Emergency Powers & Human Rights: Shield or Sword?

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Department of Theology

Spring Term 2021

Master's Thesis in Human Rights

30 ECTS

Emergency Powers & Human Rights:

Shield or Sword?

Analysing the emergency powers paradox in a

Southeast Asian context

Author: Paola Zuleta

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Abstract

The state of emergency – the governmental provision of imposing exceptional powers applicable to gencies – is a characteristic shared by a majority of national governments. The possibility to invoke emer-gency provisions, albeit necessary, is inherently vulnerable to abuse. Despite established restrictions on emergency powers in national and international law, some states have been found to act beyond these limi-tations, infringing on human rights in an overly disproportionate and excessive fashion. Such an exercise of emergency powers is contrary to their general aim: i.e., to protect essential human rights in the face of a crisis, be it political, social, economic, or a natural disaster. As such, the state of emergency can be seen as a paradox: both a protection of, and threat to human rights.

The present thesis, departing from an observed presupposition of existing and stable liberal-democratic structures for the established checks and restrictions to apply, placed the scope of analysis in a Southeast Asian context, a region featuring a broad variety of democracy levels. As such, the undertaken comparative study charted continuities, developments and changes pertaining to the enactment of emergency powers vis-à-vis human rights in Thailand and the Philippines between 1996 and 2021. Moreover, motivations behind the declaration of a state of emergency were also observed, as the identification of a situation as exceptional is incidentally the process through which a state of emergency is constructed and becomes usable, which in turn guides the formulation of emergency measures and their eventual impact on human rights.

The observed instances of states of emergency in Thailand and the Philippines illustrate how emergency powers are often followed by a militarisation of the political agenda, and pose a challenge for social trust, especially in contexts such as Thailand and the Philippines, whose legacy of military rule has shaped how political life is enacted in contemporary times. Moreover, said legacy becomes yet another dimension of the state of emergency in that emergency powers are invoked to stabilise the political system so as to protect human rights, but ultimately the former is stabilised through repression of the latter. In this regard, repression of human rights is at its highest when the exception has entered several dimensions of the social fabric, i.e., becoming the norm. Within the framework of the regional War on Drugs and the Covid-19 pandemic, the cases further illustrate not only the intricate links between the juridico-political vis-à-vis repressive and re-strictive consequences, but also how they interact in a context of perpetual emergency. As such, the frequent invocation of emergency powers in the observed contexts encouraged the exercise of discretionary power through a reconceptualisation of the interaction between the political and the social, rending certain individ-uals, deemed a potential future threat, politically mute, overpowered by the sovereign decision. In this way, the implementation of emergency provisions were found to produce, portray, and maintain a largely fictional sense of security in the society.

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Síntesis

El estado de emergencia – la provisión gubernamental a través de la cual se dicta poderes excepcionales pertinentes a una situation de emergencia – es una característica que contempla el sistema jurídico de una mayoría de gobiernos nacionales. La posibilidad de declarar un estado de emergencia, a pesar de ser ocasionalmente necesario, es sin embargo altamente vulnerable ante un probable abuso de autoridad. Dado dicho riesgo, no obstante restricciones establecidas en leyes nacionales e internacionales regulando su uso, las medidas excepcionales adoptadas por algunos países han trascendido la serie de límites y controles contemplados, resultando en violaciones de derechos humanos de carácter inconmensurable y excesivo. Dicha adopción de poderes excepcionales contradice la prerrogativa original de los mismos, es decir, la proteción de derechos humanos fundamentales en caso se presenten graves circumstancias que perturben o amenacen perturbar en forma inminente el orden político, social, económico y ecológico del país en cuestión. Por ende, el estado de emergencia puede ser calificado como una paradoja: simultáneamente actuando como protector y amenaza a los derechos humanos.

La presente tesis localiza su punto de inicio en la identificada presupocisión de una estructura estable propia de un estado democrático de derecho para un funcionamento certero de los establecidos controles y límites. A manera de investigar la validez atribuída a dicha presupocisión, el ámbito de analísis concierne el contexto del Sudeste asiático, una región seleccionada dada su observada variedad de niveles de democracia. El estudio, de carácter comparativo, traza continuidades, desarrollos y cambios pertinentes a la aplicación de poderes de emergencia y sus repercusiones en materia de derechos humanos en los casos de Tailandia y las Filipinas entre 1996 y 2021. Además, las motivaciones tras la declaratoria también fueron observadas e investigadas, dado que la identificación de una situación como excepcional es incidentemente el proceso a través de cual el estado de emergencia se construye y se torna usable, lo que a su vez guía la formulación de las medidas de emergencia y consigna una eventual restricción de derechos humanos.

Los estados de emergencia observados ilustran como los poderes excepcionales en varias instancias conceden una militarización de la agenda política, lo cual circunscribe un reto en lo que concierne la confianza social, particularmente en contextos como Tailandia y las Filipinas, cuyo legado militar forma la vida política contemporánea. Además, dicho legado forma parte de una dimensión adicional del estado de emergencia, de acuerdo a la cual un sistema político inestable amerita la declaración de un estado de emergencia con el propósito de estabilizar el sistema político y proteger derechos humanos. Sin embargo, al final, el primero termina siendo estabilizado a través de la represión del último. En este contexto, la violación de derechos humanos es más prominente cuando la noción de la excepción se vuelve la norma. De esta manera, frecuentes declaratorias resultan en una reconceptualización de la interacción entre lo político y lo social, así silenciando políticamente a individuos considerados una posible futura amenza. Así, se observó que la implementación de poderes excepcionales produce, representa, y sostiene una sensación de seguridad social en gran parte ficticia.

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Acknowledgements

The present thesis constitutes a great personal achievement, and the culmination of an academic journey that started some years ago.

Here, I would like to extend my gratitude to the Department, for facilitating the necessary support amidst a global pandemic; and to my supervisor Helen Lindberg, for the inputs, the guidance, and the encouragement. A big hug directed to my three programme ride-or-dies, thank you for all the laughs and the company. Finally, my moral pillars; mamá por todo el Ñeq'e, to my siblings, and to my main inspiration Peter. Gracias.

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1. Introduction

1.1. States of emergency and human rights: A paradox

The state of emergency - the governmental provision of imposing exceptional powers applicable to emergencies - is a characteristic shared by a majority of national governments throughout time periods and places. For instance, societies as early as the Roman Empire featured advanced proto-structures of comprehensive legal provisions, embodied through phenomena such as the iustitium, a mechanism for the suspension of law in favour of situations of necessity (Nissen, 1877). This concept is in multiple ways surviving in modern equivalent systems, as some of the most common issues underpinning a dec-laration of a state of emergency are amongst others safeguarding national security, upholding law and order, protecting citizens, and generally restoring normality (Molloy, 2020). Moreover, in line with a modern, more universal understanding of human rights, the concept has been further expanded and developed throughout the years into amongst others current provisions for states to derogate from cer-tain obligations established in international human rights law and national constitutions. Especially since the events of 9/11, the invocation of protracted and far-reaching emergency powers has become an increasingly recurrent global phenomenon, so much so that they have been described as being more of a governmental technique than exceptional (Agamben, 2005).

