the Greek κένωμα: evacuation, emptying, vacuity. Isaak Lowndes A Modern Greek and English Lexicon: to which is Prefixed an Epitome of Modern Greek Grammar (Vol.2 Black, Young and Young 1837) p339. Here used in the meaning of “emptiness,” “void.” 16 Agamben State of Exception p5-7. 17 Agamben State of Exception, p37-39. 18 Agamben State of Exception, p39.

8 juridical one. The method of inclusion would however take different shapes depending on the kind of exception.19 The State of Exception is represented by dictatorship in Schmitt’s work. He identifies two kinds of dictatorship in his first book, aptly titled Dictatorship. The first, commissarial dictatorship, is aimed at the protection or restoration of the constitution. The second kind of dictatorship, called sovereign dictatorship, has the exact opposite aim, namely the destruction of the constitution and the overthrow of the regime that is linked to it. In that sense, Agamben juxtaposes the Schmittian dictatorships as constitutional and unconstitutional dictatorship.20 The operator for their inscription in the legal context differs for both kinds of dictatorship. Where commissarial dictatorship relies on the distinction between norms of law and norms of realisation of law, sovereign dictatorship can be legally inserted by the difference between respectively constituent and constituted power. Commissarial dictatorship, with its goal of preserving the constitution, suspends the law, in order to create the space for it to be realised again later. This occurs on the basis of a right provided for in the constitution, thereby preserving its constitutionality. As the norm can be separated from its application, it can be suspended, while remaining in force.21 Sovereign dictatorship on the other hand, aims to create momentum for the overthrow of the existing regime and the creation (constitution) of a new regime. This constituent power, used to overthrow the regime and thereby to create a State of Exception, can be seen as some sort of formless “minimum constitution.”22 Constituent power is not, however, “a simple question of force”; it is, rather, “a power that, though it is not constituted in virtue of a constitution, is nevertheless connected to every existing constitution in such a way that it appears as the founding power,… and for this reason it cannot be negated even if the existing constitution might negate it.”23 “The law is applied, but not formally in force.”24 Although at the time of Schmitt’s writing (1921), the Nazi horror had not yet materialised, Hitler’s rule can be seen as a clarifying example.25 In Political Theological, Carl Schmitt seemed to have followed the same structure, but filled it in differently. Here the operator is the distinction between norm and decision, thus seen as autonomous elements. Where in the normal situation, decision is reduced to a minimum, in the exception the norm is. The norm is defined by the exception. Since both of them are within the framework of

19 Agamben State of Exception, p33. 20 Agamben State of Exception, p8, 32. 21 Agamben State of Exception, p36. 22 Agamben State of Exception, p33-34. 23 Carl Schmitt Die Diktatur (Duncker &Humblot 1921) p137 as quoted and translated by Agamben State of Exception, p34. 24 Agamben State of Exception, p36. 25 Agamben State of Exception, p58.

9 the juridical, so is the exceptional situation. As the sovereign is he who decides upon the exception, he impersonalises the link between the juridical and the exception. His capacity to decide to annul the norm makes him stand outside of the juridical order, yet also causes him to belong to it.26 Here too, a situation is created in which the norm is suspended or even annulled; but what is at issue in this suspension is […] the creation of a situation that makes the application of the norm possible.”27 Agamben concludes that the Schmittian State of Exception can be seen as the place where the norm and her realisation reach their greatest opposition.28 Schmitt tries to inscribe anomos in nomos, lawlessness in law and creates thereby sovereignty as a Grenzbegriff; a limiting concept.29 It is a field of juridical tensions in which a minimum of formal being-in-force [vigenza] coincides with a maximum of real application, and vice versa. But even in this extreme zone—and, indeed, precisely by virtue of it—the two elements of the law show their intimate cohesion.30 Despite this inscription in the nomos, Schmitt wrote that it would be impossible to have complete certainty on both the existence of a situation of necessity and what will happen during this state. It is exactly this impossibility, which “grounds the necessity of the sovereign decision.”31

Agamben on Walter Benjamin Walter Benjamin was a Jewish-marxist philosopher whom Agamben believed wrote his works in a discussion with Carl Schmitt.32 He responded to Schmitt’s dialectic of law-making and law-breaking power with a third Gewalt, outside and beyond the law; Reine Gewalt or pure power.33 In the “human sphere”, this is revolutionary power. Contrary to Schmitt, who tiresomely tried to link extra- legal power to a juridical context, Benjamin aims to prove the reality of a power completely outside the law.34

26 Agamben State of Exception, p34-35. 27 Agamben State of Exception, p36. 28 Agamben State of Exception, p36. 29 For an explication of anomos and nomos in the discussion on Insonomia (popular government), see: Gregory Vlastos Studies in Greek Philosophy: Volume I: The Presocratics (eds. Daniel W. Graham Princeton University Press 1993) 89, p97-100; Agamben State of Exception, p54. Grenzbegriff is in general a conception of an unattained ideal according to Jennifer Speake and Mark LaFleur ‘Grenzbegriff’ The Oxfor Essential Dictionarry of Foreign Terms in English (OUP 2002) accessed 12 July 2018. 30 Agamben State of Exception, p36. 31 Agamben State of Exception, p55. 32 Other authors have more recently argued that not Schmitt’s work was the object of Benjamin’s fascination, but Ludwig Klages. Peter Osborn and Matthew Charles ‘Walter Benjamin’ in Edward N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (Fall 2015) accessed on 12 July 2018. 33 In Agambens book, translated to English by Kevin Attell, Gewalt is translated as “violence.” I will however use the equally valid “power.” 34 Agamben State of Exception, p53-54.

10 Benjamins pure power neither makes, nor preserves law, but deposes it, thereby starting a new era. If Benjamin succeeds, this would mean the impairment of Schmitt’s attempt of anchoring. Indeed, Schmitt denies the existence of a power outside the law and therefor of Benjamin’s pure power. Benjamin on the other hand wrote that pure power cannot be recognized through a decision. Because the sovereign decides on the State of Exception, he excludes it from the juridical order. For Benjamin, the antithesis is between sovereign power and the capacity to exercise that power; 35 the sovereign, who is responsible for making the decision on the State of Exception, reveals, at the first opportunity, that it is almost impossible for him to make a decision.36 Between Macht and Vermögen, between power and its exercise, a gap opens which no decision is capable of filling.37 The State of Exception is therefore the opposite of restoration, the catastrophe. It is not a threshold between anomos and nomos, but is “a zone of indeterminacy” between them.38 It is in Benjamins work, more specifically his On The Concept Of History, that for Agamben the view that the state of exception has become the rule originates. According to Benjamin, we should all aim to bring about the true State of Exception in order to combat fascism. It’s important to keep in mind that Benjamin was writing from a communist point of view, as a Jewish author in Paris in 1942. By then, Nazi terror hád materialized and contrary to Schmittian sovereign dictatorship, no new constitution was established, on the contrary, the fusion of rule and exception was cultivated in the Third Reich. If the exception had become the rule, the Schmittian “machine” fouls, because according to the latter, the juridical order requires the state of exception in order to keep on functioning; the function of the State of Exception ultimately lays in suspending the applicability of the norm in order to create the possibility to restore it later.39 For Schmitt the difference between a real/military and a fictional/political State of Exception lays in the fact that the latter is regulated by law and has a goal to guarantee certain individual rights and freedoms. The former is a merely factual action, which Schmitt sees realized in the presidential use of Article 48 of the Weimar Constitution, regulating the state of emergency. In Benjamins work, however, the political State of Exception – in which exceptional and normal conditions are separated temporarily and spatially – no longer exists, resulting in the determination that the state “in which we live,” is a real State of Emergency, indistinguishable from the rule.40 In that state,

35 Agamben State of Exception, p54-56. 36 Walter Benjamin ‘Ursprung der deutschen Trauerspiels’ Tiedemann and Scheppenhäuser Gesammelte Schriften (Vol.1 pt.1 Translated by John Osborn as The Origin of German Tragic Drama Verso 1998), p250/70-71, as quoted by Agamben State of Exception, p56. 37 Agamben State of Exception, p56. 38 Agamben State of Exception, p57. 39 Agamben State of Exception, p58. 40 Agamben State of Exception, p58-59.

11 there is nothing but a zone of anomie, in which a power without any juridical form acts. The attempt of state power to annex anomie through the state of exception is unmasked by Benjamin for what it is: a fictio iuris par excellence, which claims to maintain the law in its very suspension as force-of-law.41 Pure violence is the extreme political object; the power outside the law. Seen in the context of Plato’s battle on being between gods and titans, pure violence would be represented by pure being, whereas the strategy of the State of Exception (used to link anomie with nomos) can be seen as the strategy used to capture pure being in the logos, (representing law). In the anomic zone, the constitutive state of exception, law is completely divided between its form and its application, “pure being-being-in-force without application” and “pure application without being in force.” The struggle between the two evolves around pure power, the stake in the conflict over the State of Exception.42 According to Agamben then, the Western World uses a double-layered juridical system comprised of the normative and the anomic or the juridical and the metajuridical. The two layers are interdependent and essentially held together by the State of Exception by forming an undetermined threshold. Although their dialectic is founded on a fiction, it can still function, until it climaxes in total confusion between exception and the rule, at which point the norm is devoured.

Homo Sacer The State of Exception is part of the Homo Sacer series. This Roman “sacred” or “damned”43 man can be killed by anybody at any time, but cannot be religiously sacrificed. He is out-lawed in two ways because as killing him doesn’t inflict punishment, he can’t be murdered, but neither can he be executed, as that would entail prior judicial proceedings to that result, to which the he cannot be subjected.44 The homo sacer is used by Agamben as the embodiment of bare life since “in [him] human life is included in the juridical order solely in the form of its exclusion (that is, of its capacity to be killed).”45 The sacred man is the one whom the people have judged on account of a crime. It is not permitted to sacrifice this man, yet he who kills him will not be condemned for homicide; in the first tribunitian law, in fact, it is noted that "if someone kills the one who is sacred according to the plebiscite, it will not be considered homicide." This is why it is customary for a bad or impure man to be called sacred.46 The importance of this lays in the fact that it morphs a sphere to the Aristotelian distinction between zoe and bios, living an sich and living in group,

41 Agamben State of Exception, p59. 42 Agamben State of Exception, p60. 43 George L. Hersey The Lost Meaning of Classical Architecture: Speculations on Ornament from Vitrivius to Venturi (MIT Press 1988) p43. 44 H. Gerhard Hoogers book review G. Agamben, Homo Sacer, De soevereine macht en het naakte leven (2004) 1 Netherlands Journal of Legal Philosophy 114, p116-117. 45 Giorgio Agamben Homo Sacer: Sovereign Power and Bare Life (translated by Daniel Heller- Roazen SUP 1998) p4. [Agamben Homo Sacer] 46 Translation of Pompeius Festus’ On the Significance of Words (De verborum signatorum) in Agamben Homo Sacer p71.

12 the private and the public sphere. Very much like the colonial power struggle between determinant interference in public life and a certain compromised deterrence to private life, Agamben sees a sharp increase of control of the sovereign in the personal lives of citizens, creating a spillover. Zoe and bios are progressively intertwined resulting in a blurred, stage of indistinction, the homo sacer.47 The homo sacer represents life as bare as it can be, stripped all value and all rights, including the right to life.48 As its culmination, Agamben mentions the concentration camps and the military order issued by US President George Bush Jr. on the 13th of November 2001, effectively reducing the status of captured Taliban fighters to “detainees” instead of POWs or persons charged with a crime: […] they are the object of a pure de facto rule or a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight. The only thing to which it could possible be compared is the legal situation of the Jews in the Nazi Lager (camps), who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews.49

47 Agamben Homo Sacer p1. 48 Claudia Aradau and Rens van Munster ‘Exceptionalism and the ‘War on Terror’’ (2009) 49 Brit. J. Criminol. 686, p693. 49 Agamben Homo Sacer p3-4.

13 The strategy of the European Court for Human Rights to neutralise a threat to the life of a Member State Human Rights treaty clauses allowing for a derogations a) International Covenant on Civil and Political Rights Article 4 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 regulates when and to what extent States party to the Covenant can derogate from their obligations herein stipulated. This derogation is limited in different manners. First, derogation is only possible in time of public emergency which threatens the life of the nation and which existence is officially proclaimed. Second, the extent of the measures taken has to be strictly required by the exigencies of the situation. Finally, the measures taken cannot be inconsistent with States’ obligations under international law and cannot involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Seven Articles are excluded from this regime, namely Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 ICCPR or the right to life, the prohibition on torture, the prohibition on slavery and servitude, the prohibition on imprisonment solely on the ground of inability to fulfil a contractual obligation, the prohibition on punishment without law, the right to recognition as a person before the law, and freedom of thought, conscience and religion. This means that if the conditions of Article 4(1) ICCPR are fulfilled, derogations from all the other eighteen Articles are allowed. This list does not look very extensive, but conforming to the cliché, looks are deceiving. As Alex Conte points out, the list of non-derogable rights of Article 4 ICCPR is not exhaustive.50 General Comment 29 adds the procedural standards that cannot be derogated from without negatively influencing non-derogable rights.51 An example is Article 14, from which derogations would be allowed according to Article 4, but are for instance not in case that derogation would be connected to a trial possibly resulting in the death penalty.52 However, even the rights not featured on the list of non-derogable rights and unconnected to the latter are only derogable to a limited extent.53 Furthermore, the Human Rights Committee (the Committee) decided that the obligation not to act inconsistent

50 Alex Conte ‘Limitations to and Derogations from Covenant Rights’ in Alex Conte and Richard Burchil (eds.) Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2nd edition Routhledge 2009) 39, p40-41. [Conte ‘Derogations from Covenant Rights’] 51 United Nations Human Rights Committee ‘General Comment 29: Article 4: Derogations during a State of Emergency’ (2011) CCPR/C/21/Rev.1/Add.11, §15. [UN HR Committee ‘General Comment 29’] 52 Conte ‘Derogations from Covenant Rights’, p41. 53 UN HR Committee ‘General Comment 29’, §16; Sarah Joseph and Melissa Castan The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd edition OUP 2013),p xiiv, §6.

14 with obligations under international law in juncto with Article 5 §2 ICCPR meant that obligations under international human rights law, international humanitarian law and international criminal law are non-derogable.54 The same goes for some rights, which the Committee identified to be customary international law.55 Subtracting so-called absolute rights from the non-derogable rights so defined, leaves only Article 19 ICCPR (freedom of expression) as an absolute, derogable right.56 The final paragraph of Article 4 ICCPR stipulates that States Parties availing themselves of the right of derogation shall immediately inform the other States Parties according to Article 4 §3 ICCPR. This includes information on which provisions are derogated from and the reasons why this was actuated. States Parties shall communicate through the intermediary of the Secretary-General of the United Nations immediately on implementing the measures and on the date on which the derogations are terminated.

b) American Convention on Human Rights – Pact of San Jose, Costa Rica With “time of war” and “public danger,” Article 27 of the American Convention on Human Rights (ACHR) gives two specific examples of what might constitute an emergency. The requirement for this emergency is not to form a threat to the life of the nation, but to the independence or security of a State Party. In case such a threat occurs, the State Party can take measures derogating from the ACHR to the extent and for the period of time strictly required by the exigencies of the situation. This is provided that the measures taken are not inconsistent with the State Party’s other obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion or social origin. Just like in Article 4 ICCPR, the conditions of paragraph one are followed by a list of articles of which the article does not authorize suspension. These are the articles guaranteeing the Right to Juridical Personality, the Right to Life, the Right to Humane Treatment, Freedom of Slavery and from Ex Post Facto Laws, and the Freedom of Conscience and Religion. Also included are the Rights of the Family, the Right to a Name, the Rights of the Child, the Right to Nationality and the Right to Participate in Government. Neither these Articles, nor the judicial guarantees essential for the protection of these rights can be suspended. This is the case for habeas corpus (Art. 7 §6 ACHR) and amparo (Art. 25 §1 ACHR).57

54 UN HR Committee ‘General Comment 29’, §9-13. 55 UN HR Committee ‘General Comment 29’, §13; Conte ‘Derogations from Covenant Rights’, p41. 56 Conte ‘Derogations from Covenant Rights’, p42. 57 Habeas Corpus in Emergency Situations, Advisory Opinion OC-8/87 Inter-American Court of Human Rights Series A No. 8 (30 January 1987) §44. In general, Amparo is a typical Latin- American judicial remedy against the violation of fundamental rights by public officials. Allan R. Brewer-Carías ‘The Amparo as an Instrument of a Jus Constitutionale Commune in Armin Von Bogdandy and others (eds.) Ximena Solely (managing editor) Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (OUP 2017) 171, p171. More specifically in

15 Finally, the Article ends with the same information duty as included in Article 4 ICCPR, only here of course it is the Secretary General of the Organization of American States who should be made aware of the derogation and who subsequently informs the other States Parties. The notice should not only contain a confirmation of the derogation, but also the provisions of the Convention it causes to suspend, the reasons leading to it and the date of its termination. The similarities with Article 4 ICCPR are not coincidental, but result from the fact that the ACHR is based on the ICCPR.58

c) European Convention for the Protection of Human Rights and Fundamental Freedoms Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1950 is the counterpart of Article 4 ICCPR and Article 27 ACHR. However, there are some remarkable differences. Just like in Article 27 ACHR is the temporal condition not limited to public emergencies only, but allows for derogation in time of war as well. Both the emergencies of Article 4 ICCPR and Article 15 ECHR have to constitute a threat to the life of the nation, whereas Article 27 ACHR only mentions a threat to the independence or security of a State Party. Article 15 ECHR and Article 4 ICCPR require that the derogations in this manner adopted are restricted to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law. Article 27 seems to take a stricter approach by demanding that not only the extent of the measures taken, but also their duration should be strictly limited to what is required by the exigencies of the situation. There is no reference made to the prohibition on derogation involving discrimination solely on the ground of race, colour, sex, language, religion or social origin, contrary to Article 4 ICCPR and Article 27 ACHR. Article 14 ECHR regulates the prohibition on non-discrimination separately, but is not included in the list of Articles of which derogation is precluded. This list is a lot shorter than the one contained in Article 4 ICCPR or in Article 27 ACHR and only comprises of Articles 2, 3, 4 (paragraph 1) and 7 ECHR, or the right to life, the prohibition of

the context of the ACHR, the Advisory Opinion defines Amparo as: “a simple and prompt remedy designed for the protection of all of the rights recognized by the constitutions and laws of the States Parties and by the Convention.” Habeas Corpus is defined as follows: “a judicial remedy designed to protect personal freedom or physical integrity against arbitrary detentions by means of a judicial decree ordering the appropriate authorities to bring the detained person before a judge so that the lawfulness of the detention may be determined and, if appropriate, the release of the detainee be ordered.” Habeas Corpus in Emergency Situations, Advisory Opinion OC-8/87 Inter-American Court of Human Rights Series A No. 8 (30 January 1987) §§32,33. 58 Thomas M. Antkowiak and Alejandra Gonza The American Convention on Human Rights: essential rights (OUP 2017), p7.

16 torture, the prohibition of slavery or servitude and the prohibition to punishment without law. In the same breath of the prohibition to derogate from Article 2, the right to life, an exception is mentioned, namely in respect of deaths resulting from lawful acts of war. This is a logical consequence of the insertion of the extension of the regime of derogation to times of war. Contracting Parties who have ratified Protocol No. 13 cannot at any time derogate from the prohibition to impose the death penalty. 59 Protocol 13 thereby surpassed Protocol No. 6, which had still allowed for the death penalty for acts committed in time of war or of imminent threat of war.60 The only other protocol excluding a right from derogation is Protocol No. 7, respectively omitting “the right not to be tried or punished twice” from the right to derogate.61 Like Article 4 ICCPR and Article 27 ACHR, Article 15 ECHR holds a communication duty with regard to both the measures and reasons for their implementation, and their cessation leading to a restoration of the full execution of the Convention. Here, the intermediary is the Secretary-General of the Council of Europe. Most noticeable is the different structural approach the ECHR takes. In the ICCPR the different Articles comprise the respective rights and Article 4 constitutes the regime under which States Parties are allowed to derogate from them. The ECHR mirrors this in Article 15, as mentioned here above, but contrary to the ICCPR, the ECHR list not only the rights in its Articles, but also often states what is excluded from their scope.

Margin of appreciation Souverän ist, wer über den Ausnahmezustand entscheidet.62 As a declaration of a State of Emergency has such a substantial impact on obligations for States party to Human Rights Conventions, it is not without importance to study not only who can determine that derogations are demanded by the current situation, but also how the international complaint mechanisms evaluate these derogations. The European Commission for Democracy through Law [Venice Commission] is of the opinion that international supervision is essential in these situations, as they form the context during which the gravest violations of human rights tend to occur. Furthermore, they argue, States are

59 Art. 2, 3 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty in All Circumstances. 60 Art. 2 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty; William A. Schabas The European Convention on Human Rights: A Commentary (OUP 2015) p1092, 1110. [Schabas ECHR: A Commentary] 61 Art. 4 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms. 62 “[The] Sovereign is he who decides on the exception.” Carl Schmitt Political Theology: Four Chapters on the Concept of Sovereignty (Translated and with an Introduction by George Schwab University of Chicago Press 1985) pxi, 1.

17 tempted to use the powers the derogation offers them for other purposes than normalizing the situation that justified the derogation or to an extent not required by it.63 Some controversy exists around the “margin of appreciation doctrine” and its use by the European Court of Human Rights.64 The “margin of appreciation” has been defined as […] the breadth of deference the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies before they will disallow a national derogation from the Convention, or before they will find a restriction of a substantive Convention right incompatible with a State Party's obligations under the Convention.65 The margin finds its limits in the Convention organs’ power to rule on whether a respondent government has or has not overstepped the mark, and indeed where the mark lies.66 Its origins lay in domestic administrative jurisdictions, 67 where a differentiation is made between the complete review of administrative decisions interpreting undefined terms of laws and a much more limited review of decisions made in the exercise of lawful discretion.68 The margin of appreciation is purely based on jurisprudence and not on the Convention itself, neither on the Travaux Préparatoires.69 Its emergence on the European level is attributed to the European Commission of Human Rights,70 more specifically its report on the

63 European Commission for Democracy through Law (Venice Commission), Opinion on the Protection of Human Rights in Emergency Situations (Opinion no. 359/2005 CDL-AD(2006)015 2006) §12. 64 According to Macdonald, “the margin of appreciation doctrine is at heart of virtually all major cases, whether judgments refer to it explicitly or not.” R. St. J. Macdonald ‘The margin of appreciation in the jurisprudence of the European Court of Human rights’ in International law at the time of its codification, Essays in honour of Roberto Ago (Milano 1987), 187 as cited in Eva Brems ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights’ (1996) 56 Z. Ausl. Offentl. Recht Völkerr. 230, p241. [Brems ‘Margin of Appreciation’] 65 Howard Charles Yourow ‘The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence’ (1987) 3 Conn. J. Int’l L. 111, 118. 66 Susan Marks ‘Civil Liberties at the Margin: the UK Derogation and the European Court of Human Rights’ (1995) 15 Oxford J. Legal Stud. 69, p73. [Marks ‘Civil Liberties at the Margin’] 67 Although some refers for its origins to the French system of judicial review of administrative action by the Conseil d’Etat, Yutaka Arai contradicts this and writes that a doctrine of discretion or appreciation can be found in the administrative law of every civil law jurisdiction, albeit applied much more narrow in domestic law. Yutaka Arai The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2001) p 1-2. Ironically, it would be the British who would introduce the doctrine to the European Commission of Human Rights. 68 Brems ‘Margin of Appreciation’p230-231. 69 Oren Gross and Fionnula Ni Aolain ‘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’ (2001) 23 Hum. Rts. Q. 625 p625. [Gross and Aolian ‘From Discretion to Scrutiny’] 70 The European Commission of Human Rights, set up five years before the Court, decided upon the admissibility of applications, sought to facilitate friendly settlements and drew up reports on the facts on the disputes brought before it, which were concluded with the Commission’s opinion on the existence of a violation. These reports were then forwarded to the Committee of Ministers, who would decide on their referral to the European Court. In practice the opinion of the Commission was followed. The Commission was permanently replaced by a permanent and one- stage only European Court of Human Rights by Protocol No. 11 to the Convention, which entered

18 Cyprus case.71 The articles of both Cora Feingold and of Oren Gross and Fionnula Ni Aolian, refer only to the discretion offered to States to assess the “extent strictly required by the exigencies of the situation,” where the report states that the Commission “takes the same view as it did with regard to the question of a “public emergency threatening the life of the nation”, namely that the Government of Cyprus should be able to exercise a certain measure of discretion.”72 Oren Gross and Fionnula Ni Aolain claim that the theory comes from the Commission itself and was not handed to them by the arguments of the Parties,73 but the report on the Greek case shows the arguments of the United Kingdom advocating discretion preceding the conclusion grating it. Although the use of a margin of appreciation is not limited to examining derogations declared under Article 15 ECHR, these proceedings did constitute the first instances where the doctrine was applied.74 The reasons supporting its application lay in the structure and functioning of the Convention mechanism. The European Convention for Human Right is a federalist system, always looking for a common denominator in defining what the common European heritage is, and what this means in judicial terms causing there to be a bottom-up approach, more than a top-down enforcement of an imposed structure.75 It is my conviction that the comparative argument strongly advocated by Eva Brems plays a smaller role when it comes to derogations under Article 15 ECHR – inversely proportional to the width of the margin of appreciation76 – as the Court will emphasize the specific responsibility of national authorities when it comes to evaluating the situation at hand as justifying a derogation, due to their proximity and experience. In this way, the margin of appreciation applied in the context of Article 15 ECHR is more comparable to what she describes as the deviation from the European standard, which the Court allows to take into account particular local situations.77 The federalism the Convention system is composed of, does not only refer to the national authorities and their different constitutional systems, but also to into force on the first of November 1998. Mario Oetheimer and Guillem Cano Palomares “European Court of Human Rights (ECtHR)” MEPIL (2013). 71 Cora S. Feingold ‘Doctrine of Margin of Appreciation and the European Convention on Human Rights’ (1977) Vol. 53 1 Notre Dame Law Review 90, p92 [Feingold ‘Margin of Appreciation’]; Gross and Aolian ‘From Discretion to Scrutiny’ p631. 72 Denmark, Norway, Sweden and the Netherlands v Greece App no 3321/67, 3322/67, 3323/67 and 3344/67 15.388 (Decision of the Sub-Commission Vol 1 24 January 1968) §143. [Greek case] 73 Gross and Aolian ‘From Discretion to Scrutiny’ p631. 74 For some time it was believed the doctrine would be limited in its application to cases pertaining to Articles 15, 14 and the limitations clauses in the second paragraphs of Articles 8-11 ECHR. Brems ‘Margin of Appreciation’, p242. 75 Brems ‘Margin of Appreciation’, p267-277; Thomas A. O’Donnell ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4. Hum. Rts. Q. 474, p475 . [O’Donnell ‘The Margin of Appreciation Doctrine’] Eva Brems states that the lack of comparable practice in other Member States is considered “suspicious” and would lead to curtailing the margin of appreciation. 76 Brems ‘Margin of Appreciation’p292. 77 Brems ‘Margin of Appreciation’p290-292.

19 different practices, a spectrum of traditions regarding the implementation of the Convention (from having the same force of the constitution or even being superior to it, to a needed incorporation in national law or merely statute value)78 and finally whether or not an individual application was possible. Other arguments in favour of the doctrine emphasize the element of time and the complexity of a public emergency,79 the subsidiarity of the supervision of the Court, and in that context of course the sovereignty of the States party to the Convention.80 Interfering too much with the latter, it was feared, would cause the withdrawal of the States in question.81 Those who are sceptical about the doctrine warn for cultural and human rights relativism and argue that the average level of protection in the Member States does not necessary equate to the level of protection defined by the Convention, thereby implicitly touching upon the raison d’être of the Convention. A misplaced judicially restraining Court 82 giving too wide a margin of appreciation, they warn, would favour States too much over the rights of individuals, whose protection the balance should be leaning towards due to the requirement of necessity. This way universal human rights are juxtaposed with local traditions. Another criticism is that the absence of a proper investigation would cause decisions to become mere ratifications of national decisions. 83 Furthermore, the margin allegedly lacks precise standards and by applying it the Court is accused of avoiding the responsibilities assigned to it.84 Gross and Aolian write that supervision is capable to offer the flexibility needed to cater to the uniqueness of an emergency and that, as the duration of the emergency increases, so should the nuanced supervision. They counter the proximity advantage by arguing that it exactly the distance between the Court

78 Karen C. Burke ‘Secret Surveillance and the European Convention on Human Rights’ (1981) 33 Stan. L. Rev. 1113, p1113, footnote 3. [Burke ‘Secret Surveillance’] O’Donnell ‘The Margin of Appreciation Doctrine’, p475. 79 Commissioner Waldock as cited in Feingold ‘Margin of Appreciation’, p92-93; Gross and Aolian ‘From Discretion to Scrutiny’, p631-632, 637. 80 Brems ‘Margin of Appreciation’, p298-299, 304; Gross and Aolian ‘From Discretion to Scrutiny’, p626-627, 637. 81 Morrisson, Margin of Appreciation in European Human Rights Law, 6 REVUE DES DROITS DE L’HOMME (HUMAN RIGHTS J.) 263, 275 (1973) as cited in O’Donnell ‘The Margin of Appreciation Doctrine’, p477. Burke speaks of inherent tensions between “the European Court's roles as the ultimate expounder of the Convention's meaning and as an institution dependent upon the acquiescence of sovereign states.” Burke ‘Secret Surveillance’, p 1113. 82 Supporters of the margin of appreciation see this constraint as a protection against overly activist supranational judges, who do not have democratic legitimacy. On the other hand, Brems says, the innovative interpretations by the Court were only possible because of the margin of appreciation, which precluded national protests. Brems ‘Margin of Appreciation’, p297, 312. Christopher Schreuer however, is of the opinion that the activism of the judges does not go far enough. He sees it as a room for improvement that a notice of derogation to the Secretary- General is only registered, and not automatically investigated on whether or not the margin of appreciation was overstepped. Christoph Schreuer ‘Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights’ (1982) Vol. 9 Yale Journal of International Law 113, p131. 83 Burke ‘Secret Surveillance’ p 1132-1134. 84 Gross and Aolian ‘From Discretion to Scrutiny’, p627-629; Burke ‘Secret Surveillance’, p1132.

20 and the situation on the ground, which makes the Court see the necessities of the situation more clearly. It is the detachment from the emotions experienced by the public and its leaders, who are both inclined to curtail human rights in the search for efficiency, that makes the Court a better judge of the situation. It is fear that causes the balance to tip over to efficiency, instead of the freedoms the Convention was designed to promote. In those circumstances, human rights can seem a worthy sacrifice to make, especially because a public emergency often causes the public to be divided in lines of “us” and the Other, and the human rights sacrificed are more often than not the Others’ and not “Ours.”85 World War II made it painfully clear that nation-states are incapable of carrying the burden of being the sole guardians of the rights of their citizens.86 It would seem only logical to ask of the Court in this function to try to prevent a revival of one of the two biggest excesses caused by Otherness; the permanent state of emergency enabling the Nazi regime. According to opponents of the margin of appreciation, this can only be done by viewing an argument relating to an emergency as emanating from a “suspicious situation,” and by offering only the narrowest of margins of appreciation.87

85 Gross and Aolian ‘From Discretion to Scrutiny’, p636-643, 649. 86 Burke ‘Secret Surveillance’, p1113. 87 Gross and Aolian ‘From Discretion to Scrutiny’, p643. This theory is contrary to Susan Marks’ findings that “the organs have generally required something more than a showing of good faith on the part of the respondent government yet something substantially less than proof that the preconditions for a derogation actually existed.” She says the government only needs to proof it did not act unreasonable. Marks ‘Civil Liberties at the Margin’, p74.

