An inquiry into the boundaries between human rights law and public policy in the context of counter-terrorism benefits from examining the proportionality principle in light of the international system for protecting rights during states of emergency.[6] The threat of terrorism has been invoked by governments in the past to justify restricting human rights and/or derogating from obligations contained in international human rights instruments.[7] It was in the context of the United Kingdom’s (UK) derogation from the European Convention of Human Rights (ECHR)[8] in the aftermath of September 11 2001 (9/11) that the question of proportionality was addressed by the House of Lords in Belmarsh Detainees.
Both the ECHR and the International Covenant on Civil and Political Rights (ICCPR)[9] allow for derogation from certain rights enshrined in these instruments. Article 15 (1) of the ECHR reads:
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law.
Article 4 (1) ICCPR reads:
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, colour, sex, language, religion or social origin.
The principle of proportionality constitutes a general principle of international law and includes elements of severity, duration and scope.[10] It applies to Article 15 ECHR as well as to Article 4 ICCPR. Both provisions essentially require a derogating state to satisfy two tests. First, the derogating state is required to establish that exceptional circumstances of war or other public emergency threatening the life of the nation do in fact prevail (the ‘designation issue’), and second, that measures taken in consequence of such an emergency are ‘strictly required by the exigencies of the situation’ (the ‘interference issue’).[11]
As to the designation issue, the ECHR and the ICCPR both lack a specific definition of a ‘public emergency threatening the life of the nation’. Nevertheless, the international monitoring organs established under the treaties, notably the ECrtHR (and previously the European Commission of Human Rights), have extensively interpreted the term and provided jurisprudence valuable for determining its meaning and scope. As the Strasbourg authorities construe the terms of Article 15 according to their natural and ordinary meaning (as required by principles of treaty interpretation), and the derogation clauses of the ICCPR and the ECHR are similar, European decisions and findings are readily applicable to cases arising under the ICCPR.
The first substantive interpretation of Article 15 of the ECHR was made in Lawless v Ireland.[12] Confirming the determination by the European Commission of Human Rights that Article 15 should be interpreted in the light of its ‘natural and customary’ meaning, the ECrtHR defined ‘time of public emergency’ as ‘an exceptional situation of crisis or emergency which afflicts the whole population and constitutes a threat to the organised life of the community of which the community is composed’.[13] The definition was further developed and clarified in the Greek Case.[14] Reaffirming the basic elements of the Court’s approach in Lawless v Ireland, the Commission emphasised that the emergency must be actual or at least ‘imminent’.[15] In order to constitute an Article 15 emergency, the Commission held that a ‘public emergency’ must have the following four characteristics:[16]
it must be actual or imminent;
its effects must involve the whole nation;
the continuance of the organised life of the community must be threatened;[17] and
the crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.[18]
As to the interference issue, a fundamental requirement for any measures derogating from the ECHR or the ICCPR is that such measures are limited ‘to the extent strictly required by the exigencies of the situation’. Derogation measures must thus be strictly proportionate. In Handyside v United Kingdom the Strasbourg Court expressly differentiated the ‘strictly required’ standard in Article 15 from the ordinary standard of ‘necessity’ or proportionality that is found in some provisions of the ECHR. The Court articulated three tiers of standards found in the Convention: ‘reasonableness’ (see, eg, arts 5(3) and 6(1) ECHR), ‘necessity’ (see, eg, art 10(2) ECHR) and ‘indispensability’.[19] Indispensability was associated with the phrase ‘strictly required’ in Article 15 ECHR and the phrase ‘absolutely necessary’ in Article 2(2). The Court has since stated in McCann and Others v United Kingdom that:
the use of the term ‘absolutely necessary’ in Article 2(2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether state action is ‘necessary in a democratic society’ under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2(a), (b) and (c) of Article 2.[20]
By contrast to Article 2 ECHR, the stricter standard of necessity is justified in the context of Article 15 ECHR not by the importance of the right at stake but by the nature of the measure, which is to take a state outside the human rights regime. Any derogation measure must fulfil the following five basic requirements:
the measures must be strictly required (ie, actions taken under ordinary laws and in conformity with international human rights obligations are not sufficient to meet the threat);
the measures must be connected to the emergency (ie, they must ‘prima facie’ be suitable to reduce the threat or crisis);
the measures must be used only as long as they are necessary (ie, there must be a temporal limit);
the degree to which the measures deviate from international human rights standards must be in proportion to the severity of the threat (ie, the more important and fundamental the right which is being compromised, the closer and stricter the scrutiny);
effective safeguards must be implemented to avoid the abuse of emergency powers. Where measures involve administrative detention, safeguards may include regular review by independent national organs, in particular, by the legislative and judicial branches.
