The​ European Court of Human Rights in Strasbourg delivered its first judgment on 1 July 1961. Gerard Richard Lawless had been arrested four years earlier while attempting to travel from Ireland to Great Britain. Under a 1940 amendment to the Irish Offences against the State Act (1939), a government minister could order the detention without trial of ‘any particular person … engaged in activities which, in his opinion, are prejudicial to the public peace and order or to the security of the state’. The Irish government brought these powers into force on 8 July 1957, during the period of IRA attacks known as the Irish Border Campaign. On 11 July, Lawless was arrested on suspicion of being a member of the IRA. The next day, the Irish minister of justice, Oscar Traynor, ordered his detention.

He was taken from Bridewell Police Station in Dublin to a military prison and then to the Curragh Internment Camp in County Kildare, all without being charged or put on trial. Lawless appealed against his detention both to the Irish courts and to the Detention Commission, which had been set up to consider the cases of those arrested under the Act. The Irish Supreme Court said it had no power to question the minister’s decision. Lawless was finally released on 11 December after giving an assurance to the Detention Commission that he would not engage in any illegal activities.

Just after the Supreme Court rejected his case on 6 November, Lawless filed a complaint with the European Commission of Human Rights, which found that while Ireland had breached the Convention on Human Rights (specifically, the right to liberty and security under Article 5 and the right to a fair trial under Article 6), its actions were justified by the emergency caused by the Border Campaign. It decided to refer the case to the new court. The questions the commission asked the court to consider were ‘whether or not, from 13 July to 11 December 1957, there existed a public emergency threatening the life of the nation’ of Ireland and ‘whether or not the measure of detaining persons without trial … was a measure strictly required by the exigencies of the situation’. Under such circumstances, Article 15 of the convention – ‘Derogation in time of emergency’ – would make the minister’s actions permissible.

The court agreed with the Irish government that an emergency existed and that the use of detention without trial was necessary. In dismissing Lawless’s application it cited firstly,

the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the state, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957.

The legal scholar Alan Greene has argued that the European Court of Human Rights, like the UK Supreme Court, tends to be ‘stubbornly overly deferential’ towards government measures of the sort taken by Ireland in 1957. After all, there was a near permanent state of emergency in Ireland: it lasted from the outbreak of war in 1939 until 1995, a year after the IRA ceasefire.

The more important lesson from Lawless v. Ireland is that the protection of a state’s existence is seen as a matter for the state itself. It has long been argued that questions of national security or the need for emergency powers are best decided by the executive branch, which also represents the state in international institutions. The discretion allowed to states – the ‘margin of appreciation’, to use the language of the convention – is at the basis of modern domestic and international law. At a pragmatic level (and this might have influenced the judges in 1961), the effectiveness and legitimacy of the convention rests on the acceptance and co-operation of member states. If the first case it heard had questioned the sovereignty of the state, the court would have been off to a bad start.

State sovereignty isn’t allowed to trump all other considerations, but, as Martin Loughlin at the LSE has argued, at the core of public law is the productive tension and legitimating force created when power restricts itself. The power of the state does not rest on its freedom from restraint, but is strengthened by the restraints that result from the rule of law and the need for accountability. The European court would not accept, and has not accepted in the years since the Lawless judgment, the derogation of governments from fundamental rights as a matter of course. But the court has never questioned government decisions on whether a state of emergency exists or has been legitimately declared. It has never required emergencies, and the derogations resulting from them, to be temporary measures, though the Council of Europe’s own advisory body, the Venice Commission, set up in 1990 and composed of judges and senior academics, thinks it should.

David Dyzenhaus introduced the concept of the legal black hole, ‘a situation in which there is no law’. The exemplary instance of our time is Guantánamo Bay. These black holes are voids carved out by the legal order itself. Dyzenhaus compares them to legal ‘grey holes’, ‘in which there is the façade or form of the rule of law rather than any substantive protections’. He argues that judges should always avoid the creation of grey holes. It is better to declare clearly that a measure, a place or a person is placed outside the law, as in Guantánamo, than to fudge the issue and argue, falsely, that the rule of law is being followed. Grey holes are disguised black holes, and if the disguise is left in place governments will benefit from the legitimacy that comes with following the rule of law when in fact they are not.

Lawless’s name foretold his treatment as an outlaw, a person placed in a legal grey hole. Giorgio Agamben claims that there is an intimate connection between sovereign power and the ‘bare life’ of the homo sacer – the criminal excluded from society who loses his rights as a citizen and ‘may be killed and yet not sacrificed’. His theory centres on the idea that sovereignty necessarily produces bare life, and keeps humans in this ambivalent state, caught in the law but also excluded from it. The state of exception or emergency is the clearest example of this logic. During the state of emergency, what is otherwise illegal is explicitly made legal, and the sovereign state decides when the exception applies. Lawless’s internment was an action supported by the whole legal edifice. The state was the lawful actor, sovereign and backed by the law.

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