State of emergency in internatinal human rights law and national constitutions

State of emergeState of emergency in internatinal human rights law and national constitutionsncy in internatinal human rights law and national constitutions

STATE OF EMERGENCY IN INTERNATINAL HUMAN RIGHTS LAW AND NATIONAL CONSTITUTIONS

Nguyen Dang Dung’, Nguyen Thuy Duong? Abstract: Inthe state ofemergency, the legislative and judicial branches must give to the executive the power to derogate

human rights, but the executive itself must also follow due process of law when applying derogation of rights This paper analyzes the theoretical basis and the operational sequence of executive activities, along with the incompatibilities of

Vietnamese law in this context with the purpose of protecting the rights of the people

Keywords: state of emergencies, executive power, human rights

1 PROVISIONS ON THE STATE OF EMERGENCY IN THE NATIONAL CONSTITUTION

Ms

“State of emergency”, also known as “state of exception”, “state of alarm” or “state of siege”? is a long-standing concept and has been used in many legal systems under all politic regimes In the past, many countries use these concepts referring to certain statuses such as the state of war, and in these scenes, the priority of the executive may be prescribed by the laws In the modern era, the state of emergency has been widely applied in countries around the world even in a peaceful context and became a constitutional concept After the World War IL, most constitutions have regulated executive priority in emergencies In this scene, the executive branch instead of the legislature, on behalf of state apparatus, may declare a state of alarm, curfew or urgency in part, or the whole of the national territory

In legal theory, the executive has priority over other state power-holders in acting in a state of danger or urgency that threatening the life of the nation In this situation, it is possible to suspend all national laws, including the laws on human rights protection, that hinder urgent action aiming to protect the legitimate existence of the whole nation In special situations, the executive is obliged to protect the life of the nation by any means, even it has to use methods that may against the rule of

! Professor Doctor of law, Vietnam National University, Hanoi

2 PHD Cadidate, Lecturer, School of law, Vietnam National University, Hanoi

3 DCAE State of Emergency, https:/Awww.files.ethz.ch/isn/14131/backgrounder_02_states_ emergency.pdf

law,' which means almost everything that helps national survival, security, and order in an emergency can not be considered as illegal manifestation

The term “emergency” does not appear in the Constitution of the United States of America But all incumbent presidents in times of crisis do state that they have the right to apply special measures through difficult times For instance, President A Lincoln at the beginning of American Civil War signed a decree to suspend all public freedoms and his action was justified for the aim to uphold the Constitution and national protection.” Whereby, State powers in an emergency are interpreted in two ways: (i) special powers conferred on the government/executive branch to suspend the validity of common legislative or judicial procedures; (ii) allocated authority of US President over particular functions clearly relating to emergency situations according to the Constitution Article 2, paragraphs 2 & 3.4

The exercise of emergency power may be or not be considered by the Supreme Court In the case of Korematsu vs United States (1944), the Supreme Court had affirmed Executive Order 9066 signed by President Franklin D Roosevelt on February 19, 1942 (about 10 weeks after the U.S entered World War Il) that authorized the Secretary of War and the armed forces to remove people of Japanese ancestry from what they designated as military areas and surrounding communities in the United States However, the Civil Liberties Act of 1988 was passed by Congress to provide a Presidential apology and symbolic payment of $20,000 to the internees, evacuees, and persons of Japanese ancestry who lost liberty or property because of discriminatory action by the Federal government during World War IL* But in Youngstown Sheet & Tube Co v Sawyer case, Supreme Court limited the power of the President of the United States to seize private property by rejecting President Harry S Truman’s claim to grant emergency power to neutralize private steel mills in order to ensure * Ina state of emergency, the executive may decide to suspend partial enforcement of the national

constitution, including constitutional rights and freedoms

* United States Information Agency, An outline of American History, National Political Publishing

House, Hanoi, 2000, p 192 - 193

In Western democracies, such emergency power is often strictly controlled by the legislature and is only allowed in a very limited time

* William B Fisch, Emergency in the Constitutional Law of the United States, University of

Missouri School of Law, 1990, https://scholaxship Jaw.missouri.edu/cgi/viewcontent.cgi?article =1417&context=facpubs

> Facts and Case Summary - Korematsu v U.S, https://www.uscourts.gov/educational-resources/ educational-activities/facts-and-case-summary-korematsu-v-us

* Steven Wright, The Civil Liberties Act of 1988, https://www.dartmouth.edu/~hist32/History/S06%20 -%20Giv%20Liberties%20Act%20of201988.htm

20 LAW ON THE STATE OF EMERGENCY - PHÁP LUẬT VE TINH TRANG KHAN CAP production in the time of war! As such, the president can do almost anything to perform emergency power until being prevented by one of the other two branches Such cross-supervision will help to limit the emergency power of the executive branch when it is necessary.”

