I am pleased to say that my forthcoming article, “Accounting for Rights in EU Counter-Terrorism: Towards Effective Review”, has now gone to print. The paper will appear in the Columbia Journal of European Law, the world’s top-ranked EU law journal, and builds on work undertaken as part of the SECILE project. It also sets some of the scene for the work I will be doing in the coming 12 months with the Israel Democracy Institute, tracing the role of rights and proportionality in the process of making the (imminent) EU Directive on Combating Terrorism. As the EU moves towards a European Security Union (discussed again in Brussels just yesterday), our understanding of how, where, when and whether human rights are effectively considered in both ex ante and ex post facto processes relating to EU counter-terrorism continues to be significant. My research suggests that these processes fail to take rights into adequate account, but that a change in mindset (which I propose in this paper) may help.
The full paper will soon be published, although I am happy to provide a pdf by email should anyone request it (f.delondras @ bham.ac.uk). In the meantime, the abstract is as follows:
Since 2001 the European Union (EU) has developed a rich and wide-ranging body of counter-terrorism law. However, in making and implementing that law the EU, its institutions and its member states have often failed to adequately account for fundamental rights. Thus, EU counter-terrorism has been criticized as unduly interfering with the right to privacy, for example, to the extent that the Court of Justice struck down the Data Retention Directive in 2014 on fundamental rights grounds. This Article outlines the mechanisms by which rights are accounted for in EU counter-terrorism, identifying the deficiencies in current practices. The article argues for an effective “feedback loop” in EU counter-terrorism, advocating the design and implementation of a system of regular and evaluative reviews of EU counter-terrorist laws with a view to both identifying and remedying rights-related deficiencies in those laws, and improving the governance of EU counter-terrorism in order to reduce the likelihood of such deficiencies arising in future law-making processes. Such a system, the Article argues, ought to be designed by reference to the principles of cooperation, transparency and responsiveness.