Terrorism and the Limitation of Rights: The ECHR and the US Constitution by Stefan Sottiaux

Publication Date01 Jan 2009
AuthorDaniel Moeckli
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00738_2.x
Stefan Sottiaux, Terrorism and the Limitation of Rights:The ECHR and the
US Constitution,Oxford: Hart Publishing, 2008,472 pp, hb d55.00.
In the name of ¢ghting terrorism, states all over the world have introduced mea-
sures that, if adopted in a di¡erent context, would be seen as serious violations of
human rights: people have been detained without charge or trial, membershipof
certain organisations has been banned, certain forms of speech have been crimi-
nalised, and law enforcement agencies have been granted unprecedented powers
of secret surveillance. In an‘age of terror’, it is argued, the relationship between
security and liberty need s to be ‘rebalanced’a nd limi tations of fundame ntal rights
must be accepted as ‘the lesser evil’. Yet too often it is readily assumed that such
rebalancing is c ompatible with existing huma n rights standards. There is a press-
ing need for caref ul analysis of how far exactly human rights law allows states to
‘tilt the balance’towards security.WithTerrorism and the Li mitation of Rights,Stefan
Sottiauxdelivers an impressivelycomprehensive and detailed examination of this
issue.
Sottiaux does not question the notion of (re-)balancing that underlies the
recent shift towards more restrictive security policies. On the contrary, he takes
as the starting point of his study the view that ‘decision-makers faced with the
problem of terrorism must seek to balance the competing values of liberty and
security’, characterising it as ‘widely accepted’ (1) and ‘relatively uncontroversial’
(7).This may be a slight underestimation of the important, and growing, body
of scholarship that is highly critical of the balancing language. This criticism
mainly relates to the fact that the notion of balance obscures that, in reality, what
are weighed against each other are often the majority’s security on the one hand
and the liberty of only a small minority on the other. Furthermore, the idea that
liberty and security are ‘competing values’ that are in a relationship of balance,
with the one automatically increasing when the other is reduced, is at best an
oversimpli¢cation and at worst misleading. A consideration of the shortcomings
of the balancingmetaphor might have drawnthe author’s attentionto those pro-
blems raisedby counter-terrorism measures that cannot be reduced tothe issue of
balancing. For example, in the Belmarsh Detention case (AvSecretaryof Stateforthe
Home Department [2004] UKHL 56), discussed in Chapter 5 of the book, the key
de¢ciencyof the government measurewas not the lack ofbalance but the fact that
not everyone was equally a¡ected by it.
Aligning himself withthe view that there is a need for (re-)balancing,Sottiaux
sets out to explore two aspects of this ‘balancing exercise’. First, he seeks to exam-
ine how the design a nd enforcement of a human rights instrume nt may in£ue nce
the outcome of this exercise. Second, he attempts to assess what model of limita-
tion of fundame ntal rights is most likely to result in sol utions that strike an appro-
priate balance between security and liberty. To do this, he engages in a
comparative analysis of the limi tation of fundamental right s under the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR) and the US Constitution. After setting out the general principles gov-
erning the limitation of rights under these two systems (Chapter 2), he examines
and compares limitations imposed for the purpose of combating terrorism on
the following ¢ve human rights: the r ight to freedom of expression (Chapter 3),
Reviews
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r2009 The Authors. Journal Compilationr20 09 The Modern LawReview Limited.
(2009) 72(1) 130^155

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