Distinct
Differences in Restriction
A Comparison Between Limitations and Derogations
of Political Expression under the ICCPR and ECHR
Submitted in partial fulfillment of the requirements for the Degree of
Master of Laws in
International and European Law: Public International Law
University of Amsterdam
Zana Eliza Üstebay
Supervisor: Prof. dr. Y.M. Donders
Date: June 15, 2018
Distinct Differences in Restriction Abstract
The freedom of political expression is a right that is essential to the existence of a democratic society. Despite its foundational nature, the right may be restricted. In response to the far-stretching restrictions by states, this thesis provides a comparative research to shine light on these forms of restriction. It sets out to provide insight on the differences and similarities in the conditions of restricting political expression under the systems of limitation and derogation under the ICCPR compared to those under the ECHR. This question will be answered through first analyzing the limitations and derogations systems separately clarifying whether the two human rights treaties contain diverging interpretations. Although distinct interpretations under the ICCPR and ECHR could have consequences for states that are party to both Conventions the research has shown that modest differences exist between the Conventions. This is followed by an analysis on the regular limitations system and the restriction through derogations in times of public emergency. Although similarities and overlap exist in terms of principles such as proportionality, necessity and the margin of appreciation there are foundational differences that lead to two completely distinct concepts of restriction.
Acknowledgements
I would like to thank my supervisor, Prof. dr. Yvonne Donders for her contagious enthusiasm and helpful guidance throughout the entire writing process.
CHAPTER 1 - INTRODUCTION 5
CHAPTER 2 – POLITICAL EXPRESSION 7
2.1. Historical background 7
2.2. Political expression under the ICCPR & ECHR 9
CHAPTER 3 – LIMITATIONS OF POLITICAL EXPRESSION 15
3.1. Duties and responsibilities 15
3.2. Tripartite assessment 16
3.2. Legitimate aims 20
3.2.1. Protecting the individual 20
3.2.2. Protecting public interest 21
CHAPTER 4 – DEROGATIONS 23
4.1. General remarks on derogations 23
4.2. Conditions on derogations 24
4.2.1. War or public emergency threatening the life of the nation 24
4.2.2. Proportionality 26
4.2.3. Other obligations under international law 27
4.3. Derogations and freedom of expression in practice 28
CHAPTER 5 – INTERPLAY BETWEEN LIMITATIONS AND DEROGATIONS 29
5.1. Differences and similarities 29
CHAPTER 6 - CONCLUSION 32
Chapter 1 - Introduction
Background and research question
“The existence of a “public emergency threatening the life of the nation” must not serve as a pretext for limiting freedom of political debate, which is at the very core of a democratic society.”1
- European Court of Human Rights The right to freedom of expression is often recognized as the cornerstone of democracy as it enables individuals to share thoughts. It can be perceived as the essential steppingstone necessary before individuals can enjoy other rights.2 The importance of freedom of expression is also visible as the right is included in the primary international human rights treaties and jurisprudence as well as in domestic laws. Although the right is largely codified, friction in the application of restrictions on the freedom of expression remain a relevant topic throughout the world. Over the past year, there have been reports of violations of the right by states from all over the world including, among others, Turkey and Russia.3 Although the unlawful
application of restrictions vary from state to state, they may constitute a threat to society as the freedom of expression lies at the basis of democracy. Violations of freedom of expression exist often due to unlawful restrictions by the state. As freedom of expression is not an absolute right it can be subjected to restrictions by the states.4 Restrictions exist in two ways: First, through limitation clauses in international treaties and second through derogation under which States can take measures during time of emergency. In the past years several states have announced a state of emergency5, granting them the opportunity to derogate from their obligations under treaty law. During this time, both Ethiopia and Turkey have taken measures
1 ECtHR, Şahin Alpay v Turkey, para 180.
2 Michael O’ Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political
Rights and the Human Rights Committee’s General Comment No 34’, 4 Human Rights Review 627, 629.
3 Human Rights Watch reported in 2016-2017 on violations of the freedom of expression by States such as:
Turkey, Russia & Kenia.
Human Rights Watch, ‘Silencing Turkey’s Media’ (15 December 2016); Human Rights Watch, ‘Online and On All Fronts’ (18 July 2017); Human Rights Watch, ‘Not Worth the Risk’ (30 May 2017).
4 Special Rapporteur Frank de La Rue, ‘Report of the Special Rapporteur on the Promotion and Protection of the
Right to Freedom of Opinion and Expression’ Human Rights Council Fourteenth Session A/HRC/14/23 (20 April 2010) 12.
5 United Nations Treaty Collection, ‘Chapter IV Human Rights: 4. International Covenant on Civil and Political
Rights’, (accessed at 20 September 2017)
<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en> These states contain France, Guatemala & Turkey.
that greatly restricted the freedom of expression.6 Though the two systems of restricting human rights are usually considered to exist separately from each other, both form a constraint and potential seizure of the primary right to freedom of expression.
This thesis sets out to examine the interplay between the two different forms in which freedom of expression can be restricted. As the right to freedom of expression is broad covering religious, commercial and artistic expression, this thesis will primarily focus on political expression. As recent events have demonstrated, Turkey being an example, political expression and the restriction thereof often arise whilst a state is in a state of public emergency. Under international law, political expression can be limited as well as be derogated from. Therefore, the main research question of this thesis will be:
What are the differences and similarities in the conditions of restricting political expression under the systems of limitation and derogation under the International Covenant on Civil and Political Rights compared to those under the European Convention on Human Rights?
In the first chapter, an assessment will be made on the definition of political expression and the various ways in which it takes form. Subsequently, the second chapter will focus on the conditions of the limitation system of political expression under both the International Covenant on Civil and Political Rights (hereinafter “ICCPR”) & European Convention on Human Rights (hereinafter “ECHR”). In the third chapter, the conditions of derogation will be analyzed under both ICCPR & ECHR. Thereafter, an analysis on the differences and similarities will be provided. Lastly, the conclusion will follow in which an answer to the main research question will be given.
