Three main reasons have been advanced by the Court and commentators for applying a wide margin of appreciation in the context of derogations. First, it was argued by Michael O’Boyle, for instance, that given their perceived vital interests were at stake, governments could respond to an adverse decision by the Court regarding derogation by denouncing the Convention, or withdrawing recognition of the Court’s jurisdiction or competence to receive individual petitions. To avoid losing state support in this way, the Court should reject derogation only in the most transparently spurious cases.^[27]

Second, the ECrtHR held in Ireland v United Kingdom, that it was inappropriate to decide with the benefit of hindsight on issues that a government must necessarily address urgently and on the basis of information that it may not be capable of publicising.^[28] This view is shared by J G Merrills, for instance, who argues that the determination that an emergency existed, and what measures were necessary to counter it, was a political judgment in relation to which judges were ‘ill-equipped and improper arbiters’.^[29] In addition, national authorities, Merrills argued, were in a much better position than a supranational institution like the Court to assess the situation on the ground. The government’s discretion thus needed to be respected, especially as it was the government’s responsibility to ensure law and order. The Court, on the other hand, served the public interest in effective government by ensuring that the government’s conduct in relation to a proclaimed emergency is at least ‘on the margin’ of the powers conferred by Article 15 ECHR and Article 4 ICCPR.^[30]

Third, and related to the second argument, emergencies exert great pressures against continued adherence to protection of human rights. As Oren Gross and Fionnuala Ní Aoláin pointed out, governments often consider protecting human rights and civil liberties to their fullest extent as a ‘luxury that must be dispensed with if the nation is to overcome the crisis it faces’.^[31] Moved by perceptions of physical threat both to the state and to themselves and motivated by growing fear and by hatred toward the ‘enemy’, the citizenry may support the government to employ more radical measures against the perceived threats. In these circumstances, notions of the rule of law, rights, and freedoms are legalistic niceties that bar effective action by the government. Exigencies tend to provoke the ‘rally around the flag’ phenomenon,^[32] or, as Mark Nolan has pointed out, a ‘siege mentality’, in which governmental actions perceived as necessary to fight off the crisis garner almost unqualified popular support.^[33] In this situation there was no role for a supranational institution, like the ECrtHR, to play.