On May 22, 2022, Hungary declared a state of emergency in response to the “emergency” posed by armed conflict in Ukraine and Russian aggression. This is the latest in a string of state of emergency declarations that allowed Prime Minister Viktor Orbán to continue illiberal practices that have pushed Hungary into a democratic backslide. The country has been in a permanent state of emergency since 2016 when the government declared a “mass migration emergency” which was extended through 2020. It came at no surprise that the legitimate public health crisis posed by the COVID-19 pandemic led to yet another state of emergency declaration and further expansion of government power.
On March 11, 2020 the Hungarian government unilaterally declared a state of danger pursuant to Article 53 Paragraph (2) of their constitution which effectively allowed the government to suspend laws and rule by degree without parliamentary consent and limited judicial oversight. The government majority quickly passed a bill in the National Assembly which severely curbed civil liberties in the name of the pandemic; measures imposed prison sentences for offenses such as disseminating false information and suspending elections during the pandemic. Although the State of Danger ended in June 2020, the government passed over 150 decrees, many of which were incorporated into ordinary law in the “Transitional Act,” which granted a new set of emergency powers under a “state of crisis” for an indefinite amount of time and allowed the government to declare further states of crisis without parliamentary approval. The state of crisis was renewed until June 2022 and in the interim,the government consolidated support for a constitutional amendment that allowed for “special legal orders” to declare a state of emergency in the event of “armed conflict, war, or humanitarian disaster in a neighboring country.” This allowed Orbán to immediately implement new emergency powers after the expiration of the COVID-19 state of crisis because of security risks posed by the war of Russian aggression in Ukraine.
Hungary’s International Human Rights Obligations and States of Emergency Under International Law
Action taken under a state of emergency which restricts civil liberties carries international human right law implications, and Hungary, party to several multilateral human rights treaties, is not keeping up with its international human rights obligations. As a party to the The International Covenant on Civil and Political Rights (ICCPR) and The European Covenant of Human Rights (ECHR), Hungary has international human rights obligations and is subject to international law in regards to derogations from human rights in a state of emergency. Under international law, certain emergency situations may justify the derogation from certain human rights obligations under specific limitations. ICCPR acknowledges that States may need additional powers to address emergency situations in Article 4 and allows for derogation from treaty obligations insofar as “necessary, proportional, non-discriminatory, and provided in law.” Such derogations are not permitted for certain human rights (right to life; right to freedom from torture; right to freedom of expression and religion, etc.) and any derogation must be temporary for the duration of the crisis. The ECHR largely follows the ICCPR framework in regards to derogations in a state of emergency. Article 15 allows for derogations only where “strictly required” and following formal notice on the part of the member state.
Hungary’s use of emergency powers extended well beyond the legal scope of Article 15 of the ECHR and Article 4 of the ICCPR. Although both the ICCPR and ECHR allow for derogation from human rights obligations in a state of emergency, because Hungary did not formally derogate from it’s human rights obligations, all restrictions on human rights were invalid under international law. Second, even if Hungary had gone through the formal notification process, the suspension of human rights protections was not necessary or temporary as required by international law. By transitioning emergency powers and human rights restrictions into ordinary law, many of the restrictions imposed under the state of emergency were extended well beyond the necessary timeframe. Moreover, despite the end of the COVID-19 state of emergency and state of crisis, Hungary continues to operate under emergency powers of decree, now under the pretext of the Ukrainian War, giving emergency restrictions on human rights a permanent and lasting effect. Thus, the derogations were not merely a temporary necessity during a public health crisis as required under international human rights law. Third, international human rights law requires any restriction during a time of emergency be provided for in law. Although Hungary did formally pass laws that restrict human rights according to legislative procedure, the laws were not framed as an official derogation from human rights obligations and lack of parliamentary and judicial oversight further prevents any assessment of proportionality and bypasses the requirement of legality. Finally, the non-derogable right of freedom of expression was restricted contrary to Article 4 of the ICCPR and Article 15 of the ECHR. Criminal punishments for actions “capable of obstructing the efficiency of protection efforts” during the application of a special legal order, are still in place and restricting freedom of expression. It is clear that the extraordinary expansion of government authority during the COVID-19 pandemic was not necessary and resulted in a non-temporary government infringement on human rights. Thus, the purported state of emergency is not a valid derogation from Hungary’s international human rights obligations.
Why Are the Formalities of International Human Rights Law Important?
In a time of crisis, the need for Executive efficiency and decisiveness is a powerful narrative that can succeed in consolidating power and bypassing democratic checks and balances. The “imminent threat” narrative plays on the need for safety and often is popular and supported by political institutions. Unfortunately, it also opens the door for unaccountable government, notably the narrative draws can be an effective tool in side-stepping normal accountability measures in democratic regimes. Hungary’s democratic backslide is not solely the result of emergency powers, but Orbán has used state of emergency powers to successfully avoid any debate or opposition, governing out of the public eye and without accountability. It is important to assess the government’s illiberal tendencies from the perspective of state of emergency derogation from human rights obligations because the framework could be an effective tool in curtailing further abrogation of human rights.
There are competing views on which approach to take in the face of potentially illegal derogations from international human rights obligations. Following the human rights abuses committed after 9/11 under the pretext of defending against terrorism and increasing national security, human rights organizations and scholars push for heightened scrutiny and caution in states of emergencies in order to avoid further abrogation of human rights protections. The grave risk of abuse of emergency powers as exemplified following 9/11, and now, in Hungary suggests that to all extent possible, the international community should hold countries to their human rights obligations and refuse to allow for derogation from such obligations. This view is particularly relevant to democratic regimes, as they are more likely to respect international pressure and commitments. However, thus far it has been ineffective, and pressure from international institutions such as the EU has failed to restore compliance with international human rights obligations.
On the other hand, encouraging states to declare a state of emergency under Article 15 and/or Article 4 could force them to operate within the strict limits of international human rights law because they are implicitly acknowledging the authority and legal obligations of human rights treaties by utilizing such language. This could normalize the system for derogation from international human rights obligations under the ICCPR and ECHR overseen by judicial and international authorities. Hungary, who continues to use state of emergency powers to propagate authoritarian actions, could benefit from the heightened scrutiny and legal barriers of an international human rights framework. Rather than merely condemning the pretext of an emergency, articulating human rights obligations and derogations from the legal framework of international human rights law may allow human right advocates to advance protections with the same logic that Hungary and authoritarian regimes are degrading them with.
Author Biography: Audrey Stone is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a Bachelor of Laws with Dual Honors in Law and International Relations from The University of Edinburgh.
Editor: Zachary Burgoyne, GW Law J.D. Candidate, 2024.