As President Donald Trump dangles the prospect of an emergency proclamation on the United States, much of the commentary on the legality and consequences of such a move has been focused (unsurprisingly) on its legality under domestic law and the likely response of domestic courts. Yet there is a significant body of relevant international law and jurisprudence, pertaining to both the proclamation and notification of emergencies as well as the limits of states’ powers during states of emergency, that shapes global understandings of emergency powers. This article sets out some of those international law standards, and also reflects on the broader international consequences that follow when a democratic state resorts to the use of exceptional executive authority to circumvent (it appears) regular parliamentary (or legislative) process.
International law, primarily international human rights law, takes the position that states of emergency should be closely regulated by law. The legal framework for the international regulation of emergency powers that are used to limit a state’s baseline international human rights obligations is through the process of derogation under international human rights treaties. Derogation enables states to limit the exercise of certain rights lawfully during a state of emergency within a framework of necessity, proportionality, and non-discrimination. The United States is a party to the International Covenant on Civil and Political Rights (ICCPR). If the President’s statutory invocation of emergency powers under the 1976 National Emergencies Act were to present sizeable encroachment on individual rights protected by the ICCPR, the United States would be formally obliged to notify a derogation to the United Nations Secretary-General, and to provide a detailed account of the measures it proposes to take in a state of emergency. Given that the President’s primary goal is (it appears) to circumvent the appropriations process controlled by Congress, at first glance it would seem that no human rights implications follow from his resort to emergency powers. It should also be noted that the Act has been invoked by previous U.S. presidents in a manner that did not necessarily require derogation from U.S. human rights obligations. However, the United States would not be the first country to use emergency powers to address economic concerns or the government’s spending autonomy and, by and large, as Gross and others have demonstrated, economic emergencies often provide cover for sustained and nefarious encroachments on human rights down the line, including civil and political rights. Thus, while invocation of the Act may not itself empower the U.S. President to take actions that would be inconsistent with U.S. human rights obligations, it could potentially be a first step down a slippery path.
International and comparative national jurisprudence helps us understand the broader consensus that exists on the legality and scope of emergency powers as they relate to human rights obligations. For example, while responding to different contexts and highly specific litigation challenges, the European Court of Human Rights has opined at length on the legality of the circumstances and triggers that justify the use of emergency powers. In Lawless v. Ireland, the European Commission on Human Rights defined a “public emergency” for the purposes of article 15 of the European Convention on Human Rights as “a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organised life of the community which composes State in question.” In The Greek Case, the Commission identified four characteristics of a “public emergency” under article 15 of the European Convention: it must be actual or imminent; its effects must involve the whole nation; the continuance of the organized life of the community must be threatened; and the crisis or danger must be exceptional, in that the normal measures or restrictions permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.
The Human Rights Committee, the body overseeing the ICCPR to which the U.S. is a party, in its general comment No. 5, indicated that an emergency will justify derogation only if the relevant circumstances are of an exceptional and temporary nature. The Committee determined that States bear the burden of showing that those requirements have been fulfilled. The Inter-American Commission has often expressed the opinion that governmental emergency measures may be carried out only in “extremely serious circumstances” and may never suspend certain fundamental rights. In its advisory opinion on habeas corpus in emergency situations, the Inter-American Court stated that article 27 of the American Convention on Human Rights (to which the United States is not a party) was “a provision for exceptional situations only.” There is broad international consensus on the general contours of the term “emergency,” specifically its contingent and exceptional nature, the necessity of overseeing and regulating emergencies, and the finite and limited purposes of emergency powers.
As Special Rapporteur on the Protection and Promotion of Human Rights while Countering Terrorism, I have paid close attention to the use (and misuse) of emergency powers by states around the globe. In my Report to the Human Rights Council last March, I charted the abuse of emergency powers by states as they invoke vague and ill-defined terrorism or national security threats to justify the resort to exceptional powers. President Trump’s early reliance on terrorism as a basis for justifying the use of national emergency powers on the Southern U.S. border, absent compelling and empirically robust data, was illustrative of a broader pattern by non-democratic states to rely on the bogey man of global terrorism as a generic means to circumvent domestic constitutional and legislative norms. I made clear in my Human Rights Council Report that generic invocation of terrorism is not a justified legal basis under international law to invoke national emergency powers that would displace international human rights obligations and rule of law safeguards. No legal justification can be found in either Security Council Resolutions or under treaty provisions regulating the use of emergency powers under international human rights law.
One of the most troubling aspects of the President’s flirtation with emergency powers is the signal it sends to other states. As I have documented at length elsewhere, the abuse of emergency powers is rife across the globe. It is particularly important that democratic states send strong and consistent signals about such abuse, making clear that emergencies must be factually proven, that the ordinary law is insufficient to cope with the threat at hand, and that the measures taken do not constitute a carte blanche to disregard the national and international protections of human rights, due process, and legal accountability. In the absence of a proven, empirically justified and generally agreed crisis in the United States, many countries will read the President’s moves as further undermining agreed international legal norms. Such a move will empower weak rule of law states to invoke emergencies, using the executive practice of the United States as precedent. States of emergency are often synonymous with systematic human rights violations, abrogation of checks and balances, and the disproportionate empowerment of the executive branch. An unjustified state of emergency used to subvert normal democratic processes in the United States sets a grim global precedent, and robs the U.S. of the moral authority to call out such abuse elsewhere. The costs of this flirtation are not just domestic and will be reckoned in global terms.