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The internationalization of counter-terrorism policy: Effects on the rule of law

Christiane Kasack
Hertie School of Governance
Christiane Kasack
Hertie School of Governance
Open Panel

Abstract

Over the past forty years states have increasingly cooperated on counter-terrorism policies. At the same time, a fear has grown that such cooperation might reduce abidance by the rule of law. While having become the conventional wisdom, it is still uncertain whether cooperation actually reduces rule-of-law abidance. Studies rarely lay out their criteria; national policies are not compared to the results of international decision-making. The paper seeks to close this gap with a comparative analysis. It is driven by a political science approach, but strongly informed by comparative law. The development of an index to measure rule-of-law abidance is one of its main contributions. The index encompasses four dimensions: observation of civil liberties, governance by parliamentary laws, guarantee of legal certainty, and provision of independent review. The paper assumes that the institutional conditions governing decision-making explain rule-of-law abidance. It analyses counter-terrorism policies made in three different institutional settings: national decision-making around 1970, intergovernmental decision-making in the late 1970s, and recent EU decision-making. It studies Germany, France and the UK. While the need to scrutinize different countries is obvious for national policy-making, it also provides useful insights for the other settings, as national implementation may have a significant impact on the final policies. The 18 cases are studied based on a content analysis using fuzzy set/QCA for the empirical measurement. The study disproves the conventional wisdom: National policies respect the rule of law least, international policy-making pays most attention to its exigencies, while the EU occupies a medium position.