Historical experiences show that granting the right to declare war to the Congregs does not preclude the president from putting the country in a war that should not be attended Presidential authority as Commander in Chief of all armed forces, in a broad sense, gives the president the advantage of the “one who comes first’ By deploying troops to war, the President put the Congress in no other way but supporting him In 1861, within 6 months after the declaration of war from Confederacy, President A Lincoln suspended the writ of Habeas Corpus to detain citizens who were suspected of being spy or Civil war protester He never consulted with Congress before applying At the same time, the President ordered the navy to blockade southern ports while increasing service time in the army to 3 years, expanding army, and navy force and allowing to purchase war materials, without the approval of the Congress The President then justified for his actions by claiming executive privileges as the Commander of all armed forces and presidential obligation to protect the government.’ He stated: “I have exercised all the power which Constitution and laws confer upon me.” He also added: “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that these Congress would readily ratify them.”* There was no declaration of war in neither the Korean War (1950 - 1953) nor the Vietnam War which took place a decade later The notion that the president has full power in army, at least in very limited time, has not faced any strong opposition And the Congress’s right to declare war, in some aspects, is just a formal control

In 1973, the Congress resolution designed to limit the U.S president's ability to initiate or escalate military actions abroad by adopting War Powers Act despite President Nixon’s veto The Act requires that presidents notify Congress after deploying the armed forces and limits how long units can remain engaged without congressional approval Enacted with the goal of avoiding another lengthy conflict suchas the Vietnam War, its effectiveness has been repeatedly questioned, and several presidents have been accused of failing to comply with its regulations Until now, ? Youngstown Sheet & Tube Co v Sawyer, 343 U.S, 579 (1952), https://supreme.justia.com/cases/

federal/us/343/579/

2 Jay M Shafritz, The Dictionary Of American Public Policy And Administration, National Political Publishing House, Hanoi, 2002

3 Neal Devins & Louis Fisher, The Democratic Constitution, Oxford University Press, 2004, p.110

+ David Herbert Donald, “Lincoln, the Politician” in “Lincoln Reconsidered: Essays on the Civil

War Era”, New York: Random House, 1956

the constitutionality of neither the act nor its implementation in limiting presidential military command has ever been tested

In England, in the 19th-century rebellion, the government - executive - had to sign a specific decree called the Peace Preservation Act (1814), which was precursor of Emergency Powers Act 1920! that gave the Sovereign power, in certain circumstances, to declare a state of emergency such as strikes, riots that paralyzing common sense and security by proclamation In such situation, the government must take all necessary measures to restore public order The Act also authorized emergency regulations to be issued by Order in Council.”

In France, as regulated by the 1958 Constitution of France, the President of the Republic, after formally consulting the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council shall take measures required by circumstances “where the institutions of the Republic, the independence of the Nation, ihe integrity of its territory or the fulfillment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted” The President obliges to address the Nation and inform it of such measures which are designed to provide the constitutional public authorities as swiftly as possible, with the means to carry out their duties?

Thus, whether or not there is a regulation in the Constitution, even when the rule of Jaw is completely applied, the executive branch sometimes has to go beyond its authority, which is allowed by the legislature, in a state of emergency

The declaration of a state of emergency or curfew, which is a derogation of citizens’ human rights, in principle, is under the legislature However, an emergency that happens suddenly is difficult and unpredictable to be prevented For example a rebel, or a flood, earthquake, or hurricane that causes great damage or loss of life In this case, if the country has to wait for the legislative declaration of a state of emergency or curfew, then people's life and security cannot be protected in a timely manner Because of the abrupt nature of such events, the legislative must allowed the executive to take immediate actions by declaring a state of alarm or curfew partial or whole the national territory

Both in a state of mergency and curfew, the exercise of public freedoms may be reduced and sometimes even completely suspended, but it’s not construed as a legal * Emergency Powers Act of the United Kingdom, https://wwwaegislation.gov.uk/ukpga/1920/55/

