The Role of Derogations from the ECHR in the Current “War on Terror”

Reference work entry
Part of the International Human Rights book series (IHR)


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.


European Convention on Human Rights Article 15 ECHR Derogations Terrorism Counterterror measures Control orders Citizenship-stripping 


  1. Ackerman B (2006) Before the next attack: preserving civil liberties in an age of terrorism. Yale University Press, YaleGoogle Scholar
  2. Adjami M, Harrington J (2008) The scope and content of article 15 UDHR. Refug Surv Q 27(3):93–109CrossRefGoogle Scholar
  3. Amnesty International (2017) Europe: dangerously disproportionate: the ever-expanding national security state in Europe. Index number: EUR 01/5342/2017. Accessed 5 Nov 2018
  4. 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. Accessed 5 Nov 2018
  5. 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. Accessed 8 Nov 2018
  6. Anderson D (2017) Attacks in London and Manchester March–June 2017 independent assessment of MI5 and police reviews. Accessed 5 Nov 2018
  7. 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. Accessed 12 Nov 2018
  8. 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. Accessed 12 Nov 2018
  9. Aoláin F (2017) France: the dangers of emergency legislation. Just Security, 27 September 2017. Accessed 11 Nov 2018
  10. BBC News (2016) Brussels explosions: what we know about airport and metro attacks. BBC, 9 April 2016. Accessed 5 Nov 2018
  11. Boring J (2016) French State of Emergency extended to July 2017. Library of Congress, December 29 2016. Accessed 11 Nov 2018
  12. de Londras F, Dzehtsiarou K (2018) Great debates on the European Convention on Human Rights. Palgrave, LondonGoogle Scholar
  13. Dodd V, Grierson J (2017) Police arrest four over possible Islamist plot to attack UK. The Guardian, 18 December 2017. Accessed 12 Nov 2018
  14. 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 2018Google Scholar
  15. Europol (2017) European Union terrorism situation and trend report. Accessed 5 Nov 2018
  16. 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. Accessed 5 Nov 2018
  17. Fenwick H (2002) The ACTSA 2001: a proportionate response to 9/11? MLR 65(5):724–762CrossRefGoogle Scholar
  18. 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 63:153–234CrossRefGoogle Scholar
  19. Gibney M (2014) Statelessness and citizenship. In: Edwards A, Van Waas L (eds) Nationality and statelessness under international law. Cambridge University Press, CambridgeGoogle Scholar
  20. Greene G (2011) Separating normalcy from emergency: the jurisprudence of article 15 of the European Convention on Human Rights. German Law J 12:1764CrossRefGoogle Scholar
  21. Harris D, O’Boyle M, Bates E, Buckley C (2014) Harris, O’Boyle and Warbrick: law of the European Convention on Human Rights. OUP, OxfordCrossRefGoogle Scholar
  22. Hickman T (2005) Between human rights and the rule of law: indefinite detention and the derogation model of constitutionalism. MLR 68(4):655–668CrossRefGoogle Scholar
  23. Hiebert J (2005) Parliamentary review of terrorism measures. MLR 68(4):676–680CrossRefGoogle Scholar
  24. Home Affairs Select Committee (2016) Radicalisation: the counter-narrative and identifying the tipping point 8th Report of Session 2016–17. HC 135, August 2016Google Scholar
  25. Home Office (2018) CONTEST The United Kingdom’s Strategy for Countering Terrorism. Cm 9608. June 2018Google Scholar
  26. Home Office (2018a) Home secretary announces new counter-terrorism strategy. 4 June 2018. Accessed 5 Nov 2018
  27. Intelligence and Security Committee (2017) Annual report 2016–2017. HC 655, December 2017Google Scholar
  28. International Commission of Jurists (2009) Assessing damage, urging action. Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights. GenevaGoogle Scholar
  29. Joint Committee on Human Rights (2001) Anti-terrorism, Crime and Security Bill Second Report of Session 2001–02. HL Paper 37, HC 372Google Scholar
  30. 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 462Google Scholar
  31. Joint Committee on Human Rights (2004) Anti-terrorism, Crime and Security Act 2001: Statutory Review and Continuance of Part 4. HL Paper 38, HC 381Google Scholar
  32. Joint Committee on Human Rights (2015) Legislative Scrutiny Counter-Terrorism and Security Bill 5th Report of Session 2014–2015. HL Paper 86, HC 859Google Scholar
  33. 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. Accessed 1 Nov 2018
  34. Legg A (2012) The margin of appreciation in international human rights law: deference and proportionality. OUP, OxfordCrossRefGoogle Scholar
  35. Letsas G (2006) Two concepts of the margin of appreciation. OJLS 4:705CrossRefGoogle Scholar
  36. Loader I (2007) The cultural lives of security and rights. In: Goold B, Lazarus L (eds) Security and human rights. Hart Publishing, OxfordGoogle Scholar
  37. MacAskill E, Johnson P (2016) There will be terrorist attacks in Britain says MI5 chief. The Guardian, 1 November 2016. Accessed 12 Nov 2018
  38. Nugraha Y (2018) Human rights derogation during coup situations. Int J Human Rights 22(2):194CrossRefGoogle Scholar
  39. Pantucci R, Ellis C, Chaplais R (2016) Lone-actor terrorism. Countering lone actor terrorism series no. 11. Royal United Services Institute. Accessed 11 Nov 2018
  40. Perolini M (2017) France’s permanent state of emergency. Amnesty International, 26 September 2017. Accessed 11 Nov 2018
  41. Ramraj V (2005) Terrorism, risk perception and judicial review. In: Roach K, Hor M, Ramraj V (eds) Global anti-terrorism law and policy. CUP, CambridgeCrossRefGoogle Scholar
  42. Ramraj V, Hor M, Roach K, Williams G (eds) (2011) Global anti-terrorism law and policy, 2nd edn. CUP, CambridgeGoogle Scholar
  43. Ross T (2016) Is Britain creeping into another Libyan war? The Telegraph 24 April 2016. Accessed 12 Nov 2018
  44. 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. Accessed 12 Nov 2018
  45. Schneier B (2009) Beyond security theatre. New Internationalist, 1 November 2009. Accessed 12 Nov 2018
  46. Siddique H, Halliday J (2018) ISIS supporter admits to Prince George school attack plot. The Guardian, 31 May 2018. Accessed 11 Nov 2018
  47. Spielmann D (2014) Whither the margin of appreciation? Curr Leg Probl 67:49CrossRefGoogle Scholar
  48. 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):35CrossRefGoogle Scholar
  49. UNSC (2015) Analysis and recommendations with regard to the global threat from foreign terrorist fighters. S/2015/358, May 2015. Accessed 12 Nov 2018
  50. UNSCR (2014) Statement by the President of the Security Council. S/PRST/2014/23, 19 Nov 2014Google Scholar
  51. Walker C (2007) Keeping control of terrorists without losing control of constitutionalism. Stanford Law Rev 59(5):1395Google Scholar
  52. Walker C (2009) Prosecuting terrorism: the Old Bailey versus Belmarsh. Amicus Curiae 9:21–25Google Scholar
  53. Young D (2017) Police foil huge dissident Semtex bomb plot. Belfast Telegraph, 3 June 2017. Accessed 12 Nov 2018
  54. Zedner L (2016) Citizenship deprivation, security and human rights. Eur J Migration Law 18:222–242CrossRefGoogle Scholar

Copyright information

© Springer Nature Singapore Pte Ltd. 2019

Authors and Affiliations

  1. 1.LawUniversity of DurhamDurhamUK
  2. 2.LawUniversity of NorthumbriaNewcastle upon TyneUK

Personalised recommendations