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A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other biosecurity risk. Justitium is its equivalent in Roman law—a concept in which the Roman Senate could put forward a final decree (senatus consultum ultimum) that was not subject to dispute yet helped save lives in times of strife.

States of emergency can also be used as a rationale or pretext for suspending rights and freedoms guaranteed under a country's constitution or basic law, sometimes through martial law or revoking habeas corpus. The procedure for and legality of doing so vary by country.

Relationship with international law

Under international law, rights and freedoms may be suspended during a state of emergency, depending on the severity of the emergency and a government's policies.

Use and viewpoints

Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely for the life of the regime, or for extended periods of time so that derogations can be used to override human rights of their citizens usually protected by the International Covenant on Civil and Political Rights (ICCPR).^[1] In some situations, martial law is also declared, allowing the military greater authority to act. In other situations, emergency is not declared and de facto measures taken or decree-law adopted by the government. Ms. Nicole Questiaux (France) and Mr. Leandro Despouy (Argentina), two consecutive United Nations Special Rapporteurs, have recommended to the international community to adopt the following "principles" to be observed during a state or de facto situation of emergency: Principles of Legality, Proclamation, Notification, Time Limitation, Exceptional Threat, Proportionality, Non-Discrimination, Compatibility, Concordance and Complementarity of the Various Norms of International Law (cf. "Question of Human Rights and State of Emergency", E/CN.4/Sub.2/1997/19, at Chapter II; see also état d'exception).

Article 4 to the ICCPR, permits states to derogate from certain rights guaranteed by the ICCPR in "time of public emergency". Any measures derogating from obligations under the Covenant, however, must be to only the extent required by the exigencies of the situation, and must be announced by the State Party to the Secretary-General of the United Nations. The European Convention on Human Rights^[2] and American Convention on Human Rights^[3] have similar derogatory provisions. No derogation is permitted to the International Labour Conventions.

Some political theorists, such as Carl Schmitt, have argued that the power to decide the initiation of the state of emergency defines sovereignty itself. In State of Exception (2005), Giorgio Agamben criticized this idea, arguing that the mechanism of the state of emergency deprives certain people of their civil and political rights, producing his interpretation of homo sacer.^[4]

Graduation

In many democratic states there are a selection of legal definitions for specific states of emergency,^[5] when the constitution of the State is partially in abeyance depending on the nature of the perceived threat to the general public. In order of severity these may include:

Martial law when civil rights are severely restricted by the imposition of military force within a Sovereign state, for example during a period of extreme threat of invasion or actual hostilities by foreign forces
state of siege when the civil rights of specified persons or groups such as political activists are likely to be curtailed, for example to prevent an insurrection or organised acts of treason by suspected agents provocateurs
civil emergency dealing with disaster areas and requiring the deployment of extraordinary resources to contain dangerous situations such as natural disasters or extensive malicious property damage such as may occur during rioting or by arson. As well as regular emergency services, sometimes military forces may be assigned to deliver aid under especially dangerous conditions or to prevent looting

Abuse

The state of emergency can be abused by being invoked. An example would be to allow a state to suppress internal opposition without having to respect human rights. An example was the August 1991 attempted coup in the Soviet Union (USSR) where the coup leaders invoked a state of emergency; the failure of the coup led to the dissolution of the Soviet Union.

Derogations by states having ratified or acceded to binding international agreements such as the ICCPR, the American and European Conventions on Human Rights and the International Labour Conventions are monitored by independent expert committees, regional Courts and other State Parties.^[6]

^ See Judson, 2012, "Where is R2P grounded in international law".
^ European Convention on Human Rights, Article 15
^ American Convention on Human Rights, Article 27
^ Agamben 2005
^ "Emergency Declarations and Authorities Fact Sheet | State Public Health | ASTHO". www.astho.org.
^ Cite error: The named reference BBC was invoked but never defined (see the help page).

[1] See Judson, 2012, "Where is R2P grounded in international law".

[2] European Convention on Human Rights, Article 15

[3] American Convention on Human Rights, Article 27

[4] Agamben 2005

[5] "Emergency Declarations and Authorities Fact Sheet | State Public Health | ASTHO". www.astho.org.

[BBC-6] Cite error: The named reference BBC was invoked but never defined (see the help page).

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