Cian C. Murphy is a lecturer in law at King’s College London the author of EU Counter-Terrorism Law: Pre-emption & the Rule of Law.
Over the past decade counter-terrorism law has come to be understood as a distinct field of study for legal scholars. Part constitutional law, part criminal, and – increasingly – part administrative law, counter-terrorism law lacks a coherent jurisprudence but instead has as its core a common aim: the combating of ‘terrorism’. This is also true in EU law. EU counter-terrorism law is rarely identified as a field of law because its boundaries are difficult to demarcate. The EU Council Action Plan Against Terrorism is a rather unwieldy document – it contains a wide range of legal and non-legal measures – which overlaps with several other strategic fields. Yet the EU has played a significant role in counter-terrorism in Europe since the September 11 2001 attacks, and indeed counter-terrorism has shaped several fields of EU law, in particular Justice and Home Affairs. EU counter-terrorism law can be said to include the Framework Decision on Combating Terrorism and the sanctions that gave rise to both the Kadi and OMPI litigation, but also the European Arrest Warrant (which only became politically palatable after the September 11 attacks), and the wide range of controversial surveillance systems that have been precipitated by the EU’s co-operation with global counter-terrorism efforts.
If identifying EU counter-terrorism law is somewhat difficult then characterising the law is an even more troublesome task. In the United States, counter-terrorism actions since 2001 have been described as attempting to normalise the exception: establishing a seemingly permanent emergency to allow extraordinary law enforcement and security powers to be extended. Perhaps the greatest distinction between the US and EU approach to counter-terrorism can be caught through this idea of the ‘exception’. It has become de rigueur to begin any analysis of President George W. Bush’s response to the September 11 2001 attacks with the citation of Carl Schmitt’s statement that ‘sovereign is he who decides on the exception’. The attempts by the Bush administration to step ‘outside’ the legal constraints of the US Constitution, international human rights law and laws of war by declaring an ‘exception’ have been well documented.
However, no such declaration has, or could be made, by the EU. The EU has no coercive power of its own but relies on that of the Member States. Europol does not consist of jurisdiction-hopping cops as is sometimes portrayed by film or television but of intelligence officers that co-ordinate national law enforcement officers. The EU legal system is heavily reliant on the co-operation of domestic and supranational actors to ensure the enforcement of its law. As such, any attempt to ‘declare the exception’ by an EU President would be fruitless (not least because it is unclear which President would declare it). It is therefore unsurprising that, although sometimes used by Member State governments, the language of a ‘war on terror’ has been entirely absent from EU counter-terrorism discourse.