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13 - Preserving Article 8 in Times of Crisis

Constraining Derogations from the European Convention on Human Rights

from III - Internal Security

Published online by Cambridge University Press:  05 December 2019

Francesca Bignami
Affiliation:
George Washington University, Washington DC
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Summary

The European Convention on Human Rights (ECHR) has been enormously influential among international instruments in defining and defending individual rights around the world. Article 8, in particular, is the most widely recognized source of legal authority for privacy as a claim of fundamental rights.1 However, even under ideal conditions these values are maintained only with “eternal vigilance,” as the truism states. Especially in times of emergency, states are under pressure to constrict rights enshrined in international instruments and domestic law. One attempt to sustain rights through times of crisis is Article 15 of the ECHR, which permits some derogation of human rights as an extraordinary measure. The Convention provides for derogation only where the very “life of the nation” is under threat, the response strictly limited, and as consistent with other obligations under international law. In this way, the European Convention allows for limited state deviation from established international norms; by providing for the conditional and supervised derogation from their obligations under the Convention,2 Article 15 recognizes state needs while incentivizing states not to abandon the commitment to defend rights. In total, nine states have relied on Article 15 since the Convention was established – Ukraine, Albania, Armenia, France, Georgia, Greece, Ireland, Turkey, and the United Kingdom.3 France and Turkey most recently called states of emergency.4

Type
Chapter
Information
EU Law in Populist Times
Crises and Prospects
, pp. 342 - 374
Publisher: Cambridge University Press
Print publication year: 2020

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