Derogation and Transition

Abstract

International law recognizes and accommodates the fact that in times of political, economic or social crisis the state may be required to limit the extent of protection resulting from consentingly entered into treaty obligations to protect individual rights. The derogation provisions of the international human rights instruments including Article 15 of the European Convention contain the politically and legally mandated processes whereby states can suspend their international obligations protecting individual rights in time of emergency or crisis. Given that the Council of Europe (and the Convention as its primary legal instrument) was born out of a massive transition from war to peace on the European continent, transition can be viewed as a motif for the early history of the Convention, and represents a tool used to institutionalize new values. In this sense the Convention itself constitutes a response to the devastating human rights violations of the Second World War, and can be understood as a transitional legal instrument. With that background in mind, this essay explores the extent to which an extensive jurisprudence of emergency powers in the European system contains recognition of or interfaces with the thematic and structural aspects of transitional justice discourse. In one sense the resort to the exceptional state of emergency constitutes a transition in itself, a move from norm to exception. In this broader conceptual framework, the European Court of Human Rights has recognized the significance of the move involved – and, at least in theory the aberrational nature of the shift is affirmed through judicial language emphasizing temporality, exception and the need to revert to a status quo ante. This essay explores the extent to which a broad notion of transition (a move “from” and “to”) can be adduced from the Court’s jurisprudence on exceptionality. The analysis then moves to assess the more common frame of reference for transitional justice, namely its overlap with the shift from either repressive or authoritarian forms of governance and/or the move from violence to peaceful co-existence in societies that have experienced political violence or armed conflict within the definitions of international humanitarian law. Here the essay examines how transitional sites have a high degree of overlap with states of emergency, both during the period leading up to transition, and throughout the transitional political process itself. In this context, transitions and emergency often cohabit in legal and political space, though this essay argues that the cohabitation and its implications are frequently ignored. In this there is a silo effect in play the effects of which this essay explores at some length. I further examine how the legal norms regulating armed conflict have been utilized (or not) by the European Court of Human Rights, linking the limits of transitional jurisprudence in conflicted societies to this dearth of analysis. The discussion explores the specific case study of Northern Ireland the way in which despite an agreed peace treaty, and transition derogation continues to play a role in the legal life of the transitioning state. In doing so, I articulate concerns about the extent to which the need for rule of law reform and confidence building in the transitional phase can be undercut by continuing resort to exceptionality through derogation.