a network of constitutionalists from countries throughout the world
Over the coming days, we will be featuring each of the 20 workshops in the 10th IACL World Congress 2018 on “VIOLENT CONFLICTS, PEACE-BUILDING AND CONSTITUTIONAL LAW”, being held in Seoul, Republic of Korea on 18-22 June 2018. Full details are on the congress website, in English and French, along with information on how to submit a paper. Papers may be in either French or English.
A state of emergency or any regime designed to deal with an emergency, such as a state of siege or other regime of exception, refers to exceptional situations which gives extraordinary powers to public authorities, authorising them to take the measures which the circumstances require in order to return to normal as soon as possible. The implementation of such regimes has been discussed regularly and has resulted in numerous doctrinal studies since the events of 11 September 2001 and the lessons it has taught different countries in the context of counter-terrorism policies which they have implemented.
However, threats of terrorism are not the only reason why a country can establish a regime of exception. Other reasons may include invasion, civil war or natural disaster such as an earthquake, an epidemic or a famine. Declaring a state of emergency then leads to concentrating almost all the powers in the hands of the executive, rendering inoperative most of the checks and mechanisms that constitute guarantees against the abuse of power. The challenge then is to strike the right balance between state security and law enforcement requirements on one hand, and the protection of rights and freedoms on the other.
The purpose of emergency regimes is to ensure that, where circumstances warrant it, all measures can be taken to restore normalcy and regular functioning of public authorities. In this context, the first question is what can effectively be characterized as urgent and what powers institutions need to deal with the situation. Although there is no single definition of emergency, international law sets out some principles and guidelines. Thus, for example, article 4 of the International Covenant on Civil and Political Rights provides that, where an exceptional danger threatens the existence of the nation and is proclaimed by an official act, a country may, to the extent strictly necessary and within certain limits, take measures derogating from obligations under the Covenant. In such cases, the State concerned will, through the Secretary-General of the United Nations, promptly report to the other States parties the provisions from which it has deviated and the reasons for which it has been obliged to do so. Similarly, fora such as the International Commission of Jurists and the International Law Association have made recommendations concerning the content of the national constitutional provisions on emergency regimes. Undoubtedly one of the most significant contributions is the “Paris Minimum Standards of Human Rights Norms in a State of Emergency” adopted by the International Law Association in 1984, which set the minimum standards for regimes of exception, in the event of an emergency threatening the existence of the nation.
State practices differ significantly. Questions remain about the competent authority to declare a state of emergency, the procedures to be followed, the circumstances justifying it, the institutions associated with the process and the type of control they may exercise, especially the adequacy and proportionality of the measures that have been implemented. In other words, the question is how to give governments the means to deal with an exceptional situation without taking the risk that leaders may abuse it for personal ends.
This workshop provides an opportunity for researchers and legal practitioners to explore the theoretical and legal outlines of the practice of exceptional regimes in light of contemporary crises and especially the threat of terrorism. Case studies, theoretical approaches and comparative studies are welcome on any subject related to this issue, such as:
• The guiding principles on states of emergency
• Limits in time, space and purpose of regimes of exception
• Rules and principles applicable in a state of emergency
• Maintaining the rule of law during a state of emergency
• Extra legal emergency powers
• Separation of powers under a regime of exception