State of emergency

Relationship with international law

Under international law, rights and freedoms may be suspended during a state of emergency; for example, a government can detain persons and hold them without trial. All rights that can be derogated from are listed in the International Covenant for Civil and Political Rights. Non-derogable rights cannot be suspended. Non-derogable rights are listed in Article 4 of the ICCPR, they include the rights to freedom from arbitrary deprivation of liberty and to freedom from torture and/or ill-treatment.

Some countries have made it illegal to modify emergency law or the constitution during the emergency; other countries have the freedom to change any legislation or rights based constitutional frameworks at any time that the legislative chooses to do so. Constitutions are contracts between the government and the private individuals of that country. The International Covenant for Civil and Political Rights (ICCPR) is an international law document signed by states. Therefore, the Covenant only applies to persons acting in an official capacity, not private individuals. However, signatories to the Covenant are expected to integrate it into national legislation. The state of emergency (within the ICCPR framework) must be publicly declared and the Secretary-General of the United Nations must be contacted immediately, to declare the reason for the emergency, the date on which the emergency is to start, the derogations that may take place, with the timeframe of the emergency and the date in which the emergency is expected to finish. Although this is common protocol stipulated by the ICCPR often this is not strictly followed; enforcement is better regulated by European Convention of human rights.

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. 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 International Covenant on Civil and Political Rights (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 only be to 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 and American Convention on Human Rights 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.

Abuse

The state of emergency can, and often has been, 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.

Argentina

The Constitution, which has been amended several times, has always allowed for a state of emergency (literally estado de sitio, state of siege), to be declared if the constitution or the authorities it creates are endangered by internal unrest or foreign attack. This provision was much abused during dictatorships, with long-lasting states of siege giving the government a free hand to suppress opposition (as of 2010 state of emergencies had been declared 52 times by democratic and dictatorial governments, starting in 1854 shortly after the constitution came into force). The American Convention on Human Rights (Pacto de San José de Costa Rica), adopted in 1969 but only ratified by Argentina in 1984 immediately after the end of the National Reorganization Process, restricts abuse of the state of emergency by requiring any signatory nation declaring such a state to inform the other signatories of its circumstances and duration, and what rights are affected.

Australia

State-of-emergency legislation differs in each state of Australia.

In Victoria, the premier can declare a state of emergency if there is a threat to employment, safety or public order. The declaration expires after 30 days, and a resolution of either the upper or lower House of Parliament may revoke it earlier. Under the Public Safety Preservation Act, a declared state of emergency allows the premier to immediately make any desired regulations to secure public order and safety. However, these regulations expire if Parliament does not agree to continue them within 7 days. Also, under the Essential Services Act, the premier (or delegate) may operate or prohibit operation of, as desired, any essential service (e.g., transport, fuel, power, water, gas).

In regards to Emergency Management, regions (usually on a local government area basis) that have been affected by a natural disaster are the responsibility of the state, until that state declares a State of Emergency where access to the Federal Emergency Fund becomes available to help respond to and recover from natural disasters. A State of Emergency does not apply to the whole state, but rather districts or shires, where essential services may have been disrupted.

See also, Exceptional circumstances; a term most commonly used in Australia with regard to emergency relief payments.

Brazil

Extreme act that, in Brazil (Estado de Sítio or Estado de Exceção, in Portuguese), can be declared on the following circumstances:

The state of emergency could last for 30 days, being possible to extend it for more days in case of persistence of the reasons of exceptionality.

Only the President is able to declare or prorogate this State; after receiving formal authorization from National Congress and after consultation with the National Security Council or the Council of the Republic.

Canada

The federal government of Canada can use the Emergencies Act to invoke a state of emergency. A national state of emergency automatically expires after 90 days, unless extended by the Governor-in-Council. There are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency.

The Emergencies Act replaced the War Measures Act in 1988. The War Measures Act was invoked three times in Canadian history, most controversially during the 1970 October Crisis, and also during World War I (from 1914 to 1920, against threat of Communism) and World War II (from 1942 to 1945, against perceived threat from Japanese Canadians following Imperial Japan's attack on Pearl Harbor).

Under the current Emergency Act a state of emergency can also be declared by provincial, territorial, and municipal governments. In addition Canada's federal government and any of its provincial governments can suspend, for five years at a time, Charter rights to fundamental freedoms in section 2, to legal rights in sections 7 through 14, and to equality rights in section 15 by legislation which invokes the notwithstanding clause, section 33, and therefore emergency powers can effectively be created even without using the Emergency Act.

