Derogation Powers and Continuing States of Emergency under the ECHR

Article 15 of the European Convention on Human Rights (ECHR) authorizes Mem­ber States to suspend human rights in time of war or other public emer­gen­cies. This derogation provision has been used several times, its invo­ca­tion and use differing widely over time. Since 2015, for example, derogations have been invoked in response to terrorism, military aggression, an attempted coup d’état, a global pandemic, an energy shortage, and a natural dis­aster. There are two interesting features shared by some of these crises: First, many can be reasonably described as long-term or permanent. As shown by the example of terrorism, this feature has existed since the ECHR came into force. A future crisis exhibiting this feature might be climate change. Second, as illustrated by migration and global pandemics, modern crises are increasingly interconnected, a globalization-driven phenomenon involving multiple states and a developmental path that is often difficult to foresee. Due to their often long-term character and increasing interconnections, modern-day crises risk ever longer suspensions of human rights protections.

In response, this doctoral project examines whether Article 15 ECHR is consistent with and can be adapted to long-lasting and interconnected crises. To this end, it not only examines how long-term crises have traditionally been dealt with in domestic contexts, but engages in a comprehensive review of how the jurisprudence of the Eu­ro­pean Court of Human Rights and pertinent scholarly literature have framed and understood these issues. By em­ploying the hermeneutics standards for the interpretation of the ECHR, the project seeks to develop a doctrine for Article 15 ECHR and to broaden our understanding of the complex intersections of human rights jurisprudence and public security law. Resonating primarily with the first and third axes of the Department’s research matrix con­cern­ing doctrinal foundations and challenges to democracy and human rights, the project will not only consider the suit­ability of Article 15 ECHR for long-term and interconnected crises, but will also examine the feasibility of com­pet­ing doctrinal interpretations, and the utility of adopting various control mechanisms to regulate future Conven­tion derogations.