National Security and the European Court of Human Rights

Organised by

• Department of Law

Using a doctrinal-constructivist approach, this thesis analyses how national security restricts the interpretation of rights protection under the European Convention on Human Rights (‘the Convention’) by the European Court of Human Rights (‘the Court’) and in turn how the interpretation of national security is affected by the general principles of Convention interpretation. Relying on a dataset of 442 cases concerning national security, the thesis maintains that national security is an interdependent notion in Convention interpretation. Characterised by a possible absence of rights protection, the contours of national security become established through the principles that define and delineate that protection. National security thereby differs from Convention notions that primarily establish rights guarantees. Within this understanding, the thesis unravels some core characteristics of national security. National security is broad and fuzzy, tilts Convention interpretation in favour of state interests and executive powers, justifies secrecy, and creates unequal effects in rights protection. These characteristics are supported by the Court’s subsidiary and restricted role, which brings about an absence of set substantive Convention requirements in interpretation, and by an understanding of priority to rights under procedural and qualified rights that demarcates national security in a minimalistic way. National security is mainly delimited by democratic society both as a set of liberal values and as informed political decision making by the public and through representative government, by the rule of law as a commitment to diminish the possibility of arbitrary power by public authorities, and by a range of comparative materials. Convention interpretation thus continuously mediates, but does not exclude, the challenges inherent in the international adjudication of rights and security. Mediation primarily takes place through the most fundamental Convention principles, which even during the Convention negotiations were envisaged to restrict rights limitations, and when the Court’s interpretation is shared with some of its constituencies.