We explain what a state of siege is, in what cases it is declared, and how. We also explain what states of alarm and emergency are. Please read other MTV articles for more information. If you share it, it will be of little help to us.
What is a state of siege?
In constitutional law, a state of siege is one of the types of exceptional regimes that a government can declare when it is forced to face particularly serious and extraordinary situations and needs to relax certain common laws and regulations. These types of legal mechanisms are usually contemplated in a country’s constitution, which details the specific conditions that justify them and the methods in which they must be declared.
A state of siege, specifically, is a state very close to war, in which there is a serious threat to the survival of the nation or the lives of its citizens. This justifies the temporary suspension of certain legal guarantees and the temporary granting of greater power and prominence to the armed forces, so that they have the necessary resources to safeguard the nation.
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Typically, a state of siege is declared by a country’s executive branch and then endorsed by the legislative branch (parliament), as the entire state is organized to confront an extraordinary threat, such as an invasion by an enemy army, a nationwide armed insurrection, or some other catastrophic event requiring the discretionary use of force.
When and how is a state of siege declared?
The declaration of a state of siege is a decision by the public authorities, specifically the executive and legislative branches, in the face of a serious threat to the nation’s survival. The exact terms under which this declaration is made, however, may vary depending on the legal system of each country, for example:
State of Siege in Chile
The current Chilean Constitution (1980) regulates the state of siege (along with other emergency regimes) in Articles 39 to 45, as well as in the Constitutional Organic Law on States of Exception. It specifies that the declaration of a state of siege applies only to reasons of force majeure, such as war, civil war, or states of internal unrest, and that it must be decreed by the president and approved by Congress within the following five days. There is also the option of not waiting for Congressional approval, but in that case, only the right to assembly may be restricted. In all cases, the state of siege will last only 15 days, which may be renewed.
State of Siege in Spain
In the current Spanish Constitution (1978), the state of siege is detailed in the fourth paragraph of Article 116, which states that “…it shall be declared by an absolute majority of the Congress of Deputies, at the exclusive proposal of the government. Congress shall determine its territorial scope, duration, and conditions.” The conditions for its activation, however, are further developed in Organic Law 4/1981, which cites as grounds “…an insurrection or act of force against the sovereignty or independence of Spain, its territorial integrity, or the constitutional order, which cannot be resolved by other means.”
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State of Siege in Argentina
In the current Argentine Constitution (1853), the state of siege is addressed in various articles. Article 23 explains that in the event of an internal disturbance or external attack that “…endangers the exercise of this Constitution and the authorities created by it, a state of siege shall be declared in the province or territory where the disturbance of public order exists, and constitutional guarantees therein shall be suspended.” The declaration of a state of siege falls to the president, according to Article 99, but the exact mechanisms for its approval vary depending on the cause: in the case of an internal cause, it falls to the Chamber of Deputies (Article 75), while in the case of an external cause, it falls to the Senate (Article 61).
State of Siege in Mexico
In the current Mexican Constitution (1917), the state of siege is not considered by that name, but its mechanisms are explained in Article 29. It states that it must be proclaimed by the President of the Republic and endorsed by the Congress of the Union whenever there are “…cases of invasion, serious disturbance of public peace, or any other that places society in grave danger or conflict.” This same section explains that constitutional rights may be suspended only temporarily when their existence constitutes an obstacle to quickly and effectively addressing the threat, with the notable exceptions of children’s rights, human rights, and other fundamental rights such as the right to life, legal recognition, freedom of worship, freedom of conscience, as well as the prohibition of slavery and servitude, the forced disappearance of persons, and torture.
State of Siege in Peru
In the current Peruvian Constitution (1993), a state of siege must be declared 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. This state of siege may not last more than 45 consecutive days and is justified “in the event 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 a state of siege requires the approval of Congress, which must meet as of right, but there is no time limit for its extension.
State of Siege in Colombia
In the current Colombian Constitution (1991), a 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: a state of foreign war, a state of internal unrest, and a state of emergency. During such states of emergency, Congress retains its full functions to ensure the proportionality of the measures and the maintenance of democracy. Therefore, human rights and fundamental freedoms may not be suspended, nor may the normal functioning of public power be interrupted. The duration of these states of emergency must always be predetermined. States of emergency may be declared by the president and his ministers, who will have full discretion in their mandates, but will also be directly responsible for the actions committed during that period.
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State of Siege in Brazil
In the current Brazilian Constitution (1988), the state of siege is detailed in Article 137, which explicitly states that it is the power of the President of the Republic to request the National Congress (after hearing from the Council of the Republic and the National Defense Council, the bodies empowered to comment on the matter) to declare a state of siege when there is “a serious disturbance with national effects or events that demonstrate 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 on this matter rests with the absolute majority of the National Congress, which must decide and communicate the duration of the state of siege and the guarantees 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 may be legally taken against citizens during a state of siege, excluding violations of fundamental human rights.
Examples of a State of Siege
States of siege have been declared in the following countries and historical moments:
- In Argentina, in 1985, the government of Raúl Alfonsín declared a state of siege for 60 consecutive days, amidst a context of economic, political, and social crisis exacerbated by bomb threats at various schools in the capital (29 had to be evacuated in a single day) and violent attacks on the headquarters of the Army Command-in-Chief.
- Between 1970 and 1991, Colombia experienced internal civil and military conflicts, which justified the declaration of a state of siege for almost 17 consecutive years. The indefinite extension of this state of emergency was one of the reasons for its abolition in the new Colombian Constitution.
- In 2021, then-Chilean President Sebastián Piñera imposed a state of siege in 72 southern communities in the country in response to violence and attacks by various Mapuche extremist groups demanding the return of their ancestral lands.
State of Alarm
Another exceptional regime contemplated in numerous national constitutions is the state of Alarm, which is declared as an exceptional response by a country’s government to address extraordinary situations that impede the normal, everyday functioning of public powers and official institutions.
Such situations may include epidemics, serious natural phenomena, or situations of social unrest that warrant extraordinary political, economic, and social decisions, such as delegating functions from one agency to another, mobilizing the armed forces, or making other strategic decisions at the local or national level.
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State of Emergency
The state of emergency is another exceptional regime present in numerous national constitutions that goes beyond the state of emergency; that is, it is used in more severe situations in which the government requires extraordinary, special, and temporary powers or faculties.
In this way, it can undertake actions that would normally be subject to regular, slow procedures and greater bureaucratic oversight, but which a sense of urgency requires to be taken quickly and efficiently. These types of states are usually declared in response to major natural disasters, situations of internal unrest, coups d’état, among others.
State of War
A state of war or martial law is the most serious of the exceptional regimes contemplated in most national constitutions. It involves the total mobilization of the state to confront a situation of civil war, open rebellion, or invasion by foreign forces. This implies total control of the state by the armed forces and the replacement of civil order with military order.
Thus, many laws are suspended and many guarantees annulled, depending on the seriousness of the situation, and military tribunals are responsible for the swift and effective administration of justice, which often entails the use of the death penalty and other extreme solutions.
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References
All the information we offer is supported by authoritative and up-to-date bibliographic sources, ensuring reliable content in line with our editorial principles.
- State of Siege on Wikipedia.
- What is a state of siege and when should it be applied on Infobae (Argentina).
- State of Siege on Encyclopedia.com.
- State of Siege Definition, what is it, Examples, and Exceptional Regimes – concepto.de
