What’s in a Name? European Uses of States of Exception During COVID-19

Abstract

The COVID-19 pandemic has led a large range of European governments to rely on emergency powers to try to contain the pandemic. While emergency legislation grants the executive with more extensive powers to handle an immediate threat to the survival of a community, the extent of such powers, their modalities of activation as well as the monitoring and other roles of counterpowers vary from one country to the next. This chapter analyses the diversity of practices and legal provisions hidden behind the reference to a “state of emergency.” It first shows that the legal basis of such provisions differs. While some governments activated constitutional provisions, others relied on pre-existing crisis-management legal frameworks. Second, the timing and duration of emergency measures ranged from 65 days (Estonia) to 861 (France). It then assesses whether differences in the legal framework used translated into differences in the stringency of the measures introduced. On the one hand, state of emergency provisions shield democracy against a concentration of powers in the hands of the executive better than disaster-management legislation does. On the other hand, the activation of emergency powers also coincides with more stringent restrictions of fundamental rights. In strengthening legal preparedness to future crises, policy makers need to be particularly cautious in devising legal arsenals that maintain high levels of democratic governance and oversight in crisis times.

Introduction

At one point or another of the COVID-19 pandemic, most European governments declared that they were using “emergency” measures to fight it. However, behind the ostensive semantic proximity, there was considerable variation. Some countries relied on constitutionally enshrined state of emergency provisions, while others made use of more limited states of epidemic disease or sanitary emergency.¹ Yet others based their measures on pre-existing ordinary laws on crisis-management (statutory regimes). Last, some states adopted new laws to tackle the spread of the disease. To complicate matters further, many European states used a combination of normative tools in a sequential or simultaneous manner.

This chapter asks: Does this matter? Or more precisely: Have countries that declared states of emergency (or other in principle more far-reaching and consequential exceptional states) seen more severe restrictions of human rights and freedoms and more extensive disruptions of democratic governance than those opting to rely on more limited provisions?

Theory would, at first glance, suggest a positive answer. The reason why states of exception are surrounded by so much weariness and caution is their pedigree. Looking back at European history, a proclamation of a state of exception has at times been the death knell for democracy. Between 1925 and 1929 for example, constitutional exceptional powers have been seized by the President of the Republic of Weimar 250 times. Hitler used such provisions upon his appointment as a chancellor in 1933 to suspend several constitutional protections on civil rights, paving the way for a totalitarian regime. Beyond such extreme cases, states of exception are moments of great danger for democratic rule and, consequently, for the political freedom of the citizenry (Ackerman, 2006; Gross & Aoláin, 2006). The theory is relatively simple: in an emergency, more power is vested with the executive, while the scope of decision-making of countervailing powers (the legislature and the judiciary) is curtailed. In addition, freedom of speech, of the press, of assembly and of movement are usually among the first to be restricted. The temptation of misusing emergency powers is hence great for political leaders and led constitutional drafters to set up different types of safeguards to constrain the activation of emergency powers.

The first such safeguard ensures that the key aspects regulating states of exception are put down in the constitution rather than in ordinary law, which can be more easily amended. The second key safeguard includes ensuring that parliament takes decisions regarding the prolongation of exceptional states and that it continues to function throughout the emergency. The third and fourth safeguards are that the constitution cannot be amended in such situations and the court system continues operating independently. Moreover, crucial human rights are ring-fenced. Another safeguard is to ensure that governments have an adequate toolbox to choose from by instituting more than one type of exceptional state. Thus, for instance the Central European states, which tend to have the most recent constitutions, as a rule have several forms of exceptional state regulations constitutionally: a state of war/siege, a state of emergency (usually meant to be activated in case of a severe threat to the constitutional order) and a state of natural disaster. The latter also, at least in some cases, explicitly cater for epidemics. The consequences of the different exceptional states are calibrated, so that the state of siege has the most severe repercussions on the functioning of the state institutions and human rights and freedoms; the government cannot restrict these to nowhere near the same extent in the case of a state of natural hazard.²

So, if constitution-makers have attempted to shield democracy and human rights from the dangers of emergency rule, we might find that states relying on emergency constitutions end up disrupting state institutions and individual human rights less than predicted, and that the differences between countries that have declared states of emergency and those relying on more limited provisions are not so great. It might even be that such rules are less disruptive than new legislation, taken in a hurry amid a pandemic.

