The interaction of terrorism laws with human rights

Abstract

Terrorism, and the responses to it, have represented during the last decade one of the most significant challenges to the protection of the fundamental rights entrenched in national constitutions and international human rights treaties. Terrorist attacks across the globe – from New York, to London, Madrid, and Bali – have produced death and destruction, undermining fundamental values of peaceful co-existence, and shattering citizens’ expectations of security. Yet, since 9/11, national governments, international organisations, and supranational institutions have responded to these threats with a panoply of counter-terrorism measures that themselves have threatened the protection of core fundamental rights. Taking stock of more than a decade of political action and legal deliberation on the balance between liberty and security, this chapter maps the interaction between terrorism laws and human rights. Consistent with the nature of this book, this chapter offers a summary of the main legal and policy instruments developed to fight global terrorism, discusses its impact on procedural and substantive fundamental rights, and considers in a comparative perspective some of the most remarkable failures and successes of jurisdictions world-wide in correcting the excesses of counter-terrorism and re-establishing respect for fundamental rights even in the struggle against terrorism. Specific aspects are analysed more fully elsewhere in this book. As the chapter makes clear, counter-terrorism measures enacted by executives and legislatureshave interacted with human rights in multiple ways. At the same time, courts have increasingly been involved in the oversight of counter-terrorism laws and policies, sometimes operating as an effective bulwark of protection against governments’ overreach. Yet, a number of challenges remain.As this chapter suggests, although the struggle against terrorism may be winding down, the interaction between counter-terrorism laws and human rights will continue to characterise constitutional law and practice for years to come. The chapter is structured as follows. Section 2 surveys the main laws and policies adopted in the fight against terrorism, distinguishing between preventive and responsive measures, and discussing their features. Section 3 evaluates the impact of counter-terrorism laws on human rights, considering both procedural and substantive provisions of national constitutions and international human rights treaties. Section 4 explains what limitations have reduced the capacity of courts to effectively protect human rights in the post-9/11 world. Section 5, instead, considers in comparative perspective a numberof courts’ successes in restoring an appropriate balance between liberty and security in the fights against terrorism. Section 6 concludes and outlines the outstanding challenges for the future.