Book review: Terrorism and the Limitation of Rights

Mathieu Deflem
www.mathieudeflem.net

This is a copy of a review published in Law & Politics Book Review, 18(7):673-676, July 2008.

Please cite as: Deflem, Mathieu. 2008. Review of Terrorism and the Limitation of Rights: The ECHR and the US Constitution, by Stefan Sottiaux. Law & Politics Book Review 18(7):673-676.



In this timely book, Belgian legal scholar Stefan Sottiaux analyzes constitutional issues involved with terrorism-related legal measures on the basis of considerations of human rights. In order for governments to properly balance rights while also providing adequate security, Sottiaux particularly examines how the European Convention for the Protection of Human Rights and Fundamental Freedoms and the US Constitution can be relied upon to enforce certain provisions to limit important rights, while still safeguarding the basic intent and purpose of human-rights protections, in view of the threat of terrorism and the counter-terrorism measures that are being developed and implemented. It requires little if any explicit justification to argue for the relevance of these constitutional questions in the post-9/11 era. Terrorism and human rights, also, are closely related matters. Terrorist activities pose a serious set of risks to the enjoyment of the most basic rights of freedom, life, and public safety. At the same time, however, counter-terrorism measures may in turn also affect, and pose restrictions on, individual freedoms and rights. In modern democratic societies, counter-terrorism measures need to abide by the dual standard of offering effective protections against terrorism and of not violating fundamental rights while doing so. These human rights considerations pertain particularly in democracies when they are faced with extreme or sudden disturbances of social life, such as during times of war or under conditions of more or less enduring threats of terrorist violence. Under these circumstances, states need to respond to terrorism by neither over-reacting nor under-reacting in offering a proper balance between providing effective tools of counter-terrorism and securing guarantees of human rights.

Sottiaux’s study primarily considers the limitations of rights in relation to the effects counter-terrorism measures may have on human rights as they are constitutionally protected by the European Convention and the US Constitution. The comparative perspective of this study takes into account the global nature of the debate on human rights. The very notion of human rights, after all, is by definition not restricted to any one nation state. Further, the problem of terrorism as it exists today essentially defies the boundaries of historically more readily disconnected national jurisdictions. Additionally, the comparative nature of Sottiaux’s study serves to tease out the similarities and differences that exist between the two important documents seeking to respect rights on both sides of the Atlantic. The European Convention and the US Constitution are not of the same order, as one pertains to the international level and the other is a [*674] national instrument. The documents are also written in a different language, whereby, most essentially, the European Convention contains affirmative statements of rights and is more community-oriented, whereas the Constitution of the United States relies on a negative language to forbid government from interfering with basic rights from an individualistic viewpoint. Relatedly, the European Convention contains explicit clauses that specify when the human rights protections do not apply, whereas the US Constitution has no such provisions. As such, the European document has a more ‘militant’ orientation in detailing the limits of its provisions, whereas the US Constitution abides by a ‘tolerant’ conception of the exercise of rights.

Constitutional law is made up not only of the articles and amendments included in constitutional documents, but also of the decisions that are made by the relevant (higher) courts. Thus, it is important to consider the judgments rendered by the European Court of Human Rights in Strasbourg and the US Supreme Court. The role of the courts is amplified in Sottiaux’s study, as the author argues in favor of a flexible approach to human rights interpretation and application, whereby the courts can in their evaluations independently exercise judicial review in estimating the scope and applicability of human rights. This flexible method comprises a balancing perspective to human rights, whereby all relevant acts are considered in weighing the damage that results from infringements on human rights, on the one hand, and the specific threat from terrorism and other pressing problems which government conduct seeks to respond to, on the other. Unlike the bright-line rules of categorical methods to limit rights, the standards of limitations suggested in a flexible approach allow for more judicial discretion to respond appropriately to specific situations.

Generally, the flexible approach is better accommodated under the European Convention, in part because of its explicit derogation provisions, whereas the US Constitution tends to favor strategies of avoidance to leave final decisions to the political branch of government. The European Convention indeed contains a umber of specific limitation clauses that detail when human rights protections do not imply, such as restrictions imposed by (national) laws, the necessity to protect democratic society, and interests that serve national security, public safety, and economic well-being. The European Convention also contains certain implied limitations (except in cases where specific limitations pertain) in stressing that no right is absolute and must always be balanced with other rights and interests. Further, an emergency derogation specifies that governments may deviate from human rights protections under condition of war or other public emergencies that threaten the state. Finally, the European Convention implies a limitation by allowing for a margin of appreciation for individual states to interpret and apply specific laws within the general human rights framework, thus again demonstrating the Convention’s commitment to a flexible approach in specifying limitations of rights.

