Security/Counter-Terrorism

States hold a fundamental responsibility for the provision of security as a common good, which co-exists with our expectation that they will also protect the polity in a broader sense: preserving liberty, enhancing democracy, protecting rights, aiding social cohesion, providing a baseline of social and economic stability and so on. These multiple functions are sometimes placed in tension with one another by the requirements, or perceived requirements, of security. My research explores these tensions in three main ways: (i) by exploring the resilience of human rights in the face of counter-terrorism, (ii) by interrogating the societal and legal implications of counter-terrorism and how we can understand and take account of these, and (iii) by exploring the nature of the contemporary counter-terrorist state and its implications for constitutionalism.

The resilience of human rights

detbookHuman rights undoubtedly come under strain in the context of counter-terrorism. This arises from the nature of what states perceive to be necessary security activity as well as from states’ attempts to reshape the legal limitations under which they operate in order to facilitate such activity. In my 2011 book Detention in the War on Terror: Can Human Rights Fight Back? (CUP) I argued that we can observe both external and internal challenges to human rights since 2001. External challenges–such as that of the US–relate to the very applicability of international human rights standards; Internal challenges–such as that of the UK–accept the applicability of human rights but argue for their recalibration in the face of the nature of ‘new’ and ‘grave’ terroristic threats. This raises questions about how we can build resilience in human rights; questions that I have often answered by placing faith in the judiciary in the face of what appears to be political inability or unwillingness to stand up for rights. Increasingly, however, I call for a collaborative approach including but not limited to what I term judicial muscularity.

My more recent work on this, approaching the matter largely through a ‘judicial review’ lens, proposes a concept of ‘regulatory 9781107053618constitutionalism’ and is published in Davis & de Londras (eds), Critical Debates on Counter-Terrorism Judicial Review which was published by CUP in late 2014. My chapter, “Counter-Terrorist Judicial Review as Regulatory Constitutionalism”, can be accessed on Durham Research Online. The book opens with a long introductory chapter, coauthored with Davis, entitled “Counter-Terrorist Judicial Review: Beyond Dichotomies”, which can also be read on DRO.

The Societal and Legal Implications of Counter-Terrorism

9781138854130In a European Commission funded project (SECILE) I led an international and inter-disciplinary team considering the implications of counter-terrorism for law and society through the prism of three governing ideas: impact, legitimacy and effectiveness. The project ran from May 2013-November 2014, and has now culminated in a major edited collection published by Routledge (de Londras & Doody (eds), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (2015)). You can also access the project deliverables without charge here.

My chapter in the collection is entitled “Governance Gaps in EU counter terrorism: implications for democracy and constitutionalism”. In it I argue that the making and implementation of EU counter-terrorism raises serious questions as to the extent to which this limb of the Union’s activities is undertaken in accordance with the constitutionalist spirit of the Union and, if not, what implications this may have for constitutionalism and legitimacy within the EU. Although some of these concerns have been doctrinally (if not yet practically) resolved through the dissolution of the three pillars and further empowerment of the European Parliament in the Lisbon Treaty, a number of fundamental concerns persist. The chapter starts by outlining the scope of the EU’s counter-terrorism activities since 2001, before going on to consider the paper’s framing concepts of constitutionalism and legitimacy. Building on this, the paper then assess EU counter-terrorism by reference to provenance, process, democratic oversight and effectiveness in order to consider the extent to which EU constitutionalism may be compromised or called into question in the field of counter-terrorism as so far engaged with by the Union. I argue that the EU experiences constitutionalist tensions in the making and implementation of counter-terrorism law and policy, some of which are resolved by the courts of the EU, but the nature of which point to the need to build further constitutionalist structures into EU counter-terrorism.

I also published a major article reflecting on how the EU does–and should–‘account’ for rights when making counter-terrorism: Fiona de Londras, “Accounting for Rights in EU Counter-Terrorism: Towards Effective Review” (2016) 22(2) Columbia Journal of European Law 237-274. 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.

