The case for a more ready resort to derogations from the ECHR in the current "war on terror"

Fenwick, Helen and Fenwick, Daniel (2018) The case for a more ready resort to derogations from the ECHR in the current "war on terror". European Human Rights Law Review (4). pp. 303-310. ISSN 1361-1526

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Abstract

Over the last four to five years the terrorist threat faced by the contracting states of the European Convention on Human Rights (ECHR) has intensified and become more widespread. The threat has come to a significant extent from their own citizens, and since suspect nationals usually cannot be deported, it might have been expected that detention or control measures, requiring derogations under art.15 of the ECHR , would have been put in place. It is therefore of interest to note that very few derogations have been sought, despite the significant rise in recent terrorist activity. This article considers why derogations have not played a pivotal role in the current "war on terror", and connects the answer to some of the advantages of relying on derogations as opposed to exploring alternative ways of evading the ECHR guarantees. It argues that derogations are not currently playing the role envisaged for them by the founders of the ECHR , and that there is a case for resorting to reliance on them more readily in the current situation.

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