- What is site status?
- When and how is the state of siege declared?
- Site Status Examples
- State of alarm
- State of emergency
- State of war
We explain what the state of siege is, in which cases it is declared and how. Also, what are the state of alarm and the state of emergency.
What is site status?
In constitutional right, the state of siege is one of the types of exception regimes that a government can declare when he is forced to face particularly serious and extraordinary situations, and needs to relax certain laws Y rules usual. This type of legal mechanism is usually contemplated in the constitution of the countries, detailing the specific conditions that justify them and the ways in which they should be proclaimed.
The state of siege, specifically, consists of a state very close to war, in which there is a serious threat to the survival of the nation or the lives of their citizens. This justifies the temporary suspension of certain legal guarantees and the temporary transfer of greater power and protagonism to the armed forces, so that they have the necessary resources to save the nation.
Normally, the state of siege is declared by the executive power of a country and then endorsed by the legislative power (parliament), as the entire state organizes itself to deal with an extraordinary threat, such as an invasion by an enemy army, a nationwide armed insurrection, or some other catastrophic event that calls for the discretionary use of force.
When and how is the state of siege declared?
The declaration of a state of siege is a decision of the public powers, specifically of the executive power and the legislative power, in the face of a serious threat to the survival of the nation. The exact terms in which this declaration is produced, however, may vary according to the legal system of each country, for example:
- State of siege in Chile. In the current Chilean Constitution, the state of siege is regulated (along with the other exception regimes) in articles 39 to 45, as well as in the Constitutional Organic Law of States of Exception. There it is detailed that the declaration of the state of siege corresponds only to reasons of force majeure such as war, civil war or states of internal commotion, and that it must be decreed by the president and approved by Congress in the following five days. . There is also the option of not waiting for the endorsement of Congress, but in that case only the right to meet can be restricted. In all cases, the state of siege will last only 15 days, which may then be renewed.
- State of siege in Spain. In the current Spanish Constitution, the state of siege is detailed in the fourth paragraph of article 116, where it is noted that “…it will be declared by the absolute majority of the Congress of Deputies, at the exclusive proposal of the government. The Congress will determine its territorial scope, duration and conditions. The conditions for its activation, however, are developed in Organic Law 4/1981, which cites as reasons "...an insurrection or act of force against the sovereignty or independence from Spain, its territorial integrity or the constitutional order, which cannot be resolved by other means”.
- State of siege in Argentina. In the current Argentine Constitution, the state of siege is addressed in different articles.Article 23 explains that in the event of an internal commotion or external attack that "... endangers the exercise of this Constitution and the authorities created by it, a state of siege will be declared in the province or territory where there is disturbance of order, the constitutional guarantees being suspended there”. The declaration of a state of siege corresponds to the president, according to article 99, but the exact mechanisms for its approval vary depending on the cause: if it is an internal cause, it corresponds to the Chamber of Deputies (art. 75), while if it is an external cause corresponds to the Senate (art. 61).
- State of siege in Mexico. In the current Mexican Constitution, the state of siege is not contemplated with that name, but its mechanisms are explained in article 29. There it is indicated that it must be proclaimed by the President of the Republic and endorsed by the Congress of the Union, always that there are “…cases of invasion, serious disturbance of the peace public, or any other that puts to the society in serious danger or conflict”. That same section explains that constitutional rights may be suspended only temporarily, when their existence constitutes an obstacle to quickly and effectively confronting the threat, and with the notable exceptions of the rights of the child, human rights and others Fundamental rights As the right to life, legal recognition, religious freedom, to freedom of conscience, as well as the prohibition of slavery and servitude, the forced disappearance of people and torture.
- State of siege in Peru. In the current Peruvian Constitution, the state of siege must be dictated by the President of the Republic, who must agree on it with the Council of Ministers and report it to the National Congress, according to article 137.Said state of siege may not last more than 45 continuous days and is justified "in case of invasion, foreign war, civil war, or imminent danger of their occurrence, with mention of the fundamental rights whose exercise is not restricted or suspended." The extension of the state of siege requires the approval of Congress, which at such instances must meet in full, but there is no time limit on how long it can be extended.
