International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2013 Issue

In Review:
Recent Publications on International and Comparative Law and About Judges and Courts


Law and Security in Europe: Reconsidering the Security Constitution
Edited by Massimo Fichera and Jens Kremer, Intersentia Publishing Ltd. 2013

Law and Security in Europe: Reconsidering the Security Constitution

Reviewed By: James G. Apple, Editor-in-Chief, International Judicial Monitor, and President, International Judicial Academy

Even though this book is seemingly restricted to “security in Europe,” as stated in its title, its value lies far beyond the borders of the European Union. This is because it deals with two subjects, “law” and ”security” that transcend national or regional boundaries, and encompass matters that are, or should be, of concern to the entire world. The subjects are especially important in the United States, where issues of security are proving to be a continuous and pervasive problem for law-makers, government officials and the military.

Security is a word that arises often in the press and contemporary discourse in the modern world, but particularly in the United States where government officials, elected or appointed, almost continually refer to actions or topics as being related to “national security.” The word has been especially ubiquitous in matters relating to government secrecy – certain matters are not allowed to be discussed and certain documents are not allowed to be disclosed because they relate to national security. Government officials routinely hide behind the phrase to explain their refusal to discuss certain topics. This tactic may have had its origins, but certainly its first notoriety, during the administration of Richard Nixon in the late 1960s and early 1970s. He and his staff refused to turn over tapes made of the President’s conversations in the Watergate scandal because they involved matters of “national security.”

As security has become a more frequently used word in government discourse and the justification for not revealing many different kinds of government actions in various places within the United States government, its meaning has become blurred.

In this relatively small volume, the editors have chosen a very select group of writers to dissect the word security and its meaning as used in contemporary societies, with special attention to its contemporary use and its relation to law. All of the writers and the two editors, with one exception, are connected in one way or another to Finland, in particular for most of them, with the University of Helsinki. The one exception is a Senior Lecturer at the University of Southampton (Alum Gibbs).

The editors acknowledge that “security is a manifold and complicated concept” and has both positive and negative connotations. In its positive light security means “guaranteeing the function of the system in question through securing its primary function and protecting it against external or internal disruption.” The dark side of security is its role in hiding from or preventing exposure to the media and the public, actions and activities that would or might be considered harmful to the system that is to be protected, such as intrusion on civil or human rights of the system’s populace.

Because security and law “interact in a variety of ways, [and] when they do, the background is usually that of a highly conflictive nature,” the authors seek to impress on the reader the need for nations to understand the different aspects of security and the need for security issues to be more fully taken into consideration in creating and interpreting constitutions. In other words security has become so important in the affairs of nation-states and its implications in developing internal and external policy that government officials, constitutional law experts, and jurists need to engage in extensive study and analyses of it within the context of constitutional law. In fact one of the essayists has created a new phrase, “European Security Constitution.” This label could be modified and adapted for other countries with the label simply “security constitution.”

One of the editors of the book, Jens Kremer, sets the tone of the publication by presenting the first essay following the Introduction. In discussing issues relating to security and law, he identifies two “mindsets” or approaches: “Security is … perceived either from a protective perspective or a perspective of exceptionality.” He writes:


From a protective, law provides a framework for protecting individuals or entities from harm. Hence, criminal law can be understood as protecting individuals from harm through deterrence and states have the positive obligation to protect legal subjects from violations of their rights.

The second case where the terminology of security enters the legal sphere is in terms of exceptionality: suspending certain legal positions or creating a legal exception is waived due to the exceptionality of the circumstances. The protection of some greater good therefore necessitates temporary or permanent legal changes.

It is in these two paragraphs that the author has identified the crux of the debate currently being waged in the United States in the aftermath of the 9/11 attack on the World Trade Center in New York.

Also addressed in the book are several commentaries of a central issue that has arisen with the onset of international terrorism: should the threats of international terrorism be addressed as a criminal matter to be handled by police forces, or is it a matter of a “war on terror” the concept adopted by the administration of U.S. President George W. Bush, which requires the use of the military.

The author of the first essay shows the relationship of the issue of security at the national level and the international community with this comment:

States are the foundations of the international system and their independence and sovereignty is the core of the law ruling the international sphere. Therefore it is hardly surprising that the notion of statehood is closely connected to the mindset of security within the field of international law and it is “international peace and security” which is seen as the absence of war between states. To guarantee the absence of war, or to establish peace and security, it is important to establish an international system based on law and institutionalism, represented in the United Nations as well as manifold other Conventions and Treaties between states.

Chapter 2 of the book, titled “A European Security Constitution, addresses the question of the legitimacy of inquiring into the constitutional aspects of the security issue. The question is posed whether it is legitimate to discuss a “security constitution” as one would an “economic constitution” or a “political constitution.” In answering the question in the positive, the author, Kaarlo Tuori, a professor of legal theory at the University of Helsinki, offers a very full analysis and discussion of the need for bringing security issues within the framework of constitutionalism.

Successive chapters in the book deal with Security Issues as an Existential Threat to the Community (Massimo Fichera, one of the editors of this publication), Public Foundation as the Striving for Security (Alun Gibbs), Security and Rights in the War on Terror: On the Constitutive Insecurity of Rules (Jarna Petman), Administraive Measures in Counter-Terrorism Activities – More Leeway for the Imperatives of Security at the Expense of Human Rights? (Tuomas Ojanen), Security and Criminal Law: A Difficult Relationship (Kimmo Nuotio) and The Blurred Architecture of European Criminal Law (Sakaria Melander).

This is an important book because it focuses on an issue of critical importance to democratic regimes around the world – how to balance and reconcile the needs and requirements of a security regime with the protection of civil or human rights. This volume could, and should, mark the beginning of a dialogue in other countries and in the international community on the role of security in democratic institutions and on the issue of how security requirements for a particular country or region can be developed in the context of democratic constitutionalism.

Such a discussion is desperately needed in the United States, where the leaks of documents and activities of the National Security Agency (NSA) by Edward Snowden have revealed that that agency and perhaps other security agencies and institutions in the U.S. are out of control.  


ASIl & International Judicial AcademyInternational Judicial Monitor
© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at