21 Jurisprudence of the European Court of Human Rights on derogations The existence of a public emergency and determining if the measures taken do not go further than the exigencies of the situation require Before evaluating the case law of the ECtHR with regard to the evaluation of the existence of a state of emergency, I want to explain that cases like for instance Sakik and Others v. Turkey88 or Yaman v. Turkey89 have been left out of the equation, as the Court itself referred to its own jurisprudence with regard to the existence of a state of emergency. These cases are however interesting in a different aspect, as they clarify that a public emergency, although warranted by “a threat to the life of the nation,” doesn’t necessarily concern the entire nation, but on the contrary can be spatially defined. This geographical constraint is defined by the notice of derogation sent to the Secretary General of the Council of Europe and the state of emergency (and with the validity of the derogation) does not extend beyond it.90 Another case that is not discussed in detail here is Brogan and Others v. the United Kingdom, where the Court did not review “whether any derogation from the United Kingdom’s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of a terrorist campaign in Northern Ireland,” as the Secretary General was already notified of the withdrawal of the notice of derogation.91 It is interesting to remark, however, that the United Kingdom stated, “In any event […] the derogation did not apply to the area of law in issue in the present case.”92 Of the fourteen cases before the Court, seven applicants disputed the declaration of the responding government. From the four interstate cases, three saw the applicant States challenging the evaluations the responding governments made of their own national situation. The last interstate case dates back to 1983,93 before which there had been only one case94 in which a non-state actor challenged their government in the context of derogation on the basis of Article 15 ECHR. By now, Protocol No. 14 has done away with some important discrepancies between interstate and individual applications, but in 1959 the counter-memorial of Ireland stated: A dispute between an individual and a High Contracting Party was materially different from a case when the dispute was between two High Contracting Parties. In

88 Sakik and Others v Turkey App nos 87/1996/706/898-903ECtHR (ECtHR 26 November 1997), §38, 44. [Sakik and Others v Turkey]; Billen v Turkey App no 34482/97 (ECtHR 21 February 2006), §46. 89 Abdulsamet Yaman v Turkey App no 32446/9 (ECtHR 02 November 2004), §69. 90 Sakik and Others v Turkey, §35 – 39, referring explicitly to paragraphs 25 and 28 containing the derogation notice. 91 Brogan and Others v UK App nos 11209/84, 11234/84, 11266/84, 11386/85 (ECtHR 29 November 1988), §48. 92 Ibid. emphasis mine. 93 Greek case. 94 Lawless v Ireland App no 332/57 (ECtHR 01 July 1961). [Lawless ECtHR]

22 the latter case the European Commission might raise any presumption in favour of either party. In the case of a dispute between an individual and his Government it was submitted that a presumption existed in favour of the legality of the acts of the Government and that this presumption should be applied by the European Commission95 Due to the historical context, which has seen changes both in citizen emancipation and geopolitics, I will follow the directions of the Republic of Ireland and make the requested diversification. Furthermore it’s interesting to think about the diplomatic consequences interstate cases might bring along. Chronologically speaking, this means that room is made for one slip-up, as the sequence of interstate applications to be followed by the individual ones, is interrupted by the Lawless case. As for the individual applications, I make a second distinction on the basis of whether or not the applicants disputed the existence of a public emergency. Despite increasing emancipation most citizens shared the view of their government that the life of their nation was threatened to the extent of a public emergency and they did not challenge this part of the government’s policy.96 In four out of ten cases, the Applicants disagreed with their governments97 whereas in Aksoy v. Turkey, “the applicant did not contest Turkey’s evaluation of the situation, although he submitted that, essentially, it was a matter for the Convention organs to decide.”98

a) Interstate In 1956, Greece initiated the first complaint with regard to a derogation on the basis of Article 15. The Respondent State was the United Kingdom, but the territory where the public emergency was declared was Cyprus, a then British colony, where a nationalistic Greek-Cypriot movement had gained popularity and some problems were said to exist between Turkish and Greek Cypriots. This colonial context caused a broadening of the question what a “public emergency threatening the life of the nation” was, because with respect to a colony, what is the nation which is under threat? The Counsel for Greece asked cannily if the equation of Cyprus with a nation whose life was threatened, implied the recognition of Cyprus as a nation.99 Even if there was a public emergency, Greece argued, it could hardly be said to cover

95 Lawless v Ireland App no 332/57 A 51.591 (Commission Decision 18 December 1959) §81 (i). [Lawless ECmHR] 96 Brogan and Other v UK App nos. 11209/84 11234/84 11266/84 11386/85 (ECtHR 29 November 1988). 97 Lawless, §26; Demir and Others v Turkey App nos 71/1997/855/1062–1064 (ECtHR, 23 September 1998) §44; A. and Others v UK App no 3455/05 (ECtHR, 19 February 2009), §175. 98 Akosy v. Turkey App no 21987/93 (ECtHR, 18 December 1996), §69. 99 Greece v. The United Kingdom App no 176/56 15.509 (Commission Decision, 1956) §113. [Cyprus]

23 the entire island.100 The United Kingdom agreed, “Nation” referred in this case to Cyprus and its local community, and not to the Commonwealth as a whole,101 but the right of derogation cannot be geographically limited to the area on which the measures might be legally taken. If an emergency existed and the measures were within the extent required by the exigencies of the situation, they might be taken anywhere within the control of the particular Contracting Power.102 According to the so-called “colonial clause”103 of Article 56 ECHR, every State may at the time of ratification or at any time thereafter declare that the Convention shall extend to all or any of the territories for whose international relations it is responsible. Paragraphs 3 and 4 stipulate this application is subject to local requirements and that a concrete declaration with regard to the competence of the Court is required.104 The United Kingdom had extended the Convention to virtually all its colonies,105 but wanted to avoid enforceable responsibility by excluding the competence of the Court from the extension.106 By initiating the interstate application, Greece effectively circumvented this policy.107 Not surprisingly, the dissenting Judge C. Th. Eustathiades agreed with the Greek course of action and stated that such a voluntary extension “binds [the Metropolitan State] to protect rights and freedoms in such territories to the same degree as on metropolitan soil and [gives] no power to make greater derogations there than at home.”108 He maintained that the majority view invested the Metropolitan State with that power, as they did not make a distinction between a representative and elected government, and a colonial one. In his opinion, this was because the peril did not extend to the life of the nation of Cyprus, but was limited to a threat to the colonial authorities. [The] measures taken against a people demanding freedom and the right to self- determination were and still are designed not to protect the people or the life of the nation, but to strengthen the power of the government authorities because of the danger to which those authorities are subjected. […]109 As the danger was limited to the authorities, Eustathiades claimed that it was limited to a risk for public security and public order, for which most of the

100 Ibid. 101 Ibid, §114 – 115. 102 Ibid §115. (Emphasise mine). As discussed supra in connection to Sakik and Others v. Turkey, the view of the Court in 1997 is in sharp contrast with this submission of 1956. 103 Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (OUP 2011) p10, 15-16. 104 Article 56 ECHR 105 Karel Vasak, ‘The European Convention of Human Rights beyond the Frontiers of Europe’ (1963) 12 Int’l & Comp. L.Q. 1206, 1210. 106 Mikael Rask Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’ in Jonas Christoffersen and Mikael Rask Madsen (eds.), The European Court of Human Rights: Between Law and Politics, (OUP 2011) p50; A. W. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (OUP 2001), p 1053 – 1054. 107 David French, The British Way in Counter-Insurgency, 1945-1967 (OUP 2011), p213. 108 Cyprus, p144-145. 109 Ibid, p148.

24 other Articles containing freedoms and rights provided and therefore did not justify a derogation on the basis of Article 15 of the Convention.110 According to the Greek judge, the identification of the authorities to the nation amounted to “conferring on the local authorities the means of inordinately consolidating their power at the expense of the most fundamental individual rights and freedoms.”111 The Commission on the other hand, decided that “nation” should be equated with the organised society, including the authorities, even in a non-self- governing territory and stated that otherwise […]a High Contracting Party, which extended the operation of the Convention to [a colony] under Article 63, would not be entitled to invoke the right of derogation under Article 15 in any case of an attempt to overthrow by the force the established Government of the territory.112 They separated the questions of fact from those of law113 and “implied that the existence or otherwise of a public [emergency] was a question of fact, which it was [the Commisssions] duty to establish by virtue of Article 28, §1 of the Convention.”114 Finally, the Commission concluded that there indeed existed a public emergency threatening the life of the nation of Cyprus on the basis not only of the arguments of the parties, but also of the report of an investigation party115 and a visit on the spot.116 Shortly after the decision, at the start of the 1960s, Cyprus became independent,117 but the problems between Turkish and Greek Cypriots reached an unseen high after the military coup in Greece on the 21st of April 1967.118 On the 3rd of May 1967 the military Junta informed the Secretary-General of the Council of Europe they established a public emergency in Greece to consolidate their power.119 Where Greece in 1956 had argued that a colonial government, neither elected by the people, nor representative of them, could not declare a public emergency to preserve control over a colonial territory, in 1969 they claimed that a revolutionary government was very well competent to derogate from the Convention to retain power. First Greece argued that since a revolution causes disturbance in the life of a nation, it would be irrelevant to evaluate that situation on the basis of the same criteria that would apply in a normal public emergency. However, “at the same time, the respondent Government had also submitted that certain considerations under Article 15, in particular […] the government’s “margin of appreciation”

110 Ibid, p143. 111 Ibid, p144. 112 Ibid, p133. 113 Ibid, p108. 114 Ibid, p132. 115 Ibid, p43, 49-52, 129-132, 150, 116 Ibid, §58. 117 Frank Hoffmeister “Cyprus” MEPIL (2009) §10. 118 Andrew Borowiec Cyprus: Troubled Island (Praeger Publishers 2000), p69-71. 119 Greek Case p1, §1.

25 applied a fortiori to a revolutionary government.”120 The Greek government quickly abandoned that first argument and justified their measures on the basis of their derogation of the Convention, stating that the form of government, democratic or not, was a domestic question.121 The Applicants, the governments of Denmark, Norway, Sweden and the Netherlands, initially agreed that the Convention did not differentiate between legal and illegal governments, but that a revolutionary government was precluded from invoking a state of emergency that they themselves had created with the goal of preserving their power.122 The four governments, with declared support of Belgium, Luxembourg and Iceland, were very cautious not to mix judicial and political considerations. 123 In its opinion, the Commission declared to be “competent to examine the acts of governments also in political situations of an extraordinary character, such as after a revolution.”124 A revolutionary government is in principle entitled to rely on Article 15 if it is not aimed at the destruction or limitation of the freedoms of the Convention and second if it is not applied for other goals than those permitted under Article 15. 125 As the Commission would decide that no public emergency existed in Greece at the time, they did not go deeper into this evaluation on the basis of Article 15 juncto Article 17, respectively Article 18.126 What is most striking about the Greek case, however, is the reliance of the Commission on the definition of the Court of “public emergency” in the Lawless case. The French version, which is the authentic one, goes as forth: […] le sens normal et habituel des mots "en cas de guerre ou en cas d'autre danger public menaçant la vie de la nation" est suffisamment clair; qu'ils désignent, en effet, (1) une situation de crise ou de danger exceptionnel et (2) imminent (3) qui affecte l'ensemble de la population et (4) constitue une menace pour la vie organisée de la communauté composant l'État.127 Although the Court, in its later decisions, would occasionally refer back to this definition, it would never refer back to the authentic, French interpretation, but always to the English. 128 As the Commission in the Greek Case however remarked, the difference between the two is highly relevant, as the English definition does not mention “imminent.”129 Consequently, reliance on the English version instigated a conception of the Court of a public emergency not

120 Ibid, p15, §22. 121 Ibid, p15, §23. 122 Ibid, p16, §24. 123 Kristine Kjærsgaard, “Confronting the Greek Military Junta: Scandinavian Joint Action under the European Commission on Human rights 1967-70” in Poul Villaume, Rasmus Mariager and Helle Porsdam (eds.) The ‘Long 1970s’: Human Rights, East-West Détente and Transnational Relations (Routledge 2016) 51, p58. (Confronting the Greek Military Junta) 124 Greek Case, p17, §26. 125 Ibid, p17, §28. 126 Ibid, p88-89, §146, 150. 127 Lawless ECtHR, p29, §28. (Numbering and emphasis mine) 128 And even more to the Greek Case by the Commission, instead of its own jurisprudence. 129 The Greek case, p69-70, §112-113.

26 necessitating imminence, resulting in a greater deference to the derogating government or in other words a further-reaching margin of appreciation.130 The authentic translation used by the Commission, formed the basis of its decision to deny the existence of a public emergency, as the Greek government could not sufficiently prove that the threat to the life of the nation was an actual or imminent one.131 The requirement of an actual or imminent public emergency not only excludes potential or hypothetical threats, but also requires that a public emergency already had emerged on the time of declaration.132 Finally, the Commission was not convinced that the circumstances and incidents the Greek government relied on to justify the derogation were “beyond the control of the public authorities, using normal measures or that they are on a scale threatening the organized life of the community.”133 Although (the Scandinavian countries and) the Commission made a strong and clear statement with this report, the result was less than ideal. Contrary to the Netherlands, the Scandinavian governments had also elaborated on violations of the prohibition on torture.134 Despite their effort to keep the political and the juridical separated, the procedure before the Commission and the one before the Council of Europe got intertwined. Greece denounced the Convention all together, and finally withdrew from the Council of Europe135 when it learned that a resolution about its suspension would anonymously be adopted (with Cyprus abstaining).136 It is clear from professor Kjærsgaard’s research in the Archive of the Foreign Ministry of Denmark that the Greek withdrawal was the reaction the Scandinavian countries had wanted to avoid, as “Greece was now relieved of its obligations under the Convention and was no longer under the jurisdiction of an international institution capable of preventing the governing regime from the arbitrary use of violence.”137 The Amnesty International activist James Becket reported that the Greek government was persuaded to sign an agreement with the International Red Cross after the negotiations to a friendly settlement had failed.138 He stated that although the system of the Convention had shown to be “very frail, [with a] power [that] is only moral” and depending on the will of the member states to respect it,139 the Greek case was also proof of the integrity of

130 See mainly A. and others v. the UK 131 The Greek Case, p71-75, §117-125. 132 Ibid, p71, §117. 133 Ibid, p86, §142-143. 134 Confronting the Greek Military Junta, p58. 135 Council of Europe (Committee of Ministers) ‘Resolution Concerning the Report of the European Commission of Human Rights in Greek Case’ (15 April 1970), 9 I.L.M. 781, Resolution DH (70) 1, §8. 136 Confronting the Greek Military Junta, p64. 137 Handwritten letter from Max Sørensens to Poul Hartling, 13 Dec. 1969 (as cited in Confronting the Greek Military Junta, p64.) 138 James Becket “The Greek Case before the European Human Rights Commission” [1970] 1 Hum. Rts, 91, p112. (“The Greek Case before the EHRC”) 139 “The Greek Case before the EHRC” p113.

27 the system, due to the rejection of a member refusing to respect the freedoms contained in it.140 As the case and its subsequent events mark the dawn of a steep increase in deterrence from the judicial side of the system towards governments declaring a state of emergency, it is hard to deny a causal connection. The Commission decided that in interstate cases derogations under Article 15 of the Convention would be reserved for the merits, or in other words, for the Court.141 Since both the Cyprus case142 and France, Norway, Denmark, Sweden, the Netherlands v Turkey ended in a friendly settlement,143 and the Greek case in the withdrawal of Greece from the Council, the Court only decided upon the merits in Ireland v. the United Kingdom with regard to a member state derogating from its obligations under the Convention. This case would even remain the only interstate application before the Court until 2001.144 In Ireland v. the United Kingdom, the Applicant did not question the existence of a public emergency and the Court considered the situation equally clear on the basis of the facts presented by the Respondent.145 When it had to define its role, the Court declared that, as the member state was responsible for “the life of [its] nation”, it fell in the first place to the member states themselves to determine if that life was threatened. If the Member States evaluated this to be the case, it was also their responsibility to decide, “how far it was necessary to go in attempting to overcome the emergency.146 By reason of their direct and continuous contact with the pressing needs of the moment, the 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 derogations necessary to avert it. In this matter Article 15 para. 1 (art. 15-1) leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission […] is empowered to rule on whether the States have gone beyond the "extent strictly required by the exigencies" of the crisis […]. The domestic margin of appreciation is thus accompanied by a European supervision.147

140 “The Greek Case before the EHRC” p116. 141 France, Norway, Denmark, Sweden, Netherlands v. Turkey App no 9940-9944/82 (Commission Decision 06 Decembre 1983), §46; Ireland v the UK App nos 5310/71, 5451/72 (Commission Decision 01 October 1972), p89. 142Joan Fritzpatrick Human Rights in Crisis: The International System for Protecting Rights during States of Emergency (Vol. 19 Procedural Aspects of International Law Series, University of Pennsylvania Press 1994) p194. 143 Isabella Risini ‘The Inter-State Application under the European Convention on Human Rights: More Than Diplomatic Protection’ in Norman Weiß and Jean-Marc Thouvenin (eds.) The Influence of Human Rights on International Law (Springer International Publishing 2015) 69, p72. 144 William A. Schabas & Aisling O’Sullivan “Of Politics and Poor Weather: How Ireland Decided to Sue the United Kingdom under the European Convention on Human Rights” in Jean Allain and Shiobhán Mullally (eds) The Irish Yearbook of International Law – Volume 2 2007 (Hart Publishing 2009) 3, p5. 145 Ireland v the United Kingdom App no5310/71 (ECtHR 18 January 1978), §205. [Ireland v the UK] 146 Ibid, §207. 147 Ibid. (Emphasis mine)

28 This formulation, which would become standard in the jurisprudence of the Court in relation to Article 15 ECHR, shows the difference in approach. The Court would not express itself over the purely factual question on whether or not there was a public emergency or if the proof given by the respondent governments was sufficient for them to have decided so. At first glance it seems unclear whether the evaluation method changed because of the experiences with the Greek case, whose report had been as clear as a deafening bell, or because from now on it would be a (the) court who would evaluate the situation and no longer the Commission. I will argue that the depth with which the existence of a public emergency is examines, decreases gradually when chronologically reviewing the Courts’ (respectively the Commission’s) jurisprudence. Although one can also point to the fact that the next section considers individual applications – and see this as an explanation – it is my conviction that this is not the case, as the declining trend had already started in the early interstate cases, but also because the Convention System has in general made a development towards more openness for individuals, a tendency which does not correspond with a reasoning like the one here above. In Ireland v. the United Kingdom, the Court still decided in its final judgment that indeed there existed a public emergency,148 but when the Court stated that the British Government, being confronted with massive wave of violence and intimidation […] were reasonably entitled to consider that normal legislation offered insufficient recourses […] and that recourse to measures outside the scope of the ordinary law, […] was called for. […] The competent authorities were entitled to take the view, without exceeding their margin of appreciation, that it was indispensable to arrest such witnesses […]149 The Court only did so in the sections where it judged whether or not the derogating Member State had gone further than “the extent strictly required by the exigencies of the situation.”150 As will become apparent in the next section, the Court would “review the lawfulness […] of the measures adopted”,151 but would refrain from investigating the existence of a public emergency, thereby keeping a safe distance from putting itself in the place of the governments and their factual interpretations.

148 Ibid, p87, point 11. 149 Ibid, §212. (Emphasis mine) 150 Article 15 §1 ECHR. Although the Commission considered itself competent to review the necessity in the Cyprus case, it never really proceeded to do so in an interstate context. Only in the Greek case the Commission would state that, since there was no public emergency, which it considered to be the main condition of Article 15 ECHR, it was not called upon to express whether the situation required the measures taken by the Greek government, but would make a different hypothesis for each measure individually (Greek case §145). 151 Ireland v. the United Kingdom §214.

29 b) Individual applications

Contesting applicants The Applicant in his Memorial […] made the following submissions: […] the onus of establishing that such a situation existed in July 1957 was on the Respondent Government. No proof of this had been tendered.152 The Respondent Government […] submitted: […] it was for a Government, and for that Government alone, to determine when a state of emergency existed and what measures where required by the exigencies of the situation. The Government recognised, however, that the European Commission had taken the view that it had the competence and the duty of inquiring into a Government’s appreciation […]153 In the Lawless case, decided upon by the Commission in the report adopted in 1959, Ireland argued that the Convention System did not offer any possibility to ask for advice or the opinion of one of the organs of the Convention on the question of whether or not a public emergency existed. Therefore, the Member State argued, governments acting in good faith should not be seen as violating the Convention, except when their actions were manifest unreasonable.154 The Commission decided, on the basis of the facts that Ireland submitted, that there existed a public emergency and stated that “a certain discretion – a certain margin of appreciation – must be left to the Government” as those governments had the high responsibility of protecting their people against all threats to their nation.155 Surprisingly, it is thus the Commission itself that introduces the margin of appreciation. The Court does not mention this doctrine in its Lawless judgment.156 The dissenting opinions mainly focused on the need for a high standard to qualify for a threat of the nation and a strict interpretation of Article 15 ECHR to “emphasise the importance [of] the Human Rights which are given the fullest protection in the Convention and cannot therefore be violated by Member States otherwise than in exceptional cases expressly provided for.”157 Just like in the interstate cases, the discussion about the gravity and the imminence of a threat to the nation flared up. By using “imminent” in its explanation of the ordinary meaning of the words of Article 15 ECHR, the Court seemed to agree with those dissenting voices.158 With eight voices to six, the Commission decided that the measures taken by Ireland did not go beyond what was required to rise above the emergency threatening the nation.159 One of those was M. Faber, who explained in his opinion that the recognition of the public emergency “automatically gives the

152 Lawless (ECmHR), p76, §81 (a). 153 Ibid, p78-79, §82 (g). 154 Ibid p79, §82 (h). 155 Lawless (Opinion of MM. Waldock, Berg, Faber, Crosbie and Erim) p84-85. 156 The Commission implicitly accepts this responsibility in the Greek case p70, footnote (2). 157 Lawless (ECtHR) (Opinion of M. Dominedo) p104. 158 Lawless (ECtHR), p29, §28. 159 Lawless (ECmHR) §105.

30 State the right […] to waive Articles 5 and 6 of the Convention,”160 hereby completely juxtaposing the call for more constraints of his colleagues. The five Commission Members who had denied the existence of the public emergency, naturally also considered the measures excessive to handle a situation they had weighed as not substantial enough. M. Süsterhenn and MME Janssen-Pevtschin161 agreed that the gravity of the threat needed to be balanced against the importance of the rights and freedoms of the Convention. Those rights and freedoms were safeguarded in different degrees, resulting in three categories: the non-derogable rights summed up in Article 15 ECHR (Article 2, 3, 4§1 and 7 ECHR), those containing general clauses permitting restrictions in specific circumstances that do not amount to a public emergency (Articles 8-11 ECHR and their second paragraphs) and the rights that can be derogated from in the event of war or other public emergency threatening the life of the nation, only to the extent strictly required by the exigencies of the situation (Articles 5, 6 and 12-14 ECHR). 162 As some Commission Members had remarked in the (mainly later) interstate cases above, the measures that are permitted to be taken to protect the life of the nation are not the same as those that can be taken to protect public order and safety.163 M. Erim, who had accepted the Irish evaluation of the national situation, concurred on the fundamental value of Articles 5 and 6 ECHR and stated that although the situation constituted a public emergency, it did not entitle the Irish Government to suspend those rights.164 With five Commission Members disagreeing with the existence of a state emergency and six on the necessity of the measures taking, M. Süsterhenn spoke out his fear: It may even be said without exaggeration that by suspending the provisions of Articles 5 and 6 the first step is taken from a State governed by free and democratic law towards a totalitarian State. That, at least, is the effect of the method used, even though in the particular instance there is doubtless no such intention, when it is remembered that in a large part of Europe human rights are systematically suppressed by totalitarianism, free Europe must avoid creating any impression that on her side too totalitarian methods are practised.165 In 1961, for the first time in her relative short history, the Court decided a case lodged against a State derogating from its obligations under the Convention. As the Court judged itself to be competent to determine if the conditions of Article 15 were fulfilled,166 it answered on the allegations of Mr Lawless who in first instance had demanded proof of the public emergency. In second instance, he denied not only the existence, but also the gravity of the facts listed by the

160 Lawless (ECmHR) §109, p139. 161 Lawless (ECmHR) Opinion §113. 162 Lawless (ECmHR) Opinion of M. Susterhenn p149. 163 Greek case §113 (4). 164 Lawless opinion of Erim §114. 165 Lawless (ECmHR), opinion p151. 166 Lawless (ECtHR) §22.

31 Irish Government.167 Following the report of the Commission and the facts supplied by the government, the Court confirmed: “the existence at the time of a “public emergency threatening the life of the nation”, was reasonably deduced by the Irish Government from a combination of several factors, namely […].”168 After ticking off the first condition, the Court went on to examine if the measures taken in response to that public emergency were strictly required by the exigencies of the situation. In this examination, the Court considered several alternatives to exceptional and derogating measures and agreed that they had proven unable to confine the situation.169 Furthermore, the Court went over the safeguards that were put in place to prevent abuses, such as the supervision by the Parliament and the judiciary, the latter in the form of a commission that could issue binding opinions when a detained person referred his/her case to it. Finally, the Irish Government had guaranteed that every person detained under the emergency measures would be released if he/she would give an undertaking to “observe the law and refrain from activities contrary to the 1940 Act.” Because of that, the Court declared that for “a democratic country such as Ireland,” this constituted a legal obligation. On this three-folded basis, the Court judged that the measures did not exceed the exigencies of the situation and were justified on the basis of Article 15 ECHR.170 Following this more general evaluation, the Court went on to (shortly) investigate whether their concrete application did not constitute a violation of the Convention, by examining whether or not the behaviour of Mr Lawless had necessitated the measures (Article 15 ECHR) or if he had been subjected to them on the basis of a sophism (Article 18 ECHR). The Court found the detention of Mr Lawless under the emergency measures justified.171 In 1991, the Commission found that the public emergency as confirmed by the Court both in the Lawless case and in Ireland v. the United Kingdom still existed in Ireland. 172 Although the conditions as found in the description “ordinary meaning” of Article 15 ECHR were repeated in Brannigan and McBride v. Ireland,173 the Commission also stated that the Court had declared that theirs was only a limited role, as States are given a wide margin of appreciation.174 Not that the Applicants argued against the earlier confirmation by the Court of the policy of their government,175 but they emphasised that governments had to

167 Lawless (ECtHR) §25. 168 Ibid, §28. 169 Ibid, §35-36. 170 Ibid §37. 171 Ibid §38. 172 Brannigan and McBride v the United Kingdom App nos 14553/89, 14554/89 (Commission Decision 03 December 1991), §48-49. [Brannigan and McBride v the UK ECmHR] 173 Brannigan and McBride v the UK ECmHR §47. 174 Brannigan and McBride v the UK ECmHR §44. 175 Brannigan and McBride v the UK ECmHR §45 and Brannigan and McBride App nos 14553/89, 14554/89 (ECtHR 25 May 1993) §44. [Brannigan and McBride ECtHR]

32 proof to the Convention Organs that the situation (still) existed.176 It is because of that demand for proof, laying bare the implicit conviction that the Court should oversee all aspects of derogations, that I am discussing the Brannigan and McBride case in this and not in the following subsection. The Applicants argued against a wide margin of appreciation, claiming that it would be inconsistent with Article 15 para. 2 if, in derogating from safeguards recognised as essential for the protection of non-derogable (sic) rights such as Articles 2 and 3, the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi- permanent nature such as that existing in Northern Ireland.177 Despite this, the Court confirmed the margin of appreciation doctrine and repeated the formula used for the first time in Ireland v. the United Kingdom namely that the Member States should be trusted with some discretion, due to their proximity and local experience, but that this did not mean that the governments had “carte blanche.”178 Their margin of appreciation was to be accompanied by a “European supervision, as it is for the Court to rule whether, inter alia, the States have gone beyond the “extent strictly required by the exigencies” of the crisis.”179 With these words, the Court de facto excluded the factual question of the existence of a public emergency from its competence and limited itself to an investigation into the necessity of the measures taken. The Court elaborated on its supervision by explaining that factors like “the nature of the rights affected by the derogation, the circumstances leading to, and the duration, of the emergency situation” would be key in its examination,180 but did not clarify how and if this factors effectively had played their protagonist roles. On the contrary, the Court specified in its conclusion: Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation.181 Especially considering the length of the emergency situation caused by the activities of the IRA, these relevant factors would have been an interesting and revealing examination, but apparently this constituted a subrogation of the executive power that the Court considered going too far. Maybe the seeming shift to the wings can be explained easily, as the actual dispute at play here was whether or not the government could justify the measures they had taken by a derogation, when those measures had been in place already before the derogation notice and had then been condemned by the

176 Brannigan and McBride v the UK ECtHR §44. This contrary to Liberty Interrights and the Committee on the Administration of Justice, ibid, §45. 177 Brannigan and McBride v the UK ECtHR §41. 178 Brannigan and McBride v the UK ECtHR §43. 179 Ibid. 180 Ibid. 181 Ibid §66.

33 Court as violating the Convention.182 The derogation was therefore an attempt to preclude the wrongfulness of the measures, which in Brogan and others v. the United Kingdom had been judged as infringing on the Article 5 §§3 and 5 ECHR.183 From the argumentation of both parties it becomes clear that the United Kingdom had two options to comply with the judgment: either implement judicial control of the detentions or declare a derogation of the Convention. The government chose the second. What the Applicants had called a circumvention of the Brogan judgment was judged a genuine response by a government who had mistakenly considered their detention measures conform the Convention before the Court had decided otherwise. Derogation had become inevitable, so the Court determined, due to the incompatibility of judicial control and the special difficulties the investigation and prosecution of terrorist crimes brought about.184 As the Secretary of State for the Home Department confirmed the derogation on a later date than the notice was sent to the Secretary General of the Council of Europe and the latter made clear that the government was still contemplating on its effectiveness, the Applicants had argued that Article 15 ECHR was misused as an interim measure.185 The Court and the Commission disagreed with this point of view and determined that, on the contrary, the course of action taken by the United Kingdom elucidated the implicit requirement of Article 15 (§3) to keep the derogation measures under constant review. 186 It was decided that “the validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine, whether in the future a way could be found of ensuring greater conformity with Convention obligations.”187 One year after the Brannigan an McBride judgment, in 1994, the IRA announced a ceasefire, but it would take another 4 years before the Good-Friday- Agreement was signed on the 10th of April 1998.188 Under chapter eight – Security, the British Government undertook to remove the emergency powers in Northern Ireland,189 but the notification announcing the withdrawal only came in February 2001.190 This was the dawn of a new era. Although the “normal

182 Brannigan and McBride v the UK ECmHR §50. Court §48. 183 Brogan and Others v. the United Kingdom App nos 11209/84, 11266/84, 11386/85 (ECtHR 30 May 1989); Permanent Representative of the United Kingdom ‘Derogation contained in a letter from the Permanent Representative of the United Kingdom, dated 23 December 1988, registered at the Secretariat General’ (23 December 1988). 184 Brannigan and McBride v the UK ECtHR §49-51. 185 Brannigan and McBride v the UK ECtHR §52 and Brannigan and McBride v the UK ECmHR §50 and 56. 186 Brannigan and McBride v the UK ECmHR: §56; Brannigan and McBride v the UK ECtHR 54. 187 Brannigan and McBride McBride v the UK §54. 188 Dawn Walsh Independent Commissions and Contentious Issues in Post-Good Friday Agreement Northern Ireland (Springer International Publishing 2017) p1. 189 Good Friday Agreement (British Government, Irish Government and the Political Parties of Northern Ireland) signed on 10 April 1998. 190 Permanent Representative of the United Kingdom ‘Withdrawal of derogation contained in a Note Verbale from the Permanent Representative of the United Kingdom, dated 19 February

34 situation” only existed shortly in the United Kingdom (from February 2001 until December of the same year), the exception would no longer be caused by (religious) nationalistic movements, but by religious extremism. The importance of this distinction can be summarized in the world famous and inevitable adage “one man’s terrorist is another man’s freedom fighter.” Where the discussion could still arise whether nationalist movements justified derogation measures, as they did not intend to be a threat to the life of the nation, but rather its accomplishment, this discussion was (mostly)191 stripped of any relevance when the context became one of religious fanaticism coming to life in the form of foreign crusaders. Due to the rigid constraints of a chronological order, I will first go deeper into that other country struggling to protect the life of its nation from nationalistic movements; Turkey, before continuing to examine this “new kind” of emergency. On the 7th of August 1990, a notice of derogation was registered at the Secretariat General, sent by the Permanent Representation of Turkey.192 Due to confrontations with the PKK, the Workers’ Party of Kurdistan, a state of emergency had been declared in ten of the eleven provinces of southeast Turkey in 1987.193 Mr. Zeki Aksoy, a metal worker, was arrested and put into custody under suspicion of being a member of the PKK, following identification by a certain “Metin,” whom he claimed not to know. After allegedly being told he would “know him under torture,” Mister Aksoy was subjected to Palestinian hanging while electrodes were put to his genitals and water was thrown over him. He remained blindfolded during the process. Torture continued and he was beaten repeatedly in the following days, ultimately causing him to lose the movement of his arms and hands, making it impossible to sign the statement from the government denying any involvement with the PKK. The Government stated that Mister Aksoy was seen by a doctor, who was told he had suffered an accident and never complained that he was subjected to torture. After his release, he was admitted in a civil hospital, where he did complain about the Palestinian hanging and explained it to be the cause of the paralysis of both arms. According to the Government, he left the hospital without being discharged and took his medical

2001, handed to the Secretary General on 19 February 2001 and completed by a letter from the Permanent Representative of the United Kingdom, dated 4 May 2006, registered at the Secretariat General’ (04 May 2006). 191 In A. and Others v the United Kingdom, the Court mentions Lord Hoffman dissenting in the House of Lords. “who interpreted the words as requiring a threat to the organised life of the community which went beyond a threat of serious physical damage and loss of life. It had, in his view, to threaten “our institutions of government or our existence as a civil community.” A. and Others v. the United Kingdom App no 3455/05§179 (ECtHR 19 February 2009). [A. and Others v the UK] The Court did not agree with him on this matter. 192 Permanent Representative of Turkey ‘Derogation contained in a letter from the Permanent Representation of Turkey, dated 6 August 1990, registered at the Secretariat General’ (07 August 1990). 193 Aksoy v Turkey App no 21987/93 (ECtHR 18 December 1996), §8-9. [Aksoy v Turkey ECtHR]

35 file with him. Afterwards the public prosecutor decided grounds were lacking to institute criminal proceedings. Mister Zeki Aksoy was shot dead less than four months later, according to his representatives after being threatened with death to withdraw his application to the commission. The Government charged an alleged member of the PKK with the murder, labelling the killing as “a settling of scores between quarrelling PKK factions.”194 Just as in Brannigan and McBride v. the United Kingdom, the Applicants did not contest the public emergency an sich, but submitted that it was something for the Convention organs to decide,195 thereby echoing the presumed belief in their competence. The Commission did not handle the question, but immediately proceeded with the question regarding what the exigencies of the situation strictly required. They based themselves on the Brannigan and McBride precedent to determine that a detention for up to seven days did not exceed the margin of appreciation offered to states. Together with the considerably longer period of detention, they pointed to the lack of safeguards against abuse to decide that the Government of Turkey had exceeded their margin of appreciation.196 The Court first determined that the Contracting States were responsible for the life of their nation and that it was their task to determine if that life was threatened and if so, how far it was necessary for them to go in averting the threat. Hereafter, the same relevant factors as mentioned in Brannigan and McBride v. the United Kingdom were cited: the nature of the rights affected, the circumstances leading to and the duration of the emergency situation.197 The same methodology as supra was followed, namely the margin of appreciation that was offered to the Member States, with the restriction of a European supervision to decide whether or not the Government had gone further than what the crisis strictly required, or in other words, had exceeded their margin of appreciation in this last aspect. The Applicant had also not argued against the validity of the derogation, but questioned the necessity of the exceptional measures, more specifically the detention of fourteen days without judicial supervision.198 In examining this complaint, the Court investigated the length of the unsupervised detention and the safeguards that were put in place so as not to render detention arbitrary; the two aspects in which the Commission had found the Turkish measures not at par with the British measures. The Court stressed both the importance of Article 5 ECHR and the special problems the investigation of terrorist offences brought to authorities, but found the period of detention to exceed what the exigencies of the situation required.199 Where in

194 Aksoy v Turkey ECtHR §11-22. 195 Aksoy v Turkey ECtHR §69. 196 Aksoy v. Turkey App no 21987/3 (ECmHR 09 October 1994), §179-183. [Aksoy v Turkey ECmHR] 197 Aksoy v Turkey ECtHR §68. 198 Aksoy v Turkey ECtHR §74. 199 Ibid §76, 78.

