Under international human rights law, states carry a legal duty to respect, protect and fulfil human rights. However, in some cases, for example in times of war, intimidation or some other reason threatening the existence of the nation, it may be possible for states to suspend these obligations and introduce “state of emergency”1. During the coronavirus outbreak, the reasons for states to declare a state of emergency is to avoid spreading the infection and protect the health of their citizens. Although certain human rights can be suspended in situations of emergency; human rights conventions, such as the European Convention on Human Rights (“ECHR”), continue to apply. Therefore, all derogations of human rights are strictly regulated under EU Law. Hence these restrictions arising from the derogations can only be established under very clear and strict conditions and in very limited circumstances. In reality, many human rights instruments contain “emergency clauses” that give governments additional flexibility to address crises2. Indeed, within the ECHR framework, Article 15 is one such clause that allows member states to temporarily diverge from their ordinary convention obligations to resolve emergency if certain conditions are met.

1. The Particular Role of the Article 15 of the ECHR

During the coronavirus pandemic, derogation clauses such as Article 15 of the ECHR, have gained great importance. Such that member states are entitled only to derogate from the Human Rights Convention: “In a 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 its other obligations under international law” (Article 15(1)). Therefore, Article 15, which is a derogation clause, gives the contracting states, in exceptional circumstances, the possibility of derogating, in a limited and supervised manner. Furthermore, derogations should meet a few criteria: they should (1) be proportionate to the crisis, (2) be necessary for protecting the nation and responding to the threat, (3) not discriminate based on race, colour, sex, language, religion or social origin, (4) remain compatible with the state’s other international law obligations and, (5) last only as long as necessary3.

Some member states have publicly announced that certain human rights and fundamental freedoms may be temporarily suspended or restricted for the duration of the state of emergency, but only if so required by circumstances. In March and April 2020, ten member states notified their intention to derogate from certain ECHR provisions by invoking the Article 15 to tackle the coronavirus pandemic4. Until now, eight contracting parties to the ECHR, including Turkey, have relied on their right of derogation5. However, the duration of derogations concerning coronavirus pandemic is still unclear. So far, most states have announced that it will last one or two months, with the possibility of an extension. Although, the Court agreed that derogations may last several years according to the Marshall v UK6 case, the uncertainty in relation to the duration of the such derogations has brought many criticisms as extensions perhaps would be unjustified and unlawful. Therefore, according to many scholars and according to us, an amendment contain which contains precise language and certainty to the ECHR must be made the purposes to determine and designate the lawful extension of the such derogations.

2. Non-Derogable Rights

Some rights stipulated under the Convention such as the right foreseen under the Article 15(2) cannot be limited, suspender and therefore are called to be non-derogable. Article 15(2) of the ECHR clearly states that certain rights under the Convention cannot be derogated upon under any circumstances even in times of a state of emergency7. The ECHR lists several rights that cannot be derogated from. These rights are, namely; the right to life (Article 2), freedom from torture or inhumane or degrading treatment or punishment (Article 3), freedom from slavery, servitude, or forced or compulsory labour (Article 4(1)) and freedom from retroactive criminal offences and punishment (Article 7). The non-derogable rights under the ECHR are limited compared to those under the International Covenant on Civil and Political Rights (ICCPR). Article 4(2) of the ICCPR sets out that there are seven rights that cannot be suspended even under any circumstances or under any emergency situation. The Article 4(2) states that: “No derogation from articles 6, 7, 8, 11, 15, 16 and 18 may be made under this provision”8. While the ECHR uses the more general phrases, the ICCPR is more exact especially about the timing9. For example, ICCPR uses words such as “immediately” or “on the date on which it terminates” whereas the ECHR lacks such time indications. For this reasons it is true to set forward that, despite these two regulations are common in envisaging reasons to derogate from specific rights and foreseeing non-derogable rights they separate from the other in terms of interpretation.

