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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

History and Concepts of Emergency

Giacomo Delledonne

Subject(s):
National emergency — Coup d'état — State of emergency — National security

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introductory Remarks

1.  Definitions: What Is Meant by National Emergency?

1.  According to standard accounts of constitutionalism, a constitutional framework, specifying the allocation of powers and competences among the several branches of government and procedural and substantial guarantees for the protection of fundamental rights, is designed to provide stability. When ‘national emergency’ arises, the very same constitutional framework may be subject to ad hoc, temporary derogations, aiming at coping with (and resolving) the emergency situation (see also types and effects of emergency). Under ‘rigid’ constitutional systems (rigid (entrenched) / flexible constitutions), those derogations may only happen secundum constitutionem, ie, insofar as they are provided for and regulated in detail by the constitution itself. Basically, ‘national emergency’ is an umbrella category which encompasses extraordinary events which may put anomalous pressure on the ordinary functioning of a constitution. Contemporary legal systems try to cope with ‘emergency’ within the framework of the law: for this reason, they may even decide not to introduce a specific legal framework for national emergencies and to face them without departing from the ordinary constitutional or legislative regime. Each of these statements is the product of long-lasting institutional evolution and scholarly debate and needs to be explained in greater detail.

2.  The first point which should be clarified is what kind of events may normally be described as ‘emergency’ and trigger the application of a special constitutional or statutory regime. Classifying them is a complex exercise, as the list of ‘emergency’ situations has been greatly expanding over the last few decades. Classic descriptions of these problems mainly focus(sed), first, on menaces to the territorial integrity of the state or its internal cohesion: it is the case of war, invasion, secession, or internal turmoil. In more recent years, this category has been augmented by, for example, terrorism and the fight against organized crime. Second, natural disasters (earthquakes, floods, or pandemics) may make it necessary to resort to emergency powers. Third, economic and financial emergency may also be invoked, and this latter hypothesis may be related to financial and currency crises, strikes, or interruptions in fundamental service provision. This attempt at classification, of course, may always be expanded by new, still unforeseeable types of emergency. Furthermore, it is more and more difficult to describe all emergency situations as purely ‘national’, which may put into question the appropriateness of purely national institutional responses.

3.  In constitutional texts, references to what should be meant under the label ‘national emergency’ are generally quite vague and refrain from providing precise definitions, so as not to ‘petrify’ emergency clauses if new kinds of emergency emerge. To mention a few examples: the French Constitution makes reference to a ‘serious and immediate threat’ for ‘the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments’, interrupting ‘the proper functioning of the constitutional public authorities’ (Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008) Art. 16, para. 1 (Fr)); the Indian Constitution evokes ‘a grave emergency … whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion’ (Constitution of the Republic of India: 26 January 1950 (as Amended to 13 January 2012) Art. 352, para. 1 (India)); and the Moroccan Constitution mentions threat for ‘the integrity of the national territory’ and ‘events ... which are likely to undermine the functioning of the constitutional institutions’ (Constitution of the Kingdom of Morocco: 1 July 2011, Art. 59, para. 1 (Morocco)). However, more recent constitutions might be more precise in laying down a list of emergency situations, in order to limit the discretionary power of political office holders. For example, the South African Constitution affirms that a state of emergency may only be declared when ‘(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to restore peace and order’ (Constitution of the Republic of South Africa: 16 December 1996 (as Amended to 1 February 2013) Art. 37, para. 1 (S Afr)).

4.  On the other hand, national emergency and its law are very often intertwined with a number of other distinct yet closely connected issues. In the nineteenth century—and possibly even later—the discussion about whether and how emergency law should apply often went hand in hand with the problem of when, due to the failure of civilian power to function properly, military intervention should be admitted (martial law). In that period, the state of siege was a typical reaction to a declaration of emergency. Incidentally, some constitutions provide for martial law as the response, among other things, to national emergency (see eg Constitution of the Republic of Korea: 12 July 1948 (as Amended to 29 October 1987, Art. 77 (S Kor)). In the aftermath of the 9/11 attacks in the United States (US), commentators and constitutional scholars have discussed the fitness of national emergency regimes to deal with international terrorism, and the proper balance between security and fundamental rights (national security; see Fabbrini and Jackson).