36 Brannigan and McBride the Court was persuaded by the British argument that judicial overview would be detrimental for the public confidence in the independence of the small Irish judiciary, 200 the Turkish Government was incapable of convincing the Court of the similarities in their case.201 The Court decided that Turkey had “exceeded the Government’s margin of appreciation and could not be said to be strictly required by the exigencies of the situation.”202 Two years after Mr Aksoy, another case was brought to the Convention Organs where the Applicants had been accused of being active members of the PKK. Mr Demir, Mr Kaplan and Mr Şükrü Süsin had been placed under police custody for a disputed amount of days before they appeared before the National Security Court, where they were convicted to prison sentences. Contrary to Mr Aksoy however, Mr Demir and the other Applicants stated before the Court: […] at the material time there was no real public emergency which obliged the national authorities to detain them for so long; even supposing that there was, nevertheless, such an emergency, it was essentially due to the State’s shortcomings and the oppressive conduct of its agents operating in the region.203 This is interesting, because it reminds a bit of a force majeure argument, where the Articles on the Responsibility for States for Internationally Wrongful Acts require the situation precluding wrongfulness to be outside the control of the State relying on it.204 Before this, the Court already advanced its by now standard formula regarding proximity of the local authorities and their subsequent superior assessment of the situation. The brief conclusion in favour of the government, which was a confirmation of the public emergency the Court had already determined to be established in its Aksoy judgment, came therefore not as a surprise.205 With regard to what was required by the exigencies of the situation, the Applicants had advanced before the Commission that […] le Gouvernement turc, à la différence des autres Etats européens confrontés au problème du terrorisme séparatiste, a choisi la voie de la répression violente.206 Although this comparison with other European States comes across logically in a shared Human Rights Convention System, the margin of appreciation doctrine makes this kind of argumentation less relevant. The Commission had however agreed that the Turkish Government had exceeded their margin of appreciation as effective guarantees against abuses of authority were lacking.207 It is interesting to review the Turkish argumentation, as they, in a clearly

200 Brannigan and McBride v the UK ECtHR §59. 201 Aksoy v Turkey ECtHR §84. 202 Ibid §81. 203 Demir and Others v Turkey App nos 21380/93, 21381/93, 21383/93 (ECtHR 23 September 1998), §44. [Demir and Others v Turkey] 204 Art. 23 Articles on the Responsibility of States for Internationally Wrongful Acts (adopted August 2001). The same argument was advanced by the Applicants in the Greek case (§24). 205 Demir and Others v Turkey §44. 206 “The Turkish government, confronted with the problem of separatist terrorism, chose the path of violent repression.” Demir and Others v Turkey App nos Nos 21380/93, 21381/93, 21383/93 (Commission Decision 02 March 1995), p6. 207 Demir and Others v Turkey, §47.

37 recognisable De Certeau style, claimed to have sought “to strike a proper balance between the terrorist threat to the integrity of the State and the rights and freedoms of individuals.” Their derogation needed to be interpreted in the light of its object and purpose, namely to enable the State to return to normality for Convention purposes, and accordingly to rescind the derogation, as quickly as possible.208 Moreover, the Turkish Government said that the accusations against the Applicants had proven to be well found, contrary to the Aksoy case.209 The Court found the differences between the present case and its Aksoy precedent insignificant and repeated that no satisfactory answer was given as to why judicial intervention was impracticable. Furthermore, contrary to the legal safeguards the Government claimed to be in place: “the applicants’ legal situation was identical to the one which (sic) obtained in the Aksoy case.”210 A violation of Article 5 §3 ECHR was decided.211 The last case, in which the existence of a public emergency was disputed, was A. and others v. the United Kingdom. Decided in 2009, this case concerned the state of emergency that was declared only shortly after the public emergencies caused by the IRA were resolved. This time it was not a nationalist terrorist group committing attacks in the United Kingdom that required exceptional measures, but the attacks of al-Qaeda in the United States on the 9th of September 2001. Here too, the Applicants compared the reaction of the United Kingdom to the attacks with the other European states. The European Commissioner for Human Rights even called it […] a general appeal to an increased risk of terrorist activity post September 22 2001 [that] cannot be sufficient to justify derogating from the Convention. Several European States long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown.212 The Court judged that it was indeed “striking that the United Kingdom was the only Convention State to have lodged a derogation, although other States were also the subject of threats,” but because national authorities are the prime institutions responsible for the safety of their people, their assessment should be kept into account.213 Although the Convention System was set up to provide the same level of human rights protection in all European Member States, the margin of appreciation doctrine in the context of Article 15 makes comparisons with fellow Member States irrelevant, at least when it comes to answering the factual question of whether the threat is severe enough to endanger the life of the nation.

208 Ibid. 209 Ibid. 210 Ibid, §50-54. 211 Ibid §58. 212 A. and Others v the UK §103. 213 A. and Others v the UK, §180.

38 The judgment can in two ways be considered revolutionary. First the Court would water down its previous condition of a public emergency to be “actual or imminent” from the Lawless case and shift responsibility for this requirement to the Commission, who by then had ceased to exist. 214 Where in 1956 the Commission had wanted to avoid derogations based on hypothetical threats, reassured it was doing so on the basis of the Courts’ jurisprudence. In 2009, the Court stated that fear for an imminent attack was sufficient to serve as a justification. The requirement of imminence cannot be interpreted so narrowly as to require a State to wait for disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attack was, tragically, shown by the bombings and attempted bombings in London in July 2005 to have been very real. Since the purpose of Article 15 is to permit States to take derogating measures to protect their populations from future risks, the existence of the threat to the life of the nation must be assessed primarily with reference to those facts which were known at the time of the derogation.215 Terrorists threatening the life of the nation had changed, not only with regard to the goals they wanted to reach, but also in the speed and abruptness with which they could strike. It is not difficult to see the logic in that deduction, but the question is what the repercussions of the deletion of “actual or imminent” as a condition for a public emergency exactly are. How cold can the war on terror get before it does not longer qualify as a threat against the life of the nation? The second manner, in which the Court is judging revolutionary here, is in distancing itself from the United Nations Human Rights Committee (UNHRC) in their interpretation of the International Covenant on Civil and Political Rights (ICCPR). The Applicants had referred to paragraph 2 of General Comment No. 29 on Article 4 of the ICCPR, where it is stipulated: “measures derogating from provisions of the Covenant must be of an exceptional and temporary nature.”216 Despite another mentioning of the relevant factors, including the duration of the emergency situation,217 the Court said: [its] case-law has never, to date, explicitly incorporated the requirement that the emergency be temporary, although the question of the proportionality of the response may be linked to the duration of the emergency. Indeed, […] the security situation in Northern Ireland, demonstrate that it is possible for a “public emergency” within the meaning of Article 15 to continue for many years.218 With this, the European Court explicitly juxtaposed its own jurisprudence with the statements of the United Nations Human Rights Committee, but also opened

214 As discussed supra, the Commission determined the conditions of a public emergency on the basis of the authentic, French version of Lawless. Here the Court only refers to the English version of its Lawless judgment and the Commissions Greek case (which is merely an elaboration of the Courts precedent). 215 A. and Others v the UK,. §177. 216 As referred to in A. and Others v. the UK, §110. The Applicants also cited paragraph 54 of the Siracusa Principles, elaborating on the principle of necessity, which also mentions “imminent danger” as the target for measures taken. (ibid) The Court remains silent on the Principles. 217 A. and Others v the UK, §173. 218 A. and Others v the UK ,§178.

39 the door for criticism, as the Court didn’t seem to be eager to condemn the so- accused “permanent states of emergency,” and an armistice for the war on terrorist doesn’t seem to be in sight. What is it then, that is meant by making the duration of the emergency a relevant factor? Immediately after tearing down the reference to the UNHRC, the Court considered: that derogating measures put in place in the immediate aftermath of the al-Qaeda attacks in the United States of America, and reviewed on an annual basis by Parliament, can [not] be said to be invalid on the ground that they were not temporary.219 This seems to imply that in theory the situation cannot be seen as a continuous emergency, despite it de facto being so. The responsible authorities cannot imply that they conceive the public emergency – and hence the derogation – to be permanent and consequently, they cannot stop reviewing the situation. Their constant evaluation of the existence of the public emergency and the necessity of the measures required by the exigencies of the situation, results in a regime of “temporary,” despite the continuity in practice. It is because the authorities consider the situation as temporary, which they make clear by their regular evaluations, that the Court can see this the same way. The public emergency has to be treated as temporary in order for the Court to conceive it this way, despite the public feeling of the exceptional replacing the normal. In order to respond to the terrorist threat, the United Kingdom passed Part 4 of the 2001 Act, enabling the government to detain “foreign Muslims reasonably suspected of links to al-Qaeda” without charge. The Government had argued that first that this fell within the exception of Article 5 §1 (f) ECHR, as the goal of the detention was deportation. Except for two Applicants, the other nine detainees were either stateless or at risk for being tortured when being sent back to their home country. As their prospects of deportation were unrealistic, the exception of Article 5 did not apply to them. 220 The Government was well aware of this, as they had explained in the derogation notice that the extended powers were aimed at detaining a foreign national “where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic-law powers.”221 Furthermore, the Court does not accept the Government’s argument that Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat.222 Such a balance can however be made in the context of a derogation. Neither the Court, nor the House of Lords223 doubted the existence of a public emergency

219 Ibid. 220 A. and Others v the UK, §167 – 170. 221 Ibid §166. 222 Ibid §171. 223 The House of Lords, referred to as the highest domestic court (Ibid §174). The first of October 2009, approximately eight months after this judgment was decided, the House of Lords would cease to have this judiciary role and be replaced by the Supreme Court of the United Kingdom. The Supreme Court, ‘History’ accessed 13 July 2018.

40 threatening the life of the nation of the United Kingdom. The House of Lords (and the Court) questioned the necessity of the measures taken by the Government. The latter demanded more respect for its margin of appreciation by stating, “the assessment of what [is] needed to protect the public [is] a matter of political rather than judicial judgment”, but was rebuked by the Court. The Court explained, The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level. As the House of Lords held, the question of proportionality is ultimately a judicial decision, particularly in a case such as the present where the applicants were deprived of their fundamental right to liberty over a long period of time. In any event, having regard to the careful way in which the House of Lords approached the issues, it cannot be said that inadequate weight was given to the views of the executive or of Parliament.224 Because of this, the Court said it was only competent to rule contrary the House of Lords, if it was satisfied that they “had misinterpreted or misapplied Article 15 or the Court’s jurisprudence under that articled or reached a conclusion which was manifestly unreasonable.” 225 Despite the margin of appreciation, “it is ultimately for the Court to rule whether the measures were “strictly required.”” The Court subsequently confirmed its own jurisprudence by determining that measures not exceeding what is required by the exigencies of the situation needed to be (1) a genuine response to the emergency situation, (2) fully justified by the special circumstances of the emergency and have (3) adequate safeguards provided against abuse.226 The Government responded by claiming mistakes were indeed made by the House of Lords, because first it had examined the legislation only in a general manner and not in the particular cases of the Applicants. The Court disagreed and stated that a concrete review was only necessitated if the measures were accepted on a general level.227 Second, it was claimed that the House should have accepted the differentiation between national and non-national suspects of terrorism. Nationals were excluded from the measures “because of the interest in cultivating loyalty among Muslim citizens, rather than exposing them to the threat of detention and the risk that they would become radicalized.” 228 Furthermore, non-nationals could (in theory) be deported, which was impossible for nationals.229 The House had held that there did not exist a ground to declare

224 A. and Others v. the U.K. §184. Emphasize mine. The Court also emphasizes the inclusion of the judicial in “national authorities” on §174. 225 A. and Others v the UK ,§174, 182. 226 Ibid §184. Numbering mine. As discussed supra, “special circumstances of the emergency” can relate to the “special problems relating to prosecution and investigation of terrorism.” See Brannigan and McBride ECtHR §51. 227 The Court does not mention Lawless, but this same sequence is to be found there. See Lawless ECtHR §38. 228 A. and Others v the UK, §143. 229 Ibid §151.

41 that a fundamental right, like that of liberty, would be less important for a non- national. 230 Furthermore, they determined that the measures were not migration-related, but were concerned with national security, which does not allow for a distinction on the basis of nationality. The House concluded that the potential adverse impact of detention, which in practice could never end in deportation, did not depend on the passport of the detainees. The Court agreed.231 Finally, the Government brought forward an allegedly new argument claiming that terrorist threats were better containable if their most serious source, non-nationals, could be detained. Again, the Court referred back to the judgment of the House of Lords, but also to the jurisprudence of the Special Immigration Appeals Commission, who did not consider the threat from non- nationals more serious than that from nationals and disagreed hereby implicitly with the qualification of this argument as “new.” The derogating measures were considered “disproportionate in that they discriminated unjustifiably between nationals and non-nationals,”232 but the Court found it not necessary to examine separately whether there existed a violation of Article 5 §1 ECHR in conjunction with Article 14 ECHR.233

Applicants agreeing with the proclaimed public emergency As the Court does not really examine the existence of a public emergency in detail in the cases where the Applicants are challenging the evaluation of their governments, it is unlikely the Court will do so ex officio. Between 1996 and 2006, the Court decided on six cases relating to the public emergency in Turkey. The first two, Aksoy and Demir v. Turkey, have been discussed supra. Just like the Court did not find it necessary to elaborate much in the Nuray Sen v. Turkey and Bilen v. Turkey due to pertinent lack of a change in the situation as it existed in the Aksoy and Demir cases, I will not discuss these cases in detail either. Suffice it to say that the Court did not see a relevant difference, neither in the existence of the public emergency that it had confirmed in the two cases here above, nor in the fact that the measures were still exceeding what was strictly required by the situation.234 The first case after Aksoy and Demir however; Elçi and Others v. Turkey is more interesting to look into, mainly because the Applicants were also charged with “making false and unwarranted applications to the European Commission of Human Rights.”235 The Government denied the latter in the preliminary report

230 Ibid §145. 231 A. and Others v the UK, §186. 232 Ibid §189 – 190. 233 Ibid §192. 234 Nuray Sen v Turkey App no 41478/98 (ECtHR 17 June 2003) §26-29; Bilen v Turkey App no 34483/97 (ECtHR 21 February 2006) §46-50. In the fourth case, Abdulsamet Yaman v Turkey, it was decided that the derogation did not apply ratione loci. §69. 235 Elçi and Others v Turkey App nos 23145/93, 25091/94 (ECtHR 24 March 2004) §665. [Elçi and Others v Turkey]

42 of a European Lawyer’s Committee for Human Rights,236 but the Chief State Security Court Prosecutor was reported as saying that the constitutional right237 of making an application to the Convention Organs was abused. This because Mister Elçi and the others were making false accusations and had not exhausted domestic remedies. This is “an offence under Turkish law, being propaganda directed against the State, belittling Turkey.”238 Mr Tahir Elçi was a lawyer who had defended several PKK members, inter alia in Benzer and Others v. Turkey, regarding the Kuşkonar massacre,239 in which, amongst other violations, Turkey was convicted for violating Article 38 of the Convention.240 In 1993, he and the other Applicants were put in detention on the pretext of criminal charges. The Applicants believed these were false pretences and that in reality their detention was due to their human rights work and representation of clients (PKK members) for the State Security Court.241 They complained to the Court about unlawful detention during which they were tortured.242 In its judgment, the Court held that Turkey had violated Articles 3 and 8 of the Convention and determined with regard to the derogation and Article 5 ECHR: even if the derogation and the resultant legislative Decrees could be considered relevant to the facts of the present case, the Court is not persuaded that the applicants' unlawful detention could thereby be legitimised.243 As the Government could not bring forward any document ordering the detention or the arrest, the Court sharply declared to be again struck by the lack of accountability or any acceptance of direct responsibility by the officials involved in the events of the present case244 [and found that the Government] have not shown how the applicants' detention without adequate authorisation could have been strictly required by the exigencies of the situation envisaged by Article 15 § 1 of the Convention245 One year after the Benzer case, on the 28th of November 2015, while making an appeal for peace, Mr Elçi was killed.246 According to Human Rights Watch, the full circumstances remain unclear.247 On the 20th of July 2016 President Erdogan declared that Turkey was again under a State of Emergency, because the life of the Nation was threatened. The reason for this was an attempted coup “staged in the Republic of Turkey” and

236 Ibid §561 237 Ibid §665 238 Ibid §565. 239 Benzer and Other v Turkey App no 23502/06 (ECtHR 12 November 2013), §2. 240 Ibid, p51, (3). 241 Article 18 ECHR was not invoked. 242 Elçi and Others v Turkey §3. 243 Ibid §684. Emphasize mine. 244 Ibid §697-698. 245 Ibid §684. 246 Jared Malsin ‘The Killing of a Kurdish Lawyer Means Dark Days for Turkey’ Time (30 November 2015) accessed on 13 July 2018. 247 ‘Turkey – Events of 2015’ (Human Rights Watch) accessed 13 July 2018.

43 although this “despicable attempt was foiled by the Turkish state and people acting in unity and solidarity,” together with “other terrorist acts” it still amounted to a public emergency.248 Şahin Alpay, the Applicant, is a journalist working for a newspaper deemed “the principal publication medium of the “Gülenist” network,” which was closed down on the basis of emergency legislation.249 Mister Alpay was arrested and taken into police custody. On the 30th of July 2016, it was ordered for him to be put in pre-trial detention. It would take until the 10th of April 2017 before the Istanbul public prosecutor filed a bill of indictment against him, based on six articles written in the years before the coup and consequently before the state of emergency was declared. During the criminal proceedings, the Applicant lodged an individual application with the Constitutional Court. The latter held that Mister Alpay’s right to liberty and security, the right to freedom of expression and freedom of the press had been violated. The pre-trial detention he was subjected to was determined “disproportionate to the strict exigencies of the situation.” The court competent to rule over the criminal proceedings, the Istanbul 13th Assize Court, decided that the Constitutional Court had overstepped its competence and considered the judgement neither final, nor binding and rejected it.250 Lastly, reiterating that the judgment in question amounted to usurpation of power, it held, by two votes to one, that there was no need for it to give a decision on the applicant’s pre-trial detention.251 When the case was brought before the ECtHR, multiple non-governmental organisations jointly submitted written comments, as did the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. Contrary to the Applicant, the Turkish Government and the Constitutional Court of Turkey, the NGO’s did not agree that a public emergency threatening the life of the nation was shown to exist, neither that the pre-trial detention was strictly required by the exigencies of the situation. The Special Rapporteur emphasized that “if the circumstances justifying the declaration of a state of emergency ceased to exist, individuals’ rights could no longer be restricted in connection with the aforementioned derogation.”252 The Court accepted the findings of the Turkish Constitutional Court on the existence of public emergency, repeated the formula of deference and confirmed the evaluation by the Government, which was not disputed by the Applicant. In determining the fulfilment of the conditions of Article 15 ECHR, the Court also considered that the notice of derogation did not explicitly mention the Articles

248 Permanent Representative of Turkey ‘Declaration contained in a letter from the Permanent Representative of Turkey, dated 21 July 2016, registered at the Secretariat General’ (21 July 2016) p1. 249 Şahin Alpay v. Turkey App no. 16538/17 (ECtHR, 20 March 2018) §12. [Şahin Alpay v. Turkey] 250 Şahin Alpay v. Turkey § 19-40. 251 Şahin Alpay v. Turkey, §39. 252 Şahin Alpay v. Turkey §67-71.

44 Turkey intended to derogate from. As none of the parties had disputed that the formal requirement of Article 15 ECHR was satisfied, the Court accepted it as fulfilled.253 As the Constitutional Court had determined with regard to Article 15 of the Constitution (providing for inter alia a state of emergency) the right to liberty and security would be meaningless if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed a criminal offence. In the Constitutional Court’s view, the applicant’s deprivation of liberty was therefore disproportionate to the strict exigencies of the situation.254 To which the Court agreed. 255 The Court decided to limit its scrutiny to “determining whether the national authorities afforded appropriate and sufficient redress for the violation found and whether they complied with their obligations under Article 5 of the Convention.” 256 The behaviour of the Government, domestic law and the previous experience of the Court with the Turkish juridical system, led the Court to conclude that the reasons on which the Istanbul 13th Assize Court based itself to reject the application for release did not satisfy the requirements of Article 5 §1 ECHR. The ECtHR considered the reasoning to “run counter to the fundamental principles of the rule of law and legal certainty” and reiterated that these principles, inherent in the protection afforded by Article 5 of the Convention, are the cornerstones of the guarantees against arbitrariness.257 A violation of Article 5 ECHR had accordingly taken place, as a pre-trial detention that was not only unlawful, but also not been effected “”in accordance with a procedure prescribed by law” on account of the lack of reasonable suspicion” was not proportional to the exigencies of the situation.258 In deciding upon the alleged violation of Article 10 ECHR, the ECtHR again referred to the Constitutional Court, which had determined there to be a violation while taking into account the public emergency raging through Turkey at that time. After emphasizing that “one of the principal characteristics of democracy is the possibility it offers of resolving problems through public debate,” the Court explained that the goal of declaring a public emergency and consequently derogating from the obligations of the Convention (and in Turkeys case from the Constitution as well) was “to restore the normal regime by guaranteeing fundamental rights.”259 Because of that, any measures taken should seek to protect the democratic order from the threats to it, and every effort must be made to safeguard the values of a democratic society, such as pluralism, tolerance and broadmindedness.260

253 Şahin Alpay v. Turkey § 72-77. 254 Şahin Alpay v. Turkey §107. 255 Şahin Alpay v. Turkey §119. 256 Şahin Alpay v. Turkey §109. 257 Şahin Alpay v. Turkey §118. 258 Şahin Alpay v. Turkey §119-120. 259 Şahin Alpay v. Turkey §180. 260 Ibid.

45 The Court decided that a violation of Article 10 ECHR had occurred. Even in the strongly rejected instance where criticising the Government could be seen as propagating terrorism under domestic law, the use of pre-trial detention should not be used, as it constitutes “an exceptional measure of last resort when all other measures have proved incapable.”261 As the ECtHR seems to go rather far in interpreting domestic procedural law and reviewing domestic jurisprudence, the attached concurring opinions elaborate on the subject of deference to the Member States. Judges Spano, Bianku, Vučinič, Lemmens and Griţco wrote that deference is possible when the Member States fulfil their Convention Role. Deference is therefore meant as a positive incentive for the Member States to secure the Convention rights and apply in good faith the general principles derived from the Court’s jurisprudence. If the Member States do not fulfil their appointed roles, the Court does not defer to them, but takes up its own role as “final arbiter of the scope and content of the Convention.”262 In short and to be clear, the robust and coherent application of the principle of subsidiarity by the Court has nothing to do with taking power away from the Court. Moreover, as flows directly from the language of Article 15 of the Convention, these principles apply equally where a State is confronted with a public emergency threatening the life of the nation. Such a situation does not give States carte blanche. 263

261 Şahin Alpay v. Turkey §181. 262 Şahin Alpay v. Turkey, Concurring opinion of Judge Spano joined by judges Bianku, Vučinič, Lemmens and Griţco, §2-3. 263 Şahin Alpay v. Turkey §3-4.

46 Conclusion First and for all, it is clear that whether or not the Applicants dispute the existence of a State of Emergency is irrelevant. The European supervision that accompanies the margin of appreciation turns out to consist mainly of a proportionality test, typically situated in the realm of juridical supervision. The role of the Court is to determine whether States have gone beyond the extent strictly required by the exigencies of the situation. The Court therefore balances the public emergency with the rights that are subjected to derogation. In other words: the guardian of the rights and freedoms of the Convention balances whether or not States have gone too far in restricting those rights in relation to what is needed to neutralise a threat to the life of the nation. It is in a way ironic that the Court in this way balances the derogation out against a situation which it does not really evaluate, but for which existence it has so far always accepted the word of the Government. In my opinion this irony does not leave behind a bitter grim. The supervision by the Court is exactly that; a “supernational” instead of a supranational level, where it is investigated whether all the domestic actors have played their Conventional part. Furthermore, if the measures are considered to interfere disproportionally, no public emergency can legitimise them and precluded their violation of the Convention.264 Returning to the extra-legal measures model of Tom Hickman and more particular the derogation approach, it is clear that the State of Emergency as justification in the ECtHR approach is not a response to the question whether or not the derogation was valid, but to whether or not the interference with the rights of the Convention was justified. Here the juridical supervision by the ECtHR is not whether or not a public emergency existed, but whether that public emergency requires and justifies the specific derogation. The reason the Court does not further investigate is not because it considers the existence of a public emergency a political or factual question and deems “only” the evaluation of proportionality to be a juridical duty.265 In A. and Others v the UK and Şahin Alpay v. Turkey it has been made very clear that the authorities that the ECtHR defers to, comprise of the judicial just as much or maybe even more as to the executive.

264 Elçi and Others v Turkey §684. 265 I would like to emphasize that this is also clear from the fact that the Parliamentary Assembly of the Council of Europe also shows deference to the national level when it comes to the existence of a public emergency. Turkey for instance is admonished repeatedly for the disproportionate way it responses to the situation, but in no resolution is the existence of a State of Emergency doubted. The Assembly urges Turkey to lift the State of Emergency as soon as possible, but does not itself suggest that this moment has occurred. See for instance Council of Europe (Parliamentary Assembly) Resolution 2156 (2017) ‘The functioning of democratic institutions in Turkey’ §3; Council of Europe (Parliamentary Assembly) Resolution 2209 (2018) ‘State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights’ §16.

47 In the former,266 the European Court limits its competence to reviewing whether or not its domestic precursor misinterpreted or misapplied Article 15 ECHR. Only if a misinterpretation or misapplication is found, the Court declares itself competent to rule contrary to the House of Lords. In the latter, it is the confirmation of a public emergency by the Turkish Constitutional Court that the ECtHR emphasizes to accept. As to the proportionality test, the ECtHR relies completely on the conclusion of the Constitutional Court, which decided there had been a violation and only investigates whether “the national authorities afforded appropriate and sufficient redress for the violation found and whether they complied with their obligations under Article 5 of the Convention.”267 For determining whether or not a State has exceeded the extent of what was strictly required by the situation, the Court lists the following factors: (1) the nature of the rights affected by the derogation, (2) the circumstances leading to the public emergency and (3) the duration of that public emergency. With these three points, the Court outlines the European supervision. With regard to the temporal element, the ECtHR demands the situation to be subjected to constant close review whether or not it still constitutes a public emergency. As for the circumstances leading to the public emergency, it is clear from for instance Aksoy v Turkey and Brannigan and McBride v the United Kingdom that the Court keeps “the special problems the investigation of terrorists” in account.268 Again it appears strange that the Court does not evaluate the existence of public emergency, but does take into account the specific features defining it. When the Court repeated what the conditions were to fulfil the requirements of the exigencies of the situation in A. and Others v the United Kingdom, it listed that the measures needed to be (1) a genuine response to the public emergency, (2) fully justified by the special circumstances of the emergency and (3) have adequate safeguards against abuse.269 While both the first and second condition seem a proportionality balance and can in that way be linked to the factor “circumstances linked to the public emergency,” the third conditions appears new altogether. A link between that condition and the factor “nature of the rights affected” is defensible, although the ECtHR usually discusses the two separately. The Convention right most derogated from is Article 5 ECHR, whose importance the Court does not cease to emphasize. This does not mean that it is immune from being balanced against the emergency, as it is not a non-derogable right. The lack of safeguards for abuse on the other hand is often cited as a reason to decide there had been a disproportionate violation (of Article 5 ECHR) or vice

266 As will be discussed in the part dealing with national emergency strategies, the House of Lords too discussed whether or not the evaluation of a (factual) declaration of a State of Emergency belonged to their competence. The ECtHR does not mention this, but merely accepts the judicial confirmation of the existence of a public emergency. 267 Şahin Alpay v. Turkey, §109. 268 Aksoy v Turkey ECtHR §76,78; Brannigan and McBride v the UK ECtHR §49-51 269 A. and Others v the UK, §184.

48 versa to confirm governmental policy. 270 Another tenable link could be to consider the constant evaluation as a safeguard for the measures to remain within the range required by the situation at that time. Furthermore it appears that indeed three groups of rights exist, namely non- derogable rights, rights that can be derogated from and rights that are qualified. The Court made clear that only when normal measures do not suffice, exceptional measures can be used and that Governments should be able to justify why those normal measures were not up to the task.271 An emergency situation can exist without the need arising to derogate from Convention rights. This can also be seen from the notices of derogation, which inform the Secretary General of a possible derogation from (certain) Convention rights. Here I want to refer back to the dissenting opinion of Judge Eustathiades, who put limitation and derogation in a hierarchic relation. Finally, although derogation is allowed, this does not at all mean that the Article in question is completely suspended or “waived” as Judge Faber puts it.272 The core of the Article is always preserved, for instance when Article 5 is derogated from, it does not mean arbitrary detention would be allowed.273 In this way the Court is not the only the guardian of the rights and freedoms of the Convention, but also the doorman preventing the transformation of Schmitts’ Commissarial dictatorship to a Sovereign dictatorship. This is also seen in the goal of Article 15 ECHR which is defined as “to return to normality for Convention purposes, and accordingly to rescind the derogation, as quickly as possible.”274 Although I do not want to argue that derogation equals limitation, I think it is not too far fetched to make an analogy nonetheless. Derogation appears somewhat as a further limitation of the rights that are not stipulated as subjected to qualification in the Convention. Seen from this perspective, derogation is indeed the next step when the limitation of qualified Articles no longer suffices and the unqualified Convention is seen as the basic situation.

270 See for instance: Lawless (ECtHR) §37, Brannigan and McBride v the UK ECtHR §66 and Aksoy v Turkey ECtHR §76,78. 271 Ireland v the United Kingdom, §212; Şahin Alpay v. Turkey §181. 272 Lawless (ECmHR) §109, p139 273 Şahin Alpay v. Turkey 274 Demir and Others v Turkey, §47.

49 National strategies to neutralise a threat to the nation France The French Constitution does not contain a catalogue of human rights, but its preamble refers to the Déclaration de droits de l’homme et du citoyen, the preamble of the Constitution of 1946 and the Charter for the Environment of 2004. In a true coup d’État juridique275 in 1971, the Conseil constitutionnel determined that the preamble and consequently the Declaration and Charters it mentioned, constituted constitutional law. Because of this decision, the law in casu could be declared unconstitutional for violating the freedom of association, which was as such not protected by the constitution itself.276 This de facto constitutionalized the human rights and freedoms contained in these documents and resulted in a potential rejection by the Conseil constitutionnel on the basis of inconformity.277 Due to the monist system France applies, treaties containing human rights clauses, like the European Convention on Human Rights, are an integral part of domestic law.278

The French exception

“L’état de siège” In 1791, two years after the heralded Déclaration de droits de l’homme et du citoyen, the law “concerning the conservation and classification of military areas”279 was accepted. Herein, the conditions for a State of Siege for places de guerre were established. During an état de siège or State of Siege, “all the authority with which the civil officers are clothed by the constitution for the maintenance of order […] will pass to the military commanders.” 280 Soon afterwards, with the law of 27 August 1797 (or the tenth Fructidor of the Year 5), cities were assimilated with places de guerre, and a State of Siege could also be declared when there was a rebellion threat.281 This fictive or political State of Siege turned out to be vulnerable for abuse in the chaotic first half of the nineteenth century, resulting in the insertion of Article 106 in the Constitution of

275 Arnaud Haquet Droit Constitutionnel – Séquence 6. L’évolution de la Cinquième République (Dalloz 2017) p142. 276 C.C., 16 juilet 1971, déc. 71-44 DC, Loi complétant les dispositions des articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d'association, cons. 2-5. 277 Roger Errera Et ce sera justice… (2013 Galimard) p17; Michael Tugendhat Liberty Intact – Human Rights in English Law (2017 OUP) p174-175. [Tugendhat Liberty Intact] 278 Rusen Ergec and Jacques Velu Convention eruopöenne des droits de l’homme (2nd ed. Bruyant 2014) p53. 279 Clinton Rossiter Constitutional Dictatorship – Crisis Government in the Modern Democracies (Princeton University Press 1948), p80. [Rossiter Constitutional Dictatorship] 280 Bulletin des Lois, An. v, bull. no. 139 As cited in Rossiter Constitutional Dictatorship p80. 281 Article 1 – 2 10 Fructidor an 5 (27 août 1797) Collection Complète des Lois, Décrets, Ordonnances, Réglements, et Avis du Conseil-d’état, p32.

