I would argue that all three arguments need to be revisited and ultimately rejected in the context of legislation enacted to counter the current threat of terrorism.

First, the ECHR and the Court in Strasbourg — like the Council of Europe itself — have become cornerstones of modern-day Europe. As such it is unthinkable in the realm of contemporary international politics that a Council of Europe member state would withdraw its recognition of the Strasbourg Court’s jurisdiction or competence to receive individual petitions as a result of an unfavourable decision. This argument is supported, inter alia, by various unfavourable judgments of the Court in relation to the conflicts in Chechnya and South-Eastern Turkey, for instance. A similar argument can be made in relation to the ICCPR, which has become a universally accepted core instrument of international human rights law.

Second, the Strasbourg authorities themselves have confirmed that states do not enjoy an unlimited discretion in relation to the determination of a public emergency and that the domestic margin of appreciation is accompanied by ‘European supervision’.^[34] It is noteworthy that dissenting votes in the case law have repeatedly questioned the practice of granting states a wide margin of appreciation. In Lawless v Ireland, a minority of the Commission members rejected the margin of appreciation doctrine altogether, arguing that evaluation of the existence of a public emergency ought to be based solely on existing facts without regard to any account of subjective predictions as to future development.^[35] They also argued that the Commission ought to review de novo the existence of a public emergency in a given situation without assuming an a priori deferential attitude towards the respondent government.

Interestingly, the Human Rights Committee also seems reluctant to grant a wide margin of appreciation, if it recognises the application of such a doctrine at all. In Landinelli Silva v Uruguay, for instance, the Committee found that ‘the State Party is duty-bound to give a sufficiently detailed account of the relevant facts when it invokes Article 4(1)’ and that it is the Committee’s function ‘to see to it that States parties live up to their commitments under the Covenant’.^[36] Similarly, the Siracusa Principles explicitly state that the principle of strict necessity shall be applied in an ‘objective manner’ and, moreover, that ‘the judgment of the national authorities cannot be accepted as conclusive’.^[37]

But perhaps most questionable in the context of international terrorism is the argument that national authorities are in a better position to assess whether circumstances that constitute a public emergency do in fact prevail. Unlike its previous manifestations, contemporary terrorism is hardly attributable to a confined number of terrorist organisations, even though it has been mainly associated with Al Qa’ida.^[38] In other words, the threat is much more diffuse and abstract. In most circumstances the existence of a ‘public emergency threatening the life of the nation’ is or will be claimed in relation to a threat. In consequence, there has to be an assessment of the risk of the realisation of the threat, as well as its seriousness. Because the terrorist threat is usually ‘international’ and non-specific, the government’s burden of justification in respect of the existence of a ‘public emergency’ is particularly high. The margin of appreciation granted to individual states in assessing the existence of a ‘public emergency’ and the proportionality of response measures thus need to be reconsidered and adjusted. The more global and non-specific the threat, the less the amount of discretion left to the state. As the threat of international terrorism is global, national authorities are not necessarily in a better position to decide on the imminence of a ‘public emergency’. Quite the opposite: other countries might even have superior intelligence on specific terrorist threats.

It is equally debatable whether the highly politicised discourse on terrorism and counter-terrorism is conducive to rational and calm consideration and an appropriate balancing of the competing interests at stake. Thus, it may well be that a supranational institution like the ECrtHR, detached and removed from the immediate political debate, is better placed to judge matters more clearly and more accurately. It is the Court, therefore, that is in a better position than the national government to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it.

The Court should also be less deferential to a government’s assessment that a state of emergency exists where the emergency is possibly a permanent one, given that the concept of an emergency permitting derogation, which is embodied in the relevant clauses of the ECHR and ICCPR, is necessarily a temporary one, the logic being that rights may be temporarily suspended, not that they may simply be destroyed.^[39] This is particularly the case in the context of international terrorism and the aftermath of 9/11 where the threat that is supposed to constitute a public emergency has become permanent. The Court should refrain from granting a wide margin of appreciation but rather should submit governmental claims to strict scrutiny, in relation to both designation and interference issues: the longer the emergency, the narrower ought the margin of appreciation be.