INSTITUTE FOR THE STUDY OF STATES OF EXCEPTION

From the Book Preface: The concept for this edited volume emerged during a time when the world was gradually moving away from the emergency measures implemented in response to the Covid-19 pandemic. One of us spent much of the pandemic in the UK, while the other was in Sweden, each of us witnessing very different governmental responses. Having worked together in Lund during the 2015 European migration crisis that saw more than one million people seek asylum in Europe, this had not been our first encounter with emergency measures. During this period, Sweden imposed border controls and ID checks on the Öresund Bridge that connects Lund to Denmark and the rest of the European continent. Sweden was not alone in enacting emergency measures in the form of restrictions on movement within the Schengen Area – Denmark enforced similar measures at its border with Germany, and Germany did the same on its border with Austria. As EU law scholars, we were curious about the impact that emergencies have on the EU: a jurisdiction built on solidarity, free movement and the rule of law.

More precisely, we got to debating the question in which circumstances, if any, fundamental rights could legitimately be suspended in the face of an emergency. And if there were to be such a suspension, who should take responsibility for safeguarding that this exercise of power did not erode procedural and substantive fundamental rights: the EU or national courts, the EU or national parliaments, the public or a different body altogether? What role might proportionality play in balancing different rights in cases of emergency? Sitting in Sweden, which lacks formal constitutional provisions for declaring a state of emergency (except in the case of war), it quickly became apparent that a definition of what counts as an emergency is crucial: could it be that what is to be labelled an ‘emergency’ in one country is approached as a ‘crisis’ in another? What might be the legal implications of such divergencies? Even if we could rally around a common definition of what constitutes an emergency, should we approach the migration crises, the Covid-19 pandemic, and climate change the same way?

The Supreme Court’s decision in Louisiana v. Callais has intensified debate over judicial power, electoral representation, and democratic legitimacy in the United States. While supporters view the ruling as a constitutional limit on race-conscious districting, critics argue it may weaken Black political representation in several Southern states. From an ISSE perspective, the case is significant not only for its voting-rights implications, but for how accelerated procedures and emergency-style mechanisms derived from the ruling are already shaping ordinary democratic governance. Rapid redistricting efforts and compressed legislative timelines illustrate how exceptional practices can become enabled and embedded within formally constitutional processes. The case raises broader questions about democratic resilience, institutional restraint, and the gradual normalization of exceptionality within contemporary governance.

Human Rights Watch’s analysis of Hungary highlights how emergency powers have become embedded in the country’s political system. Under Viktor Orbán, who was voted out of office in April 2026, crisis-driven authorities have evolved into durable tools for governing, shaping media, institutions, and electoral competition. Rather than temporary measures, emergency frameworks have been renewed and repurposed across migration, pandemic, and security contexts. Weak domestic and external constraints have allowed these powers to persist with limited oversight. For ISSE, Hungary illustrates the normalization of exceptionality, where extraordinary powers become a routine feature of democratic governance.

Supported by civil society, a group of independent international law and human rights experts (The International Group of Experts for the Investigation of Human Rights Violations in the Context of the State of Emergency in El Salvador – GIPES [for its initials in Spanish]) was convened to investigate whether systematic abuses being carried out under the State of Exception public security policy in El Salvador –including torture, sexual violence, enforced disappearances, and extrajudicial executions– are indeed crimes against humanity.

On March 11, 2026, at a side event to the United Nations Human Rights Council session, members of the Group and civil society presented the Group of Experts initiative, their research findings and legal analysis, and other key information about the ongoing State of Exception and its impact in El Salvador.

The invited speakers were Leonor Arteaga, Program Director at DPLF; Santiago Canton, ICJ Director and GIPES member; José Antonio Guevara, former WGAD President and Group member; and Noah Bullock, the Executive Director of Cristosal. Irene Aparicio of CCPR moderated the panel discussion.

This side event was hosted by the Centre for Civil and Political Rights (CCPR), Cristosal, Due Process of Law Foundation (DPLF), InterJust, International Commission of Jurists (ICJ), International Federation for Human Rights (FIDH), Redress, Rights & Security International.

