Die Menschenrechte im Notstand

Terrorism is not a new problem nor is there anything new in governments' tendencies to justify repressive policies by reference to the terrorist threat. Yet it is only in recent years, with the greater scale and pervasiveness of contemporary terrorism, that a sustained focus on security has emerged. Political objectives such as public security pose significant normative threats to the existing human rights framework. Based on the British Anti-Terrorism, Crime and Security Act (ATCSA) of 2001, which was passed in order to fight terrorism but violates basic human rights under the European Convention on Human Rights (ECHR) the author analyzes the interrelation of terrorism and human rights in times of emergency. This paradigm can be reduced to the question of derogation. Expressly set ot by Article 15 ECHR the right to derogate is not arbitrary. Derogation from human rights under the Convention requires a public emergency threatening the life of the nation; the measures taken must be limited to the extent strictly required by the exigencies of the situation. The author introduces three different approaches of derogation: the model beyond the legitimate state of emergency advanced by Carl Schmitt, the model of restriction and the model of derogation. He applies these models to the Convention and appraises its interpretation by the conventional organs as well as on the basis of the 2004 House of Lords decision on internment of terrorist suspects. Article 15 ECHR is ultima ratio; no derogation beyond its premises – as ultissima ratio – should be allowed. If so, fundamental freedoms are made casualty to political objectives, the damage ist to democracy itself.