Methodology
This research will use a comparative methodology as the thesis will compare two international human rights systems, the ICCPR and ECHR, and the ways in which limitations and derogations are interpreted. The comparison will start by understanding the treaty text through the analysis of the preparatory works of both treaties, these will be utilized as a starting point of such a comparison. As preparatory works show the initial perspectives, treaties and the interpretation thereof may have evolved as human rights treaties are living
6 Human Rights Watch, ‘Legal Analysis of Ethiopia’s State of Emergency’ (30 October 2016)
<https://www.hrw.org/news/2016/10/30/legal-analysis-ethiopias-state-emergency> (accessed 18 September 2017) under Restrictions on Freedom of Expression; BBC Africa, ‘Why has Ethiopia imposed a state of emergency?’ (BBC News, 21 February 2018) <https://www.bbc.com/news/world-africa-43113770> accessed 6 June 2018; Human Rights Council, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right of Freedom of Opinion and Expression on His Mission to Turkey’ (7 June 2017) 32 & 33.
instruments.7 In order to provide an understanding of the restrictions to the freedom of expression under both treaties there will also be a focus on the case law of the Human Rights Committee (hereinafter “HRC” or “the Committee”) and the European Court of Human Rights (hereinafter “ECtHR” or “the Court”). The analysis of the jurisprudence will provide an insight on the interpretation of the principles governing limitations and derogations under both human rights systems. This will assist in identifying and explaining any similarities and differences that the international and regional systems might have. The case law is chosen based on the fact that it contains explanations of freedom of expression under one of the two central treaties, especially focusing on political expression. Other cases are exemplary of the conditions of limitations and derogations. Furthermore, the research will also be conducted through examination of secondary sources such as commentaries of the international bodies and academics to form a well-rounded research. The secondary sources also provide more insight on treaty text and case law which enhances the analysis in comparing the two human rights systems. In addition, the secondary sources will be leading in areas where the HRC and ECtHR have not explicitly addressed or analyzed grey areas which exist within the limitations of freedom of expression.
Chapter 2 – Political Expression
2.1. Historical background
The right to freedom of expression finds its origin as far back to the time of Greek philosophers such as Aristotle who considered humans as political beings.8 More modern influencers such as John Stuart Mill have emphasized the destructive nature of oppression of
7 ECtHR, Tyrer v UK, para 31.
8 Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political
Rights and the Human Rights Committee’s General Comment No 34’ Human Rights Law Review 12:4 (2012) 627-654 628.
individual opinion by authority.9 There are three broad philosophical approaches to freedom of expression that shed light on its importance through different angles. The functional approach as expressed by Mill envisions the freedom of expression as a form of finding the truth.10 Restraining the individual from this is regarded as denying the new truth from coming forward or the existing truth from being confirmed.11 The influence of this line of thinking in terms of seeking truth is visible in the system of the United States which protects expression almost as an absolute right.12 A second approach is the view of freedom of expression as a way of increasing individual autonomy, rendering the personal right of the individual imperative.13 The third approach links freedom of expression to democracy. This approach
reiterates the importance of expression of the people in order to create a functioning democracy and to criticize the governing authorities as a form of control.14 International bodies and human rights conventions often regard this approach as essential as has also been consistently stated by the European Court of Human Rights since Handyside.15 Each of the varying approaches have a different take on the relevance of the freedom of expression which already exemplifies the theoretical broadness of the right. As freedom of expression is regarded as the link with other fundamental human rights such as the right to freedom of association and the exercise to vote, almost all human rights treaties and domestic constitutions include provisions that ensure this right.16
ICCPR - Article 19 –
1. Everyone shall have the right to hold opinions without interference.
9 John S. Mill, On Liberty and Other Writings (ed Stefan Colini, Cambridge University Press 1989) 20-22. 10 John S. Mill, On Liberty and Other Writings (ed Stefan Colini, Cambridge University Press 1989) 20. 11 John S. Mill, On Liberty and Other Writings (ed Stefan Colini, Cambridge University Press 1989) 20 & 22. 12 Amal Clooney & Philippa Webb, “The Right to Insult in International Law” Issue 48 2 Columbia Human
Rights Law Review 47. In the US system speech is protected unless 1. It is intended to and likely to produce
imminent violence or other unlawful behavior. 2. Inciting speech 3. True threats that are sufficiently concrete. Additionally, in United States Supreme Court Abrams v United States & Whitney v California, US Supreme Court Justices Holmes & Brandeis have reiterated in their dissenting and concurring opinions the notion of a free market of ideas and the fact that remedy is more speech, not enforced silence.
13 Nicola Wenzel, ‘Opinion and Expression, Freedom of, International Protection’, Max Planck Encyclopedia of
Public International Law (April 2014) para 5; Human Rights Committee, General Comment No. 34
(CCPR/C/GC/34) para 2.
14 Nicola Wenzel, ‘Opinion and Expression, Freedom of, International Protection’, Max Planck Encyclopedia of
Public International Law (April 2014) para 4.
15 Nicola Wenzel, ‘Opinion and Expression, Freedom of, International Protection’, Max Planck Encyclopedia of
Public International Law (April 2014) para 6; European Court of Human Rights (ECtHR), Handyside v UK, para
49.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
ECHR – Article 10 –
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
2.2. Political expression under the ICCPR & ECHR
Article 19 (2) of the ICCPR lists a variety of forms by which people can express themselves under the freedom of expression, it includes forms such as writing, print, art or any other media, however the list is not exhaustive. For example, non-verbal communication such as the act of burning a flag has also been recognized as a form of expression despite not being listed in article 19 (2). The jurisprudence of the Committee has helped in the development of adding non-listed forms of expressions. The Committee decided in the Kivenmaa v Finland17 communication that non-verbal expression was protected under article 19, thus supporting the non-exhaustive character of the forms of expression listed in article 19(2). In addition to the jurisprudence, General Comment 34 refers to the protection of all forms of expression and the means of their dissemination, providing a longer more extensive list than in article 19 (2). Further expressions under General Comment 34 include spoken, written and sign language
and such non-verbal expressions such as images and objects of art. Means of expression include books, newspapers, pamphlets, posters, banners, dress and legal submissions.18 In the General Comment, the HRC makes another distinction between forms of expression and means of their dissemination. For the purposes of this research, both the form and the means are regarded to fall under “forms of expression” as they deal with both the manner in which the expression is made and the substance of the expression.
