State of emergency
A state of emergency is a situation in which a government is empowered 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 before, during, or after a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other biosecurity risk.
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
Democracies use states of emergency to manage a range of situations from extreme weather events to public order situations. 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. Nicole Questiaux and Leandro Despouy, 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.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 and American Convention on Human Rights have similar derogatory provisions. No derogation is permitted to the International Labour Conventions.
Some, such as political theorist and Nazi Party member Carl Schmitt, have argued that the power to decide the initiation of the state of emergency defines sovereignty itself. In State of Exception, 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.
The state of emergency can be used to overthrow an existing regime's constitution. One example was the August 1991 attempted coup in the Soviet Union 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 Labor Conventions are monitored by independent expert committees, regional Courts and other State Parties.
Law in selected countries
Albania
The Constitution of Albania grants only the Parliament of Albania the power to declare a state of emergency, based on the advice of the government. The state of emergency can last for up to 60 days, and may be extended by the parliament for no more than 90 days.Argentina
The Constitution of Argentina, which has been amended several times, has always allowed for a state of emergency, 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. The American Convention on Human Rights, adopted in 1969 but ratified by Argentina only 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. With regard to emergency management, regions 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.On 18 March 2020, a nationwide human biosecurity emergency was declared in Australia owing to the risks to human health posed by the coronavirus pandemic, after the National Security Committee met the previous day. The Biosecurity Act 2015 specifies that the governor-general of Australia may declare such an emergency if the Health Minister is satisfied that "a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale". This gives the Minister sweeping powers, including imposing restrictions or preventing the movement of people and goods between specified places, and evacuations. The Biosecurity Declaration 2020 was declared by the Governor-General, David Hurley, under Section 475 of the Act.
New South Wales
In New South Wales, the NSW Premier can, pursuant to the State Emergency and Rescue Management Act 1989, declare a state of emergency due to an actual or imminent occurrence which endangers, or threatens to endanger, the safety or health of persons or animals in the State, or destroys or damages, or threatens to destroy or damage, property in the State, or causes a failure of, or a significant disruption to, an essential service or infrastructure. The Premier declared a state of emergency on 11 November 2019 in response to the 2019–2020 New South Wales bushfires. It was the fifth time that a state of emergency had been declared in that state since 2006 and it lasted for seven days. Subsequent declarations were made on 19 December for a further seven days, and again on 2 January 2020. In NSW, the 2019–2020 bushfire season resulted in 26 deaths, destroyed 2,448 homes, and burnt.Victoria
In Victoria, the Victorian Premier can declare a state of emergency under the Public Safety Preservation Act 1958 if there is a threat to employment, safety or public order. A declared state of emergency allows the Premier to immediately make any desired regulations to secure public order and safety. The declaration expires after 30 days, and a resolution of either the upper or lower House of Parliament may revoke it earlier. However, these regulations expire if Parliament does not agree to continue them within seven days.The Premier may operate or prohibit operation of any essential service, such as transport, fuel, power, water or gas, under the Essential Services Act 1958.
If there is an emergency which the Premier, after considering the advice of the relevant Minister and the Emergency Management Commissioner, is satisfied constitutes or is likely to constitute a significant and widespread danger to life or property in Victoria, the Premier, pursuant to the Emergency Management Act 1986, may declare a state of disaster to exist in the whole or in any part or parts of the State. The state of disaster addresses matters beyond public health issues and is intended to deal with emergencies such as natural disasters, explosions, terrorism or sieges, and it can also be used to deal with 'a plague or an epidemic'.
The Public Health and Wellbeing Act 2008 gives the Chief Health Officer extensive powers to take action 'to investigate, eliminate or reduce public health risks', including power to detain, restrict the movement of or prevent entry of any person in the emergency area, "and to give any other direction that the authorized officer considers is reasonably necessary to protect public health."
Brazil
The current constitution of Brazil allows the president to declare two states, in order to "preserve or establish peace and order, threatened by grave and imminent institutional instability or severe natural disasters". The first, and less severe state is the state of defense, while a more severe form is the state of siege.Brunei
The 1959 constitution allows the Sultan of Brunei to declare a state of emergency at the national or local level. The sultan may extend the state of emergency after a two-year period or cancel it altogether.Under emergency rule, the sultan can proclaim royal decrees, known as Orders, which have the force of law and can affect wide-ranging domains such as censorship, freedom of movement, finance, and modification of legislation. These Orders are then subject to review by the Legislative Council, which may promulgate them into law as Acts through the normal legislative process. Some Acts are typically overridden by new Orders from the sultan.
The current state of emergency in Brunei predates its history as an independent state, having been invoked by Sultan Omar Ali Saifuddien III on 12 December 1962, when Brunei was still a British protectorate, in response to the Brunei revolt which was later put down with British assistance. Because the rebellion came to be associated with derhaka by the sultanate, it has not lifted the state of emergency nor has it reinstated the elected Legislative Council which was dissolved shortly after emergency rule was proclaimed. The state of emergency has also restricted many civil liberties.
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 by Prime Minister Pierre Trudeau during the 1970 October Crisis, and also by Prime Minister Robert Borden during World War I and by Prime Minister William Lyon Mackenzie King during World War II.
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.
The first usage of the Emergencies Act was invoked by Prime Minister Justin Trudeau on 14 February 2022 in response to the Freedom Convoy 2022 protests that occupied the capital of Ottawa. The Canadian House of Commons voted to approve the invocation 185–151 with support from the Liberal Party and the New Democratic Party and opposition from the Conservative Party and the Bloc Québécois. Prime Minister Trudeau previously considered invoking it at the beginning of the COVID-19 pandemic in April 2020, but faced unanimous disapproval from all thirteen provincial and territorial premiers at the Council of the Federation.