State Responsibility for Preventing Terror Attacks

This project examines an undertheorized area of counter-terrorism law, namely, a state’s positive obligation to pre­vent terror attacks. Terrorism case law has routinely focused on excessive use of security measures. This reflects both the importance of constraining the use of force and the regrettable pervasiveness of overstepping these con­straints. But governments may and sometimes do fail to discharge their legal obligations by not doing enough. As the ECtHR case of Tagayeva shows, doing too little to thwart terror attacks can amount to violating victims’ right to life. Moreover, protecting citizens from terrorism threats is arguably among a state’s most funda­men­tal responsi­bil­i­ties – the basis for its claim to authority. While the rights of terror-suspects and the constraints they impose on law enforcement are well understood, our legal doctrine is not as developed in cases regarding the right to be pro­tected. In response, this project aims to expand our understanding of this doctrinal blind spot beyond its present limitations by critically analyzing domestic and international funda­men­tal rights law. The project proceeds in two stages. First, it examines the scope of a state’s positive responsibility. According to established principles, a state is required to take protective measures only when it knows or ought to know of an imminent threat. Additionally, even when concrete intelligence is available, states are only required to take measures ‘within their powers’, which ‘could reasonably be expected to avoid, or at least mitigate the risk’. In other words, states need only act if they can, and to the extent that they can. There are convincing reasons, however, to think that this depiction of state obligation might be too narrow. Second, the project aims to clarify what it means for a state to be incapable of combating terrorism. In particular, the relationship between a state’s ability to protect and its claim to sovereignty will be carefully scrutinized. This project engages mainly with the first axis of the Department of Public Law’s topical matrix, focusing on the fundamental theoretical aspects of law and how they relate to public security regulation and its basic doctrinal structures.