An international panel of legal experts has concluded that serious human rights violations committed under El Salvador’s ongoing state of emergency may constitute crimes against humanity. The report examines allegations including arbitrary detention, torture, enforced disappearances, sexual violence, and persecution carried out as part of the government’s security policy since March 2022. Beyond documenting abuses, the study argues that the prolonged state of exception has weakened democratic safeguards, eroded separation of powers, and concentrated authority within the executive branch. The report also calls for independent case review mechanisms and greater international accountability efforts. For ISSE, the findings highlight the long-term institutional risks posed by entrenched emergency governance.

This Forward introduces the special issue of the European Journal of Risk Regulation entitled “Constitutional Risk Management in the V4 Countries,” which examines how constitutional democracies respond to crises through emergency legal regimes and exceptional powers. Focusing on the Czech Republic, Hungary, Poland, and Slovakia, the issue explores the constitutional management of crises including the COVID-19 pandemic, war, migration, and environmental emergencies. The collection analyzes both the legal frameworks governing states of exception and the broader normative question of how democratic systems can preserve rule-of-law safeguards during prolonged crises. ISSE will publish each article from the special issue as standalone website entries in the coming weeks. All materials are Open Access and distributed under a Creative Commons Attribution license.

One of the goals of this paper is to define the most important concepts for the comparative study of the constitutional risk management of the V4 countries. For this purpose, first, it considers the theoretical difficulties of conceptualising emergencies, especially focussing on what kind of response can be given to the widespread view that considers emergencies as a kind of legal “black hole” due to their unpredictability. Then a general definition of “emergency” is discussed which is broad and flexible enough to serve as a basis not only for a comparative study but also for the constitutional discourse of emergencies. Constitutional crisis management as a core concept for such an undertaking is also canvassed. After defining the basic concepts essential for evaluation and comparison, the article outlines the general types of emergency regulatory regimes. The development of effective regulatory systems for emergencies also has to face certain problems that every constitutional polity must solve. Finally, the paper summarises assessment criteria necessary for the evaluation and a comparison of the emergency constitutions of different countries.

European constitutions differ greatly in the depth to which they deal with emergencies: while many constitutions devote more or less detailed regulation to emergency regimes, others almost completely neglect these issues or dedicate only some very short and vague references to emergency situations and powers. This article aims to carry out a systematic comparison of the emergency-related provisions of forty European constitutions, focusing on (1) the level of detail of the regulation, (2) the emergency regimes addressed, and (3) the restrictions on fundamental rights. As the study points out, only two out of the forty constitutions are completely silent on emergency powers. However, the remaining thirty-eight constitutions show wide variation in the level of detail of the emergency regulation; the vast majority of the emergency regimes are related to war or armed attack (or the danger thereof), to internal crises threatening the constitutional order, and to natural disasters. Concerning fundamental rights, the examination of the constitutional texts confirms that twenty-five out of the forty constitutions encompass some provisions on the restriction of these rights in a state of emergency.

The paper outlines Czech constitutional law and the development of emergency law. Initially, the legislature did not expect emergencies to occur, perhaps due to the idealistic optimism associated with the general atmosphere of the collapse of the Eastern Bloc in 1989 and the “End of History” thesis. As a result, emergencies were not regulated by Czech law in the 1990s. This changed after the great floods at the end of the 1990s, when “history returned,” and the need for some special rules for emergencies became clear. The first decades of this century showed that Czech emergency law worked well for short-term natural disasters. The game-changer came in 2020, with the emergence of the COVID-19 pandemic and the need for a long-term state of emergency. It soon became clear that the rules that worked for floods and other disasters did not work for long-term global pandemics. In other words, the legal system was not prepared for a situation in which emergencies were the rule rather than the exception. Legislators were unable to prepare a long-term legislative response to fill this gap. The memory of COVID-19 is fading fast, and there are no plans to reform the relevant legislation. Accordingly, any new pandemic or similar event will lead to the same problems that the Czech legal system had to deal with from 2020 to 2022.