The possibility to invoke emergency provisions, albeit necessary, is inherently vulnerable to abuse. In this regard, what has often prevailed has been a more repressive aspect attributed to states of emergency, despite the general aim being the opposite: i.e., to protect essential human rights in the face of a crisis, be it political, social, economic, or a natural disaster (Wright, 2015; Despouy, 1999). It is in these types of critical circumstances that human rights have been found to be most at risk of being violated, and as such, arguments have been made for an increased human rights protection in those situations, including calls for more sophisticated international supervision mechanisms, constitutional texts, and derogation clauses (Despouy, 1999). However, despite established restrictions on emergency powers in both na-tional and internana-tional human rights law, some states have been found to act beyond these limitations, infringing on human rights in an overly disproportionate and excessive fashion (Malloy, 2020). As such, the state of emergency can be seen as both a protection of, and threat to human rights (Criddle, 2016). This has for instance been made evident in the aftermath of declared states of emergency in response to the Covid-19 pandemic, whereby in some countries, measures have gone beyond public health concerns, creating circumstances favourable to an arbitrary exercise of power and human rights violations (Vassileva, 2020). As such, the human rights norms that remain immune from governmental infringe-ment during states of emergency have been found to be rather few (Criddle, 2016).

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1.2. Purpose and research questions

The present thesis aims to undertake a political study of states of emergency. Subsequently, the purpose is two-fold: Firstly, to examine the correlation between emergency powers and the recurrence of human rights violations in similar socio-political contexts from Southeast Asia. Secondly, to analyse the moti-vations behind the declaration of a state of emergency. These two aspects are mutually reinforcing and interdependent, as the identification of a situation as exceptional is incidentally the process through which a state of emergency is constructed and becomes usable (Wright, 2015), which in turn guides the undertaken emergency measures and their eventual impact on human rights.

The research questions are thus formulated as follow:

Under what conditions do states of emergency feature human rights violations?

What explains the prevalence of human rights violations within the framework of states of emergency in a Southeast Asian context?

1.3. Scope conditions and delimitations

Given the ambiguity of the phenomena of states of emergency, the scope of study is narrowed to a political perspective, here understood as the praxis of enacting legal provisions of emergency powers (Zovatto, 1990). Albeit the relevance of the juridical component is recognised, this thesis is limited to the extent that law provides a framework for the use of emergency powers in practice. This is partly based on an argument laid forth by Loveman (1993), who observes that even if law itself can act as a basis for arbitrary exercise of power, the decision to invoke legal provisions for emergency powers remains exclusively political. This notion has further guided the incorporation of securitisation theory into the frame of analysis, securitisation being conceptualised as a political act and choice (Williams, 2003). Based upon this, the scope of study is further limited to formal declarations. The reasoning un-derpinning this decision is twofold: firstly, a declared state of emergency better correlates to the notion brought forward by Republican exceptionalism wherein the norm and the exception are viewed as sep-arate phenomena. Secondly, a focus on declaration facilitates the tracking and identification of states of emergency for inclusion in the study. Moreover, upon declaration, both the causal circumstances and the measures to be employed are typically publicly presented, which facilitates observation, as concep-tualisations of states of emergency that go beyond formal declarations tend to be undermined by sub-jectivity in whether the case should be considered a state of emergency or not. As will be discussed in more detail in 1.5. Previous research, attempts at systematising states of emergency eventually came to mirror the concept’s ambiguity through their internal multidimensionality and complexity, the emer-gency and human rights becoming intricately mixed in the end. For instance, situations featuring human rights violations could be categorised as de facto (but not de jure) emergencies, which further blurred the definitions. In this regard, the focus on formal states of emergency aims to avoid merely observing

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human rights violations per se, as would for instance be the case in contexts of de facto states of emer-gency. Lastly, the choice of focus was guided by theory, as securitisation theory presupposes an under-standing of security as an act of speech, which locates security within the framework of discursive legitimation and political argumentation (Williams, 2003).

On a geographical scope, the study is limited to the Southeast Asian region, a choice based on the absence of a regional human rights’ supervisory mechanism of the likes that can be found in other continents under the respective treaties, such as the Inter-American Commission on Human Rights (IAHCR) or the European Court of Human Rights (ECHR). Of these, especially the IAHCR has exten-sive experience and praxis on the investigation of states of emergency in Latin America (Fitzpatrick, 1994). As such, a focus on these regions was deemed of less relevance for the analysis at hand seeing how the scope of the present thesis could be argued to be already present in the work of the respective supervisory bodies in these regions. Also, contrary to Latin America, some countries in Asia feature common law systems, which introduce extra dimensions to take into consideration when studying states of emergency as these countries through their constitution have the possibility to employ martial law to achieve the same results without the necessity to officially declare a state of emergency. As Fitzpatrick (1994: 16-17) describes it: “the common-law system places, at best, a modest emphasis upon the for-malities of emergency rule [...] In times of stress, therefore, these governments have a choice between formal emergencies under their constitutions or simply invoking the provisions of their permanent na-tional security laws.” In light of this aspect, the choice to declare a state of emergency in states with a common-law system is of extra relevance to observe. Equally relevant objects for observation are also the identified reasons and motivations behind such a choice. Moreover, the Southeast Asian region, partly due to its vast geographical scope and geopolitical history, features a wide array of systems of government and legislature structures – it is a region with diverse experiences of Asian and European colonial regimes, and in the case of Thailand, the complete absence thereof. The continent is also com-prised of states newly emerging from violent conflict, states with single-party communist governments, economically successful states that can be either formal democracies or semi-authoritarian, as well as new and aspiring democracies (Ramraj & Thiruvengadam, 2010).

On a final note, the focus of the study is limited to emergency powers in times of peace, i.e., outside the context of inter-state or intra-state armed conflict. This is done as means of limiting the scope to the study of human rights violations as prescribed by international human rights law, seeing how an inclu-sion of a context of war or armed conflict would likely require the incluinclu-sion of international humanitar-ian law, a dimension that was deemed to fall outside the scope of the present thesis.