50 the Second Republic.282 This Article required a law to be created to regulate when a State of Siege could be declared and what its forms and effects would be. The military State of Siege however, would continue to be regulated by Revolutionary and Empire laws.283 The demand of Article 106 resulted in the drafting of the law of 09 August 1849, which stated that a State of Siege could only be declared in the case of an imminent peril for the internal or external security.284 After the profound change in government structure with the birth of the Third Republic, this law was amended. From 1878 on, until their abrogation in 2004, the State of Siege was governed by this amended law of 1849 and the law of 04 April 1878,285 respectively regulating its effects and organization.286 The historian and political scientist Clinton Rossiter points to the fact that these laws are not constitutional provisions, but “ordinary statutes proceeding in the ordinary manner from the legislative authority.”287 In 1958, France, now in the form of the Fifth Republic, was given a new constitution. Its Article 36 stipulates that the State of Siege shall be declared by the Council of Ministers and that a prolongation for more than twelve days has to be authorised by the Parliament.288 The abrogation in 2004 mentioned above was accompanied by the integration of these laws in the code de la défense and the cessation of the distinction between a fictive and effective State of Siege.289 From now on, les états de sièges would only be military in form,290 but no State of Siege has ever been declared in the Fifth Republic.291 This stands in sharp contrast with the état d’urgence, the exceptional regime present at the dawn of the new Republic.

“L’état d’urgence” Contrary to the State of Siege, the State of Emergency is not provided for in the French Constitution, but by Act No. 55–385 of 3 April 1955. (the Act of 1955) The first Article determines that a state of emergency can be declared over the entire metropolitan territory, over the overseas collectivities by Article 74 of the Constitution and in New Caledonia. Such a declaration can only be done in case of an imminent peril resulting from serious threats to the public order or in the

282 Rossiter Constitutional Dictatorship, p81. 283 Loi du 10 Juillet 1791, Décret de 24 Decembre 1811 and Décret de 4 Octobre 1891. Rossiter Constitutional Dictatorship p80-81. 284 Loi sur létat de siege (9 août 1849) Art. 1. 285 Loi relative à l’état de siege (3 avil 1878). 286 Rossiter Constitutional Dictatorship p82. 287 Ibid p83. 288 Constitution, 4 octobre 1958 Art. 36. [Const.] 289 Jean-Claude Ricci Droit administrative general (Hachette Livre 2013) p55. Articles L2121-1 et seqq. Code de la défense. 290 Article L2121-1 only refers to “péril imminent résultant d'une guerre étrangère ou d'une insurrection armée” (an imminent peril resulting from a foreign war or an armed insurrection). 291Philip Bluteau ‘Instituer l'état d'urgence dans un Etat de droit’ (Les Echos 15 November 2005) accessed on 12 July 2018.

51 case of events, which present a public disaster (calamité) by their nature and seriousness.292 According to Article 2 it is the Council of Ministers who declares the state of emergency, by décret. This decree also determines in which districts (circonscriptions territoriales) the state of emergency enters into force. Furthermore, the areas, where the state of emergency will be applied within those territorial limits, will be decided by decree.293 Similar to the State of Siege, the State of Emergency cannot be extended beyond twelve days without an authorisation by law, which has to define its definitive duration.294 The law prolonging the emergency expires fifteen days after the resignation of the government or the dissolution of the Assemblée nationale.295 Just like the State of Siege, a State of Emergency is declared by the Council of Ministers, but a prolongation requires the legislative power to step in. Furthermore, Parliament needs to be kept informed without delay with regard to the measures taken by the Government during the State of Emergency. The administrative authorities are required to provide the Assemblée nationale and the Senate with a copy of all the acts taken by them in application of the Act of 03/04/1955, but the information duty also works in the other direction. Both chambers can demand all complementary information in order to evaluate and scrutinize the measures taken.296 Aside from these first procedural safeguards the law also regulates the measures that can be taken during a state of emergency. On the basis of Article 5, a préfet, whose department is within the territorial limits where a State of Emergency is declared, can take certain exception measures, with the goal of preventing disturbance of public order and security. These include the general prohibition of circulation of persons and vehicles during certain times or of particular persons about whom serious reasons exist that her/his behaviour constitutes a danger for the public security and order. As the prefect determines to whom this measure applies, it is not a criminal or in general judicial conviction by a judge, but an administrative measure. Both these prohibitions are defined in an arrêté. In the case of individual bans the arrêtés have to specify the duration of the measure - which has to be limited in time – the area it covers and the exact circumstances motivating both this territorial limitation and the measure itself. This area can’t include the residency of the person concerned and has to keep her/his private and professional life in account.297 Article 6 gives the minister of internal affairs the power to put persons under house arrest about whom there are serious reasons to believe her/his behaviour holds a threat to public order and security. This house arrest can only

292 Loi relative à l'état d'urgence, 03 avril 1955, n°55-385, art. 1. [the Act of 1955] 293 The Act of 1955 Art. 2. 294 The Act of 1955 Art. 3. 295 The Act of 1955 Art. 4. 296 The Act of 1955 Art. 4-1. 297 The Act of 1955 Art. 5.

52 be declared for a maximum of twelve hours. Extra measures of a periodic presentation to the police (maximum three times a day) and the handing over of identification documents can be declared, next to the prohibition of contact with certain individuals. The measure of house arrest is not automatically renewed when an extension of the state of emergency is declared, but has to be re- imposed. It is also absolutely limited in time, as the same person cannot be placed under house arrest for more than twelve subsequent months, but this period can be extended for maximum another three months.298 Furthermore, the Minister of the Interior and the prefect can, respectively for the entire territory where the state of emergency is declared or for her/his department, order that all event halls, places where drinks are distributed and all meeting places in general are to be closed temporarily. This applies in particular, Article 8 continues, for places of worship in which statements provoking hatred, violence or the commission of acts of terrorism are held, or are being advocated.299 Meetings that, because of their nature, provoke or create disorder can equally be banned and the same applies for gatherings or parades on public roads when the administrative authorities cannot ensure the safety.300 Finally, the Minister of Interior and the prefect can order the surrender of arms and ammunition.301 Contrary to the measures above, the dissolution of associations forming a serious threat to public order or facilitating or inciting this threat is an emergency power of the Council of Ministers 302 To prevent their re- establishment, techniques de renseignement or intelligence techniques can be applied by the competent services.303 Next to that, the State of Emergency is added to the circumstances providing for the power of requisition of the code de la défense.304 The last measures obtained by the administrative authorities, or the last mentioned transferred powers, are those of ordering house searches305 and of the interruption of online public communication which provokes or defends terrorist acts.306 House searches can be ordered to take place anywhere an individual is suspected to be a threat to public order and security. This includes private residences, except for the places assigned for the exercise of the

298 The Act of 1955 Art. 6. 299 The Act of 1955 Art. 8 §1. 300 The Act of 1955 Art. 8 §1-3. 301 The Act of 1955 Art. 9. 302 The Act of 1955 Art. 6-1, §1. 303 The Act of 1955 Art. 6-1 §4. 304 The Act of 1955 Art. 10. 305 The Act of 1955 Art. 11 (I) §1. In not-exceptional circumstances, it is almost always a judge who orders a house search. Only in certain situations can this be done by an officer of the judicial police. Julien Boudon ‘Les formes de la contraint dans le cadre de l’état d’urgence en France’ in Emmanno Calzolaio and Pierre Serrand La constrainte en droit. The Constraint in Law (Lit 2017) p45. [Boudon, la constraint dans le cadre de l’état d’urgence] 306 the Act of 1955 Art. 11 (II).

53 professional activity of Members of Parliament, lawyers, magistrates, or journalist.307 This exclusion is an amendment of the Act of 1955, accepted in 2015 and for the benefit of the separation of powers.308 They can only take place from 06AM till 09PM.309 The competent public prosecutor has to be informed immediately of the house search and it can only take place in the presence of the territorially competent judicial police officer and the occupant, his representative or two witnesses.310 The public prosecutor further receives a report and a procès-verbal (notes of proceedings) of the search, including information of the material constituting a violation of the law that was taken.311 No material can be taken that is not in connection to the threat to public order and security. If the person whose residence is searched behaves in a way that can reasonably be seen as a threat to public security and order, she or he can be detained on the spot by the judicial police officer for the time necessitated for the search. This can be no longer than four hours312 and needs to be justified in a report. The report is presented for signature to the detainee and a copy is given to her/him and the public prosecutor. After the search, the juge des référés (judge of urgent (interim) applications) of the administrative court is requested authorization for the exploitation of the outcome of the search. The judge has 48 hours to decide on the lawfulness of the search and the request of the administrative authorities. If the authorization is refused, the copied data that was collected at the search is being destroyed and the media on which they were saved are returned to their owner.313 Appeal against interim decision of the administrative tribunals can be filed for the Conseil d’État within 48 hours.314 The Article also regulates how to handle the confiscation of a computer and the data on it.315 The subsequent articles regulate punishments 316 and stipulate that all measures, except for Article 6-1, 317 automatically end when the State of Emergency comes to an end.318 Articles 11, 9, 8, 6 and 5 explicitly mention that the measures they define can only be taken on the parts of the territory where

307 The Act of 1955 Art. 11 (I) §1. 308 Boudon, la constraint dans le cadre de l’état d’urgence, p47. 309 The same time limits apply for house searches in not-exceptional circumstances. See Article 59, Code de procédure pénale. The time regulation during a State of Emergency is regulated by The Act of 1955 Art. 11 (I) §2. 310 The Act of 1955 Art. 11 (I) §2. 311 The Act of 1955 Art. 11 (I) §11. 312 The Act of 1955 Art. 11 §15. In case of detention, the person involved can request the judicial police officer to inform her/his employee, who has to decide whether the necessities of the detention allow her/him to fulfil this request. 313 The Act of 1955 Art. 11 (I) §8. 314 The Act of 1955 Art. 11 §10. 315 The Act of 1955 Art. 11 (I) §§4-6, 8. 316 The Act of 1955 Art. 10. 317 The Act of 1955 Art. 6-1 §3. For the penalty of re-establishing a dissolved organisation, Article 6-1 §2 points to the code penal. 318 The Act of 1955 Art. 14.

54 the State of Emergency is declared. This is not the case for Article 6-1, limiting the freedom of association.319

Pouvoirs exceptionnelles Article 16 of the Constitution is sometimes referred to as the Republic’s reserve constitution.320 In the discussion of its revision in 2008, it was remarked that Article 16 is the crisis-counterpart of Article 5 of the Constitution,321 which states that the Presidents ensures the proper functioning of public authorities and the continuing of the State, and ensures due respect for the Constitution. The President is defined as the guarantor of national independence, territorial integrity and due respect for Treaties.322Article 16 on the other hand gives exceptional powers to the president in a time of crisis, when the governmental institutions are incapable of functioning properly. This controversial, but present-day still existing323 Article stipulates that when there is a serious and immediate threat to the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilments of its international commitments, and where the proper functioning of the constitutional public authorities is interrupted, the President can take the measures that these circumstances entail.324 The conditions are thus twofold, and cumulative; there has to be both a crisis and the interruption of the normal functioning of public authorities.325 Before taking this approach, the President formally consults the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council.326 This consultation is not binding327 and the

319 The Act of 1955 Art. 6-1. 320 Olivier Beaud ‘”Anything goes”: how does French law deal with the State of Emergency?’ in Pierre Auriel, Olivier Beaud and Carl Wellman (eds.) The Rule of Crisis: Terrorism, Emergency Legislation and the Rule of Law (Springer International Publishing 2018) 229, p233. [Beaud “Anything goes”] 321 La Commission des Lois Constitutionnelles, de la Législation et de l’Administration Générale de la République, Rapport sur le Projet de Loi Constitutionnelle (N° 820) de modernisation des institutions de la Ve République (AN, N°892 15/08/2008) p148. [AN N°892 15/08/2008] 322 Const. Article 5. 323 There have been discussions in the Assemblée nationale about taking this Article out of the Constitution, both in the past and more recently, but the hypothesis of a terrorist threat necessitating these exceptional powers was always deemed too close to realization, that it remains a part of it until today. Not everyone agreed with this point of view, however. Some called the institution dispensable, and pointed to WII to state that even then, there was a parliamentary debate, whereas others warned against the cumulating of all, or almost all, power in the hands of one person. An amendment for parliamentary control was rejected. AN, N°892 15/08/2008 p150, 153-154. For the debate in respectively the Senat, see: S 20 June 2008, www.senat.fr/seances/s200806/s20080620/s20080620001.html#R5 and the Assemblée nationale: AN 26 May 2008, www.assemblee-nationale.fr/13/cri/2007- 2008/20080167.asp#P71_6662. 324 Const. Art. 16 §1. 325 AN, N°892 15/08/2008 p149. 326 Const. Art. 16 §1, first sentence. 327 Beaud “Anything goes” p233.

55 advice of the Constitutional Council is the only one made public.328 The decision to use Exceptional Powers is therefore the Presidents’ alone.329 The Presidents addresses the Nation and informs it of the measures taken.330 Those measures are designed to provide the constitutional public authorities with the means to carry out their duties as promptly as possible and the Constitutional Council shall be consulted with regard to them.331 The measures taken by the President are therefore, just like derogation in a State of Emergency, meant to return to the normal state of affairs as fast as possible. They can be of regulatory or legislative nature, with the latter enjoying de facto jurisdictional immunity. 332 Their individual applications are simples actes administratifs against which applications for abuse of power are open.333 Parliament sits as of right and the National Assembly is not dissolved during the exercise of such emergency powers,334 but their usual prerogatives are not all at their disposal.335 After thirty days of exercising these powers, the President of the Assemblée nationale, the President of the Senate, Sixty Members of the Assemblée nationale or sixty senators can ask the Constitutional Council to decide if the threatening circumstances still apply. The Constitutional Council should make its decision as soon as possible and by public announcement. If no such referral has come, the Constitutional Council examines the exercise ex officio after sixty days, or at any moment thereafter.336 The reviewing powers of the Constitutional Council are the result of an amendment that was accepted only in July 2008, fifty years after the drafting of the Constitution and forty-seven years after their abuse by de Gaulle.337 No other institution can adopt a binding opinion, but there is the option of last resort as provided for in Article 68 of the Constitution, namely impeachment for acting contrary to the office of President.338

Aux armes citoyens - the (Fifth) Republic under threat In post-WWII French history, emergency powers have been used five times so far. Once this happened in the form of exceptional powers, the other four times, a

328 Ordonnance portant loi organique sur le Conseil constitutionnel, 7 novembre 1958 n° 58-1067; AN, N°892 15/08/2008 p149. 329 AN, N°892 15/08/2008 p149. 330 Const. Art. 16 §1, last sentence. 331 Const. Art. 16 §2. This advice is not publicised. AN, N°892 15/08/2008 p149. 332 AN, N°892 15/08/2008 p149. 333 AN, N°892 15/08/2008 p149. 334 Article 16 §3-4. 335 AN, N°892 15/08/2008 p149. 336 Const. Art. 16 §5. 337 Sophie Boyron The Constitution of France: A Contextual Analysis (Hart Publishing 2013) p73. 338 Const. Art. 68; David Dyzenhaus ‘States of Emergency’ in Michel Rosenfeld and András Sajó (eds.) The Oxford Handbook of Comparative Constitutional Law (OUP 2012)442, p445. [Dyzenhaus ‘States of Emergency’] Other options mentioned in the debate on the report on the modernisation of the institutions of the republic were public demonstrations or voting against the president in elections. AN, N°892 15/08/2008 p150.

56 State of Emergency was applied. I will however limit this discussion to the four times the French metropole itself was directly influenced. The coming into existence of the French State of Emergency is inextricably linked with the French-Algerian War (1954 – 1962), which meant the end of the French Fourth Republic. It is therefore in France’s colonial “past” that I want to start this overview. After the interbellum during which France was governed by enabling acts,339 the Constitution of the fourth Republic had given emergency powers (in casu the State of Siege) back to the legislative power, “where they belong.”340 General de Gaulle, still humiliated by the events of 1940, did not agree with this allocation.341

1. French-Algerian war (1954-1962) In 1830, the Second French Empire had started with the return of some former colonies by Great Britain and the invasion of Algeria. Algeria was however more than a colony; it was considered an extension of La France Propre. Les colons, white colonists in Algeria, were French citizens and the region was simply a part of the metropole, not a colonial territory.342 Independence was something not even thought about in Paris as late as the 1950s.343 For the FLN-ALN (Front de Libération Nationale and its militant branch, the Armée Libération Nationale) on the contrary, the successes of the guerrilla movement in the First Indochina War sparked hope for an independent Algeria.344 The planned insurrection began the first of November 1954, with terrorist attacks killing eight, of which most notably Guy Monnerot, a young schoolteacher and the injuring of his wife in Arrès. It was in Arrès too that the French military, supported by the European opinion, started their “operations to maintain order”345 and that the state of emergency was initially limited to.346

339 Of the 76 months between March 1934 and July 1940, France was ruled by décrets-lois for 31 months. Georgette Elgey Histoire de la IVe République Volume V: La République des tourmentes (Vol 5 Fayard 2008), p267. 340 Rossiter Constitutional Dictatorship p118-128. 341 Gerard Emmanuel Kamden Kamga ‘L’état d’exception and/or state of siege: what is really wrong with section 9(2) of the Constitution of Cameroon?’ (2013) 19 n.2 Fundamina 333, p335. 342 David B. Abbernethy The Dynamics of Global Dominance (Yale University Press 2000) p154. [Abbernethy Dynamics of Global Dominance] 343 Todd Shepard The Invention of Decolonization: The Algerian War and the Remaking of France (Cornell University Press 2006) p6-7. This proofs both the selective blindness of the French authorities, which only shortly before had fought for their own freedom, and the success of the colon lobby in the Assemblée nationale, as in 1945 the Sétif massacre had already taken place. In Sétif, on the 08 May 1945, about 8.000 Muslims held a victory march, which terrified the local subprefect, who tried to stop it from taking place. In a reaction, 200 colons were massacred. France retaliated brutally, killing an estimated 1.000 Muslims in return. Abbernethy Dynamics of Global Dominance p154-155. 344 James McDougall A History of Algeria (Cambridge University Press 2017) p197 [McDougall A History of Algeria]; Abbernethy Dynamics of Global Dominance, p153-154. 345 McDougall A History of Algeria p197-200. 346 Fabian Klose Human Rights in the Shadow of Colonial Violence – The Wars of Independence in Kenya and Algeria (Translated by Dona Geyer, University of Pennsylvania Press 2013) p86.

57 This was made possible by the adopting of a new law by the government of Edgar Faure on the 03 April 1955.347 Although there are some voices saying this law was made to fit Gen. de Gaulle, it is my conviction that this is an overstatement. Looking at the original version of the law, Article 2 stated that only law could declare a state of emergency348 and not the strong executive power that Gen. de Gaulle had in mind. It is the legislative power that not only decided there existed a State of Emergency, but also how that Emergency was territorially and temporarily defined.349 Furthermore in case a new government came to power, it had to ask confirmation of the continuance of the severity of the peril within fifteen days, otherwise the law establishing the State of Emergency would be caduque; obsolete. 350 If the Assemblée nationale was dissolved, the law became obsolete automatically.351 Despite this however, it has to be kept in mind that the Fourth Republic was only providing lip services to the ideals of its foregoer and in practice conferred much of its powers to the executive, just like the Parliaments of the Third Republic had contradicted themselves.352 Stating that the new law was made for Gen. de Gaulle is an overstatement, but an overstatement of the truth nonetheless, because Parliament merely guarded the key to more executive power. With the state of emergency declared in Algeria, France now effectively separated its own normal regime, from the exceptional – Other – regime applied there.353 Algeria – or at least the colons – before considered part of metropolitan France, was hereby treated in a much more colonial fashion. This was a sacrifice the government was willing to make in order to preserve the Fourth Republic, whose survival, it was believed, was intrinsically linked to holding on to Algeria.354 It was however a sacrifice with a high price, not only because it became increasingly obvious that torture was routinely used by police forces,355 but also because this violence eventually spilled over to the metropole.356 Methods whose use had previously been contained to colonial use only, began to be used in France as well, where the police fought both pro and contra

347 Martin Evans Algeria: France’s undeclared war (OUP 2012) p138. [Evans Algeria] 348 The Act of 1955 Art. 2. 349 The Act of 1955 Art. 2. 350 The Act of 1955 Art. 3. 351 The Act of 1955 Art. 4 “abrogée de plein droit”. 352 William George Andrews Presidential Government in Gaullist France: A Study of Executive- Legislative Relations 1958 – 1974 (State University of New York Press 1982) p126-127. [Andres Gaullist France] 353 Oren Gross ‘’Control Systems’ and the migration of anomalies’ in Sujit Choudhry (ed) The Migration of Constitutional Ideas (Cambridge University Press 2006) 403, p417. [Gross ‘Migration of anomalies’] 354 Ian S. Lustick Unsettled States, Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank-Gaza (Cornel University Press 1993) p252. [Lustick Unsettled States] 355 This was even public admitted. McDougall A History of Algeria p215; Evans Algeria p138-139; Gross ‘Migration of anomalies’ p419-420. 356 Rasmus Ugilt The Metaphysics of Terror: The Incoherent System of Contemporary Politics (Bloomsbury Publishing Inc. 2012), p107.

58 nationalist groupings.357 The State of Emergency was extended to France Propre from the 23rd of April 1955 till November of that same year.358 For many in the military, the Other had become increasingly equated with the self. The free hand they had been given from the as weak perceived politicians at home, was something they had grown accustomed to and which they wanted to put to use to save France, just as they were saving Algeria. A violent riot was staged by an alliance between the colons and the military commanders, which resulted in the forming of a Committee of Public Safety in Algeria. These committees were under military control and soon afterwards were established in the metropole and Corsica as well. In the latter they managed to replace civilian authorities, contributing to the fear of an invasion in France Propre. 359 Ultimately, this led to Gen. de Gaulle being invested as Prime Minister in 1958.360 Before accepting the office, Gen. de Gaulle listed some conditions. Not satisfied with the (relatively) limited legislative power already conferred to the executive, he demanded Full Powers for six months and a mandate to draft a new Constitution, which would then be put for referendum. Two days after he was installed, Parliament voted an enabling act that was broader than any of the previous ones before. Gen. de Gaulle disposed from now on over Full Powers, “necessary for the recovery of the nation,” including constituent powers.361

2. Generals’ Revolt (1961-1963) On the 11th of April 1961, Gen. de Gaulle gave a speech in which he declared that a slow decolonization of Algeria was too costly for France.362 This sparked outrage with the French military still present in the colony. Some high-ranked officers, meeting clandestine in Paris, decided France could not retain Algeria under the Fifth Republic. Plans were made for a coup.363 On the 21st of April, these plans were realized and four generals mounted a putsch in Algeria.364 Gen. de Gaulle acted fast. As an ordinance had changed the Act of 1955 and put power

357 Gross ‘Migration of anomalies’ p420. 358 Andres Gaullist France p126. 359 Gross ‘Migration of anomalies’ p421-422. 360 Gen. de Gaulle was asked to be the head of government as president du conseil, the equivalent of Prime Minister. David Marrani Dynamics in the French Constitution – Decoding French Republican Ideas (Routledge 2013) p5. 361 Andres Gaullist France p127-128. 362 Serge Berstein The Republic of de Gaulle 1958-1969 (Cambridge University Press 1989) p52. Maurice Faivre reports, on the basis of the records of multiple translators, that Gen. de Gaulle would have asked Gen. Allard in 1959; you don’t imagine that one day, an Arab, a Muslim, would be equal to a Frenchman?” Maurice Faivre ‘Les Français Musulmans Dans La Guerre d’Algérie’ 117 (1995) Guerre mondiales et conflits contemporaines 139, p148. On Gen. de Gaulle’s disdain for Algerians, see also Todd Shepard The Invention of Decolonization: The Algerian War and the Remaking of France (Cornell University Press 2006) p75. 363 Lustick Unsettled States p292. 364 James McDougall A History of Algeria (Cambridge University Press 2017) p229.

59 to declare a State of Emergency in the hands of the executive,365 Gen. de Gaulle had recourse to two options: declare a State of Emergency on the basis of the Act of 1955, or immediately put to use the newly inscribed exceptional powers. He chose the latter. The day after the coup, de Gaulle declared a State of Emergency throughout all of France. The day after, several Decisions were signed, ranging from a declaration that Article 16 was in effect, to an indefinite extension of the State of Emergency. Subjects included the indefinite internment of subversives by the Minister of Interior, the loss of pension rights and other benefits for rebellious personnel, the removal of insubordinate civil servants or members of the armed forces from service, outlawing rebellious newspapers and the irregular transfer of judges. In his study of Gaullist France, William George Andrews questions the necessity of such far-reaching measures and the fulfilment of the conditions enabling them, deciding that for the former, it depends how the Revolt is perceived, as an isolated event, or as symptomatic of the context in France and Algeria. As for the latter, this would be dependent on the interpretation of Article 16, teleological or not.366 Although it was already clear the revolt would fail on the 24th of April,367 Article 16 remained in effect until the 29th of September 1961.368 Already in January 1960, de Gaulle had played with the idea of bringing Article 16 in effect, but Léon Noël and Georges Pompidou 369 convinced him otherwise. They persuaded the President not to use the Exceptional Powers of Article 16, when the ordinances of Article 38 sufficed to handle the continuing turmoil in Algeria. After Article 16 was put in effect after all one year later, it was that same Léon Noël who would ask Gen. de Gaulle to return to the normal regime and warned him of a potential negative new advice of the Constitutional Council if he did not comply. The Constitutional Council, including judge Léon Noël, had indeed approved of the application of Article 16 after the General’s Revolt.370 At that time as well, the argument was developed that if the crisis could be resolved with the ordinances and the powers deduced from Article 38 of the Constitution, Article 16 did not need to be relied on. After all, the republic had so often before been governed on the basis of enabling acts, and survived.371

365 Ordonnance modifiant certaines dispositions de la loi n° 55-385 instituant un état d’urgence, 15 avril 1960 n° 60-372 Art. 1. 366 Andres Gaullist France p136. 367 Lustick Unsettled States p294. 368 AN, N°892 15/08/2008 p150. 369 Appointed to the Constitutional Council by Gen. de Gaulle in 1959, the later President Pompidou (1969 – 1974) became de Gaulle’s Premier in April 1962. ‘Georges Pompidou’ (Tous les membres) www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/le-conseil- constitutionnel/les-membres-du-conseil/les-membres-depuis-1959/tous-les-membres/georges- pompidou.42284.html. 370 Pierre Avril ‘Georges Pompidou au Conseil constitutionnel’ Nouveaux Cahiers du Conseil constitutionnel n° 42 p1. [Avril ‘Georges Pompidou au Conseil constitutionnel’] 371 C.C., 23 avril 1961, n° 61-1 AR16 réunion des conditions exigées par la Constitution pour l'application de son article 16, PV de Séance p3-4. [C.C. PV de Séance]

60 Il y a dans cette Constitution un article qui a inquiété et qui inquiète beaucoup de gens. Faut-il en faire application lorsqu'on peut faire autrement?372 In April 1961, it was Georges Pompidou who defended the presidential invocation of Article 16, stating: "Une épreuve de force se prépare, Faut-il attendre davantage pour prendre des mesures radicales? Là est la question..." "C'est un fait que le Parlement, le Gouvernement et la Nation sont derrière le Chef de l'Etat... Mais on peut avoir des doutes sur la possibilité pour un Parlement d'adopter avec rapidité des mesures de courage... Si le Gouvernement demande des pouvoirs exceptionnels, il y aura des réserves, des "si" et des "car".373 Furthermore, he said, if in the application of Article 38 debates were held in Parliament, than some dissident voices would be heard. Although those voices would constitute a minority, they would be recorded in the Journal Officiel and some newspapers thereby creating the impression of a divided Republic, which needed to be avoided. 374 Mister Patin, persuaded by Mr Pompidou’s argumentation, added to that, that mistakes must be learned from; the last time the President was discouraged to invoke Article 16, eventually led to the Putsch.375 Mr Coty had compared the functioning of the authorities of the Republic with an electricity factory, which still worked with some broken contacts. Other members went even further and stated the problems were limited to Algeria only, thereby arguing that the conditions of Article 16 had not been fulfilled. Mr Pompidou had to agree with this, but pointed to the gravity of the situation as a justification. Months later, in September, he would sigh that the continued application put the Constitutional Council in “an embarrassing situation, because if the Constitution is taken literally, certain conditions of Article 16 aren’t met,” mais, d'autre part, « il y a une menace sur les institutions qui est permanente», ce qui fait que « le chef de l'Etat doit pouvoir disposer à tous moments de pouvoirs extraordinaires ». Favorable à la mesure, il convient qu'il serait « fâcheux que nous ayions (sic) à dire que l'utilisation de l'article 16 demeure valable », mais s'il disparaissait, il faudrait une loi de pleins pouvoirs qui ne passerait peut-être pas, et le Parlement est en vacances…376 Article 16 would remain in force for another three weeks. Before the “temporary dictatorship” came to an end, the Conseil d’État had determined that the decision to apply Article 16 was “un acte de gouvernement” and therefore neither its duration, nor the legality of that decision were open to review. The Applicants had been convicted by a military tribunal, established by a law, introduced by de Gaulle on the basis of the legislative power at his disposal under Article 16. The Council explained that the president could use both the legislative and the administrative power offered to him, but because in this case the former was

372 Ibid p4. 373 Ibid p5. 374 Ibid. 375 Ibid p6. 376 Avril ‘Georges Pompidou au Conseil constitutionnel’ p5.

61 used, the administrative judge was not competent to review the decision.377 Hereby, legislative action taken under Article 16 was de facto removed from judicial review.378 Professor Dyzenhaus emphasises that at the time of Article 16’s introduction, in 1961, France had not yet ratified the ECHR.379

3. 2005 French riots When two teenagers died in an accident in the Paris metro, riots spread over Paris and 300 other cities and towns across France. Within two weeks thousands of cars were set on fire and almost 3000 had been arrested. On the eight of November 2005, l’état d’urgence was declared. Six days later, the Government decided it was necessary to prolong the State of Emergency and consequently requested parliament for their approval.380 75 lawyers brought a case before the Conseil d’Etat claiming there no longer existed a State of Emergency and therefore no justification to derogate from fundamental rights on the basis of the Act of 1955. The Court decided: il ne saurait être valablement soutenu qu'en décidant de ne pas mettre fin dès à présent à la déclaration de l'état d'urgence, le chef de l'Etat aurait, dans l'exercice du pouvoir d'appréciation étendu qui est le sien, pris une décision qui serait entachée d'une illégalité manifeste, alors même que, comme le soulignent les requérants, les circonstances qui ont justifié la déclaration d'urgence, ont sensiblement évolué.381

4. Attacks of November 2015 The thirteenth of November 2015, the French capital was shocked by several terrorist attacks, killing 130 and injuring another 493. That same night, President François Hollande declared the State of Emergency on the basis of the Act of 1955.382 It was prolonged six times until the first of November 2017, thereby covering a period of elections and the entering into office of a new president, Emmanuel Macron.383 However, next to the elections, France also

377 C.E., Ass. 02 mars 1962 n°55049. 378 Alexander Türk The Concept of Legislation in European Community Law: a comparative perspective (Kluwer Law International 2006) p41-42; Celine Lageot ‘National Legal Tradition - France’ in Susana Galera (eds.) Judicial Review: A Comparative Analysis Inside the European Legal System (Council of Europe 2010) 71, p80-81. 379 Dyzenhaus ‘States of Emergency’, p451. 380 Gross and Ní Aoláin Law in Times of Crisis, p200-202. 381 C.E., 09 décembre 2005, n°287777, cons. 15. 382 Décret n°2015-1475, 14 novembre 2015 portant application de la loi n° 55-385 du 3 avril 1955, JO 14 novembre 2015. This despite the rhetoric used by Hollande in his speech before the Assemblée nationale, where he declared France to be at war, he considered neither the state of siege, neither Art. 16 applicable, as public institutions were not precluded from fulfilling their duties. Matthias Lemke Demokratie im Aushnahmezustand: wie Regierungen ihre Macht ausweiten (Campus Verlag 2017) p247-248, 251-252. [Lemke Demokratie im Aushnahmezustand] 383 Prolongations took place on 24/11/2015, 25/02/2016, 20/05/2016, 22/07/2016, 21/12/2016, 13/07/2017. Council of Europe ‘Reservations and Declarations for Treaty No.005 - Convention for the Protection of Human Rights and Fundamental Freedoms’ 30/08/2018

62 organised the 2015 United Nations Climate Change Conference and introduced a new employment law, both causing a public stir and consequently the organisation of demonstrations. The use of exceptional measures to prohibit the latter, combined with the long duration of the State of Emergency, resulted in a storm of protest from NGO’s like Amnesty International. 384 Conversely, I discussed above that although a State of Exception seems inherently limited in time, the European Court of Human Right does not reject a long-time State of Emergency, as long as its necessity is examined on a regular basis. From the now already accessible decisions of the Conseil constitutionnel, it can be seen that their judgements are in the same fashion as the ECHR, namely they weigh the proportionality of the articles of the Act of 1955, restoring public safety and order, in respect to different freedoms, mainly the freedom of “to come and go”385 and to have a private life. At least two of these decisions deserve special attention. First, Decision 2016-600. This Decision evaluated the constitutionality of Art. 11, 1° of the Act of 1955. This article, relating to house searches, had previously been determined a disproportionate violation of the right to a private life due to its vagueness and the lack of guarantees386 and was consequently amended. It was this amendment that was questioned before the Conseil constitutionnel in décision 2016-600, but this time the Court accepted the article, as it was not “manifestement” disproportionate.387 Second, in decision 2015-527, a question was posed by Cédric Domenjoud, an ecologist who had been put under house arrest in order to prevent him for organising or taking part in a demonstration in the context of the climate summit in Paris in 2015. The Conseil d’Ètat had annulled the house arrest of ecologists who had suffered the same faith, amongst which his brother, Joël Domenjoud, deciding it constituted an “erreur de droit,” an error in law. Their house arrest was to be lifted only the day after the decision, which coincided with the last day of the climate summit, thereby de facto upholding the decision.388 This was not the case for Cédric Domenjoud, as the Conseil d’État found it not necessary to relieve him from the house arrest, neither to take “mesures de sauvegarde” while

/conventions/treaty/005/declarations?p_auth=eh2Qin6d&_coeconventions_WAR_coeconventio nsportlet_enVigueur=false&_coeconventions_WAR_coeconventionsportlet_searchBy=state&_coec onventions_WAR_coeconventionsportlet_codePays=FRA&_coeconventions_WAR_coeconventions portlet_codeNature=10> accessed on 30 August 2018. 384 Marco Perolini, ‘France’s Permanent State of Emergency’ (Amnesty International 26 September 2017) accessed 14 July 2018. 385 “La liberté d’aller et venir,” “Liberté de circulation” or the freedom of movement, is provided for in Art. 2 of the Déclaration de droits de l’homme et du citoyen. It is the freedom to move freely in the public space, excluding any limitation, except permitted by law and for reasons of public order or when required by the exercised of other fundamental freedoms. Jean-Claude Ricci and Pierre-Henri Prélot Droit des libertés fondamentales (2nd ed. Hachette Livre 2010), chapter 6. 386 C.C., 23 septembre 2016, déc. 2016-567/568 QPC §7. 387 C.C. 02 décembre 2016, déc. 2016-600 QPC §13,21. 388 C.E., 11 décembre 2015, n°394989, 394990 , 394991, 394992, 3949904.

