Last October it was announced that the UK government may derogate from the ECHR in relation to future armed conflicts (see EJIL-Talk analysis here). This prompted the (UK Parliamentary) Joint Committee on Human Rights to launch an inquiry into this matter, details of which may be found on its web site (here). The JCHR called for written submissions on the matter.
I made a written submission (which I hope will appear on the JCHR’s web site soon, along with other submissions). I set out an extract from my submission below (please note footnotes are not included, I am happy to send a copy of my submission to anyone who contacts me: firstname.lastname@example.org)
My submission addresses whether extra-territorial derogations from the ECHR are permissible, and on what basis. I argue that they are, but that their special context requires consideration in relation to the validity of any individual derogation.
Indeed, the relevant case law, and the policy issues arising, are complex, and need careful consideration. In this connection, consider the comments of Lord Wilson in a recent UK Supreme Court case (Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) Serdar Mohammed (Respondent) v Ministry of Defence (Appellant) 17 January 2017,  UKSC 2)) concerning the ability of UK armed forces to detain in the context of a non-international armed conflict (which required an appropriate reading of Article 5(1) adjusted to this context, without which, a derogation would, presumably, have been required to maintain the legality of the UK’s actions). Lord Wilson stated:
‘… No doubt there would again be dissentient voices, concerned, in a way understandably, about a perceived dilution of Convention rights. But a vastly more important factor would be in play. For all of us judges, both in Strasbourg and in the United Kingdom, who believe – many of us, passionately – in the value of the Convention in having raised the standards of a state’s treatment of its people across the Council of Europe, its very credibility is at stake in determination of the present issues. Could it be that, by reason of article 5(1), such state contributors to the multinational forces in Iraq and Afghanistan as happened also to be members of the Council of Europe would be legally disabled from effecting internments in Iraq after 28 June 2004, and from effecting internments in Afghanistan beyond 96 hours, even where necessary for the maintenance of security and even pursuant to UN resolutions which, having surveyed the nature of the conflict there, expressly sanctioned internment in such circumstances? Could it be that those contributors to the multinational force would be disabled from acting pursuant to the UN resolutions although fellow-contributors which happened not to be members of the Council of Europe would not be so disabled? Such conclusions would bring the Convention into widespread international disrepute and it is, frankly, a relief for me to have found myself persuaded that they can properly be avoided’, para 143.
I suspect the general issues at play, and the connected matter of extra-territorial derogations, are very likely to reach Strasbourg at some stage. Indeed, these matters are relevant to the integrity of the ECHR system as a whole, as well as its credibility, as Lord Wilson suggests. As such, they would be a prime example of how useful an Advisory Opinion procedure would be for the ECHR (Protocol 16 has yet to enter into force). That said, I wonder how keen the Strasbourg judiciary would be to address the issues given their magnitude and the need for clarity. If and when they do, I do hope they keep Lord Wilson’s words in mind.
Joint Committee on Human Rights Inquiry – ‘The Government’s proposed derogation from the ECHR’
Submission by Dr Ed Bates, Associate Professor (Law), University of Leicester (30 March 2017)
This submission is divided into two main parts:
- Address the specific questions raised by the JCHR Inquiry. [not included here]
 Addresses the issue of extra-territorial derogations more generally. [included here]
8. Are extra-territorial derogations from the ECHR permissible? If so, on what basis?
This section proceeds in four main steps.
– Firstly, it briefly examines the rationale for the derogation clause under the ECHR.
– This is to underline why, secondly, it is unrealistic to apply that (same) rationale to an extra-territorial derogation (it is not the situation pertaining in the metropolitan territory – the UK – that is relevant, but that occurring overseas).
– Thirdly, by examining existing ECtHR case law, the section examines the threshold circumstances that (it is submitted) should apply for when a State may lawfully derogate on an extra-territorial basis. Here it is recognized that extra-territorial derogations should be permissible under the ECHR.
– Fourthly, it is observed that the threshold circumstances for when an extra-territorial derogation is permissible is closely connected to the issue of how Strasbourg has already modified human rights standards in the extra-territorial context. Indeed, the way it has done so significantly mitigates the necessity for derogation, or so it seems, albeit there remains some areas which require further clarification in law.
