Terrorism and the Limitation of Rights: The ECHR and the US Constitution(Human Rights Law in Perspective)

Taking as a starting point the widely accepted view that states confronted with terrorism must find a proper equilibrium between their respective obligations of preserving fundamental rights and fighting terrorism effectively, this book seeks to demonstrate how the design and enforcement of a human rights instrument may influence the result of that exercise. An attempt is made to answer the question how a legal order’s approach to the limitation of rights may shape decision-making trade-offs between the demands of liberty and the need to guarantee individual and collective security. In doing so, special attention is given to the difference between the adjudicative methods of balancing and categorisation. The book challenges the conventional wisdom that individual rights, in times of crisis, are better served by the application of categorical rather than flexible models of limitation. In addition, the work considers the impact of a variety of other factors, including the discrepancies in enforcing an international convention as opposed to a national constitution and the use of emergency provisions permitting derogations from human rights obligations in time of war or a public emergency. The research questions are addressed through a comparative study of the terrorism-related restrictions on five fundamental rights protected under the European Convention on Human Rights and the United States Constitution: the right to freedom of expression, the right to freedom of association, the right to personal liberty, the right to privacy, and the right to a fair trial. The book offers both a theoretical account of the paradoxical relationship between terrorism and human rights and a comprehensive comparative survey of the major decisions of the highest courts on both sides of the Atlantic.

Table of Contents:
1 Introduction I. Human Rights and Terrorism II. Object and Purpose III. Selection of Human Rights Instruments IV. Preliminary Conclusions V. Structure and Methodology 2 The Limitation of Rights under the European Convention and the US Constitution I. Introduction II. Balancing and Categorical Methods of Limitation III. The Limitation of Rights under the European Convention IV. The Limitation of Rights under the US Constitution V. Conclusion 3 The Right to Freedom of Expression I. Introduction II. The Right to Freedom of Expression: Basic Notions III. Terrorism as Expressive Conduct IV. Terrorism-Related Speech V. Terrorism and the Media VI. General Conclusion 4 The Right to Freedom of Association I. Introduction II. The Right to Freedom of Association: Basic Notions III. Counter-Terrorism and the Right to Freedom of Association IV. General Conclusion 5 The Right to Personal Liberty I. Introduction II. The Right to Personal Liberty: Basic Notions III. The Right to Liberty and Counter-Terrorism Measures IV. Deprivation of Liberty in War and Emergency Situations V. General Conclusion 6. The Right to Privacy I. Introduction II. The Right to Privacy: Basic Notions III. The Right to Privacy and Counter-Terrorism Measures IV. General Conclusion 7 The Right to a Fair Trial I. Introduction II. The Right to a Fair Trial: Basic Notions III. The Right to a Fair Trial and Counter-Terrorism Measures IV. Limitations of the Right to a Fair Trial in War and Emergency Situations V. General Conclusion 8 Conclusion

About the Author :
Stefan Sottiaux is Professor of Constitutional and Administrative Law in the Faculty of Law at the University of Leuven. He is a member of the Brussels bar where he practises constitutional and human rights law.

Review :
This is a highly informative study that will be of interest to a broad range of academics and can be drawn upon as additional reading for advanced courses on human rights. It is a very welcome addition to the literature on human rights and terrorism. Different readers will gain different things from a thought-provoking study. In view of the concerns over terrorism and the preoccupation with human rights protections in the contemporary world, Sottiaux's study on the limitations of rights is a most welcome contribution to the legal scholarship...Sottiaux provides a useful analysis of the judicial review of contemporary strategies of counter-terrorism on the basis of human rights considerations. Until now there did not exist a clear composition drawing up the differences between the European Convention for the Protection of Human Rights and the Bill of Rights in the US Constitution with regard to terrorism-related limitations. With the current book Sottiaux filled that gap admirably and thus created a precious help for practitioners in that field of law. ...Stefan Sottiaux delivers an impressively comprehensive and detailed examination of this issue...In its primary purpose the analysis of how a model of limitation may influence the outcome of the 'balancing exercise' the book is compelling. It is to be recommended as an excellent review of the relevant ECHR and US case-law for anyone interested in the relationship between counter-terrorism and human rights. This impressive and highly relevant book offers both a theoretical account of the paradoxical relationship between terrorism and human rights, and a comprehensive comparative survey of the major decisions in this respect of the highest courts on both sides of the Atlantic, the European Court of Human Rights (ECtHR) and the United States Supreme Court (SC). This work is highly recommended as an excellent description and legal analysis of the ECHR, US Constitution and their case-law, specifically in relation to counter-terrorism and human rights.