di Martina Elvira Salerno
International terrorism is not a new phenomenon. Indeed, after the 9/11 terrorist attacks in the US, this threat has become one of the most pressing political and legal problems, at both national and international level.
This paper will focus on Article 15 of the European Convention on Human Rights (ECHR), which allows national authorities to declare a state of emergency and, consequently, to derogate from certain human rights obligations. It is worth observing that it is in time of emergency that there is a greater risk for human rights violation, due to the possible abuse of powers by states. For this reason, it will be illustrated which rights can be derogated from and when a derogation is deemed to be valid in the light of Article 15 ECHR. The case-law of the European Court will show that only on very few occasions states have relied on this provision. However, when the derogation power has been invoked, the Court has given a wide margin of appreciation to contracting states when assessing the compliance with the requirements under Article 15. This approach has been criticised for being too deferential and for weakening the Court’s authoritative position vis-à-vis national governments. Although Article 15 ECHR should limit states’ right to derogate, in practice the wide discretion left to them nullifies the effectiveness of this provision.