2.  List of Analysed Cases

5.  In this article, comparative analysis will consider a number of constitutional systems, without focusing exclusively on Europe or the US. However, the article will pay greatest attention to current developments in some European jurisdictions, Japan, and Israel; whereas the historical analysis will mainly focus on nineteenth-century Europe, the US, and Latin America. First, the United Kingdom provides an interesting example of emergency under an unwritten constitution. Second, the German case deserves close scrutiny because of both Carl Schmitt’s theories on sovereignty and the state of exception, and the attempt of post-war Germany to define in detail the contents of a section on the Fundamental Law concerning the ‘Constitution of Emergency’ (Notstandsverfassung). Third, the Constitution of the French Fifth Republic, which was drafted with an eye to the Algerian crisis, contains a number of interesting provisions on national emergency. Japan offers an interesting example of a constitutional system marked by a certain reluctance to confer extraordinary powers on the cabinet in emergency situations. Finally, Israel is a country in which, paradoxically, emergency has been the rule since the very establishment of the state of Israel in 1948.

B.  Historical Evolution

1.  Emergency Powers in Nineteenth-Century Europe

6.  As has been recently observed (Dyzenhaus (2012)), a classic reference for constitutional analyses of states of emergency is John Locke’s Second Treatise of Government, in which celebration of the virtues of the rule of law went hand in hand with the awareness that, on specific occasions, a government power ‘to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it’—which Locke identified with the prerogative powers of the Crown—might be needed. Furthermore, Machiavelli had contributed to the popularity of the Ancient Roman model of commissarial dictatorship, consisting in a temporary suspension of the constitutional order and the appointment of a dictator (Ferejohn and Pasquino).

7.  However, in the earliest phase of Western constitutionalism—properly speaking, during the transition from absolute to constitutional or limited monarchy—the main justification for making resort to extraordinary powers was the reason of state; the mere existence of potential risks for established power-holders was in itself a plausible justification for reaction against internal and external enemies. The preservation of the state and its political organization was sufficient ground for using emergency powers, without any need for a constitutional enabling clause. Such a state of affairs was largely unsatisfactory from the viewpoint of constitutionalism as a commitment to the limitation of government power. That is why a number of nineteenth-century constitutions were more and more often characterized by safeguards of absolutism, ie clauses which in situations of emergency provided for the restoration of monarchical or executive authority to the detriment of the representative body. A good example is the French Constitution of the Year VIII, according to which ‘[i]n case of rebellion by armed force or of disturbances that threaten the security of the state, the law can suspend in time, places and for the time which it determines, the authority of the Constitution’ (Constitution of the Year VIII: 13 December 1799 (23 Frimaire, Year VIII) Art. 92 (Fr)). Some other constitutional charters, suspicious of excessive concentration of power in the hands of the executive, took the trouble to state explicitly that no such kind of derogations was admitted (see eg Constitution of the Grand Duchy of Luxembourg: 17 October 1868 (as Amended to 8 August 2000) Arts 36 and 113 (Lux)).

8.  Regardless of the actual existence of relevant constitutional clauses, many European countries enacted ordinary emergency laws containing either a general regulation of emergency situations or ad hoc regulations designed to deal with such major crises as World War I (eg the British Defence of the Realm (Consolidation) Act 1914) or the Great Depression in the late 1920s.

2.  Separation of Powers and Emergency in the US Constitution

9.  The evolution described above is typical of Europe, where constitutional history in the nineteenth century is marked by competition between representative assemblies and monarchical heads of state, and the final emergence of representative government. The picture is very different in the US, where the Philadelphia Constitution clearly entrenches the model of separation of powers. As James Madison observed during the drafting of the Constitution, the main problem to resolve was how to cope with ‘those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands’. The Constitution admits some derogations from the ordinary constitutional framework, but clearly sticks to the dualistic relation between President and Congress. More particularly, the writ of habeas corpus may not be suspended ‘unless when in Cases of Rebellion or Invasion the public Safety may require it’ (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992) Art. I, s 9, para. 2 (US)). After some controversy, a US federal court made it clear that the authority to suspend the writ of habeas corpus—and consequently to expand the power of the executive—lay exclusively with Congress (Ex parte Merryman (1861) (US)). On the one hand, this did not prevent an expansion of executive powers after the suspension of constitutional guarantees by Congress; on the other hand, the Constitution recognizes a special responsibility of the President, in his or her capacity as Commander-in-Chief, with regard to protecting national security (Constitution of the United States of America, Art. II, Section 2, para. 1 (US)).

