Constitutionalizing Emergency Powers: Balancing National Security and the Rule of Law in International Law

Abstrak

Background: The expansion of emergency powers in response to national security threats has intensified constitutional debates over the permissible limits of executive authority under international law. Despite the recognition of emergency derogations in international human rights instruments, significant legal tensions remain regarding the extent to which states may restrict constitutional rights while maintaining compliance with international legal obligations. Objectives: This study examines how constitutional limitations on emergency powers interact with international legal standards and asks whether the relationship between domestic emergency governance and international human rights law creates legal inconsistencies in protecting constitutionalism during states of emergency. Methodology: This research employs normative juridical methods using statutory, conceptual, comparative, and international law approaches. Primary legal materials include constitutional provisions, the International Covenant on Civil and Political Rights (ICCPR), judicial decisions, and relevant international legal instruments, which are analyzed through descriptive-analytical techniques. Findings: The study finds that the principal legal tension arises from the inconsistent interpretation of emergency derogation provisions under Article 4 of the ICCPR by domestic constitutional courts. While international law permits temporary limitations on certain rights during genuine emergencies, several domestic legal systems have expanded executive discretion beyond the requirements of legality, necessity, proportionality, and temporariness. This divergence has contributed to the normalization of exceptional governmental powers, weakening constitutional oversight and creating a legal gap between international human rights obligations and domestic emergency governance. Originality/Novelty: This study develops an integrated constitutional-international law framework by identifying the legal friction between ICCPR emergency derogation standards and domestic constitutional practices. It proposes a constitutional model that strengthens judicial oversight and reconciles national security imperatives with international rule-of-law principles to prevent the normalization of permanent emergency governance.

Kata kunci

• emergency powers
• national security
• constitutionalism.