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To what extent has the European Court of Human Rights undermined the concept of human rights being ‘universal and inherent’ through the use of mechanisms such as a derogations?

To what extent has the European Court of Human Rights undermined the concept of human rights being ‘universal and inherent’ through the use of mechanisms such as a derogations?

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An essay for the 2011 Undergraduate Awards Competition by Edward McCoy. Originally submitted for Human Rights Law at University of Ulster, with lecturer Dr Gina Bekker in the category of Law
An essay for the 2011 Undergraduate Awards Competition by Edward McCoy. Originally submitted for Human Rights Law at University of Ulster, with lecturer Dr Gina Bekker in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
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05/13/2014

 
Human Rights Coursework1 Word Count: 3000
To what extent has the European Court of Human Rights undermined the concept of human rights
being ‘universal and inherent’ through the use of mechanisms such as a derogations?
 
IntroductionMarie-Bénédicte Dembour (2006) emphasised the view that there existed a clear contradictionbetween
universal human rights and a state’s us
e of derogations where member states are signingup to universal human rights commitments while simultaneously ensuring they have a get outclauses via the mechanism of derogations.
1
This research will address
Dembour’s conundrum
 through discussing the potential rationale behind derogations, their use in practice and consideringwhat extent derogations damage the validity of universal human rights commitments.To evaluate the key issues it is important to outline definitions of the salient concepts within thequestion. The concept of universal and inherent rights coincide and the doctrine provides thathuman rights should be regarded as
‘an independent and indivisible whole, rather 
than as a menu from which one may freely select (or choose not to select).
2
’ 
This suggests human rights should beregarded as
embedded within the individual’s being.
Promoters of the concept of universal rightsalso advocate that
‘human
rights are about universal dignity.
3
’ 
The basis for this view links withinternational law obligations in Article 1 of the Universal Declaration of Human Rights (UDHR)
4
.Despite the UDHR not being legally binding the fact that the many international institutions havealigned themselves with its core principles seems to indicate adequate legislative enforcement asmany states have introduced human rights legislation into their individual constitutions.
5
 The concept of derogations is defined within the European Convention of Human Rights (ECHR) atArticle 15
6
which states it can only be used
‘in a time of war or other public emergency threatening
the life of the nation
’ 
which allows it to derogate
‘from obligations under the Convention to the
extent strictly required.
8
’ 
This mechanism
‘enables states to restrict the exercise of some rights and 
 
1
Marie-Bénédicte Dembour,
Who belie
ves in Human Rights? Reflections on the European Convention’ 
 (Cambridge University Press 2006) 37
2
Jack Donnelly,
Universal human rights in theory and practice
’ (2
nd
edn, Cornell University Press 2002) 23
3
‘Human Rights is about universal dignity’ (
TNN,
4
Universal Declaration of Human Rights, Article 1
5
st
November 2010
6
European Convention of Human Rights, Article 15
7
Ibid
8
Ibid
 
Human Rights Coursework2 Word Count: 3000
 freedoms without violating the Convention.
9
’ 
By accessing the definitions alone it is evident that
Dembour’s assertion
has an accurate basis.Article 15:
The ‘
Two Tier T
est’
 In order to use derogations a state must meet the requirements outlined within Article 15. DespiteArticle 15 listing five requirements for a derogation to be considered valid the courts have oftenfocused
on the ‘
two constitutive elements to Art.15,
10
’ a ‘two tier test,’ to access
whether thederogation meets the demands of Article 15. The first element of the test is that the particularcountry in question must be
‘in a time of war or emergency 
threatening the life of the nation.
11
’ 
Onepotential rationale for including this criterion could be the idea that it ensures human rightsobligations are upheld unless the applying country is in desperate need of severe evasive action tocurb the threat. The second condition is the requirement that the obligations are only derogatedfrom to the
‘extent strictly required by the exigencies
of the situation.
12
’ 
This element incorporatesthe tests of proportionality and necessity. These tests are designed to access whether thederogation is absolutely critical for combating the situation in question. On first glance, the inclusionof these tests suggests that the court are attempting to ensure that rights are only derogated from if it is an absolutely critical to rectify the time of emergency. The link between these requirements wasexplored in Ireland v UK
13
.The Test in ActionThe first element of the derogation test that requires examination is the element relating to thestate being
‘ 
in a time of war or emergency threatening the life of the nation
14
.
’ 
This element hasbeen tested and edited repeatedly by the European Courts. The Lawless Case (1961)
15
ruled that fora derogation to meet this element of Article 15 it must
be ‘
an exceptional situation of crisis or emergency that affects the whole population and that constitutes a threat to the organised life of thecommunity.
16
’ 
The use of the words ‘exceptional’ and ‘whole’ strengthen the test as the type of 
situation required to engage Article 15 is defined more concisely. The Article 15 test was further
9
John Wadham, Helen Mountfield, Caoilfhionn Gallagher, Elizabeth Prochaska
‘Blackstone’s guide to theHuman Rights Act 1998’ 
(5
th
edn, Oxford University Press 2009) 281 - 286
10
 