The paper offers a comprehensive overview of Hungary’s emergency law and its misuse over the four years since its introduction in March 2020. Hungary serves as a clear example of how a “state of danger” – initially intended as an exceptional legal measure – can become normalised through repeated declarations. The populist government’s continuous use of emergency powers has led to unchecked lawmaking and the manipulation of legal frameworks to advance populist agendas. The article argues that while Hungary’s detailed emergency provisions in the Fundamental Law were intended to serve as a form of constitutional risk management, after four years of living in a permanent “state of danger”, the scholarly debate has shifted to whether this very risk management has itself become the risk. According to emergency law theory, managing constitutional risks is equally vital in the emergency legal order. Yet in Hungary, both the black letter of the law and the constitutional practices observed during and after the COVID-19 pandemic – along with the Ninth Amendment to the Fundamental Law, which introduced a new emergency regime in 2021 – reveal that constitutional risk management has ultimately failed. This is manifest in the erosion of the separation of powers, the weakening of judicial review, and the shrinking of human rights protections. The article substantiates its argument by examining the related constitutional framework and constitutional practice in Hungary between 2020 and 2024.

This article analyses the constitutional framework regulating states of emergency in Poland and addresses key issues related to their interpretation and implementation. The first part discusses the conditions for declaring martial law, a state of an extraordinary situation, and a state of natural disaster, as well as the specific rules for the operation of public authorities in such emergencies. The next part analyses the practice, revealing the consistent reluctance of Polish authorities to invoke states of emergency, even in circumstances that seem to justify such measures. Consequently, a state of emergency under the 1997 Constitution was declared in Poland only once – in 2021, in response to a migration crisis on the border with Belarus. No constitutional emergency was declared during the COVID-19 pandemic, despite the introduction of far-reaching restrictions on individual rights and freedoms. The article argues that state authorities can abuse emergency regulations, either through their unjustified application or by deliberately circumventing them.

This article contributes to understanding how inexperience and lack of commitment to evidence-based decision making may undermine an otherwise broadly functional framework for constitutional risk management. As part of a focus on the “Visegrád Four” countries, it also helps understand regional dynamics since the COVID-19 pandemic as the most visible emergency after 1989. The article starts with a brief elucidation of the political contexts that have shaped Slovakia’s constitutional risk management, focusing on the developments from 2020 through early 2025. An analysis of mechanisms of emergency risk management in the constitutional framework follows, that helps identify key state authorities attempting to make decisions under serious time pressures. The implementation of the constitutional framework during the COVID-19 pandemic demonstrates the creation of new avenues for restricting rights and bolstering executive competence, with the formally powerful constitutional review mechanisms struggling to challenge these decisions. Ultimately, political context emerges as key: Slovakia entered the COVID-19 pandemic with a governing coalition enjoying constitutional majority and an aura of reform and hope. The emergency mismanagement not only facilitated the breakup of this coalition and early elections, but also a rise in emergency conspiracies openly hostile to institutions and actors committed to evidence-based decision making.

Our special issue examines the regulation and practice of constitutional risk management in the V(isegrád)-4 countries (Czech Republic, Hungary, Poland and Slovakia). Unfortunately, the treatment of the COVID-19 pandemic made this enterprise relevant, as all four countries had to face a similar health emergency. This article presents the most important experiences and trends in the constitutional crisis management of the four countries, identifying the challenges that the constitutional emergency regulatory regimes have encountered so far. Our paper argues that despite the basically similar constitutional frameworks, these countries typically handled the crisis in a different way, and in the process many constitutional problems arose for which there was no clear or uniform solution. Since the purpose of the international comparative research that is the basis of our special issue was to examine the emergency constitution of these four countries in general (since it will have to be applied to possible later, other types of emergencies), in the last chapter of the article we examine the possibilities of a proposition that represents a novelty in the constitutional discourse on emergency situations: this is an option for the convergence of emergency constitutions.

The Supreme Court of the United States will soon hear challenges to the termination of Temporary Protected Status (TPS) for Syria and Haiti, cases that sit squarely within ISSE’s core concern: the use of exceptional or emergency-adjacent authority without meaningful procedural constraint. At issue is whether the Department of Homeland Security can rely on broad assertions of “national interest,” or must conduct a genuine, evidence-based assessment of country conditions as required by statute. Lower courts have already identified procedural failures and, in some instances, evidence of predetermined outcomes. With more than one million TPS holders affected, the stakes extend far beyond immigration policy. The Court’s decision will help determine whether executive power, when operating in the space between routine governance and exception, remains subject to enforceable legal limits.