63 awaiting the preliminary judgment from the Conseil constitutionnel.389 In the administrative fast track proceedings preceding the case before the Conseil d’État, partly on the basis of inaccessible information collected by the secret service, Cédric Domenjoud had argued that the measures available as a result of the declaration of the State of Emergency could only be used to attack the causes of that emergency, and he, an ecologist, did not have terrorist motives or could in any way seen in connection with Daesh, the group behind the Paris attacks earlier that month. The Administrative Tribunal of Melun denied the necessity of this link: un tel objectif ne fait pas obstacle à ce que les mesures qu'elle prévoit puissent être mises en œuvre dans le cadre de la prévention d'autres menaces à la sécurité et à l'ordre public, notamment pour permettre aux services en charge de la sécurité d’assurer leur mission, et plus particulièrement à l’occasion de l’événement exceptionnel que constitue la conférence internationale relative à l'environnement (COP 21) accueillant de nombreux chefs d’États.390 This was rebuffed by the Conseil constitutionnel, who declared that not only the decision to use the measure of a house arrest, but also “its durations, the conditions of its application and the possible complementary obligations should be justified and proportional to the reasons which motivated the measure in the particular circumstances which led to the declaration of the State of Emergency.” 391 Of course it is impossible to deny the additional problems encountered by the public services and more specifically the police forces because of the climate summit. Neither is it hard to see how an international demonstration protesting against an equal international event could cause a disturbance to peace and security, but I find the strength of the connection questionable. To equate the fulfilment of the condition that the measures should be justified by the State of Emergency with organisational problems caused by the State of Emergency, seems improbable to me. Finally I would like to point to two decisions of the Conseil constitutionnel with regard to the instalment of a perimeter, on the basis of the pre-amendment version of Article 5 of the Act of 1955. The first case led to the adjustment of Article 5, 3° of the Act of 1955, giving préfets the power to prohibit circulation of every person trying to hinder governmental action taking place. The paragraph was declared unconstitutional because it misbalanced both the right to a private life and the freedom of circulation with safeguarding public order.392 However, the “gardiens de la loi fondamentale” decided that, because of the excessive consequence an immediate abrogation would have, the legislative power was

389 C.E., 11 décembre 2015, n°395009. 390 T.A. Melun, 03 décembre 2015, n°1509659 §5. 391 C.E. 22 décembre 2015, déc. 2015-527 QPC cons. 12. “Considérant, en deuxième lieu, que tant la mesure d'assignation à résidence que sa durée, ses conditions d'application et les obligations complémentaires dont elle peut être assortie doivent être justifiées et proportionnées aux raisons ayant motivé la mesure dans les circonstances particulières ayant conduit à la déclaration de l'état d'urgence.” That same reasoning with regard to house searches is found in C.E. 19 février 2016, déc. 2016-536 QPC, cons. 10. 392 C.E. 09 juin 2017, déc. 2017-635 QPC §7.

64 given time until the 15th of July to amend the Act.393 By then, 574 of the 683 times the measures had been applied, it had been targeted against demonstrators of the new labour law.394 In the second decision, the Counsil determined Article 5, 2° of the Act of 1955 constituted a disproportional violation of the freedom of circulation on the 11th of January 2018, leading to its abrogation.395 The perimeter in casu was declared around refugee camps in Calais by the préfet on the 23rd of October 2016; the State of Exception came to an end on the 2nd of November 2017, three months before the judgment.396 In these cases too, it is dubious whether there was a defendable connection with the terrorism causing the declaration of the State of Emergency.

393 Ibid §9; Julia Pascual ‘Le Conseil constitutionnel censure l’interdiction de manifester’ Le Monde (Paris 09 June 2017). 394 Amnesty International, A Right not a Threat: disproportionate restrictions on demonstrations under the State of Emergency in France (N° EUR 21/6104/2017 31 May 2017), p6. 395 C.E. 11 janvier 2018, déc. 2017-684 QPC. 396 Franck Johannès ‘Le Conseil constitutionnel censure à nouveau la loi sur l’état d’urgence’ Le Monde (Paris 11 January 2018).

65 Germany Germany’s possible reactions to an emergency The German Grundgesetz or “Basic Law” 397 provides for different kinds of emergencies, dependent on the origin of the threat to the life of the nation; originating outside or inside. The three “outside” emergency provisions are der Verteidigungsfall (State of Defence), the Spannungs- und Zustimmungsfall (State of Tension) and the Bündnisfall (casus foederis; a case for the alliance, the treaty). Germany employs the monist system, meaning that treaty obligations, like Human Rights do not need to be incorporated into domestic law before they can be invoked. Article 17a provides for the restriction of the freedom of movement and the inviolability of the home by laws regarding defence, including protection of the civilian population.398

Defence to threats coming from outside Germany

Verteidigungsfall (115A)

Process It is the Bundestag, with consent of the Bundesrat, who can declare a State of Defence.399 The Bundesrat consists of representatives of the German Länder or States and has a legislative and administrative function. In some ways, it can be seen as the second chamber of the Parliament, albeit a much smaller chamber than the Bundestag. A State of Defence can be declared if the federal territory is under attack by armed force or imminently threatened with such an attack. The declaration by the Bundestag is to be made on application of the Federal Government and requires a two-thirds majority of the votes cast, with at least a majority of the Members of the Bundestag present.400 However, in case of urgency, which is often present in times like these, another procedure can be followed. The second paragraph of Article 115a provides for a determination by the Gemeinsamer Ausschuß or Joint Committee401 in the case of a situation imperatively calling for immediate action and insurmountable obstacles preventing the timely convening of the Bundestag or when the mustering of a quorum is impossible.402 It is the Joint Committee itself who decides upon the incapacity and who takes over the position of both

397 At the time of its adoption (1949), Germany was still divided and the term Grundgesetz was chosen to signal its temporality. Elmar M. Hucko The Democratic Tradition: Four German Constitutions (Berg Publishers Limited 1987) p65. [Hucko German Constitutions] 398 Art. 17a Grundgesetz. 399 Art. 115a(1) first sentence Grundgesetz. 400 Art. 115a (1) Grundgesetz. 401 I am using the official English translations from Christian Tomuschat, Professor David P. Currie and Professor Donald P. Kommers in cooperation with the Language Service of the German Bundestag, made public by the Bundestag. These can be found at www.btg- bestellservice.de/pdf/80201000.pdf 402 Art. 115a (2) Grundgesetz.

66 the Bundestag and the Bundesrat.403 The Bundesrat is therefore not mentioned in these two conditions, of which one concerns the imminence of the threat and the other the meeting of the Bundestag. The Joint Committee however, consists for two-thirds of Members of the Bundestag and for the final third of Members of the Bundesrat.404 The determination of a State of Defence needs to be made public by the Federal President in the Bundesgesetzblatt or Federal Law Gazette. In case this proves to be impossible, publication needs to happen in a different manner and the publication by the Bundesgesetzblatt needs to be printed as soon as the circumstances permit.405 However, when the federal territory is already under an actual attack by armed forces and the competent federal authorities are not in a position to make the determination of a State of Defence, both the determination and the publication shall be deemed to have been made at the time the attack began. As soon as the circumstances permit, the Federal President shall announce the time of the attack and therefore the time the state of defence begins.406 After the publication of the determination of the State of Defence and if the federal territory is under attack by armed force, the Federal President, with consent of the Bundestag, can issue declarations under international law regarding the existence of the State of Defence. In case the Joint Committee makes the determination, due to the impossibilities faced by the Bundestag as mentioned before, it is also the Gemeinsamer Auschuß who needs to consent to the declaration under international law by the Federal President.407 Article 115b continues by stating that it is the Bundeskanzler or Federal Chancellor who takes over the power of command over the Armed Forces,408 whereas Article 115c regulates the federal legislative process during a State of Defence.409 Article 115i determines that the powers delegated to the state governments in case of incapability of the normally competent federal bodies.410 The State of Defence cannot impair the constitutional status or the performance of the constitutional functions of the Bundesverfassungsgericht or Federal Constitutional Court, neither of its judges. The Joint Committee, when taking over the functions of the Bundestag and the Bundesrat, can amend the law governing the Federal Constitutional Court, but only insofar as the Court itself

403 Art. 115e (1) Grundgesetz. Laws in this way enacted cannot amend, abrogate or suspend in whole or in part the Grundgesetz. (Art. 115e (2) Grundgesetz.) 404 Art. 53a Grundgesetz. 405 Art 115a (3) Grundgesetz. 406 Art. 115a (4) Grundgesetz. 407 Art. 115a (5) Grundgesetz. 408 Art. 115b Grundgesetz. 409 Art. 115c (1) Grundgesetz. Art. 115f stipulates how the Federal Government can employ the Federal Border Police over the entire federal territory, and how instructions can be given to Land governments and authorities. Art. 115k (1) limits the application term of federal laws usurping state legislative power. Art. 115k (1) Grundgesetz. 410 Art. 115i Grundgesetz.

67 agrees on the necessity of this, in order to continue to perform its functions. The Court can even take some kind of interim measures while awaiting the enactment of such a law.411 The importance of the Bundesverfassungsgericht is therefore made very clear from the requirement of its continued functioning during a State of Defence. Its jurisdiction is broad, with inter alia the forfeiture of fundamental rights,412 constitutional complaints, the validity of an election, the unconstitutionality of political parties, motions for the impeachment of the Federal President or federal and state judges. Others include the compatibility of federal and Land law with the Grundgesetz, disputes regarding competence between the federal and Landes level and state court decisions who intend to deviate from the jurisprudence of the Bundesverfassungsgericht when interpreting the Grundgesetz. 413 Every year, more than 6.000 constitutional complaints are submitted to the Bundesverfassungsgericht.414 To avoid the expiration of the electoral term of the Bundestag or a state Parliament during a State of Defence, the terminations of terms are moved until six months after the termination of the State of Defence. The same applies to members of the Bundesverfassungsgericht and the Federal President, although the latter term extends until nine months after the termination of the State of Defence. In case of the premature vacancy of the office of Federal President, it is the President of the Bundestag who exercises her/his functions. Article 115h explicitly ends with the confirmation, “the Bundestag shall not be dissolved while a State of Defence exists.”415 Not only the continuation of the judicial, but also of the legislative power are unambiguously provided for. The Bundestag has to elect the Bundeskanzler416 and can express its lack of confidence in her/him as well, leading to her/his replacement.417 In case the Joint Committee has to take over the duties of the Bundestag and Bundesrat and if it is necessary for a new Federal Chancellor to be elected, the Joint Committee is responsible for this as well.418 Finally, Article 115k, which is called “Rank and duration of emergency provisions,” stipulates that the Gesetze und Rechtsverordnungen (laws and

411 Art. 115g Grundgesetz. The application of these laws is limited in time; they do not permanently alter the functioning of the Court. Art. 115k (1) Grundgesetz. 412 Art. 18 Grundgesetz. 413 §13, 1-4, 6-9, 11, 13 Bundesverfassungsgerichtsgesetz in der Fassung der Bekanntmachung vom 11. August 1993 (BGBl. I S. 1473), das zuletzt durch Artikel 2 des Gesetzes vom 8. Oktober 2017 (BGBl. I S. 3546) geändert worden ist. [BVerfGG] The official translation can be found at www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Gesetze/BVerfGG.pdf?__blob=p ublicationFile&v=6. 414 ‘Court and Constitutional Organ’ accessed at 26 July 2018. 415 Art. 115h Grundgesetz. 416 Art. 63 (1) Grundgesetz. 417 Art. 67 Grundgesetz. 418 Art. 115h (2) Grundgesetz. What the cause of this necessity would be is not further defined in the law.

68 statutory instruments) taken in accordance with the State of Defence suspend the operation of incompatible law, as long as they are in effect. This is only the case for incompatible law that was taken in a non-State of Defence, not for previous laws adopting according to the procedure of the State of Defence. The laws adopted by the Joint Committee are limited in their application term to six months after the termination of the State of Defence,419but the Bundestag can at any time, with consent of the Bundesrat, repeal the laws the Joint Committee enacted. Any measure taken by both the Joint Committee or the Federal Government to avert a danger rescinds if the Bundestag and the Bundesrat so decide. It is also the Bundestag who can, at any time, with the consent of the Bundesrat, declare that the State of Defence is terminated, but the Bundesrat can also take a more active roll and demand of the Bundestag to decide upon the matter. A State of Defence shall be declared terminated without delay if the conditions for determining it no longer exist and the conclusion of peace shall be determined by a federal law.420

Permitted limitations to basis rights Half of the legitimate deviations are regulated by Article 115c Grundgesetz, meaning they are dealt with by federal legislation, even if they are in non-State of Defence conditions the subject of state legislation. These derogations are only allowed to the extent the circumstances of the State of Defence require421 and can only last as long as the State of Defence lasts.422 Article 14 Grundgesetz defines the right to property and inheritance and regulates expropriation. The latter is only permissibly for the public good and can only be pursuant to, or ordered by, a law that determines the nature and extent of compensation.423 In a State of Defence however, a federal law can deviate from this and foresee a provisional payment in advance,424 to the advantage of efficiency. This payment in advance is only temporary and has to be paid in full the latest by the end of the State of Defence.425 Although the deviation can only last as long as the State of Defence lasts, Art. 115c (2) 1 Grundgesetz can be applied already before a State of Defence arises.426 Next, Article 115c provides for a limited derogation of Article 104 Grundgesetz, regulating the deprivation of liberty. Excluded from derogation is the stipulation that the liberty of a person may only be restricted pursuant to a formal law and conform the procedures of that law. Immune too is the

419 Art. 115kc Grundgesetz. 420 Art. 115l Grundgesetz. 421 Art. 115c (2) Grundgesetz. 422 Art. 115 k (1) Grundgesetz. 423 Art. 14 §§1,3 Grundgesetz. 424 Art. 115c (2)1 Grundgesetz. 425 Art. 115k (1) Grundgesetz. Bettina Volmer Die Geltung der Menschenrechte im Staatsnotstand (Nomos 2010) p169-170. [Volmer Menschenrechte im Staatsnotstand] 426 Art. 115c (4).

69 prohibition to subject persons in custody to mental or physical mistreatment.427 Neither can there be any deviation from the judicial supervision, or the notification of a person trusted by the detainee.428 The exception allowed by Article 115c(2)2 Grundgesetz concerns the time the police can hold someone in custody on their own authority and how long anyone can be provisionally detained without a judicial decision. In normal times, this can only be until the end of the day following the arrest,429 whereas during a State of Defence, this can be up to four days, in case no judge is able to act within the normal time limit.430 According to Bettina Volmer, this is a “middle way” between the obstacles judges can materially encounter, for instance closed roads or courthouses, and the limitation of a basic right. She suggests that in case of an actual impossibility on the side of the judicial, these four days won’t be seen as a violation of Art. 5 ECHR in juncto Art. 15 ECHR.431 Where Article 12 Grundgesetz regulates the freedom to choose a profession, Article 12a Grundgesetz regulates compulsory military and alternative civilian service.432 During a State of Defence, everyone who is liable to compulsory military service, but who is not called upon to fulfil this duty, can be assigned to employment involving civilian service for defence purposes, including the protection of the civilian population. Furthermore they may be assigned to public employment for sovereign functions of public administration as can be discharged only by persons employed in public service, for instance police functions, other such sovereign functions of public administration as can be discharged only by persons employed in the public service, or service with the Armed Forces, in the provision of military supplies, but assignments to employment connected with supplying and servicing the civilian population are only permitted to meet their basic requirements or to guarantee their safety.433 Restrictions to leave a profession can be applied in case of shortage of volunteers for the service with the Armed Forces.434 If, in preparation for these services, special knowledge, skills or participation in training courses is required by or pursuant a law, neither the State of Defence, nor the State of Tension needs to be declared.435 Apart from that, the Article on compulsory military service and alternative civilian service continues with a derogation of the free choice of occupation only

427 Art. 104 (1) Grundgesetz. 428 Art. 104 (2) first and second sentence, (3) second sentence, (4) Grundgesetz. 429 Art. 104 (2) third sentence. (3) first sentence Grundgesetz. 430 Art. 115c (2) 2 Grundgesetz. 431 Volmer Menschenrechte im Staatsnotstand p170-171. 432 Article 12a is limited by the Freedom of Association, which states that these measures cannot be directed against industrial disputes in which associations are engaged in, in order to safeguard and improve working and economic conditions. Art. 9 Grundgesetz. It seems like they cannot be used to control industrial unrest or break strikes. 433 Art. 12a (3) Grundgesetz. 434 Art. 12a (6) Grundgesetz. 435 Art. 12a (5) Grundgesetz.

70 for women, namely in case the need for civilian services in the civilian health system or in stationary military hospitals cannot be met on a voluntary basis. In that case, women between eighteen and fifty-five years of age may be called upon to fulfil that need. However, they can under no circumstances be required to render service involving the use of arms.436 Men can be called upon to defend the fatherland, women only to nurse civilians. These men in the Armed Forces are further discussed in Article 87a Grundgesetz, which transfers power to protect civilian property and to perform traffic control functions to the Armed Forces during a State of Defence and to the extent necessary to accomplish the defence mission. Armed Forces may also be authorised to support police measures for the protection of civilian property, but this power is not completely transferred, as cooperation with the competent authorities is required.437 Federal military criminal courts can be established for the Armed Forces, but these can only exercise criminal jurisdiction during a State of Defence or over the Armed Forces when serving abroad or when they are on board of warships.438

Spannungs- und Zustimmungsfall (80a §1) The Bundestag can also determine that a Spannungsfall or State of Tension exists. In that case, certain legal provisions regulated by the Grundgesetz or federal laws regarding defence, including the protection of the civilian population, can be applied. This determination requires a two-thirds majority of the vote,439 and can result in the calling up of persons liable for compulsory military service, as determined in Article 12a (3) Grundgesetz and discussed here above, even before a State of Defence is determined. All measures taken pursuant the State of Tension shall rescind whenever the Bundestag so demands.440 If there are not enough volunteers to meet the demand for workers in public employment for the purpose of discharging police functions, sovereign functions of public administration, the Armed Forces or public administrative authorities, a State of Tension can resolve this lack with the persons liable for compulsory military service, who have not been called up. This before a State of Defence is determined.441 In these last two options, the Tension seems to lead up to Defence.

Bündnisfall (80a §3) Those legal provisions are also permitted on the basis of and in accordance with a decision made by an international body within the framework of a treaty of

436 Art. 12a (4) Grundgesetz. 437 Art. 87a (3) Grundgesetz. 438 Art. 96 (2) Grundgesetz. 439 Art. 80a (1) Grundgesetz. 440 Art. 80a (2) Grundgesetz. 441 Art. 12a (3), (6) Grundgesetz.

71 alliance with the approval of the Federal Government. Whenever majority of the Bundestag demands so, these measures shall be rescinded.442

Defence against threats coming from inside Germany

Threats to the free democratic basis order (Art. 91) In order to avert an imminent danger to the existence or the free democratic basic order of the Federation or of a state, the state involved can call upon police forces of other states, upon personnel and facilities of other administrative authorities and of the Federal Border Police. If the State where such danger is imminent is not able to combat the danger or is not itself willing to do so, the Federal Government can take charge and place the police of that state and others under its own orders and can deploy units of the Federal Border Police. If police forces are placed under the Federal Government’s orders in this fashion, these orders rescind once the danger is removed or when the Bundesrat demands so. If the danger extends beyond the territory of one state, the Federal Government can, next to the police forces, also issue instructions to the state governments, insofar as it is necessary to combat the danger.443 If even the obtained police forces and the Federal Border Police prove inadequate, the Federal Government call on the Armed Forces in support in protecting civilian property and in combating organised and armed insurgents. This deployment will end upon demand of the Bundesrat.444 Article 10 Grundgesetz, which guarantees the privacy of correspondence, posts and telecommunications, also defines the restrictions permitted in order to preserve the free democratic basic order or the existence or security of the Federation or of a Land. If the restriction is imposed with that aim, the law may provide that the person affected does not know of the restriction regarding his person. In that case, recourse to the courts is replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature. Just like Article 10, Article 11, safeguarding the freedom of movement, can also only be restricted by or pursuant to a law. Restricting the freedom of movement can however only be done in cases in which the absence of adequate means of support would result in a particular burden for the community or in which such restriction is necessary to avert an imminent danger to the existence or the free democratic basic order of the Federation or a State. Other circumstances justifying such restrictions can be to combat the danger of an epidemic, to respond to a grave accident or natural disaster, to protect young persons from serious neglect, or to prevent crime.445

442 Art. 80a (3) Grundgesetz. 443 Art. 91 Grundgesetz. Where Grundgesetz explicitly mentions the rescinder of the orders with regard to the police forces, it does not mention anything in that fashion with regard to the instructions given to the governments. 444 Art. 87a (4) Grundgesetz. 445 Art. 11 Grundgesetz.

72 Industrial disputes in which associations (unions) are involved in to safeguard and improve working and economic conditions, are as well excluded from the scope of application of the Article 90 Grundgesetz.446 In case of abuse of certain basic rights with the goal of combating the “free democratic basic order,” the Bundesverfassungsgericht can decide to forfeit these specific, abused basic rights. The rights in question are the freedom of expression, the freedom of teaching, the freedom of assembly, the freedom of association, the privacy of correspondence, post and telecommunication, the rights of property or the rights of asylum.447 Almost all of these rights are linked with communication, whether mass communication or more private, and appear strongly to be an effort to protect Germany against a dictatorial takeover similar to the Nazi electoral victory and its atrocious totalitarian consequences. Finally, Article 73 Grundgesetz stipulates that cooperation between the Federation and the states concerning the protection of the free democratic basis order falls under the exclusive legislative power of the Federation.448

Threats coming from natural disasters (Art. 35) Article 35 Grundgesetz mainly regulates assistance given to the Länder by each other or by the federal level. This not only on in legal and administrative matters, but also with regard to police forces that are put at the disposal of Länder in need.

Deutschland über alles But never again, would “alles” mean all; everything. Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.449

From 1848 to 1944: one century, two world wars, three constitutions In May 1848, 462 elected Members were united in the National Assembly in Frankfurt to draft a constitution, which was supposed to mark the beginning of a united Germany. The revolution that brought them to power was not a social one, but one that was carried by romanticism and the bourgeoisie. As a result, the crown and very generous (and unchecked) powers were offered to the Prussian King.450 Although flattered, the latter refused, because who were these people to offer a throne? More interestingly in the context of this Masters Thesis, is that before they came to the discussion of executive powers, the first topic tackled by the brand new National Assembly was basic rights, Grundrechte, resulting in the “Law

446 Art. 9 (3) Grundgesetz. 447 Art. 18 Grundgesetz. 448 Art. 73 (10) Grundgesetz. 449 Art. 1 Grundgesetz. (“Human dignity is inviolable. To respect and protect it is the duty of all state authority.“) 450 Hucko German Constitutions p7-8.

73 Relating to the Basic Rights of the German People.”451 Basic Rights, which only constituted Part VI of the 1848 Constitution, comprised inter alia of a prohibition of the death penalty452 (except under martial law or in case of mutiny provided for in maritime law),453 freedom of worship and conscience (remarkable in the history of the region),454 freedom of speech,455 the inviolability of the private house…456 The so-called Paulskirchenverfassung would however never be applied and when Otto Von Bismarck twenty-three years later imposed his constitution, no catalogue of basic rights was to be found anymore.457 Not that this was seen as a lack, on the contrary, the replacement of basic rights by clauses on railways and telecommunications was welcomed as finally bringing a sense of realism into the constitution. This exclusion was mainly caused by the fact that interventions in Basic Rights was now transferred to state level, resulting in a certain deference. As Elmar M. Hucko describes, this approach might still have been defensible at the time of the founding of the German Empire, but as time went by, the federal, imperial, level increasingly usurped power. However, he continues, the absence of Basic Rights from the constitution did not mean that they did not exist, only that they did so in different forms. To support this, Hucko refers to England – which he considers the cradle of Basic Rights – and states that in case Basic Rights would not exist if they were not engraved in a constitution, they wouldn’t exist in England either. Bearing in mind the fact that England is a common law system, this comparison appears a bit out of place, especially considering that Hucko, in a historical outlining, mentions that Bismark pushed both his Kulturkampf and the proscription of socialist through on the basis of normal legislation.458 However, although Hucko’s minimalizing is going too far, there is of course also truth in his statement. Margaret Barber Crosby for instance points to the Gerichtsverfassungsgesetz as filling in some of the omissions of the constitution. She argues that Prussia and Bismarck had to make certain concessions to liberalism, in order to make the unification exceed the purely geographical sphere. It was the liberal reforms in private law at state level that ensured the continuance of the (some of the) Basic Rights of 1848. 459

451 Ibid p9. 452 Art. 135 Verfassung des deutschen Reiches [Paulskirchenverfassung]. 453 Art. 139 Paulskirchenverfassung. 454 Section V Paulskirchenverfassung. This Section does not only contain the freedom of worship and conscience an sich, but for instance also took education out of the historically tight grasp of the Church. 455 Art. 143 Paulskirchenverfassung. 456 Art. 140 Paulskirchenverfassung. See also Hucko German Constitutions p17-20. 457 There is however an emergency clause in that the Emperor could declare a part of the Reich to be in a state of war, in case the public safety there was threatened. Art. 68 Verfassung des Deutschen Reichs von 11. August 1919. [Weimarer Verfassung] 458 Hucko German Constitutions p35-37. 459 Margaret Barber Crosby The Making of a German Constitution: a slow revolution (Berg 2008) p151, 154, 158-159.

74 After the fall of the German Empire in 1918, the drafting of the new constitution was put in the hands of Hugo Preuß, a lawyer who also published articles in which he advocated strongly the merits of democracy.460 Including a catalogue of Basic Rights in a constitution, he believed, was something that belonged to the past, when Europe was still ruled by absolutist monarchs, but did not have a place in a modern republic, like Germany was aspiring to become. He was persuaded otherwise, notwithstanding the fact that his opinion remained the same as the general opinion had been in 1871. Basic Rights were seen as nothing more than an honorary salute to the achievements of the past; empty gestures.461 Most of the rights and freedoms bear reminisces to the catalogue in the Paulskirchenverfassung, but were elaborated upon to a larger extend. New was both the inclusion of socio-economic rights and Basic Obligations.462 In order to avoid a “parliamentary dictatorship” as believed to be the inheritance of the French Revolution in the Reich’s neighbour; the new office of president was made powerful enough to bring the equilibrium back in the balance. As a result, he was (directly) elected for a term of seven years463 during which he could for instance dissolve the Reichstag,464 suspend legislation passed by Parliament to submit it to a plebiscite,465 but most significantly, possessed very far-reaching emergency powers.466 The latter was reflected in the notorious Article 48 Weimar Constitution. In the event of a State not fulfilling the duties imposed on it by the Constitution or the laws of the Reich, the President of the Reich may make use of the armed forces to compel it to do so. Where public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take the measures necessary for their restoration, intervening in case of need with the help of the armed forces. For this purpose he is permitted, for the time being, to abrogate either wholly or partially the fundamental rights laid down in Arts. 114, 115, 117, 118, 123, 124, and 153. The President of the Reich must, without delay, inform the Reichstag of any measures taken in accordance with paragraph 1 or 2 of this Article. Such measures shall be abrogated upon the demand of the Reichstag.

460 Ibid p46-48. 461 This statement was also the majority opinion of the lawyers in the thirties. Herbert Kraus The crisis of the German Democracy : a study of the spirit of the constitution of Weimar (Princeton University Press 1932) p99-100. Herbert Kraus did not share this opinion. He argued that the inclusion of basic rights in the Constitution must mean that they embody the will of the State and therefore must be observed by the State Organs. This vision, fundamental rights as an interpretation method, reminds of the Human Rights Act of the United Kingdom nowadays. See infra. 462 Ibid p58-60. Examples of Basic Obligations: obligatory school attendance (Art. 145), the moral duty to make use of mental and bodily powers as necessary for the welfare of the community (Art. 163) and the duty to undertake the duties of honorary offices (Art. 132). Respectively art. 145, 163 and 132 Weimarer Verfassung. 463 Art. 43 Weimarer Verfassung. 464 Art. 25 Weimarer Verfassung. 465 Art. 73 Weimarer Verfassung. 466 Hucko German Constitutions p54-56.

75 Where there is danger in delay, the State Government may take provisional measures of the kind indicated in paragraph 2, for its own territory. Such measures shall be abrogated upon the demand of the President of the Reich or the Reichtsag. Details are to be determined by a law of the Reich.467 The freedoms that can thus be abrogated – and therefore not “derogated from – are: personal liberty, the inviolability of residence, the secrecy of correspondence, the freedom of speech, the freedom of assembly, the right to form a union and the guarantee of property.468 Already at its drafting, there were some concerns about this “constitutional dictatorship,” but Preuß and the other delegates put their fate in the good faith and devotion to the republic of those elected to the position, and the draft Article was accepted with a decisive majority. State of Emergency clauses were not new; they had existed for a long time in state constitutions,469 where they appeared as Kriegzustand or State of War, but were also found in Bismarck’s constitution, despite the omission of a catalogue of Basic Rights.470 In the first five years of its existence, the State of Emergency was proclaimed an astonishing 135 times.471 The definition of “emergency” was interpreted increasingly broad as time went by, until it involved not only war and civilian rebellion, but also economic and financial crises.472 Although it is said that Article 48 Weimar Constitution was based on the imperial State of War, the same expansion was noticed in the measures that were permitted. Already in 1939, Frederick M. Watkins published The Failure of Constitutional Emergency Powers under the German Republic, in which he wrote, “where earlier arrangements [under the State of War] had been marked by rigorous formality […] under the provisions of Article 48 Weimar Constitution, on the other hand, the incidents of

467 Art. 48 Weimarer Verfassung, as translated in Hucko German Constitutions, p160. The original document can be found online on www.lwl.org/westfaelische- geschichte/que/normal/que843.pdf. 468 Respectively Art. 114, 115, 117, 118, 123, 124, and 153 Weimarer Verfassung. 469 Where federal constitutions allowed Princes had the power to issue emergency decrees with the force of law, the Emperor needed to rely on enabling acts. The imperial State of War permitted therefore less than the state emergency had. Frederick M. Watkins The Failure of Constitutional Emergency Powers under the German Republic (OUP 1939) p18. [Watkins The Failure of Constitutional Emergency Powers] 470 Rossiter Constitutional Dictatorship p35-36. Art. 68 Weimarer Verfassung. Although Rossiter sees the French State of Siege as the basis for the constitutional dictatorships of imperial Germany, he also points to the “Belagerungszustand or State of Siege.” 471 F. Poetz-Heffner, Vom Staatsleben unter der Weimarer Verfassung, erster Bericht, vom 1.Januar 1920 bis zum 31. Dezember 1924, Jahrbuch des öffentlichen Rechts, 13 (1925), p. 141ff (as cited in Mark de Wilde ‘The State of Emergency in the Weimer Republic Legal Disputes over Article 48 of the Weimarer Constitution’ (2010) 78 Tijdschrift voor Rechtsgeschiedenis 135, p139. [de Wilde ‘Legal Disputes over Article 48’]. The numbers are not cited, but are confirmed in Rossiter Constitutional Dictatorship p38. 472 de Wilde ‘Legal Disputes over Article 48’ p140. Kim Lane Scheppele writes that this could happen because the German Parliament never passed a law defining the general framework of Article 48 Weimarer Verfassung in more detail. Kim Lane Scheppele ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’ (2004) 6:5 Journal of Constitutional Law, 1001, p1008. [Scheppele ‘Law in a Time of Emergency’]

76 emergency action were left almost wholly indeterminate.”473 Censorship was thriving, emergency decrees with the status of law were issued, Armed Forces were deployed in areas so much as threatened by (communist) uprising474 and special emergency tribunals were erected which could issue the death penalty, against which no appeal existed.475 Whereas the first president, Friedrich Ebert476 could in a way still justify the use of his exceptionally broad powers on the basis of a need to stabilize the only since very recently full-fledged democracy, already his successor couldn’t resist the chance to tune down the parliament.477 Cabinets had not been stable; in fourteen years (1919-1933), twenty cabinets tried to take office, of which eleven were minority cabinets.478 When constitutionally examining the transformation of a parliamentary to a presidential democracy and eventually a totalitarian dictatorship, the fatal cause is often found in the combination in the institute of the president of emergency powers with the right to dissolve the Reichtsag and the right to appoint both the Chancellor and his Ministers.479 On March 28 1930, Hindenburg asked the young Heinrich Brünig to form a new cabinet, after a conflict relating to a deficit in the unemployment insurance fund.480 This way Hindenburg was at the basis of the “totalitarian revolution”,481 as he supported Brünig with the promise of an emergency decree if the Reichstag did not accept measures to resolve the deficit and other threatening problems. These emergency decrees would enact the government’s proposals into law. However, after they had become law, they had to be submitted to the Reichstag, in order to be approved. In case the Reichtsag would not fulfil this purpose, Hindenburg assured Brünig he would issue a decree dissolving the Reichstag. In June 1930, Hindenburg was forced to live up to his promises.482

473 Watkins The Failure of Constitutional Emergency Powers, p17. 474 Rossiter Constitutional Dictatorship p38. 475 “[Where] in international conflicts the slaughter of prisoners has long since been abandoned, […] the position of domestic enemies is in this respect a rather different one.” Watkins The Failure of Constitutional Emergency Powers, p32-34. 476 According to Karl Dietrich Bracher, Art. 48 Weimar Constitution was written for Ebert and his Revolutionsregierung, to preserve order in the first chaotic days of the republic. Karl Dietrich Bracher, Die Auflösung der Weimarer Republik (Ringverlag 1955), p52. [Bracher Die Auflösung]. Markus Trotter calls him “verfassungstreu” or “constitutionally faithful.” Markus Trotter Der Ausnahmezustand in historischen und Europäischen Rechtsvergleich (1997), p13. [Trotter Der Ausnahmezustand] 477 Maybe second president, Field Marshal Hindenburg longed for the good old days, as in July 1917, he and his colleague General Ludendorff were leading the country on the basis of military rule. Mary Fullbrook A History of Germany 1918 – 2004: The Divided Nation (John Wiley & Sons 2015) p25, 29. 478 Ferdinand Aloys Hermens Representative Republic (Universtiy of Notre Dame Press 1958) p388. [Hermens Representative Republic] 479 P. Blomeyer, Der Notstand in den letzten Jahren von Weimar (Duncker & Humblot 1999) p14. 480 Rossiter Constitutional Dictatorship p50. 481 Bracher describers how under Hindenburg the institution of President transformed from the intended “Hüter” (guardian) to “Reformator” (reformer) of the Constitution. Bracher Die Auflösung p49-50. 482 Hermens Representative Republic p339-340.