The first line of article 19 refers to the substance of the freedom of expression rendering freedom of expression as method to seek, receive and impart information and ideas of all kinds.19 Through the wording of “all kinds” in article 19, the provision remains an open norm.
The provision does not restrict the content of the expression itself as it guarantees protection regardless of its substance.20 Any restriction must therefore eventually arise by limitation and not from a predetermined exemption of the expression.21
General Comment 34 states that freedom of expression includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19 (3) and article 20. It includes political discourse, commentary on one’s own and public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse or commercial advertising.22
The treaty text does not specifically mention political expression, whilst the Committee in its General Comment states that the freedom of expression does include political discourse, however it remains ambiguous on what it entails. In Mika Miha v Equatorial Guinea, the Committee concludes that there is a violation of article 19 based on the fact that Equatorial Guinea did not refute the claim of the author that he was arrested and detained solely or primarily because of his membership in and activities for a political party in opposition of the then current regime.23 Assuming that the Human Rights Committee has added this case to be of illustration of political discourse, it can be considered that political discourse also may
18 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) para 12.
19 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel Verlag
2005) p 443.
20 Nicola Wenzel, ‘Opinion and Expression, Freedom of, International Protection’, Max Planck Encyclopedia of
Public International Law (April 2014) para 15.
21 Nicola Wenzel, ‘Opinion and Expression, Freedom of, International Protection’, Max Planck Encyclopedia of
Public International Law (April 2014) para 15.
22 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) para 11. 23 Communication No. 414/1990, Mika Miha v Equatorial Guinea, para 6.8.
include a situation where an individual has ties with a political party and as a result of such affiliation, suffers consequences. It remains a question whether political discourse simply exists with regard to activity in the political area such as government or political affiliation or whether this can also reach further to discourse from individuals outside of those active in politics. Would political discourse also encompass journalists covering political issues? Due to the fact that the provision of article 19 does not provide a definition or description, further analysis on the Human Rights Committee and communications thereof are necessary to understand whether a situation as such may be characterized to fall under the realms of political expression. With regard to the freedom of expression and the media, the HRC states that free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential.24 Meaning that media must be able to discuss public matters.25 Under the limitative scope of restrictions on political discourse, the HRC provides examples under which restrictions would be considered problematic. Although these examples concern political “discourse” and not political “expression”, they concern restrictions that take place against individuals in a political setting or contain restrictions on media access and commentary of the state.26 Additionally, the HRC sets out that public figures including politicians may be subject to criticism and that the bar against restrictions of prohibiting such expression against those figures is high.27
The European Convention of Human Rights protects the freedom of expression under article 10. The first sentence of the provision provides everyone the right to freedom of expression, covering both natural and legal persons.28 Unlike article 19 of the ICCPR, article 10
paragraph (1) includes the freedom to hold opinions as well as to receive and impart information and ideas in the same paragraph.29 The reference to hold opinions is a reflection
24 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) para 13. 25 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) para 13.
26 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) paras 37 & 40. Under these
restrictions that have caused concern the Human Rights Committee names: prohibition of door-to-door canvassing, restrictions on the number and type of written materials distributed during election campaigns, blocking access during election periods sources such as media of political commentary, and limiting access of opposition parties and politicians to the media outlets.
27 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) para 38.
28William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part Two Convention for
the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 455.
29 Article 10 (1), Convention for the Protection of Human Rights and Fundamental Freedoms (European
of article 9 of the ECHR entailing the freedom of thought.30 Similar to article 9 of the ECHR, interference with the freedom to hold opinions becomes a concern when opinions are either expressed, communicated and disseminated.31 The protection of opinions in article 10 implies
that there is emphasis on the protection of specific means by which the opinion is expressed.32 Article 10 further provides the freedom to receive and impart information and ideas, similarly to article 19 of the ICCPR. This element is essential as it safeguards an individual's exercise to criticize or exchange both information and ideas.33
Under the European Convention, forms of expression can vary from speech, leaflets, paintings to text messages.34 Similarly to the freedom of expression, other more
unconventional forms of expression such as public nudity and blowing a horn, are also deemed to be included under the wide scope of article 10.35 Similarly to the ICCPR, the Convention includes written, spoken, works of art and physical acts as means of expression.36 Allowing a broad variety of means and forms of expression fits into the idea of a plural and broadminded society which the Court in the Handyside case found to be essential to a democratic society. In the Handyside case the Court stated that:
“The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterizing a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of article 10, it
30 Article 9, ECHR; William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part
Two Convention for the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 457.
31 William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part Two Convention for
the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 457.
32 William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part Two Convention for
the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 457.
33 Dominika Bychawska-Siniarska, Protecting the Right to Freedom of Expression Under the European
Convention of Human Rights: A Handbook for Legal Practitioners (Council of Europe Publishing 2017) p 13 &
14.
34 William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part Two Convention for
the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 455;
ECtHR, Karkin v Turkey, para 10; ECtHR, Unabhängige Initiative Informationsvielfalt v Austria, para 9; ECtHR, Müller and Others v Switzerland, para 27; ECtHR, Bahçeci and Turan v Turkey, paras 5-6.
