April 01, 2020
By Alan Greene
Carl Schmitt is, without a doubt, the pre-eminent scholar on states of exception. However, his famous maxim of ‘Sovereign is he who decides on the exception’ has tainted the debate on emergency powers, emphasising their antagonistic relation to the legal order they are supposed to protect and downplaying their protective potential. In this post, I argue why Article 15 of the European Convention on Human Rights (ECHR) should be used to accommodate the emergency lockdown powers necessary to confront the Coronavirus pandemic. This is the closest we shall get to an ‘ideal state of emergency’—the very thing it was designed for. In contrast, far from protecting human rights, failure to use Article 15 ECHR risks normalising exceptional powers and permanently recalibrating human rights protections downwards.
The Schmittian Spectre
Concerns about declaring a state of emergency under Article 15 ECHR to deal with the coronavirus pandemic have been raised by a number of MEPs and even a spokesperson for the Council of Europe (COE). This concern is understandable given the dark history emergency powers have from a human rights perspective. This is epitomised by Schmitt’s theory itself, which he used to proffer an expansive reading of Article 48 of the Weimar Constitution which was ultimately used to arrogate the extant constitutional order and establish the Third Reich. Worrying developments in Hungary this week also serve as a reminder, not that one was needed, of how emergency powers can be used to usurp, rather than protect the constitution. Notably, Hungary has not derogated from the ECHR using Article 15 but this is little comfort.
Most states of emergency, however, are not ‘zones of lawlessness’. Most are not expressions of the brute, raw sovereign power that was, in Carl Schmitt’s view, necessarily exercised before a legal order could be established. Most states of emergency are not this power revealing itself again, unbound by law, and exercised in order to defeat the threat and restore normalcy in the manner that powers prescribed by law could not. Most emergencies, in fact, have lots of law.
Article 15 permits states to derogate ‘in time of war or other public emergency threatening the life of the nation’ but only ‘to the extent strictly required by the exigencies of the situation.’ Article 15.2 further lists a number of rights that cannot be derogated from. It should be clear therefore that Article 15 ECHR does not create a Schmittian state of exception. An Article 15 emergency instead constitutes a different regime of legality, rather than a zone of lawlessness. This different regime can be used to quarantine exceptional powers to exceptional situations, preventing a recalibration of ordinary legal norms that would be required to accommodate powers that would have been considered impossible prior to the crisis.
Schmitt is only really useful in analysing emergency responses to the pandemic if there does not appear to be any legal authority authorising government action. If there is law, Schmitt is not very helpful at all. At most, these can amount to legal black holes—zones of discretion created by law but within which there is little to no legal constraints on the decision maker; or legal grey holes—zones of discretionary power where, ostensibly there appears to be legal oversight and judicial review of this discretion but such judicial oversight is so light touch as to be non-existent.
Legal black holes and legal grey holes are not zones beyond law. Or at the outset of the emergency, at least, they are not. As I have argued elsewhere, legal holes can, however, evolve into Schmittian ‘zones beyond law’ but at present, we are not at that stage in most European states. Moreover, such an argument is limited to constitutional provisions of emergency powers rather than those under international human rights treaties. Close attention, however, does need to be paid to Hungary’s deeply worrying developments on this point.
Nevertheless, legal black holes and legal grey holes can give rise to serious human rights and rule of law concerns. Legal black holes reduce the capacity of judicial oversight of emergency powers. Legal grey holes, however, risk legitimising exceptional powers by cloaking them in a thin veil of legality that is the result of an overly deferential judiciary and light-touch review. This can further increase the propensity of such powers becoming permanent. Failure to utilise Article 15 ECHR could give rise to such concerns as human rights provisions are recalibrated downwards. When this happens, the quarantining effect of a de jure state of emergency is lost. We are left with a de facto state of emergency that enables the same powers but lacking the transparency, additional oversight and supervision that should accompany a de jure state of emergency.