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1.4. Definitions and terminology

The existing literature on the phenomenon of the state of emergency features a variety of definitions and alternative names in different languages and legal systems, such as état de siège, state of exception, martial law, emergency rule, regime of emergency, public emergency, and regime of exception. This variation has been attributed to the fact that the conception of what emergency powers entail varies depending on the place, time, legal definition, governmental capabilities, and political circumstances amongst other factors (Wright, 2015). Moreover, the word “emergency” itself has been described as a concept that is elastic in nature (Lee, 1984), which contributes to its elusiveness regarding attempts to conceptualise it into a precise definition. As such, for this thesis it is deemed necessary to maintain a consistent use of terms, whereby two terms have been chosen and will be used interchangeably through-out: “state of emergency” and “emergency powers” respectively. The term “state of emergency,” is used as a general blanket term for the declaration of seemingly abnormal circumstances requiring the adop-tion of special measures (Wright, 2015). As such, the term does not only encompass situaadop-tions covered by the above-presented terms but does also encompass governmental measures that restrict human rights on a greater level than that normally prescribed for (Despouy, 1999). Furthermore, the terms “state of emergency” and “emergency powers” are in this thesis defined as powers of a coercive nature invoked by, or on behalf of the state in response to a perceived threat or crisis. This crisis, in the view of those who invoke emergency powers, cannot be addressed by “ordinary” legislation (Ramraj & Thiruvenga-dam, 2010: 2).

Exception Norm

Extraordinary measures Emergency politics Discretionary politics

Ordinary measures Proactive politics Normal politics

Figure 1. Conceptualisation of states of emergency. Adapted from Wright (2015).

1.5. Previous research

Often presented by classical thinkers such as Machiavelli and Rousseau as the ideal mechanism for emergency provisions, the Roman dictatorship consisted of the establishment of a specific emergency institution for times of crisis (Machiavelli, 1996). It was designed as a temporary measure – recognition of emergencies’ exceptional nature – and featured the law-regulated appointment of a dictator in charge, which established a law-regulated division between the actors declaring the emergency and the actors implementing emergency powers (Ackerman, 2004). The power vested in the dictator was largely ab-solute with the exception of the drafting of laws, as all regular government institutions remained fully functional and maintained their complete authorities (Machiavelli 1996; Rousseau, 1993). Despite being

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more of a theoretical ideal, it has been described as the prototype for emergency powers in more modern settings (Gross & Ní Aoláin, 2006).

Another classical model of emergency power structuring concerns the French état de siège, a mecha-nism pertaining to the civil-law tradition and most frequently invoked in Latin America (Valadés, 1974; Cruz Villalón, 1984; Loveman, 1993). Described as an institution for legal crises (Radin, 1942), the état

de siège argues that potential emergencies can be anticipated, and as such advocates for the ex-ante

incorporation of possible countermeasures into the legislature. Proactive legislative adjustments in this model aims to legally regulate every step of the emergency declaration process - declaration, designa-tion of measures, establishment of period of validity, and terminadesigna-tion (Gross & Ní Aoláin, 2006). Re-garding the allocation of powers, full jurisdiction on matters of public order would often befall the military, whereas the legislature retained its regular supervisory powers over the executive branch. Dur-ing WWI and the Great Depression, this model was put to the test, and was found to be more complex in practice than theoretically expected.

Lastly, the UK’s martial law-mechanism is considered the equivalent of an état de siège within a com-mon-law structure. The concept of “martial law” is vague and has been found to encapsulate a great variation of government measures and responses to crises of different types. Some examples are military law as well as non-statutory and exceptional powers. Martial law is based upon a range of characteris-tics, e.g., the common-law right wherein forceful responses to force in cases of invasion, riot, or violent disregard of the law are justified, and necessity acts as sole criterion for enactment (Gross & Ní Aoláin, 2006; Fairman, 1943).

In a post-WWII context, thinkers such as Friedrich (1950) and Rossiter (1948) revised various types of emergency powers aiming to identify checks and balances for the protection of democracy from author-itarian tendencies associated with states of emergency. Outside of a European context, states of emer-gency observed formal revisions in a country’s political and legal order and were most commonly in-voked in post-colonial and post-conflict transitions (Ramraj & Thiruvengadam, 2010). More recently, in a post-9/11 context, scholarship has been widely expanded in both sophistication and scope. Con-cerning the latter, scholars such as Ackerman (2004) and Cole (2004) have focused their contributions on a multi-perspective design of preventive states of emergency which prepare the nation for a possible attack without undermining individual human rights. For instance, whereas some argued for legal courts’ qualified role as supervision of emergency powers, others, pointing to an observed tendency on the part of the courts to defer to the executive branch during crises, instead advocate for constitutional limitations on emergency powers.

Based upon the above-described foundations, previous scholarship on states of emergency and emer-gency powers thus largely pertains to a Western liberal-democratic tradition. Departing from this point,

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previous research has been found to take place at two different, yet interwoven, discursive levels – on the one hand specific emergency powers, and their relationship vis-à-vis the concept of legality on the other. The main perspective is one of balance of power (Ramraj, 2010; Freeman, 2003), where the effectiveness of emergency powers is juxtaposed to the threat or dangers their use might constitute for the constitutional or human rights: “No matter how long they last, emergency powers pose a host of difficult trade-offs, between values of liberty, privacy, autonomy, and equality on the one hand, and those of efficacy, efficiency, and security on the other.” (Cole, 2004). This tension does also serve as the departing point for debates focusing on the potential for the preservation of legality while exercising emergency powers. In this regard, these debates can be conceptualised as a response to Schmitt’s notion of the challenge of the legal, and his proposed axiom that in emergencies, “the state remains, whereas law recedes” (Schmitt, 1985: 12). In its responsive capacity, the debate thus aims to answer the question of whether a state can maintain its legality in an emergency, and if so, how. Three general perspectives on the issue have been identified: a constitutional accommodative model, a resistance model, and an extra-legal model.

The constitutional accommodative model focuses on three paths of ex-ante regulation of emergency measures: accommodation, legislation, or interpretation. The logic underpinning this model is two-fold: a pre-existing institutional framework would provide emergency situations with a certain level of legit-imacy, whereas a mechanism ready to be invoked upon necessity saves time that would otherwise have gone to defining rules. Sometimes called “regime of exception” (Delfino, 2000; Cruz Villalón, 1984; Gross & Ní Aoláin, 2006).

On the other hand, the resistance model argues that nothing is justifiable enough for the enactment of extraordinary measures, as it risks leading to negative or permanent changes in the political structure, or to governments reaching for emergency powers in contexts of increasingly decreasing veritable emer-gencies. The model’s main weakness can be said to be its unitary view of the constitutional according to which an overreliance on institutional mechanisms can be perceived as too naïve seeing how it over-looks the reality of emergency powers (Cole, 2004; Dyzenhaus, 2005; Tushnet, 2005). What the models have in common is that whereas they support emergency “accommodations” to a certain extent, at the same time they aim for the maintenance of normal rules and principles as far as possible. As such, the overlapping issue of the debate regards whether ex-ante or ex-post checks on emergency powers are to be preferred in regard to the balance between liberties and rights and the requirements established by national security.

