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

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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.

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Seniha Birand Cinar says

April 10, 2020

Perhaps notification is a requirement when the prevalence of a state of emergency is not evident. This could be so, for example when a single state is affected by an emergency due to an internal crisis or due to what it decided to be an internal crisis. In such cases an express declaration/notification could be said to be sought given that the declared existence of a crisis is not visible from
outside.

Yet in the case of a pandemic, such as the one within which we find ourselves today, I presume that a notification may not be a prerequisite of Article 15. Not one state is in a position to dispute the existence of a state of emergency.

On the other hand, not the form but rather the nature of derogation as well the measures taken in order to limit to the extent possible the derogation appears to be the quintessential element in the context of both Article 15 and human rights instruments as a whole.

Jeremy McBride says

April 10, 2020

The European Court has accepted that the provisions of the European Convention can be interpreted against the background of the provisions of international humanitarian law even in the absence of a formal derogation (Hassan v. United Kingdom [GC]no. 29750/09, 16 September 2014, paras. 104-107.
However, outside of such a situation, the absence of a derogation will preclude reliance on restrictions that would only otherwise be acceptable in an emergency as understood for the purposes of Article 15; Brogan and Others v. United Kingdom, no. 11209/84, 29 November 1988, para. 48. Furthermore, the need for a formal submission of notices of derogation to the Secretary General of the Council of Europe was seen in Ireland v. United Kingdom [P]no. 5310/71, 18 January 1978, as an element in fulfilling the requirements of Article 15; paras. 223-224.
Moreover, the terms of the derogation are decisive for determining as to what is permitted since it will not be regarded as covering a territory not mentioned in it; Sakik and Others, no. 23878/94, 26 November 1997, para. 39.
In addition, the European Court will examine the notice of derogation to determine whether it contains sufficient information about the measure in question to satisfy the requirements of Article 15(3); Aksoy v. Turkey, no. no. 21987/93, 18 December 1996, para. 86.
It seems, therefore, that there can be no derogation without a formal notice that give sufficient information as to the measures being taken and the circumstances considered to justify the existence of an emergency.

Bruno Gelinas-Faucher says

April 11, 2020

Thank you for a very interesting post. Is there any chance that the ECHR could draw inspiration from comparative human rights jurisprudence? The HCR was pretty clear in Landinelli Silva v Uruguay (34/78) that a State’s failure to make a formal notification pursuant to Article 4(3) ICCPR will not deprive it of its substantive rights of derogation:

“Although the substantive right to take derogatory measures may not depend on a formal notification being made pursuant to article 4(3) of the Covenant, the State party concerned is duty-bound to give a sufficiently detailed account of the relevant facts when it invokes article 4(1) of the Covenant in proceedings under the Optional Protocol.”

Natasha Holcroft-Emmess says

April 12, 2020

Hi Seniha,

Thanks very much for your comment.

I agree that calls for transparency are particularly strong where crises are not formally recognised by States, but I think that notification plays an important role regardless of whether the emergency is evident or not.

Under Art. 15(3), notifications do not just evidence the existence of an emergency. States are supposed to deposit details of the measures they are taking, which may not be evident otherwise, and the measures may differ from State to State in respect of the same emergency. Different States are limiting different rights to various extents in response to Covid 19. This information is useful (to the CoE, other States, courts and commentators), even if the emergency itself is apparent to all.

I think your point in the second paragraph should rather go towards determining whether the circumstances meet the threshold condition in Art. 15(1) of the existence of a ‘public emergency threatening the life of the nation’. In other words, because the severe impact of the current pandemic is well established, that would likely make it easier for a State successfully to claim that the circumstances meet the threshold criterion. I think this point is better dealt with under that provision, rather than by excusing States from notification.

I agree that the proportionality requirement in Art. 15(1) is crucial for assessing derogations, and it is where decision-makers can do their most fine-tuned reasoning. But at the moment my view is that, if derogation is only conditional on Art. 15(1) and (2) (i.e. if notification is not a requirement for States to be able to rely on the protection of Art. 15), we will run into the problems I mentioned in my paragraph discussing Hassan v UK.

Natasha Holcroft-Emmess says

April 12, 2020

Hi Jeremy,

Many thanks for your comment.