Such a finding would be consistent with insights from empirical research that shows that the design of emergency constitutions matters to explain their varied impact on democratic governance and human rights. When emergency powers are relatively easy to activate and lead to a substantial increase in the powers of the executive compared to non-crisis times, they are more likely to trigger unnecessary restrictions of democratic rule and human rights (Bjørnskov & Voigt, 2018a, b). However, research has also shown that the likelihood of emergency powers to negatively impact democratic governance and human rights is context-dependent. The use of emergency powers after a natural hazard is more proportionate and limited than in the wake of a conflict (Bjørnskov & Voigt, 2018b; Rooney, 2019). This contribution looks at the effects of using emergency powers during pandemics. The extant scholarship provides mixed answers to this question. On the one hand, Bjørnskov and Voigt (2020) found that emergency powers were used to unnecessarily curtail media freedom in a large number of countries. On the other hand, Ginsburg and Versteeg (2021) show that executives were constrained by a large range of counterpowers in their uses of emergency powers. The sizable literature on the relationship between COVID-19 measures, democracy and human rights has not systematically examined whether the type of exceptional state/emergency regulation has had an impact on the extent and severity of restrictions. Instead, the focus has been elsewhere.

Unsurprisingly, several studies have found that human rights, and in particular the freedom of movement, assembly and association, the right to personal liberty and to a private life, the right to manifest one’s belief or religion, the right to work and to education were severely affected during the pandemic (Spadaro, 2020; Chad Clay et al., 2022). Quantitative studies focusing on democratic governance during COVID have covered issues such as which types of states were most likely to declare a state of emergency (Grogan, 2020, Lundgren et al., 2020) and whether the characteristics of the COVID crisis is less conducive to a disruption in checks and balances than national security crises (Ginsburg & Versteeg, 2021).

This chapter intends to contribute to these various streams of literature by analysing whether the activation of constitutional emergency powers is associated with more constraints on the action of the executive, compared with emergency measures taken outside of the scope of constitutional safeguards. To analyse whether the type of emergency legislation matters, I rely on the EXCEPTIUS dataset that includes exhaustive information about how and to what extent COVID-19 measures restricted civil liberties, human rights and the normal functioning of state institutions in these countries.

The descriptive analysis reveals three core findings. First, the legal mapping of COVID-19 emergency measures reveals that less than half of the countries in our sample activated emergency powers to deal with the pandemic. I zoom into this group of countries and present the different emergency regimes introduced, their duration and the modalities of their activation. My analysis shows that, while the activation modalities and the scope of emergency powers display strong similarities in theory, in practice the role of counterpowers and the impacts of emergency powers vary strongly from one country to the next. To further analyse the relationship between the legal basis of COVID-19 emergency measures and their impacts, I focus on three areas: the concentration of powers in the hands of the executive, the protection of the freedom of movement and freedom of assembly. The descriptive comparison suggests that my initial intuition is only partly valid. Declaring a state of emergency creates more constraints on the executive than relying on disaster-management legal regimes. Yet, states of emergency are more detrimental to the protection of human rights and less responsive to the evolution of the pandemic over time.

Mapping the Legal Basis of Emergency COVID-19 Measures

Almost all European governments declared relying on “emergency measures” to tackle the spread of the COVID-19 pandemic. The following section presents three core dimensions of variation, namely: (1) the legal basis of emergency powers; (2) the decision-making process leading to their adoption; (3) the timing of the declaration and the duration of emergency measures.