8.1 The rationale for the derogation clause (Article 15) under the ECHR and why it does not transfer for extra-territorial derogations.
8.1.1 The substantive text of the ECHR allows for many restrictions on Convention rights (see, for example, Articles 8(2)-11(2)). It is submitted that a survey of the drafting history of Article 15 and related human rights instruments, confirms that the main rationale for the derogation clause was to permit the State, in exceptional circumstances, to take extraordinary measures to protect itself when the regular/ordinary restrictions permitted by Convention rights would be insufficient.
8.1.2 As envisaged by the Convention’s drafters those exceptional circumstances were equated by the need for there to be a ‘war or other public emergency threatening the life of the nation’. However, as noted below, the ECtHR has not adopted a literal understanding of this provision.
8.1.3 The core rationale of the derogation clause was to protect the vital interests of the State’s population when faced with an exceptional threat putting those interests in jeopardy. It was to allow the State, faced with an exceptional crisis, to temporarily compromise the enjoyment of rights for the greater good. Of paramount importance, however, it was protective of the human rights interests of those concerned in the wider sense: the relevant circumstances were envisaged as being deemed important enough to permit curtailment of rights (but never non-derogable rights) on a temporary basis in order to avoid irreparable harm to the public, and its prospective human rights protection. An example of irreparable harm would be the threats that war or civil war posed to the functioning of basic institutions whose continued existence was a pre-condition to the continuance of (or restoration of) democracy and human rights in ‘normal times’.
8.1.4 It is recognized that it is a sweeping statement to suggest that the Convention’s drafters never envisaged the extra-territorial application of the Convention at all. Equally, however, it can be said that there is little to suggest that it is likely that they foresaw the application of the Convention in an extra-territorial context as it exists today. That that is so has been the product of ECtHR case law, especially that of the last 10 years. Moreover, it is reasonable to argue that the breadth and extent of ECtHR case law on Articles such as Articles 2, 3 and 5 exists on a scale that the Convention’s drafters would have found hard to imagine in 1950.
8.1.5 It is for such reasons that it is submitted that it is inappropriate and unrealistic to envisage that the rationale for the derogation clause (as noted above) as a mechanism envisaged for metropolitan territories of States, may be transferred to the extra-territorial context, at least not without significant adjustment and modifications. In short, it is inappropriate to always require a threat to the interests of the metropolitan territory of the State (‘the life of the nation’ there) as a condition of derogation; it is the situation in the extra-territorial unit (potentially thousands of miles away) that counts.
8.2 Extra-territorial derogations generally
8.2.1. All preceding ECHR jurisprudence on derogations has concerned measures taken in respect of the metropolitan territory of the derogating State. There is, therefore, no jurisprudence on extra-territorial derogations; that said, statements made by the Court in its extra-territorial (non-derogation) jurisprudence are consistent with the proposition that the ECtHR may regard extra-territorial derogations as acceptable in principle, albeit subject to strict conditions.
8.2.2 I therefore proceed on the assumption that, in principle, extra-territorial derogation is lawful under the ECHR, but would break new ground, and serve as an important precedent. This is why such a derogation must be consistent with the fundamental principles that may be extracted from ECHR case law.
8.2.3 What follows is an attempt to identify what those principles should be. This requires some speculation, for, consistent with what has been said above, it is submitted that there is some validity to the claim made in the Government Memorandum to the JCHR (27 Feb 2017) that the ECHR ‘was a system not designed by its framers to cover [battlefield] operations’, such that ‘[t]he principles under particular consideration by the courts in recent years are thus having to be adapted to a situation for which they were not designed and developed case by case’ (para 4).
8.2.4 That said, ECtHR case law has seen significant adaptations made to the required standards, accommodating many concerns. As such, a key point of what follows is to underline that the onus should be on the government to precisely identify why the regime of human rights protection it would otherwise be bound by – and has been modified to extra-territorial context – constrains it to a point when a derogation is required to achieve the relevant public policy goals at stake.