22 LAW ON THE STATE OF EMERGENCY - PHAP LUAT VE TINH TRANG KHAN CAP

dictatorship without control and limitation of power These are just the exceptions to the rule of law Compared to a state of emergency, a curfew is tighter In a state of curfew, a civil government may be replaced by a military one A state of alarms may be considered less serious and dangerous than a state of emergency or urgency Above them, a curfew is the most severe, often enacted in response to domestic

turmoil-and chaos or invasion from outside A state of emergency as an intermediate solution between a normal situation and a curfew is a more peaceful solution by

strengthening the executive/administrative powers to deal with threats Depending on the severity and danger of situation, the executive shall decide appropriate special mesures of limitation on human rights For example, a state of alarm is usually applied in response to natural disaster such as storm, earthquake while a curfew is usually applied in response to domestic turmoil or invasion from outside

A state of emergency allows the government to use special measures to deal with a special situation, but not all measures Only the measures that are necessary in specific circumstances are legal The validity of an emergency must be strictly considered In response to a special situation, as required by the executive, one or more civil libertieslaws may be suspended or restricted Citizens may continue to exercise fully their rights after a period of emergency An emergency can be declared on partial or whole national territory where public security and order are seriously compromised Human rights that can be derogated are freedom of speech, freedom of assembly, freedom of movement/residence Such rights must be stated clearly in a declaration of emergency

Declaring a state of emergency means suspending the enforcement of law, especially acts relating to human rights A declaration of emergency allows administrative officers, especially the head of the executive to prohibit anyone who may violate government activities from exercising his freedom of residence or apply ban traffic during certain times and areas In addition, the executive has the right to requisition what is necessary for restoring national security and public order as soon as possible In an area which was declared to be in the state of emergency, the executive has the power to decide residence areas for citizens, to ban them from exercising their freedom of assembly, to close public places, to suspend elections, to check permanent and temporary residents and to control all or some means of media The executive power to derogate citizens’ rights is not absolute The exercise of the executive power must follow the principle corresponding to the declaration of a state of emergency that being declared Moreover, it should be noted that measures that are applied in a state of emergency can not infringe on absolute rights such as right to life of the people, freedom from torture, freedom of thought , whether such rights are regulated in national law or not Thus, the power holders can not argue that the right is

not prescribed by law as an excuse forimposing restrictions on absolute rights There are only a handful of absolute rights, which are not derogated in any case, includes right to human dignity Specifically, freedom from torture, inhuman treatment or punishment, and degrading treatment or punishment are recognized as absolute rights and can not be restricted or derogated Meanwhile, some others are controversial, such as right to life and right to a fair trial Except for absolute rights, others may be limited/derogated at different levels The limitation on rights is a popular and common phenomenon in all countries

The implementation of emergency power may easily lead the executive to abuse of power To avoid such abuse, national constitutions stipulate that the legislature must be convened no later than certain time after declaration of state of emergency for ratification, modification or abolition this declaration In principle, derogation of human rights must be prescribed by an act, in which clearly defines the scope of application on time and space and the act must be adopted by the legislature But in specific situation, the executive is granted with constitutional power to issue decrees on declaration of curfew or emergency For example, the 1967 Constitution of the Republic of Vietnam’ stipulates very clearly:

“(1) In special situations, the President may sign decrees declaring states of emergency, curfew or tension over part or all of the territory of the country

(2) The National Assembly must meet no later than twelve days after the date of promulgation of the decree in order to ratify, amend or reject it

(3) If the National Assembly rejects or amends the President's decree, the special situations which were decreed will end or be modified accordingly.” ?

2 STATE OF EMERGENCY IN INTERNATIONAL LAW

International conventions on civil, political and other human rights conventions of the United Nations have similar standards Specifically, international law on human rights allows member states to impose some conditions/derogation on application of human rights which are not absolute rights In other words, states may impose limitations/derogations on human rights that may be limited/derogated according to international law on human rights for a legitimate purpose such as national security, public order in both normal times and times of emergency

Most rights are not absolute in character States can limit the exercise of these rights for valid reasons, including the needs of countering terrorism, as long as they \ The Republic of Vietnam was established in the South of Vietnam during the war