Kathleen A. Kavanaugh ‘Policing the margins: rights protection and the European Court of Human Rights,’
[2006] EHLR
11
European Convention of Human Rights, Article 15
12
Ibid
13
Ireland v United Kingdom (1978) 2 EHRR 25
 –
 
‘There must be a link between the f 
acts of the emergency on
the one hand and the measures chosen to deal with it on the other.’
 
14
European Convention of Human Rights, Article 15
15
Lawless v Ireland (1961) 1 EHRR 1
16
Ibid
 
Human Rights Coursework3 Word Count: 3000developed in the Greek Case (1969) where the Greek government failed to meet this requirement
17
.The test was tightened by the court which laid down a further element and stated that the dangermust be
‘actual or imminent.
18
’ 
This addition
‘prevents the declaration of public emergency in those
situations where a danger, although maintaining the potential to threaten the life of a nation, doesnot imminently threaten it.
19
’ 
This criterion restricts the danger to a present one and stops statesfrom derogating when the danger may only potentially happen. This promotes a protection foreveryone, including potential terrorists, and ensures the state meets its obligation to protect every
person’s
rights.
The inclusion of the ‘actual or imminent’ element
suggests the courts recognise thatthe use of derogations should only be a last resort and does to an extent undermine the concept of pursuing universal and inherent rights for all.The second element of the derogation test means that provided the
‘war or in time of public
emergency 
20
’ 
requirement is met; the court will then question whether the measures taken by thederogating state are
‘ 
strictly required to meet the exigencies of the situation
21
.’ 
This elementcontains
‘significant words of limitation – 
 
“extent”, “strictly” 
 
and “exigencies”.’
22
The wording of thissection has led the courts to focus on three key sub section tests to determine whether a derogationwas
‘strictly required t 
o meet the exigencies of the situation
23
.’ 
The first test relates to the analysisregarding the necessity of the derogation.
This test stems from the terms ‘exigencies’ and ‘strictlyrequired’
24
and is designed to question whether the action taken using the derogation is absolutelycrucial in order to combat the danger. The second element relates to proportionality which carriesthe heaviest emphasis. The use of the
‘term ‘ 
str 
ictly required’ 
strengthens the element of  proportionality and indicates an implicit obligation to act in good faith
25
.’ 
The proportionality test isdesigned to evaluate whether the measures taken by the state are no greater that what is requiredto deal with the circumstance. This demonstrates that the Council of Europe is attempting tosafeguard the universalism by asserting that derogations can only be engaged if it is an
‘exceptional 
circumstance.
26
’ 
This stance of a derogation being used in an ‘exceptional circumstance’ also
safeguards the core fundamental rights as it provides that
‘if equivalent results could be achieved 
17
The Greek case (1969) 12 YB 1, Para 153
18
John Wadham, Supra 9, at 282
19
 
Aly Mokhtar ‘Human rights obligations v. derogations: article 15 of the European convention on humanrights,’ [2004] International Journal for Human Rights 8, 65 –
87
20
European Convention of Human Rights, Article 15
21
Ibid
22
 
Joan Hartman, ‘Derogation from Human Rights Treaties in Public Emergencies’ [1981] Harvard International
Law Journal 22, 17
23
European Convention of Human Rights, Article 15
24
Aly Mokhtar, Supra 19, at 65
 –
87
25
Joan Hartman, Supra 22, at 17
26
Supra 15

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