10.  Finally, it should be added that courts have not refrained from controlling the exercise of emergency powers. In the immediate aftermath of the American Civil War, for example, the Supreme Court clarified that it is unconstitutional to try civilians by military tribunals unless there is no civilian court available (Ex parte Merryman (1861) (US)). Right now, the main references for assessing the constitutional legitimacy of the exercise of emergency powers by the chief executive can be found in a concurring opinion drafted by Associate Justice Robert H Jackson in the Youngstown case (Youngstown Sheet & Tube Co v Sawyer (1952) (US)). According to Justice Jackson, three situations might be recognized. First, ‘[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate’. Second, ‘[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain’. Third, ‘[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb’.

3.  Emergency in Latin America: Strengthening the Executive

11.  Presidential regimes in Central and South America have not been as careful to preserve the institutional balance in times of emergency as the US Constitution and subsequent constitutional practice have tried to do. Rather, they are often marked by extensive emergency clauses. It is important to stress here that frequent resort to emergency powers in Latin America has been typical not only of military or civilian dictatorships, but also of democratic regimes. Some distinctive features deserve a mention: weaker involvement of the legislature in approving emergency measures; explicit permissions to suspend or restrict fundamental rights (with obvious consequences for the possibility of judicial remedies); possibility to amend the constitution under the emergency regime; and primary law-making powers of the President (Cheibub, Elkins and Ginsburg). Examples of the pre-eminence of the chief executive in emergency situations can—or could—be found in a number of Latin American constitutions (Constitution of the Republic of Bolivia: 2 February 1967 (as Amended to 8 August 2002) Arts 111 and 112 (Bol); Constitution of the Pluri-National State of Bolivia: 25 January 2009, Arts 137 and 138 (Bol); Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 11 April 2008) Art. 84, no IX (Br); Constitution of the Republic of Colombia: 5 July 1991 (as Amended to 4 November 2011) Arts 213, 214 and 215 (Colom); Constitution of the Oriental Republic of Uruguay: 27 November 1966 (as Amended to 8 December 1996) Art. 168, no 17 (Uru)) (see also Valadés). However, the more recent wave of constitution-making processes in Latin America is marked by an attempt to limit the possibility to exploit a crisis in order to weaken constitutional safeguards. The Brazilian Constitution currently in force, for instance, specifies that ‘[t]he Constitution cannot be amended during federal intervention, state of defence or state of siege’; similarly, the decree of a state of siege has to ‘indicate the period of its duration, the rules required to implement it and the constitutional guarantees that are to be suspended’ (Constitution of the Federative Republic of Brazil, Arts 60, para. 1, and Art. 138 (Br)).

4.  ‘Sovereign is He Who Decides on the State of Exception’: the Discussion on Emergency Powers under the Weimar Constitution in Germany

12.  The emergency clauses entrenched in the German Weimar Constitution (1919) should be mentioned for at least two reasons: because of their relevance in constitutional discussions in the 1920s and 1930s, and for their (mostly negative) influence on constitution-making processes in the aftermath of World War II. Article 48 of the Weimar Constitution entrusted the directly elected President of the Reich with the task of restoring order in the Reich or in one of its member states in case of major emergency. First, if a state (Land) failed to carry out its constitutional duties, the President was entitled to compel performance with the aid of armed force. Second, if public safety and order were seriously disturbed or threatened in the German Reich, the President was entitled to take the necessary and appropriate countermeasures; for those reasons, he could also temporarily suspend some of the fundamental rights protected by the Constitution (Constitution of the German Reich: 11 August 1919, Art. 48, paras 1 and 2 (Ger)). The extraordinary law-making powers were conceived in order to react to ‘classic’ emergency situations, eg armed insurrections; however, the head of state also made resort to ‘emergency orders’ (Notverordnungen) to fight hyperinflation or economic crises.