A surge in executive “emergency” actions is reshaping the balance of power in the United States. This analysis finds that the scale, pace, and scope of recent emergency orders, particularly outside traditional frameworks like International Emergency Economic Powers Act (IEEPA), are historically unprecedented and increasingly directed toward domestic policy goals. The use of declarations such as the “National Energy Emergency” illustrates how emergency authorities can be leveraged to bypass Congress and statutory constraints. With legislative checks weakened since INS v. Chadha and judicial review often limited, meaningful oversight is increasingly difficult. The piece from Lawfare argues that courts may need to adopt more searching review to prevent the normalization, and weaponization, of emergency powers.

Estonia will conduct ILVES 2026, a nationwide crisis-management exercise from June 8–12 involving more than 130 public, private, and civil society organizations. The exercise is designed to test coordination, decision-making, and the continuity of essential services during complex crisis scenarios, including hostile state influence, public disorder, and infrastructure disruptions. Activities will include simulations of evacuations, emergency response, and information-sharing processes. The exercise is part of Estonia’s regular preparedness framework under its Emergency Act and does not indicate an imminent threat. Overall, ILVES 2026 aims to strengthen national resilience through coordinated, whole-of-society crisis response.

This Miller Center conference examines the history, expansion, and constitutional risks of presidential emergency powers in the United States. Convened after the Supreme Court’s February 2026 decision rejecting President Trump’s use of emergency authority to regulate tariffs, the discussion brings together leading scholars and practitioners to assess how presidents, Congress, and the courts have shaped the emergency-powers framework. Panelists trace the issue from the founding era through FDR, Watergate, 9/11, and the modern presidency. For ISSE, the event is important because it shows how exceptional powers can become routine tools of governance when Congress is weak, courts are cautious, and presidents face incentives to act unilaterally. The result is a constitutional system under strain, where emergency authority risks replacing democratic deliberation.

ISSE team members spoke at Centre for Statecraft & National Security on April 8, 2026, in a panel examining the global rise of “states of exception.” The discussion explored how emergency powers and prolonged security measures are increasingly shaping democratic governance across regions. Drawing on comparative case studies, speakers assessed when such powers are necessary, when they become corrosive, and what constraints are required to preserve democratic legitimacy. The event also highlighted ISSE’s emerging research agenda and its focus on gaps in current policy thinking around emergency governance.

What are the conditions for effective crisis management in multi-level systems characterized by overlapping territorial and ethnic structures? To answer this question, this article considers evidence from Bosnia and Herzegovina (BiH). BiH’s fragmented governance often hinders effective vertical and horizontal coordination across government levels. Drawing on two case studies—the 2014 floods (an internal crisis) and the COVID-19 pandemic (an external crisis)—the analysis reveals how substate entities’ extensive exclusive powers promote unilateral decision-making and limit the ability to address crises collectively. The evidence shows that internal crises often exacerbate fragmentation, while external crises may initially foster coordination before political and structural limitations reassert dominance. Further, while community activism assists in addressing coordination gaps, it cannot substitute for gaps in governance.

This book examines how Gustav Radbruch, H. L. A. Hart, and Ernst-Wolfgang Böckenförde each addressed the question of the end of law, its function, and its normative foundation within the context of the modern legal and political order. Through a politico-theological reading, it highlights the tension between legal validity and moral legitimacy, as well as the extent to which law can maintain public order without compromising its own claim to justice.

The analysis of Radbruch, Hart, and Böckenförde sheds light on how valid law can become unjust, demanding actions that may conflict with individual judgment or morality. It raises questions about natural law, the relationship between morality and law, and law’s ultimate purpose, suggesting that law and politics represent, at best, a relative good. It addresses the broader crisis of legal authority and state sovereignty, the expanding reach of state power, and whether law should instruct, command, or ultimately point beyond itself.

The End of Law is of interest to scholars in legal theory, political theology, and the philosophy of law.