Last night I was at the University of Liverpool to act as discussant of a lecture by Judge Johannes Silvis of the European Court of Human Rights who spoke about ‘terrorism and human rights’ in the jurisprudence of the Court. In his lecture, Judge Silvis outlined some of the key challenges for the reconciliation of rights and security in the cases that come before the Court, and discussed key jurisprudence as well as flagging important forthcoming cases (e.g. on surveillance, and the revisiting of Ireland v United Kingdom).
I was very pleased to be invited to respond to and discuss Judge Silvis’ lecture. Of course, in a short period of time (20 minutes) one cannot expect to do justice to the complexity of the jurisprudence in question, or indeed to challenging context in which these cases emerge and are adjudicated. However, having outlined what we might justifiable expect of a supranational, subsidiary, human rights court such as the ECtHR in the context of counter-terrorism and human rights (e.g. challenging underpinning assumptions about rights and/or security, challenging claims of extraordinariness, maintaining a clear and effective distinction between emergency and normalcy), I argued that the Court’s record is a mixed one. The key challenge is the deference afforded by the Court to state claims of (a) exceptional insecurity, (b) the necessity of the measures impugned, and (c) the content of the rights protected by reference to (a) and (b). I also questioned whether, notwithstanding this mixed record and the persistence of deference, the Court is capable of doing more while maintaining its legitimacy, especially taking into account its particular and limited nature.
The lecture was broadcast, but is also available now on YouTube, with my response/discussion starting at around 54 minutes in.