13.  In those years, Carl Schmitt elaborated his conception of sovereignty as the (pre-legal) authority to decide, independent of any legal checks, on the state of exception (Ausnahmezustand). Schmitt’s work was clearly influenced by the Weimar Constitution and its clauses concerning the President of the Reich; furthermore, he represented the Reich Government before the State Court (Staatsgerichtshof) in the wake of the so-called Prussian coup (coup d’état), thereby influencing the unilateral decision of Chancellor von Papen to dismiss the state Government of Prussia (Preußen contra Reich (1932) (Ger)). According to this German constitutional theorist, ordinary law is not able to fully codify states of exception, which, accordingly, demand a decision. It is for the sovereign to make such a decision, which cannot be encompassed by the existing legal order. Meanwhile, Schmitt also wrote extensively about sovereign dictatorship, provided with the authority to suspend law. His views of the state of exception and appropriate reactions thereto, although highly influential, are now generally refuted in constitutional analyses of states of emergency. Instead, national emergency has to be resolved within the framework of the constitution, which may (or may not) provide for a derogatory regime. Also in the first half of the twentieth century, Santi Romano, a major Italian anti-formalist legal theorist (whose writings were known to Schmitt), defined ‘necessity’ as the prime source of law (see Agamben; state of necessity).

C.  The Current State of Affairs: A Comparative Description

14.  Nowadays, constitutional orders generally reject the idea of extra-legal responses to emergency situations. A possible classification considers whether or not a legal system authorizes resort to emergency powers—instead of ordinary powers—and if so, what kind of legal basis they have. Secondly, the definition and regulation of the respective roles of the legislative and the executive—and the possible involvement of the judiciary—contribute to defining distinct constitutional models for handling emergency.

15.  Some legal systems simply do not have a constitutional framework for the exercise of emergency powers related to internal disorder as distinct from war. This is typical of some European post-totalitarian constitutions which are generally suspicious of possible deviations from the ordinary framework of constitutional safeguards (totalitarianism). It is the case, for instance, of Italy (Constitution of the Republic of Italy: 22 December 1947 (as Amended to 20 April 2012), Art. 78 (It)), although a number of ad hoc ordinary laws have been passed in order to deal with far-left and far-right terrorism and to fight organized crime. It should be added that those laws are subject to the Constitution and can be challenged before the Constitutional Court.

1.  A Constitution for Extraordinary Circumstances: the French Case

16.  The Constitution of the French Fifth Republic was drafted with an eye to crisis in Algeria (which at the time was not a French colony but an integral part of France). In a break with French constitutional tradition under the Third and Fourth Republics, the Constitution of 1958 entrusts the President of the Republic (directly elected as a result of a constitutional amendment passed in 1962) with extensive powers related to ‘the proper functioning of the public authorities and the continuity of the [s]tate ... national independence, territorial integrity and observance of treaties’ (Constitution of the French Republic, Art. 5, paras 1 and 2 (Fr)).

17.  Special powers for dealing with emergencies are part of presidential powers: when the institutions of the Republic, national independence, the integrity of French territory, or the fulfilment of French international commitments are under serious and immediate threat and the proper functioning of constitutional public authorities is interrupted, the head of state may take appropriate measures after formally consulting the Prime Minister, the Presidents of the Senate and the National Assembly, and the Constitutional Council. Those measures are supposed to have been designed to provide the constitutional public authorities with the means to carry out their duties, and the Constitutional Council is consulted with regard to them (see its only decision of this kind to date: Decision No 61-1 AR16 (23 April 1961) (Fr)). Parliament sits as of right, and the National Assembly cannot be dissolved during the exercise of such emergency powers. After the emergency powers have been exercised for thirty days, the Presidents of the National Assembly or the Senate and parliamentary minorities may make a reference to the Constitutional Council in order to determine if an emergency situation still exists. The Constitutional Council proceeds to this examination as of right after the emergency powers have been exercised for sixty days (Constitution of the French Republic, Art. 16 (Fr)). The latter judicial safeguards have been strengthened by constitutional reform in 2008.

18.  Furthermore, the Constitution regulates the declaration of a state of siege, which is decreed in the Council of Ministers and whose extension, after a period of twelve days, may only be authorized by Parliament (Constitution of the French Republic, Art. 36 (Fr)).

19.  Finally, an ordinary law dating back to 3 April 1955 regulates the state of emergency (Law No 55-385). According to French scholarship, differences between state of siege and state of emergency are minimal, leaving aside the degree of involvement of the military (Beaud and Guérin-Bargues). State of emergency is also decreed by the President of the Republic; a decision on the state of emergency can only last for 12 days, unless it is confirmed by the Parliament. In spite of some overlaps with presidential emergency powers and the state of siege, state of emergency has not been fully constitutionalized. A failed attempt to do so, labelled ‘Draft Constitutional Amendment for Protecting the Nation’, was introduced by the French Prime Minister in the wake of terrorist attacks in November 2015.

