Emergency
A state of emergency is a legally defined, time-limited condition under which the executive receives extraordinary powers and special rules take effect, meant to address and ultimately end an exceptional circumstance that gravely endangers a nation.1 There is no single precise definition of an emergency, but legal systems and political thinkers generally treat it as an extreme event that strains the limits of the established legal and political order and requires expansive governmental powers, especially by the executive.2 Situations that have triggered emergency regimes include natural disasters, civil unrest, epidemics, massive terrorist attacks, economic crisis, war, and military threats.1
| Key fact | Detail |
|---|---|
| Definition | A temporary situation granting the executive exceptional powers against a fundamental threat to the country1 |
| Constitutional coverage | About 90 percent of constitutions worldwide contain explicit emergency provisions3 |
| Frequency of use | At least 137 countries declared a state of emergency at least once between 1985 and 20143 |
| Typical duration | Most constitutions attach a time limit of typically two to six months, after which the declaration lapses unless renewed4 |
| International law threshold | Derogation from human rights requires a "public emergency which threatens the life of the nation" under ICCPR Article 4 and ECHR Article 151 |
| Governing principles | Necessity, proportionality, and temporariness, with effective parliamentary and judicial control of declaration, prolongation, and application1 |
| Documented abuse | Weimar Article 48, Paraguay under Stroessner, Egypt under Mubarak, India 1975, Poland 1981, Turkey 2016–20185 • 4 |
Definition and legal concept
Under the rule-of-law approach, the state of emergency is itself a legal institution subject to legal regulation, though the rules applicable to it may differ from those applicable in normal times. Current international law and virtually all national legal orders adhere to this approach, rather than a sovereignty approach that places the emergency outside the law altogether.1
Two types of emergency powers exist. Constitutional emergency powers rest on a written constitution or organic law and require an officially proclaimed emergency; extra-constitutional emergency powers rest on executive action under unwritten principles, without an official proclamation.1 Comparative constitutional orders face a basic design choice between writing rules about how the state may respond to an emergency into the constitution, where one exists, and leaving such responses to be decided as and when an emergency occurs.6
Historical development
The major national traditions of emergency powers include ancient models of constrained dictatorship, martial law and prerogative power in common-law systems, the state of siege in the French constitutional tradition, and the state of exception in the German constitutional tradition.7 One model described in the literature is the "neo-Roman" one, referring to the dictatorial solution used in ancient Rome, with the fundamental difference that the executive is granted exceptional power in a democratic way by the legislature. Another is the "martial law model" of legal-executive discretion, traditionally implemented by martial law with the "suspension of ordinary law and the temporary government of a country," which usually allows political control and ex-post judicial review.5
The scope of the term has widened over time. Before the twentieth century it was usually reserved for violent threats such as foreign invasions, domestic insurrections, and civil wars; by the beginning of the twentieth century it had been expanded to include economic crises, and in contemporary law it further covers natural disasters, epidemics, environmental catastrophes, and terrorist attacks.2 The debate over emergency powers intensified after 9/11, as many countries responded to what they regarded as novel and mortal threats from international terrorism.7
How emergency powers work
An emergency constitution is not a separate document but the set of formal constitutional provisions specifying who can declare an emergency, under which conditions, who must approve the declaration, and which special powers actors gain once it is declared.3 The Constitute Project classifies emergency provisions as constitutional clauses allowing the government to declare an exceptional state, such as emergency, siege, or martial law, usually giving the government additional powers and possibly suspending some normal functions of the political system.8
When a state of emergency is in force, certain individual rights and freedoms are typically put on hold, and the division of powers is narrowed to the benefit of the executive branch, or even of one person such as the head of state or government, leaving parliament and the courts weakened.3 Emergency constitutions are paradoxical documents: their declared goal is to re-establish constitutional order by temporarily suspending it, while the monitoring mechanisms they provide are intended to reduce the likelihood that the state of emergency is misused by power-maximizing politicians.3
Constitutional and international limits
Three principles govern emergency measures that limit or derogate from rights. Necessity and proportionality apply to measures limiting constitutional fundamental rights as well as rights under the European Convention on Human Rights (ECHR) and the UN International Covenant on Civil and Political Rights (ICCPR).1 Where measures entail derogation from human rights, the exceptional situation must meet the definition of a "public emergency which threatens the life of the nation" in Article 4 of the ICCPR and Article 15 of the ECHR.1
Temporariness requires that emergency measures be in place only for the duration of the exceptional situation, that they be terminated once it is over, that they not have permanent effects, and that in principle constitutional amendments not be made during states of emergency.1 Most constitutions attach a time limit to any declaration, typically two to six months, after which it automatically lapses unless renewed.4
Oversight is a rule-of-law requirement in two directions. Both the declaration and possible prolongation of a state of emergency, and the activation and application of emergency powers, must be subject to effective parliamentary and judicial control.1 The declaration and all measures taken under exceptional power must be subject to legislative deliberation and judicial review by bodies other than the one exercising the exceptional power.5 In certain constitutions, the legislature may terminate a state of emergency on its own motion, usually by adopting a resolution for that purpose, while others provide for the judiciary to review judicially both a declaration or extension of a state of emergency and the exercise of emergency powers.4