- State of siege in Colombia. In the current Colombian Constitution, the state of siege is not explicitly contemplated, but instead three possible states of exception are contemplated, which distinguish between the possible causes of the temporary suspension of constitutional guarantees: the state of foreign war, the state of internal commotion and the state of emergency. During these states, Congress retains the fullness of its functions, to guarantee the proportionality of the measures and the maintenance of the democracyTherefore, human rights and fundamental freedoms cannot be suspended, nor will the normal functioning of public power be interrupted, and the duration of these states of exception must always be defined in advance. States of exception may be declared by the president and his ministers, who will have complete discretion in their mandates, but will also be directly responsible for the actions committed during said period.
- State of siege in Brazil.In the current Brazilian Constitution, the state of siege is detailed in article 137, where it is made explicit that it is the power of the President of the Republic to request the National Congress (after hearing with the Council of the Republic and the National Defense Council, bodies empowered to give an opinion on the matter) the promulgation of a state of siege, when there is "a serious disturbance with national effects or events that show the ineffectiveness of a measure taken during the state of defense" or "a declaration of a state of war or response to foreign armed aggression. Therefore, the final decision in this matter corresponds to the absolute majority of the National Congress, which must decide and communicate the duration of the state of siege and the guarantees that are suspended during that period, which cannot exceed 30 days, but can be renewed for equal or shorter periods. The Constitution also details the actions that can be legally taken against citizens during the state of siege, excluding violations of fundamental human rights.
Site Status Examples
The state of siege has been decreed in the following countries and historical moments:
- In Argentina in 1985, the government of Raúl Alfonsín decreed a state of siege for 60 continuous days, in the midst of a context of economic crisis, political and social, exacerbated by the threat of bombs in different schools in the capital (29 had to be evicted in the same day) and violent attacks against the headquarters of the Army Command-in-Chief.
- Between 1970 and 1991, Colombia experienced internal civil and military conflicts, which justified the decree of a state of siege for almost 17 non-continuous years. The indefinite prolongation of this exceptional regime was one of the causes of its suppression in the new Colombian constitution.
- In 2021, the then president of Chile Sebastián Piñera imposed a state of siege in 72 southern communes of the country, in response to the violence and the attacks by various Mapuche extremist groups demanding the return of their ancestral lands.
State of alarm
Another of the exceptional regimes contemplated in numerous national constitutions is the state of alarm, which is declared as an exceptional response by the government of a country, to face situations out of the ordinary that prevent the normal and daily functioning of public powers. and official institutions.
These situations can be epidemics, serious natural phenomena or situations of social disorder that warrant making political, economic and social decisions out of the ordinary, such as delegating functions from one agency to another, mobilizing the armed forces or making other strategic decisions. at a local or national level.
State of emergency
The state of emergency is another exceptional regime present in numerous national constitutions that implies a step beyond the state of alarm, that is, it is used in situations of greater severity, in which the government requires extraordinary, special powers or faculties. and temporary.
In this way, you can take actions that would normally be the subject of regular, slow procedures and with greater bureaucratic supervision, but that a sense of urgency warrants taking them quickly and efficiently. These types of states are usually decreed before large natural disasters, situations of internal commotion, hit of State, among others.
State of war
The state of war or martial law is the most serious of the exceptional regimes contemplated by most national constitutions. It is the total mobilization of the State to face a situation of civil war, open rebellion or invasion by foreign forces, which implies the total control of the State by the armed forces and the substitution of the civil order for the military order. .
Thus, many laws are suspended and many guarantees annulled, depending on the gravity of the situation, and the military courts are in charge of administering justice quickly and effectively, which often implies the use of the death penalty and other extreme solutions.