3. Approach of the European Court of Human Rights – Lawless v. Ireland and Greek Case

The first substantive interpretation of the Article 15 of the ECHR by the European Court of Human Rights (“Court”) was made within the scope of the case called of Lawless v. Ireland10. The Court clarified the characteristics of the public emergency in both cases. The facts of the Lawless case are as follows; since the establishment of the Irish Free State in 1921, the “Irish Republican Army” (IRA) has been formed to use violence to end British sovereignty in Northern Ireland. The Irish Government introduced the Offences Against the State Act in 1940 and derogated from Article 5 to permit detention without charge or trial. The case was filed by Lawless, who was arrested and detained under the indefinite detention without trial under the Offences Against the State Act, on the grounds of Article 5, 6 and 7 of the ECHR. Although the Court found that the detention of Lawless was contrary to the Article 5, the detention without trial was justified under the Article 15.

In Lawless case, the Court interpreted “public emergency” as an exceptional situation of a crisis or a public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes a threat to the organised life of the community of which the state is composed11. The definition of “public emergency” was then developed in Greek case12. In this case, the European Commission of Human Rights established that public emergency threatening the life of a nation has four: (1) it must be actual and imminent, (2) its effects needs to involve the whole nation, (3) the continuance of the organised life of the community must be threatened, (4) the danger must be exceptional.

Conclusion

The coronavirus pandemic is clearly within the definition of a state of emergency. However, Article 15 under the ECHR does not allow member states to interfere with human rights with their own discretion during the state of emergencies. Hence, all derogation measures must be “strictly required by the exigencies of the public health situation, must be temporary

FOOTNOTES

and limited in their geographical scope”13. Declaring a state of emergency under Article 15 is the best practice for member states to derogate from certain ECHR provisions during the coronavirus pandemic14. Failure to use Article 15 would risk normalising exceptional powers and worsening human rights protection. Every restriction must be prescribed by law and must be necessary as the Article 15 cannot be used under any circumstance to interfere with human rights whereas the otherwise would mean violating such human right.

1 OHCHR, International Human Rights Law (https://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx);Gerd Oberleitner, ‘Human Rights in Armed Conflict’, (Cambridge University Press 2015) p. 145

2 European Parliament Think Tank, ‘Upholding Human Rights in Europe During the Pandemic’ (23 September 2020) (https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2020)652085)

3 United Nations Human Rights, Emergency Measures and Covid-19: Guidance (https://www.ohchr.org/Documents/

4 Latvia, Romania, Armenia, the Republic of Moldova, Estonia, Georgia, Albania, North Macedonia, Serbia and San

5 Council of Europe Treaty Office (https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/ declarations); ECHR, ‘Derogation in Time of Emergency’ (September 2020) (https://www.echr.coe.int/Documents/Events/EmergencyMeasures_COVID19.pdf)

Marino.

FS_Derogation_ENG.pdf)

6 Marshall v. The United Kingdom, (App. 41571/98), 10 July

7 Article 15(2) of the European Court of Human Rights 2001

8 Article 4 of the International Covenant on Civil and Political Rights

9 Bart Van Der Sloot, “Is All Fair in Love and War? An Analysis of the Case Law on Article 15 ECHR” (Military Law and the Law of War Review 53/1, 2014)

10 Lawless v. Ireland, (App. 332/57), 14 November 1960

11 Robin White and Clare Ovey, “The European Convention on Human Rights” (5th edn, Oxford University Press 2010) p. 119

12 Netherlands v. Greece case [1969]

13 International Justice Resource Center, ‘OHCHR& Human Rights Committee Address Derogations During Covid-19’ (29 April 2020) (https://ijrcenter.org/2020/04/29/ohchr-human-rights-committee-address-derogations-during-covid-19/)

14 Strasbourg Observers, ‘States Should Declare a State of Emergency Using Article 15 ECHR to Confront the Coronavirus Pandemic’ (1 April 2020) (https://strasbourgobservers.com/2020/04/01/states-should-declare-a-state-ofemergency-using-article-15-echr-to-confront-the-coronavirus-pandemic/)