situations of emergency can be addressed either by means of the standard ‘everyday’ system of rules, or by allowing some emergency exceptions to those rules.9 These approaches have respectively been termed the ‘Business as Usual’ and ‘accommodation’ models. 10 Such theories, although developed in the context of security emergencies, have also been applied to emergencies of an economic nature.11 The Business as Usual model (alternatively termed the ‘strict enforcement’ model12) demands that ‘[o]rdinary legal norms and rules continue to be followed strictly and adhered to with no substantive change or modification’.13 This approach is rooted in the contention that ordinary legal rules have sufficient foresight and flexibility to allow an effective emergency response. 14 This model does not envisage measures of derogation, the claiming of special emergency powers, or the suspension of normal legal frameworks. 15 Put differently, this approach holds that the ordinary legal setup is ‘law for all seasons’.16 A model of ‘accommodation’ stands in contrast to the ‘Business as Usual’ model of emergency response. The accommodation model can broadly be thought of as allowing the relaxation or suspension of legal rules and norms. 17 Such a suspension might allow for measures that had not previously been envisaged, 18 or for the limitation, suspension, or removal of certain rights and guarantees.19 In practice, suspensions of legal rights might result in detention without trial or the removal of State food aid provision. The justificatory rationales for these measures are said to vary, and the measures may be objectively necessary in some sense, precautionary, or simply aimed at reassuring a public that policy-makers perceive to be panicked.20 Determining whether a Business as Usual or Accommodation approach is ‘best’ has been a matter of extensive debate. No view is expressed here on the validity, applicability or otherwise of the two theories and their variants. Instead the argument maps the transition from one model to another, and seeks to assess the compatibility of the models with the provisions and internal logic of the ICESCR. Notwithstanding that the argument below rests on the potential compatibility of the ICESCR with one or other of the types of emergency response, the broader contentions about each of the models provide important context. In favour of the accommodation model is the ‘reality of emergency management’. 21 It seems intuitive that if the situation is severe enough, those holding power will not be restrained by the ‘technicalities’ of a legal document. Ni Aolain and Gross describe this difference as ‘rule and exception’ (Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press 2006) 172.); see also Eric A Posner and Adrian Vermeule, ‘Accommodating Emergencies’ [2003] Stanford Law Review 605, 606. 9 10 Gross and Ní Aoláin (n 7) 88–9. William E Scheuerman, ‘The Economic State of Emergency’ (1999) 21 Cardozo Law Review 1869; Michal R Belknap, ‘New Deal and the Emergency Powers Doctrine’ (1983) 62 Texas Law Review; Rebecca M Kahan, ‘Constitutional Stretch, Snap-Back, & Sag: Why Blaisdell Was a Harsher Blow to Liberty than Korematsu’ (2004) 99 Northwestern University Law Review. 11 12 Posner and Vermeule (n 7) 606. 13 Gross and Ní Aoláin (n 7) 88. 14 ibid 86–8. 15 ibid 86. ibid. There are, within this Business as Usual approach, varying degrees of stringency. Here the ‘soft’ Business as Usual approach is referred to, which demands consistency of law, but not necessarily of results. Ibid 89. 16 17 Posner and Vermeule (n 7) 606. 18 Gross and Ní Aoláin (n 7) 66. 19 ibid 77. 20 ibid 80–1, 69. 21 Gross and Ní Aoláin (n 7) 95. 3