Abstract
This chapter points out that derogation from the ECHR under Article 15 ECHR was designed after the Second World War precisely to allow contracting states to meet emergencies such as the one represented by the current “war on terror,” but to remain within the ECHR system, while suspending adherence to certain rights on a temporary basis. Article 15 allows states to cease their adherence to a number of Convention rights during the period of the emergency. It might be expected therefore that reliance on derogations would be particularly significant at the present time. But the chapter finds that very few derogations have been sought from ECHR contracting states despite the recent very significant rise in terrorist activity. Given that derogations have played little part in counterterrorism efforts in most of the ECHR contracting states, a significant degree of continued adherence to the ECHR has been maintained, but some attention has turned to other methods of exploring the evasion of its protection. This chapter explores the reasons behind the lack of reliance on derogations and the implications of turning to such other methods as alternatives.
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References
Ackerman B (2006) Before the next attack: preserving civil liberties in an age of terrorism. Yale University Press, Yale
Adjami M, Harrington J (2008) The scope and content of article 15 UDHR. Refug Surv Q 27(3):93–109
Amnesty International (2017) Europe: dangerously disproportionate: the ever-expanding national security state in Europe. Index number: EUR 01/5342/2017. https://www.amnesty.org/download/Documents/EUR0153422017ENGLISH.PDF. Accessed 5 Nov 2018
Anderson D (2015) The terrorism acts in 2014. Report of the independent reviewer on the operation of the Terrorism Act 2000 and part I of the Terrorism Act 2006. https://www.gov.uk/government/publications/the-terrorism-acts-in-2014. Accessed 5 Nov 2018
Anderson D (2016) Terrorism acts in 2015 report of the independent reviewer on the operation of the Terrorism Act 2000 and part I of the Terrorism Act 2006. https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2016/12/TERRORISM-ACTS-REPORT-1-Dec-2016-1.pdf. Accessed 8 Nov 2018
Anderson D (2017) Attacks in London and Manchester March–June 2017 independent assessment of MI5 and police reviews. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/664682/Attacks_in_London_and_Manchester_Open_Report.pdf. Accessed 5 Nov 2018
Anderson D, Stratford J (2001) Memorandum from Justice on the Anti-Terrorism, Crime and Security Bill. Joint Committee on Human Rights, Appendices to the Minutes of Evidence. https://publications.parliament.uk/pa/jt200102/jtselect/jtrights/51/51ap03.htm. Accessed 12 Nov 2018
Anthony C (2016) There are far-right wannabe terrorists in the UK – but we’re only focusing on Islamic extremists. The Independent, 24 November 2016. https://www.independent.co.uk/voices/jo-cox-trial-thomas-mair-terrorist-nazi-isis-jihadis-far-right-police-only-focus-a7436426.html. Accessed 12 Nov 2018
Aoláin F (2017) France: the dangers of emergency legislation. Just Security, 27 September 2017. https://www.justsecurity.org/45263/france-dangers-permanent-emergency-legislation. Accessed 11 Nov 2018
BBC News (2016) Brussels explosions: what we know about airport and metro attacks. BBC, 9 April 2016. http://www.bbc.co.uk/news/world-europe-35869985. Accessed 5 Nov 2018
Boring J (2016) French State of Emergency extended to July 2017. Library of Congress, December 29 2016. http://www.loc.gov/law/foreign-news/article/france-state-of-emergency-extended-to-july-2017/. Accessed 11 Nov 2018
de Londras F, Dzehtsiarou K (2018) Great debates on the European Convention on Human Rights. Palgrave, London
Dodd V, Grierson J (2017) Police arrest four over possible Islamist plot to attack UK. The Guardian, 18 December 2017. https://www.theguardian.com/uk-news/2017/dec/19/four-men-questioned-yorkshire-suspicion-plotting-terror-attacks. Accessed 12 Nov 2018
European Court of Human Rights Directorate of the Jurisconsult (2018) Guide on Article 15 of the European Convention on Human Rights. Council of Europe, 30 April 2018
Europol (2017) European Union terrorism situation and trend report. https://www.europol.europa.eu/activities-services/main-reports/eu-terrorism-situation-and-trend-report-te-sat-2017. Accessed 5 Nov 2018
Farmer B (2016) Who is Salah Abdeslam and who were the Paris terrorists? Everything we know about the ISIL attackers. The Telegraph, 18 March 2016. http://www.telegraph.co.uk/news/worldnews/europe/france/11996120/Paris-attack-what-we-know-about-the-suspects.html. Accessed 5 Nov 2018
Fenwick H (2002) The ACTSA 2001: a proportionate response to 9/11? MLR 65(5):724–762
Fenwick H (2011) Recalibrating ECHR rights, and the role of the Human Rights Act post-9/11: reasserting international human rights norms in the “war on terror”? Curr Leg Probl 63:153–234
Gibney M (2014) Statelessness and citizenship. In: Edwards A, Van Waas L (eds) Nationality and statelessness under international law. Cambridge University Press, Cambridge
Greene G (2011) Separating normalcy from emergency: the jurisprudence of article 15 of the European Convention on Human Rights. German Law J 12:1764
Harris D, O’Boyle M, Bates E, Buckley C (2014) Harris, O’Boyle and Warbrick: law of the European Convention on Human Rights. OUP, Oxford
Hickman T (2005) Between human rights and the rule of law: indefinite detention and the derogation model of constitutionalism. MLR 68(4):655–668