The Legal Basis of Emergency Measures

As the COVID-19 pandemic spread over the European continent, governments relied on wide ranges of policy measures to contain it. Most of them were labelled as “emergency” responses aiming to tackle a fast-evolving public health crisis. Two types of emergency measures can be distinguished. On the one hand, governments can declare a state of exception based on national or, sometimes, subnational constitutional provisions. These so-called emergency constitutions are present in 90% of countries globally and are defined as “legal rules specifying who can declare an emergency, when they can do so, and what actors have what powers once it has been declared” (Bjørnskov & Voigt, 2018a, 1). Although the nature of emergency powers varies from one country to the next (see Table 2.1 below for a description), declaring state of exception typically leads to concentrating powers in the hands of one political actor (often the head of the executive) and derogating from some fundamental rights to protect the state’s institutions and the population against a large-scale disaster. On the other hand, governments can adopt emergency measures without necessarily activating a state of exception. This is often the case when policy responses draw upon crisis-management legislation such as, in the case of the coronavirus pandemic, a legal act specifying the emergency measures to be taken in case of an epidemic. Figure 2.1 contrasts European countries which activated a state of exception with countries which relied on non-constitutional crisis-management legislation.

Table 2.1 State of exception provisions

Fig. 2.1

Legal basis of emergency measures in Europe (from January 30, 2020 until April 30, 2021). Source: EXCEPTIUS, own rendering. Note: Countries in yellow activated state of emergency provisions based on their national constitutional framework. Countries in blue relied on crisis-management legislation. The map displays the list of countries that activated state of emergency provisions at least once during the first three waves of the COVID-19 pandemic (from January 30, 2020, until April 30, 2021)

Ten states out of the 23 included in our sample relied on state emergency provisions to contain the spread of the COVID-19. Table 2.1 below details the list of countries concerned, the specific denomination of the provision as well as what the deviations from ordinary democratic governance they allow. This mapping allows us to distinguish between emergency provisions that introduce considerable derogations from democratic governance and human rights—such as in the case of Spain—and provisions that have a more signalling purpose, aiming at alerting the public to the severity of the crisis at stake but without introducing strong deviation from non-emergency governance structures and procedures (Finland).

The table shows—consistently with the literature—that emergency constitutions allow derogations to a rather large range of fundamental rights and freedoms. In some cases, such rights are listed in a detailed manner while in others, the choice is left to the executive. Note that Finland is the only country in our sample that only allows derogations from constitutionally protected rights in the event of an armed attack against the country in case of war. Only Czech Republic, Estonia and Romania explicitly mention public health crisis as an event qualifying for the activation of emergency powers. All the other countries rely on more ambiguous labels subject to interpretation.

The remaining countries in our sample relied on emergency-management legislation to tackle the pandemic. In most of these countries, the basis for action can be traced back to (sometimes old) laws governing the management of pandemics or contagious diseases, often adapted to the specifics of the COVID-19 crisis. In Austria, the government acted based on the Epidemic Management Act later amended by the Parliament to account for the COVID-19 crisis. The Cypriot government decided to “go back in time” and used the March 1932 Quarantine Law. Denmark relied on the law on measures against contagious or other transferable diseases which was amended twice in 2020, all amendments having a sunset clause. The legal basis for the control of infectious diseases in Germany was provided by the Federal Act to Prevent and Combat Infectious Diseases in Humans—Infection Protection Act of 2001. Malta and Ireland relied on a public health act to adopt emergency regulations. In the case of Ireland, the Act was substantially amended in 2020 to refer to the COVID-19.

In other cases—such as the Netherlands and the United Kingdom— governments relied on recommendations introducing COVID-19 containment measures while members of parliament were working on the adoption of COVID-19 legislation.