77 After the new elections, Brünig was able to retain the confidence of the Reichtsag, which was adjourned only rarely. Neither the Nazi’s and the communist, making up one-third of the Reichstag, nor the Social Democrats who had voted in favour of Brünig, were found willing to cooperate in providing him with legislative enactments. With the Reichstag no longer functioning, it was the Chancellor who took up its legislative power on the basis of Article 48 Weimar Constitution. However, when the emergency measures of Brünig were going to far in the “agrarian Bolshevik” direction, Hindenburg, a Junker, refused. Without the President, Article 48 legislation could not be put to use. A new Kanzellier was appointed and the Reichstag, still barely adjourning anyway, was dissolved. The new Chancellor governed with the President by virtue of his consent to “emergency” legislation, thus effectively turning Germany in a presidential “democracy.” If the Reichstag did not accept the Presidential candidates during their meetings, which were held only for this purpose, the President ordered it dissolved.483At the end of January 1933, Hitler became the Reich’s newest Chancellor. An enabling Act484 gave him full powers of executive decree.485 One year later, he amalgamated both the Kanzler and the President function into his own person.486 Although the Nazi’s had vowed they would write a new constitution, the Weimar Verfassung, with its Basic Rights catalogue, remained in force. On the 28th of February 1933, they were suspended on the basis of Article 48 Weimar Constitution. On the basis of the Enabling Act – in itself illegal according to constitutional law specialist Karl Loewenstein487 – new National Socialist law was enacted, considered organic acts of the Third Reich (“Grundgesetz”). The Weimar Constitution was never repealed, causing the new constitutional laws to deduct validity from the principles lex posterior derogate legi priori and lex specialis derogat legi generali or simply because it overruled the older provisions, whether or not they were contained in the Constitution. Loewenstein called this phenomenon “de-constitutionalisation” as the constitution remained in force, but was subject to amendments by governmental decree, governmental ordinance and statutes passed by the Reichstag. The same happened with those rights that couldn’t be derogated from via Article 48 Weimar Constitution. “In

483 Rossiter Constitutional Dictatorship p51-56. 484 Gesetz zur Behebung der Not von Volk und Reich (24.03.1933) Facsimile at: www.1000dokumente.de/index.html?c=dokument_de&dokument=0006_erm&object=facsimile& st=&l=de. 485 Rossiter Constitutional Dictatorship p59. 486 Karl Loewenstein ‘Dictatorship and the German Constitution: 1933-1937’ (1937) 2 U. Chi. L. Rev. 537, p537. [Loewenstein ‘Dictatorship and the German Constitution’] According to Markus Trotter, the Gesetz zur Behebung der Not von Volk und Reich didn’t even necessitated presidential collaboration anymore. Trotter Der Ausnahmezustand, p14. 487 Loewenstein was by then in exile in Massachusetts, where he would hold the position of associate professor for political science and jurisprudence at Amherst College for the rest of his life. Markus Lang ‘Karl Loewenstein: From Public Law to Political Science’ in Axel Fair-Schulz and Mario Kessler (eds.) German Scholars in Exile: New Studies in Intellectual History (Lexington Books 2011) 19, p19-20.

78 brief, the Constitution of Weimar though not formally repealed has been materially abrogated.”488 In 1935, this duality was brought to another level with the introduction of the Reichsbürgergesetz. Germans were now subdivided in two categories, those with political rights, Reichsbürger (citizens of the Reich; those with German or racially similar blood who had acquired the formal citizenship-certificate), and Staatsangehörige (nationals).489 Now Germany had a Constitution that didn’t have constitutional value, decrees and ordinances issued by the government with the force of law or even with constitutional value. Some Germans had basic, political rights and some did not.490

From 1944 until now The Convention between the Federal Republic of Germany [FDR] and the Allied Powers, Vertrag über die Beziehungen zwischen der Bundesrepublik Deutschland und den drei Mächten, contained an emergency clause in Article 5. This stipulated that the Allied Powers could, after consulting the Federal Government, declare a State of Emergency if the Bundesrepublik and the European Defence Community would be unable to master certain explicitly defined situations and the Allied Powers believed the security of their forces was at stake.491 Despite it being ratified, the Convention never entered into force, due to a procedural clause making the entry into force co-dependent on the ratification of the Treaty Instituting the European Defence Community, which was in last instance rejected by the French National Assembly.492 The Convention was however revised in 1954 and it was decided that Germany could join NATO and the occupation would be terminated in 1955. The new Convention on Relations between the Three Powers and the Federal Republic of Germany also contained an Article 5, attributing the same rights to the Three Powers in relation to the protection of their armed forces stationed in West-Germany the States had held before.493 Since by then the context had changed, the new Art. 5 §2 is worded in a very provisional manner, providing for a German take-over of the right to declare a State of Emergency “when the appropriate German authorities have obtained similar powers under German legislation.”494 That same year, both the government of the FDR and the opposition emphasized the importance of a German emergency law so as to enhance German independence and sovereignty. Several drafts were introduced to the

488 Loewenstein ‘Dictatorship and the German Constitution’ p541-547. 489 Ibid p570-571. 490 For the first time on the basis of “blood” and not of gender. 491 Art. 5 §2 Convention on relations between the Three Powers and the Federal Republic of Germany (Bonn 26 May 1952). 492 Frank Schorkopf, “Bonn and Paris Agreements on Germany (1952 and 1954)”, MEPIL (2009) §3-4. 493 Art. 5 §2 Convention on Relations between the Three Powers and the Federal Republic of Germany (Paris 23 October 1954). 494 Ibid.

79 public from the start of the 1960s on. The first, infelicitously referred to by its drafter Gerhard Schröder as “die Ausnahmestunde als die Stunde der Exekutive,”495 still contained a catalogue of rights the executive could restrict and reserved the power to declare a State of Emergency for the President with approval of the Chancellor. The draft was rejected and quickly followed by its successor, which held provisions with regard to three different kinds of emergencies, depending whether the danger was of domestic, foreign or natural origin. In case of a Parliamentary incapacity to act, an emergency committee is created, composed of members of both the Bundestag and the Bundesrat, preceding the Joint Committee of Art. 115a Grundgesetz. The limitation of Grundrechte was still possible, although to a lesser extent than before in the case of an inneren and natural Notstand, In order to declare a State of Emergency due to a threat from a foreign source approval from the Bundesrat was necessary.496 Its timing was however not ideal, as it coincided with the aftermath of the Spiegel Affair. Der Spiegel, the famous German magazine, published a report on the deplorable state of the Bundeswehr, the national army, and revealed that some high officers were contemplating the idea of a nuclear war, ultimately causing the death of 15 million West-Germans according to the magazine’s calculations. Franz-Josef Strauss, the Minister of Defence earlier accused of corruption and in general criticized by Der Spiegel for his policy in the past, was furious and in turn accused the magazine of treason.497 Not only was the magazine building raided by an enormous police force, but both the editor and the journalist responsible for the article were arrested, the latter in Franco’s Spain. 498 Others included the publishing director and his brother and two military men. The fact that Strauss cooperated with the Bundeskriminalamt, while excluding the Minister of Justice, stirred up the country, remembering the not that long ago past all too well.499 The draft was given to the legal committee of the Bundestag, who after a two yearlong deliberation adopted the text with enough amendments to justify a change of name. The idea of an emergency committee was developed further to the Gemeinsamer Ausschuß like it exists today and the Notverordnungsrecht was taken away from the government. The general trend is clear: the government cannot be trusted with too much power, not even during an emergency. The hour of exception should be the time of parliament, just like any other hour in the day.

495 “The hour of exception as the time for the executive.” 496 Trotter Der Ausnahmezustand, p34-38. 497 Strauss was supported in his accusations by Chancellor Adenauer, calling it an “abyss of treason.” Heinrich August Winkler Germany: 1933 – 1990 (Vol. 2 Translated by Alexander J. Sager OUP 2000) p193. 498 Theodor W. Adorno Critical Models: Interventions and Catchwords (translated by Henry W. Pickford Columbia University Press 2005) p391 note 13. 499 Frits Boterman Moderne geschiedenis van Duitsland: 1800 – heden (De Arbeiderspers 2013) p656-659.

80 The committee-made draft passed two readings, but in the end failed to reach a two-third majority in the third reading. Obtaining this majority became a lot more realistic in December 1966, when Georg Kiesinger led a grand coalition of the Christian-Democrats and the Socialist Party. The final draft was much inspired by the previous draft, albeit with two important corrections, namely the Joint Committee could only take up its duties when a State of Emergency was declared, and the armed forces could take up police duties. The latter was only possible when the Bundesrat approved and required control of the State government. The Bundestag and finally the Bunderat accepted the Notstandsverfassung on respectively the 30th of May and the 14th of June 1968. The Allied Powers of before had declared to accept the emergency constitution as complying with the conditions defined in Art. 5 of the Convention on Relations between the Three Powers and the Federal Republic of Germany three days before.500 Not that the timing of the accepted draft was that much better; Germany was not indifferent to the big demonstrations of May 1968, although the American fear of a real contamination by the French turbulence soon proved to be exaggerated.501 The trade unions had been against any kind of emergency legislation from the start, resulting in mass demonstrations already in the 1966s. 502 Soon, students and intellectuals spanning the entire spectrum of political movements joined the unions in their protest.503 Of course, this situation placed the Socialist Party in a dilemma, as an emergency law frame was necessary to obtain true independence from the Allied occupation. The party had been actively involved in the organisation of demonstrations against the emergency laws until 1965, or even after Willy Brandt had started negotiations with the conservatives about them. Eventually, the SPD found a compromise in severely limiting the scope of the emergency draft and by putting their foot down so that no emergency law would be accepted which would give the right to declare a State of Emergency to the Government. However, before accepting the final draft, the SPD put their final condition on the table, a Widerstandsrecht or a right of resistance504 was to be put in the Constitution, so as to balance the emergency provisions. Not only the public officials would protect the German democracy, but every German citizen would carry that same responsibility.505

500 Trotter Der Ausnahmezustand, p39-43. 501 Martin Klimke The Other Alliance: student protest in West Germany & the United States in the Global Sixties (Princeton University Press 2010) p159-160. 502 Trotter Der Ausnahmezustand, p44-47. 503 Timothy Scott Brown West Germany and the Global Sixties: The antiauthoritarian Revolt, 1962 – 1978 (Cambridge University Press 2013) p25. 504 Albeit called a “right” the wording implies a duty of resistance. 505 Karrin Hanshew Terror and Democracy in West Germany (Cambridge University Press 2012) p64-67.

81 Article 20 Grundgesetz reaffirms first that the Federal Republic of Germany is a democratic and social federal state, and continues in a Lockean fashion by stating that all state authority is derived from the people, and shall be exercised by them through elections, other votes and through specific legislative, executive and judicial bodies. Paragraph three follows the same path, by stipulating that the legislature shall be bound by the constitutional order, the executive and the judiciary on the other hand by law and justice. The right of resistance itself is only found in the fourth paragraph, which states that all Germans have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available. The German Criminal Code contains a corresponding right in Section 113, which criminalizes resisting or attacking public officials or soldiers charged with official enforcement duties, except when the official act is unlawful or when the offender mistakenly assumes its unlawfulness. Although only accepted in 1968, the idea of a right of resistance wasn’t new, as can for instance be seen from a judgment of the Bundesverfassungsgericht as early as 1956, where the court decided that this kind of a right could only be used in a conservative, preventive manner, as an emergency measure against a public wrong, to preserve or restore the legal system, when no other measure is available.506 In 2009, the Constitutional Court determined that, for a right of resistance to arise, the failure on the part of the competent public bodies of the state to protect and defend the Constitution, needs to be “obvious.”507 The right of resistance pursuant to Article 20.4 of the Basic Law is a subsidiary exceptional right, which from the outset may only be considered, as ultima ratio, if all legal remedies provided by the legal order provide so little prospect of an effective remedy that the exercise of resistance is the last resort for maintaining or reinstating the law […]. Accordingly, a violation of Article 20.4 of the Basic Law cannot be challenged in proceedings in which precisely a judicial remedy is being sought against the alleged abolition of the constitutional order. […] The subsidiary character of this right remains unaffected by its being designed as a right that is, also procedurally, equal to a fundamental right.508

506 BVerfGE 5, 85-393 KPD-Urteil – (Auszüge) Rn 10. “Wenn es angesichts des grundgesetzlichen Systems der gegenseitigen Hemmung und des Gleichgewichts staatlicher Gewalten und des wirksamen Rechtsschutzes gegen Verfassungsverstöße und -verfälschungen von Staatsorganen ein dem Grundgesetz immanentes Widerstandsrecht gegen einzelne Rechtswidrigkeiten gibt, so sind an seine Ausübung jedenfalls folgende Anforderungen zu stellen: Das Widerstandsrecht kann nur im konservierenden Sinne benutzt werden, d.h. als Notrecht zur Bewahrung oder Wiederherstellung der Rechtsordnung. Das mit dem Widerstand bekämpfte Unrecht muß offenkundig sein. Alle von der Rechtsordnung zur Verfügung gestellten Rechtsbehelfe müssen so wenig Aussicht auf wirksame Abhilfe bieten, daß die Ausübung des Widerstandes das letzte verbleibende Mittel zur Erhaltung oder Wiederherstellung des Rechts ist.“ As can be seen in the quote above, the Consitutional Court itself cites this in her later judgment, referenced here below. 507 “Da ein offensichtliches Versagen der Verfassungswahrung und -verteidigung durch die dazu berufenen Staatsorgane nicht festgestellt werden könne, liege keine Widerstandslage vor.” BVerfG, Urteil des Zweiten Senats vom 30. Juni 2009 - 2 BvE 2/08 – Rn 138. (official translation, emphasis mine) 508 Ibid, Rn 186.

82 Despite the fact that the discussion on potential constitutional changes persisted, 509 none of the emergency articles were amended, neither the “governmental emergency provisions” nor the right of resistance. 510 The Government never resorted to use the articles, not even during the RAF terrorism.511

509 Another culmination period was during the Traube Affaire in 1977, during which the socialist- liberal government justified the violation of Traube’s basic rights on the basis of an übergetzlichen Notstand; an emergency above the law. Trotter Der Ausnahmezustand , p52-57. 510 Deutscher Bundestag Datenhandbuch zur Geschichte des Deutschen Bundestages seit 1990 (29.09.2017) Kapitel 13.3 Geänderte Grundgesetzartikel . 511 Lemke Demokratie im Aushnahmezustand, p150-156, 164. RAF or Rote Armee Fraktion, the Red Army Faction.

83 The United Kingdom Strategies to overcome an emergency threatening the United Kingdom

Human Rights Act

The Act Due to the dualist system in the United Kingdom, Parliament is required to adopt legislation incorporating international treaty obligations before those clauses can be invoked before national courts. With acceding a treaty as an executive power, and legislating for its incorporation a parliamentary one, the judicial reverenced the separation of powers by showing reluctance to accept a claim based on international treaty obligations directly. Until 1998, the European Convention of Human Rights was not incorporated in legislation, making the United Kingdom one of only two signatories where the rights and freedoms of the Convention could not be relied upon directly, despite their status as first ratifier of the Convention. 512 This changed, partly to avoid national embarrassment resulting from a conviction before the European Court. 513 However, not all right of the Convention System are incorporated in the Act, as “the Convention rights” are defined to be Articles 2-12 and Article 14 of the Convention, and Articles 1-3 and 1 of respectively the First and Thirteenth Protocol.514 All primary and secondary legislation adopted post 09 November 1998 needs to be read and given effect in a way that is compatible with the Convention rights,515 but the same is true for legislation adopted before the Act had effect.516 As a result a Minister of the Crown in charge of a Bill must, before a Second Reading of the Bill, make a statement of compatibility, or if she/he is unable to do so, make a statement saying she/he nevertheless wishes the House to proceed with the Bill.517 The reading in compatibility does however not affect the validity, the continuing operation or enforcement of any incompatible primary legislation, neither of subordinate legislation, if the primary legislation prevents removal of the incompatibility. 518 This compatibility check applies in any proceedings in which a court 519 determines the compatibility of primary

512 Ian Leigh and Roger Masterman Making Rights Real – The Human Rights Act in its First Decade (Hart Publishing 2008) p5-6. [Leigh and Masterman Making Rights Real] 513 Ibid p202. 514 Human Rights Act 1998 s 1 (1). 515 Human Rights Act 1998 s 3 (1). 516 It is clear from both Parliamentary debates and case-law, that Section 3 is considered of utmost importance and was intended to have far-reaching effects. Dinah Rose and Claire Weir ‘Interpretation and Incompatibility: Striking the Balance’ in Jeffrey Jowell QC and Jonathan Cooper (eds) Delivering Rights – How the Human Rights Act is Working (Hart Publishing 2003) p37-39. [Rose and Weir ‘Interpretation and Incompatibility’] 517 Human Rights Act 1998 s 19. 518 Human Rights Act 1998 s 3 (2). 519 The courts meant are: the Supreme Court, the Judicial Committee of the Privy Council, the Court Martial Appeal Court, in Scotland: the High Court of Judiciary sitting otherwise than as a

84 legislation and can result in a declaration of incompatibility, which however does not affect the validity, continuing operation or enforcement, neither is it binding on the parties to the proceedings in which it is made.520 Domestic courts can therefore not quash primary legislation on the basis of their violation of Convention rights, contrary to subordinate or secondary legislation. 521 A declaration of incompatibility of primary legislation can however result in relief, remedy, an order that the Court finds appropriate, or damages, if the Court in casu has that power.522 Next to that, there is a certain political pressure created to at least consider amending the incompatible legislation, the refusal of which, according to Dinah Rose and Claire Weir, would lead to the creation of an image of inefficiency of these declarations with the courts.523 Alison L. Young however, writing six years later, and from the United States, see this possibility of refusal as the creation of an equally balanced dialogue between the democratically elected Parliament and the appointed judiciary.524 In compatibility proceedings, there is a Right of Crown to intervene.525 A Minister of the Crown526 has the power to take remedial action and amend legislation so as to remove the incompatibility, providing a so-called “fast track” mechanism to amend, if she/he finds there to be compelling reasons to do so.527 Discretion is therefore offered to the Minister and her/his inaction is not open for challenge under this Act.528 Not only newly adopted legislation, but also acts of public authority (any person certain of whose functions are of a public nature)

trial court or the Court of Session, in England and Wales or Northern Ireland: the High Court or the Court of Appeal, and the Court of Protection in any matter being dealt with by the President of the Family Division, the Chancellor of the High Court or a puisne judge of the High Court. Human Rights Act 1998 s 4 (5). 520 Human Rights Act 1998 s 4. 521 Gordon and Ward Judicial Review and the Human Rights Act p11, 15; they argue that this is clear by inference, although it is not explicitly acknowledged in the Act. The Department for Constitutional Affairs however, explicitly confirms this. Department for Constitutional Affairs A Guide to the Human Rights Act 1998: Third Edition (2006) p7-8. 522 Human Rights Act 1998 Section 8; Gordon and Ward Judicial Review and the Human Rights Act p11-12. 523 Rose and Weir ‘Interpretation and Incompatibility,’ p53. 524 Alison L. Young Parliamentary Sovereignty and the Human Rights act (Hart Publishing 2009) p113-114. The first dialogue she points to, is to be found in section 14, or the option to derogate, and is being held between the Secretary of State and Parliament. 525 Human Rights Act 1998 Section 5; Gordon and Ward Judicial Review and the Human Rights Act p12. 526 From Schedule 2, annexed to the Human Rights Act, it becomes clear that there is parliamentary scrutiny involved in this, albeit less in urgent cases. Human Rights Act 1998, Schedule 2. 527 Human Rights Act 1998 s 10. This is to be exercised by statutory instrument. Human Rights Act 1998 Section 20 subsection (1). Gordon and Ward Judicial Review and the Human Rights Act p12. This “fast track” can be activated by a declaration of incompatibility, a judgment of the European Court and by an incompatible subordinate legislation of which the Minister finds it necessary to amend the primary legislation it’s based on. 528 Gordon and Ward Judicial Review and the Human Rights Act p12-13.

85 and judicial acts need to be compatible with the Convention rights to be lawful.529 A separate part of the Human Rights Act is devoted to derogations and reservation. Derogations are to be declared by the Secretary of State in an order,530 creating an opportunity for political scrutiny.531 Designated derogation orders need to be approved within forty days after the order was made, by a Resolution of each House. After this approval, the order will cease to have effect at the end of a five-year period, but it can be extended for another five years. 532 The forty days are called “the period for consideration” and are not influenced by Parliament being dissolved or prorogued or both Houses being adjourned for more than four days. If the derogation order is amended, it is no longer the designated derogation, and therefore needs to be adopted by resolutions again.533

Its implications They were English, the lawyers co-drafting the foundations of the European Convention on Human Rights and it was the British government who made sure that the Nigerian constitution encompassed a fundamental rights clause, and that twenty-four countries of the Commonwealth have human rights’ protections in place.534 Yet it took until 1998 before the Human Rights Act was introduced in the United Kingdom. Of course, this late introduction did not at all indicate that human rights had no place in the English law system before 1998, on the contrary, England is considered the cradle of basic rights. However, in common law human rights are residuary, what is left un-legislated by the sovereign Parliament, or what the sovereign Parliament is not authorised to legislate on. Contrary to continental human rights, therefore, which can be seen as positive due to their anchoring in a constitution, common law human rights are “negative rights.”535 People are free to do what is not prohibited or restricted by law. Eric Barendt gives as an example freedom of speech, which is limited by “the common of libel, blasphemy and other rules, or by legislation, such as the Official Secrets Act 1989.” This causes jurisprudence regarding freedoms to determine the scope of the law,

529 Human Rights Act 1998 s 6, 9. Only a person who is the victim of an act or public authority may bring proceedings against the authority. Victim is to be defined conform the “victim test” of Article 34 of the Convention. Human Rights Act 1998 Section 7. This is more narrow than for instance the “sufficient interest” test used by the Supreme Court. Richard Gordon QC and Tim Ward Judicial Review and the Human Rights Act (Cavendish Publishing Limited 2000) p23-26. [Gordon and Ward Judicial Review and the Human Rights Act] 530 Human Rights Act 1998 s 14. 531 Leigh and Masterman Making Rights Real, p204. 532 Human Rights Act 1998 s 16. 533 Ibid, Human Rights Act 1998 s 14 (3)-(4). 534 Richard Clayton and Hugh Tomlinson (eds.) The Law of Human Rights (2nd ed. Vol. I OUP 2009) p47-48 (1.59). [Clayton & Tomlinson The Law of Human Rights] 535 Clayton & Tomlinson The Law of Human Rights p28 (1.21).

86 instead of the scope of the freedom.536 Human rights were therefore not “rights” in the sense that they were defined by law, but “liberties,” or “freedoms.”537 Albert Venn Dicey explained that the English constitution comprises of laws of the constitution and conventions of the constitution. The difference between the two is that the former is enforced by the Courts, where the latter is more situated in the moral realm; certainly not their significance. Constitutional laws can both be written or unwritten; statutes or common law, whereas constitutional conventions are time dependent and for that reason alone should be not studied by lawyers.538 The lack of written down – and in that way less fundamental – individual rights, he described as one of the proofs that the rule of law was “a special attribute of British institutions.” 539 The Constitution is characterised by the sovereignty of Parliament, which has the right to “make and unmake any law whatever.”540 According to Dicey, this is not limited either by morality, the royal prerogative or by preceding Acts of Parliament.541 As laws are defined as rules enforced by the Courts, Parliamentary sovereignty means that all acts making, amending or repealing laws will be applied by the Courts, contrary to any rule made by anybody else deviating from an Act of Parliament. Individual rights in the common law system were determined by the courts in particular cases, opposed to the general and fundamental principles that human rights sections in constitutional systems were composed of. Dicey found the notion absurd that continental – composed – constitutions could grow. This was a feature only possible for “judge-made constitutions.” 542 John Laws too, applauded the unwritten and consolidated nature of “Our Lady of the Common Law.” He explains that because of its foundations in particular cases, common law is exceptionally democratic.543 According to him, all rights were ultimately derived from the rule of law. In comparing Article 7 of the Belgian Constitution (the right to personal freedom) with the English Constitution, Dicey comes to the conclusion that where the “guarantee” in Belgium suggests the notion that personal liberty is a special privilege insured to Belgians by some power above the ordinary law of the land. This is an idea utterly alien to English modes of thought, since with us freedom of person is not a special privilege but the outcome of the ordinary law of the land enforced by the Courts. Here, in short, we may

536 Eric Barendt An introduction to constitutional law (OUP 1998) p46-47. 537 Colin R Munro Studies in Constitutional Law (2nd ed. Cromwell Press 1999) p334. 538 Dicey Law of the Constitution p cxl–cxlvi. 539 Albert Venn Dicey Law of the Constitution (LibertyClassics 1982) p115. [Dicey Law of the Constitution]. La ley est le plus haute inheritance, que le roy ad; car par la ley it même et toutes ses sujets sont rulés, et si la ley ne fuit, nul roi, et nul inheritance sera. Year Books, xix. Henry VI., cited Gneist, Englische Verwaltungsrecht, i. p. 455 as cited in Dicey Law of the Constitution p107. One way of clarifying the supremacy of law is by a reference to nulla poena sine lege, which Dicey juxtaposes to discretionary, arbitrary power of constraint. Dicey Law of the Constitution, p110. 540 Ibid p3. 541 Dicey Law of the Constitution p19-21. 542 Ibid p115-116. 543 John Laws The Common Law Constitution (CUP 2014) p7.

87 observe the application to a particular case of the general principle that with us individual rights are the basis, not the result, of the law of the constitution.544 The residual rights doctrine has certain consequences. First, for the authorities the same reasoning applies. Where law does not forbid an action, it can take place. For instance in Malone v. Metropolitan Police, it was ruled that because the tapping of a telephone could be done without physical intrusion, which is forbidden as it constitutes trespassing, it was allowed. 545 A positive law permitting tapping was not considered required. Two centuries before, the seizure of papers by the government was considered trespassing, as there was no law allowing entering someone’s residence.546 A trail between a private and a public person becomes a trial between equals; “the exercise of public power is not seen as a specific source of danger for individual freedom and therefore no justification is required.”547 Furthermore, when Parliament decided to legislate on the curtailment of human rights, nothing could stop it. The Human Rights Act indeed did not change this, but as discussed above, introducing statements need to be made with regard to the compatibility of the Bill and Courts can later in the Act’s life declare its incompatibility. Furthermore, Courts do not behave as activist as Parliament had feared them to do in the discussion on the Human Rights Bill. The judiciary is well aware it does not have a legislative power comparable to the Legislative power itself; they only extend existing legislation.548 As the Courts felt they couldn’t create new rights, a rule of construction was developed: only if legislation very explicitly said to abrogate a fundamental right, the courts would read it in that fashion. It would be assumed that Parliament did not infringe on individual freedoms. The common law does not generally speak in the language of constitutional rights, for the good reason that in the absence of any sovereign text […] there is on the face of it no hierarchy of rights such that any one of them is more entrenched by the law than any other. [...] do we have constitutional rights at all? In the unwritten legal order of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the State save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to

544 Dicey Law of the Constitution p124. 545 Malone v Metropolitan police (No.2), (1979), EWHC, 2, (Ch), [1979] Ch 344, p372, 546 Entick v Carrington [1765] EWHC KB J98 [1765] 95 ER 807, p813. 547 Marius Baum Der Schutz verfassungsmäßiger Rechte im englischen common law (Nomos 2004) p102. 548 Claytond & Tomlinson The Law of Human Rights, p29 (1.23). Clayton and Tomlinson refer for the later consequence to Malone v Metropolitan Police Commissioner [1979] EWHC 2 (Ch) [1979] Ch 344. On page 372 Sir Robert Megarry VC deliberates: “I am not unduly troubled by the absence of English authority: there has to be a first time for everything, and if the principles of English law, and not least analogies from the existing rules, together with the requirements of justice and common sense, pointed firmly to such a right existing, then I think the court should not be deterred from recognising the right. On the other hand, it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another.[…] Only Parliament can create such a right.”

88 abrogate. General words will not suffice. And any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it.549 The Department for Constitutional Affairs not only debunked the fears spoken off before the acceptance of the Human Rights Act, but also the frustrations created after the terrorist attacks of 9/11 by certain popular media and politicians. They issued a report, which stated that the Human Rights Act did not significantly altered the constitutional balance, neither impaired the Government’s ability to fight crime. It did however have an impact on the Government’s counter-terrorism legislation, but the “main difficulties in this area came from decisions of the European Court of Human Rights.” Under the section “Myths and Misperceptions” the report denounced the widespread misunderstanding of the Act by the public, the damaging myths about human rights and the deficiencies in training.550 The Home Office agreed that proactive and reactive approach should be taken to tackle the latter.551

The Civil Contingencies Act

What is an emergency in the United Kingdom and who has the power to declare one? In the United Kingdom, the Civil Contingencies Act of 2004 regulates the State of Emergency. When baroness Shami Chakrabarti was still the director of Liberty, she called the Act “the mother of all regulation-making powers,” stating it would be “the end of the world as we know it, if they were ever actually invoked.”552 According to the research paper of the House of Commons on the other hand, the Act is a return to the temporary legislation that emergencies could trigger at the start of the 20th century, namely legislation to provide for the consequences of war or industrial unrest, like strikes. Contrary to that, the paper states, terrorism (more recently) caused the development of standing legislation, “so that we now live in a state of “permanent emergency.”553” The Act is subdivided in three parts: Local Arrangements for Civil Protection, Emergency Powers and General. Both the first and the second part define what an emergency exactly entails for their subdivision. For Local Arrangements for Civil Protection, “emergency” means either an event or situation, which

549 R v. Lord Chancellor ex parte John Witham [1997] EWHC Admin 237 [1998] 2 WLR 849, §12- 13. Computer-aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited as accessed on www.bailii.org/ew/cases/EWHC/Admin/1997/237.html. 550 Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (July 2006) p1. 551 Department for Constitutional Affairs, The Human Rights Act: the DCA and Home Office Reviews (Government Response to the Joint Committee of Human Rights’ Thirty-Second Report of Session 2005-06 Cm 7011) p13. 552 Shami Chakrabarti ‘Repentance at Leisure: the Politics of Legislation and the Law of Unintended Consequences’ (2010) 12 Eur. J.L. Reform 5, p12. 553 Christopher Barclay Science and Environment House of Commons Library The Civil Contingencies Bill (Research Paper 04/07 15/01/2004) p35. [House of Commons The Civil Contingencies Bill]

89 threatens serious damage to human welfare or the environment of a place in the United Kingdom, war or terrorism which threatens serious damage to the security of the United Kingdom.554 One of the criticisms of the Act has been its vagueness, which for instance can be seen in the description of the emergency as requiring “seriousness,” which is not elaborated upon, neither clarified by context.555 In the context of this Act, “war” is stated to include armed conflict, where for the meaning of “terrorism” - so often disputed reference - is made to the Section of the Terrorism Act 2000.556 Here, “terrorism” is defined as a threat of action involving serious violence against a person or serious damage to property, the endangerment of a person’s life (other than the person committing the action), the creation of a serious risk to the health or safety of (a section of) the public or with the intention to seriously interfere with or disrupt an electronic system. The use of this threat has to be designed to influence the government or an international governmental organisation, or to intimate (a section of) the public. Finally, the use or threat of action is made for the purpose of advancing a political, religious, racial or ideological cause.557 For a situation or event to threaten human welfare, it needs to involve, cause or might cause on the one hand the loss of life, human illness or injury, homelessness, damage to property On the other hand the disruption of a supply of money, food, water or energy. or fuel, of a system of communication, of the facilities for transport or of services relating to health.558 Whereas for to threat damage to the environment, a situation or event must involve, cause or might cause contamination of land, water or air with biological, chemical or radio-active matter or disrupt or destruct plant or animal life.559 The power to decide upon the existence of an emergency is in the hands of a Minister of the Crown or the Scottish Ministers in case the event or situation occurs in Scotland, who can decide this by order.560 They can also by order amend the subsection determining a threat to damage to human welfare to include the disruption of a specified supply system, facility or service.561 The Minister of the Crown, respectively the Scottish Ministers, are also responsible for determining when these situations or events do no longer satisfy those conditions. When it comes to Northern Ireland, it is the Department of Justice of Northern Ireland who has the power to make orders with regard to emergencies in the meaning of threats to human welfare and the environment and to amend

554 Civil Contingencies Act s 1 (1) 555 Clive Walker & John Broderick The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (OUP 2006), p154 §5.02. [Walker and Broderick The CCA 2004] 556 Civil Contingencies Act s 18, 31 (1). 557 Terrorism Act 2000 Section 1 Subsection (1)-(2). 558 Civil Contingencies Act s 1 (2). 559 Ibid Subsection (3). 560 Ibid Subsection (4)(a). 561 Ibid Subsection (4)(b).

