Secrecy as Counter-Terrorism: How should the European Court of Human Rights respond?

The extensive growth in bi- and multi-lateral intelligence gathering, processing and information sharing has become one of the most enduring legacies of the events of 9/11. What can, by now, be described as entrenched ‘information intoxication’ of security agencies has not only resulted in operational changes within the intelligence community but has also led to significant modifications within traditional judicial procedures. In recent years, secret intelligence evidence is increasingly being heard behind closed doors in the United Kingdom and the Netherlands.
What this paper proposes is to critically assess key aspects of these developments with reference to the jurisprudence of the European Court of Human Rights. It will be argued that the regularised use of secret intelligence evidence and the damaging constitutional impact of excessive judicial deference in counter-terrorism cases endangers the existing European Public Order and may, to an extent, have already altered it.

European Public Order in Times of Change: View from Strasbourg

The European Court of Human Rights (ECtHR) has used European Public Order (EPO) in over 100 judgments. This number shows that its deployment is not a coincidence and the Court takes EPO seriously. At the same time, in none of these judgments the Court has explained what EPO actually means and how it can be conceptualised. The Court’s references to EPO are often inconsistent and highlight various aspects of its meaning. If the ECtHR has an ambition to shape and regulate EPO it needs to clarify its understanding of this complex abstract notion. This presentation will analyse 17 interviews with the judges of the ECtHR. The judges were asked what is EPO and what their role is in shaping this order. The judges also commented on whether EPO changes over time and how these changes are reflected in the ECtHR judgments. The most illustrative answers will be discussed and placed in the context of the ECtHR’s case law.

Assessing the Impact of Vulnerability on European Public Order in the Case Law of the ECtHR

The paper seeks to assess the legal effects of ‘vulnerability’ in the case law of the Grand Chamber of the European Court of Human Rights (ECtHR) and how vulnerability co-shapes European public order. By assigning vulnerable status to certain categories of individuals, such as migrants, detained persons and minors, the ECtHR has been able to increase the scope of positive obligations of contracting parties, to relax the application of admissibility criteria, or to determine whether the negative dimension of a right has been violated. This special status of the vulnerable applicant in the Convention system is in need of further analysis. By identifying the use of vulnerability in the Court’s Grand Chamber, the paper tracks the impact of vulnerability on the advancement of human rights protection in Europe and discusses how ultimately this can inform our understanding of a burgeoning European Public Order.

Exporting the ECHR Public Order outside Europe: the European Convention of Human Rights as the Applicable Law of Peace Missions

The liability of States parties to international human rights treaties when engaged in peace operations has long been disputed, especially if operating under the effective control of international organisations. The ECtHR recognises the applicability of the ECHR to missions outside the States parties’ territories and even outwith the European “legal space.” In the European contexts (e.g. Kosovo) the ECHR was indeed applied ab initio and the local authorities accepted the succession to that public order upon those missions’ conclusion. However, despite the applicability of the ECHR in operations outside Europe being mandated by the Court’s case law and some States parties, doing so proved to not always be entirely feasible under local circumstances.
This paper argues that exportation of the ECHR public order is theoretically defensible but only partially enforceable, using the Court’s case law and States parties’ practice to exemplify challenges encountered in those circumstances.