Covid-19 and the State of Exception

ADETOKUNBO HUSSAIN

INTRODUCTION

The World Health Organization Director-General, Tedros Adhanom Ghebreyesus on 20 March 2020, revealed reports of more than 210,000 cases of COVID-19 and over 9,000 people deaths caused by COVID-19.

Around the world, desperate measures have been adopted to tackle the outbreak of COVID-19, which has been labelled as a ‘once in a century event’. Some measures have included lockdowns and quarantines, most notably in Italy and recently in the UK. On 25 March 2020, the Coronavirus Bill received Royal Assent.

The Government introduced the Health Protection (Coronavirus) Regulations 2020 (under the Public Health (Control of Diseases) Act 1984, as amended by the Health and Social Care Act 2008) on 10 February 2020. The measures aim to prevent further, serious transmission of the virus by providing new powers – effective immediately – for medical and public health professionals “to screen, isolate and detain those at risk of spreading Covid-19”. If necessary, the Regulations also allow the police “to detain and direct individuals in quarantined areas at risk or suspected of having the virus”.

These measures and indeed similar measures across the world may lead to understandable agitation and concerns about civil liberties and human rights. According to Harvard Law Professor, Charles Fried:

“Most people are worrying about restrictions on meetings—that’s freedom of association. And about being made to stay in one place, which I suppose is a restriction on liberty. But none of these liberties is absolute, they can all be abrogated for compelling grounds. And in this case the compelling ground is the public health emergency.”[1]

This article briefly revisits the doctrine of ‘State of Exception’ in international law and posits that the COVID-19 pandemic may constitute a State of Exception.

AGAMBEN’S ACCOUNT

The political philosopher Giogio Agamben[2] famously wrote about the State of Exception, as did Carl Schmitt.[3] Briefly, the State of Exception is a special condition in which the juridical order is suspended due to an emergency or a serious crisis threatening the State. Here, executive power, prevails, whilst basic laws and norms can be suspended by the State when facing crisis.

Both Agamben and Schmitt accept the State of Exception involves the “suspension of the law”[4] in a state of emergency. Schmitt links the State of Exception to a dictatorship;[5] distinguishing between a commissarial dictatorship (which has the putative aim of restoring the constitution/ order)[6] and a sovereign dictatorship (which seeks to create a new constitution/ new order in the state of emergency ).[7]

Agamben states that the ‘telos’ of Schmitt’s theory is the ‘inscription of the State of Exception within a juridical context’.[8] Accordingly, a State of Exception is not characterised by anarchy and chaos[9] or as Hobbes dramatically depicted ‘such a warre, as is of every man, against every man’.[10] Rather, ‘an order still exists in it – even if it is not a juridical order’.[11]

There is a paradoxical relationship between the Sovereign (who decides on the exception)[12] and the exception. For it is in the exception that the Sovereign is revealed. Yet, it is the Sovereign that determines the exception.[13] The Sovereign therefore occupies a sui generis position: ‘being outside and yet belonging’;[14] they are outside the juridical order but are also within simultaneously.

For Agamben, the State of Exception is not tantamount to law neither is it within a legal/juridical order. It is not a different type of law[15]– like laws on war[16]– rather it marks the suspension of the juridical order[17]and ‘it defines the law’s threshold’.[18]

Agamben’s account of the State of Exception differs critically from Schmitt because the ‘telos’ of his theory is the subtraction (not inscription) of the State of Exception from a juridical order. According to Humphreys, the State of Exception cannot be likened to a dictatorship where laws continue to be made undemocratically, because law is out of the equation.[19]

In furtherance of this argument, Agamben distinguishes between the “efficacy of the law” (which refers to the procedural/ legislative or put differently ‘law as we know it’) and the “force of law”.[20] In the State of Exception, acts such as executive actions (for example the declaration of a state of emergency in Sudan[21] or arguably President Trump’s declaration of a national emergency vis-à-vis the construction of the wall[22] or indeed declarations of states of emergencies regarding COVID-19), which normally lack the value of law, gains the force of law.[23]

