Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Human Rights Law in Perspective)

Taking as a starting point the widely accepted view that states confronted with terrorism must find a proper equilibrium between their respective obligations of preserving fundamental rights and fighting terrorism effectively, this book seeks to demonstrate how the design and enforcement of a human rights instrument may influence the result of that exercise. An attempt is made to answer the question how a legal order’s approach to the limitation of rights may shape decision-making trade-offs between the demands of liberty and the need to guarantee individual and collective security. In doing so, special attention is given to the difference between the adjudicative methods of balancing and categorisation. The book challenges the conventional wisdom that individual rights, in times of crisis, are better served by the application of categorical rather than flexible models of limitation. In addition, the work considers the impact of a variety of other factors, including the discrepancies in enforcing an international convention as opposed to a national constitution and the use of emergency provisions permitting derogations from human rights obligations in time of war or a public emergency. The research questions are addressed through a comparative study of the terrorism-related restrictions on five fundamental rights protected under the European Convention on Human Rights and the United States Constitution: the right to freedom of expression, the right to freedom of association, the right to personal liberty, the right to privacy, and the right to a fair trial. The book offers both a theoretical account of the paradoxical relationship between terrorism and human rights and a comprehensive comparative survey of the major decisions of the highest courts on both sides of the Atlantic. Half title page......Page 1 Title page......Page 5 Title verso......Page 6 Acknowledgements......Page 9 Contents......Page 11 Table of Cases......Page 13 I. Human Rights and Terrorism......Page 29 II. Object and Purpose......Page 37 III. Selection of Human Rights Instruments......Page 42 IV. Preliminary Conclusions......Page 51 V. Structure and Methodology......Page 60 I. Introduction......Page 63 II. Balancing and Catagorical Methods of Limitation......Page 65 III. The Limitation of Rights under the European Convention......Page 68 IV. The Limitation of Rights under the US Constitution......Page 84 V. Conclusion......Page 92 II. The Right to Freedom of Expression: Basic Notions......Page 95 III. Terrorism as Expressive Conduct......Page 102 IV. Terrorism- Related Speech......Page 109 V. Terrorism and the Media......Page 145 II. The Right to Freedom of Association: Basic Notions......Page 181 III. Counter- Terrorism and the Right to Freedom of Association......Page 187 IV. General Conclusion......Page 222 II. The Right to Personal Liberty: Basic Notions......Page 225 III. The Right to Liberty and Counter Terrorism Measures......Page 232 IV. Deprivation of Liberty in War and Emergency Situations......Page 261 V. General Conclusion......Page 289 I. Introduction......Page 293 II. The Right to Privacy: Basic Notions......Page 294 III. The Right to Privacy and Counter- Terrorism Measures......Page 302 IV. General Conclusion......Page 349 II. The Right to a Fair Trial: Basic Notions......Page 351 III. The Right to a Fair Trial and Counter Terrorism Measures......Page 360 IV. Limitations of the Right to a Fair Trial in War and Emergency Situations......Page 414 V. General Conclusion......Page 430 8 Conclusion......Page 433 Bibliography......Page 439 Index......Page 465 Half title page 1 Title page 5 Title verso 6 Acknowledgements 9 Contents 11 Table of Cases 13 I Introduction 29 I. Human Rights and Terrorism 29 II. Object and Purpose 37 III. Selection of Human Rights Instruments 42 IV. Preliminary Conclusions 51 V. Structure and Methodology 60 2 The Limitation of Rights under the European Convention and the US Constitution 63 I. Introduction 63 II. Balancing and Catagorical Methods of Limitation 65 III. The Limitation of Rights under the European Convention 68 IV. The Limitation of Rights under the US Constitution 84 V. Conclusion 92 3 The Right to Freedom of Expression 95 I. Introduction 95 II. The Right to Freedom of Expression: Basic Notions 95 III. Terrorism as Expressive Conduct 102 IV. Terrorism- Related Speech 109 V. Terrorism and the Media 145 4 The Right to Freedom of Association 181 I. Introduction 181 II. The Right to Freedom of Association: Basic Notions 181 III. Counter- Terrorism and the Right to Freedom of Association 187 IV. General Conclusion 222 5 The Right to Personal Liberty 225 I. Introduction 225 II. The Right to Personal Liberty: Basic Notions 225 III. The Right to Liberty and Counter Terrorism Measures 232 IV. Deprivation of Liberty in War and Emergency Situations 261 V. General Conclusion 289 6 The Right to Privacy 293 I. Introduction 293 II. The Right to Privacy: Basic Notions 294 III. The Right to Privacy and Counter- Terrorism Measures 302 IV. General Conclusion 349 7 The Right to a Fair Trial 351 I. Introduction 351 II. The Right to a Fair Trial: Basic Notions 351 III. The Right to a Fair Trial and Counter Terrorism Measures 360 IV. Limitations of the Right to a Fair Trial in War and Emergency Situations 414 V. General Conclusion 430 8 Conclusion 433 Bibliography 439 Index 465 Taking as a starting point the widely accepted view that states confronted with terrorism must find a proper equilibrium between their respective obligations of preserving fundamental rights and fighting terrorism effectively, this book demonstrates how the design and enforcement of a human rights instrument may influence the result of that exercise. The book looks at the question of how a legal order's approach to the limitation of rights may shape decision-making trade-offs between the demands of liberty and the need to guarantee individual and collective security. Special attention is given to the difference between the adjudicative methods of balancing and categorization. The book challenges the conventional wisdom that individual rights, in times of crisis, are better served by the application of categorical rather than flexible models of limitation. In addition, the work considers the impact of a variety of other factors, including the discrepancies in enforcing an international convention as opposed to a national constitution and the use of emergency provisions permitting derogations from human rights obligations in time of war or a public emergency. Research questions are addressed through a comparative study of the terrorism-related restrictions on five fundamental rights protected under the European Convention on Human Rights and the US Constitution â?” the right to freedom of expression, the right to freedom of association, the right to personal liberty, the right to privacy, and the right to a fair trial. The book offers both a theoretical account of the paradoxical relationship between terrorism and human rights, and a comprehensive comparative survey of the major decisions of the highest courts on both sides of the Atlantic. Comparing cases from the US Supreme Court and the ECHR on terrorism and rights, this title presents a focused examination on the debate between balancing human rights and security