As stated by the European Commission in the Greek Case, and by the Human Rights Committee in its General Comment 29, the states parties bear the burden of proof in establishing the existence of a ‘public emergency’.[21] However, in assessing whether a ‘public emergency’ exists and what steps are necessary to address it, states are granted a so-called ‘margin of appreciation’. The doctrine of margin of appreciation embodies the general approach of the Strasbourg Court to the difficult task of balancing the sovereignty of contracting parties with their obligations under the Convention.[22] As Ronald St James Macdonald, a former judge of the ECrtHR, observed, it is the doctrine of margin of appreciation that allows the Court to escape the dilemma of ‘how to remain true to its responsibility to develop a reasonably comprehensive set of review principles appropriate for application across the entire Convention, while at the same time recognising the diversity of political, economic, cultural and social situations in the societies of the Contracting Parties’.[23]
In the context of derogation in times of ‘public emergency threatening the life of the nation’, the margin of appreciation represents the discretion left to a state in ascertaining the necessity and scope of measures of derogation from protected rights in the circumstances prevailing within its jurisdiction.[24] In Ireland v United Kingdom, the ECrtHR held that:
it falls in the first place to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. 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(1) leaves the authorities a wide margin of appreciation.[25]
In Brannigan and McBride v United Kingdom the Court held that:
it falls to each Contracting State, with its responsibility for ‘the life of [its] nation,’ to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. 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. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities …[26]
The margin of appreciation is thus granted to the national authorities both in relation to the existence of a public emergency — the designation issue — and in determining whether derogation measures are strictly required by the exigencies of the situation; the interference issue.
[6] For accounts of the international system for protecting rights during states of emergency see R Higgins, ‘Derogations Under Human Rights Treaties’ (1976‑77) 48 British Yearbook of International Law 281; T Buergenthal, ‘To Respect and Ensure: State Obligations and Permissible Derogations’ in L Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) 72‑91; C Schreuer, ‘Derogation of Human Rights in Situations of Public Emergency’ (1982) 9 Yale Journal of World Public Order 113; J F Hartman, ‘Working Paper for the Committee of Experts on the Article 4 Derogation Provision’ (1985) 7 Human Rights Quarterly 89; D J Harris, M O’Boyle and C Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995) 489‑507; J A Frowein and W Peukert, Kommentar – Europäische Menschenrechtskonvention (2nd ed, 1996) 479‑85; A-L Svensson-McCarthy, The International Law of Human Rights and States of Exception (The Hague, Boston: M Nijhoff Publishers, 1998).
[7] See, eg, Lawless v Ireland (No 3) (1961) 1 EHRR 15; Greek Case (1969) 12 Yearbook ECHR 1; Ireland v United Kingdom (1978) Series A No 35; Brannigan and McBride v United Kingdom (1993) 17 EHRR 539; Aksoy v Turkey (1996) 23 EHRR 553.
[8] European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222 (entered into force 3 September 1953).
[9] International Covenant on Civil and Political Rights, 999 UNTS 171 (entered into force 23 March 1976).
[10] See, eg, M Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in R St J Macdonald, F Matscher and H Petzold (eds), The European System for the Protection of Human Rights (Dordrecht, Boston: Martinus Nijhoff, 1993) 125‑37.
[11] See, eg, S Tierney, ‘Determining the State of Exception: What Role for Parliament and the Courts?’ (2005) 68(4) Modern Law Review 668.
[12] Lawless v Ireland (No 3) (1961) 1 EHRR 15.
[13] Ibid 31.
[14] Greek Case (1969) 12 Yearbook ECHR 1.
[15] The notion of imminence is present in the Merits judgment in French (authentic version) but not in the English version. The relevant part of the Merits judgment in French reads: ‘Une situation de crise ou de danger public exceptionnelle et imminente …’.
[16] Greek Case (1969) 12 Yearbook ECHR 1, [153].
[17] Some members of the Commission argued that when the organs of the state are functioning normally, there is no grave threat to the life of the nation and, therefore, emergency measures are not legitimate. However, the majority in the Commission did not follow this reasoning. In practice, both the second and third criteria are generally applied in a rather relaxed way.
[18] Evidence of these requirements being recognised as general legal standards in the process of determining the meaning of ‘public emergency’ can also be found in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (‘Siracusa Principles’), reproduced in ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985) 7(1) Human Rights Quarterly 3. The Siracusa Principles were drafted by a group of 31 distinguished experts in international law convened in Siracusa, Italy, in Spring 1984, by a number of well‑respected organisations such as the International Commission of Jurists. In addition, these criteria are contained in the International Law Association’s (ILA) work on the issue: ILA, Paris Minimum Standards of Human Rights Norms in a State of Emergency (‘Paris Minimum Standards’), reproduced as ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 American Journal of International Law 1072.
[19] Handyside v United Kingdom (1976) 1 EHRR 737, [48].
[20] McCann and Others v United Kingdom (1995) 21 EHRR 97, [149].
[21] Human Rights Committee, General Comment 29, States of Emergency (Article 4), [4], [5], UN Doc CCPR/C/21/Rev.1/Add.11 (2001).
[22] See R St J Macdonald, ‘The Margin of Appreciation’ in Macdonald, Matscher and Petzold (eds), above n 10, 83.
[23] Ibid.
[24] See, eg, T A O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4(4) Human Rights Quarterly 474.
[25] Ireland v United Kingdom (1978) Series A No 35, [78]‑[79].
[26] Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, [41].