The Impact of powers enacted to confront Coronavirus on Human Rights
The purpose of this section is not to provide an exhaustive list of the different human rights concerns raised by the various measures taken by states to confront the coronavirus pandemic. Kanstantsin Dzehtsiarou has already provided a very comprehensive analysis of these issues. Rather, my goal is to focus on some key human rights concerns and, from this, illustrate the fundamental problems that arise from accommodating exceptional powers under the parameters of ‘normalcy’ without the quarantining effect of a de jure state of emergency. Such accommodation is often the product of overly deferential judicial scrutiny in a time of crisis, giving rise to an aforementioned legal grey hole.
Article 5: The Right to Liberty and Security
A key right that is likely to be subject to interference during the coronavirus pandemic is Article 5 and the right to liberty and security of the person. This may take the form of ‘paradigmatic’ deprivations of liberty of infected persons, or less-paradigmatic interferences such as measures enacted to implement and enforce social-distancing and lockdowns. In this latter instance, it is unclear whether Article 5 is even engaged. As we shall see, however, this failure to trigger Article 5 only serves to underline the problematic human rights concerns that arise through attempts to accommodate exceptional powers under the ordinary parameters under the ECHR.
The concept of liberty under Article 5 has been interpreted narrowly, with the ECtHR finding that the additional caveat of ‘security of person’ provides no further protection. Article 5 only protects liberty in the classical sense of physical liberty but does not confer a right to do what one wants or go where one pleases (P v Cheshire West & Chester Council; P & Q v Surrey County Council  UKSC 19). Article 5 thus only pertains to deprivations rather than restrictions of liberty with the latter instead falling under Article 2 of Protocol 4 and the right to freedom of movement.
In Guzzardi v Italy, however, the ECtHR stated that the distinction between deprivation and restriction of liberty is ‘merely one of degree and intensity, and not one of nature or substance’. A restriction on liberty therefore can constitute a deprivation of liberty if it crosses a specific threshold of interference. In assessing whether this threshold has been crossed, the Court further stated in Engel v Netherlands that regard must be had to ‘a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.’
Consequently, we cannot simply examine analogous measures previously found by the ECtHR to constitute restrictions rather than deprivation of liberty. For example, simply because a 12-hour curfew under one regime did not constitute a deprivation of liberty, does not mean that a 12-hour curfew under another regime with fewer safeguards or additional restrictions factored in will also not fall within the ambit of Article 5. The variables in each regime need to be factored in.
Any deprivation of liberty must fall within the discrete categories outlined in Article 5.1 (a)-(f) for it to be compatible with the ECHR. The most obvious candidate for accommodating enhanced detention powers for the pandemic is Article 5.1(e) which permits ‘the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.’ As this is the first pandemic the ECHR has had to grapple with, case law on this is sparse. The clearest test we have for lawful detention for Article 5.1(e) is in Enhorn v Sweden where the ECtHR held that the criteria for determining the lawfulness of detention under Article 5(1)(e) in relation to infectious diseases is, firstly, ‘whether the spreading of the infectious disease is dangerous for public health or safety’, and secondly ‘whether detention of the person infected is the last resort in order to prevent the spreading of the disease because less severe measures have been considered and found to be insufficient to safeguard the public interest. The threshold for Article 5.1(e) is high.
However, even Enhorn v Sweden is of minimal help with regard to the compatibility of lockdown measures to tackle the pandemic given that Enhorn was known to be HIV positive. It is unclear whether Article 5.1(e) allows for the deprivation of liberty of healthy people to prevent the spread of infectious diseases. If Article 5.1(e) permits the detention of healthy people to prevent the spread of infectious disease, this will be the only class of deprivation authorised by Article 5 that is not based on the specific category of a person or their prior conduct. Even within Article 5.1(e), there are specific person classifications—persons of unsound mind, alcoholics, drug addicts or vagrants— outside of the ground of ‘to prevent the spread of infectious diseases’. This is not a mere technical consideration; it constitutes a fundamental dispute as to the scope of state power permissible under Article 5.1(e): a restrictive, narrow understanding of Article 5.1(e) limited only to infected persons or persons who may be infected (with necessary safeguards regarding the burden of proof required to fall under this category); or an infinitely more expansive conception of Article 5.1(e) authorising the deprivation of liberty of everybody within a state’s jurisdiction and with no burden of proof whatsoever required.
