The ECHR and States of Emergency: Article 15-A Domestic Power of Derogation from Human Rights Obligations MOHAMED M. EL ZEIDY* TABLE OF CONTENTS I. INTRO DUCTION ................................................................................................... 278 II. SECTIO N O NE ..................................................................................................... 280 A. Problems of Definition Under Article 15 .................................................. 280 III. PRECONDITIONS FOR A VALID DEROGATION ....................................................... 282 A. "PublicEmergency Threatening the Life of the Nation" ................... 283 B. "Strictly Required by the Exigencies of the Situation ............................. 286 1. The Doctrine of State Necessity ......................................................... 286 2. The Principleof Proportionality....................................................... 288 3. The Contents of the Notice of Derogation......................................... 289 * Prosecutor at the Office of the Attorney General of the Arab Republic of Egypt, Ministry of Justice (1997-present); First Lieutenant, Special Guarding Unit, Ministry of Interior Affairs (1995-97); First Lieutenant, Special Forces Anti-Terrorism Unit, Ministry of Interior Affairs (1993-95). Ph.D. candidate, National University of Ireland, Galway; LL.M. (International Human Rights) 2001, National University of Ireland, Galway; LL.M. (Public Law) 1999, Cairo University; LL.B., B.S. (Police Sciences) 1993, Police Academy, Cairo, Egypt. The author would like to express his sincere thanks to his Excellency Egyptian Minister of Justice and his Excellency Attorney General of the Republic for facilitating the way to pursue his post-graduate studies. Also, special thanks to Dr. Kathleen Kavanaugh for her valuable comments and continuous encouragement during and after writing this Article. C. The Consistency With Other Obligations Under InternationalLaw ..................................................................................... 290 D. The Notification Process .......................................................................... 294 1. The Principleof Notification ............................................................. 294 a: The Elem ent of Tim e ................................................................... 295 b. The Contents of Derogation ....................................................... 297 IV . S ECTIO N TW O ..................................................................................................... 30 1 A. The Strasbourg Machinery in the Protectionof Human Rights in States of Emergency Under Article 15 ....................................... 301 I. The L aw less C ase .............................................................................. 302 2. The G reek Case ................................................................................. 306 3. The Brogan and Brannigan Cases ..................................................... 308 V . C ONCLUSIO N ...................................................................................................... 3 16 I. INTRODUCTION States may face wars, crises, obstacles, major disturbances, or natural disasters that are considered as "exceptional dangers", which threaten the security, safety, and general welfare of their peoples.' These situations may result in a "state of emergency" or a "state of siege".2 When a state of emergency is declared, the efficacy of international legal mechanisms for the protection of human rights is tested. As this Article will detail, a starting point for evaluating the effectiveness of these measures is to identify the standards governing these rights in such situations. Public emergencies present grave problem for states: namely that of overcoming the emergency and restoring order in the country, while at the same time respecting the fundamental human rights of individuals. Provisions, which regulate emergencies, can be found in most national constitutions, and domestic laws. Nevertheless, at the international level, there was an acknowledgement (codification of margin of appreciation) of the view of these exceptional circumstances that led to the inclusion of derogating clauses, which address the question of emergency dealing with these kinds of situations. 3 The International Covenant on Civil and Political Rights (ICCPR),4 provided a derogation clause in Article 4 of its 1. JAIME ORAA, HUMAN RIGHTS IN STATES OF EMERGENCY IN INTERNATIONAL LAW 221 (1992); MICHAEL PATRICK O'BOYLE, EMERGENCY GOVERNMENT AND EUROPEAN HUMAN RIGHTS LAW: A CASE STUDY OF NORTHERN IRELAND 25, 28 (1975). 2. DJ HARRIS ET AL., THE LAW OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 489-90 (1995). 3. Id. 4. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS art. 4 [hereinafter ICCPR]. It was debated as to whether the limitation clauses set out in the ICCPR were sufficient to substitute the inclusion of a derogation clause. The view prevailed, nevertheless, that the reference to "national security" and "public order" would not suffice as adequate legal guidance in times of major emergency. In this respect, see Rosalyn Higgins, Derogations Under Human Rights Treaties, 48 BRIT. Y.B. INT'L L. 281, 286 (1976-77); [VOL. 4: 277, 2003] ECHR-Article 15 SAN DIEGO INT'L L.J. provisions, which gives to the state the right to derogate from its obligations to a certain extent during emergency circumstances: the state may take measures which interfere with the enjoyment of some of the rights protected by the ICCPR.5 Similarly, Article 15 (which was borrowed from the draft of the ICCPR) emerges from the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),6 with a derogation clause similar to that of the ICCPR. The travauxpriparatoiresof the ICCPR reveal that by "June 1949 the U.N. Commission on Human Rights had adopted Article 4, practically in its final version. 7 The ECHR then borrowed the derogation clause from the draft covenant;" 8 thus, the similar wording of both clauses. In a single text of the ECHR submitted by the Conference of Senior Officials in June 1950, the derogation clause is found in its final version. Later this was the model taken by the drafters of the American Convention on Human Rights (ACHR) during the drafting at the San Jose Conference in 1968, which led to the emergence of its Article 27.9 The inclusion of derogation provisions in each of the international legal instruments suggests that a closer look at the impact of these Joan F. Hartman, Derogation from Human Rights Treaties in Public Emergencies: A Critique of Implementation By the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations, 22 HARV. INT'L L.J. 1,4-5 (1981). 5. ICCPR, supra note 4, art. 4. (1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the states' parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. (2) No derogation from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. (3) Any state party to the present Covenant availing itself of the right of derogation shall immediately inform other states parties to the present covenants through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made through the same intermediary, on the date on which it terminates such derogation. Id. 6. EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS art. 15 [hereinafter ECHR]. 7. ORAA, supra note 1,at 8. 8. Id. 9. AMERICAN CONVENTION on HUMAN RIGHTS art. 27 [hereinafter ACHR]. provisions on human rights protection is necessary. What are the limitations of derogations? What is the judicial protection during a state of emergency? These points merit examination as, during the last decade, the gravest violations of fundamental human rights have occurred in the context of states of emergency. As case studies suggest, states invoke a declaration to circumvent basic and fundamental legal protections. Therefore, this study is important to critically examine the protections and limitations of the ECHR Article 15 situations. On the bases of the previous aforementioned, this study is divided into two sections. The first section is further divided into two subsections. The first subsection examines the problems in defining emergencies; in the second subsection, we will examine the preconditions required for a valid derogation. The second section determines the Strasbourg machinery for the protection of human rights. This section is also divided into four subsections. Each subsection examines separate case laws from the European Court of Human Rights. Finally, a conclusion will be deduced in the light of the former reviews. H. SECTION ONE A. Problems of Definition Under Article 15 Emergencies occur during the lifetime of any state, but their nature and character, may vary from one community to another and from one period to another within the same community. Exigencies provoke