Based on the common understanding of emergency powers as exceptional in nature, scholarship on the extra-legal model has been found to be particularly extensive. Conceptualised as a challenge to the two previous models’ constitutional basis, this course of action, often featured in states with a common-law

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structure, argues for the plausibility of state officials to go beyond the law if deemed necessary: “Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary authority” (Dicey, 2010: 271). As such, it can be said to rest upon the Roman maxim that famously states that “necessity knows no law” (Wright, 2015). Adherent to this argument is Locke’s theory on the preroga-tive power, i.e., the power “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” (Locke & Shapiro, 2003: 172, para 160). The argument behind the power of the prerogative states that the legislative cannot always anticipate and draft laws that cover all situations that might, at some point in the future, be beneficiary or necessary for society. Moreover, the legislative structure might function at too slow a pace to adequately be able to adapt to the necessities and exigencies of the situation at hand (Locke & Shapiro, 2003).

An identified shortcoming of the theory of the prerogative lies in its assumption of an implicit ex-ante public acquiescence (Locke & Shapiro, 2003), which not only excludes the public but also fails to pro-vide strong enough limits on the use of extra-legal provisions, wherein officials are required to openly admit their extra-legal actions and ask for an ex-post public ratification. This is partly based on the assumption that no legal limits can be imposed once a state decides for an extra-judicial course of action (Gross & Ní Aoláin, 2006; Gross, 2003, Tushnet, 2003). Requesting an ex-post public ratification func-tions as a check on emergency powers through the concept of uncertainty. Since it is difficult to antici-pate the public’s response, uncertainty is assumed to be a limiting variable in officials’ cost-benefit calculations when considering an extra-legal course of action (Kahan, 1997; Dicey, 2010). This is es-pecially likely in democratic contexts, where the public might conclude that the undertaken actions violated principles and values deemed as too valuable to be infringed upon. As such, it can be said that the more important the violated values and principles are, the less certain an actor can be of attaining an ex-post ratification from the public (Gross & Ní Aoláin, 2006). In the same vein, when incorporating international law into the mix, the uncertainties and costs for extra-judicial measures increase even more. For instance, if the undertaken measures stand in violation with the state’s international legal obligations, especially those provided by human rights treaties, or if the measures are not encompassed in a suitable derogation, or if non-derogable human rights have been violated, the state might be subject to reparative duties under the pertinent international convention. In this regard, an ex-post domestic ratification is believed to further advance the process of international remedies, as a public acknowl-edgement of undertaken extra-legal measures and the reasons put forward by government justifying such actions can later come under international scrutiny (Gross & Ní Aoláin, 2006).

On a more practical level, the model of extra-judicial measures features both benefits and shortcomings. The benefits mainly correlate with the flexibility it provides governments when dealing with unpredict-able situations (Gross & Ní Aoláin, 2006), a view that builds on the argument that adopting temporary

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measures that go beyond the law in pertinent situations might better preserve the rule of law than an ad-hoc accommodative bending of the law will: “there are times of tumult or invasion when for the sake of legality itself the rules of law must be broken.” (Farnsworth, 2001: 227; Dicey, 2010). On the other hand, a fear of authoritarianism and totalitarianism (Cole, 2003) questions the assumption that a devia-tion from the rule of law might in the long run better preserve it. The argument here states that if the government is permitted to deviate from the rule of law in some instances, there are no guarantees that it would not also presumably choose to deviate in other instances. Connected to this notion, the critique does also question the public’s adherence to the rule of law vis-à-vis the government’s – questioning why the public should respect the rule of law to a higher degree than the government (Ackerman, 2004). From this critical vantage point, permissible deviations from the rule of law are thus feared to give rise to an environment of impunity, wherein governments maintain an emergency mentality throughout so-ciety by claiming that the crisis remains unresolved or that new threats are incoming as means to main-tain the hold of its extra-legal emergency powers. A similar critique was also formulated by Machiavelli, who in Discorsi states that governmental adherence to the laws of the republic is essential for the latter’s success: “I do not believe, there is a thing that sets a more wicked example in a republic than to make a law and not observe it, and so much the more as it is not observed by him who made it.” (Machiavelli, 1996: 93).

1.5.1. The human rights dimension

On a similar note, previous studies of human rights vis-à-vis states of emergency have mainly focused on legal supervision. Despite a breadth of literature on the subject, much of the scholarship has thus focused on means for restrictions of power that can be imposed on, and through, the legislative dimen-sion (Fitzpatrick, 1994). In this regard, the rule of law has been identified as a particularly relevant notion, due to its characterisation as an historical response to arbitrary executive power, which possibly enables human rights violations. This assumption further states that nations engaging in continuous human rights violations, especially of non-derogable rights, cannot be considered to fulfil the basic requirements of a state governed by the rule of law (Alford, 2017).

As such, the question of derogation is how most debates on the legality of emergency powers materialise when it comes to the issue of human rights violations. Here, one of the bigger disagreements regards the question of whether human rights derogations in favour of emergency powers can ever be said to be justified (Gross & Ní Aoláin, 2006). In this regard, some authors do not see states of emergency and democratic protection of human rights as at all compatible (Constant, 1989), whereas others highlight the possibility of better protecting human rights using emergency powers in circumstances that merit their use under supervisory provisions (Aguilar Rivera, 1996; Despouy, 1999, Rossiter, 1948; Ferejohn & Pasquino, 2004). One of the strictest such provisions is the notion of the exceptional threat (Friedrich, 1950; Delfino, 2000), pinpointed as one of the most justifiable reasons behind the declaration and use

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of emergency powers. Despite difficulties in observing such a phenomenon in practice, the literature concludes that it remains of relevance to establish which types of exceptional threats are deemed as justifying the employment of emergency powers as a step in considering their legitimacy. This can be said to go hand in hand with the theoretical conceptualisation of human rights as being an enabling factor for collective deliberation on themes regarding the aspects of state power that can be deemed justifiable and acceptable (Sen, 2004). As a response to this identified need, states of emergency were subject to categorisation and definition attempts, which aimed to yield a coherent understanding of the phenomenon. This was further theorised to better inform the design of supervision mechanisms of emer-gency powers. These attempts yielded different typologies of emeremer-gency contexts, three of which are presented below.

Following the 1984 adoption of the Paris Minimum Standards of Human Rights Norms in a State of Emergency, the International Law Association (ILA) and its Committee on the Enforcement of Human Rights Law set to address the perceived problem of human rights monitoring in the contexts of declared emergencies (Fitzpatrick, 1994). Recognising states of emergency as being not only factually different and unique, but also transcendent over time, the ILA Committee sought to conceptualise states of emer-gency into a typology departing from a severity threshold based upon the derogation clauses in the ECHR, ICCPR and American Convention on Human Rights, respectively (Fitzpatrick, 1994). The final typology consists of six categories which divide the concept along the lines of de facto and de jure states of emergency, depending on the presence of an official declaration. The typologies also take into ac-count discrepancies between civil-law and common-law structures as well as proportionality, which also lead to the inclusion of “ordinary repression” as a typology category.