The force of law is a force superior to the law.[24] To add force to his argument, Agamben evokes Benjamin’s Critique of Violence.[25] Benjamin refers to a ‘pure’ or ‘divine’ violence that neither preserves the law nor is it a subject of the law.[26] Agamben therefore asserts that the State of Exception is characterised by anomie,[27] ‘in which what is at stake is a force of law without law’.[28]

However, Agamben’s account has been criticised. According to Schotel, the fact that Agamben believes that States violate international and domestic law must mean that States have normative force. In other words, States are meant to be obeyed and this would legitimate their actions. This renders Agamben’s account ‘practically obsolete’.[29]

THE POST 9/11 CONTEXT

Bellina argued that there is an interplay between anomie and nomos; a relationship between disorder and order present in the State of Exception. ‘Such interplay, epitomized by the aftermath of the 2001 terrorist attacks in the USA, has become a central—and perhaps even the defining—element in today’s geopolitical scenario.’[30]

Indeed, Professor Fried draws parallels between COVID-19 and post 9/11:

“So much about this is unique: The extreme danger, the unpredictability, the fact that it is everywhere. Maybe the situation after 9/11 is comparable, when there were sleeper cells all over. But even that was much more focused; this is widely dispersed in all 50 states.”[31]

Agamben affirms this irony and interplay when he talks about the aspects of law being contradicted by governmental violence, justified in the name of law.

It is further submitted that part of the manifestations of this ‘governmental violence’ is the overriding of human rights. Michaelsen analyses the operation of derogation clauses in international human rights treaties,[32] which may be adopted in a state of emergency. For example, Article 4 of the ICCPR[33] requires that the public emergency must ‘threaten the life of the nation’[34] and that the measures taken by States must not be ‘inconsistent with their other obligations under international law’.[35]

However, Michaelsen questions whether the adequacy and usefulness of derogation clauses in times of permanent emergency.’[36] He argues that when the ECHR[37] and ICCPR were drafted, international human rights law was nascent. This burgeoning area of law was deemed appropriate to suspend obligations when exigencies arose. Derogation clauses were not however, designed for permanent legal emergencies.[38] In other words, some States have abused derogation clauses in the past. Ultimately he argues that it is ‘logical’ to abolish these clauses.[39]

Similarly, Nial Coghlan observed in relation to COVID-19:

“Derogation from human rights obligations in response to pandemics is controversial (Negri, pp.285-9) and General Comment 29 suggests it should generally be unnecessary in the case of free movement rights (para 5). To date, only Latvia has derogated as a result of this crisis. But given art.15’s [European Convention on Human Rights] wide margin and the scale of the crisis in Italy, the serious art.15 issues raised above and the apparent necessity of the quarantine [and] isolation measures, derogation in respect of art.5 may well have been justifiable. This, of course, would have involved publicly acknowledging that the measures amount to mass detention potentially in breach of art.5.”[40]

In the era of COVID-19, there is an urgent need to guard against the unjustifiable derogations of human rights obligations in relation to other human rights that have no bearing on measures to legitimately contain and control the virus.

AN ARTIFICIAL CONSTRUCTION

Agamben’s argues that the State of Exception is:

‘A fictio iuris par excellence which claims to maintain the law in its very suspension’, but produces instead a violence that has ‘shed every relation to law’.[41]

Ultimately, the State of Exception may just be a State construction. In order to make the case, it is imperative to provide the context: Harter analysed the legal response to political violence (especially terrorism) from the 18th to the 19th century in Central Europe. He suggests that political violence was used as a tool to initiate a state of emergency as well to provide a basis for the legitimisation of emergency laws.[42] For example: the Patriot Act[43] and the Criminal Justice Act.[44]

Nelken similarly argues that ‘Crime was used as justification to prepare the ground for legal repression and political control.’[45] There is arguably a tinge of Marxist critique[46] in that States have in past used the law as an apparatus to maintain power and control. As much of the world is in lockdown, it is important that the law enforcement agents have clear guidelines on how to enforce the law without infringing human rights and abusing the law. Of course, one could contest argue that in a state of emergency, the legal order is suspended. However, the rebuttal could be that it is precisely for this reason that States might have constructed the fictional State of Exception.

Hobbes described the ‘silence of the laws’[47] in the context of personal autonomy; it is contended that likewise, the State of Exception could constitute the silence of the laws by the State, in order to give it the freedom to respond to perceived threats. But when the exception becomes the norm, then individual liberty is at stake. It is critical, that in these trying times of COVID-19, civil liberties and human rights must not be sacrificed on the altar of political expediency.