The Nature of the Contemporary Counter-Terrorist State and Its Constitutionalist Implications

UnknownMuch of my current work focuses on understanding, mapping and critiquing the contemporary counter-terrorist state. This takes two different paths. First, work which I recently completed with Blackbourn and Morgan, funded by the Joseph Rowntree Charitable Trust, considered what role if any counter-terrorism review might play in optimising accountability in the counter-terrorist state, and proposed a set of values or principles that ought to underpin such review. This work culminated in Accountability and Review in the Counter-Terrorist State which will be published by Bristol University Press in late 2019.

The second strand of this work focuses on transnationalism in counter-terrorism and particularly on the challenges this poses to constitutionalism as international organisations drive the counter-terrorist agenda more strongly, with insufficient regard for process, participation and rights. The main outcome of this work so far is my Current Legal Problems lecture and article, ‘The Transnational Counter-Terrorism Order: A Problématique’ which will be published later in 2019. I am currently working on a monograph on transnationalism and counter-terrorism to be published by Cambridge University Press in 2021.

Relevant Publications

Jessie Blackbourn, Fiona de Londras & Lydia Morgan (2019), Accountability and Review in the Counter-Terrorist State (Bristol University Press), forthcoming

Cora Chan & Fiona de Londras (2019/2020), China’s National Security: Endangering Hong Kong’s Rule of Law? (Hart Bloomsbury) forthcoming

Fiona de Londras, “Transnational Counter-Terrorism: A Problématique” (2019) Current Legal Problems forthcoming

Fiona de Londras, “Politicisation, Law and Rights in the Transnational Counter-Terrorism Space: Indications from the Regulation of Foreign Terrorist Fighters” (2018) 5(3) European Review of International Studies 115

Fiona de Londras (2020), “Sustainable Security: A Proposal” in Dapo Akande, Jaakko Kuosamanen, Dominic Roser & Helen McDermott (eds), Human Rights and 21st Century Challenges: Poverty, Armed Conflict, and the Environment (Oxford University Press) forthcoming

Fiona de Londras & Lydia Morgan, “Is there a Conservative Counter-Terrorism?” (2018) 29(2) King’s Law Journal 185-217

Fiona de Londras (2018), “Evaluation and effectiveness of counter-terrorism” in J. Peter Burgess et. al. (eds), Socially Responsible Innovation in Security: Critical Reflections (Routledge)

Fiona de Londras (2017), “Reviewing the Effectiveness of EU Counter-Terrorism Policies” in Sergio Carrera and Valsamis Mitsilegas (eds), Constitutionalising the Security Union: Effectiveness, Rule of Law, and Rights on Countering Terrorism and Crime (CEPS). Open access available

Fiona de Londras (2017), “Hybrid (Counter-) Terrorism” in Nicolas Lemay-Hebert & Rosa Freedman, Hybridity: Law, Culture, and Development (Routledge), 58-73

Fiona de Londras, “Accounting for Rights in EU Counter-Terrorism: Towards Effective Review” (2016) 22(2) Columbia Journal of European Law 237-274

Fiona de Londras & Josephine Doody (2015), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (Routledge)

Fergal F. Davis & Fiona de Londras (2014), Critical Debates on Counter-Terrorism Judicial Review (Cambridge; Cambridge University Press)

Fiona de Londras, (2011) Detention in the War on Terror: Can Human Rights Fight Back?, Cambridge University Press

Fiona de Londras (2015), “Governance Gaps in EU Counter-Terrorism: Implications for Democracy and Constitutionalism” in Fiona de Londras & Josephine Doody (eds), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (Routledge)

Fiona de Londras & Josephine Doody (2015), “Introduction” in Fiona de Londras & Josephine Doody (eds), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (Routledge)

Fiona de Londras (2014), “Counter-Terrorist Judicial Review as Regulatory Constitutionalism” in Fergal F. Davis & Fiona de Londras, Critical Debates on Counter-Terrorism Judicial Review (CUP)