I’ll just share my thoughts on Brogan. I think the most we can say about Brogan is that we might be able to infer from the way it is reasoned that the Court may be amenable to an argument that notification under Art. 15(3) is a condition for reliance on derogation, but I am not quite convinced that the case shows the point has been conclusively determined, for the following reason.

I am hesitant about the view that Brogan determines the point because the UK did not make any argument based on Art. 15 (see the Commission decision: Brogan, Coyle, McFadden and Tracey v UK (Application Nos. 11209/84, 11234/84, 11266/84, 11386/85) [81]: “no argument based on the right to derogate… has been made by the respondent Government…”; and Brogan v UK [44]). The State’s argument was that the measures fell within the terms of Art. 5. In other words, it did not seek to rely on Art. 15.

Had the State pressed for the protection of Art. 15 in the absence of a notification, then we would have a determinative conclusion on the Court’s view as to whether notification is a condition for States to be able to rely on Art. 15. But since, in Brogan – even though there was no notification – the State did not claim to be able to rely on Art. 15, the point was not argued nor directly tested. Even if Brogan suggests that the Court may be open to an argument to that effect, I think the point has yet to be determined.

It would make for a very interesting debate if this were picked up in litigation and I am very grateful for the discussion.

Natasha Holcroft-Emmess says

April 12, 2020

Hi Bruno,

Thanks very much for your comment, and for including the quote.

The ECtHR is able to refer to certain other norms of international law as interpretive aids. In Golder v UK (1979-80) 1 EHRR 524 [29], the Court accepted that it should be guided, in its interpretation of the Convention, by Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT). Article 31(3)(c) VCLT incorporates the principle of systemic integration, stating that any “relevant rules of international law applicable in the relations between the parties” shall be taken into account in interpreting the treaty.

The method of interpretation under the law of treaties thus makes certain other norms of international law a source of guidance for the ECtHR in interpreting the ECHR. In Loizidou v Turkey (1997) 23 EHRR 513 [43], the Court reiterated that the principles underlying the Convention “cannot be interpreted and applied in a vacuum”.

However, my understanding is that, in practice, the Court’s record of referring to other norms of public international law as aids to interpreting the Convention is patchy. Magdalena Forowicz’s book, The Reception of International Law in the European Court of Human Rights, provides a detailed analysis of the Court’s references to other norms of international law, including the ICCPR (chapter 4).

Forowicz divides references by the Court to the ICCPR into two strands: (i) those “prompted by structural or procedural reasons” and (ii) instances where the Court referred to the ICCPR “to clarify or to harmonize the ECHR with the Covenant” (p. 149). It is this latter function which would be engaged if the ECtHR were to look at the position under the ICCPR on notification as a requirement for valid derogation. But Forowicz concludes that the Court’s approach in relation to this strand has been “marked by an uneven and lower level of reception” of the ICCPR (p. 189). As a result, it is not clear whether the ECtHR would refer to the position on notification under the ICCPR, or what weight it would attach to this in interpreting Art. 15.

I am a bit dubious, in fact, about the idea that Landinelli Silva provides a clear-cut basis to say that notification is not a requirement for a State to be able to rely on derogation under Art. 4 ICCPR. The language (“may not depend”) is couched quite cautiously.

However, if the ECtHR did consider notification a requirement for valid derogation under Art. 15 ECHR, and the HRC did not consider it a requirement to rely on Art. 4 ICCPR, that would entail divergent approaches and could raise interesting issues around fragmentation, especially since all States parties to the ECHR are also parties to the ICCPR.

Laurence R. Helfer says

April 12, 2020

Dear Natasha,

Thank you for this interesting and informative post analyzing the early decisions of the European Commission and the ECtHR regarding notification and domestic promulgation by Contracting States that have derogated from the European Convention.

An analysis of the rationales in favor of the notification and promulgation requirements, as well as an overview of derogations from all human rights treaties that permit such restrictions, appears in Hafner-Burton, Helfer & Fariss, Emergency and Escape: Explaining Derogation from Human Rights Treaties, 65 Int'l Org. 673 (2011).

Laurence R. Helfer says

April 12, 2020

Here is a link to the website where the article mentioned in the previous comment is available for download:

https://ssrn.com/abstract=1622732

Natasha Holcroft-Emmess says

April 18, 2020

Dear Laurence,

Many thanks for your feedback, and for sharing a link to the article.