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Virtually all philosophical discussions of the rule of law’s meaning assume that the proper horizon of the concept is the national legal system, or what I call “the rule of law writ small.” But governments are bound by a web of transnational legal obligations that should also be considered part of the rule of law’s scope. Analyzing whether the rule of law is honored against the backdrop of both national and transnational law gives us “the rule of law writ large.” This concept has particular force in the context of backsliding (and democracy-restoring) governments when autocrats first pull their governments away from transnational norms before newly elected democrats seek to restore compliance with those norms. While both sorts of governments may change domestic law, and pack political institutions with those who share their values and fire those who get in their way, only the democracy restorers can be said to be honoring the rule of law writ large.
In what now seems like a different world, Thomas Franck published an article in the American Journal of International Law defending an “emerging right to democratic governance.”1 The year was 1992. The post-Soviet revolutions had startled the world, following equally stunning democratization drives in Latin America and Southern Europe. Democracy seemed the inevitable endpoint of human civilization, the “end of history”2 as it was called then. If all newly freed peoples demanded democracy as soon as they had a chance to choose their form of government, an emerging right to democratic governance could both reinforce their choices and pull along the laggards with the moral force of international law.3
This volume appears twenty years after 9/11, a good time to assess what pundits predicted at the time of the attacks, which was that “everything had changed.”1 With the benefit of hindsight, can we now say that was an overstatement? What changed – and how?
This chapter addresses the expanding legislative role of the Security Council and expresses significant concerns arising from that trend. The author argues that the Security Council’s ambition to “legislate for the world” – which is manifestly evident in resolutions aimed at tackling the phenomenon of foreign fighters – may pave the way for abusive practices and human rights violations. The author’s apprehension originates from the fact that countries where democratic institutions are weak or even totally lacking often exploit the need to tackle international terrorism as a legitimate excuse to curb political opposition or any kind of view that differs from that of the regime in power. To support this claim, the cases of Belarus and of Ukraine, as far as the implementation of Security Council Resolution 2178/2014 is concerned, are taken into considerations. In these two countries, directions coming from the international level to criminalize foreign terrorist fighters and all the activities aimed at supporting them coincided in time with the most intensive phase of Crimean crisis. As a consequence, Resolution 2178/2014 was interpreted as an easy-to-take shortcut to prosecute pro-Russian forces in Crimea by labelling them as “terrorists”. Hence, universalizing counter-terrorism measures, as the Security Council has been trying to do since at least the 9/11 events, is potentially dangerous since the same provisions are directed to countries with patently different political, social and historical backgrounds, and the Security Council is not totally able to manage states’ choices once the resolution reaches the implementation stage.
This introductory chapter sets the theoretical background and explains the research questions of the book; afterwards, the structure of the book is presented.
Twenty years after the outbreak of the threat posed by international jihadist terrorism, which triggered the need for democracies to balance fundamental rights and security needs, 9/11 and the Rise of Global Anti-Terrorism Law offers an overview of counter-terrorism and of the interplay among the main actors involved in the field since 2001. This book aims to give a picture of the complex and evolving interaction between the international, regional and domestic levels in framing counter-terrorism law and policies. Targeting scholars, researchers and students of international, comparative and constitutional law, it is a valuable resource to understand the theoretical and practical issues arising from the interaction of several levels in counter-terrorism measures. It also provides an in-depth analysis of the role of the United Nations Security Council.
The pandemic that convulsed the globe in 2020 was long foretold but still surprising to many. Within a few months of its appearance, COVID-19 became one of the leading causes of death worldwide. Governments struggled at first to comprehend what was happening – and then reacted in very different ways. Most political leaders followed the advice of epidemiologists. Many declared states of emergency. A few pursued autocratic agendas. And some did almost nothing.
During emergencies, constitutional scholars normally worry about executive aggrandizement at the expense of human rights and democratic values. Emergencies often require national executives to act quickly and forcefully to stave off threats. But emergencies also give national executives the opportunity to consolidate power, just when parliaments and courts are least keen to take responsibility. As we will show, the pandemic has provided a textbook example of this phenomenon, reinforcing what we know from the literature on emergencies that “executive overreach” is a serious problem.
Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.
Founded on post-war optimism that a Europe of united democracies could provide both peace and prosperity, the European Union is slowly waking up to the fact that not all of its Member States are committed to democratic principles. Article 2 TEU pronounces (as fact) that “[t]he Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” And Article 2 goes on to assert (as fact) that “[t]hese values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” But for some EU member governments, these values no longer define the aspirational horizon. The requirements of Article 2 are simply no longer met in all Member States.