2.  National Emergency in a Militant Democracy: the German Case

20.  A defining feature of the German Basic Law in its earlier formulation is that it contained provisions related to external but not to internal emergency. In a clear departure from some perceived flaws of the Weimar Constitution, it does not confer any particular emergency powers on the (indirectly elected) head of state, the Federal President. Furthermore, the Basic Law organizes the Federal Republic of Germany as a militant democracy. Thus, democracy and rule of law should be preserved even in times of national emergency.

21.  In the 1950s, political elites and public law scholars engaged in a debate about the opportunity of introducing a ‘constitution for emergency’ (Notstandsverfassung) into the text of the Basic Law, so as to rely on a constitutional regulation of hardly predictable emergency situations. The result of those discussions is section Xa of the Basic Law, which came into force in 1968. Section Xa mainly regulates the state of tension, the clear danger of an armed attack, and the state of defence, defined as the imminent threat of an armed attack.

22.  In turn, when an internal emergency—defined as ‘an imminent danger to the existence or free democratic basic order of the Federation or a Land’—arises, a Land may call upon police forces of other Länder, or upon personnel and facilities of other administrative authorities, and of the Federal Border Police (powers and functions of the police). If the involved Land is not willing or able to combat the danger, the Federal Government may place the police forces under its own orders. Any such order shall be rescinded once the danger is removed or at any time on the demand of the Bundesrat, the federal institution representing the governments of the Länder (Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) Art. 91, paras 1 and 2 (Ger)). The Federal Government may make resort either to the police forces or, if they prove inadequate, to the Armed Forces; however, ‘[a]ny such employment of the Armed Forces must be discontinued if the Bundestag or the Bundesrat demands it’ (Art. 87a, para. 4). The Basic Law explicitly states that the freedom of association and the right to strike (labour rights) may not be limited by measures taken pursuant to Article 91 (Art. 9, para. 3). Moreover, it also regulates in detail when and how freedom of movement and home inviolability may be limited (Art. 11, para. 2, and Art. 13, para. 4). Parliamentary involvement is much more intensive than in the French Constitution, and the constitutional text pays great attention to specifying which fundamental rights and freedoms may—or may not—be limited when an internal emergency arises.

3.  Japan: a Parliament-centred Emergency Regime?

23.  Unlike many other constitutional charters, the post-war Constitution of Japan does not explicitly grant any emergency powers to the executive power. Rather, it mentions the possibility for the Cabinet ‘in time of national emergency’, if the House of Representatives is dissolved, to convoke the House of Councillors—ie the Upper House—‘in emergency session’. Measures taken during the emergency session are provisional and become null and void unless agreed to by the House of Representatives within a period of ten days after the opening of the next session of the Diet (Constitution of Japan: 3 November 1946, Art. 54, paras 2 and 3 (Japan)). Due to the absence of other constitutional provisions on this issue, scholars tend to think that the Cabinet is not allowed to exercise emergency powers. In the wake of the 9/11 terrorist attacks, the Cabinet successfully promoted the enactment of the Armed Attack Act 2003 and Citizen Protection Act 2004, which now authorize the government to engage in defensive activities in times of (or in anticipation of) armed attack (Matsui 98 ff).

4.  National Emergency under an Unwritten Constitution: the British Case

24.  A brief description of the British experience might be of interest because it shows how the problem of regulating derogatory emergency regimes has been resolved in a legal system marked by an unwritten constitution and permanent tension between prerogative and statutory powers of the Crown. Although the Crown is thought to have some emergency powers under the prerogative, in the twentieth century a general legislative framework has been passed in this area so as to provide those extraordinary executive powers with a clear statutory basis. The Emergency Powers Act 1920, amended in 1964, was defined by a joint committee of the House of Commons and the House of Lords as being a fundamental part of British constitutional law, alongside the Magna Carta 1297 or the Bill of Rights (1689). The Act confers on the executive wide powers to cope with emergency by means of statutory regulations, subject to parliamentary control. Those regulations expire after seven days unless a resolution for their continuance is passed by the House of Commons and the House of Lords (Bradley and Ewing 611 ff). On the other hand, special laws were introduced for dealing with war-related emergencies and with security in Northern Ireland.