90 the definition of a threat to damage human welfare.562 The power to order an emergency in the sense of war or terrorism threatening serious damage to security is excluded and remains for the Minister of the Crown.563 Finally, Subsection (5) determines that an “emergency” can occur inside or outside the United Kingdom,564 making it possible for instance to declare a State of Emergency in the United Kingdom on the basis of a terrorist attack in the United States.565 Moving from what has been referred to as the “planning phase” to the “action phase”,566 an “emergency” as defined in Part Two – Emergency Powers, is very similar to the Local Arrangements for Civil Protection’s “emergency.” The main differences are first and for all their territorial applicability; where Part I is applicable for more local situations and events,567 Part II only relates to Parts568 or regions of the United Kingdom, or its entirety. This is not the case with war or terrorism threatening to seriously damage the United Kingdom, which affects the entire country. 569 This illustrates the difference between the two systems provided for in the Civil Contingencies Act, a system to protect the local civilian population on the one hand and full fledged provision relating to a State of Emergency on the other part. Second, according to subsection (4) it is the Secretary of State who can order to amend the conditions of a situation, which threatens serious damage to human welfare to involve events or situations causing disruption of a specified supply, system, facility or service.570 Finally, orders under Subsection (4) may consequentially amend Part Two, but a draft needs to be presented to each House of Parliament and approved by a resolution.571

What measures can be taken when a State of Emergency is declared, and who can decide they are necessary? When the conditions of an “emergency” are fulfilled, her Majesty may by Order in Council572 take emergency regulations.573 This is subjective;574 it is her Majesty, or one of her Ministers (most probably the Home Secretary) who needs to satisfy her or himself that the conditions of Section 21 are met and consequently that the situation requires this. Walker and Broderick point out that, although review

562 Ibid Subsection (4A)(a). 563 Ibid Subsection (4A)(b). 564 Ibid Subsection (5). 565 Volmer Menschenrechte im Staatsnotstand p273. 566 Walker and Broderick The CCA 2004, p153, §5.01. 567 Volmer Menschenrechte im Staatsnotstand p272. 568 A “Part” means England, Northern Ireland, Scotland or Wales, whereas “region” is dependent on the Regional Development Agencies Act of 1998 (c.45). Civil Contingencies Act s 31 (2)(a)-(b). 569 Civil Contingencies Act s 31 (1)(c). 570 Civil Contingencies Act s 31 (4). 571 Ibid Subsection (5). 572 A compromise between regulation-making power of a Minister and a royal proclamation. Walker and Broderick The CCA 2004, p154 §5.04. 573 Civil Contingencies Act s 20 (1). 574 House of Commons The Civil Contingencies Bill p32.

91 by the courts is not excluded, the subjectivity likely lowers demands with regard to the standard of proof.575 The Joint Committee on the Draft of the Civil Contingencies Bill suggests including “reasonableness” so as to provide a more rigorous standard and an explicit ex post facto review by the judicial.576 The justification of the Government on this point occurs as an all too easy one, as they argue that “reasonableness is an absolute expectation of the actions of Ministers” and that if in this section a Minister’s reasonableness is a requirement made explicit, this could give rise to a contrario reasoning’s in other cases.577 If an Order in Council cannot be arranged without serious delay, a senior Minister of the Crown may make emergency regulations as well.578 Senior Ministers is explained to be the Prime Minister, one of Her Majesty’s Principal Secretaries of State and the Commissioners of Her Majesty’s Treasury. 579 Seriousness on the other hand, is defined as “to cause serious damage” or “seriously obstruct the prevention, control or mitigation of serious damage.” 580 None of these regulations can be taken without consultation with the devolved administrations.581 Independent on who drafted the emergency regulation, they are to be made by statutory instrument and for the purposes of the Human Rights Act 1998, emergency regulations are treated as subordinate legislation and not as primary legislation.582 The Acts of Parliament are primary legislation, contrary to secondary or subordinate legislation, which is made by Government Ministers on the basis of delegated power. 583 Originally, the Civil Contingencies Bill stipulated that emergency regulations were to be treated as primary legislation, which, as explained above, cannot be quashed by the domestic courts, contrary to secondary legislation. The need for this was rejected in a report presented to the House of Lords584 and the Government later adapted the provision. The original provision was inspired by a fear that courts might rule on the validity of the regulations or grant an injunction against action being taken pursuant to them, before the legal issues were fully argued on. The Government had argued that if courts would be able to do so in the seven days before parliamentary approval

575 Walker and Broderick The CCA 2004, p154 §5.03. 576 Joint Committee on the Draft Civil Contingencies Bill, Draft Civil Contingencies Bill (Report and evidence HL Paper 184 HC 1074) §37. [Joint Committee on the Draft Civil Contingencies Bill] 577 Walker and Broderick The CCA 2004, p154 §5.03. 578 Civil Contingencies Act s 20 (2). 579 Civil Contingencies Act s 20 (3). 580 Civil Contingencies Act s 20 (4). This explicates that it is the (potential) damage, and not the emergency itself, that should be serious. House of Commons The Civil Contingencies Bill p31-32. 581 Civil Contingencies Act s 29. 582 Civil Contingencies Act s 30. This is the case whether or not the emergency regulations amend primary legislation. 583 ‘Legislation’ accessed 22 Juli 2018. Secondary legislation fills in details of primary legislation. ‘Secondary legislation’ accessed 22 July 2018. 584 Select Committee on the Constitution, Civil Contingencies Bill (8th Report of the Session 2003- 04 HL Paper 114) §3.

92 was required, it would make their capacity to react to an emergency ineffective. This indirect change to the Human Rights Act was firmly rejected, as the Act was considered most valuable in times of emergency.585 The emergency regulation in that way taken must specify the nature of the emergency in which respect they are being made, but also contain a declaration from their drafter that they are inter alia in due proportion to the aspect or effect of the emergency they are created to mitigate and are compatible with the rights contained in Article 2 to 12 and Article 14 of the European Convention on Human Rights.586 There is a so-called “triple lock” in place to safeguard the Act from abuse.587 The first is that these measures can only be taken if a serious threat of damage has occurred, is occurring or is about to occur.588 Although there is thus certain imminence in the Civil Contingencies Act, this is partly negated by the provision that an emergency does not have to occur inside the United Kingdom in order to make the activation of the Act possible.589 When, in A. and Others v. the United Kingdom, the lack of “imminence or actuality” of the emergency was argued by the Appellants, this therefore not only went against the jurisprudence of the European Court, but also against this Act. Combined forming the second leg, two other conditions mentioned are necessity and urgency.590 This necessity is not only with regard to what the exigencies of the emergency requires, but also with regard to normal legislation. If recourse to normal legislation suffices to resolve the situation, no emergency regulations can be taken. This is not only the case if existing legislation would risk a serious delay or is insufficiently effective, but also if ascertaining whether existing legislation can be relied upon is not possible without risking a serious delay.591 The third leg is found in Section 22, requiring proportionality. The spectre of possible emergency regulations appears extremely broad; any provision, which the person making the regulation is satisfied to be appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency.592 Certain purposes for these provisions are also mentioned, 593 but more importantly, the exact powers usurped by the executive are mentioned. Section 22 subsection (3) states that any provision that could (in a normal situation) be

585 Joint Committee on the Draft Civil Contingencies Bill, §§144,148. 586 Civil Contingencies Act s 20 (5)(a)-(b). This required inherent justification, as it were, is applauded by Walker and Broderick as resulting in more legal and democratic accountability. Walker and Broderick The CCA 2004, p156 §5.10. 587 The Joint Committee on the Draft Civil Contingencies Bill had warned the Government that in the original draft of the Bill, the conditions were not explicit enough, to which the Government responded with Section 21. Joint Committee on the Draft Civil Contingencies Bill §32-42. House of Commons The Civil Contingencies Bill p29-33. 588 Civil Contingencies Act s 21 (2). 589 Civil Contingencies Act s 19 (6), but also Civil Contingencies Act s 1 (5). 590 Civil Contingencies Act s 21 (3)-(4). 591 Civil Contingencies Act s 21 (5). 592 Civil Contingencies Act s 22 (1) 593 Ibid subsection (2)

93 made by an Act of Parliament or by the exercise of the Royal Prerogative can be made provision for by an emergency regulation.594 Some of these are mentioned in particular, for instance an emergency regulation can provide for the requisition, confiscation or destruction of property, prohibit or require movement from or to a specified place, the establishment of a tribunal or the transfer of jurisdiction to another tribunal and prohibit certain activities and assemblies.595 In connection with these regulation or the actions taken under them, Parliament, the High Court and the Court of Session are able to conduct proceedings.596 This does not mean no Parliamentary scrutiny is provided for. After a regulation is made, as soon as reasonable practicable, they have to be laid before Parliament, which can support or amend 597 the measures by passing a resolution, but can also decide the measures shall cease to have effect. If the Parliament does not approve of the regulations by passing a resolution, they cease to have effect seven days after their presentation to Parliament. Parliament has seven days to pass either kind of resolution, if they fail to do so the measures cease to have effect automatically. This scrutiny does not affect the making of new regulations, neither affect anything done by virtue of the regulations before they lapse, cease to have effect or are amended by Parliament.598 To avoid a practical use of e.g. summer recess, Section 28 stipulates that when emergency regulations would be made during a time when Parliament stands prorogued for longer than six days after the regulation is made, Her Majesty will require parliament to meet on a s specified day in that six-day period.599 According to the report presented to the House of Commons, this is to avoid the side-lining of the democratic process, “as happened, for example at the end of the Weimar Republic.”600 The role of the Crown is vital. Her Majesty is not only decisive when it comes to convening Parliament and the appointments of Ministers and Secretaries, but also because she determinably affects the making of Orders in Council. From the

594 Ibid (3). 595 Ibid (3)(b)-(h). Walker and Broderick remark that, just as in the Emergency Powers Act 1920, no provision is made for power of detention without trial. They argue that was not necessary, as it was already provided for by the Anti-Terrorism, Crime and Security act 2001 and its partly replacing Prevention of Terrorism Act 2005. Walker and Broderick The CCA 2004, p167-168, §5.26. 596 Civil Contingencies Act s 22(5). 597 This is exceptional, as statutory instruments normally can not be amended when passing through Parliament. Walker and Broderick The CCA 2004, p179 §5.50. The Joint Committee lobbied: In the limited time available for parliamentary scrutiny of such regulations, it is quite possible that defects will emerge – or indeed that the Government will identify a need for further change. The alternative of withdrawal of the original regulation and the making of another might take longer. There is therefore a case for regulations made under Part 2 of the Bill to be subject to amendment in Parliament in the same way as applied to those under the Emergency Powers Act 1920. Joint Committee on the Draft Civil Contingencies Bill §198. 598 Civil Contingencies Act s 27. 599 Civil Contingencies Act s 28. 600 House of Commons The Civil Contingencies Bill p37.

94 latter, derogations in the emergency regulation making process are only allowed in order to objectively prevent serious delay.601 Furthermore, the range of possibilities for emergency regulations might be wide, but it is not limitless; they have to be proportionate to the emergency and appropriate in preventing, controlling or mitigating that emergency.602 Again, this gives rise to criticism that “proportionality” is not only not clarified, but also that it is only a requirement in declaring a regulation and when a measure is issued, but not when the regulation are applied.603 A formal limitation is also added, namely the Parts or regions affected must be specified in the emergency regulation.604 In this, the Act clearly diverts from the Emergency Powers Act, which had required regulations to apply to the whole of Great Britain or Northern Ireland specifically.605 Besides that, the kind of offences that can be created are restricted and the regulations cannot require a person to provide military service or prohibit participation in a strike or other industrial action.606 This limits the type of new tribunals that could be created on the basis of Section 22(3)(n) to the exclusion of new criminal tribunals, unless the entire criminal court system would collapse during the coarse of the emergency.607 The final restriction is also the most notable; emergency regulation may not amend the Humans Right Act 1998, nor the restricting part of the Civil Contingencies Act itself.608 All measures taken in the context of this Act only have effect for maximum thirty days, which does not affect anything done by their virtue before they lapse.609 Finally, contrary to Part I,610 Part II does not contain any requirement to publish the resolutions made in its application. The Government did concede to submit a confidential copy of the existing drafts to the Joint Committee, but Walker and Broderick urge the Government to at least take steps in a promulgating direction, if public scrutiny is considered too radical. If anything, to overcome practical problems and the absence of debate when the measures need be applied. In response to this criticism, it was argued that emergencies are fluid and that the regulations bound to prevent and contain them, are prone to changes all the same. What is also found controversial is what has been referred to as “the deliberate policy of overkill;” when an emergency occurs, the entire collection of regulations is used in full. Walker and Broderick ponder whether this should be the same for regulations made on the new act, because contrary to

601 Civil Contingencies Act s 20; Walker and Broderick The CCA 2004, p155-156, §§5.06-5.09. 602 Civil Contingencies Act s 23 (1). 603 Walker and Broderick The CCA 2004, p154 §5.02. 604 Civil Contingencies Act s 23 (2). 605 Walker and Broderick The CCA 2004, p169 §5.29. They add that an emergency regulation can still apply to the entirety of the nation, if all Parts are listed. 606 Civil Contingencies Act s 23 (3)-(4). 607 Walker and Broderick The CCA 2004, p177, §5.46. 608 Civil Contingencies Act s 23 (5). 609 Civil Contingencies Act s 26. 610 Civil Contingencies Act s 17.

95 the 1920 Act, which was confined to industrial emergencies, the 2004 Act applies to a whole spectrum of situations. That spectrum is structured by the Triple Lock and more specifically by the criterion of necessity, which demands multiple sets of regulations, linked to the different possible emergencies. “Part II of the Civil Contingencies Act is the most powerful and extensive peacetime legislation ever enacted.”611

Martial law Martial law is thought to be not a complete absence of law, nor a special kind of law – a scheme of legal regulation – but, rather, an absence of law prescribed by law under the concept of necessity – a legal black hole, but one created, perhaps even in some sense bounded, by law.612 It is precisely this statement that John M. Collins fiercely contradicts. He argues that this conceptualization emerged from a perceived schism in the nineteenth century between martial and military law.613 Nineteenth century writers on martial law differentiate between military law, which they define as the laws governing the military, and martial law; some sort of despotic prerogative, dating back to feudal times.614 Sir Wiliam Blackstone equated Martial law with arbitrariness. Foundations for this theory were found in the past,615 in a very similar fashion as historians of the nineteenth century believing it to be it their duty to justify upcoming nationalism with a discourse going back as far as historiographically possible. Tatlow Jackson for instance, writing in 1862, quoted Sir Thomas Smith in 1642: In war-time and in the field, the Prince hath also an absolute power, so that his word is law. He may put to death, or to other bodily punishment, whom he shall think so to deserve, without process of law, or form of judgment.616 Professor Collins lays this anachronism painfully bare, but does not give any explanation. I would like to suggest the approach cultivated by Edward Hallett Carr with regard to reading history: “Study the historian before you begin to study the facts.”617 As for the nineteenth century writers in casu, their desire to differentiate the laws of the military and martial law can possibly be explained by the development of humanitarian law in the course of the late eighteenth and it subsequent codification in the nineteenth century, 618 and their personal

611 Walker and Broderick The CCA 2004, p183-186, 188 §§5.63-5.70, 5.76. 612 David Dyzenhaus ‘The Puzzle of Martial Law’ [2009] University Toronto Law Journal 1, p1. 613 John M. Collins Martial Law and English Laws c. 1500-c.1700 (Cambridge University Press 2016) p4-6. [Collins Martial Law and the English Laws]He adds that nineteenth century writers claimed that no such thing as martial law was known to England. This these is also defined by Albert Venn Dicey and gave rise to professor Dyzenhaus article cited hereabove. 614 Tatlow Jackson Martial Law: What Is It; And Who Can Declare It (Philadelphia John Campbell 1862), p13. [Jackson Marital Law] 615 William Blackstone Commentaries on the Laws of England in Four Books (eds. George Sharswood Philadelphia J. B. Lippinscot Company 1893) p412-413. 616 Thomas Smith Commonwealth of England (1642) book II. Chapter 3, as cited in Jackson Marital Law p3. 617 Edward Hallett Carr What is History? (ed. R.W. Davies Penguin Books 1987) p23. 618 Michael Bothe The Handbook of International Humanitarian Law (3rd edition, ed. Dieter Fleck OUP 2013) p20.

96 backgrounds. For most of them, this meant the military and it is therefore not unthinkable that they wished to differentiate in order not to be associated with the horrors that had occurred under martial law in both the past and the present, with as most notorious example Edward John Eyre who executed and tortured hundreds under the banner of martial law in Jamaica in 1865.619 John M. Collins however proves not only the connection with military law, but also that martial law is not the empty space professor Dyzenhaus and Giorgio Agamben claim it to be. Martial law, Collins proves, was a law of the King, like there were so many others. In many aspects it originated as just another jurisdiction of the King, used at the start to prosecute soldiers or “those who had risen in commotions against the [Crown’s] policies,” not through a trial by jury, but by a judge.620

God save the Queen – The United Kingdom under threat Few would doubt that it is for the executive, with all the resources at its disposal, to judge whether the consequences of such events amount to an emergency […]. But imminent emergencies arouse fear and, as has often been said, fear is democracy’s worst enemy. 621 For the context of public emergencies and their subsequent derogations in the United Kingdom, I refer back to the chapter on the European Convention on Human Rights, where quite some derogation cases involve the United Kingdom. The case I would like to discuss is A. and Others v. Secretary of State for the Home Department, which was later also brought before the European Court of Human Rights. The case is interesting, not only because it discusses the mandate of the courts in the context of the Human Rights Act [the 1998 Act], but also because the Lords and the Baroness comprising the Appellate Committee voiced their opinion on whether or not the judiciary should have the competence to judge on the existence of a public emergency or whether that was an evaluation strictly contained to the realm of facts and politics. Because this case so aptly demonstrates all sides of these discussion, I will discuss it here at length. In December 2004 nine Appellants challenged a decision of the Court of Appeal. The Court of Appeal had mainly dismissed their submissions, which comprised an appeal against the decision of the Special Immigration Appeals Commission, the latter having exclusive jurisdiction in derogation matters.622 They were certified under section 21 of the Anti-terrorism, Crime and Security Act 2001 as “suspected international terrorist” and detained accordingly under section 23 of that same Act.623 Such certification could only be issued when the Secretary of State reasonably believed that the person’s presence in the United

619 Collins Martial Law and the English Laws, p5. 620 Ibid, p1-2, 51. 621 A. and Others v Secretary of State for the Home Department, X and Another v Secretary of State for the Home Department [2004] UKHL 56, [2004] 2 AC 68 §115. [A. and Others UKHL 56] 622 Anti-terrorism, Crime and Security Act 2001 s 30. 623 A. and Others UKHL 56§1-2.

97 Kingdom was a risk to national security and suspected that the person was a terrorist.624 As suspicion was already enough, Lord Hoffmann wrote Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person’s house and take him away to be detained indefinitely without trial.625 Baroness Hale of Richmond phrased the danger of “suspicion” as follows: Suspicion is an even lower hurdle than belief: belief involves thinking that something is true; suspicion involves thinking that something may be true. All of them were foreign nationals, none which were the subject of criminal charges or had a criminal trial in prospect and finally, all of them challenged the lawfulness of their detention. They disputed the conformity of both the statutory provisions concerning their detention and their detention an sich with their rights under the “European Convention on Human Rights given domestic effect by the Human Rights act 1998” and claimed the United Kingdom was not legally entitled to derogate from their obligations under the Convention. Even if the United Kingdom would have been entitled to derogate, that derogation should be judged inconsistent with the Convention and therefore ineffectual to justify the detention.626 The derogation in casu was proclaimed by the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644). Together with Part 4 of the Anti-terrorism, Crime and Security Act 2001, this formed the Government’s reaction to the 9/11 terrorist attacks in the United States.627 This Part 4 is the subject of the derogation, as it contains the power to indefinitely detain purely on the basis of reasonable suspicion, without charge or trial.628 The Appellants had argued that, because there was no public emergency threatening the life of the nation as required by Article 15 of the Convention, derogation was not permitted.629 Their reasoning was threefold: the emergency was neither actual nor imminent, it was not of a temporary nature and no other State had derogated. The Attorney General contested this and stated that an organization like Al-Qaeda would not issue a (another) warning before striking and that artificial, prior defined temporal limits would be an imposition in the context of an emergency the United Kingdom was facing at that time, just like it had been

624 Anti-terrorism, Crime and Security Act 2001 s 21 (1). “Terrorist” is defined as a person who is or has been concerned in the commission, preparation or instigation of acts of international terrorism, is a member of or belongs to an international terrorist group, or has links with an international terrorist group. Section 21 subsection 2 Act 2001. 625 A. and Others UKHL §87. 626 A. and Others UKHL 56 §3. 627 Ibid §6-7. 628 A. and Others UKHL §12. Subsection 23 of the Act 2001: A suspected international terrorist may be detained despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by a point of law which wholly or partly relates to an international agreement, or a practical consideration. 629 A. and Others UKHL 56 §16.

98 inefficient to impose an end date for the derogation in Northern Ireland in 1988.630 Finally, he submitted that the judgment on this question was pre-eminently one within the discretionary area of judgment reserved to the Secretary of State and his colleagues, exercising their judgment with the benefit of official advice, and to Parliament.631 Lord Bingham of Cornhill agreed with him. In an analogy with Lawless v. Ireland, Lord Bingham of Cornhill considered that the Government a fortiori “could scarcely be faulted for reaching that conclusion [of a public emergency].632 The other Lords and the baroness agreed with the existence of a public emergency threatening the life of the nation, except for Lord Hoffman, who supported a differentiation between the nation and the lives of its people. He claimed to be “willing to accept that credible evidence of such a plot [by Al Qaeda] exist[ed],” but did not consider the peril great enough to endanger the life of a nation like the United Kingdom: Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.633 Baroness Hale of Richmond confirmed this: Protecting the life of the nation is one of the first tasks of a Government in a world of nation states. That does not mean that the courts could never intervene. Unwarranted declarations of emergency are a familiar tool of tyranny. If a Government were to declare a public emergency where patently there was no such thing, it would be the duty of the court to say so.634 Although not completely agreeing with the amount of deference requested by the Attorney General, Lord Bingham of Cornhill stated that contrary to the judicial, the Government and Legislative had been called upon to exercise a pre- eminently political judgment, which involved a factual prediction of people’s behaviour. The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. […] The present question seems to me to be very much at the political end of the spectrum […].635 Not all Lords agreed with this. Some considered that , although the questions regarding the existence of an emergency and its capacity to threaten the life of the nation were pre-eminently for the executive and Parliament, this did not mean that the judiciary was precluded from scrutinizing not only the proportionality of the actions taken, but also to “examine the nature of the

630 A. and Others UKHL 56 §25. 631 Ibid. 632 A. and Others UKHL §28. 633 A. and Others UKHL §91-95. 634 A. and Others UKHL §226. 635 A. and Others UKHL §29.

99 situation that has been identified by government as constituting the emergency.”636 One cannot say what the exigencies of the situation require without having clearly in mind what it is that constitutes the emergency.637 Lord Walker of Gestingthorpe, disagreeing with the majority, argued quite oppositely that because the response to an emergency needs to be proportionate, it was not necessary to set a very high threshold with regard to the existence of a threat to the life of the nation. He claimed that this was the reason the ECtHR had not applied a high threshold either.638 The Appellants had submitted alternatively that the 2001 Act was not designed to meet the objective of protecting the British people, a goal that could have been achieved by other, less intrusive measures. They argued that if there was indeed a threat to the United Kingdom, it did not only originate from foreign nationals, whereas the applicable sections of the 2001 Act did solely target non- nationals.639 If the threat coming from nationals could be contained without infringing on their right to personal liberty, then why could those same measures not be used towards non-nationals?640 Lord Bingham of Cornhill agreed by writing that although the threat originating with nationals might be quantitatively smaller, there would not be a qualitative difference. Furthermore, if the non-nationals left the United Kingdom, they could continue pursuing their terrorist plans (from) abroad. Next to “exporting terrorism,”641 allowing their departure therefore created642 doubts with regard to the accusations of their capacity to inflict serious injury. The Attorney General however, directed his argumentation mainly towards the final steps of the Appellants, namely that the right to personal liberty was a fundamental right, any restriction requiring close scrutiny by the national judicial, which could not justify the derogation nor the relevant sections of the 2001 Act.643 He submitted that as it was for Parliament and the executive to assess the threat facing the nation, so it was for those bodies and not the courts to judge the response necessary to protect the security of the public. These were matters of a political character calling for an exercise of political and not judicial judgment. Just as the European Court allowed a generous margin of appreciation to member states, recognising that they were better placed to understand and address local problems, so should national courts recognise, for the same reason, that matters of the kind in issue here fall within the discretionary area of judgment properly belonging to the

636 A. and Others UKHL §116. 637 A. and Others UKHL §116. 638 A. and Others UKHL §208. 639 As they can be subjected to deportation. 640 A. and Others UKHL §30-31. 641 The expression comes from the answer of the Secretary of State to a Newton Committee’s criticism and is cited from the discussion paper Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society (Cm 6147, February 2004) in §43 of the judgment. 642 A. and Others UKHL §33. 643 A. and Others UKHL §§30-31.

100 democratic organs of the state. It was not for the courts to usurp authority properly belonging elsewhere.644 Lord Bingham of Cornhill strongly disagreed. “On proportionality grounds,” he wrote, “the courts are not effectively precluded by any doctrine of deference from scrutinising.”645 Lord Hope of Craighead went even further and wrote what would later be repeated in the ECtHR’s judgment: These references set too low a standard for the scrutiny that the national court must carry out in order to test the proposition that the derogation is strictly necessary. When the European Court talks about affording a margin of appreciation to the assessment of the British Government it assumes that its assessment will at the national level receive closer scrutiny.646 Although judges are not elected and do not answer to Parliament, this does not preclude a democratic function, on the contrary. This was a fortiori the case with regard to the Human Rights Act, where Parliament required courts to give effect to Convention rights and the relevant Strasbourg case law, and conferred a right of appeal on derogation issues.647 Lord Hope of Craighead saw the Human Rights Act as imposing another duty to the courts, namely to protect and safeguard the rights of the individual.648 Lord Nicholls of Birkenhead was ready to give more deference to the elected Government, but he too emphasized the change in role the Parliament had bestowed upon the courts with the Human Rights Act. In fulfilling this role, he explained, the courts must give some latitude to Parliament and Government, but the extent of that latitude would vary according to the subject. The only reason for the courts to intervene, he wrote, would be when it is apparent that insufficient weight was given to “the human rights factor.” As here one of the most fundamental of human rights is involved in a way that it is completely negated, he considered the conclusion that Parliament gave insufficient weight to the right to individual liberty inescapable. 649 Indefinite detention for reason of their nationality is exactly one of the evils Article 5 protects refugees from, who would otherwise be expelled.650 Lord Scott of Foscote and Lord Rodger of Earlsferry emphasized that the Convention was only a part of domestic law to the extent that it was incorporated in the Human Rights Act. The latter includes a right of derogation in its section 14, but excludes Article 15 ECHR. As the Attorney General accepted that the Order could only be upheld if it could be justified as an exercise of the power to derogate provide in Article 15 of the Convention, Lord Scott agreed to consider the case on this footing.651 In doing so, he wrote: It is certainly true that the judiciary must in general defer to the executive’s assessment of what constitutes a threat to national security or to “the life of the

644 A. and Others UKHL §37. 645 A. and Others UKHL §42. 646 A. and Others UKHL §131. 647 A. and Others UKHL §42. 648 A. and Others UKHL §99. 649 A. and Others UKHL §79-81. 650 A. and Others UKHL §105. 651 A. and Others UKHL §144-151.

101 nation”. But judicial memories are no shorter than those of the public and the public have not forgotten the faulty intelligence assessments on the basis of which United Kingdom forces were sent to take part, and are still taking part, in the hostilities in Iraq.652 Lord Rodger of Earlsferry on the other hand looked at the matter from a more teleological approach and referred to section 30 subsections 2 and 5 of the 2001 Act, which provided for the questioning of a derogation matter. He did not elaborate on the conditions listed in Article 15 ECHR not being present in Article 14 of the 1998 Act, but only mentioned that the exclusion of Article 15 ECHR from the scope of the 1998 Act did not mean that the judiciary could not challenge the derogation.653 The Government had chosen “an immigration measure to address a security problem,” thereby making a “serious error” in the opinion of Lord Hope of Craighead. The Governments choice led Lord Bingham of Cornhill to find the conclusion that both the Order and section 23 of the 2001 Act were disproportionate to be “irresistible.”654 In it exactly to ensure the proportionality of the actions taken on behalf of society as a whole which affect the rights and freedom of the individual, that the courts may legitimately intervene.655 The European Court does not approach questions of proportionality as questions of pure fact […] Nor should domestic courts do so.656 As section 23 was discriminatory, the Appellants had pleaded, it could not be strictly required and furthermore, the derogation of the United Kingdom was limited to Article 5 of the Convention and did not mention Article 14, prohibiting discrimination. Read in jucto with Article 1, non-nationals are not precluded from claiming the protection of their Convention rights.657 Right to liberty is a right, not a privilege, as Lord Hope of Craighead summarised.658 Lord Rodger of Earlsferry on the other hand referred to the traditional role of the British courts, which he defined as “watching over the liberty of everyone within their jurisdiction, regardless of nationality.” Performing this role meant that the greater the interference with liberty of the foreign suspects, the greater the care with which the examination should be evaluated.659 This resulted in a discussion about which group the Appellants should be compared with, non-nationals representing a threat who could be removed, as the Attorney General suggested, or nationals representing a threat, as the Appellants requested. The Lords and

652 A. and Others UKHL §154. 653 A. and Others UKHL §164. 654 A. and Others UKHL §43, 103. 655 A. and Others UKHL §108. 656 A. and Others UKHL §44. 657 A. and Others UKHL §45-48. 658 A. and Others UKHL §101. 659 A. and Others UKHL §178. Baroness Hale of Richmond agreed: It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely. Only the courts can do that and, except as a preliminary step before trial, only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of person. Yet that is what the 2001 Act allows. A. and Others UKHL §222.223.

