1. STATEno norm that isEMERGENCY
There exists
OF applicable to chaos - Carl Schmitt
Paolo V. Tonini
King’s College of London
paolo.tonini@kcl.ac.uk
HOW HUMAN RIGHTS CAN BE DEROGATED UNDER
WESTERN CONSTITUTIONAL LAWS

2. The question you propose, whether circumstances do not
sometimes occur, which make it a duty in officers of high
trust, to assume authorities beyond the law, is easy to
solution in principle, but sometimes embarrassing in practice.
A strict observance of the written laws is doubtless one of
the high duties of a good citizen, but it is not the highest.
The laws of necessity, of self-preservation, of saving our
country when in danger, are of higher obligation. To lose our
country by a scrupulous adherence to written laws, would
be to lose the law itself, with life, liberty, property and all
those who are enjoying them with us; thus absurdly
sacrificing the end to the means
Letter of Thomas Jefferson to John B. Colvin, Monticello,
September 20, 1810

3. TABLE OF CONTENTS
I. PREAMBLE
II. EMERGENCY VS. STATE OF EMERGENCY
A. DEFINITION OF EMERGENCY
B. STATE OF EMERGENCY
C. JURISPRUDENCIAL DILEMMA: LAWS OF
NECESSITY or RULE OF LAW?
III. STATE OF EMERGENCY IN CONSTITUTIONS
A. CONCENTRATION OF POWERS
B. CONSTITUTIONAL HANDLING OF EMERGENCY
STATUS
 FORMAL PROVISIONS (GERMANY,ISRAEL)
 REJECTION/DENIAL (BELGIUM)
 OMISSION (USA)

4. PREAMBLE
Article 4 ICCPR 1966
1 . In time of public emergency which threatens the life
of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations
under the present Covenant to the extent strictly
required by the exigencies of the situation, provided
that such measures are not inconsistent with their
other obligations under international law and do not
involve discrimination solely on the ground of race,
colour, sex, language, religion or social origin.
2. No derogation from articles 6 (arbitrary deprivation of life), 7
(torture), 8 1,2 (slavery and servitude), 11 (debtor’s prison), 15 (lex
posterior), 16 (recognition as a person) and 18 (freedom of thought,
conscience and religion) may be made under this provision.

5. EMERGENCY vs. STATE OF EMERGENCY
A. DEFINITION OF EMERGENCY
 In English, the word “emergency” can be considered
broadly overlapping the word “crisis”, “need” and
“urgency”; the word “crisis” is more narrowly defined
than “emergency” though. In fact, it refers to a time
when a great danger, difficulty, or confusion, is at its
worst point, and the problem must be solved or
important decisions must be made in order to survive.
 “emergency” and “state of emergency”. In fact, the
former is the factual cause of the latter, which is a
precise legal concept. Therefore such terms cannot be
confused. It would be as if one mistook the factual
cause for the legal effect

6. EMERGENCY vs. STATE OF EMERGENCY
A. DEFINITION OF EMERGENCY
Emercency can only be defined by contrast to a set of
circumstances deemed to be ordinary.
In ordinary times in constitutionally-framed
democracies:
4. the polity is able to assimilate the full impact of the
give and take of everyday politics;
5. a concrete and definite apportionment of powers
operates in accordance with the constitution.
Emergency breaks the norm being a series of events
truly exceptional, in the sense that they must be
unforeseen, sudden, dangerous and short-running

7. EMERGENCY vs. STATE OF EMERGENCY
A. DEFINITION OF EMERGENCY
All the legislative attempts to give the word a
substantive and concrete meaning, have failed in the
end because it is impossible to encompass all the
possible concrete menaces in the word of the law.
Not even comparative research can overcome this
elusiveness.
The basic assumption that underpins the following
considerations, is the fact that in times of crisis the
system has to assure a ready response to the menace,
and thus there can be no restraints of any kind, not
even those at a constitutional level in order to defeat
the threat.

