The Two-faced Nature of the State of Alert and the Dilemma of Rights Limiting-Suspension

Abstract

The state of alert was considered an instrument of dubious utility. To fight natural, health or technological crises, the sector-specific legislation provided for several extraordinary measures that, according to the doctrine, made it unnecessary to resort to this regime. The preventions set out in its legal regulation hindered its use in situations of social conflict. The state of alert, however, was declared in December 2010, to reestablish the essential public service of air transportation —which had been cut by the strike of the air traffic controllers working for AENA— and in March and October 2020, to control the health crisis caused by the COVID-19 pandemic. Both situations have evinced the limitations and inadequacies of the legal regulation of this regime, both regarding the critical situations that allow to declare it and the measures that can be adopted. This work delves into the two-faced nature of the state of alert and the interpretation difficulties arising from its activation to tackle social conflicts and other emergencies that go beyond its legal framework. There is also an analysis of the problem of differentiating between limiting and suspending rights that lies behind the catalog of measures of this regime, the criticisms to its declaration in 2010 and the intense doctrinal debate resulting from the restrictions to the freedom of movement, the lockdown and the violation of other connected rights such as the right to reunion, to protest and to vote during the critical COVID-19 crisis.