The United States Constitution does not explicitly specify conditions when its rights do not apply, yet the courts have [*675] drawn certain limits to its provisions by estimating the scope of certain rights and defining their contents. Further, certain standards or tests have been formulated to examine a right relative to a government interest that is meant to be served by restricting that right and to estimate the fit between a government interest and the means with which it is meant to be achieved. No emergency derogations are included in the Constitution except in the case of the privilege of the writ of habeas corpus, which can be suspended in the interest of public safety during a rebellion or invasion. As such, the US Constitution is more geared towards a categorical rather than a flexible approach in limiting rights.

From the above specified framework, Sottiaux proceeds to analyze the freedoms of expression and association and the rights of personal liberty, privacy, and a fair trail, devoting a chapter to each constitutional right and examining it comparatively under the provisions of the European Convention and the US Constitution. Summarizing the findings from this analysis, Sottiaux first contends that terrorism cannot be constitutionally protected as an expressive activity because of the violence involved. The situation is different for terrorism-related speech, in which case both the European and US constitutional courts have tests in place to determine whether speech is allowed or not. Similar to the restrictions in other areas, the European approach allows more room for ad hoc interpretations, while the US Constitution rules in a categorically-oriented manner. The freedom to associate has a specific relation to terrorist activities because they are typically planned and conducted by organizations, rather than individuals. The European Court leaves ample leeway for Europe’s states to outlaw certain organizations, while the US Court has been less willing to deal with an individual’s association with a group, while being more tolerant of the criminalization of providing material support to terrorist-designated groups. The judicial rulings in Europe and the United States with respect to the rights of personal liberty and privacy reveal the same basic pattern, whereby the European Convention is judged to allow for more flexibility, while the US Constitution is interpreted in categorical terms on the basis of fixed rules.

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. The debate on counter-terrorism and (human) rights, moreover, has generally been addressed in the by now too familiar terms of a need to balance rights and security. However, as Sottiaux aptly argues, in legislating counter-terrorism and other security measures, states need both to negatively respect rights of freedom and non-interference and positively protect those rights when they are under attack. Although Sottiaux does not always terminologically respect the consequences of this reformulation, preferring to hold on to the search for a balance between rights and security, the debate on counter-terrorism (and other) measures of law and policy thus needs to be approached as a struggle between (different) rights, rather than between rights and security. [*676]

There is little doubt that Sottiaux’s book provides ample evidence to sustain the notion that the flexible approach adopted in the judicial review of the European Convention has advantages over the US judicial framework that allows for an all-or-nothing approach to counter-terrorism measures and thereby differentiates categorically between situations (and people) when rights have to be protected or, conversely, can be suspended. However, because of its juristic (law-internal) rather than socio-legal perspective, this book has less to say about why this is the case. Most importantly, Sottiaux does not consider the characteristics of the societal contexts in Europe and the United States in which the differing judicial frameworks and their respective constitutional bases are applied and to which extent and how variable outcomes are produced. This societal contextualization also affects the interpretation and application of the two considered documents, which themselves are different in important respects. As Sottiaux realizes, the European Convention applies to the international level of the European Union, while the US Constitution pertains to the federal level of government. But this difference has important contextualized consequences. While a high premium is placed in the United States on the sovereign powers of the individual states, the principle of sovereignty is less at stake in the case of counter-terrorism because most of the provisions under the banner of the war on terror operate at the federal level. Thus, the comparison between the European Convention and the US Constitution proceeds from a distinct imbalance, which a broader socio-legal perspective could lay bare. Having said that, however, Sottiaux provides a useful analysis of the judicial review of contemporary strategies of counter-terrorism on the basis of human rights considerations. Especially the European dimension that is explained in this work will be useful to American scholars in order to be better get acquainted with, and possibly learn from, the principles that can, and perhaps better would be, be at work in judging counter-terrorism measures.