This is important as there are fundamental safeguards in place with regards to assessing whether a person has committed, or that there is reasonable suspicion that they have committed a certain conduct; or that they fall within a certain class of persons. If the ECtHR were to agree that Article 5.1(e) permits the deprivation of liberty of healthy persons, this lack of a person-specific limitation needs to be factored into account when assessing whether the measures enacted constitute a restriction or deprivation of liberty. In this regard, the lack of a person-specific limitation to Article 5.1(e) is potentially similar to cases such as Gillan and Quinton v UK and Beghal v UK where powers of detention or restriction of movement had been conferred without a requirement of ‘reasonable suspicion’. While the Court side-stepped the Article 5 question in each of these cases to focus on Article 8 and the right to privacy, the principle remains that the burden of proof question must feed into assessment of whether the measures enacted constitute restriction or deprivation of liberty. Furthermore, this side-stepping of Article 5 issues by the ECtHR does not bode well for any future cases where it will be called upon to review powers enacted in response to the pandemic.
If these powers are found to be simply restrictions rather than deprivations of liberty so that Article 5 ECHR is not even triggered, this principle would be open to legitimating similar measures for other crises represented by the state as necessitating them. Such emergencies may be ‘less objective’ than the current pandemic, for example terrorism, and are fertile grounds for human rights abuses. While these measures would still fall under the ambit of Article 2 of Protocol 4 and the qualified right of freedom of movement, it is important to note that states such as the UK and Turkey have not ratified Protocol 4.
For these reasons, any additional lockdown powers should not be seen as compatible with Article 5, regardless of how necessary we consider these measures. Instead, a derogation under Article 15 should be issued. In this regard, the ECtHR will not be forced into the awkward situation of having to pronounce on the conformity of these measures with Article 5. They will not be tempted to state that lockdown measures either do not amount to a deprivation of liberty or that even if they do, they fall under Article 5.1(e) which permits the deprivation of liberty of all individuals for the purposes of preventing the spread of infectious diseases. Instead, by using Article 15, any jurisprudence of the ECtHR that may be affected by undue deference in a time of crisis can be quarantined to the exceptionality of the situation. Moreover, the requirement that measures taken must still be proportionate to the exigencies of the situation does not obviate the possibility of the Court scrutinising the proportionality of the state’s response.
Other Rights Affected
Prohibition of Discrimination
Further concerns also arise with regards to Article 14 and the prohibition on discrimination. While it may be the case that the powers used to enforce a lockdown affect us all equally and that we may all be potential vectors for coronavirus, it does not take much imagination to see a scenario where such powers may be used against a particular race or group. Already we see political leaders in other parts of the world emphasise the ‘foreign’ nature of the coronavirus, with US President Donald Trump insisting on calling it the ‘China virus’. From Jews being blamed for the Black Death; to AIDS being described by Ronald Reagan’s Press Secretary as the ‘Gay Plague’; to syphilis being referred to as the ‘Italian disease’, the ‘French disease’ or the ‘Spanish disease’ depending upon what part of Europe you were from; the spread of diseases has a long history of being attributed to minority groups or non-citizens.
The conferral of vast discretionary power may facilitate their discriminatory application as officials use their intuition or ‘hunch’ to identify individuals to whom they should apply the powers to. Lessons from UK counter-terrorist laws are illustrative here as statistics show the use of counter-terrorist powers that can be exercised without reasonable suspicion tend to be targeted at specific minority groups or ‘suspect communities’. While the courts have refused to say whether this makes the measures incompatible with Article 14 due to the fact that they were designed to be used in proportion to the ‘terrorist community’ rather than society as a whole’, this should only serve to underline the risks of placing courts in the tricky situation of trying to vindicate human rights in the face of a threat represented by the political branches as necessitating draconian powers. The ECtHR may end up capitulating to state arguments about the necessity and proportionality of such powers which could, in turn, be used to legitimate similar permanent powers without the need for derogation. Such powers would be, in the eyes of Lord Kerr’s dissenting judgment in Beghal, ‘entirely at odds with the notion of an enlightened, pluralistic society all of whose members are treated equally.’
