States of Emergency - Centre for Policy Alternatives

government makes a declaration of emergency in bad faith, when
there is in actual fact no emergency or crisis justifying the
adoption of derogating measures. Here the issue of
proportionality does not arise at all.
The second case is where a state of emergency actually exists, but
where the question is whether the crisis is sufLiciently grave
enough to engage the principle of exceptional threat discussed
earlier, or what the ICCPR has deLined in Article 4 (1) as a ‘public
emergency threatening the life of the nation.’ Thus here the
question is one of degree (or proportion) of the threat. However,
as Oraá observes, “this is not what can be called proportionality
stricto
sensu.” 256
The third scenario is where a crisis exists within the meaning of
the concept of public emergency in Article 4 (1), and where the
main question is whether the derogating measures taken by the
State are proportionate to the threat. This is what Oraá identiLies
as proportionality stricto
sensu.
The fourth case is a particular application of the above, in which a
change of circumstances occurs during a declared state of
emergency. As Oraá states, “Emergencies can have a dynamic
nature, in the sense that the gravity of the circumstances can vary
over a certain period of time. In these cases, the measures to deal
with the emergency must also vary in accordance with the
different degree of gravity of the circumstances. There must
therefore be a certain proportionality in each of the phases of the
emergency.” 257
256
Oraá: p.142
257
Ibid
163