The role of derogations from the ECHR in the current ‘war on terror’

Helen Fenwick; Daniel Fenwick

doi:10.1007/978-981-10-3894-5_37-1

The role of derogations from the ECHR in the current ‘war on terror’

Helen Fenwick, Daniel Fenwick

Law Department

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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.

Original language	English
Title of host publication	International human rights and counter-terrorism
Editors	Stephen Hoadley, Eran Shor
Place of Publication	Singapore
Publisher	Springer
Pages	259-290
Number of pages	32
ISBN (Electronic)	9789811038945
ISBN (Print)	9789811041808
DOIs	https://doi.org/10.1007/978-981-10-3894-5_37-1 https://doi.org/10.1007/978-981-10-3894-5_37-2 https://doi.org/10.1007/978-981-10-4181-5_37
Publication status	Published - 30 Oct 2019

Publication series

Name	International Human Rights
Publisher	Springer
ISSN (Print)	2523-8841

Keywords

European Convention on Human Rights
Article 15 ECHR
derogations
terrorism
counter-terror measures
control orders
citizenship-stripping

UN SDGs

This output contributes to the following UN Sustainable Development Goals (SDGs)

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Cite this

Fenwick, H., & Fenwick, D. (2019). The role of derogations from the ECHR in the current ‘war on terror’. In S. Hoadley, & E. Shor (Eds.), International human rights and counter-terrorism (pp. 259-290). (International Human Rights). Springer. https://doi.org/10.1007/978-981-10-3894-5_37-1, https://doi.org/10.1007/978-981-10-3894-5_37-2, https://doi.org/10.1007/978-981-10-4181-5_37

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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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Fenwick, H & Fenwick, D 2019, The role of derogations from the ECHR in the current ‘war on terror’. in S Hoadley & E Shor (eds), International human rights and counter-terrorism. International Human Rights, Springer, Singapore, pp. 259-290. https://doi.org/10.1007/978-981-10-3894-5_37-1, https://doi.org/10.1007/978-981-10-3894-5_37-2, https://doi.org/10.1007/978-981-10-4181-5_37

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N2 - 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.

AB - 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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KW - control orders

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The role of derogations from the ECHR in the current ‘war on terror’

Abstract

Publication series

Keywords

UN SDGs

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