8. EMERGENCY vs. STATE OF EMERGENCY
B. STATE OF EMERGENCY
The systemic and legal reaction to an emergency is
twofold. First of all some, if not all, constitutional
provisions are suspended, in order to create a new
paradigm able to face the crisis. Secondly, the
implementation of the paradigm occurs
concentrating the powers in the hands of the
executive branch. Such a state of constitutional
suspension is the so called state of emergency.
N.B. not the validity, but only the effectiveness, of
the norms is struck

9. EMERGENCY vs. STATE OF EMERGENCY
C. A JURISPRUDENCIAL DILEMMA: LAWS OF NECESSITY or THE
RULE OF LAW?
Pure constitutionalists (McIlvain, Hoffman, Dicey, Kelsen) the
State is totally constituted by law, the source of the state of
emergency is inside the Constitution -no matter whether is it
stated formally or obtained by deduction- and emergency
statuses are juridically produced voids in which the
government can act with several degrees of restraints in
order to overcome the crisis
Realists (Schmitt, Rossiter, Mortati) “Ausnahmezustand” -
"state of emergency“: a state of exception which is supposed
to free the executive from any legal restraints. The state of
emergency is a space beyond the law, beyond the legal order,
revealed when law itself recedes and leave the state,
embodied by the sovereign, free to act. (dualist approach:
authority-security vs. law)

10. STATE OF EMERGENCY IN CONSTITUTIONS
Scholars have forsaken the search for a formal or
tangible definition of emergency status in lieu of a
substantive, functional and context-dependent
approach because:
• The situations that can amount to ‘emergency’ are
imponderable and impossible to foretell;
• The definition of State of Emergency changes
according to jurisdiction, time and sometimes what
kind of emergency arises. Therefore only a case-to-
case approach can render a global idea of the
concept.

11. STATE OF EMERGENCY IN CONSTITUTIONS
PARAMETERS OF COMPARISON
… therefore a comparative perspective must focus
on what organ the concentration of powers can be
attributed to and which institutional (read
constitutional) mechanisms should yield and allow
to start the related suspension of the constitution
(read HRs embedded).

12. STATE OF EMERGENCY IN CONSTITUTIONS
A. CONCENTRATION OF POWERS
• The concentration can be stated either in constitutions or in laws
or can be the result of a self-attribution. It does not only operate
on an horizontal level (i.e. between the organs and the provisions of a
constitution), but also on a vertical level (if the state is federal).
Moreover, the ruling organ can even engage in law making.
• As far as the horizontal level is concerned, the great majority of
occurrences has shown that the executive branch established in
the same constitution is the ‘assignee’ of the powers;
• If the state is ‘federal’, the higher government tends to prevail.
However, both the national and the federal levels should
constitute a great protection against the concentration of
powers. The way in which Federalism provides for this barrier
depends. In the US the federal government in years has gained a
great control over the singular federated states, beyond what is
expressly stated in constitution. Whereas in Germany the local
governments retain more control.

13. STATE OF EMERGENCY IN CONSTITUTIONS
B. CONSTITUTIONAL HANDLING OF EMERGENCY
STATUS
2.FORMAL PROVISION
Weimar Republic
art.482 of the Weimar constitution:
“In case public safety is seriously threatened or
disturbed, the Reich President may take the
measures necessary to reestablish law and order, if
necessary using armed force. In the pursuit of this
aim, he may suspend the civil rights described in
articles 114, 115, 117, 118, 123, 124 and 153,
partially or entirely

14. • ‘The march of folly’: Would Nazi Germany
have have been in breach of Art. 4 ICCPR if it
had been ratified before Hitler took the
power?
• nowadays, which limits may international law
(jus cogens) pose to a State in the same
situation? Are they really helpful without
enforcement?

15. STATE OF EMERGENCY IN CONSTITUTIONS
B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS
2. FORMAL PROVISION
Israel
 Israel has been under a continuous and chronic state of
emergency since the declaration of independence on may 14,
1948. i.e. even before the election of a Constituent Assembly
(1949). Even more peculiar, Israel is ruled by an unicameral
legislature with de jure parliamentary supremacy, that acts both
as a common legislative branch and as a quasi-Constituent
Assembly. In practice it has not been established by any formal
constitution. Instead of it, a process of piecemeal legislation took
place, resulting in a number of "Basic Laws" - that have a quasi-
constitutional weight.
 From 1948 (Law and Administration Ordinance) to 1992 (Basic Law – The
Government; BLG) the Government ruled assuming both legislative
and executive powers from the Knesset (Parliament). In absence
of a constitution, the government were even able to modify the
so-called Basic Laws. Today more restraints, but state of
emergency never revoked.