Denmark

The police chief in a district can impose a zone in which people can be body searched without a specific suspicion. Such an order must be issued in writing, published, and imposed for a limited period. The police law (article 6) regulates this area. The normal procedure calls for assisting the suspect to a private area and stripping them.

If the police feel that a situation involving a crowd of people can get out of hand, they can order the assembly to be dissolved and "pass the street" in the name of the king. People that after three such warnings are still part of the crowd can then without further warning be subjugated to mass arrest. All people arrested can then be detained for 24 hours without charging them or taking them for a judge. This is called a precluding arrest.

Egypt

Egyptians lived under an Emergency Law (Law No. 162 of 1958) from 1967 to 2012, except for an 18-month break in 1980 and 1981. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat. The law continuously extended every three years since 1981. Under the law, police powers were extended, constitutional rights suspended and censorship was legalized. The law sharply circumscribed any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations were formally banned. Some 17,000 people were detained under the law, and estimates of political prisoners run as high as 30,000. The emergency rule expired on May 31, 2012, and was put back in place in January 2013. Egypt declared a month-long national emergency on 14 August 2013.

The Egyptian presidency announced a one-month state of emergency across the country on August 14, 2013 and ordered the armed forces to help the Interior Ministry enforce security. The announcement made on state TV followed deadly countrywide clashes between supporters of deposed President Mohammed Morsi and the security forces.

France

Three main provisions concern various kind of "state of emergency" in France: Article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the president. Article 36 of the same constitution regulates "state of siege" (état de siège). Finally, the Act of 3 April 1955 allows the proclamation, by the Council of Ministers, of the "state of emergency" (état d'urgence). The distinction between article 16 and the 1955 Act concerns mainly the distribution of powers: whereas in article 16, the executive power basically suspend the regular procedures of the Republic, the 1955 Act permits a twelve-day state of emergency, after which a new law extending the emergency must be voted by the Parliament. These dispositions have been used at various times, in 1955, 1958, 1961, 1988, 2005, and 2015.

Germany

The Weimar Republic constitution allowed states of emergency under Article 48 to deal with rebellions. Article 48 was often invoked during the 14-year life of the Republic, sometimes for no reason other than to allow the government to act when it was unable to obtain a parliamentary majority.

After the February 27, 1933 Reichstag fire, an attack blamed on the communists, Adolf Hitler declared a state of emergency using Article 48, and then had President von Hindenburg sign the Reichstag Fire Decree, which suspended the Weimar Constitution for the whole duration of the Third Reich: the Weimar Constitution was never actually repealed by Nazi Germany, but "indefinitely suspended". After the prohibition of the Communist Party of Germany on March 1, 1933, the Nazi Party was free to vote in the March 23, 1933 Enabling Act, which enabled Chancellor Adolf Hitler and his cabinet to enact laws without the participation of the Reichstag. These two laws implemented the Gleichschaltung, the Nazis' institution of totalitarianism.

In the postwar Federal Republic of Germany the Emergency Acts state that some of the basic constitutional rights of the Basic Law may be limited in case of a state of defence, a state of tension, or an internal state of emergency or disaster (catastrophe). These amendments to the constitution were passed on May 30, 1968 despite fierce opposition by the so-called extra-parliamentary opposition (see German student movement for details).

Hong Kong

The Standing Committee of the National People's Congress can declare a state of emergency and deploy troops from the People's Liberation Army Hong Kong Garrison under the Law of the People's Republic of China on the garrisoning of the Hong Kong Special Administrative Region.

The Chief Executive of Hong Kong along with the Executive Council can prohibit public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft and appoint special constable all under Chapter 245 ("Public Order Ordinance") of Hong Kong Law.

Since 1997, no emergency measures have been enacted. Prior to that date, emergency measures were used for four major incidents:

Hungary

According to the Hungarian Constitution, the National Assembly of Hungary can declare state of emergency in case of armed rebellion or natural or industrial disaster. It expires after 30 days, but can be extended. Most civil rights can be suspended, but basic human rights (such as the right to live, the ban of torture, and freedom of religion) cannot.

During state of emergency, the Parliament cannot be disbanded.