102 Baroness would agree with the control group brought forward by the Appellants in evaluating the discrimination argument and judge with a majority that they had been discriminated against.660 In principle, the nationality of the suspects would be irrelevant to the threat that they posed. If a man is holding a gun at your head, it makes no difference whether he has a British or a foreign passport in his pocket.661 Although the latter discussion is interesting in multiple aspects, I will not go deeper into it if the question regarding the derogation and the application of the Human Rights Act does not warrant it. This is for instance the case with regard to the argument pursued by the Appellants that a discriminatory derogation is not compatible with the condition of Article 15 of the Convention, requiring compliance with the international obligations of the derogating State.662 “States are not permitted to discriminate against an unpopular minority for the good of the majority.”663 Lord Nicholls of Birkenhead articulated it this way: It is difficult to see how the extreme circumstances, which alone would justify such detention, can exist when lesser protective steps apparently suffice in the case of British citizens suspected of being international terrorists.664 If other measures exist, which sufficed to neutralize the threat from nationals and which did not interfere with their rights and freedoms, why would the exigencies of the situation than strictly require an interference with the rights and freedoms of non-nationals?665 If the threat is as potent as the Secretary of State suggests, it is absurd to confine the measures intended to deal with it so that they do not apply to British nationals, however strong the suspicion and however grave the damage it is feared they may cause.666 Unless the Attorney General shows this differentiation to be strictly required, Lord Rodger of Earlsferry wrote, “the derogation order is not to be regarded as valid and must be quashed.”667 The argument of the Attorney General had been that non-nationals, contrary to nationals, were detained in a prison with three walls, as they had the option of leaving the country, whereas indefinite detention without trial for those in a prison with four walls would constitute a “draconian” measure. As the Appellants could not return to their home country due to being stateless or the fear to be tortured, their prison de facto had four walls as well, causing their indefinite detention to be as draconian, Lord Nicholls of Birkenhead

660 A. and Others UKHL §51-52. 661 A. and Others UKHL §161. 662 A. and Others UKHL §58. 663 A. and Others UKHL §136. In the words of Baroness Hale of Richmond: Democracy values each person equally. In most respects, this means that the will of the majority must prevail. But valuing each person equally also means that the will of the majority cannot prevail if it is inconsistent with the equal rights of minorities. A. and Others UKHL §237. 664 A. and Others UKHL §76. 665 A. and Others UKHL §§124-126, 231. 666 A. and Others UKHL §133. 667 A. and Others UKHL §168.

103 concluded.668 The Attorney General, supported by Lord Walker of Gestingthorpe, disagreed, as non-nationals posing a threat to the country had “no right to be [in the United Kingdom] with a view to protecting the rights of millions of people in the United Kingdom who were at risk of attack by international terrorists.”669 They had no right to remain, only a right not to be removed.670 Lord Rodger of Earlsferry argued that there had been confusion with regard to the detrimental factor. This was not the Appellants’ , or more general the suspects’, immigration status, but the threat that they are suspected of posing to the life of the nation, which is why they were only detained after 9/11, although the desire to deport them had existed before. With an eight to nine majority, the Derogation Order and Part 4 of the 2001 Act were quashed. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.671

668 A. and Others UKHL §83-84. 669 A. and Others UKHL §102. 670 A. and Others UKHL §170. 671 A. and Others UKHL §97.

104 Conclusion When comparing the different national strategies to neutralise a threat to the life of the nation, two things are impossible to ignore. The first is the amount of power the French president can decide to acquire and the second is the influence of the World Wars on Germany’s emergency constitution. Where Article 115a Grundgesetz of the German Constitution requires the Bundestag to ask consent of the Bundesrat to declare a state of defence,672 Article 16 French Constitution gives the president the competence not only to take all measures required by the situation, but also to decide for her/himself that the two conditions are fulfilled to use des pouvoirs exceptionnelles. In this way, no “external source of power” as Justine Guichard calls it, is necessary to confer these powers upon the president.673 The état d’urgence regulated by the Act of 1955 is on the other hand declared by degree by the Council of Ministers, 674 whereas in the United Kingdom, it is the Secretary of State who decides to derogate from the ECHR rights that are incorporated in domestic law.675 Article 16 French Constitution is also the only provision regulating exceptional situations that does not provide for any parliamentary or judicial supervision.676 Furthermore, while the State of Defense, the British derogation677 and les pouvoirs exceptionnelles are all three regulated in the Constitution, l’état d’urgence is not. The Conseil constitutionnel merely decided that the French Constitution did not exclude the possibility of creating a “régime d'état d'urgence”.678 Another resemblance is that all four strategies give to some degree more power to the executive. Where this is unbridled for the French President in Article 16 French Constitution, the Act of 1955 favours the government in general, the Minister for the Interior or the préfets. The lack of constitutional value of the Act of 1955 means that it can be amended without the constraints usually connected to constitutional reform. Such changes were not few as discussed above. The Civil Contingencies Act gives the power to make emergency regulations to Her Majesty by Order in Council or in certain situations to a senior Minister of the Crown.679 Two lists are included in the Act; a very broad one with

672 Article 115a Grundgesetz. 673 Justine Guichard Regime Transition and the Judicial Politics of Enmity: Democratic Inclusion and the Exclusion in South Korean Constitutional Justice (Palgraye Macmillan 2016) p32. 674 Act 1955 Art. 2. 675 Human Rights Act 1998 s 14. 676 Where Carl J. Friedrich in 1941 wrote that the only theological restraint for the State of Emergency was “the people’s own determination to see them so used,” this is completely undermined by Mr. Pompidou during the unbinding consultation of the Conseil Constitutionnel. Carl Joachim Friedrich Constitutional Government and Democracy: theory and practice in Europe and America (Blaisdell Publishing Company 1968) p570. 677 Lord Justice Laws ‘Judicial Review and the Meaning of Law’ in Christopher Forsyth (ed.) Judicial Review and the Constitution (Hart Publishing 2000) 173, p189-190. 678 C.E. 19 février 2016, déc. 2016-536 QPC, cons. 5. 679 Human Rights Act 1998 s 20 (1-2).

105 subjects the emergency regulations can regulate680 and one with provisions excluded from their scope.681 Although Matthias Lemke calls the increase in competence of the German executive “signifikant,” the powers for the German executive appear a lot more limited.682 Theirs are restricted to the not insignificant power of command over the armed forces for the Federal Chancellor, the instruction from the Federal Government to States to adopt certain legislation and the deployment of the Federal Border Police throughout the entire territory.683 Furthermore, electoral terms that are due to expire during a State of Defence are moved until after its termination.684 The interference with fundamental rights is severely limited, only the interference with the right to privacy of correspondence, post and telecommunications, and the freedom of movement can be subjected to restrictions when “necessary to avert an imminent danger to the existence or the free democratic basic order of the Federation or of a State” or in the other circumstances listed in the respective Articles.685 The German experience with a constitutional dictatorship like the current French model has made them wary of such culminations of power. As professor Matthias Jestaedt points out, it is ironic that precisely Germany, the country of Carl Schmitt, would adopt an emergency constitution, which in every way aims to preserve the rule of law and to exclude recourse to the exception.686 Professor Kim Lane Scheppele sees the weakness of republican governments in the interwar period as part of an explanation for the appeal of a strong executive. This appeal was facilitated by the incomplete transition from monarchy to republic. 687 As discussed above, the interbellum saw many governments take power in both France and Germany. Their fragility seems however limited to the duration of their reign, as a common parliamentary policy existed in conferring legislative power to the government. The difference between France and Germany in this sense seems to be that where Germany already had the constitutional provisions at the disposal of the executive, France had to wait for their charismatic leader to take the matter in his own hands until after the war. What is striking is that the same provisions that were considered to be the downfall of German democracy were not only the provisions required for the Allied Powers to return sovereignty to the German people, but were also considered the salvation of France.

680 Human Rights Act 1998 s 22. 681 Human Rights Act 1998 s 23 (3-5). 682 Lemke Demokratie im Aushnahmezustand, p131. 683 Articles 115b, 115c and 115f Grundgesetz. 684 Article 115h Grundgesetz. 685 Articles 10 and 11 Grundgesetz. Article 12a Grundgesetz also provides for a restriction in the occupational freedom in case of a State of Defence. 686 Matthias Jestaedt ‘The German Reticence Vis-à-Vis the State of Emergency’ in Pierre Auriel, Olivier Beaud and Carl Wellman (eds.) The Rule of Crisis: Terrorism, Emergency Legislation and the Rule of Law (Springer International Publishing 2018) 241, p245-246. 687 Scheppele ‘Law in a Time of Emergency’, p1074.

106 Bibliography Legislation

Domestic Constitution, (4 octobre 1958). Grundgesetz für die Bundesrepublik Deutschland vom 23. Mai 1949 (BGBl. S. 1), zuletzt geändert durch Artikel 1 des Gesetzes vom 13. Juli 2017 (BGBl. I S. 2347). Verfassung des Deutschen Reiches von 28. März 1849. Verfassung des Deutschen Reichs von 11. August 1919. Human Rights Act 1998. Civil Contingencies Act.

10 Fructidor an 5 (27 août 1797) Collection Complète des Lois, Décrets, Ordonnances, Réglements, et Avis du Conseil-d’état. Bulletin des Lois, An. v, bull. no. 139. Bundesverfassungsgerichtsgesetz in der Fassung der Bekanntmachung vom 11. August 1993 (BGBl. I S. 1473), das zuletzt durch Artikel 2 des Gesetzes vom 8. Oktober 2017 (BGBl. I S. 3546) geändert worden ist. Décret portant application de la loi n° 55-385 du 3 avril 1955 (14 novembre 2015) n°2015-1475. Gesetz zur Behebung der Not von Volk und Reich (24.03.1933) Loi relative à l'état d'urgence, 03 avril 1955, n°55-385. Loi relative à l’état de siege (3 avil 1878).Code de la défense. Loi sur létat de siege (9 août 1849). Ordonnance modifiant certaines dispositions de la loi n° 55-385 instituant un état d’urgence, 15 avril 1960 n° 60-372. Ordonnance portant loi organique sur le Conseil constitutionnel, 7 novembre 1958 n° 58-1067. Terrorism Act 2000.

Parliamentary documents AN 26 May 2008, www.assemblee-nationale.fr/13/cri/2007- 2008/20080167.asp#P71_6662 AN N°892 15/08/2008 Barclay Christophe, Science and Environment House of Commons Library The Civil Contingencies Bill (Research Paper 04/07 15/01/2004). Department for Constitutional Affairs A Guide to the Human Rights Act 1998: Third Edition (2006). Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (July 2006). Department for Constitutional Affairs, The Human Rights Act: the DCA and Home Office Reviews (Government Response to the Joint Committee of Human Rights’ Thirty-Second Report of Session 2005-06 Cm 7011. Joint Committee on the Draft Civil Contingencies Bill, Draft Civil Contingencies Bill (Report and evidence HL Paper 184 HC 1074). S 20 June 2008, www.senat.fr/seances/s200806/s20080620/s20080620001.html#R5

107 Select Committee on the Constitution, Civil Contingencies Bill (8th Report of the Session 2003-04 HL Paper 114).

International American Convention on Human Rights (Entry into Force July 1987). Articles on the Responsibility of States for Internationally Wrongful Acts Aadopted August 2001). Convention for the Protection of Human Rights and Fundamental Freedoms (Entry into force 1953). Convention on relations between the Three Powers and the Federal Republic of Germany (Bonn 26 May 1952). Convention on Relations between the Three Powers and the Federal Republic of Germany (Paris 23 October 1954). Good Friday Agreement (British Government, Irish Government and the Political Parties of Northern Ireland) signed on 10 April 1998. International Covenant on Civil and Political Rights (Adopted 27 March 1976). Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty in All Circumstances. Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty. Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Parliamentary documents Council of Europe ‘Reservations and Declarations for Treaty No.005 - Convention for the Protection of Human Rights and Fundamental Freedoms’ 30/08/2018 . Council of Europe (Committee of Ministers) ‘Resolution Concerning the Report of the European Commission of Human Rights in Greek Case’ (15 April 1970), 9 I.L.M. 781, Resolution DH (70) 1. Council of Europe (Parliamentary Assembly) Resolution 2156 (2017) ‘The functioning of democratic institutions in Turkey.’ Council of Europe (Parliamentary Assembly) Resolution 2209 (2018) ‘State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights.’ European Commission for Democracy through Law (Venice Commission), Opinion on the Protection of Human Rights in Emergency Situations (Opinion no. 359/2005 CDL-AD(2006)015 2006). Permanent Representative of the United Kingdom ‘Derogation contained in a letter from the Permanent Representative of the United Kingdom, dated 23 December 1988, registered at the Secretariat General’ (23 December 1988). Permanent Representative of the United Kingdom ‘Withdrawal of derogation contained in a Note Verbale from the Permanent Representative of the United Kingdom, dated 19 February 2001, handed to the Secretary General on 19

108 February 2001 and completed by a letter from the Permanent Representative of the United Kingdom, dated 4 May 2006, registered at the Secretariat General’ (04 May 2006). Permanent Representative of Turkey ‘Declaration contained in a letter from the Permanent Representative of Turkey, dated 21 July 2016, registered at the Secretariat General’ (21 July 2016). Permanent Representative of Turkey ‘Derogation contained in a letter from the Permanent Representation of Turkey, dated 6 August 1990, registered at the Secretariat General’ (07 August 1990). United Nations Human Rights Committee ‘General Comment 29: Article 4: Derogations during a State of Emergency’ (2011) CCPR/C/21/Rev.1/Add.11. Jurisprudence

Domestic (in order of appearance) Korematsu v US 323 U.S. 214 (1944). C.C., 16 juilet 1971, déc. 71-44 DC, Loi complétant les dispositions des articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d'association. C.C., 23 avril 1961, n° 61-1 AR16 réunion des conditions exigées par la Constitution pour l'application de son article 16, PV de Séance C.E., Ass. 02 mars 1962 n°55049. C.E., 09 décembre 2005, n°287777 C.C., 23 septembre 2016, déc. 2016-567/568 QPC. C.C. 02 décembre 2016, déc. 2016-600 QPC. C.E., 11 décembre 2015, n°394989, 394990 , 394991, 394992, 3949904. C.E., 11 décembre 2015, n°395009. T.A. Melun, 03 décembre 2015, n°1509659. C.E. 22 décembre 2015, déc. 2015-527 QPC. C.E. 19 février 2016, déc. 2016-536 QPC. C.E. 09 juin 2017, déc. 2017-635 QPC. BVerfGE 5, 85-393 KPD-Urteil – (Auszüge). BVerfG, Urteil des Zweiten Senats vom 30. Juni 2009 - 2 BvE 2/08. Malone v Metropolitan police (No.2), (1979), EWHC, 2, (Ch), [1979] Ch 344. Entick v Carrington [1765] EWHC KB J98 [1765] 95 ER 807. R v. Lord Chancellor ex parte John Witham [1997] EWHC Admin 237 [1998] 2 WLR 849. A. and Others v Secretary of State for the Home Department, X and Another v Secretary of State for the Home Department [2004] UKHL 56, [2004] 2 AC 68.

International A.and Others v UK App no 3455/05 (ECtHR, 19 February 2009). Abdulsamet Yaman v Turkey App no 32446/9 (ECtHR 02 November 2004). Akosy v. Turkey App no 21987/93 (ECtHR, 18 December 1996). Aksoy v. Turkey App no 21987/3 (ECmHR 09 October 1994). Benzer and Other v Turkey App no 23502/06 (ECtHR 12 November 2013). Billen v Turkey App no 34482/97 (ECtHR 21 February 2006). Brannigan and McBride App nos 14553/89, 14554/89 (ECtHR 25 May 1993). Brannigan and McBride v the United Kingdom App nos 14553/89, 14554/89 (Commission Decision 03 December 1991).

109 Brogan and Other v UK App nos. 11209/84 11234/84 11266/84 11386/85 (ECtHR 29 November 1988). Demir and Others v Turkey App nos 21380/93, 21381/93, 21383/93 (ECtHR 23 September 1998). Demir and Others v Turkey App nos Nos 21380/93, 21381/93, 21383/93 (Commission Decision 02 March 1995). Denmark, Norway, Sweden and the Netherlands v Greece App no 3321/67, 3322/67, 3323/67 and 3344/67 15.388 (Decision of the Sub-Commission Vol 1 24 January 1968). Elçi and Others v Turkey App nos 23145/93, 25091/94 (ECtHR 24 March 2004). France, Norway, Denmark, Sweden, Netherlands v. Turkey App no 9940- 9944/82 (Commission Decision 06 Decembre 1983). Greece v. The United Kingdom App no 176/56 15.509 (Commission Decision, 1956). Habeas Corpus in Emergency Situations, Advisory Opinion OC-8/87 Inter- American Court of Human Rights Series A No. 8 (30 January 1987). Ireland v the UK App nos 5310/71, 5451/72 (Commission Decision 01 October 1972). Ireland v the United Kingdom App no5310/71 (ECtHR 18 January 1978). Lawless v Ireland App no 332/57 (ECtHR 01 July 1961). Lawless v Ireland App no 332/57 A 51.591 (Commission Decision 18 December 1959). Nuray Sen v Turkey App no 41478/98 (ECtHR 17 June 2003). Şahin Alpay v. Turkey App no. 16538/17 (ECtHR, 20 March 2018). Sakik and Others v Turkey App nos 87/1996/706/898-903ECtHR (ECtHR 26 November 1997).

Secondary sources ‘Court and Constitutional Organ’ . ‘Georges Pompidou’ (Tous les membres) www.conseil-constitutionnel.fr/conseil- constitutionnel/francais/le-conseil-constitutionnel/les-membres-du- conseil/les-membres-depuis-1959/tous-les-membres/georges- pompidou.42284.html. ‘Legislation’ . ‘Secondary legislation’ . ‘Turkey – Events of 2015’ (Human Rights Watch) accessed 13 July 2018. Abbernethy David B. The Dynamics of Global Dominance (Yale University Press 2000). Adorno Theodor W. Critical Models: Interventions and Catchwords (translated by Henry W. Pickford Columbia University Press 2005) Agamben Giorgio Homo Sacer: Sovereign Power and Bare Life (translated by Daniel Heller-Roazen SUP 1998).

110 Agamben Giorgio State of Exception (translated by Kevin Attell Universtiy of Chicago Press 2005). Amnesty International, A Right not a Threat: disproportionate restrictions on demonstrations under the State of Emergency in France (N° EUR 21/6104/2017 31 May 2017). Andrews William George Presidential Government in Gaullist France: A Study of Executive-Legislative Relations 1958 – 1974 (State University of New York Press 1982). Antkowiak Thomas M. and Gonza Alejandra The American Convention on Human Rights: essential rights (OUP 2017). Aradau Claudia and van Munster Rens ‘Exceptionalism and the ‘War on Terror’’ (2009) 49 Brit. J. Criminol. 686. Arai Yutaka The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2001). Avril Pierre ‘Georges Pompidou au Conseil constitutionnel’ Nouveaux Cahiers du Conseil constitutionnel n° 42. Barber Crosby Margaret The Making of a German Constitution: a slow revolution (Berg 2008). Barendt Eric An introduction to constitutional law (OUP 1998). Baum Marius Der Schutz verfassungsmäßiger Rechte im englischen common law (Nomos 2004). Becket James “The Greek Case before the European Human Rights Commission” [1970] 1 Hum. Rts, 91. Berstein Serge The Republic of de Gaulle 1958-1969 (Cambridge University Press 1989) Blackstone William Commentaries on the Laws of England in Four Books (eds. George Sharswood Philadelphia J. B. Lippinscot Company 1893). Blomeyer Peter, Der Notstand in den letzten Jahren von Weimar (Duncker & Humblot 1999). Bluteau Philip ‘Instituer l'état d'urgence dans un Etat de droit’ (Les Echos 15 November 2005) . Borowiec Andrew Cyprus: Troubled Island (Praeger Publishers 2000) Boterman Frits Moderne geschiedenis van Duitsland: 1800 – heden (De Arbeiderspers 2013). Bothe Michael The Handbook of International Humanitarian Law (3rd edition, ed. Dieter Fleck OUP 2013). Boyron Sophie The Constitution of France: A Contextual Analysis (Hart Publishing 2013). Bracher Karl Dietrich, Die Auflösung der Weimarer Republik (Ringverlag 1955). Brems Eva ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights’ (1996) 56 Z. Ausl. Offentl. Recht Völkerr. 230. Brown Timothy Scott West Germany and the Global Sixties: The antiauthoritarian Revolt, 1962 – 1978 (Cambridge University Press 2013). Burke Karen C. ‘Secret Surveillance and the European Convention on Human Rights’ (1981) 33 Stan. L. Rev. 1113. Carl Schmitt Die Diktatur (Duncker &Humblot 1921) p137 as quoted and translated by Agamben State of Exception.

111 Carr Edward Hallett What is History? (ed. R.W. Davies Penguin Books 1987). Clayton Richard and Tomlinson Hugh (eds.) The Law of Human Rights (2nd ed. Vol. I OUP 2009). Clive Walker & John Broderick The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (OUP 2006). Collins John M. Martial Law and English Laws c. 1500-c.1700 (Cambridge University Press 2016). Conte Alex ‘Limitations to and Derogations from Covenant Rights’ in Alex Conte and Richard Burchil (eds.) Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2nd edition Routhledge 2009). David French, The British Way in Counter-Insurgency, 1945-1967 (OUP 2011). De Martino Francesco Storia della costituzione romana (1973 Jovene) p320 as cited in Agamben State of Exception. Deutscher Bundestag Datenhandbuch zur Geschichte des Deutschen Bundestages seit 1990 (29.09.2017) Kapitel 13.3 Geänderte Grundgesetzartikel . Dicey Albert Venn Law of the Constitution (LibertyClassics 1982). Dinah Rose and Claire Weir ‘Interpretation and Incompatibility: Striking the Balance’ in Jeffrey Jowell QC and Jonathan Cooper (eds) Delivering Rights – How the Human Rights Act is Working (Hart Publishing 2003). Dyzenhaus David ‘States of Emergency’ in Michel Rosenfeld and András Sajó (eds.) The Oxford Handbook of Comparative Constitutional Law (OUP 2012)442. Dyzenhaus David ‘The Puzzle of Martial Law’ [2009] University Toronto Law Journal 1. Elgey Georgette Histoire de la IVe République Volume V: La République des tourmentes (Vol 5 Fayard 2008). Elmar M. Hucko The Democratic Tradition: Four German Constitutions (Berg Publishers Limited 1987) Ergec Rusen and Velu Jacques Convention eruopöenne des droits de l’homme (2nd ed. Bruyant 2014). Errera Roger Et ce sera justice… (2013 Galimard) Evans Martin Algeria: France’s undeclared war (OUP 2012). Faivre Maurice ‘Les Français Musulmans Dans La Guerre d’Algérie’ 117 (1995) Guerre mondiales et conflits contemporaines 139. Feingold Cora S. ‘Doctrine of Margin of Appreciation and the European Convention on Human Rights’ (1977) Vol. 53 1 Notre Dame Law Review 90. Frederick M. Watkins The Failure of Constitutional Emergency Powers under the German Republic (OUP 1939). Friedrich Carl Joachim Constitutional Government and Democracy: theory and practice in Europe and America (Blaisdell Publishing Company 1968). Fritzpatrick Joan Human Rights in Crisis: The International System for Protecting Rights during States of Emergency (Vol. 19 Procedural Aspects of International Law Series, University of Pennsylvania Press 1994). Fullbrook Mary A History of Germany 1918 – 2004: The Divided Nation (John Wiley & Sons 2015). Gordon Richard QC and Ward Tim Judicial Review and the Human Rights Act (Cavendish Publishing Limited 2000).

112 Gross Oren ‘’Control Systems’ and the migration of anomalies’ in Sujit Choudhry (ed) The Migration of Constitutional Ideas (Cambridge University Press 2006) 403. Gross Oren and Ní Aoláin Fionnuala Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press 2006). Gross Oren and Ni Aolain Fionnula ‘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’ (2001) 23 Hum. Rts. Q. 625. Guichard Justine Regime Transition and the Judicial Politics of Enmity: Democratic Inclusion and the Exclusion in South Korean Constitutional Justice (Palgraye Macmillan 2016). Hanshew Karrin Terror and Democracy in West Germany (Cambridge University Press 2012). Haquet Arnaud Droit Constitutionnel – Séquence 6. L’évolution de la Cinquième République (Dalloz 2017). Hermens Ferdinand Aloys Representative Republic (Universtiy of Notre Dame Press 1958). Hersey George L. The Lost Meaning of Classical Architecture: Speculations on Ornament from Vitrivius to Venturi (MIT Press 1988). Hickman Tom Public Law after the Human Rights Act (Hart Publishing 2010). Hoffmeister Frank “Cyprus” MEPIL (2009). Hoogers H. Gerhard book review G. Agamben, Homo Sacer, De soevereine macht en het naakte leven (2004) 1 Netherlands Journal of Legal Philosophy 114. Jared Malsin ‘The Killing of a Kurdish Lawyer Means Dark Days for Turkey’ Time (30 November 2015) accessed on 13 July 2018. Johannès Franck ‘Le Conseil constitutionnel censure à nouveau la loi sur l’état d’urgence’ Le Monde (Paris 11 January 2018). Joseph Sarah and Castan Melissa The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd edition OUP 2013). Julien Boudon ‘Les formes de la contraint dans le cadre de l’état d’urgence en France’ in Emmanno Calzolaio and Pierre Serrand La constrainte en droit. The Constraint in Law (Lit 2017). Kamga Gerard Emmanuel Kamden ‘L’état d’exception and/or state of siege: what is really wrong with section 9(2) of the Constitution of Cameroon?’ (2013) 19 n.2 Fundamina 333. Kjærsgaard Kristine, “Confronting the Greek Military Junta: Scandinavian Joint Action under the European Commission on Human rights 1967-70” in Poul Villaume, Rasmus Mariager and Helle Porsdam (eds.) The ‘Long 1970s’: Human Rights, East-West Détente and Transnational Relations (Routledge 2016) 51. Klose Fabian Human Rights in the Shadow of Colonial Violence – The Wars of Independence in Kenya and Algeria (Translated by Dona Geyer, University of Pennsylvania Press 2013). Kraus Herbert The crisis of the German Democracy : a study of the spirit of the constitution of Weimar (Princeton University Press 1932). Lageot Celine ‘National Legal Tradition - France’ in Susana Galera (eds.) Judicial Review: A Comparative Analysis Inside the European Legal System (Council of Europe 2010) 71.

113 Lang Markus ‘Karl Loewenstein: From Public Law to Political Science’ in Axel Fair-Schulz and Mario Kessler (eds.) German Scholars in Exile: New Studies in Intellectual History (Lexington Books 2011). Laws John The Common Law Constitution (CUP 2014). Leigh Ian and Masterman Roger Making Rights Real – The Human Rights Act in its First Decade (Hart Publishing 2008). Lemke Matthias Demokratie im Aushnahmezustand: wie Regierungen ihre Macht ausweiten (Campus Verlag 2017). Loewenstein Karl ‘Dictatorship and the German Constitution: 1933-1937’ (1937) 2 U. Chi. L. Rev. 537. Lord Justice Laws ‘Judicial Review and the Meaning of Law’ in Christopher Forsyth (ed.) Judicial Review and the Constitution (Hart Publishing 2000). Lowndes Isaak A Modern Greek and English Lexicon: to which is Prefixed an Epitome of Modern Greek Grammar (Vol.2 Black, Young and Young 1837). Ludwig Klages. Peter Osborn and Matthew Charles ‘Walter Benjamin’ in Edward N. Zalta (ed.) The Stanford Encyclopedia of Philosophy (Fall 2015) . Lustick Ian S. Unsettled States, Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank-Gaza (Cornel University Press 1993) Macdonald R. St. J. ‘The margin of appreciation in the jurisprudence of the European Court of Human rights’ in International law at the time of its codification, Essays in honour of Roberto Ago (Milano 1987), 187 as cited in Eva Brems ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights’ (1996) 56 Z. Ausl. Offentl. Recht Völkerr. 230. Madsen Mikael Rask, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence’ in Jonas Christoffersen and Mikael Rask Madsen (eds.), The European Court of Human Rights: Between Law and Politics, (OUP 2011). Marks Susan ‘Civil Liberties at the Margin: the UK Derogation and the European Court of Human Rights’ (1995) 15 Oxford J. Legal Stud. 69. Marrani David Dynamics in the French Constitution – Decoding French Republican Ideas (Routledge 2013). Martin Klimke The Other Alliance: student protest in West Germany & the United States in the Global Sixties (Princeton University Press 2010). Matthias Jestaedt ‘The German Reticence Vis-à-Vis the State of Emergency’ in Pierre Auriel, Olivier Beaud and Carl Wellman (eds.) The Rule of Crisis: Terrorism, Emergency Legislation and the Rule of Law (Springer International Publishing 2018) 241. McDougall James A History of Algeria (Cambridge University Press 2017) Milanovic Marko, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (OUP 2011). Morrisson, Margin of Appreciation in European Human Rights Law, 6 REVUE DES DROITS DE L’HOMME (HUMAN RIGHTS J.) 263, 275 (1973) as cited in O’Donnell ‘The Margin of Appreciation Doctrine’, p477. Munro Colin R Studies in Constitutional Law (2nd ed. Cromwell Press 1999). O’Donnell Thomas A. ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4. Hum. Rts. Q. 474.

114 Oetheimer Mario and Guillem Cano Palomares “European Court of Human Rights (ECtHR)” MEPIL (2013). Olivier Beaud ‘”Anything goes”: how does French law deal with the State of Emergency?’ in Pierre Auriel, Olivier Beaud and Carl Wellman (eds.) The Rule of Crisis: Terrorism, Emergency Legislation and the Rule of Law (Springer International Publishing 2018) 229. Pascual Julia ‘Le Conseil constitutionnel censure l’interdiction de manifester’ Le Monde (Paris 09 June 2017). Perolini Marco ‘France’s Permanent State of Emergency’ (Amnesty International 26 September 2017) . Poetz-Heffner F., Vom Staatsleben unter der Weimarer Verfassung, erster Bericht, vom 1.Januar 1920 bis zum 31. Dezember 1924, Jahrbuch des öffentlichen Rechts, 13 (1925), p. 141ff (as cited in Mark de Wilde ‘The State of Emergency in the Weimer Republic Legal Disputes over Article 48 of the Weimarer Constitution’ (2010) 78 Tijdschrift voor Rechtsgeschiedenis 135. Ricci Jean-Claude and Prélot Pierre-Henri Droit des libertés fondamentales (2nd ed. Hachette Livre 2010) Ricci Jean-Claude Droit administrative general (Hachette Livre 2013). Risini Isabella ‘The Inter-State Application under the European Convention on Human Rights: More Than Diplomatic Protection’ in Norman Weiß and Jean- Marc Thouvenin (eds.) The Influence of Human Rights on International Law (Springer International Publishing 2015) 69. Rossiter Clinton Constitutional Dictatorship – Crisis Government in the Modern Democracies (Princeton University Press 1948) Schabas William A. and O’Sullivan Aisling “Of Politics and Poor Weather: How Ireland Decided to Sue the United Kingdom under the European Convention on Human Rights” in Jean Allain and Shiobhán Mullally (eds) The Irish Yearbook of International Law – Volume 2 2007 (Hart Publishing 2009) 3. Schabas William A. The European Convention on Human Rights: A Commentary (OUP 2015) p1092. Scheppele Kim Lane ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’ (2004) 6:5 Journal of Constitutional Law, 1001. Schmitt Carl Political Theology: Four Chapters on the Concept of Sovereignty (Translated and with an Introduction by George Schwab University of Chicago Press 1985). Schorkopf Frank, “Bonn and Paris Agreements on Germany (1952 and 1954)”, MEPIL (2009). Schreuer Christoph ‘Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights’ (1982) Vol. 9 Yale Journal of International Law 113. Shami Chakrabarti ‘Repentance at Leisure: the Politics of Legislation and the Law of Unintended Consequences’ (2010) 12 Eur. J.L. Reform 5. Shepard Todd The Invention of Decolonization: The Algerian War and the Remaking of France (Cornell University Press 2006). Simpson A. W. Brian, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (OUP 2001).

115 Smith Thomas Commonwealth of England (1642) book II. Chapter 3, as cited in Tatlow Jackson Martial Law: What Is It; And Who Can Declare It (Philadelphia John Campbell 1862). Speake Jennifer and LaFleur Mark ‘Grenzbegriff’ The Oxfor Essential Dictionarry of Foreign Terms in English (OUP 2002)< . The Supreme Court, ‘History’ accessed 13 July 2018. Trotter Markus Der Ausnahmezustand in historischen und Europäischen Rechtsvergleich (1997). Tugendhat Michael Liberty Intact – Human Rights in English Law (2017 OUP). Türk Alexander The Concept of Legislation in European Community Law: a comparative perspective (Kluwer Law International 2006). Ugilt Rasmus The Metaphysics of Terror: The Incoherent System of Contemporary Politics (Bloomsbury Publishing Inc. 2012). Vasak Karel, ‘The European Convention of Human Rights beyond the Frontiers of Europe’ (1963) 12 Int’l & Comp. L.Q. 1206. Vlastos Gregory Studies in Greek Philosophy: Volume I: The Presocratics (eds. Daniel W. Graham Princeton University Press 1993). Volmer Bettina Die Geltung der Menschenrechte im Staatsnotstand (Nomos 2010). Von Bogdandy Armin and others (eds.) Ximena Solely (managing editor) Transformative Constitutionalism in Latin America: The Emergence of a New Ius Commune (OUP 2017) 171. Walker Clive and Broderick John The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (OUP 2006). Walsh Dawn Independent Commissions and Contentious Issues in Post-Good Friday Agreement Northern Ireland (Springer International Publishing 2017). Walter Benjamin ‘Ursprung der deutschen Trauerspiels’ Tiedemann and Scheppenhäuser Gesammelte Schriften (Vol.1 pt.1 Translated by John Osborn as The Origin of German Tragic Drama Verso 1998), p250/70-71, as quoted by Agamben State of Exception. Winkler Heinrich August Germany: 1933 – 1990 (Vol. 2 Translated by Alexander J. Sager OUP 2000). Young Alison L. Parliamentary Sovereignty and the Human Rights act (Hart Publishing 2009). Yourow Howard Charles ‘The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence’ (1987) 3 Conn. J. Int’l L. 111. Zidar Andraz ‘WHO International Health Regulations and Human Rights: from Allusions to Inclusion’ in Myriam Feinberg, Laura Niada-Avshalom and Brigit Toebes (eds.) National Security, Public Health: Exceptions to Human Rights? (Routledge 2016) 123.

116