Constitutionalism Across Borders in the Struggle Against Terrorism

Just as current terrorism threats permeate state borders, legal responses to them should as well. Bringing together and making a significant contribution to comparative constitutionalism, international law, and the anti-terrorism law, this book perfectly exemplifies the benefits of transmitting legal concepts and ideas across geographical and conceptual borders - between differing national systems, as well as in manners that open international law and constitutional law to one another. It is a wonderful source for studying and understanding anti-terrorism law, and at the same time an inspiration to those thinking about the tension between globalized and contextualized law. -- Daphne Barak-Erez, Justice of the Supreme Court of Israel Since September 2001, international terrorism has been the major challenge to the traditional understanding of modern constitutionalism, based on state territorial institutions. The outstanding contributions collected by Fabbrini and Jackson address this challenge under many respects and in many different fields; yet, they all confront a common concern: how to accommodate the basic constitutional guarantees such as human rights, rule of law and due process to actions that overcome territorial borders? In the twenty-first century, security implies control over people, finance and data that move quickly across the borders. Antiterrorism legislation requires a multi-directional cooperation of actors at the transnational level, including regional and international organizations. The book explores this multifaceted branch of law and offers a rich plurality of reading of the major legal responses to one of the most relevant social, political and legal difficulties of our time. -- Marta Cartabia, Vice President of the Constitutional Court, Italy No one nation is equipped to combat terrorism. The problem transcends borders and the traditional demarcation of the state. This presents a challenge to constitutional norms and national legal structures. This book represents an insightful and engaging response. It contains a stellar cast of authors who dissect and analyze these issues in a series of illuminating contributions. -- George Williams, Scientia Professor, University of New South Wales, Australia

Edited by Federico Fabbrini, Full Professor of EU Law, School of Law and Government, Dublin City University, Ireland, Founding Director of the Brexit Institute and Dublin European Law Institute, and PI of the Jean Monnet Centre of Excellence REBUILD and Vicki C. Jackson, Thurgood Marshall Professor of Constitutional Law, Harvard Law School, US

Contents: 1. Introduction Federico Fabbrini and Vicki C. Jackson PART I INTERNATIONAL CONSTITUTIONALISM AND ANTI-TERRORISM FINANCE MEASURES 2. United Nations Law: Substantive Constitutionalism through Human Rights Versus Formal Hierarchy through Article 103 of the Charter Martin Scheinin 3. (Implicit) Judicial Favouring of Human Rights Over United Nations Security Council Sanctions: A Manifestation of International Constitutionalism? Erika de Wet 4. Heroic or Hapless? The Legal Reforms of Counter-Terrorism Financial Sanctions Regimes in the European Union Karen Cooper and Clive Walker 5. The Dynamics of Transnational Counter-terrorism law: Towards a Methodology, Map and Critique Cian C. Murphy PART II COUNTER-TERRORISM, AND CONSTITUTIONAL MIGRATIONS 6. Translating Rights across Centuries: U.S. Constitutional Protection against Unreasonable Searches and Seizures in a Transnational Era Vicki C. Jackson 7. Japanese Efforts to have a Secrecy Law and a 'National Security Council' A Runner Who Is One Lap Behind? or Good Things Come to Those Who Wait? Akiko Ejima 8. The Deep Dilemma of Evidence in the Global Anti-Terror Campaign Kim Lane Scheppele 9. Reciprocal Privacy: Towards a Transatlantic Agreement David Cole and Federico Fabbrini PART III EXTRATERRITORIALITY, DETENTION AND FREE SPEECH 10. Transnational Seizures: The Constitution and Criminal Procedure Abroad Jennifer Daskal 11. The Extra-territorial Obligations of European States regarding Human Rights in the Context of Terrorism Brice Dickson 12. Detention at Sea: The Persistence of Territorial Constraints on Constitutional Rights Jonathan Hafetz 13. The Extraterritorial First Amendment Anna Su PART IV INTERNATIONAL CRIMINAL LAW, INTERNATIONAL HUMANITARIAN LAW, AND TERRORISM 14. Missing in Action: the Human Eye Or Bassok 15. Unraveling the Law of War Stephen Ellmann 16. Conclusion Lech Garlicki Index