Hiebert J (2005) Parliamentary review of terrorism measures. MLR 68(4):676–680
Home Affairs Select Committee (2016) Radicalisation: the counter-narrative and identifying the tipping point 8th Report of Session 2016–17. HC 135, August 2016
Home Office (2018) CONTEST The United Kingdom’s Strategy for Countering Terrorism. Cm 9608. June 2018
Home Office (2018a) Home secretary announces new counter-terrorism strategy. 4 June 2018. https://www.gov.uk/government/speeches/home-secretary-announces-new-counter-terrorism-strategy. Accessed 5 Nov 2018
Intelligence and Security Committee (2017) Annual report 2016–2017. HC 655, December 2017
International Commission of Jurists (2009) Assessing damage, urging action. Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights. Geneva
Joint Committee on Human Rights (2001) Anti-terrorism, Crime and Security Bill Second Report of Session 2001–02. HL Paper 37, HC 372
Joint Committee on Human Rights (2003) Fifth report of session 2002–2003 – Continuance in force of sections 21 to 23 of the Anti-terrorism, Crime and Security Act 2001. HL Paper 59, HC 462
Joint Committee on Human Rights (2004) Anti-terrorism, Crime and Security Act 2001: Statutory Review and Continuance of Part 4. HL Paper 38, HC 381
Joint Committee on Human Rights (2015) Legislative Scrutiny Counter-Terrorism and Security Bill 5th Report of Session 2014–2015. HL Paper 86, HC 859
Kerslake L (2018) An independent review into the preparedness for, and emergency response to, the Manchester Arena attack on 22nd May 2017. 27 March 2018. https://www.kerslakearenareview.co.uk/. Accessed 1 Nov 2018
Legg A (2012) The margin of appreciation in international human rights law: deference and proportionality. OUP, Oxford
Letsas G (2006) Two concepts of the margin of appreciation. OJLS 4:705
Loader I (2007) The cultural lives of security and rights. In: Goold B, Lazarus L (eds) Security and human rights. Hart Publishing, Oxford
MacAskill E, Johnson P (2016) There will be terrorist attacks in Britain says MI5 chief. The Guardian, 1 November 2016. https://www.theguardian.com/uk-news/2016/nov/01/andrew-parker-mi5-director-general-there-will-be-terrorist-attacks-in-britain-exclusive. Accessed 12 Nov 2018
Nugraha Y (2018) Human rights derogation during coup situations. Int J Human Rights 22(2):194
Pantucci R, Ellis C, Chaplais R (2016) Lone-actor terrorism. Countering lone actor terrorism series no. 11. Royal United Services Institute. https://rusi.org/sites/default/files/201604_clat_final_report.pdf. Accessed 11 Nov 2018
Perolini M (2017) France’s permanent state of emergency. Amnesty International, 26 September 2017. https://www.amnesty.org/en/latest/news/2017/09/a-permanent-state-of-emergency-in-france/. Accessed 11 Nov 2018
Ramraj V (2005) Terrorism, risk perception and judicial review. In: Roach K, Hor M, Ramraj V (eds) Global anti-terrorism law and policy. CUP, Cambridge
Ramraj V, Hor M, Roach K, Williams G (eds) (2011) Global anti-terrorism law and policy, 2nd edn. CUP, Cambridge
Ross T (2016) Is Britain creeping into another Libyan war? The Telegraph 24 April 2016. https://www.telegraph.co.uk/opinion/2016/04/24/is-britain-creeping-into-another-libyan-war/. Accessed 12 Nov 2018
Ross A, Galey P (2013) Rise in citizenship-stripping as government cracks down on UK fighters in Syria. Bureau of Investigative Journalism, 23 December 2013. https://www.thebureauinvestigates.com/stories/2013-12-23/rise-in-citizenship-stripping-as-government-cracks-down-on-uk-fighters-in-syria. Accessed 12 Nov 2018
Schneier B (2009) Beyond security theatre. New Internationalist, 1 November 2009. https://newint.org/features/2009/11/01/security. Accessed 12 Nov 2018
Siddique H, Halliday J (2018) ISIS supporter admits to Prince George school attack plot. The Guardian, 31 May 2018. https://www.theguardian.com/uk-news/2018/may/31/isis-supporter-admits-to-prince-george-school-attack-plot-husnain-rashid. Accessed 11 Nov 2018
Spielmann D (2014) Whither the margin of appreciation? Curr Leg Probl 67:49
Striegher J (2013) Early detection of the lone wolf: advancement of counter-terrorism investigations with an absence or abundance of information and intelligence. J Pol Intell Counter Terrorism 8(1):35
UNSC (2015) Analysis and recommendations with regard to the global threat from foreign terrorist fighters. S/2015/358, May 2015. https://www.un.org/sc/ctc/wp-content/uploads/2015/06/N1508457_EN.pdf. Accessed 12 Nov 2018
UNSCR (2014) Statement by the President of the Security Council. S/PRST/2014/23, 19 Nov 2014
Walker C (2007) Keeping control of terrorists without losing control of constitutionalism. Stanford Law Rev 59(5):1395
Walker C (2009) Prosecuting terrorism: the Old Bailey versus Belmarsh. Amicus Curiae 9:21–25
Young D (2017) Police foil huge dissident Semtex bomb plot. Belfast Telegraph, 3 June 2017. https://www.belfasttelegraph.co.uk/news/republic-of-ireland/police-foil-huge-dissident-semtex-bomb-plot-35783990.html. Accessed 12 Nov 2018
Zedner L (2016) Citizenship deprivation, security and human rights. Eur J Migration Law 18:222–242
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Fenwick, H., Fenwick, D. (2019). The Role of Derogations from the ECHR in the Current “War on Terror”. In: Shor, E., Hoadley, S. (eds) International Human Rights and Counter-Terrorism. International Human Rights. Springer, Singapore. https://doi.org/10.1007/978-981-10-4181-5_37
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