The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

The Joint Committee on Human Rights has now published all of the written evidence it received about the proposed derogations by the UK from the ECHR in situations of conflict abroad. My submission is available here, and the executive summary is as follows:

  • The ECHR applies to military action ‘abroad’ when the state exercises effective control over an area or person so as to give rise to rights on the part of the person/persons in that territory and obligations on the part of the state;
  • Derogation from the ECHR is permissible under Article 15 where war or other public emergency threatening the life of the nation requires it;
  • Actions done pursuant to a derogation must be limited to those that are strictly required by the exigencies of the situation;
  • The European Court of Human Rights has authority to determine (a) whether a war or other public emergency threatening the life of the nation exists so that a derogation is permitted and (b) whether measures taken pursuant to a derogation are limited to those strictly required by the exigencies of the situation;
  • In making these determinations, the European Court of Human Rights gives significant weight to the views of the national government, accommodates the realities of confronting emergencies or of military activity, and shows deference to the views of national institutions such as courts;
  • Derogation is primarily an operational matter, undertaken to allow for military or other measures to be taken in order to bring to an end the war or public emergency thus restoring ‘normalcy’. It is not designed to, nor does it have the effect of, relieving the state from all human rights obligations. It should not undermine accountability for rights violations. It does not impede on the ability to bring a complaint to the European Court of Human Rights, although it is possible that it might frustrate attempts to secure redress under the Human Rights Act 1998.

 

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fdelondras

Professor of Global Legal Studies, Birmingham. Lawyer, foodie, wonk, avid traveller.

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