The Duration and Timing of Activation of the Measures

The duration of the measures also varied from one country to the next as shown in Fig. 2.2 below. Three groups of countries can be distinguished. The first is composed of countries with a long-lasting state of emergency. France holds the European record with 861 days, followed by Romania (718 days) and Hungary (673 days). Although the latter are much younger democracies than France, these three countries experienced a loss of democratic quality during the pandemic with Hungary backsliding into autocratic rule (Guasti & Bustikova, 2022). It is notable that Hungary is the only European country where the executive declared a state of emergency for an unlimited period of time on March 30, 2020 (Rácz, 2020). The long-lasting nature of emergency provisions reflects the fact that, in these countries, the state of emergency was declared during the first wave of the pandemic and only revoked when the pandemic was considered as over by the authorities, in 2022. Italy falls in the same group, although the state of emergency provisions were withdrawn considerably earlier than in France, Hungary and Romania. The second group of countries activated their state of emergency provisions twice during the pandemic but each time for a limited period. This group includes states such as the Czech Republic, Finland, Portugal and Spain. The last group includes Estonia only, which was the only state that declared a state of emergency once, during the first wave of the pandemic.

Fig. 2.2

Duration of state of exception provisions (in days, from January 2020 to April 2021). Source: EXCEPTIUS, own rendering

Overall, these results suggest that very few countries adapted their crisis-management capacities during the pandemic and changed strategy from one COVID-19 wave to the next. Once activated, state of emergency provisions not only tend to be extended in time, but they are also considered as a default option to manage the pandemic.

When it comes to procedural matters, in all the countries in our sample, the power to declare the state of emergency lies in the hands of the executive. Yet, behind this apparent homogeneity, the modalities of declaration and the constraints placed on the executive highly vary from one country to the next consistently with the type of democratic system in place in such countries. In Finland, France and Portugal, the head of the government needs to be authorized to activate emergency powers. In France, in the case of law of sanitary emergency, the Parliament authorizes the government to act by ordinances for a duration of two months.

In the two other countries, parliamentary authorization follows the declaration of the state of emergency. Such a parliamentary veto exists in Finland where the Parliament has the power to repeal in part or in full the emergency provisions (see Chap. 3 of this volume) and in Greece the emergency provisions ceased to be enforceable if they are not ratified. In Spain, parliamentary approval is necessary if the government foresees an extension of the state of emergency after the initial legal period of 15 days. The Hungarian case is ambiguous. While in theory activating emergency powers falls under the jurisdiction of the Parliament, in practice the President is granted this power when the Parliament is considered “unable” to do so. During COVID-19, Victor Orbán declared the state of emergency but with the support of a majority in the national parliament.

In Estonia, Luxemburg, Italy and Romania the declaration of the stage of emergency must be countersigned by a member of government and the head of the state (the President or the Grand Duke, in the case of Luxemburg). Two findings emerge from this initial overview of the modalities and uses of the state of emergency in Europe. First, the design of emergency provisions is quite similar across European countries: they all allow the executive to enforce considerable restrictions and pass legislation for a restricted period of time. Yet, the duration of the measures and their monitoring by counterpowers display strong variation in Europe. In the next section, we explore whether such a variation has consequences for the level of stringency of adopted measures especially when compared with exceptional crisis-management measures embedded in other legal frameworks.

Do State of Emergencies Lead to More Draconian Measures?

This section departs from an exclusive focus on countries that did activate emergency powers during the pandemic to compare the effects of exceptional measures (whatever the types of emergency legal framework used) on the stringency of the restrictions adopted. To do so, I leverage EXCEPTIUS comparative data which allow to trace, on a daily basis, the type and stringency of deviations from democratic governance introduced by exceptional measures. The analysis that follows focuses on three core dimensions. The first concerns the concentration of powers in the hands of the executive. Five types of changes are recorded by EXCEPTIUS in an ordinal manner, ranging from the changes that are the less detrimental to democratic governance to the ones that have the most consequences:

• Changes in the modalities of executive decision-making that don’t alter the balance of power or the rule of law;

• Changes allowing the executive to derogate from fundamental rights;

• Changes allowing the executive to derogate from rule of law;

• Changes leading to restrictions in both fundamental rights and the rule of law;

• Extension of the powers and competences of the executive.

