This chapter discusses Article 15 of the European Convention on Human Rights, which enables a state to unilaterally derogate from some of its substantive Convention obligations in public emergencies threatening the life of the nation. The provision is therefore of great importance to the Convention’s general integrity and to the protection of human rights in situations where individuals may be especially vulnerable to the actions of the state in response to a public emergency.
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18. Article 15: Derogation in Time of War or Other Public Emergency Threatening the Life of The Nation
David Harris, Michael O’boyle, Ed Bates, Carla M. Buckley, KreŠimir Kamber, ZoË Bryanston-Cross, Peter Cumper, and Heather Green
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16. Exceptions to the free movement rules
Niamh Nic Shuibhne
This chapter examines when Member States can lawfully displace the obligations placed on them by free movement law. Free movement rights can be restricted under EU law in two ways. For discriminatory or distinctly applicable restrictive measures, a derogation ground expressly provided for in the TFEU must be engaged. For indirectly or non-discriminatory measures, that is, indistinctly applicable restrictive measures, if an overriding requirement relating to the public interest can be demonstrated the measure will be lawful. In both cases, the restriction also has to satisfy a proportionality test—that is, it is both appropriate and necessary for achieving the relevant public interest objective.
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9. Prohibition of Ill-Treatment
This chapter examines the prohibition of ill-treatment under the European Convention on Human Rights (ECHR). It discusses the provisions of Article 3 of ECHR and explains that the fundamental character of the prohibition is affirmed by the fact that no derogation in respect of its provisions is permitted even in time of war or public emergency. It considers the definition of ill-treatment as developed by the Court. The chapter analyses the judgments made by the Strasbourg Court in relevant cases including removal of a person from the State, investigations, and detention. It also explores evidential issues connected with proving conduct falling within Article 3 and considers the provisions of the European Convention for the Prevention of Torture.
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3. The Human Rights Act 1998 (HRA)
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the Human Rights Act 1998 (HRA), which was introduced to allow individuals to argue cases involving rights contained in the European Convention on Human Rights (ECHR) directly before a UK court. It first explains the background and rationale underlying the HRA, focusing on the arguments for and against a Human Rights Act, as well as the human rights that are covered and not covered by the HRA. The chapter then discusses the judicial powers/duties and remedies under the HRA, along with powers of derogation and reservation, with an emphasis on ECtHR case law, the interpretation clause, and declarations of incompatibility with the Convention rights. In addition, it examines the HRA’s use of proportionality and judicial deference doctrines when deciding whether an act by a public authority is incompatible with a Convention right. The chapter concludes by assessing the future of the HRA.
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17. Free Movement of Goods
This chapter examines the Treaty provisions designed to ensure free movement of goods within the European Union. It discusses prohibitions on quantitative restrictions, and on measures having equivalent effect to quantitative restrictions (MEQR) in Article 34 of the Treaty on the Functioning of the European Union (TFEU), in particular considering the key cases of Dassonville, Cassis de Dijon and Keck. It also outlines the prohibition on quantitative restrictions on exports and all measures having equivalent effect. It analyses the development of the jurisprudence relating to MEQR, and explains the provisions of Articles 35 (exports) and 37 TFEU (state monopolies). The chapter also addresses the underlying questions concerning the relationship between free movement and national regulatory competence. Finally, the chapter examines the provisions of Article 36 TFEU containing the derogation from the free movement of goods and considers proportionality and disguised restriction on trade. It also discusses the CJ’s jurisprudence on the rule of reason.
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18. Free Movement of Payments and Capital
This chapter examines the rules concerning free movement of payment and capital within the European Union provided in Articles 63, 64, 65 and 66 of the Treaty on the Functioning of the European Union (TFEU). It explains the scope of and derogations to the free movement of capital. The chapter also considers restrictions on free movement of capital between Member States and third countries. It highlights the willingness of the Court of Justice (CJ) to borrow principles (ie, rule of reason) from the other freedoms. This chapter also considers briefly the provisions relating to monetary and economic union and the developments in the light of the financial crisis.
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7. Ancillary rights
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses Convention rights that are considered ancillary by virtue of the fact that they do not in themselves establish any substantive human rights but are relevant to the way the substantive rights are put into effect. Specifically, the chapter discusses Article 14, which prohibits discrimination in the way Convention rights and freedoms are secured; Article 15, which allows states to derogate from their responsibilities under certain circumstances; Article 16, which allows states to restrict the political activities of aliens; Article 17, which authorises the ECtHR and national courts to refuse to uphold the rights of those who would use them to undermine the rights of others; and Article 18, which insists that rights and freedoms in the Convention can be restricted and qualified.
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29. Terrorism
Martin Scheinin
This chapter first addresses the question of whether terrorism constitutes a violation of human rights, or whether the notion of human rights violations can only be applied to action by states, and then considers challenges to the applicability of human rights law in the fight against terrorism, particularly since 9/11. It focuses on the notion of terrorism, and in particular the risks posed to human rights protection by vague or over-inclusive definitions of terrorism. The main section of the chapter deals with some of the major challenges posed by counter-terrorism measures to substantive human rights protections. It is argued that the unprecedented post-9/11 wave of counter-terrorism laws and measures that infringed upon human rights was a unique situation, and that governments and intergovernmental organizations are realizing that full compliance with human rights in the fight against terrorism is not only morally and legally correct but is also the most effective way of combating terrorism in the long term.