The second typological attempt was undertaken within the framework of a study on war regimes in France, Germany, the United Kingdom, and the United States (Fitzpatrick, 1994), and it is amongst others from this study that the applicable differences between emergency powers in a civil-law and common-law system respectively become apparent. Despite the rather narrow and Western-centred scope of the study, its mapping of differences in emergency powers’ formalities was nevertheless deemed a relevant perspective to highlight.

The third typological attempt was spearheaded by the UN Sub-Commission on Prevention of Discrim-ination and Protection of Minorities.1 Out of concern over the often-reoccurring declarations of states of emergency in some states and suggesting their likely connection to the declining status of the human rights situation in those same states, the Sub-Commission commissioned a detailed analysis on the mat-ter (Despouy, 1999). It is from this initiative that the so-called “reference model” was born as compiled

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by Nicole Questiaux in her report and typology of emergency powers (Fitzpatrick, 1994). What the study and typology contributed with was decisive for a further understanding of states of emergency as it identified the consequences it may have on human rights and formulated, amongst others, the recom-mendation of maintaining a permanent follow-up mechanism (Fitzpatrick, 1994).

Despite the important contributions of this study, the resulting typology is not deemed comprehensive as it holds a formal view of states of emergency and their declaration, excluding non-declared but argu-ably de facto cases of state of emergency. For instance, the typology does not take into account the provisions available to states with a common-law system, wherein perceived crises can be managed either through an increased implementation of previously enacted permanent national security laws, or the rapid issuance of new national security legislation, without needing to resort to the declaration of a state of emergency (Fitzpatrick, 1994). Nevertheless, this is a study that incorporated the relation of states of emergency vis-à-vis human rights into the UN agenda, evidenced by Resolution 1985/37, which authorised the appointment of a Special Rapporteur on the matter.

The overall aim of the mandate of the Special Rapporteur was to establish and update an annual list of states that from 1 January 1985 had either extended or declared a state of emergency, analyse states’ adherence to internal and international norms guaranteeing the legality of the state of emergency, and study the repercussions that adopted emergency measures had on human rights. In this regard, Despouy (1999) authored one of the more prominent studies on the suspension of certain human rights and state obligations in times of emergency as part of his mandate as UN Special Rapporteur. The study departs from international norms and formulates relevant principles and norms for the supervision and regula-tion of suspended human rights. As such, the Special Rapporteur’s expected contriburegula-tion lay in the establishment of normative directives. These directives were in turn expected to facilitate the drafting of national legislative dispositions specific to states of emergency as well as to yield precise recommen-dations on the best manner to frame the matter in the future (Despouy, 1999).

Furthermore, these annual reports were supposed to serve as the foundation for a database of states of emergency aimed at facilitating their monitoring by the United Nations. However, the project came to face several challenges during its implementation, resulting in a largely incomplete end-product. For instance, a shortcoming in the reports concerns the use of incoherent definitions for a state of emer-gency, which resulted in the inclusion of different types of situations, such as contexts that were de facto but not de jure states of emergency (Despouy, 1999; Wright, 2015).

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1.6. Research gap

Studying the recurrence of declarations of states of emergency is of relevance given how the exercise of emergency powers has been observed in several countries, often without regards to the national gov-ernmental structure – i.e., states of emergency are recurrent in both democracies and autocracies alike, something that has further been observed in the context of the Covid-19 pandemic. Moreover, a com-prehensive understanding of how exceptional situations fit together with equally exceptional measures is worthwhile, considering how the exceptional nature of states of emergency have in previous scholar-ship been equalised with more discretional and arbitrary forms of power (Wright, 2015). Nevertheless, despite their often reoccurrence in contemporary affairs, studies on states of emergency have since the end of the mandate of the UN Special Rapporteur in 1997 decreased in scope or been targeted to a post-9/11 and/or North American context. Whereas the work of the Special Rapporteur constitutes a relevant starting point for the study of states of emergency and human rights, the UN project faced several chal-lenges, the shortcomings of which ought to be considered. For instance, as mentioned above, one of the major challenges of the otherwise exhaustive reports by the Special Rapporteur was the absence of a coherent conceptualisation of states of emergency, which accurately illustrates the difficulties associ-ated with the identification and conceptualisation of the phenomena. Another shortcoming was the re-ports’ overreliance on news-media and governmental reports, which left the Special Rapporteur with incomplete information as several instances of states of emergency often feature a promptly enforced censorship on news outlets as part of responsive measures. This is a particularly prominent feature in more repressive incidences of states of emergency, which incidentally was the Special Rapporteur’s main conceptualisation of the phenomenon (Wright, 2015). Moreover, regarding governmental reports, when facing a context of emergency, few countries have been found to timely (or at all) inform and send the pertaining reports to the required instances, such as the UN Secretary-General, or the UN Hu-man Rights Commission (García Sayán, 1989). These are aspects that make the data insufficient and difficult to compare over time.

Following the year 2001, the debate on states of emergency and much of the literature has been largely focused on the post-9/11 emergency powers related to a War-on-Terror-framework, while to a certain degree disregarding other important embodiments of the concept. Moreover, studies pertaining to a 9/11-perspective tend to be largely based upon legal approaches, which also limits the political perspec-tive of the study on states of emergency. Without undermining the importance and relevance of these types of studies, the present thesis argues for the need to incorporate other contexts and perspectives. In this regard, an empirical political study from a Southeast Asian context is deemed to be of relevance for broadening the existing knowledge on states of emergency on a global scale. This is based upon an identified scarcity of studies undertaking observations of states of emergency in these jurisdictions,

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something that is unfortunate since the experiences of emergency powers in Asia are varied and empir-ically rich (Ramraj & Thiruvengadam, 2010). Moreover, in general terms, emergencies and extra-ordi-nary situations characterised as threatening the life of the nation have been identified as one of the greatest dangers that constitutional principles and freedoms face, seeing how these circumstances might enable a more prominent inclination towards a disregard of civil liberties, whereas upholding checks and balances may be demoted from its previously priority role (Gross & Ní Aoláin, 2006). A large part of the theoretical projections made in this regard stated that under emergencies, those who were “ene-mies of democracy” would, if given the opportunity, abuse the guarantees provided by the rule of law and destroy democracy from within (Loewenstein, 1937; Garnett, 1990:). This notion is further con-nected to the identified assumption that human rights are best protected within a consistently democratic framework. As such the reasoning behind this thesis’ political perspective aims to go beyond previous scholarly focus on formal or normative approaches, such as previous attempts to formulate recommen-dations for the supervision of emergency powers and the protection of human rights and democracy.

