Transnational Counter-Terrorism Law: Law, Power and Legitimacy in the 'Wars on Terror'
(2015) 6(1) Transnational Legal Theory 31
21 Pages Posted: 28 Feb 2015 Last revised: 10 Dec 2018
Date Written: February 26, 2015
This paper considers existing work on ‘transnational criminal law’ and critiques it for its misdirection of our attention and its focus that is at once too narrow and too vague. A more complete account of transnational counter-terrorism law must capture both juridical and disciplinary power as they manifest across categories of criminal, civil, and administrative law. The paper illustrates its argument using the example of UN Security Council action on ‘foreign terrorist fighters’ serving Islamic State in Iraq and Syria. This action involves the use of a Chapter VII resolution under the authority of the UN Charter to require states to adopt certain measures against Islamic State. The paper next moves from analytical to normative considerations. A key consideration for transnational (criminal) law is its legitimacy. This paper sets out the challenges to legitimacy found in transnational counter-terrorism law. It considers three forms of legitimacy: the formal legitimacy that derives from valid legal authority; the democratic legitimacy that derives from the consent of those subject to legal rules; and the procedural legitimacy that accrues when legal process is respectful of the rights of its subjects. The paper argues that the formal legitimacy of transnational counter-terrorism law is contestable and the democratic and procedural legitimacy of such law is deeply problematic. In the final section, the paper draws attention to the limits of transnational counter-terrorism law as a field of study and reflects on the need for work that seeks to categorise the law, engage in theoretical reflection, and test hypotheses using empirical legal methods. There is a Sisyphean task here for transnational counter-terrorism lawyers but one that is necessary if the realities of law under globalisation are to be better understood.
Keywords: terrorism, transnational criminal law, United Nations, legitimacy, disciplinary power
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