To assess whether emergency powers lead to a concentration of powers in the hands of the executive, we compared the average scores of this variable (labelled ExPow for executive powers) during the three waves of COVID-19 for all the countries of our sample. We however distinguish between the countries that relied on emergency powers (in orange in Fig. 2.3) and countries that based their action on pandemic or disaster management laws (in blue).

Fig. 2.3

COVID-19 exceptional measures and changes in executive decision-making. Source: EXCEPTIUS, own rendering

This descriptive analysis reveals that countries that relied on emergency powers have, on average, experienced a weaker predominance of the executive than countries that did not activate such powers. Such finding can be explained by the fact that state of emergency legislation is precisely designed to constrain the action of the executive during crises. Such constraints derive, for example, from a stronger parliamentary or judicial oversight. Our data suggests that, during COVID-19, state of emergency provisions achieved their stated goals of shackling the executive. In contrast, exceptional measures introduced through crisis-management law created stronger disruptions in democratic governance. They especially peaked during the second wave as Denmark and Belgium granted additional powers and competences to the executive to manage the pandemic. Figure 2.3 also shows that the powers of the executive got weakened as the pandemic unfolded. This may be due to the fact that, as state of emergency provisions, lasted in time, parliaments introduced restrictions in what the executive was entitled to do and to the adoption of COVID-19 legislation giving a stronger role to parliamentary and territorial counterpowers.

To continue my investigation, I zoom into the relationship between the legal basis of exceptional powers and the derogations they allow on fundamental rights. EXCEPTIUS data allows tracing the impacts of COVID-19 containment measures on a large range of fundamental rights as defined and guaranteed by the European Convention on Human Rights. To get a clearer picture of the impacts of diverse emergency legislations, we focused on rights that (1) were restricted in a sufficiently large number of countries for the comparison to be meaningful and (2) were particularly vulnerable to derogations due to the specific nature of the crisis at stake (a pandemic). This leads us to focus on two core fundamental rights: freedom of movements (also analysed by Conde Belmonte and co-authors in this volume) and freedom of assembly.

The Europe Convention on Human Rights foresees in its article 2, par. 3 possibilities for European states to restrict freedom of movement in the interests of the protection of health. When activating emergency powers, governments have a duty to inform the European Court of Human Rights about the nature and duration of such restrictions. Figure 2.4 compares the severity of restrictions in freedom movement between countries that declared emergency powers and countries that did not do so. Restrictions are coded based on the definition of the European Convention focusing on travel within and between European countries. EXCEPTIUS data record the following categories: travel restrictions and ban between countries; travel restrictions and ban within countries, all the possible combinations of the two and a ban on all forms of travels. The lowest possible score a country can get is 0 (for no derogation) to 8 for a ban on all forms of travels. Here again, the data is coded on an ordinal scale: the higher the score, the more stringent the restrictions.

Fig. 2.4

COVID-19 emergency measures and restrictions of freedom of movement. Source: EXCEPTIUS, own rendering

Figure 2.4 shows that no countries implemented a full ban on travels during the pandemic. However, it displays a very different picture than Fig. 2.1 as EXCEPTIUS data reveal that countries that did rely on emergency powers to manage the pandemic implemented more stringent restrictions on freedom of movement than countries that did not activate emergency powers. The pattern is roughly stable over time, with a slight increase of restrictions during the second wave. In contrast, countries that relied on disaster-management legal framework implemented early on lower restrictions on freedom of movement and seemed to have reacted in a more proportionate manner to the evolution of the pandemic on their territories. Such countries also appear to be more responsive to the evolution of the public health situation with restriction measures being lifted and reintroduced throughout the different waves.

