States of Emergency - Centre for Policy Alternatives

neither the ECHR nor the ACHR system requires an ofLicial
proclamation.
As discussed at length before, most domestic regimes require a
formal proclamation of a state of emergency due to the fact that
emergencies and emergency powers usually entail restrictive
consequences for the full enjoyment of fundamental rights, and
also have the effect of altering the institutional balance and
powers and functions between the different organs of
government. Therefore, as Oraá observes, “…a formal declaration
of emergency containing a clear account of all the exceptional
measures taken provides an important element
 of
 publicity
 for
those under the State’s jurisdiction who would require to know
the exact
extent
of
the
limitations
of
their
rights
and the alteration
in
the
distribution
of
powers
among
the
organs
of
the
State…” 234
If these factors constitute the rationale for the inclusion of the
requirement of ofLicial proclamation, Article 4 does not specify
which of the organs of the state as between the executive and
legislature should be made competent to make such a declaration.
This is perhaps as it should be, because each State has its own
constitutional traditions within which, provided that the
normative requirement of formal declaration is present and
effective, each State may choose its own options. Countries such as
South Africa, as we saw before, have devised sophisticated rules in
this respect. By deliberately establishing procedures that require
collaborative inter‐relationships and checks and balances between
the executive and the legislature on the matter of declaration of an
emergency, the scope for unilateralist action by one or the other
organ of government is reduced.
234
Ibid, emphasis added
146