National constitutions and international human rights treaties often contain clauses that allow governments to temporarily suspend their obligations in a time of crisis. They can invoke special powers that would normally be considered infringements on liberty.
However, while many states have enacted what have been described as emergency laws in response to the coronavirus pandemic, not all of these countries have actually declared a state of emergency under law. That could have future implications for their citizens.
Many states are using emergency powers to impose “lockdowns”, for instance. This is not a technical legal term but the status seems to include measures like new powers of detention, closing non-essential businesses, limiting public gatherings and limiting people’s movement, monitoring the streets to ensure they remain inside.
These measures have serious implications for the right to liberty, freedom of association, and freedom of movement. For example, powers to break up and limit gatherings are aimed at stopping people from spreading the virus, but they could also potentially be applied to breaking up trade unions, political parties and other organisations that are absolutely vital for democracy.
This is not a priority right now, but it could happen in the future. This is why citizens should be aware of which exceptional powers their governments have invoked and when they will relinquish them.
Declaring a state of emergency
It’s useful to use the European Convention on Human Rights (ECHR) as a benchmark for good practice because 47 states have signed up to the document. It therefore gives a good indication of what they agree is acceptable and what is not. Article 15 of the ECHR allows countries to declare a state of emergency “in times of war or other public emergency threatening the life of the nation”.
States can’t just do whatever they like to respond to the crisis, however. Exceptional powers are only allowed “to the extent strictly required by the exigencies of the situation”. Some rules – such as the prohibition on torture – can never be abandoned.
So far, six ECHR nations have declared a state of emergency under Article 15 in response to the pandemic. They are Armenia, Estonia, Georgia, Latvia, Moldova and Romania.
Others, like Italy and Spain, have not used the ECHR mechanism but have declared states of emergency in accordance with their constitutional provisions. Italy’s constitution, for example, only allows an emergency to be declared by the government, subject to review by its legislature.
It may be that these countries believe their constitutions provide better protections for rights than the ECHR and these higher protections need departing from. Or they may feel the need to circumvent the ordinary decision-making processes in their constitutions that prevent them from acting swiftly to respond to this emergency.
The UK, meanwhile, has introduced what politicians have described as “emergency powers” but has not declared a state of emergency. The government convinced parliament to pass lengthy legislation allowing extra powers in less than a week.
This shows that there is some confusion about whether a country should declare a state of emergency under the ECHR or whether it can simply go it alone. Some MEPs say derogating from the ECHR sends out the “wrong signal” about a state’s commitment to human rights. This is because countries with poor human rights records (such as Turkey) often declare states of emergency.
This may be the key reason why countries like Spain, Italy and the UK are taking a different route and relying solely on their constitutional provision.
On the other hand, failing to declare a state of emergency via the ECHR may leave these nations less accountable to the international treaties they themselves signed.
Officially declaring a state of emergency allows exceptional powers in exceptional circumstances, which means the mechanism is also supposed to prevent such powers from being enacted in a time of “normalcy”. If a state of emergency is not declared, this “quarantining effect” of the special powers is lost. Instead, states can pretend that the exceptional measures they have invoked are perfectly compatible with the normal legal framework.
It will be some time before the European Court of Human Rights definitively rules on whether a state of emergency is needed to authorise the emergency pandemic powers under the ECHR. By then, the crisis will hopefully be over. However, emergency powers have a worrying tendency of becoming permanent.
It does not take much imagination to see how powers restricting public gatherings to control a pandemic could be used to other ends. We are already seeing worrying developments in some European states in response to the pandemic. Hungary is currently considering an emergency bill that would allow its president Victor Orban to rule by decree with no cut-off date.
In contrast, Spain’s state of emergency expires after 30 days but it can be renewed for another 30 days. The UK government’s extra powers must be renewed by parliament after six months and will expire in full after two years.
However, time-limits to emergency legislation have a poor reputation for actually working. This is best illustrated by the US Patriot Act enacted shortly after September 11 2001. Many of the most controversial provisions of this law are still in force today, despite the fact they were originally due to expire on December 31 2005.
Declaring a state of emergency under Article 15 of the ECHR and expressly acknowledging the unpalatable and temporary nature of these measures is best practice. It ensures that other states and international human rights organisations can monitor and even police how powers are being implemented.
Emergency powers were instrumental in ending the Roman Republic and in the rise of Adolf Hitler, so we should always be wary of them. Declaring a state of emergency has the useful effect of defining the boundaries of exceptional powers so that checks are in place.