Comparative systems and sibling concepts
Legal theory uses a variety of names for these special legal situations, including state of emergency, state of exception, special legal order, and state of danger; in the past, war-related terms such as martial law, state of siege, and state of war were used. These concepts are often not interchangeable across legal systems.5 Comparative primers use "state of emergency" generically for any constitutionally mandated period in which emergency powers may be exercised, while some constitutions distinguish types such as "states of exception," "states of siege," and "states of alarm," with different invocation rules and different effects on citizens' rights and the distribution of powers.4
Constitutions structure these regimes differently:
- Portugal (article 19) distinguishes a "state of siege" from a "state of emergency," the latter being "less serious" and causing only the suspension of some of the rights, freedoms and guarantees capable of being suspended; the choice between the two must respect the principle of proportionality.4
- Poland distinguishes three regimes: a state of martial law (article 229) for external threats and armed aggression; a state of emergency (article 230) for threats to the constitutional order, citizen security, or public order; and a state of natural disaster (article 232) for natural catastrophes or technological accidents.4
- India (article 360) permits the president, on the advice of the Council of Ministers, to declare a "financial emergency," enabling the union government to issue commands to state governments on financial propriety, cut state employees' salaries, and review state budgets before enactment; it must receive parliamentary approval within two months to remain in effect.4
Emergency constitutions by the numbers
About 90 percent of all constitutions worldwide contain explicit provisions for dealing with states of emergency, making constitutionalized emergency powers the norm rather than the exception.3 Over the period from 1985 to 2014, no fewer than 137 nations announced a state of emergency on one or more occasions, which produced circumstances carrying special political powers.3 A survey by Oren Gross, a scholar of emergency powers, examined the constitutional emergency arrangements of over seventy countries in an attempt to classify general patterns in how constitutions treat emergencies, including the legal ramifications of declaring a state of emergency.9
Abuse of emergency powers and safeguards
Emergency powers have repeatedly been turned against the constitutional order itself. Abuse of the exceptional powers guaranteed by Article 48 of the Weimar Constitution was an important tool in the fall of the Weimar Republic and the establishment of the Nazi totalitarian dictatorship.5 Emergency powers were used to oppress political opposition in India in 1975 and in Poland in 1981, and Turkey's state of emergency lasted from July 2016 to July 2018 and was used by the authoritarian regime to suppress political opposition.5
Many governments have misused emergency powers by needlessly prolonging or renewing states of emergency and using them to bypass democratic accountability, harass dissidents, rig elections, restrict the press, and impose dictatorial regimes. Famous cases are Stroessner's Paraguay and Mubarak's Egypt, both of which extended states of emergency again and again and applied them as a regular tool for suppressing nonviolent opposition.4 The safeguards described above, time limits with renewal requirements, legislative termination powers, judicial review, and the principles of necessity, proportionality, and temporariness, are the design responses to this record.1 • 4
Scholarly debate: exception or part of the legal order
The central theoretical divide runs between legalists and extralegalists. According to the legalist position, crises facing the state demand responses that stay wholly within the law, and emergency powers are usually given constitutional form surrounded by a variety of limits. Extralegalists argue that serious crises of state must be met with responses outside the law.7 A related (neo-)Schmittian conception, associated with the tradition of Carl Schmitt, locates the state of emergency in the extra-legal sphere as a "legal black hole," a situation that cannot be interpreted by legal tools.5 The rule-of-law approach adopted in current international law and virtually all national legal orders stands against this conception, treating the emergency as a regulated legal institution.1
Recent scholarship questions the premise that emergencies are short and exceptional at all. Rather than occasions for law's standstill in the face of a political decision, emergencies are opportunities for legal, institutional, and normative mobilization; the field's core concerns are the containment of threats within a legal and political order and the practical problems of definitions, authorizations, jurisdiction, and temporality.10 When the time frames of emergency are long, flexible, multiple, and overlapping instead of exceptional, legal activity during such periods becomes an ever-changing arena of opportunity where politically motivated projects carrying normative weight can find expression.10
References
- Respect for Democracy, Human Rights and Rule of Law during States of Emergency, Council of Europe / Venice Commission, CDL-PI(2020)005rev
- Emergency, The Encyclopedia of Political Thought, Wiley Online Library
- The architecture of emergency constitutions, International Journal of Constitutional Law
- Emergency Powers Primer, International IDEA
- Conceptualising State of Emergency, Constitutional Crisis Management and Their Rule-of-Law Requirements, Cambridge Core
- States of Emergency, The Oxford Handbook of Comparative Constitutional Law
- Legal and Extralegal Emergencies, Princeton University
- Emergency provisions, Constitute Project
- Providing for the Unexpected: Constitutional Emergency Provisions, Oren Gross, SSRN
- Emergency Powers, Cambridge Handbook of Constitutional Theory, ch. 26
Topic: Encyclopedia › Society and history › Law and justice › Constitutional and administrative law › Constitutional theory and comparison
Initially written Sep 17, 2026 · Reviewed: Sep 30, 2026; Oct 25, 2026 · Edited: Sep 30, 2026; Oct 25, 2026 · Last review: Oct 25, 2026
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