Iceland

The Icelandic constitution provides no mechanism for state of emergency nor martial law.

India

In India, an external state of emergency was declared two times during wars:

In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. It all started after Raj Narain, who had been defeated in parliamentary election by Indira Gandhi, lodged cases of election fraud and use of state machinery for election purposes against Gandhi in the Allahabad High Court. While some serious charges such as bribing voters and election malpractices were dropped, on 12 June 1975, Justice Jagmohanlal Sinha of the Allahabad High Court found the Prime Minister guilty on the charge of misuse of government machinery for her election campaign, such as using the state police to build a dais, availing the services of a government officer, Yashpal Kapoor (IAS), during the elections before he had resigned from his position, and use of electricity from the state electricity department. The court declared her election null and void and unseated her from her seat in the Lok Sabha. The court also banned her from contesting any election for an additional six years.

Protests led by J.P.Narayan, Raj Narain, Satyendra Narayan Sinha and Morarji Desai flooded the streets of Delhi close to the Parliament building and the Prime Minister's residence, and in response, Mrs Gandhi declared a state of emergency, suspending civil liberties. Political opposition was heavily suppressed during the emergency. The Government used police forces across the country to arrest thousands of protestors and strike leaders. J.P. Narayan, Raj Narain, Morarji Desai, Charan Singh, Jivatram Kripalani, Atal Bihari Vajpayee, L.K. Advani, Satyendra Narayan Sinha and other protest leaders were immediately arrested. Organizations such as the Rashtriya Swayamsevak Sangh, along with some opposition political parties were banned. Nearly two years later, confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency, released dissidents and announced elections.

In the ensuing election, Raj Narain and his colleagues rode a popular wave of unrest to defeat her and her Government. Raj Narain won decisively in the Prime Minister's home constituency of Rae Bareli, and for the first time a non-Congress government took office in Republic of India

Ireland

In Ireland a state of national emergency may be declared by invoking Article 28 of the Constitution of Ireland. According to Article 28.3.3., "no article of the Constitution may be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law". The time of war or armed rebellion includes actions outside the state itself, and is not limited in time to the duration of the war or armed rebellion. Several constitutional review groups, as well as a special group set up by the Good Friday Agreement to review the Offenses Against the State Acts have recommended an automatic time limit be included in Article 28 on any state of emergency which requires the state of emergency to be re-authorized for it to continue.

A state of emergency was declared in 1939 at the outbreak of World War II, though Ireland was not a participant (The period was and is referred to as The Emergency in Ireland). This state of emergency was not technically lifted until 1976, and was succeeded by a second state of emergency to deal with the Troubles in Northern Ireland and the recent assassination of the British ambassador to Ireland, Christopher Ewart Biggs. The Troubles lasted until the IRA ceasefire in 1994. However, a mere declaration of a state of emergency does not itself confer any extraordinary powers on the government, it only allows the Oireachtas to pass laws that might normally be considered unconstitutional. None such laws were in effect between 1946 and 1976.

The Emergency Powers Act 1939 granted the government the power to govern through executive decree's called 'Emergency Powers Orders' that could cover any aspect of national life. The act allowed the Oireachtas to nullify individual EPO's by majority vote.

Some emergency powers do not require an act of parliament to pass, for example Section V of the Offences against the State Act allows the government to declare that the section (which covers internment, arrest and search without a judicial warrant) is in effect by statutory instrument, and empowers any minister of state to issue an arrest warrant and determine how long the person in question is to be held for. This power has not been used since the 1960s, as the normal criminal justice system in conjunction with the non-jury Special Criminal Court, have been deemed adequate to control terrorism and organized crime.

The only limitation placed on the government during a state of emergency (as with peacetime) is a prohibition on capital punishment.

Macau

The Standing Committee of the National People's Congress can declare a state of emergency and deploy troops from the People's Liberation Army Macau Garrison under the Article 14 of Macau's Basic Law on the defence of the Macau Special Administrative Region.

The Chief Executive of Macau can use the Macau national security law to prohibit public gatherings, issue curfew orders, prohibit other activities perceived to be a threat against the Region or China.

Since 1999 no emergency measure have been enacted. Prior to 1999 emergency measures have been used for 1 major incident:

Malaysia

In Malaysia, if the Yang di-Pertuan Agong (Monarch) is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.

