Law and Governance as Checks and Balances in Transatlantic Security: Rights, Redress, and Remedies in EU-US Passenger Name Records and the Terrorist Finance Tracking Program

Abstract

The paper assesses the remedies, redress and review mechanisms under two transatlantic Security Agreements since their enactment up to the present day, focussing upon the latest EU-US PNR Agreement and its evolution and the EU-US TFTP Agreement. It is argued that the operation of a plethora of governance mechanisms exposes the hollowness of review, remedies and redress within the Agreements, which do not seem to be mitigated or compensated for by rights or redress provisions, for example, to judicial review. The paper shows that there are significant shortcomings in the operation of the reviews of these two Agreements. The operation of the Agreements emphasise how law and governance mechanisms do not necessarily compensate for each other as checks and balances. Accordingly, they demonstrate reasons that the EU should be particularly cautious about replicating this rule-making in EU law, i.e. in adopting an EU PNR based upon the EU-US PNR and a TFTS, based upon the EU-US TFTP.