Freedom of Expression and Freedom of Association
Article 5 is not the only Convention right that may be affected by emergency coronavirus measures. Powers to restrict gatherings and the use of public spaces will impact on the right to freedom of association under Article 11. These interferences are particularly problematic in a democratic society if those powers can be used against political parties and trade unions. This can also impact on public protest which can, in turn, give rise to Article 10 and freedom of expression concerns. Article 10 can be impacted in more blunt fashion as seen with Hungary’s new emergency powers that can be used to prosecute journalists for causing panic or spreading ‘fake news’.
Of course, such rights are not absolute and qualified rights under the Convention may be expressly interfered with for the purposes of protecting public health. Here, the Court’s role is to apply a proportionality test to assess whether the infringement of the right is justified by the legitimate aim being pursued. The case can certainly be made that the proportionality test can be used to accommodate the emergency coronavirus measures. However, the argument that everything can and should be accommodated through the proportionality test reduces Article 15 to a dead-letter and, in so doing, eradicates its quarantining effect and potentially increases the possibility of exceptional powers becoming normalised.
The End of The Emergency?
It may be tempting to insist that the measures enacted to confront the coronavirus pandemic are compatible with ordinary human rights obligations owing to the objective necessity of such measures and the need to reassure people that the state does not wish to exercise its new powers in a draconian fashion. Indeed, the coronavirus pandemic is possibly the closest we have ever seen of a phenomenon that can objectively be categorised as necessitating exceptional measures. The objectivity of a threat, however, needs to be given legal recognition through the declaration of a state of emergency. History shows us that emergency powers often outlive the phenomenon that triggers the introduction of emergency powers in the first instance. While the need for exceptional powers may be obvious at the outset of the emergency, assessment of the point where these powers are no longer needed is considerably more problematic.
A further problem with relying on the objective, tangential nature of the crisis to limit emergency powers is that emergencies have the propensity to evolve and trigger further crises. This public health emergency has already triggered an economic emergency and economic emergency measures. However, as I have argued elsewhere, the objective necessity of economic crisis measures is inherently contested, making any justification for additional emergency powers much more suspect. In turn, economic emergencies are fertile breeding grounds for social unrest which can trigger other ‘less objective’ emergencies that may be represented as requiring additional police and state security powers. In the context of the coronavirus pandemic, it is not unforeseeable that the aforementioned powers enacted above are reframed as necessary to confront these more subjective crises, creating the precise conditions for egregious human rights abuses.
Conclusions: The Dangers of Emergency Powers
The point of this article is not to downplay the dangers that de jure states of emergency pose for human rights. However, draconian measures taken in response to a crisis are no less dangerous simply because they are not expressly labelled as emergency powers or are taken under the assumption that they are compatible with the ordinary requirements of human rights law. If anything, these measures are more dangerous as they are not expressly quarantined to exceptional situations. Refusing to call a spade a spade does not make it any less of a spade.
Furthermore, excessive deference to the political branches of government in a time of crisis is not exclusive to de jure states of emergency. It is seen in de facto emergencies too. Indeed, it is even more dangerous here given the lack of clear demarcating lines around the principles declared by the judiciary. From Re Korematsu in the US to Liversidge v Anderson in the UK, the most infamous cases of judicial capitulation to executive power in a time of crisis are of this kind. Far from protecting human rights, arguing against the necessity for derogations to ensure lockdowns are compatible with the ECHR recalibrates the protection of rights downwards in order to accommodate lockdown measures under the ostensible banner of ‘normalcy’.
The story of emergency powers since the Twentieth Century and, particularly since 11 September 2001 has not been one of abuse of officially declared states of emergency; rather, it has been the story of permanent emergency powers enacted without such declarations. It has been a story of de facto emergencies. Moreover, where de jure states of emergency have been declared, their ending has not resulted in a return to the status quo ex ante; instead, many of the emergency powers are re-enacted as ordinary, permanent laws.
We absolutely should be sceptical of governments who declare states of emergency. Hungary is showing us this right now. However, if there is one lesson to take from Schmitt, it is the dangers of permanent transformative emergency powers, rather than temporary, defensive ones.
Dr Alan Greene is Senior Lecturer in Law at Birmingham Law School. His book Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing 2018) was shortlisted for the 2018 SLS Birks Prize for outstanding legal scholarship.