In the history of Malaysia, a state of emergency was declared by the then-colonial government of Britain. The state of emergency lasted from 1948 until 1960 to deal with the communists led by Chin Peng.

States of emergency were also declared during the Konfrontasi in 1962, the 1966 Sarawak constitutional crisis and 1977 Kelantan Emergency.

When a race riot broke out on May 13, 1969, a state of emergency was declared.

On August 11, 2005 a state of emergency was announced for the world's 13th largest port, Port Klang and the district of Kuala Selangor after air pollution there reached dangerous levels (defined as a value greater than 500 on the Air Pollution Index or API).

Thiery Rommel, the European Commission's envoy to Malaysia, told Reuters by telephone on November 13, 2007 (the last day of his mission) that, "Today, this country still lives under (a state of) emergency." Although not officially proclaimed as a state of emergency, the Emergency Ordinance and the Internal Security Act had allowed detention for years without trial.

On June 23, 2013 a state of emergency was declared by Prime Minister Najib Abdul Razak for Muar and Ledang, Johor as smoke from land-clearing fires in Indonesia pushed air pollution index to above 750. This is the first time in years that air quality has dipped to hazardous level with conditions worsening in as dry weather persists and fires rage in Sumatra.

New Zealand

The Civil Defence Emergency Management Act 2002 gives the government and local city council the power to issue a state of emergency, either over the entire country or within a specific region. This may suspend ordinary work and essential services if need be. The state of emergency in New Zealand expires on the commencement of the seventh day after the date on which it was declared, unless it is extended. However, the minister of civil defence or local mayor may lift the state of emergency after an initial review of the region's status.

Nigeria

In Nigeria, a state of emergency is usually declared in times of great civil unrest. In recent years, it has specifically been implemented in reaction to terrorist attacks on Nigerians by the Islamic jihadist group Boko Haram.

On 14 May 2013, Goodluck Jonathan declared a state of emergency for the entire northeastern states of Borno, Yobe and Adamawa. A more limited state of emergency had been declared on 31 December 2011 in parts of Yobe, Borno, Plateau and Niger states. This earlier declaration included the temporary shutdown of the international borders in those regions.

Pakistan

In Pakistan, a state of emergency was declared five times in its history:

The first three were regarded as the imposition of direct martial law.

Romania

In Romania, there are two types of states of emergency, each designed for a different type of situation.

The most well-known event in which the state of emergency has been enforced was because of 1977 Vrancea earthquake.

The last instance in which the special zone of public safety was enforced was in December 8, 2013-ongoing, in Pungești, Vaslui following civil unrest in Pungești from Chevron's plans to begin exploring shale-gas in the village. According to police officials, the special security zone will be maintained as long as there is conflict in the area that poses a threat to Chevron’s operations. This special security zone has faced domestic and international criticism for alleged human-rights abuses.

South Africa

States of emergency in South Africa are governed by section 37 of the Constitution and by the State of Emergency Act, 1997. The President may declare a state of emergency only when "the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency" and if the ordinary laws and government powers are not sufficient to restore peace and order. The declaration is made by proclamation in the Government Gazette and may only apply from the time of publication, not retroactively. It can only continue for 21 days unless the National Assembly grants an extension, which may be for at most three months at a time. The High Courts have the power, subject to confirmation by the Constitutional Court, to determine the validity of the declaration of a state of emergency.

During a state of emergency the President has the power to make emergency regulations "necessary or expedient" to restore peace and order and end the emergency. This power can be delegated to other authorities. Emergency measures can violate the Bill of Rights, but only to a limited extent. Some rights are inviolable, including amongst others the rights to life and to human dignity; the prohibition of discrimination on the grounds of race, sex or religion; the prohibition of torture or inhuman punishment; and the right of accused people to a fair trial. Any violation of a constitutional right must be strictly required by the emergency. Emergency measures may not indemnify the government or individuals for illegal actions. They may impose criminal penalties, but not exceeding three years' imprisonment. They may not require military service beyond that required by the ordinary laws governing the defence force. An emergency measure may be disapproved by the National Assembly, in which case it lapses, and no emergency measure may interfere with the elections, powers or sittings of Parliament or the provincial legislatures. The courts have the power to determine the validity of any emergency measure.