The pervading problematisation of the points highlighted above regard the fact that most theories (and their presented solutions) assume existing or functioning liberal-democratic governmental institutions for the successful application of the deterrent and control mechanisms presented therein (Freeman, 2003). For instance, Locke’s theory on the power of the prerogative, albeit illustrative, remains of lim-ited application for a Southeast Asian context mainly due to the assumption of existing governmental institutions, functioning legal infrastructure, normative commitment to democracy and social account-ability culture. In the Southeast Asian region, many of these prerequisites are either lacking or in weak conditions, for instance due to post-conflict circumstances, or a long tradition of military intervention in civil affairs, i.e., when the civilian control over the military is weak, or lastly in contexts with high rates of impunity concerning abuse of power by the state (Ramraj, 2010). In an illustrative example, Ackerman (2004) when discussing terrorist attacks in the context of US society and government, stated that such actions would not pose an existential threat to the nation, as the government “would survive the day” (Ackerman, 2004). However, this cannot be said to be the case in Southeast Asia, as for in-stance, in post-independence East Timor, the governmental structure itself was that which was under threat and the fabric of the new nation-state far from stable. Furthermore, some of the above-presented theories advocate a scope of relevance and generalisation that goes beyond democracies in a North American context. For instance, Gross (2003) states that his study is neither a post-9/11 nor a US-inclined one, whereas Ackerman (2004) purportedly focuses on liberal democracies, with the occasional focus on “the distinctive character of the US constitution.” However, despite these claims, the theories are deemed being fundamentally underpinned on a presupposition of liberal-democratic institutions for their meaningful applicability. For example, the extra-legal model, and especially the element of an

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post public ratification remains dubious – mainly seeing how this would presuppose a candid and trans-parent political environment, something that can be said to be more of an ideal, even in established democracies. Moreover, a public ex-post ratification is built upon the assumption of existing and/or enabling mechanisms for public deliberation (Gross, 2003). Existing and functioning liberal-democratic structures or institutions are not automatically present in all contexts, which in turn can be said to ques-tion the universal scope of relevance of these theories. This is of special relevance regarding the fact that after WWII, constitutional provisions for emergency powers have fundamentally never been in-voked in “advanced democracies” (Ferejohn & Pasquino, 2004: 2010), whereas “emergency powers remain alive and well in less stable democracies” (Ferejohn & Pasquino, 2004: 217).

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2. Methodology

The thesis will survey data and information regarding state behaviour under emergencies, and categorise identified changes, continuities, and developments in the national human rights situation which can be associated with the exercise of emergency powers. In this regard, a qualitative methodology was deemed suitable, as the concept of state of emergency is a descriptively “thick” variable with many dimensions, and thus difficult to translate quantitatively in a way suitable with the aim of the thesis. For instance, to mark the number of times an emergency has been declared is not enough, since such an approach would falsely convey the notion that emergencies are always declared to the same end and for the same rea-son(s), a notion that undermines the envisioned research purpose and design. The analysis further ap-plies a so-called “building-blocks” analysis whereby a block represents a study of a type or subtype of a particular phenomenon and as such fills a gap in the overall theory (George & Bennett, 2005). This is an effective approach for theory testing and development, and here consists of the formulation of a typology of states of emergency undertaken on behalf of different goals. The benefits of employing this type of methodological procedure include narrower concluding observations, which in turn result in more precise generalisations and thus a higher level of validity (George & Bennett, 2005).

2.1. Scientific premise

This study features interpretations, case studies and tendencies. Connected to the overall lack of a com-prehensive knowledge-frame regarding the political and practical enactment of states of emergency, the study is largely deductive as means to observe the nature of the correlation between emergency powers and human rights as well as between social research and theory (Bryman, 2012). This means that there is a constant and systematic interaction between concepts, contextual information, and findings (Glaser & Strauss, 1967). Moreover, the thesis incorporates the perspective of ontological authenticity in order to facilitate analysis of intricate interactions between society and governmental and legal institutions, as it visibilizes the levels at which political and social interactions take place (Bryman, 2012). One of the advantages of forming the analysis in this fashion is the facilitation of observations concerning social and political behaviour over time and within local characteristics.

2.2. Research design

This study collects and compares data on two selected countries, and thus undertakes an across-case comparative study with a small-N approach. For the case comparison, the strategy of Mill’s method of difference is employed – whereby the chosen cases are as similar as possible on identified control var-iables (George & Bennett, 2005). One of the benefits of a comparative methodology lies in the produc-tion of strong outcomes as a result of a selecproduc-tion process based on similarity, whereas a disadvantage concerns a smaller generalisation scope, seeing how the method cannot possibly encompass each and every alternative reason explaining covariation.

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2.3. Case selection

As such, in order to enable meaningful comparisons, the cases for selection need to be as similar as possible. To this end, the following control variables have been identified and are kept constant through-out the case selection. Their inclusion was motivated by previous research on the determinants of the recurrence of human rights violations in contexts of states of emergency.

1. Weak political infrastructure

As was identified above, previous research and theories of states of emergency have been found to presuppose a stable presence and function of a liberal-democratic infrastructure of governance. As such, countries involved in analogous unstable political processes are considered for inclusion into the study. This was deemed to be of high relevance seeing how the contextual political systems wherein emer-gency powers are exercised and established plays a key role on their impact upon human rights, be it feebly functioning democracies, a well-established democratic order, or an autocracy (Freeman, 2003). Several countries in Southeast Asia feature a democratic transition in combination with authoritarian inclinations, something that contributes to a weak political infrastructure. In this regard, the operation-alisation of this variable is based on the so-called “first political question,” which proposes that for political morality and constitutionalism, some basic provisions need to be established. These are as follow: order, protection, safety, trust, and the conditions of cooperation (Williams & Hawthorn, 2008).

2. State party to the International Covenant on Civil and Political Rights (ICCPR)

Seeing how the theory pertaining to proportionality is based on the conceptualisation as stated in Art 4(1) of the ICCPR, the countries to be observed need to be state parties to the Covenant. Otherwise, the observation of proportionality would not be entirely meaningful for the thesis. The variable is opera-tionalised according to the country’s ratification status. As means to provide a meaningful controlling and coding of variables, ratification status is the focus, as the country in question needs to be considered bound to the treaty.

Moreover, an identified shortcoming attributed to the non-binding ASEAN Human Rights Declaration, adopted 2012, states that “for the ASEAN States which are relatively uncommitted to international human rights treaty regimes, participating in the ASEAN mechanism may reduce pressure to recognise international norms” (Doyle, 2014: 67). In this regard, seeing how a state party to the ICCPR is treaty-bound to inform the UN Secretary-General upon the declaration of a state of emergency, as well as of its reasons, ramification, and expected duration, this provision was deemed relevant particularly in what pertains the access to material on the subject, but also as a means of controlling for the identified ASEAN Human Rights Declaration risk.

