Counterterrorism and the rule of law in an evolving European Union: Plus Ça Change ?

By taking the European Union (EU) as a principal focal point, this chapter will evaluate critically the rule of law challenges arising from the production and operation of counterterrorism norms. The article will focus on four case studies, two involving the rule of law ex ante (at the stage of adoption of EU law) and two involving the rule of law ex post (looking at its impact). In terms of ex ante rule of law challenges, the chapter will analyse the production of binding standards by the global executive and the trickle-down effect of these standards at the regional, EU and national level and the limits of scrutiny and justification of counterterrorism legislation on emergency grounds. In terms of rule of law ex post, the chapter will examine challenges of counterterrorism law to the principle of legality via over-criminalisation and the adoption of vague and broad definitions of terrorism, as well as challenges to the right to a fair trial and principle of effective judicial protection resulting from state arbitrariness in the mechanism of producing terrorist sanctions. The contribution will question whether the entry into force of the Lisbon Treaty, and the process of constitutionalisation of criminal law it entailed, has made a difference regarding the compliance of EU counterterrorism law with the rule of law. </jats:p

Transatlantic intelligence and security cooperation

Despite recent advances in transatlantic intelligence and security cooperation, significant problems remain. The bombings in Madrid in March 2004 have demonstrated how terrorists and criminals can continue to exploit the limits of hesitant or partial exchange to dangerous effect. Intelligence and security cooperation remain problematic because of the fundamental tension between an increasingly networked world, which is ideal terrain for the new religious terrorism, and highly compartmentalized national intelligence gathering. If cooperation is to improve, we require a better mutual understanding about the relationship between privacy and security to help us decide what sort of intelligence should be shared. This is a higher priority than building elaborate new structures. While most practical problems of intelligence exchange are ultimately resolvable, the challenge of agreeing what the intelligence means in broad terms is even more problematic. The last section of this article argues that shared NATO intelligence estimates would be difficult to achieve and of doubtful value

Analysing the European Union's responses to organized crime through different securitization lenses

In the past 30 years, organized crime (OC) has shifted from being an issue of little, or no concern, to being considered one of the key security threats facing the European Union (EU), the economic and political fabric of its society and its citizens. The purpose of this article is to understand how OC has come to be understood as one of the major security threats in the EU, by applying different lenses of Securitization Theory (ST). More specifically, the research question guiding this article is whether applying different ST approaches can lead us to draw differing conclusions as to whether OC has been successfully securitized in the EU. Building on the recent literature that argues that this theoretical framework has branched out into different approaches, this article wishes to contrast two alternative views of how a security problem comes into being, in order to verify whether different approaches can lead to diverging conclusions regarding the same phenomenon. The purpose of this exercise is to contribute to the further development of ST by pointing out that the choice in approach bears direct consequences on reaching a conclusion regarding the successful character of a securitization process. Starting from a reflection on ST, the article proceeds with applying a “linguistic approach” to the case study, which it then contrasts with a “sociological approach”. The article proposes that although the application of a “linguistic approach” seems to indicate that OC has become securitized in the EU, it also overlooks a number of elements, which the “sociological approach” renders visible and which lead us to refute the initial conclusion

Not Quite Right: Representations of Eastern Europeans in ECJ Discourse

Although the increasing responsiveness of the Court of Justice of the European Union (the ‘ECJ’) jurisprudence to western Member States’ concerns regarding Central and Eastern European (‘CEE’) nationals’ mobility has garnered academic attention, ECJ discourse has not been scrutinised for how it approaches the CEE region or CEE movers. Applying postcolonial theory, this article seeks to fill this gap and to explore whether there are any indications that ECJ discourse is in line with the historical western-centric inferiorisation of the CEE region. A critical discourse analysis of a set of ECJ judgments and corresponding Advocate General opinions pertaining to CEE nationals illustrates not only how the ECJ adopts numerous discursive strategies to maintain its authority, but also how it tends to prioritise values of the western Member States, while overlooking interests of CEE movers. Its one-sided approach is further reinforced by referring to irrelevant facts and negative assumptions to create an image of CEE nationals as socially and economically inferior to westerners, as not belonging to the proper EU polity and as not quite deserving of EU law’s protections. By silencing CEE nationals’ voices, while disregarding the background of east/west socio-economic and political power differentials and precariousness experienced by many CEE workers in the west, such racialising discourse normalises ethnicity- and class-based stereotypes. These findings also help to contextualise both EU and western policies targeting CEE movers and evidence of their unequal outcomes in the west, and are in line with today’s nuanced expressions of racisms. By illustrating the ECJ’s role in addressing values pertinent to mobile CEE individuals, this study facilitates a fuller appreciation of the ECJ’s power in shaping and reflecting western-centric EU identity and policies. Engaging with such issues will not only allow us to better appreciate—and question—the ECJ’s legitimacy, but might also facilitate a better understanding of power dynamics within the EU. This study also makes significant theoretical and methodological contributions. It expands (and complicates) the application of postcolonial theory to contemporary intra-EU processes, while illustrating the usefulness of applying critical discourse analysis to exploring differentiation, exclusion, subordination and power within legal language

Controlling irregular migration: International human rights standards and the Hungarian legal framework

In the summer of 2015 Hungary constructed a 175 km long barbed-wire fence at its southern border with Serbia. New criminal offences and asylum procedures were introduced that limited access to refugee status determination and ignored agreed EU asylum policy, deterring and de facto preventing asylum seekers from entering Hungarian territory. This paper provides an analysis of these new measures, which criminalized asylum seekers, and the subsequent Hungarian policy in relation to the case law of the European Court of Human Rights – arguing that the Hungarian authorities excessively abused their discretion in implementing these new policies of immigration and border control