The constitution places strict limits on any detention without trial during a state of emergency. A friend or family member of the detainee must be informed, and the name and place of detention must be published in the Government Gazette. The detainee must have access to a doctor and a legal representative. He or she must be brought before a court within at most ten days, for the court to determine whether the detention is necessary, and if not released may demand repeated review every ten days. At the court review the detainee must be allowed legal representation and must be allowed to appear in person. The provisions on detention without trial do not apply to prisoners of war in an international conflict; instead they must be treated in accordance with the Geneva Conventions and other international law.

Spain

In Spain, there are three degrees of state of emergency (estado de emergencia in Spanish): alarma (alarm or alert), excepción (exception[al circumstance]) and sitio (siege). They are named by the constitution, which limits which rights may be suspended, but regulated by the "Ley Orgánica 4/1981" (Organic Law).

On December 4, 2010, the first state of alert was declared following the air traffic controllers strike. It was the first time since the Francisco Franco's regime that a state of emergency was declared.

Switzerland

According to Art. 185 of the Swiss Federal Constitution The Federal Council (Bundesrat) can call up in their own competence military personnel of maximum 4000 militia for three weeks to safeguard inner or outer security (called Federal Intervention or Federal Execution, respectively). A larger number of soldiers or of a longer duration is subject to parliamentary decision. For deployments within Switzerland the principle of subsidiarity rules: as a first step, unrest has to be overcome with the aid of cantonal police units.

Trinidad and Tobago

A state of emergency was declared in 1970 during the Black Power Revolution by then Prime Minister Eric Williams. During the attempted state coup by the Jamaat al Muslimeen against the NAR government of the then Prime Minister A. N. R. Robinson, a state of emergency was declared during the coup attempt and for a period after the coup.

On August 4, 1995, a state of emergency was declared to remove the Speaker of the House Occah Seepaul by Prime Minister Patrick Manning during a constitutional crisis. The government had attempted to remove the speaker via a no-confidence motion, which failed. The state of emergency was used to remove the speaker using the emergency powers granted.

The Prime Minister Kamla Persad-Bissessar on 22 August 2011 at 8:00 pm announced a State of Emergency in an attempt to crack down on the trafficking of illegal drugs and firearms, in addition to gangs. The decision of the President, George Maxwell Richards, to issue the proclamation for the State of Emergency was debated in the country's Parliament as required by the Constitution on September 2, 2011 and passed by the required simple majority of the House of Representatives. On September 4 the Parliament has extended the State Of Emergency for a further 3 months and ended in December 2011.

Turkey

Since the foundation of the Republic of Turkey in 1923 the military conducted three coups d'état and announced martial law. Martial law between 1978 and 1983 was replaced by a state of emergency that lasted until November 2002. The latest state of emergency was declared by President Erdogan on 20 July 2016 following a failed coup attempt on 15 July 2016 by a faction of the country's armed forces.

United Kingdom

In the United Kingdom, only the British Sovereign, on the advice of the Privy Council is able to proclaim emergency regulations under the Civil Contingencies Act 2004 in case of any seriously fatal threats to their human welfare, their human society, and their environment, such as warfare or terrorism. These regulations last for seven days unless confirmed otherwise by Parliament. A state of emergency was last invoked in 1974 by Prime Minister Edward Heath in response to increasing industrial action.

United States

The Constitution explicitly provides some emergency powers:

Aside from these, many provisions of law exist in various jurisdictions, which take effect only upon an executive declaration of emergency. The National Emergencies Act regulates this process at the federal level. It requires the President to specifically identify the provisions activated and to renew the declaration annually so as to prevent an arbitrarily broad or open-ended emergency. In all such cases, the government must continue to act within the limits of the law and constitution.

A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters. The Federal Emergency Management Agency maintains a system of assets, personnel and training to respond to such incidents. For example, on December 10, 2015, Washington state Governor Jay Inslee declared a state of emergency due to flooding and landslides caused by heavy rains.

The 1977 International Emergency Economic Powers Act allows the government to freeze assets, limit trade and confiscate property in response to an "unusual and extraordinary threat" to the United States that originates substantially outside of it. As of 2015 more than thirty emergencies under the IEEPA remain active regarding various subjects, the oldest of which was declared in 1979 with regard to the government of Iran. Another ongoing national emergency, declared after the September 11 attacks, authorizes the president to retain or reactivate military personnel beyond their normal term of service.

Ongoing

Past states of emergency