35 William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part Two Convention for
the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 455.
36 David Harris, Michael O’Boyle, Colin Warbrick, Law of the European Convention on Human Rights (3rd edn,
Oxford University Press 2014) p 614-615 & William A. Schabas, The European Convention on Human Rights:
A Commentary, ‘Part Two Convention for the Protection of Human Rights and Fundamental Freedoms, s.I
Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 455.
is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.”37
The Court further shows how central the democracy stands in the application of the Convention. In addition, it acknowledges that the freedom of expression forms one of the essential foundations of such a democratic society, one of the basic conditions for its progress and for the development of every man.38 The importance given to the right to freedom of
expression is linked to its influence on the democratic political process and as democracy is a valued principle under the Convention, the right to freedom of expression becomes inadvertently more valued.39
The variety in margin of appreciation given to the different categories of expression allows the states parties more room for restrictions, however political expression has been witness to a strict margin, imposing a broader protection. This can be regarded as a form of hierarchy within freedom of expression by the European Court where based on the content of the expression a different level of protection is provided.40 As political expression belongs to a category that receives broad protection, it is of importance to establish what falls in the scope of political expression and this becomes especially so as the Court does not provide an exact definition of political expression. In the cases of the Court in which political expression is acknowledged, it mainly concerns situations in which measures are taken against parliamentarians and politicians41 and political parties42. Additionally, political expression extends to protect journalists that contribute to the political or public debate.43 The inclusion
of journalists into political expression forms an answer to the earlier posed question. By including journalists under the scope of political expression the European Court extends the realm beyond the political area of politicians and political parties. In doing so, the Court
37ECtHR, Handyside v UK, para 49. 38 ECtHR, Handyside v UK, para 49.
39 David Harris, Michael O’Boyle, Colin Warbrick, Law of the European Convention on Human Rights (3rd edn,
Oxford University Press 2014) p 615 & 629-630.
40 ECtHR, Mouvement Raëlien Suisse v Switzerland, para 61; ECtHR, Ceylan v Turkey, para 34 &Nicola
Wenzel, ‘Opinion and Expression, Freedom of, International Protection’, Max Planck Encyclopedia of Public
International Law (April 2014) para 6.
41 ECtHR, Castells v Spain; ECtHR, Ahmet Sadik v Greece & ECtHR, Sakik and others v Turkey. 42ECtHR, United Communist Party of Turkey v Turkey.
touches on the importance and the vital role of the press in democracy which is in line with the concepts of pluralism that shape a democratic society.
Therefore, while both the ICCPR and ECHR interpret political expression based on its nature and focus on expressions made within the political sphere, it is arguable that the European system provides a larger and more defined protection than the ICCPR in instances reaching beyond. This can be witnessed in situations where journalists are involved in instances of covering political debates or criticizing the government and in doing may enjoy the wider, more defined, protection of the ECHR. This thesis will mainly focus on those cases that concern the direct political sphere which is accepted by both conventions. The cases that concern journalists will be used in case they form an addition in the exemplification on how to interpret principles or criteria of political expression.
Chapter 3 – Limitations of Political Expression
The provisions concerning the freedom of expression in the ICCPR and ECHR both find their roots in the Universal Declaration of Human Rights of 1948 (hereinafter “UDHR”).44 Contrary to the UDHR which has one general limitation clause for multiple rights, both ICCPR and ECHR adopted limitation clauses that are tailored to each right.45 In similar fashion both conventions consider three requirements.46 This chapter will explain the limitation criteria and point out similarities and different features in both systems.
3.1. Duties and responsibilities
Both convention texts refer to the freedom of expression as a right that carries with it duties and responsibilities. In case of the ICCPR the provision text even refers to “special duties and responsibilities”, yet the extra use of “special” does not seem to create an extra element to the meaning of duties and responsibilities. Although not often subject to extended scrutiny, the sole adoption of the sentence under both provisions of the freedom of expression form reason for some examination as it alludes to a different situation compared to other rights.47
Duties and responsibilities in the interpretation of the ICCPR are perceived to form a positive obligation upon the state to provide an adequate area for the enjoyment of the freedom of expression.48 In this interpretation, the sentence is directed to the state which apart from refraining in interfering must additionally offer protection on a horizontal level against other private parties within a state.49 Alongside this take stands the European Court which emphasizes on the obligation of the individual. The Court states that duties and responsibilities fall on all individuals that exercise the freedom of expression.50 The term
44 William A. Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press
2015) p 468.
45 William A. Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press
2015) p 468 & O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34’, Human Rights Law Review 12 (2012) p 633.
46 The freedom of expression is not the only right that is subject to this form of limitations assessment. In the
ECHR articles 8-11 also contain this system and in the ICCPR articles 12, 18, 21 & 22.
47 Jean-François Flauss, ‘The European Court of Human Rights and the Freedom of Expression’, (2009) 84 Issue
3 Indiana Law Journal 809 810.
48 O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights
and the Human Rights Committee’s General Comment No 34’, Human Rights Law Review 12 (2012) p 639.