Fergal F. Davis & Fiona de Londras (2014), “Counter-Terrorist Judicial Review: Beyond Dichotomies” in Fergal F. Davis & Fiona de Londras, Critical Debates on Counter-Terrorism Judicial Review (CUP)

Fiona de Londras (2014), “Counter-Terrorist Detention and International Human Rights Law” in Ben Saul (ed), Research Handbook on Terrorism and International Law (Edward Elgar)

Fiona de Londras & Josephine Doody, Submission on Impact Assessment in the European Commission

Fiona de Londras (2013) ‘Guantánamo Bay, the Rise of Courts and the Revenge of Politics’ In: David Jenkins, Anders Henriksen & Amanda Jacobsen (eds). The Long Decade: How 9/11 Has Changed the Law (OUP)

Fiona de Londras (2013), “Privatised Counter-Terrorist Surveillance: Constitutionalism Undermined” in George Williams, Fergal F Davis & Nicola McGarrity (eds), Surveillance, Counter-Terrorism and Comparative Constitutionalism (Routledge)

Fiona de Londras (2013), ‘Prevention, Detention and Extraordinariness’ in Fionnuala ní Aoláin and Oren Gross (eds), Guantánamo Bay and Beyond Exceptional Courts and Military Commissions In Comparative and Policy Perspective (CUP), 117

F. de Londras, “Privatized Sovereign Performance: Regulating in the ‘Gap’ Between Security and Rights” in C. Scott, F. Caffagi & L. Senden (eds), Transnational Private Regulation: Conceptual and Constitutional Debates (2011, Wiley Blackwell)

Fiona de Londras (2010) ‘Terrorism as an International Crime’ In: William Schabas & Nadia Bernaz (eds). Routledge Handbook on International Criminal Law . London: Routledge

Fiona de Londras (2012), ‘Closing Guantánamo Bay: The Triumph of Politics over Law?’ [2012] Public Law 18-26.

Fiona de Londras (2011), ‘Can Counter-Terrorist Internment Ever Be Legitimate?Human Rights Quarterly 33(3): 593-619

Fiona de Londras (2011) ‘Privatized Sovereign Performance: Regulating in the ‘Gap’ between Security and Rights?‘. Journal of Law and Society, 38 (1): 96-118

Fiona de Londras & Suzanne Kingston (2010) ‘Rights, Security and Conflicting International Obligations: Exploring Inter-Jurisdictional Judicial Dialogues in Europe‘. American Journal of Comparative Law, 58 (2):359-413 (extracted in Sudha Setty (ed), Constitutions, Security and the Rule of Law (2014, London, New York and Amsterdam; iDebate Press, 123-139).

Fiona de Londras & Fergal F Davis (2010) ‘Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight‘. Oxford Journal of Legal Studies , 30 (1):19-47

Fiona de Londras (2009) ‘Shannon, Saadi and Ireland’s Reliance on Diplomatic Assurances’. Irish Yearbook of International Law , 2 :79-90

Fiona de Londras (2008) ‘International Decision: Saadi v Italy’. American Journal of International Law , 102 :616-622

Fiona de Londras (2008) ‘What Human Rights Law Could Do: Lamenting the Lack of an International Human Rights Law Approach in Boumediene and Al Odah‘. Israel Law Review, 41 (3):562-595

Fiona de Londras (2008) ‘Guantanamo Bay: Towards Legality?Modern Law Review, 71 (1):36-58

Fiona de Londras (2007) ‘The Right to Challenge the Lawfulness of Detention: An International Perspective on U.S. Detention of Suspected-TerroristsJournal of Conflict and Security Law, 12 (2):223-260

Fiona de Londras (2007) ‘In the Shadow of Hamdan v Rumsfeld: Habeas Corpus Rights of Guantánamo Bay Detainees’ Irish Criminal Law Journal, 17 (2):8-16.

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