CYIL vol. 11 (2020)

EMIL RUFFER CYIL 11 (2020) Since the above criteria are taken and compiled from the case law of the ECtHR, it is not surprising that they might not be entirely coherent and that they tend to overlap to a certain extent. However, they nevertheless provide useful guidance for the governments to assess their chances to successfully defend an Article 15 derogation, if it is brought before the Court. (iii) Derogations cannot be incompatible with other obligations in international law This last substantive criterion indicates a certain openness of the Convention towards the rules-based international order and acknowledges that the ECHR is not an isolated instrument, but constitutes a regional standard in the global legal architecture. At the same time, there are certain limits to ECtHR’s competence to interpret international law, and the Court has been criticised that in some of its judgments, it misconstrued or misapplied well- established concepts of international law. 24 With regard to Article 15 derogations, the ECtHR has had an opportunity to decide in two cases 25 on objections based on the obligations stemming from the International Covenant on Civil and Political Rights (ICCPR) (New York, 16 December 1966). 26 It is worth noting at this point that Article 4(1) of the ICCPR contains a very similar provision to that of Article 15(1) ECHR, concerning possible derogation: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 27 In the two cases referred to above, the situation concerned a derogation notified by the United Kingdom both under the ECHR’s Article 15 and Article 4 of the ICCPR, which is a logical thing to do given the proximity of both provisions. In Brannigan and McBride v. the United Kingdom , the applicants argued that an official proclamation was a requirement for a valid derogation under Article 4 of the ICCPR, and that the absence of such a proclamation would consequently make the United Kingdom’s derogation under Article 15 of the ECHR not consistent with its obligations under international law (in their view, a mere statement in Parliament was not a formal proclamation). The ECtHR rejected that argument and observed that “ it is not its role to seek to define authoritatively the meaning of the terms ‘officially proclaimed’ 24 See e.g. Catan and others v. Moldova and Russia (Applications nos. 43370/04, 8252/05 and 18454/06), judgment (GC) of 19 October 2012, in which the ECtHR concluded that the Russian Federation exercised effective control over the separatist “Moldavian Republic of Transdniestria” (“MRT”) and thus established its jurisdiction under the ECHR (paras. 122-3 and 150). The Russian Federation strongly disagreed with the Court’s assessment, which in their legal opinion did not properly reflect principles of international law. 25 Brannigan and McBride v. the United Kingdom (Application no. 14553/89; 14554/89), judgment of 25 May 1993; and Marshall v. the United Kingdom (Application no. 41571/98), decision on admissibility of 10 July 2001. 26 United Nations Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407 (procès-verbal of rectification of the authentic Spanish text). 27 The only significant difference from Article 15 of the ECHR is the fact that under Article 4(1) ICCPR, the existence “ of public emergency which threatens the life of the nation ” must be “officially proclaimed” . This means that a state of emergency, a state of natural disaster or similar serious situation must be declared by the competent authorities.

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