The analysis of the impacts of exceptional measures on the freedom of assembly and association (protected by article 11 of the ECHR) reveals a very close picture. EXCEPTIUS data record three core types of restrictions: the introduction of new regulations that don’t necessarily restrict such right (such as, for example, the possibility for associations to hold online meetings); restrictions on either the right to assembly or to association; suspensions on either the right to assembly or to association and all possible combinations of restrictions and suspensions on both rights. The data is coded on an ordinal scale ranging from 0 (no restrictions introduced) to 9 (suspension of both rights). Figure 2.5 shows that states that activated emergency provisions also introduced more stringent restrictions on freedom of association and assembly than states that did not activate such provisions. The evolution of restrictions over the three waves of the pandemic is, however, less stable than for restrictions in freedom of movement. Governments using emergency powers only regulated such rights during the first wave of the pandemic. However, they strengthened the stringency of restrictions during the second and third waves. States that relied on crisis-management legal frameworks followed a different pattern: they initially implemented more stringent restriction to later adapt them to the evolution of the pandemic.

Fig. 2.5

COVID-19 emergency measures and restrictions of freedom of assembly and association. Source: EXCEPTIUS, own rendering

This is, however, not true for the first wave of the pandemic where states declaring the state of emergency mainly introduced new regulations to such freedoms.

Conclusion

The COVID-19 pandemic has seen the comeback of exceptional rule in Europe, taking the shape of either states of emergency (constitutionally regulated or not) or emergency measures derived from disaster-management legal frameworks. This chapter aimed at investigating whether activating emergency powers lead to more stringent restrictions in democratic governance and fundamental rights. Based on the literature on the impacts of emergency powers on democratic governance, we expected states of emergency to be associated with a stronger concentration of powers in the hands of the executive and more draconian restrictions of fundamental rights. This chapter yields three core findings.

First, state of emergency provisions considerably varied in time and scope in Europe. By design, emergency provisions grant additional powers to the executive and allow for derogations to fundamental rights that are strictly necessary to protect the health of a population. In this regard, European countries are rather homogeneous in the design of their emergency constitution or law. In practice, however, some Europeans experienced long-lasting exceptional provisions while others did not. Some countries activated emergency powers for a very limited period and sometimes only once during the pandemic while others lived under a quasi-permanent state of emergency during the pandemic. The duration of emergency powers is associated with the strength of counterpowers in a democratic system. In Hungary and Romania, the Parliament has limited oversight over emergency powers while in France, the fact that the party of President Macron enjoyed an absolute majority in the National Assembly weakened the role of parliamentary counterpowers and opposition parties. Other European countries took a different route and opted for relying on non-exceptional disaster management framework. In most cases, pandemic management frameworks were adapted to the case of COVID-19 and strengthened during the pandemic.

Second, this contribution shows that this difference matters for democratic governance and human rights. On the one hand, state of emergency provisions shield democracy against a concentration of powers in the hands of the executive better than disaster-management legislation does. This is in line with the theoretical arguments in favour of the adoption of emergency constitutions. Key to the defence of emergency constitutions is the fear of the action bias of the executive left without any guidance on how to proportionately manage a crisis and faced with societal demands to act, executive may be keen to abuse their power (Voigt, 2022). Our results support this fear and reveal that, if not planned properly, crisis-management legislation may concentrate powers in the hands of the executive to the detriment of parliaments and courts. On the other hand, the activation of emergency powers also coincides with more stringent restrictions of fundamental rights. This can be since state of emergency provisions allows for the introduction of blanket restrictions once activated. In contrast, each restriction introduced by disaster management law needs to be justified.

Coming back to the questions that aroused our initial interest (Is COVID-19 different from other crises in the (mis)use of emergency powers?), our contribution suggests two conclusions. It first confirms that the activation of emergency has strong and lasting consequences on human rights. Yet, our sample, mostly composed of consolidated democracies, reveals that the risks these regimes have for the concentration of powers are lower than expected. Second our descriptive account calls for paying more attention to the impacts of disaster-management framework—adopted during the pandemic—on democratic governance and human rights. Because their consequences are less spectacular—after all, activating disaster management tools does not come with specific constraints in terms of accountability and transparency—disaster management laws are considered less risky and suspicious. Yet, our initial findings show that they are no less detrimental to the quality of democratic governance. In strengthening legal preparedness to future crises, policy makers need to be particularly cautious in devising legal arsenals that maintain high levels of democratic governance and oversight in crisis times.