8.3 Overview of when Article 15(1) can be resorted to – threshold circumstances and extra-territorial standards
8.3.1 There is no ECtHR jurisprudence on how the threshold circumstances for reliance on Article 15(1) (the need for a ‘war or other public emergency threatening the life of the nation’) should be adapted to the extra-territorial context. Novel questions arise, such as which ‘nation[‘s]’ ‘life’ must be ‘threaten[ed]’? For the reasons already stated, I proceed on the assumption that it is the situation prevailing in the extra-territorial unit that counts, assuming the effects of the derogation are to apply there.
8.3.2 That itself raises the question, how serious must the situation be in the extra-territorial unit before the Convention state is entitled to derogate? In other terms, what are the threshold circumstances for reliance on Article 15(1) in this extra-territorial context?
8.3.3 This is a question that only the ECtHR can answer authoritatively. However, it is in the nature of the situation that it is necessary for any derogating State to try to anticipate what the ECtHR’s approach would be. Here it is submitted that there are strong grounds to argue that the Court would have in mind that the Convention’s extra-territorial reach is itself the product of judicial interpretation of Article 1 of the ECHR, and that that would underline the need for a pragmatic approach to be adopted to a derogation made in the extra-territorial context.
8.3.4 In that connection the Court has already adopted a pragmatic approach to both (i) the threshold circumstances for reliance on Article 15(1) (in its jurisprudence to date, concerning metropolitan territories)) and to (ii) extra-territorial applicability of the ECHR. Each will now be (briefly) considered in turn, on the basis that to do so will guide an understanding of how the ECtHR would approach the issue identified in 8.3.2 above.
(i) Threshold circumstances.
a. From its first ever case on derogations (Lawless v Ireland) the Court has adopted a realistic approach to the position of the State and the imperatives it faces when confronted with an exceptional situation or crisis requiring special measures.
b. So, for example, the Court has adapted Article 15(1) to the terrorism context (which was not necessarily envisaged when the Convention was drafted); ‘threat to the life of the nation’ has not been interpreted literally but flexibly (and, for example, the Court does not require the whole nation to be effected by the ‘emergency’). This flexible approach was demonstrated by the willingness of the Court to adapt Article 15(1) to the context of the derogation submitted by the UK after ‘September 11th’ 2001.
c. Taking the ECtHR’s case law overall, I submit that the key rationale for reliance on Art 15(1) can be taken to be the point identified in the former European Commission on Human Rights articulation in the ‘Greek’ case that the threshold/ qualifying circumstances for reliance on Article 15 is that:
‘the crisis or danger [the one meriting derogation in the first place] must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate’ (emphasis added).
d. That is, I submit that the basic purpose of Article 15(1) as it has developed in the ECtHR’s case law is as follows: to allow the State to act in a legally valid way in a situation the nature or magnitude of which is so ‘exceptional’ that ‘normal measures’ – the normal ECHR standards (now very highly developed) for addressing it – can reasonably be assumed to be insufficient.
e. Adapting this to an extra-territorial operation, the relevant conceptual framework would be: there ‘must be exceptional’ circumstances at play affecting the overseas operation such that ‘the normal measures or restrictions, permitted by the Convention… are plainly inadequate’.
(ii) Standards of human rights protection required in the extra-territorial context.
a. The test just identified underlines the importance of appreciating ‘the normal measures or restrictions, permitted by the Convention’ in the relevant context, i.e. the general stance the ECtHR has adopted to standards of human rights protection in the extra-territorial context. Here we observe that there are strong signals that the Court adopts a flexible approach, striking appropriate balances and mindful of the needs and resources of the State acting in good faith.
b. Examples of the Court’s readiness to approach human rights standard setting in a realistic way in this (extra-territorial) context are:
– Jaloud v the Netherlands: the Court adopted a context-dependent approach to the standards required for an Article 2-compliant investigation.
