Assessing Emergency Powers During #COVID-19

Many Just Security readers will already be aware of the remarkable resort to emergency powers taking place, both in the United States and beyond, in response to the global coronavirus pandemic. Here at Just Security, we have looked at the use of emergency powers in the United States, and also reached beyond U.S. shores , bringing international law, constitutional law, national security, and human rights perspectives to bear on the widespread resort to exceptional authorities by governments at this time.

While we recognize the severity of the current health crisis and acknowledge that the use of emergency powers is allowed by international law in response to significant threats, it is important to remember that any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory. Across the globe there is evidence that emergency powers are being widely promulgated that go far beyond a tailored response to a health crisis. There is also evidence that government “overreach” is being facilitated by the widespread and understandable fears of the public for their health and safety and a willingness by many to concede fundamental rights to expression, movement, privacy, family, religious expression, and political participation. In parallel, alongside declared states of emergency, many States are functioning in situations of de facto emergency as a range of exceptional powers are exercised without proclamation, notification, or official acknowledgement of the exceptional status of legal powers regulating day-to-day life. Executive powers use is on the rise, police enforcement and discretion is being amplified in law and practice across the globe, and, in numerous countries, the military is performing functions generally viewed as civilian in nature.  The scale and complexity of measures varies enormously from country to country, and the degree of appropriate and necessary intrusion they pose for individuals as well as their necessity remains disputed in a small number of countries (including the United States).

A number of global toolkits, trackers, expert insights, and guides are emerging to help us better understand the nature and scope of legal responses to this extraordinary time. Just Security plans to highlight and give voice to legal and civil society voices from across the globe, assessing the specific legal consequences of declared and de facto emergencies. Led by Ryan, Fionnuala and Kate, we plan in the weeks to come to bring a series of country-specific legislative studies to our readers to help understand the scale and scope of global responses. Today, we kick off the series with an in-depth look at what’s taking place in Hungary under the leadership of Victor Orbán.

We hope that elevating these diverse national perspectives will give our readers a better understanding of the legal changes taking place across the globe. This analysis will hopefully provide a strong basis for asserting the continued necessity of a rule of law-based approach to battling COVID-19. These insights will also highlight misuse, overreach, and abuse of emergency powers in the name of combatting the virus.

In this time of global crisis, we continue to resist the diminution of law and the rejection of rights. Human rights are a critical bulwark to excess in times of crisis, and our ability to emerge with intact rule-of-law-based societies after the crisis, requires us to remain committed to protecting rights throughout the crisis. We hope this series makes a small contribution to that end.

Articles in the Series:

Hungary Should Not Become Patient Zero by Márta Pardavi and András Kádár, April 22, 2020

The EU Should Quarantine its Autocrats by Austin Doehler, April 30, 2020

Coughing into the Crown: Bolsonaro’s Botched COVID-19 Response by Jocelyn Getgen Kestenbaum, May 1, 2020

Italy and COVID-19: A Call for an “Italian Emergency Constitution”? by Arianna Vedaschi May 12, 2020

Coronavirus Legislative Responses in the UK: Regression to Panic and Distain of Constitutionalism by Clive Walker and Andrew Blick, May 12, 2020

COVID-19 and the Shrinking Civic Space in Nigeria by Victoria Ibezim-Ohaeri, May 19, 2020

COVID-19 in Mexico: Democracy is Not at Risk? by Daniel Vázquez, June 22, 202o

The Colombian Peace Effort on Life Support Amid the COVID-19 Response by Nelson Camilo Sánchez, July 9, 2020

Image: A member of the Army National Guard checks his phone at a COVID-19 drive-thru testing site on April 20, 2020 in Brooklyn, New York. Photo by ANGELA WEISS/AFP via Getty Images

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the Queens University in Belfast, Northern Ireland. Member of the editorial board of Just Security. You can follow her on Twitter (@NiAolainF).

Kate Brannen

Editorial Director of Just Security; Follow her on Twitter (@K8brannen).

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).