49 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel Verlag
2005) p 458.
especially forms an obligation on those individuals belonging to groups such as: politicians, civil servants, lawyers, journalists and artists.51 The obligation on the individual is dependent on the group and therefore can vary from the obligation of journalists to regard principles of neutrality and impartiality to members of parliament who cannot behave in a disorderly way to ensure the effective operation of parliament.52 This obligation on the individual to respect their duties and responsibilities into consideration has been adopted for two reasons.53 Flauss argues first that the freedom of expression has a distinctive identity and secondly that duties and responsibilities prevent the irresponsible and dangerous use of democracy.54 The supporters of the adoption of duties and responsibilities in the ECHR acknowledged the both precious and potentially dangerous side to the freedom of expression.55 The danger was
specifically predicted through the considerable impact media could have on the public.56 In order to protect against potential far-reaching media influence, duties and responsibilities were adopted under article 10. Duties and responsibilities additionally create a boundary on the individual freedom of expression. In the European system the consequences of the duties and responsibilities weigh in on the margin of appreciation (hereinafter “MoA”), creating some space for the state’s own interpretation.57 A difference here is that where the ECHR recognizes that duties and responsibilities fall on the individual, the ICCPR recognizes it as an obligation on the state.58
3.2. Tripartite assessment
The freedom of expression can be categorized as a so-called “two stage right” in which the limitation set by the state is analyzed.59 In the first step the Committee and Court establish whether the measure falls within the scope of the freedom of expression, as the
51 ECtHR, Sürek v Turkey (No. 1), para 63.
52 ECtHR, Karácsony and other v Hungary, para 139.
53 Jean-François Flauss, ‘The European Court of Human Rights and the Freedom of Expression’, (2009) 84 Issue
3 Indiana Law Journal 809, p 810.
54 Jean-François Flauss, ‘The European Court of Human Rights and the Freedom of Expression’, (2009) 84 Issue
3 Indiana Law Journal 809, p 810.
55 European Commission of Human Rights, ‘Preparatory Work on Article 10 of the European Convention on
Human Rights’ (1956) para 127.
56 European Commission of Human Rights, ‘Preparatory Work on Article 10 of the European Convention on
Human Rights’ (1956) para 127.
57 ECtHR, Vogt v Germany, para 53.
58 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel Verlag
2005) p 458 & European Commission of Human Rights, ‘Preparatory Work on Article 10 of the European Convention on Human Rights’ (1956) para 127.
59 Gerard van der Schyff, ‘Interpreting the Protection Guaranteed by Two-Stage Rights in the European
Convention on Human Rights: The Case For Wide Interpretation’ in Eva Brems and Janneke Gerards (eds),
Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2013) p 69, 82 & 83.
scope establishes whether the right is applicable to the situation at hand. Once the right is applicable the lawfulness of the limitation is evaluated. Some scholars argue for a broad scope of the right as it would allow for more claims to be interpreted and transparently evaluated.60
Other scholars favor a narrow interpretation in order to protect the rights at hand.61 However, the adoption of a wide scope does not directly result into a limitless protection as this is ultimately decided upon in step two. Here, the Committee and the Court use three conditions to analyze whether the interference is either justified or is a violation.62 The interference must be demonstrated to i) be prescribed by law ii) consist of a legitimate aim and iii) be necessary.63
Apart from minor differences in wording, the two human rights systems provide the same interpretation of the criterion “prescribed by law”.64 The measures must find a legal basis in a domestic law, the law must be precise and accessible for the individual to foresee the consequences and anticipate its conduct.65 In the subsequent category of “legitimate aims”, the restricting measure must be based on one of the aims provided by the Conventions. The most striking difference between both conventions are the higher number of grounds provided in the ECHR compared to the ICCPR. This contrast may be the result of the earlier adoption of the ECHR opposed to the ICCPR, especially as some grounds under the European system are used more frequently than others, leading to a situation where the ICCPR has less grounds that encompass a larger field. Paragraph 3.2. will provide insight on those grounds primarily used in combination with political expression. Lastly, the measure taken must be necessary to serve the legitimate aim. Although the ECHR provision explicitly refers to “necessary in a
60 Gerard van der Schyff, ‘Interpreting the Protection Guaranteed by Two-Stage Rights in the European
Convention on Human Rights: The Case For Wide Interpretation’ in Eva Brems and Janneke Gerards (eds),
Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2013) p 69, 82 & 83.
61 Gerard van der Schyff, ‘Interpreting the Protection Guaranteed by Two-Stage Rights in the European
Convention on Human Rights: The Case For Wide Interpretation’ in Eva Brems and Janneke Gerards (eds),
Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2013) p 70 & 71.
62 Gerard van der Schyff, ‘Interpreting the Protection Guaranteed by Two-Stage Rights in the European
Convention on Human Rights: The Case for Wide Interpretation’ in Eva Brems and Janneke Gerards (eds),
Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press 2013) p 69.
63 These can be found in articles 19(3) ICCPR and 10(2) ECHR.
64 The ICCPR uses ‘provided by law’ where the ECHR speaks of ‘prescribed by law’.
65 ECtHR, Sunday Times v UK (No 1), para 49 & UN Human Rights Committee (HRC), General Comment no.
34, Article 19, Freedom of Opinion and Expression, CCPR/C/GC/34 para 25.
William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part Two Convention for the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of
expression/Liberté d’expression’ (Oxford University Press 2015) p 469-470. Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34), para 25.
democratic society” whereas the ICCPR does not, the HRC has placed value on the freedom of expression in a democratic society.66 The difference in primary importance of a democratic society may also be due to the variety of political structures represented amongst the member states of the ICCPR, where the states parties to the ECHR are predominantly democratic nations. Under the necessity analysis in the ECHR system, the measure must be taken by the state must be based on a ‘pressing social need’, that exists within the society of the state.67 In determining the pressing social need states may receive an MoA.68 The scope of the margin under article 10 ECHR can vary as it is dependent on several factors such as the nature of the expression and the general consensus amongst the member states.69 Furthermore,
the ECtHR reviews whether the conduct of the State has been proportional to serve the legitimate aim pursued. The Court primarily considers whether the state has taken a measure that is suitable to achieve the aim, whether it has taken the least restrictive measure possible and evaluates if the measure was not disproportionate, looking at the harm rendered to the individual in relation to the protection of the aim pursued.70 These three sides to the proportionality analysis are also to be found in the HRC’s interpretation of necessity.71 Almost identically to the ECHR, the restrictive measure must be appropriate in achieving its protective function, must be the least intrusive instrument and must be proportionate to the interest being protected.72
Although the conditions of proportionality are almost identical, the ICCPR does not acknowledge the notion of a pressing social need or the margin of appreciation. In the
Hertzberg et al. v Finland communication the HRC accorded a “margin of discretion” to
national authorities in a case concerning homosexuality on television, which would suggest a
66 Alastair Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (3rd
edn, Oxford University Press 2012) p 701 & Nicola Wenzel, Max Planck Encyclopedia of Public International
Law, ‘Opinion and Expression, Freedom of, International Protection’, para 32.