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3. Civil law/Common-law legal structure

As elaborated above, civil-law and common-law legal structures provide different provisions for the exercise of emergency powers. Whereas a civil law structure might advocate for a more constitutionally accommodating model, a common law system might rather be inclined towards the extra-legal model.

4. Post-colonial/post-conflict transition/transitory status

As stated in 1.5. Previous research, transition either in a post-colonial or post-conflict transition has been pinpointed as one of the main reasons for the invocation of emergency powers in the Southeast Asian region. Seeing how such a transitory status does often presuppose a future democratisation, coun-tries which cannot be said to be stable/full-fledged democracies are included. This variable does also partly connect to the first variable regarding the assumption of functioning political institutions.

After application of these variables in the selection process, the cases chosen for analysis are the Phil-ippines and Thailand, contexts which were deemed appropriate cases for analysis due to the following reasons:

Despite the Philippines being a republic and Thailand a monarchy, both countries are officially charac-terised as constitutional in nature. Moreover, the President and the King respectively are both the as-signed Head of State, whereas the political power attributed to Thailand’s monarch can to some extent be compared to that of a President, particularly pertaining to emergency powers. Moreover, due to a relatively disproportionate allocation of powers between governmental entities in both countries, both have been identified as featuring a weak political structure. For instance, the modern Thai state structure has been described as being located in a deadlock between dominant but progressively challenged au-thoritarian tendencies, and a growing but still fragile democratic movement. In addition, the frequently common involvement by the elites and the monarchy at the cost of public participation in constitutional matters has resulted in an unstable and weak democratic structure. Meanwhile, the regime in the Phil-ippines has been described as a weak and low-performing democracy (The Global State of Democracy Initiative Philippines, Undated)

Both countries are also state parties to the ICCPR, having ratified it in 1986 (Philippines), and 1996 (Thailand).2_{In this regard, as the research design aims to compare the chosen cases over time, the}

start-ing point has been set to 1996, year when Thailand became a state party to the ICCPR. This way, this control variable remains constant.

2_{Regarding Thailand’s ratification, the country has a relevant reservation regarding ICCPR Art. 4, which concerns the}

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Interestingly, both countries have been found to neither feature an entirely conventional civil law nor an entirely typical common-law legal system. Instead, the systems featured in both countries are so-called pluralistic systems, best described as a hybrid between civil and common law, as a remnant of a colonial past and extensive foreign influence in the region. The legal system of the Philippines has a civil-law foundation, legacy of Spanish law, which after the hand-over to the US, came to be influenced by common-law traditions (Mahy & Sale, 2015). Similarly, Thailand’s legal system is based on a civil law foundation and features broad influences from the common-law tradition (Kiettikunwong, 2019). Emergency provisions enacted within a hybrid system will most likely have analytical relevance, thereof the necessity of maintaining this control variable constant, even if it must be partly amended so as to encapsulate a hybrid legal system.

Regarding the control variable of a transitory state, both countries feature to some extent internal armed conflicts, albeit mostly localised – in the Philippines to Mindanao, and in Thailand to the southern prov-inces – and small in scale due to inactivity (Thailand) or a signed peace agreement (Philippines). As such, the countries cannot be classified as being in a post-conflict transitory state. Moreover, whereas Thailand was never colonised, the Philippines gained full independence in 1946, and as such has a trajectory of a 75 year-long democratisation process. In this light, the countries cannot be classified as post-colonial transitory states either. However, both countries have declared a War on Drugs (the Phil-ippines in 2016, Thailand in 2003), which in many instances have coincided with the exercise of emer-gency powers. This does arguably place the countries in a transitory status, considering the War on Drugs as relatively subdued in scale, even if violent incidences are still recorded in both countries. Moreover, the War on Drugs (and the Covid-19 pandemic) can also be considered as the exception in a norm-exception dichotomic conceptualisation of emergency provisions.

Lastly, the cases were also chosen based on the availability of data.

2.4. Material

Considering the legal base that underpins states of emergency, the evident first step was the consultation of respective national constitutions, adherence to and/or signatory status to relevant international con-ventions as well as any secondary legislation on state of emergency to discern any recent changes and the institutional forms at hand, for instance through observation of the legal praxis and jurisprudence of the International Court of Justice, as well as any national reports on a declared emergency. Secondly was the search for reports and data on current tendencies of states of emergency as well as human rights concerns in the chosen countries, something which was achieved through analysis of a variety of sources as follows. UN resolutions and responses by the states in question compiled upon request, observations

the Convention as requiring a party to the Convention to adopt measures in the fields covered by subparagraphs (a), (b), and (c) of that article only where it is considered that the need arises to enact such legislation.”

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and reports compiled by the Special Rapporteur, Depositary Notifications by the UN Secretariat on the subject, the precedents established by international supervisory mechanisms with regional or universal competence such as the UN Human Rights Committee, by specialised agencies such as the International Labour Organisation and its Committee on Freedom of Association, the World Health Organisation, as well as the precedents established by non-treaty bodies such as the Interparliamentary Union’s Com-mittee on the Human Rights of Parliamentarians. Thirdly was the incorporation of a more critical and oftentimes local perspective through human rights reports by NGOs featuring their observations on the subject, such as Amnesty International and Human Rights Watch, complemented with reports by local NGOs if available. Lastly, press articles were incorporated as a complementary source to further expand the local context dimension. A more critical view of the material used highlights the importance to consciously consider the analysed context’s propensity to underreporting, or of hidden data, elements which affect the material available for observation, and extendedly the inferences drawn thereupon.

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3. Theory section

3.1. The construction of the state of emergency: the norm vs. the exception

The theoretical understanding of states of emergency is in this thesis conceptualised in its two mutually cohesive dimensions: the declaration of a state of emergency, and the adoption of emergency measures, respectively. These are interpreted through a lens of Republican exceptionalism, a current of political thought which states that, at least in theory, the exception and the norm are separated from one another (Lazar, 2006). The theoretical current opposite to Republican exceptionalism is decisionism, which con-ceptualises the world in inherently chaotic terms, and so to a certain extent advocates a view of the exception as the rule. For this thesis, the lens of Republican exceptionalism was chosen due to its flex-ibility, as it foresees the co-existence of normal and exceptional situations, contrary to decisionism.

