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Judicial War on Terror: Striking a Fair Balance Between National Security and Human Rights Safeguard in Recent Case Law of European Courts
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JUDICIAL WAR ON TERROR:
STRIKING A FAIR BALANCE
BETWEEN NATIONAL SECURITY AND HUMAN RIGHTS SAFEGUARD
IN RECENT CASE-LAW OF EUROPEAN COURTS
Dr. Carmen Draghici*
Diana Draghici†, Ph.D. Candidate
Abstract: Our paper seeks to explore the solutions of European supra-national jurisprudence vis-à-vis the necessity of reconciling counter-terrorism with human rights standards. We illustrate this dilemma with the UN and EU regimes of financial sanctions against individuals suspected of supporting terrorism (the so-called ‘blacklisting’ practice), which raise issues under human rights law (in particular with regard to the right of access to a judge, the right to peaceful enjoyment of property, and the right to an effective remedy). In order to examine the priority of values established by the judicial bodies in balancing individual rights and security goals, we compare the legal reasoning of the EC Court of First Instance on cases concerning the above-mentioned blacklists with the balancing criteria applied by the European Court of Human Rights with reference to national counter-terrorism measures restraining human rights. We analyze the relationships between the balancing criteria employed by the Courts by means of a wide range of statistical tools, with a view to distinguishing general judicial patterns that may cast a light on the controversial legitimacy of the blacklisting regimes. We conclude that these patterns indicate that the increased executive prerogatives acknowledged when State security and the collective well-being are at stake cannot entirely dispense with proper legal safeguards for targeted individuals. Keywords: terrorism - security, human rights, European Convention of Human Rights, balancing techniques, UN Security Council , 'European Union, statistical analysis
Paper prepared for presentation at the 66
th
Annual Meeting of the Midwest Political
Science Association, Chicago, IL, April 3-6, 2008
* Dr. Carmen Draghici is Leverhulme Visiting Post-doctoral Research Fellow, Center on Human Rights in Conflict, School of Law, University of East London, UK. Correspondence address: Duncan House, Stratford High Street, London E15 2JB, UK; Phone office: +44 (0) 2082233229; Mobile: +44 (0) 7514704864; E-mail:
c.## email not listed ##
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† Diana Draghici is Ph.D. Candidate at the Department of Political Science, University of Gothenburg, Sweden, and Visiting Scholar at the Institute of Governmental Studies, University of California, Berkeley. Correspondence address: IGS, UC Berkeley, 108 Moses Hall #2370, Berkeley, CA 9720-2370, USA; Mobile: +1-415-215-7706; E-mail:
diana.## email not listed ##
or
## email not listed ##
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| | Authors: Draghici, Carmen. and Draghici, Diana. |
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JUDICIAL WAR ON TERROR:
STRIKING A FAIR BALANCE
BETWEEN NATIONAL SECURITY AND HUMAN RIGHTS SAFEGUARD
IN RECENT CASE-LAW OF EUROPEAN COURTS
Dr. Carmen Draghici*
Diana Draghici†, Ph.D. Candidate
Abstract:
Our paper seeks to explore the solutions of European supra-national jurisprudence vis-à-vis the
necessity of reconciling counter-terrorism with human rights standards. We illustrate this
dilemma with the UN and EU regimes of financial sanctions against individuals suspected of
supporting terrorism (the so-called ‘blacklisting’ practice), which raise issues under human rights
law (in particular with regard to the right of access to a judge, the right to peaceful enjoyment of
property, and the right to an effective remedy). In order to examine the priority of values
established by the judicial bodies in balancing individual rights and security goals, we compare
the legal reasoning of the EC Court of First Instance on cases concerning the above-mentioned
blacklists with the balancing criteria applied by the European Court of Human Rights with
reference to national counter-terrorism measures restraining human rights. We analyze the
relationships between the balancing criteria employed by the Courts by means of a wide range of
statistical tools, with a view to distinguishing general judicial patterns that may cast a light on the
controversial legitimacy of the blacklisting regimes. We conclude that these patterns indicate that
the increased executive prerogatives acknowledged when State security and the collective well-
being are at stake cannot entirely dispense with proper legal safeguards for targeted individuals.
Keywords: terrorism - security, human rights, European Convention of Human Rights, balancing
techniques, UN Security Council , 'European Union, statistical analysis
Paper prepared for presentation at the 66
th
Annual Meeting of the Midwest Political
Science Association, Chicago, IL, April 3-6, 2008
* Dr. Carmen Draghici is Leverhulme Visiting Post-doctoral Research Fellow, Center on Human Rights in
Conflict, School of Law, University of East London, UK. Correspondence address: Duncan House,
Stratford High Street, London E15 2JB, UK; Phone office: +44 (0) 2082233229; Mobile: +44 (0)
7514704864; E-mail:
c.## email not listed ##
.
† Diana Draghici is Ph.D. Candidate at the Department of Political Science, University of Gothenburg,
Sweden, and Visiting Scholar at the Institute of Governmental Studies, University of California, Berkeley.
Correspondence address: IGS, UC Berkeley, 108 Moses Hall #2370, Berkeley, CA 9720-2370, USA;
Mobile: +1-415-215-7706; E-mail:
diana.## email not listed ##
or
## email not listed ##
.
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