> ‘Truong Tien Dat, The Constitution’s Notes, 1967, p 279 More detail at: hitps://drive.google.com/op

en?id=1898pjZYaSzZa2BxfRZhhZvPc_J4G3URW

24 LAW ON THE STATE OF EMERGENCY - PHÁP LUAT VE TINH TRANG KHAN CAP

respect a number of conditions arcording to Article 4 International Covenant on Economic, Social and Cultural Rights (ICESCR — 1966) as following:

(i) There is a legal basis for the measure limiting the right;

(ii) limitation on the right pursue a legitimate aim such as respect of the rights or reputations of others, the protection of national security, the maintenance of public order or public health or morals;

(iii) the legal restriction respects the principle of equality and non-discriminatory.' Unlike limitation of rights, derogation of rights is only applied in a state of emergency In other words, derogation of rights must be of an exceptional and temporary nature that required of strict necessity relates to the duration, geographical coverage and material scope of the derogation According to Article 4 of International Covenant on Civil and Political Rights ICCPR 1966), derogation of rights shall be applied as following conditions:

(i) There must be a “public emergency which threatens the life of the nation”, such as armed conflict, civil and violent unrest, a terrorist emergency, or a severe natural disaster, such as a major flood or earthquake

(ii) Derogations should not be inconsistent with other obligations under international law

(iit) Permissible derogation measures must limit the derogated rights only to the extent strictly required by the exigencies of the situation

(iv) Derogation must be applied in a non-discriminatory manner, without a distinction solely founded on grounds of race, colour, sex, language, religion or social origin

A State Party applying derogation of rights within its territory shall immediately inform other States Parties through the intermediary of the Secretary-General of the United Nations about derogated provisions, reasons as well as the date on which it terminates such derogation

Thus, a State may temporarily suspend the exercise of a number of civil and political rights for a certain period of time due to the emergency context, through specific measures such as: applying martial law in partial or whole country, banning protests, assemblies, banning or imposing restriction on mass media, freedom of movement including immigration And the ultimate purpose of such derogation methods is to help the nation to overcome all threats in state of emergency

1 UNODC, Limitations permitted by human rights law, https://www.unodc.org/e4j/en/terrorism/ module-7/key-issues/limitations-permitted-by-human-rights-law.htmi#:~:text=Such%20

rights %20include%20the% 20prohibitions,pursuit% 200f% 20a % 2Hlegitimate % 2aim.

3 STATE OF EMERGENCY IN THE CONSTITUTION OF VIETNAM

The state of emergency is very close to the issue of war and peace Like many constitutions of other countries, the Constitution of Vietnam also adopted regulations on state of war and peace, and emergency A state of war and peace is decided by National ‘Assembly, while a state of emergency and curfew is decided by the National Assembly's Standing Committee, since the National Assembly does not meet regularly In ordinary process, he National Assembly's Standing Committee makes decision on the state of emergency and the Head of State — the President then declares the state of emergency

In detail, declaring a state of emergency is recognized by the Constitution of Vietnam The National Assembly has the power to decide issues of war and peace; to provide rules on a state of emergency and other special measures aimed at ensuring national defense and security.’ In cases where the National Assembly cannot meet, the National Assembly’s Standing Committee may decide on proclaiming a state of war and report it to the National Assembly for decision at its next sessions; it has also the power to proclaim general or partial mobilization; to proclaim a state of emergency throughout the country or in a particular region.? Meanwhile, the President has been empowered to proclaim or retract the decision on the state of war on the basis of resolutions of the National Assembly; to issue orders on general mobilization or limited mobilization on the basis of resolutions of the National Assembly’s Standing Committee and to declare or lift a state of emergency and to declare a state of emergency nationwide or in a particular locality in cases where the National Assembly Standing Committee cannot meet?

The Standing Committee of the National Assembly has adopted the 2000 Ordinance on the state of emergency to provide the procedure of a declaration of a state of emergency that based on the proposal of the Prime Minister, the National Assembly's Standing Comunittee issues resolution on emergency In case the National Assembly’s Standing Committee can not meet, based on the request of the Prime Minister, the President issues an order to declare a state of emergency

Compared with the legislation on the state of emergency in other countries, there are several raising issues as following:

Firstly, the state of emergency is a special situation, in which ordinary public governance cannot beapplied and citizens cannotexercise their rights and freedoms under the provisions of the law as normal In such a situation, it requires timely reaction from 1 Art 70.13, the Constitution of Vietnam

