Definition and legal basis of the state of emergency
The concept state of emergency refers to a special legal status in which it is possible to deviate from the otherwise applicable constitutional or legal norms. The state of emergency is regularly declared when there is a threat situation that can no longer be managed with the regular means of state order, for example in cases of serious internal unrest, natural disasters, uprisings, or military attacks. The state of emergency signals a temporary condition in which special measures are taken to restore public safety and order.
Constitutional basis in Germany
Regulations in the Basic Law
The Basic Law for the Federal Republic of Germany does not contain an explicit regulation regarding the term “state of emergency”. However, the relevant provisions can be found in the section on “emergency law” (Art. 115a to Art. 115l GG). Here, a distinction is made between state of defense, state of tension and internal emergencies. Each of these cases establishes special powers of intervention and action, as well as altered competencies for the federal and state governments.
Emergency laws and their structure
In 1968, as part of the Grand Coalition, the German emergency laws were introduced, giving the state of emergency a constitutional foundation. In particular, these laws include provisions on:
- State of defense (Art. 115a GG): Occurs when the federal territory is attacked with armed force or such an attack is imminent.
- State of tension (Art. 80a GG): A less severe case than the state of defense, but with similar legal consequences.
- Internal emergency (Art. 91 GG): Exists in the event of dangers to the free democratic basic order or to the existence or security of the federation or a state.
Measures during the state of emergency
During a state of emergency, numerous fundamental rights may be restricted. These range from restrictions on the freedom of assembly and communication to interventions in the secrecy of mail and telecommunications. In addition, special measures are provided to ensure the state’s ability to act, for example:
- Deployment of the Bundeswehr domestically, under strict legal conditions
- Special powers for police authorities
- Extended directive powers of the federal government over the state governments
Personnel and institutional changes may also occur, such as the extension of the Bundestag’s legislative period.
State of emergency in international comparison
General foundations in international law
Under international law, the state of emergency is recognized as a justifying circumstance, allowing states in certain emergencies to deviate from international obligations. In particular, Article 4 of the International Covenant on Civil and Political Rights (ICCPR) sets out under which strict conditions and for what duration certain rights may be suspended.
Regulations in selected countries
France
France recognizes the état d’urgence, which was implemented on a statutory basis (Law No. 55-385 of 3 April 1955). It can be declared in cases of particular threats to public order and allows for interventions in fundamental rights, such as curfews or searches without a court order.
United States of America
In the USA, under certain conditions, the President may declare a National Emergency . This status enables the executive branch to exercise extensive special rights, such as mobilizing the National Guard or restricting trade and communications.
Legal consequences and oversight of the state of emergency
Impact on fundamental rights
With the declaration of a state of emergency, far-reaching restrictions on individual freedoms are possible. However, certain fundamental rights cannot be restricted in all emergency situations (so-called inalienable rights, e.g., the right to life and the prohibition of torture).
Duration, termination, and oversight
A state of emergency is, in principle, a temporary condition. Its duration and termination are subject to constitutional and statutory controls:
- In Germany, the continuation of the state of emergency must be reviewed regularly.
- The parliaments retain rights of oversight and participation (e.g., requirements for approval, subsequent authorizations).
- After the end of the state of emergency, any infringements of rights must be reversed and the legal order restored to normal.
Distinction from other special situations
The state of emergency is to be distinguished from martial law, the police emergency situation and the disaster situation . Each of these concepts describes different requirements and legal consequences.
- Police emergency: Concerns short-term, regionally limited disturbances of public safety.
- Disaster situation: Is triggered by natural events or major incidents and is regulated by disaster protection law.
- Martial law: Refers to the law in international armed conflict.
Criticism and challenges
The introduction of the state of emergency always lies in the tension between effective threat prevention and the preservation of the rule of law. Potential risks of abuse are criticized, especially due to maintaining exceptional measures for too long or their inappropriate use. Transparency, parliamentary oversight, and judicial review are therefore essential elements to safeguard the rule of law.