A declaration of a state of emergency, the first dimension of its conceptualisation, is according to Re-publican exceptionalism framed as the dichotomy between the norm and the exception, and the state’s possession of available protective responses to be invoked in a crisis, an understanding which views the exception as being just that, the exception. In this regard, classical thinkers such as Machiavelli (1996) and Rousseau (2002), departing from a view of the Republic as the only sphere wherein justice was possible, saw the invocation of protective special measures as justified when aimed to restore the ex-traordinary back to a state of normality. The discourse was further problematised by Friedrich (1950), who argued that despite clearly established lines between what constitutes the norm and what constitutes the exception, in practice, Republican exceptionalism may in many instances turn into decisionism. An example in this regard is the context observed in the US after 9/11 (Wright, 2015). Whereas on their part, Gross & Ní Aoláin (2006) problematise the norm-exception dichotomy through observations on how the significance attributed to the exception and/or the norm is subject to change after each declared exception. Upon declaration, the exceptional is theorised to become the new normal, which in turn places the attributed connotations of norm-exception as co-existent in a perpetual state of change. These problematisations of Republican exceptionalism are of relevance in that they challenge the dichotomy of the exception vs. the norm and highlight the fact that in practice, a division between the exception and the norm may become obscured. In addition, regarding practical implications from a political per-spective, the definition of a state of emergency remains fragmented. For instance, constitutional law has come to define an extraordinary situation as a threat that is exceptional in nature, albeit differing opin-ions prevail regarding its significance (Wright, 2015). In this regard, derogation clauses in international human rights treaties employ the substantive principle of severity as the threshold of what can be qual-ified as an emergency. Despite a similar focus, the terminology is where the treaties differ from one another. The ICCPR is arguably the more narrowly defined: a public emergency threatening the life of the nation, whereas the European Constitution of Human Rights (ECHR) shares the notion of a threat

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to the nation and adds “war” to the prerogative. The American Convention on Human Rights (ACHR) goes even further through the addition of “war, public danger, or other emergency that threatens the independence or security of a State Party.” Moreover, while the notion of “the life of the nation” implies a restrictive interpretation, its attempted scope remains unclear. Suggestions to better define that ambi-guity have suggested that such a conceptualised emergency ought to threat the functions of constitu-tional institutions, such as the legislature or judiciary (Hartman, 1981). For instance, according to Delfino (2000), that which makes a situation extraordinarily threatening is the extent to which said situation has the capacity to impede the state’s normal functioning. Despouy (1999) on the other hand means that a situation is exceptionally threatening first when the life of the community is at stake. Meanwhile, in the aftermath of 9/11, a more political approach to states of emergency has been devel-oped in the form of securitisation theory, a perspective arguing that the extraordinary is more a framing process wherein issues become securitised – they are presented to citizens as threats, or matters of se-curity (Neal, 2006). Huysmans (2008) builds upon this notion by arguing that what actually makes a situation extraordinary is not so much the level of violence present as the politicisation of the phenom-enon. However, despite competing conceptualisations, some general agreement remains on some types of circumstances deemed exceptional, such as natural disasters, socio-economic crises and armed con-flict (Klein, 2007; Zovatto, 1990; Loveman, 1993). Frankenberg (2014) further adds organised crime to the list. As such, over time, states have been found to declare states of emergency against threats of military intervention, political unrest, criminal violence, general civil unrest, labour strikes, spread of diseases, or collapse of state institutions (Criddle & Fox-Decent, 2012).

Furthermore, the declaration of a state of emergency, i.e., the identification of a situation as extraordi-nary, remains at the sole discretion of the state: “For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists” (Schmitt, 1985: 13). For instance, despite frequent reports on observed human rights violations during states of emergency, most reports do not question the state’s decision to declare an emergency in the first place. As such, it was deemed relevant to incorporate the social construction and legitimisation of the phenomenon into the scope of study to better interpret how states of emergency are socially under-stood, motivated, and created. Pertaining to this aim, the theory includes some aspects of securitisation theory, whereby the social audience equip governments with a moral authority, which then acts as the legitimising and enabling force behind the use of emergency powers (Roe, 2008). Here Schmitt’s theory of the political is problematised and drawn upon in tandem with the Copenhagen School Securitisation Theory. While the two are not merged, what the following section does is to acknowledge the applica-tion of the concepts laid forth by Schmitt, primarily the friend-enemy dichotomy, the excepapplica-tion, and the sovereign decision as catalysts for the identification of key elements of the political. The aim of this exercise is to indicate how the theories intersect in key places and highlight how Schmitt’s ideas inform

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relevant aspects of securitisation theory as framework for the observation of declining human rights protection in states of emergency.

3.2. Ex-ante declaration: The political decision

Schmitt’s conceptualisation of the political and the sovereign decision is captured in the identified di-chotomy between the friend and the enemy: “The specific political distinction to which political action and motives can be reduced is that between friend and enemy” (Schmitt, 1996: 33). The enemy figure is thus seen as that which enables the political. Such an enemy figure comes into being through a deci-sion on a) the existence of an enemy figure, and b) the type of emergency that the enemy figure is perceived to give rise to. Underpinning such a decision is an assumed predisposition to engage in a life-and-death-struggle with said enemy if necessary (Williams, 2003; Schmitt, 1996). This is something that translates well into the principal motivation behind declarations of states of emergency, i.e., the security (or life) of the state. As such, some tentative guidelines for the declaration of a state of emer-gency often include the concept of the exceptional threat as basis for justification.

A possible theoretical counterargument in this regard might question the applicability of the friend-enemy dichotomy to an observation of states of emergency in times of peace as envisioned by this thesis. The argument then pointing to an interpretation of the dichotomy as applicable to zones of active combat in the first hand. However, in his references to the figure of the enemy, Schmitt (1996:28) states that “it is sufficient for his nature that he is, in an especially intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible.” From this it can be inferred that neither a life-and-death-struggle nor active combat is necessary for the friend-enemy distinction to ap-ply. Especially the statement “in the extreme case” can be said to encapsulate this implicit meaning, i.e., that the enemy figure exists (and poses a threat) because despite the absence of combat or killing, there is an inherent possibility of the enemy manifesting in “the most extreme” of circumstances. In this regard, the decision of what constitutes the most extreme of circumstances would, according to the theory, fall upon the sovereign, a notion captured in one of Schmitt’s (1996: 30) most well-known aph-orisms, stating that “the sovereign decides whether there is to be an extreme emergency as well as what must be done to eliminate it.” This departs from a notion that the ramifications of the emergency cannot be formulated beforehand in legislative texts but are rather something that is determined through the decision. Moreover, seeing how these ramifications are constructed with reference to the friend-enemy dichotomy, the decision on who is friend, and who is foe, does arguably also extend to the sovereign.

Further illustrating the ambiguity of the emergency phenomenon, despite attributing the decision pre-rogative to the sovereign, the notion of the decision is further theorised to not only take place at an executive or “public” level, but to also be found in so-called “micro-decisions,” in line with the argu-ment laid forth by Honig (2009). The notion of micro-decisions can be said to be based on Huysmans