2 Art 74.9 & 74.10, the Constitution of Vietnam 3 Art 88.5 , the Constitution of Vietnam

‘ Art 16, Ordinance on the state of emergency

26 LAW ON THE STATE OF EMERGENCY - PHAP LUAT VETINH TRANG KHAN CAP

the elites of the countries That is the reason why in other countries, the executive is often given priority in a state of emergency However, according to the current Constitution of Vietnam, in this case, the Prime Minister or the President is not empowered to decide a state of emergency This power belongs to the National Assembly’s Standing Committee Second, the state of emergency is a temporary situation, in which the rights and freedoms of the people may be derogated in limited time In order to avoid power abuse from the executive, national constitutions stipulate that the legislature must be convened no later than 12 days after the declaration of a state of emergency for ratification, modification, or abolition of this declaration In principle, derogation of human rights must be prescribed by an act, in which clearly defines the scope of application on time and space and the act must be adopted by the legislature It may say that there’s no mechanism to avoid such abuse in the legal system of Vietnam

Thirdly, both the Constitution and other domestic legal instruments do not clearly define absolute rights that can not be derogated in any circumstances

In Covid-19 pandemic, the Prime Minister of Vietnam has issued Directive No16 on social distancing It is not a legal instrument but includes legal norms because it allows citizens what to do or not to do in a certain time In Vietnam, the National Assembly or its standing committee - National Assembly Standing Committee has the power to decide issues of war and peace; to announce a state of emergency and other special measures to ensure national defence and security according to Art 70.3 of the Constitution of Vietnam, and the Head of State ~ the President has right to declare what National Assembly decided However, in Vietnam during the Covid-19 pandemic, we barely saw the role of either National Assembly's Standing Committee or the President Instead, the Prime Minister has issued Directive No16 but the point is that it is not a legal instrument according to the law So in this case, we recommend that the emergency power should belong to the executive Besides, all measures that have been applied in an emergency must be reviewed Although Directive Nol6 of the Prime Minister had a good effect on preventing the spread of the virus it also hinder citizen rights implementation by imposing social distancing on the whole territory without risk zoning

CONCLUSION

In the paper, we have tried to explain why the executive should be empowered with the right to declare the state of emergency However, there have been some examples in the history showing that the application of emergency power may violate human rights As mentioned above, The Executive Order 9066 signed by the President Roosevelt in World War II that authorized the Secretary of War and the armed forces to remove people of Japanese ancestry from what they designated as

military areas and surrounding communities in the United States did violate right to non-discrimination which now has been considered as absolute rights Therefore, the emergency power of the executive should be appropriately limited according to the law In particular, derogation of rights must be regulated in a national constitution and laws in compatible with international law on human rights In addition, the legislative and the judiciary may control the exercise of the executive’s emergency power by ratification, modification, or abolition of emergency declaration later In other words, in urgent situations, the executive is obliged to protect the life of the nation by any means, even it has to use measures that may against the rule of law (for example, suspending the implementation of a part of the Constitution or national laws) but cannot completely eliminate the rule of law Accordingly, the remaining branches of power still have the authority to review the legitimacy of executive actions in the state of emergency and above all, the supervision of the people on the executive For example, the Supreme Court may review the decisions in emergencies of the executive that may violate human rights of the citizen, or the head of the executive

must consult with the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council (Constitution of France) These are such good experiences for Vietnam to find proper limits on executive power and to balance between the executive power and the protection of human rights during emergency period REFERENCES

United States Information Agency, An outline of American History, National Political Publishing

House, Hanoi, 2000, p 192 -193

Bui Duc Man, The History of the United Kingdom, Ho Chi Minh City Publishing House, 2002, p.140

David Herbert Donald, “Linconin, the Politican” in Linconin Reconsidered: Essaus on the civil War

Era, New York: Random House, 1956

DCAE State of Emergency, https://www.files.ethz.ch/isn/14131/backgrounder_02_states_ emergency.pdf

Emergency Powers Act of the United Kingdom, https://www legislation gov.uk/ukpga/1920/55/

Neal Devins, Louis Fisher, The Democratic Constitution, Oxford University Press, 2004, tr.110

Steven Wright, The Civil Liberties Act of 1988, https:/Avww.dartmouth.edu/~hist32/History/

$06% 20-% 20Civil% 20Liberties % 20Act% 200f% 201988 htm

Truong Tien Dat, The Constitution’s Notes, 1967, p 279 More detail at: https://drive.google.com/

open?id=1898pjZYaSzZa2BxfRZhhZvPc_J4G3URW