Derogating to Deal with Covid 19: State Practice and Thoughts on the Need for Notification

In her blog post on EJIL: Talk! (9 April 2020), Dr Stevie Martin drew attention to an interesting development concerning States’ measures to deal with Covid 19 and their impact on human rights. She discusses a decision of the England and Wales Court of Protection in which a judge appeared to find that the UK was derogating from its obligations under Article 5 ECHR, when no notification had been deposited with the Secretary General of the Council of Europe informing other States parties of any UK derogation in relation to its efforts to deal with Covid 19.

Professor Dapo Akande commented on the blog post, raising several interesting questions, including: whether national courts are competent to pronounce a derogation, and whether notification is a requirement for the State to be able to rely on the derogation provision.

I wanted to share some up-to-date State practice on derogations from the ECHR dealing with Covid 19 and to add some commentary, particularly on the question whether notification is a requirement for a State to be able to rely upon derogation.

State practice: ECHR derogations and Covid 19

As of 9 April 2020, nine States parties to the ECHR have formally notified derogations to the ECHR to deal with Covid 19 (Albania, Armenia, Estonia, Georgia, Latvia, North Macedonia, Republic of Moldova, Romania and Serbia).

These notifications are made in the form of letters or notes verbale, submitted to the Secretary General of the Council of Europe in line with Art. 15(3) ECHR, which sets out that States availing themselves of derogation “shall keep the Secretary General of the Council of Europe fully informed of the measures… taken and the reasons therefor”. All such notifications are published on the CoE website*.

These notifications are typically deposited by political representatives of the State. See, for example, the text of the notification made by Serbia: “The Ministry of Foreign Affairs of the Republic of Serbia… has the honour to inform that, in line with Article 15 of the Convention… Serbia has declared a state of emergency…” The facts and circumstances of the derogation follow.

However, the fact that it is typically political representatives who deposit these notifications does not resolve Akande’s question of whether national courts are competent to make a derogation (see discussion of Cyprus v Turkey below).

Is (international) notification a requirement for a State to rely on derogation under the ECHR?

In his comment on Martin’s blog post, Akande asks whether, absent a notification, a State can rely on a derogation.

As noted above, notification of derogation at the international level is envisaged under Art. 15(3) ECHR. The question, however, is not whether notification is envisaged by the Convention, but what is the effect of a lack of notification, or of inadequate notification – does it vitiate a State’s ability to rely on the derogation provision and avoid a violation of its obligations under the human rights treaty?

The ECHR organs have recognised this question, but consistently avoided conclusively determining whether (adequate) notification at the international level is a condition precedent for a State to be able to rely on derogation to preclude violation of its Convention obligations. This question has sometimes been tied up with whether derogation must in addition be (or can instead be) promulgated at the national level, if a State is to be able to rely on Art. 15. Below, I survey the relevant jurisprudence. I also proceed to give a provisional view about whether or not notification should be a requirement for States to be able to rely on the protection of Art. 15.

In the First Cyprus Case (Greece v UK) (Application No. 176/56), the respondent British Government argued [154] that the State’s ability to derogate “is not made dependent on the obligation to inform” other States parties under Art. 15(3). If this assertion meant that States are able to take derogation measures chronologically before notifying derogation, then it is uncontroversial – due to the exceptional circumstances, notification can be delayed up to a point, and can come subsequent to the taking of the measures themselves (see e.g. Lawless v Ireland (No. 3) (1979-80) 1 EHRR 15 [47]).

But the UK’s argument could also be interpreted as suggesting that notification is not a requirement for the State to be able to rely on Art. 15. This appears to have been what was intended, since the Government submitted that “subject to the provisions of paragraphs (1) and (2) of Art. 15, the right to derogate is unconditional”. That view would imply that a State could still rely on Art. 15, absent notification, if the conditions in Art. 15(1) and (2) are met. (I have some difficulty with this view, see below the section entitled ‘Discussion’.)

The Commission noted [158] that Art. 15(3) does not speak “of any sanction” for incomplete information on the measure of derogation. Since the derogation had been determined to comply with Art. 15(1) and (2) (i.e. there was a public emergency threatening the life of the nation** and the measure adopted (detention without trial) was strictly required by the exigencies of the situation), the Commission decided that there was “no question of the measure taken… under Art. 15(1) being invalidated by reason of the delay… in complying with [the] obligation to inform the Secretary General of the measure”. However, the Commission affirmed that it was “not to be understood as having expressed the view that in no circumstances whatever may a failure to comply with [Art. 15(3)] attract the sanction of nullity or some other sanction”. The Commission therefore left the door open, and declined to determine whether notification is a requirement, failure to comply with which precludes the protection of Art. 15 ECHR.

In Lawless v Ireland, Ireland had sent a letter to the Secretary General with information about measures to try and restore peace and order, but the applicant contended [44] (i) that the notification was insufficient, lacking detail and the ‘character’ of a notice of derogation; and (ii) even if there was sufficient notification at the international level, the State could not rely on this before the date at which it was first made public in Ireland.