16. STATE OF EMERGENCY IN CONSTITUTIONS
B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS
2. DENIAL
Belgium
 Article 187, title VII, general disposition, affirms: “The
Constitution may not be wholly or partially
suspended.”
 Is it reasonable? Complete lack of pragmatism. During
WW1 it has been breached by the king declaring a sui
generis ‘state of siege’.
 Today is rendered only as a fundamental preeminent
criterion in the interpretation of the constitutional
text. In other words, a sort of early warning to the
Constitutional Court

17. STATE OF EMERGENCY IN CONSTITUTIONS
B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS
3. OMISSION
United States
“[…] since March 9, 1933, the United States has been in a
state of declared national emergency. In fact, there are now
in effect four presidentially-proclaimed states of national
emergency. […]These proclamations give force to 470
provisions of Federal law. These hundreds of statutes
delegate to the President extraordinary powers, ordinarily
exercised by the Congress, which affect the lives of American
citizens in a host of all-encompassing manners. This […]
powers […] confer enough authority to rule the country
without reference to normal Constitutional processes.”
- US Senators Frank Church and Charles McC. Mathias Jr - Senate Report
93-549, 93d Congress, 1st Session, Report of the Special Committee on the
Termination of the National Emergency – Emergency Powers Statutes,
provisions of federal law now in effect delegating to the executive
extraordinary authority in time of national emergency - , November 1973

18. STATE OF EMERGENCY IN CONSTITUTIONS
• Liberty maximalists. They strongly dissent from the inherent
presidential powers doctrine, also believing that constitution
provisions can not be derogated unless it is expressly stated.
USSC Justice Davis accepted this view in ex parte Milligan.
• National security maximalists. Recall Rossiter’s theorization
and affirms that the president during a crisis can act in any
way he guesses right in order to save the nation. Those
actions are not unconstitutional.
• Liberal theories. Mediation between the principle of the rule
of law stricto sensu and the quest for security. An express
congressional ratification ex post facto is requested in order
to make constitutional unconstitutional presidential
emergency powers and regulations. See the Monroe
doctrine.
• After two world wars, one cold war and several other
conflicts, the national security maximalism with some
modifications in practice prevailed. T

19. STATE OF EMERGENCY IN CONSTITUTIONS
• Consider The National Emergencies Act of 1976 and the International
Emergency Economic Powers Act of 1977. Regain control over the
executive and give certain rational procedures to the declaration of an
emergency status.
• Procedure: when an emergency occurs the President must firstly make a
declaration, and then explain all the justifications to the Congress in a
report. If within six months the Congress neither approve nor refuse this
state of emergency, that situation remains in force for one year, unless the
president declares its continuation. However, in any time a parliamentary
joint resolution can annihilate that emergency status. What it is worth
noting is the fact that, in this framework, the only rights that can be
suspended are, according to the constitutional text, art. 1 sect. 9 (eight
specific limits on congressional power) and the V amendment (abuse of
government authority in a legal procedure).
• Nevertheless, those acts, like the Israeli ones, have turned out to be, in
praxis, waterholes. In fact it is possible to recognize at least 32 declarations
of emergency between the enactment of the provisions and the tragic
attacks of 9/11. In the end, the President can easily obtain the
congressional ex ante authorization that is, practically, a blank check for
the executive.

20. QUESTIONS?
This presentation is an adaptation from
THE ROLE OF COMPARISON TO UNDERSTAND AND
DEAL WITH EMERGENCY IN CONTEMPORARY
CONSTITUTIONS
Lost in Guantanamo: the fall of the Great Writ of
Habeas Corpus,
Paolo Vincenzo Tonini,
Bologna University School of Law, 2009