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Human Rights Derogation in France in Response to Terrorism

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The Paris terrorist attacks that took place on November 13, 2015, prompted the French government to declare and subsequently extend a state of emergency that allowed French authorities to derogate from both French and international law regimes that grant certain human rights.[1]  Specifically, the derogation expanded the government’s authority to impose house arrests at a very low standard, imposed restrictions on the freedom of association, expanded the government’s search and seizure powers, especially electronic searches, as well as conduct internet censorship with limited due process.[2]  French law makers have extended the “temporary” derogation until the end of February 2016, however, President François Hollande has proposed a constitutional amendment to expand police powers in emergency conditions.[3]  France’s expansion of state power and the possible permanency of the powers is demonstrative of how many states have interpreted the threat of terrorism, especially when it comes to investigation and enforcement.[4]  In the years following the terror attacks of September 11, 2001, “. . . two dynamics have affected patterns of terrorism and counterterrorism.  The first was identified from the outset and relates to the growing emphasis upon anticipatory risk.  The second is the increasing threat of “neighbor” terrorism.”[5]  The question arises, then, when is derogation legal, and from what rights regimes can governments derogate?

“First, the derogating government must establish the existence of a ‘public emergency threatening the life of the nations’.”[6]  Both the International Covenant on Civil and Political Rights (ICCPR) and the European Commission on Human Rights (ECHR) provide criteria for when states may derogate from human rights treaties in states of emergency.[7]  There is some ambiguity, however, to what a ‘public emergency threatening the life of the nation’ actually means.[8]  Neither the ICCPR nor the ECHR give a specific definition of the term.[9]  And, it was not until 1961, in Lawless v. Ireland, that a ‘public emergency threatening the life of the nation’ was first interpreted.[10]  The European Court of Human Rights held that, Article 15 should be interpreted in light of its ‘natural and customary’ meaning.”[11]  The definition was further developed and clarified in the Greek case which declared that a ‘public emergency’ must have the following four characteristics:

  1. The emergency must be actual or imminent;
  2. Its effects must involve the whole nation;
  3. The continuance of the organized life of the community must be threatened; and
  4. The crisis or danger must be exceptional, in that the normal measure or restriction permitted by convention for the maintenance of public safety, health and order, are plainly inadequate.[12]

The Commission also stated that the state parties bear the burden of proof to establish the: existence of a ‘public emergency’.[13]

The second requirement for derogations to be legal is that the ‘public emergency’ must be officially proclaimed and relevant treaty organs must be notified.[14]  In Lawless, it was held that an announcement after 12 days delay was acceptable, however, in the Greek Case, a four month delay was found unacceptable.[15]

The third requirement for derogation is that, “the measures which derogate from any obligation under the treaty must only be to the extent strictly required by the exigencies of the situation.”[16]  Any derogation measure must meet five requirements:

(1) The measures must be necessary, i.e., actions taken under ordinary laws and in conformity with international human rights obligations are not sufficient to meet the threat.

(2) The measures must be connected to the emergency, i.e., they must prima facte be suitable to reduce the threat of crisis.

(3) the measures must be used only as long as they are necessary, i.e., there must be a temporal limit.

(4) The degree to which, the measures deviate from international human rights standards must be in proportion to the severity of the threat, i.e., the more important and fundamental the right which being compromised, the closer and stricter the scrutiny.

(5) Effective safeguards must be implemented to avoid the abuse of emergency powers.  Where measures involve administrative detention, safeguards may include regular review by independent national organs, in particular by the legislative and judicial branches.[17]

Notwithstanding the regimes in place, there are problems with enforcement.  In Ireland v. United Kingdom, the European Court held that it falls in the first place to each contracting state, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency.  “By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the scope of derogations necessary to avert it.”[18]  The thrust of the holding was that Article 15 leaves authorities with a wide margin of appreciation, and that enforcing bodies should give discretion to the states in interpreting declared public emergencies.

 

 

[1] Lawfare blog: https://www.lawfareblog.com/frances-extended-state-emergency-what-new-powers-did-government-get

[2] See id.

[3] Lawfare blog: https://www.lawfareblog.com/french-constitutional-amendment-emergency-powers-moves-forward; see also NY Times: http://www.nytimes.com/2015/11/24/world/europe/in-france-some-see-the-police-security-net-as-too-harsh-paris-attacks.html?_r=0

[4] Clive Walker, Keeping Control of Terrorists Without Losing Control of Constitutionalism, 59 Stan. L. Rev. 1395, 1395-96 (2007).

[5] Id.

[6] J. Hartman, ‘Derogations from Human Rights Treaties in Public Emergencies’ (1981) 22 Harvard International Law Journal, p. 2

[7] See Christopher Michaelsen, Derogating from International Human Rights Obligations in the ‘War Against Terrorism’?—A British-Australian Perspective, Terrorism and Human Rights, Magnus Ranstorp, Paul Wilkinson, Routledge, Sep 13, 2013. Pages 59-63.

[8] See id.

[9] Id.

[10] See generally, Lawless v. Ireland (No. 3), European Court of Human Rights, App no 332/57 (A/3) (1961).

[11] See id.

[12] The Greek Case, Council of Europe, European Commission of Human Rights, Report of the Sub-Commission, Volume I, Part 1 (1969).

[13] Id.

[14] See Michaelsen, supra, note 7.

[15] See id.

[16] See id.

[17] See id.

[18] Ireland v. United Kingdom, (5310/71) [1978] ECHR 1 (18 January 1978).


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