67 ECtHR, Observer and Guardian v The United Kingdom, para 59 & ECtHR, Handyside v UK, para 48. 68 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the
Jurisprudence of the ECHR (Intersentia 2002) p 2.
69 William A. Schabas, The European Convention on Human Rights: A Commentary, ‘Part Two Convention for
the Protection of Human Rights and Fundamental Freedoms, s.I Rights and Freedoms, Art. 10 Freedom of expression/Liberté d’expression’ (Oxford University Press 2015) p 474 & 475;
Dinah L. Shelton & Paolo G. Carozza, Regional Protection of Human Rights, (2nd edn, Oxford University Press
2013) p 812 & 813; Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of
Proportionality in the Jurisprudence of the ECHR (Intersentia 2002) p 101.
70 Yutaka Arai-Takahashi, ‘Part III Structural Principles, Ch. 19 Proportionality’ in Dinah Shelton (ed), The
Oxford Handbook of International Human Rights Law (Oxford University Press 2013) p 450-453.
71 Yutaka Arai-Takahashi, ‘Part III Structural Principles, Ch. 19 Proportionality’ in Dinah Shelton (ed), The
Oxford Handbook of International Human Rights Law (Oxford University Press 2013) p 461.
72 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) para 34; also see Human Rights
shift towards the application of some form of MoA.73 However, acceptance of the MoA has never happened especially as the HRC has distanced itself explicitly from the MoA by rejecting the notion in the recent General Comment No. 34 without providing reasoning.74 In
absence of an explanation of the HRC throughout the years, judges and academics have provided commentary on the notion that remained officially unrecognized by the HRC. Opponents of the MoA argue that the concept leads to relativism of human rights, which eventually leaves it open to states to determine what the norm is.75 The latitude given to the states may indeed touch upon the universal character of human rights.76 Against this argument Crawford states that the universality of human rights is not the same as uniformity, thereby insinuating that the use of the doctrine would not impede this characteristic of human rights.77
Other arguments shine light on the difficulty of achieving consensus amongst the diverse states party to the ICCPR.78 However, interestingly, although the HRC rejects the MoA it has been questioned whether the practice may subconsciously be embedded in its reasoning without specifically recognizing the principle.79 Examples that insinuate to such silent use of the MoA are the weight given to the considerations of the national state by the HRC.80 Additionally, as case law demonstrates, the attention given to consensus amongst the member states by the HRC leads to the belief that although the Committee does not formally recognize the MoA it does, perhaps unintentionally, apply components of it.81 Ultimately, arguments favoring the complete adoption state that the MoA is a pragmatic legal doctrine that will positively broaden the understanding and analysis on human rights.82
73 Communication No. 061/1979, Hertzberg et al. v Finland, para 10.3.
74 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34) para 36. 75 Partly Dissenting Opinion of Judge De Meyer in Z v Finland (1997) under 3.
76 Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the
Human Rights Committee’, (2016) Vol 65 International and Comparative Law Quarterly 21 53.
77 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the
Jurisprudence of the ECHR (Intersentia 2002) p ix in the preface by James Crawford.
78 Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the
Human Rights Committee’, (2016) Vol 65 International and Comparative Law Quarterly 21 44.
79 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the
Jurisprudence of the ECHR (Intersentia 2002) p ix in the preface by James Crawford & Human Rights
Committee, General Comment No. 34 (CCPR/C/GC/34) para 36.
80 Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and
Proportionality (Oxford University Press 2012) 36 & Communication No. 1136/2002, Vjatšeslav Borzov v Estonia, para 7.3.
81 Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and
Proportionality (Oxford University Press 2012) 125 & 126 & Communication No. 902/1999, Joslin et al. v New Zealand, paras 4.3 & 8.2.
82 Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the
3.2. Legitimate aims
An instant difference between the ICCPR and ECHR regarding the legitimate aims is the difference in amount of aims, this however does not create a broader possibility of restrictions under the ECHR as the ICCPR uses legitimate aims, such as public order, more generally.83 The aims under both systems can be divided into two categories: those seeking to protect the individual and those protecting the public interest.84 Even though there are a vast variety of specific legitimate aims, especially as prescribed in the European Convention, only those aims primarily pertaining to political expressions which return in the case law will be analyzed.
3.2.1. Protecting the individual
The aim which seeks to protect the individual is the “respect of the rights and reputation of others”, and thus generally concerns defamation or libel claims in which politicians, heads of state or other public officials seek protection against criticism of media.85 “Rights” refer to the limitation being based on existing other rights.86 In both Marques de Morais v Angola and
Kankanamge v Sri Lanka, the HRC decided cases where journalists had been accused of
defamation of political figures.87 In its decision, the Committee acknowledged that a president is a public figure and is therefore subject to criticism and opposition.88 A similar system is used by the ECtHR as it creates a distinction between the public and private sphere.89 In
Castells v Spain, a parliamentarian was limited in his freedom of expression. The Court held
that political debate is not of an absolute nature however, criticism of the government is more commonly accepted than criticism directed at a private citizen or even a politician.90 The HRC and ECtHR thus provide a similar interpretation with regard to this legitimate aim demonstrating that a significant threshold exists as the case law illustrates that it remains difficult to successfully claim a limitation on this category which is intended to protect the individual as many of the actors within political expression are often open for more scrutiny.
83 Nicola Wenzel, ‘Opinion and Expression, Freedom of, International Protection’, Max Planck Encyclopedia of
Public International Law (April 2014) para 31.