[1] Brett Milano, Restricting Civil Liberties Amid the COVID-19 Pandemic (The Harvard Gazette 2020).

[2] Giorgio Agamben, State of Exception (University of Chicago Press 2005).

[3] Carl Schmitt, Dictatorship (First published 1921, Polity Press 2014); Political Theology (First published 1922, University of Chicago Press 1885).

[4] Agamben, State of Exception 32.

[5] ibid.

[6] ibid.

[7] ibid 32 – 33.

[8] ibid 32.

[9] ibid 33.

[10] Thomas Hobbes, Leviathan (First published 1651, Cambridge University Press 1996) 91.

[11] Agamben, State of Exception 33.

[12] Schmitt, Political Theology 5.

[13] Agamben, State of Exception 33.

[14] ibid 36.

[15] ibid 4.

[16] Geneva Convention: Article 49; United Nations Charter: Article 2 (4) and Article 51.

[17] Agamben, State of Exception 4.

[18] ibid.

[19] Stephen Humphreys, Legalizing Lawlessness: On Giorgio Agamben’s State of Exception [2006] European Journal of International Law 680 – 681.

[20] Agamben, State of Exception 37.

[21] The Guardian, State of emergency declared in Sudan by under-fire president (23rd February 2019) < https://www.theguardian.com/world/2019/feb/23/state-of-emergency-declared-in-sudan-by-under-fire-president> accessed 03/04/20.

[22] Peter Baker, Trump Declares a National Emergency, and Provokes a Constitutional Clash The New York Times (15th February 2019) < https://www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html> accessed 03/04/20.

[23] Agamben, State of Exception 38.

[24] ibid.

[25] Walter Benjamin, Critique of Violence in Peter Demetz, Walter Benjamin, Reflections: Essays, Aphorisms, Autobiographical Writings (Harcourt Brace Jovanovich 1986) 300.

[26] Michel Foucault, The Subject and Power in Faubion, J.D. (ed) Power: Essential Works of Foucault 1954-1984 Vol. III (Penguin Books, 2000).

[27] Emile Durkheim, Anomie in Martin Slattery’s Key Ideas in Sociology (Nelson Thornes 2003) 22 – 28.

[28] Agamben, State of Exception 39.

[29] Bas Schotel, Defending Our Legal Practices: A Legal Critique of Giorgio Agamben’s State of Exception (University of Chicago Press 2006) 121.

[30] Elena Bellina and Paola Bonifazio, State of Exception: Cultural Responses to the Rhetoric of Fear (Cambridge Scholars Press 2006) ix.

[31] Milano, Restricting Civil Liberties Amid the COVID-19 Pandemic.

[32]Christopher Michaelsen, Permanent Legal Emergencies and the Derogation Clause in International Human Rights Treaties: A Contradiction? In Aniceto Masferrer, Post 9/11 and the Sate of Permanent Legal Emergency – Security and Human Rights in Countering Terrorism (Springer, 2014) 290 – 292.

[33] Intentional Covenant on Civil and Political Rights (1966).

[34] Article 4 (1) ICCPR.

[35] ibid.

[36] Michaelsen, Permanent Legal Emergencies 309.

[37] European Convention on Human Rights and Fundamental Freedoms (1950).

[38] Michaelsen, Permanent Legal Emergencies 310.

[39] ibid.

[40] Niall Coghlan, Rights in a Time of Quarantine (UK Human Rights Blog 2020).

[41] Agamben, State of Exception 59.

[42] Karl Harter, Legal Concepts of Terrorism as Political Crime and International Criminal Law in Eighteenth and Nineteeth Century in Europe in Aniceto Masferrer, Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Springer 2012) 53 – 71.

[43] Patriot Act 2001.

[44] Criminal Justice Act 2003.

[45] John Muncie, On Globalisation and Exceptionalism in David Nelken, Comparative Criminal Justice and Globalization (Ashgate 2013) 88.

[46] Simon Behrman, Giorgio Agamben in Perspective [2013] International Socialism.

[47] Hobbes, Leviathan XXI.

Thoughts

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