5.  Permanent Emergency: the Israeli Experience

25.  Israeli constitutional experience is remarkable because it has combined, since its very first day of existence, a long-lasting adherence to constitutionalism with a permanent state of emergency. Under Israeli constitutional law, if the Knesset ascertains that the state is in a state of emergency, it may of its own initiative or pursuant to a government proposal declare that a state of emergency exists. The declaration will remain in force for the period prescribed therein, but may not exceed one year. The Knesset may make a renewed declaration of a state of emergency. However, if the government itself ascertains the existence of such a state of emergency and that its urgency necessitates a declaration even before it becomes possible to convene the Knesset, it may declare a state of emergency (subject to approval by the Knesset). During a state of emergency, the government may make emergency regulations for the defence of the state, public security, and the maintenance of supplies and essential services; those regulations may overrule ordinary laws or even basic laws of the state (Basic Law: The Government: 28 January 2003, Arts 38 and 39 (Isr)). The Knesset has renewed the state of emergency every year since the foundation of the state of Israel. This led the Association for Civil Rights in Israel (ACRI) to bring a case before the Supreme Court in its capacity as High Court of Justice (Supreme Court of Israel (Beit HaMishpat HaElyon)). The petitioners asked the Supreme Court to terminate the continual state of emergency because of its incompatibility with the rule of law, separation of powers, and basic laws. The Court held that as long as security conditions in the region require the employment of emergency laws in order to ensure the safety of the population, the Court should not interfere with the decision of the Knesset to renew the state of emergency; still, the Court also observed that since the time the ACRI had filed its petition, political branches had slowly abolished several emergency laws (HCJ 3091/99 Association for Civil Rights in Israel v Knesset (2012) (Isr); see also Navot 250).

D.  Comparative Assessment: the Encroachment of National and Supranational Regimes for the Protection of Fundamental Rights

26.  Comparative analysis has revealed at least two unresolved questions: the tension between ordinary and derogatory regimes, and the rise of the executive playing a stronger role in times of constitutional stress. The latter issue has possibly become less urgent in recent times, in coincidence with a generalized rise of executive powers in a number of constitutional systems, and a relativization of the meaning of ‘extraordinary’ as opposed to ‘ordinary’. It should be stressed, however, that recent waves of constitutional reform have tried to strengthen the position of the legislative body and parliamentary minorities vis-à-vis the executive, and enhance judicial control. Among the examples mentioned above, the provision concerning the state of siege in the Brazilian Constitution currently in force and the new formulation of Article 16 of the French Constitution after the 2008 reform deserve particular attention (see also Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011) Art. 116, para. 5 (Spain), whereby the Spanish lower house may not be dissolved and a process of constitutional amendment may not be initiated while a state of emergency is in force).

27.  More recent developments seem to attest that the focus has somehow shifted towards the protection of (at least some of the most important) fundamental rights, even in times of national emergency. In this regard, the German Basic Law, as amended in 1968, has been a major influence. This is true of a number of national constitutional charters currently in force. The rights and freedoms protected by the Canadian Charter of Rights and Freedoms, for example, are ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ (Constitution of Canada: the Constitution Acts 1867 to 1982: Canadian Charter of Rights and Freedoms, Art. 1 (Can)). The Polish Constitution contains a detailed list of freedoms and rights which cannot be limited ‘in times of martial law and states of emergency’ (Constitution of the Republic of Poland: 2 April 1997, Art. 233, para. 1 (Pol)). The Moroccan Constitution provides that during a state of emergency ‘[t]he freedoms and fundamental rights provided for by this Constitution shall remain guaranteed’ (Constitution of the Kingdom of Morocco, Art. 59, para. 3 (Morocco)).

28.  Furthermore, the last few decades have witnessed the rise of a number of regional human rights regimes, which often contain obligations for the signatory parties related to emergency situations. The American Convention on Human Rights (1969) (Pact of San José) contains a list of fundamental rights which cannot be suspended even ‘[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party’: they include the rights to juridical personality, and humane treatment, freedoms from slavery and ex post facto laws, freedom of conscience and religion, rights of the family and the child, the rights to a name, to nationality, and to participate in government, and the judicial guarantees related thereto (American Convention on Human Rights, Art. 27, paras 1 and 2). Similarly, ‘[i]n time of war or other public emergency threatening the life of the nation’, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) permits the contracting parties to derogate from their obligations under the Convention to the extent strictly required by the exigencies of the situation’; however, no derogation from Article 2 (right to life), Article 3 (prohibition of torture), Article 4, paragraph 1 (prohibition of slavery), and Article 7 (nulla poena sine lege principle) is admitted (European Convention on Human Rights, Art. 15, paras 1 and 2).

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