Literature and further information
- Basic Law for the Federal Republic of Germany, in particular Articles 80a, 91, 115a-l
- Emergency laws and their history of origin
- International legal treaties, such as the International Covenant on Civil and Political Rights (ICCPR)
Note: This article provides a structured, comprehensive, and objective overview of the legal concept of the “state of emergency,” particularly presenting its significance, legal foundations, effects, and aspects of international comparison.
Frequently asked questions
When and how can a state of emergency be legally declared in Germany?
The state of emergency, often used in connection with the term “emergency,” cannot be declared arbitrarily in Germany, but only under strictly defined legal conditions. The relevant legal bases are found in the Basic Law as well as in the so-called emergency laws. A distinction is made between the state of defense (Art. 115a GG et seq.), the state of tension, and internal emergencies (internal emergency, Arts. 35, 87a GG). A state of emergency can be determined by the Bundestag or Bundesrat, for example when the federal territory is attacked with armed force (state of defense) or in cases of natural disasters and particularly severe accidents to allow the support of the state police by the federal police or Bundeswehr. The declaration is not made by individual persons such as the Federal Chancellor, but within a precisely regulated legislative process and is always strictly limited in time, scope, and region.
What special powers do state organs obtain in a state of emergency?
In a state of emergency, the powers of state organs are in some cases significantly expanded; however, the rule of law is still maintained. For example, the federal government may issue statutory ordinances with the force of law in the state of defense (Art. 115c GG). The fundamental right to freedom of movement can be restricted, and the armed forces may support domestically if and to the extent that police forces are overwhelmed. The emergency laws regulate which restrictions are permissible, but certain fundamental rights (such as human dignity, Art. 1 GG) always remain inviolable. Control mechanisms – such as the redistribution of responsibilities and ongoing parliamentary oversight – serve to limit these exceptional powers.
How long is a state of emergency allowed to last, and what procedures end it?
The state of emergency is always intended as a temporary measure. Its duration largely depends on the respective threat situation. In the case of the state of defense, the state of emergency ends when the threat ceases to exist, whereby the Bundestag and Bundesrat may also determine this earlier (Art. 115l GG). Constitutional provisions require ongoing review of necessity so that termination by parliamentary decision is possible. Corresponding laws and regulations automatically cease to apply as soon as the respective emergency situation no longer exists.
May fundamental rights be restricted during a state of emergency?
Yes, certain fundamental rights may be restricted during a state of emergency, but only within the scope provided by law and with adherence to the principle of proportionality. Rights that can potentially be restricted include, for example, the right to freedom of movement (Art. 11 GG), the secrecy of mail and telecommunications (Art. 10 GG), or the right to inviolability of the home (Art. 13 GG). Human dignity (Art. 1 GG) and the right to life and physical integrity (Art. 2(2) GG), however, remain inviolable even during a state of emergency. Any restriction requires a specific legal basis and is always subject to court review.
What control mechanisms exist to prevent abuse of power during a state of emergency?
To prevent abuse of power, the Basic Law provides for various control mechanisms: Parliament remains continuously able to pass resolutions, and the Federal Chancellor and ministers remain accountable to the Bundestag. Statutory ordinances with the force of law require subsequent approval by the Bundestag and Bundesrat. State measures during a state of emergency are also subject to judicial review by the Federal Constitutional Court or administrative courts. Additional reporting obligations and the involvement of broadly based committees ensure democratic and lawful oversight.
What are the legal consequences of an unlawfully declared state of emergency?
An unlawfully declared state of emergency – that is, a state of emergency declared without the legally required threat situation or in violation of formal requirements – would be unconstitutional. Measures based on this would be contestable, revocable by courts, and could result in claims for damages. Officials who unlawfully bring about a state of emergency or violate laws in the process may be subject to criminal or disciplinary action. The Federal Constitutional Court has the right to revoke such orders or prohibit their continuation.
Do international human rights continue to apply during a state of emergency?
International human rights, as set down for example in the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights, continue to apply even during a state of emergency. However, for example, Article 15 ECHR provides that contracting States may, under strict conditions and only for certain rights, declare temporary exceptions in cases of war or emergency. Here too, human dignity is always protected, and certain rights—such as the right to life or the prohibition of torture—are absolute and may not be restricted under any circumstances. The Federal Republic of Germany is obliged to notify and justify any suspension of rights to international organizations.