The Commission considered that the letter was sufficient to indicate the nature of the measures and there was sufficient compliance with Art. 15(3). On Lawless’ argument about the need for domestic promulgation, the Commission referred to the fact that Art. 15(3) “required only that the Secretary-General of the Council of Europe be informed of the measures of derogation taken, without obliging the State concerned to promulgate the notice of derogation within the framework of its municipal laws”.

The ECtHR, for its part, considered that the Irish Government had given the Secretary General sufficient information, as well as making the notification without delay (12 days after the measures were adopted). The Court also held that the Convention “does not contain any special provision to the effect that the Contracting State concerned must promulgate in its territory the notice of derogation addressed to the Secretary-General of the Council of Europe”. As the Court concluded that the Government had satisfied Art. 15(3), it was not called upon to address the effect of failure of (or inadequate) notification on the State’s ability to derogate.

In Cyprus v Turkey (Application Nos. 6780/74 AND 6950/75), the Commission [526] referred to its dicta in the First Cyprus Case and to the Court’s dicta in Lawless, but held [527] that it “still does not consider itself called upon generally to determine the question” of whether failure to comply with Art. 15(3) nullifies (i.e. prevents the State from relying on) a derogation. It did find, however, “that, in any case, Art. 15 requires some formal and public act of derogation, such as a declaration of martial law or state of emergency, and that, where no such act has been proclaimed by the High Contracting Party concerned, although it was not in the circumstances prevented from doing so, [Art. 15] cannot apply”.

This could mean one of two things, either: (i) it does not matter (in terms of accessing the protection of the derogation provision, at least) if there is no notification deposited with the Secretary General at the international level – States can still rely on the protection of Art. 15 so long as they make some form of official proclamation at the domestic level; or (ii) in addition to the notification deposited with the Secretary General, there must also be some formal act at the domestic level. The latter view would bring the ECHR into line with the derogation provision under the ICCPR (Article 4), which requires that a qualifying emergency be ‘official proclaimed’ (Art. 4(1)), in addition to notification at the international level (Art. 4(3)).

Given the Commission’s reference to concepts pertinent to the domestic context (declarations of martial law / state of emergency) when describing the ‘formal and public act’, it may perhaps have had (ii) above in mind (and then we would get to the question of who could do that: just the executive, or the domestic courts?) In any event, since the Commission expressly stated that it was not called upon to determine whether failure to provide notification under Art. 15(3) precludes the State’s ability to rely on derogation, we can conclude that Cyprus v Turkey does not give determinative guidance on the effect of a failure (adequately) to notify a derogation at the international level.

An instance in which a Convention organ had the opportunity to rule on this point (i.e. on the ‘sanction’ for lack of / inadequate notification under Art. 15(3)) could have come in the Greek case (Denmark, Norway, Sweden and the Netherlands v Greece) (Application Nos. 3321/67, 3322/67, 3323/67, 3344/67), but again the opportunity was not taken.

The Commission concluded that Greece had not fully complied with Art. 15(3) ECHR, since it had not notified the CoE of administrative measures, nor the texts of legislative measures and the new constitution, nor were the reasons for derogation communicated until 4 months after the measures were taken. But the Commission did not need to address the effect of the failure to satisfy Art. 15(3) on the State’s ability to derogate, because valid derogation was precluded by the finding [165] that there was not a public emergency threatening the life of the nation under Art. 15(1). To be fair to the Commission, it was thus not obliged to decide the effect of inadequate notification, but in failing to do so, it missed an opportunity to clarify an important issue under Art. 15.

Discussion

In summary, the Court (and, when it operated, the Commission) consistently reserved their views on whether lack of, or inadequate, notification under Art. 15(3) may “attract the sanction of nullity or some other sanction”; in other words, whether a State can rely on a derogation in the absence of (or following an inadequate) notification. The ECHR organs have consistently avoided deciding whether notification is, in this way, a condition precedent for valid derogation (i.e. a derogation that enables the State to avoid a violation). It is a very interesting question that may ultimately require judicial resolution.

I am currently conducting research on the topic of derogation. My view at the moment is that notification in some form ought to be a requirement for a State to be able to benefit from derogation, for several reasons.

First, if notification is not a condition precedent for the State’s ability to rely on Art. 15, it will be impossible to tell the difference between a restriction going beyond the scope of permissible limitations (i.e. a violation) and a derogation. This uncertainty in the fine line between limitations and derogations generates differences of view like those expressed by the majority and minority in Hassan v UK 38 BHRC 358: the majority [104] interpreted Art. 5(1) to encompass a (some would say novel) limitation – security detention in international armed conflict; whereas the minority viewed that as an impermissible extension of exceptions to Art. 5(1) and considered that the UK ought to have notified a derogation to avoid a violation (partly dissenting opinion [5], [18]).

Second, having notification as a requirement conditioning the State’s ability to derogate promotes transparency and adherence to the rule of law when the State is taking measures that would, under normal circumstances, constitute impermissible restrictions on human rights.

* To access: navigate to search on treaties, and refine by CETS No. 005, derogations.

** Interestingly – in the First Cyprus Case, the relevant ‘nation’ whose life had to be threatened for Article 15 purposes was deemed to be Cyprus (not Britain). This sheds interesting light on the debate about the ability of a State to derogate in respect of an overseas territory and whether the life of the whole population must be threatened.