Counterterrorism and the rule of law in an evolving European Union: plus ça change?

Abstract

By taking the European Union (EU) as a principal focal point, this chapter will evaluate critically the rule of law challenges arising from the production and operation of counterterrorism norms. The article will focus on four case studies, two involving the rule of law ex ante (at the stage of adoption of EU law) and two involving the rule of law ex post (looking at its impact). In terms of ex ante rule of law challenges, the chapter will analyse the production of binding standards by the global executive and the trickle-down effect of these standards at the regional, EU and national level and the limits of scrutiny and justification of counterterrorism legislation on emergency grounds. In terms of rule of law ex post, the chapter will examine challenges of counterterrorism law to the principle of legality via over-criminalisation and the adoption of vague and broad definitions of terrorism, as well as challenges to the right to a fair trial and principle of effective judicial protection resulting from state arbitrariness in the mechanism of producing terrorist sanctions. The contribution will question whether the entry into force of the Lisbon Treaty, and the process of constitutionalisation of criminal law it entailed, has made a difference regarding the compliance of EU counterterrorism law with the rule of law.