84 Steven Greer, The Exceptions to Articles 8 to 11 of the European Convention on Human Rights (Council of
Europe Publishing 1997) p 18 & Bernadette Rainey, Elizabeth Wicks & Clare Ovey, Jacobs, White & Ovey: The
European Convention on Human Rights (7th edn, Oxford University Press 2017) p 342.
85 Communication No. 1128/2002, Marques de Morais v Angola, under factual background; Communication No.
909/2000, Kankanamge v Sri Lanka, para 2.1 & 3.1; Christoph Grabenwarter, European Convention on Human
Rights: Commentary (Verlag C. H. Beck oHG 2014) p 265.
86 Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34), para 28.
87 Communication No. 1128/2002, Marques de Morais v Angola, under factual background & Communication
No. 909/2000, Kankanamge v Sri Lanka, para 2.1 & 3.1.
88 Communication No. 1128/2002, Marques de Morais v Angola, para 6.8.
89 David Harris, Michael O’Boyle, Colin Warbrick, Law of the European Convention on Human Rights (3rd edn,
Oxford University Press 2014) p 658-659 & 666-667.
3.2.2. Protecting public interest
Multiple legitimate aims that seek to protect the public interest are used when limiting political expression. The primary aim used here is “national security” which is adopted under both the ICCPR as the ECHR. The ground is often invoked in situations when the political or the territorial integrity of the state is under attack forming a threat to the entire nation.91
Although territorial integrity is a distinct category under the ECHR, in cases limiting the freedom of political expression it is mainly used in combination with national security.92 In
CG and Other v Bulgaria, the Court acknowledged the difficulty of defining “national
security”, whilst recognizing obvious examples such as a military attack, the Court also agreed that forms of a threat against the state can vary and are often susceptible to many factors.93 Therefore, under the ECHR, states receive a wide MoA on the determination of national security.94 Despite the wide margin in the determination of national security, the ECtHR reiterated in Ceylan v Turkey that states generally receive a small scope in the limiting political expression, even under the aim of national security, hereby safeguarding the right.95 However, in Zana v Turkey which concerned controversial statements in support of the Kurdistan Workers’ Party (“PKK”), the Court allowed a limitation. In its interpretation, the Court considered the tumultuous political situation in East Turkey and fears that in light of the sensitive state of the nation, such comments would increase the already unstable political environment, thus rendering it in the interest of national security to permit for a legal limitation.96 Similar to the Zana case, many political expression and national security cases involve expressions that form a threat due to existing problems in the states, such happened in
Mukong v Cameroon, in which the state invoked national security arguing that the author’s
critical writings had no regard for the ongoing struggle for unity in Cameroon.97 The Committee however did not accept the restriction, as it decided that the detention and
91 Sarah Joseph & Melissa Castan, ‘Part III Civil and Political Rights, 18 Freedom of Expression – Articles 19
and 20’ para 18.48 & Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel Verlag 2005) p 464.
92 Bernadette Rainey, Elizabeth Wicks & Clare Ovey, Jacobs, White & Ovey: The European Convention on
Human Rights (7th edn, Oxford University Press 2017) p 350.
93 Steven Greer, The Exceptions to Articles 8 to 11 of the European Convention on Human Rights (Council of
Europe Publishing 1997) p 19.
94 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the
Jurisprudence of the ECHR (Intersentia 2002) p 105.
95 ECtHR, Ceylan v Turkey, para 34.
96 ECtHR, Zana v Turkey, paras 10-24 & 59.
treatment the author had suffered were not the right measures necessary to ensure security of the state’s national unity.98
The legitimate aim “public order” is also regularly invoked under the ICCPR in cases regarding political expression. It is described as an extension of national security, safeguarding the functioning of society and therefore permits the limitation of political expression which may lead to violence, crime or public unrest.99 Thereby differentiating itself from national security in which the state as an institution is often under attack. Communications here vary from the Mukong communication to the Gauthier v Canada communication, in which limitation on the access of a journalist into parliament was disputed. The Committee argued that such a limitation did not fulfill the necessity and proportionality criteria and did not find the limitation to “protect the effective operation of parliament or safety of its members.”100 Although “public order” is not recognized under article 10 of the ECHR, the legitimate aim used in Castells v Spain to justify the resulting turbulence within Spain after the publishing of the article were identified as belonging under “prevention of disorder,” in doing so it lies in a similar line as public order as it protects against envisaged turmoil within the state and is often invoked in situations related to crimes or terrorism.101
98 Communication No. 458/1991, Mukong v Cameroon, para 9.7.
99 Sarah Joseph & Melissa Castan, ‘Part III Civil and Political Rights, 18 Freedom of Expression – Articles 19
and 20’ para 18.56 & UN Economic and Social Council, Siracuza Principles on the Limitations and Derogation Provisions in the International Covenant on Civil and Political Rights (1984) UN Doc E/CN.4/1985/4 para 22.
100 Communication No. 633/1995, Gauthier v Canada, para 13.6. 101 ECtHR, Castells v Spain, para 39.
Chapter 4 – Derogations
4.1. General remarks on derogations
Alongside the limitation clauses that can restrict the freedom of political expression, there exists the concept of derogations. During the drafting of both the ICCPR and ECHR, it was voiced that the grounds of limitations such as national security and public order would not meet the standards necessary for times of public emergency.102 Therefore, both the ICCPR and the ECHR contain a provision on derogations and create the opportunity for states to suspend from their treaty obligations.103 Derogations can unilaterally be invoked by states in the circumstances of a public emergency or war.104 Where human rights treaties provide protection to individuals, the adoption of the derogation provisions characterizes the overarching central role of the state under international law.105 The concept of derogations balances between the rights of individuals and the protection of the state.106 As political expression is a right that is often derogated from in times of public emergency it is meaningful to review how this system works as it remains a field that is susceptible for abuse by the state.107 Therefore this chapter will aim to analyze the central conditions of derogations
under both the ICCPR and the ECHR, as the interpretation of the provisions contain great similarities, the differences will be of key importance.