– Hassan v UK: in a case concerning the extra-territorial reach of the Convention, the ECtHR adapted its understanding of the application of Article 5(1) so that it could apply to detention outside peacetime conditions; in the context of an international armed conflict occurring overseas, it held (in effect) that the legally valid basis for detention under Article 5 (and accompanying safeguards) coincided with that applicable under international humanitarian law. On the face of it this case mitigates the need for a derogation from Article 5 when there is an international armed conflict (as opposed to a non-international armed conflict).
– In Hassan the Court also adopted a pragmatic approach to the review of detention required by Article 5(4), i.e. one that had in mind the circumstances and context.
c. In addition to the above, recent case law from the UK Supreme Court (Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) Serdar Mohammed (Respondent) v Ministry of Defence (Appellant) ), applying human rights standards under the Human Rights Act, should provide a measure of reassurance to the government. In essence, certain principles derived from the Hassan case were applied to a non-international armed conflict.
d. That said, there remains some legal uncertainty here. Partly this is inherent in the fact that it remains to be seen whether the ECtHR would agree with the approach adopted by the UKSC to various aspects of the UKSC’s ruling. Partly the uncertainty may be derived from the fact that the ruling in Serdar Mohammed was confined to the specific international law background relevant to it (in particular the influence of relevant United Security Council Resolutions), one which may not apply in other overseas operations to be undertaken by the UK.
e. This legal uncertainty entails that there remains some doubts as to what the ‘the normal measures or restrictions, permitted by the Convention’ are in the context of a non-international armed conflict. As such there are also doubts as to when the threshold conditions for an extra-territorial derogation arise (on the basis argued for above). It is, perhaps, in relation to this point that the Memorandum attached to the Minister’s reply to the JCHR dated 27 February 2017 referred to the example of the need to consider derogation ‘if there were to be no or only uncertain power to detain those who were engaged in armed conflict against UK forces’ (para 5).
f. This legal uncertainty may create a real quandary for a State, even though it would be hoped that clarity would be brought to the situation in due course, and following the pragmatic approach the ECtHR has so far displayed.
g. Even so, and dependent on circumstances, the legal uncertainty as to what conduct is or is not permitted under the Convention may entail that there is some, limited room for a derogation to address the legal uncertainty, in order to avoid a potential violation of the ECHR were it to transpire that the action (eg internment in a non-international armed conflict) would otherwise breach Article 5, ECHR.
h. The basis for such a derogation and why, would be for the government to fully substantiate at the time of derogation, and on the premise that, if appropriate, the derogation should be withdrawn (if appropriate) should legal clarity be obtained (eg by case law development).
SUMMARY: When precisely can Article 15(1) be relied upon in an extra-territorial context?
8.4 Proceeding on the assumption that an extra-territorial derogation from the Convention would be acceptable to the ECtHR in principle, it is submitted that the applicable conceptual framework for when it is permissible to derogate from the Convention for an overseas operation would be as follows. There ‘must be exceptional’ circumstances at play affecting the overseas operation such that ‘the normal measures or restrictions, permitted by the Convention… are plainly inadequate’. See 8.3.4(i) above.
8.5 When considering whether that test is satisfied, in the extra-territorial setting, the point of departure is to note that the applicable ECHR standards already reflect significant adjustments for that context: they potentially allow for significant restrictions on human rights. See 8.3.4(ii).
8.6 As such, it is submitted that the burden would be on the derogating State (the government) to identify why those standards constrain it to the extent that a derogation is positively necessary.
8.7 It is true that there remains (inevitably) some uncertainty as to the applicability of Convention law to the extra-territorial context, as noted above. This has a potential relevance to when a State may derogate in that context. To the extent that a derogation is proposed on the basis of the legal uncertainty, the onus would remain with the government to identify that legal uncertainty when derogating.
8.8 In all scenarios it would also be incumbent on the derogating State (the government) to minimize the interference with rights. Under the Human Rights Act the validity of the decision to derogate would be reviewable by the domestic courts, as would the question of whether the measures taken were ‘strictly required by the exigencies of the situation’ (see Article 15(1)), albeit an element of ‘deference’ is likely to operate.
8.9 Ultimately it is possible that the ECtHR would address these issues.