available languages: english April 3, 2020

Governments are introducing emergency measures across the world to fight off the covid-19 pandemic. DRI’s Michael Meyer-Resende answers some of our questions about what these measures entail.

1. What is a state of emergency?

Democracies can react strongly and quickly to imminent danger or emergency without eroding their democratic or legal values. Under international law, states of emergency allow for temporary derogations from normal business, notably:

  • Derogation from some human rights protections, for example to restrict freedom of movement during an emergency, while other rights remain in place, such as the right to life and prohibition of torture.
  • Effects on the democratic process and rule of law guarantees, but limitations should be strictly limited to the exigencies of the situation, without undermining these values.

How does this relate to the covid-19 pandemic?

There are significant restrictions on the right to move freely in most countries. In addition to curtailing freedom of movement, this limits freedom of assembly; people cannot demonstrate in the streets. The right to stand in elections is affected where candidates cannot campaign freely, especially when elections are held despite the pandemic. The right to an effective remedy against state actions, such as appealing decisions in courts, is affected when courts operate slowly or are temporarily closed. The right to vote is affected where elections are postponed to reduce the risk of infection.

In some countries, the right to property is significantly affected because states are requisitioning goods. Economic, social and cultural rights are affected too, as many industries are practically shut down, cultural events and initiatives are cancelled or postponed, the right to education is impeded and the right to health care is strained with resources shifted to combat the pandemic.

2. Is a state of emergency a bad thing?

States of emergency have a bad name because they have often been abused by dictators to suspend democratic constitutions and human rights protections over long periods. However, the concept of a state of emergency follows a rule of law logic: its purpose is to clearly signal that the normal functioning of the state cannot be maintained and that a special regime is in place for a limited time span. Therefore, if duly justified, calling a state of emergency is appropriate in a democracy. It is preferable to simply taking measures that significantly restrict human rights, democracy and the rule of law without calling it a state of emergency (introducing a de facto state of emergency).

While it is good to formally declare a state of emergency to signal a special regime, any state of emergency (whether enacted formally or de facto) can be abused, used for aims other than addressing the danger at hand. Not every state of emergency is the same. Governments can abuse them to concentrate power and undermine the constitutional order in the long-term. Therefore measures are foreseen in international law to limit the negative impact of states of emergency. These include the International Covenant on Civil and Political Rights, the European Convention on Human Rights and OSCE commitments.

How does this relate to the covid-19 pandemic?

The significant restrictions to free movement in every EU country amount to states of emergency, whether governments have formally called them so or not. Many European states have implemented these restrictions based on normal legislation rather than a special regime.

Measures adopted in Hungary go far beyond the exigency of the situation and represent an undue concentration of power in the executive branch of power.

3. What are the limits to a state of emergency and how do they apply to the current situation?

A state of emergency is a legal regime for the unforeseeable. It ensures that the rule of law can be upheld in exceptional circumstances. This means that any provisions under a state of emergency must take place in the framework of the rule of law and the constitutional order of a country. An emergency never justifies giving carte blanche to a government to do whatever it considers necessary. Laws apply, parliaments continue to work as much as possible and appeals can be made to courts against emergency provisions.

The assumption that institutions can continue to function normally during the covid-19 epidemic is challenged for two reasons. First, some important functions, like parliamentary sessions or court hearings, may be difficult to implement in practice when applying social distancing. Secondly, people such as heads of states and governments, parliamentarians and judges, may become ill and cannot perform their roles. Some systems have better provisions to fill the gaps than others. Many countries have adapted their laws temporarily, allowing distance voting or reducing the quorum for parliamentary decisions.

Furthermore, there are several limitations to what a government can do during a state of emergency, notably:

Limitations to human rights must be foreseen by law (ensuring their legality). Many countries have provisions in their constitutional law detailing when and how human rights can be limited during an emergency. Constitutional courts have elaborated such standards as well. A common European feature is a requirement for human rights limitations to be enshrined in a law approved by parliament or in an extraordinary decree issued by the government that is later subject to confirmation by parliament.

Restrictions should be defined as precisely as possible; they must be necessary to address the danger and proportionate to the aim (proportionality). The Venice Commission of the Council of Europe stressed that the balance “between national security and public safety, on the one hand, and the enjoyment of fundamental rights and freedoms, on the other hand, cannot be determined by use of any mathematical calculation or fixed scale.” While the fast spread of covid-19 is highly dangerous, the virus is not well-known. Thus, governments have a relatively wide margin on what they consider to be the best course of action. Their overall aim, to prevent a catastrophic breakdown of health systems resulting in a massive loss of life, justifies many different restrictive measures. But it always must be clear how the measures taken relate to suppress or mitigate the virus. Democratic accountability means that elected politicians are responsible for these decisions. While they take advice from experts, politicians make the actual decision.

A state of emergency should be limited in time and possibly in geographical reach. One of the biggest problems is that states of emergencies have often been extended for decades for vague reasons such as ensuring “national security”. Instead, these measures should be limited to address a specific danger. The spread of the coronavirus does not justify very long or unlimited states of emergencies. The effects of emergency measures can be assessed within a few weeks, after which they must be regularly reviewed. Extensions need to be duly justified.

The rule of law must be upheld, including the right to an effective remedy, such as the right to go to court. In the current situation, the right to an effective remedy is weakened because social distancing has slowed down or halted court proceedings in many states. States should ensure however that essential court cases are dealt with, particularly challenges against emergency measures, urgent criminal cases or civil and administrative cases where the court must intervene to halt harmful actions. For example, courts must be able to quickly address the increase in domestic violence that accompanied the isolation of families.

The democratic process and rule of law guarantees should only be impeded as much as is necessary to address the emergency. Freedom of expression must be maintained, parliaments, political parties and courts should function as much as possible. During the covid-19 pandemic, parliaments can meet and work remotely. While steps must be taken to ensure that voting is effective and safe, there is no general need to shut down the legislative branch and use the pandemic as an excuse to have the executive take over the entirety of lawmaking.

Read more about the topic

For a more detailed overview, read Strengthening International Law to Support Democratic Governance, a report by Democracy Reporting International and The Carter Center published in April 2012.

For more on global norms, see Article 4 of the International Covenant on Civil and Political Rights (ICCPR) and the ICCPR General Comment No. 29 of the UN Human Rights Committee, as well as the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR.

For a more European focus, see Article 15 of the European Convention on Human Rights, the OSCE Commitments, in particular the document of the 1991 Moscow meeting, as well as the Venice Commission Opinion on the Protection of Human Rights in Emergency Situations.

DRI works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign-up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.