Article 4 of the ICCPR and article 15 of the ECHR provide the possibility of derogation. Both articles are set up in three paragraphs under which the first paragraph contains the substantial circumstances. Paragraph two lays down the rights which may not be derogated from, thereby forming a limitation to the derogation provisions. The freedom of political expression does not fall within this category and can be derogated from, therefore this paragraph will not be extensively explained. The classification of non-derogable given to rights can stem from their peremptory nature or through the recognition that a right would never fulfill the necessity criteria in a state of emergency. An example of this last category is freedom of thought, conscience and religion of the ICCPR, which would be difficult to derogate from in a state of emergency considering the internal nature of the right. In contrast to article 18, the freedom of
102 Rosalyn Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law
(Oxford University Press 2009) p 460.
103 Rosalyn Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law
(Oxford University Press 2009) p 458.
104 ICCPR article 4 & ECHR article 15.
105 Rosalyn Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law
(Oxford University Press 2009) p 457 & 458.
106 Joan F. Hartman, ‘Derogation from Human Rights Treaties in Public Emergencies’, (1981) 22 Harvard
International Law Journal 1 2.
107 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel
expression remains a derogable right. The main difference between the two rights being that one has an internal aspect and the other an external character as freedom of expression has to be voiced. The line between what is considered derogable and non-derogable here could lay in the external proclamation that the freedom of expression inherently has and therefore may be restricted during a state of emergency.108 Notably, the ECHR has not listed provisions that fall under the second category of non-derogable rights, all the European provisions included fall into the first category of rights that have a peremptory nature. Reason for this may be that due to the later established ICCPR the thoughts on restricting a provision so internal to people would be nearly impossible and therefore worthy of attaining.
Paragraph three contains the duty for the state to inform which provisions in the treaties it is derogating from. In doing so, the states must specify the reasons for derogation, justify the provisions they are derogating from and clarify a time scope in order for the institutions and other states to have the ability to review the lawfulness of such derogation.109
4.2. Conditions on derogations
4.2.1. War or public emergency threatening the life of the nation
In order for a state to take measures it must find itself in a public emergency or, as imposed under the European system, a war. The drafters of article 4 of the ICCPR specifically excluded war in order to prevent the impression that the UN condoned acts of war.110 Although specific mention to war is repudiated, war is specifically accepted as a public emergency that may threaten the life of the nation.111 Situations of internal unrest may also often result in states declaring a state of emergency.112 These conflicts within a state are susceptive to abuse of the derogation provisions as it permits the state to take measures for the internal conflict that can lead to the suppression of opposition.113 Alongside these two situations natural or environmental catastrophes and wide ranging economic crises or famine
108 Human Rights Committee, General Comment 29, para 11 & Martin Scheinin, ‘Part IV Normative Evolution, Ch. 22 Core Rights and Obligations’ in Dinah Shelton (ed), The Oxford Handbook of International Human
Rights Law (Oxford University Press 2013) p 529 & 530.
109 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel
Verlag 2005) p 100-103.
110 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel
Verlag 2005) p 89.
111 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel
Verlag 2005) p 89.
112 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel
Verlag 2005) p 90.
113 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel
may constitute as a public emergency.114 In Lawless v Ireland the Irish Government had derogated from its obligations due to the ongoing dispute with the Irish Republican Army (IRA). The ECtHR provided a definition on the threat of the life of a nation, referring to “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed”.115 The given definition emphasizes the exceptional character of the situation, in so far that regular measures are not sufficient. The emergency must form a threat to the whole population and to the organized life of communities within the state.116 Although this strict interpretation has been slightly reduced to also accept a regional state of emergency, such as in Turkey’s situation with the PKK, it does show that the emergency must have a serious impact.117 According to the later adopted Siracuza Principles, a threat also includes a threat to the territorial existence or physical population of a state.118 To the definition of public emergency the Commission added in the Greek case that it must be actual or imminent.119 The decision on concluding the existence of a state of emergency is left to the states themselves, out of the assumption that states are in closer contact with the reality of the situation.120 This freedom extends to both the decision on the existence of the emergency and on the nature and scope of the derogation necessary.121 Under the ECHR, the Court has given authorities a wide margin of appreciation to make these determinations.122 Higgins questions whether providing a margin on the existence of a public emergency is wise as it will be difficult for the ECHR institutions to certify the complete facts.123 It does seem that as the state must invoke the provision on derogation based on the ongoing situation, it already has latitude to determine the existence of a public emergency. Meaning that in the invocation of the derogation a certain freedom is inevitable which may never be strictly controllable. What constitutes a state of emergency for one state may not necessarily be the same situation for another; therefore, a balancing determination on the existence of the emergency must already
114 Manfred Nowak, U.N. Covenant in Civil and Political Rights: CCPR Commentary (2nd edn, N.P. Engel
Verlag 2005) p 91.
115 ECtHR, Lawless v Ireland (No 3), para 28. 116 ECtHR, Lawless v Ireland (No 3), para 28. 117 ECtHR, Aksoy v Turkey, para 70.
118 United Nations Economic and Social Council, Siracuza Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights 1984 (E/CN.4/1985/4), para 39.
119 ECHR, Denmark, Norway, Sweden and Netherlands v Greece, para 113 & Aly Mokhtar, ‘Human Rights
Obligations v. Derogations: Article 15 of the European Convention on Human Rights’, (2004) 8 International
Journal of Human Rights 63 p 68.
120 ECtHR, Ireland v UK, para 207. 121 ECtHR, Ireland v UK, para 207. 122 ECtHR, Ireland v UK, para 207.
123 Rosalyn Higgins, Themes and Theories: Selected Essays, Speeches, and Writings in International Law
