Monday, January 31, 2005

Guantanamo Detainee Habeas Opinion - GPW

Judge Joyce Hens Green has issued an Order and Opinion regarding the government's motion to dismiss the habeas petitions of the Guantanamo Bay detainees. She has found that the Combatant Status Review Tribunals were unconstitutional and that the Taliban detainees were entitled to claims under the Geneva Conventions.

I am parsing through the opinion now and will update this further.

In the meantime...check out her opinion.

While there is much to comment in the opinion, one striking aspect is the portion on international law, which constitutes a small portion (5 of 75 pages) of the opinion. Here are some initial comments on that section:

1. Green finds that the GPW is self-executing thus creating a private right of action and that Taliban soldiers (but not Al-Qaida operatives) have viable claims under GPW because Afghanistan was a party to the treaty. The reasoning Green uses is that Congress never felt it necessary to implement enacting legistlation because it was clearly implied that in the treaty-making process that the treaty was intended to be self-executing.

While the conclusion is quite possible to defend, the fact there is NO discussion of the surrounding provisions of the GPW is startling to me. First, Article 130 requires the parties to enact legislation for violations of grave breaches. The absence of additional language about other violations at least begs the question as to whether private rights of actions for lesser breaches are contemplated. Second, Article 132 notes that an "enquiry" between the interested parties should be instituted at discovery of an alleged breach. This clearly contemplates a diplomatic solution.

2. Green finds that the Presidential determination that Taliban fighters are not POWs under GPW is an exercise of executive fiat beyond the scope of Convention.

This finding is almost undoubtedly true. Article 5 states that where doubt exists as to an individual's status of a POW, a properly constituted tribunal should sort it out. The Presidential determination attempted to circumvent this tribunal process by eliminating any potential "doubt" that could arise. But the fact that the Article refers to individual status precludes the possibility of a class determination. It has to be determined on a case by case basis (once there is an understanding that you are dealing with a party to the convention).

*sigh* so much to say so little time. In the meantime...

I agree with Julian Ku's remark that perhaps the opinions is being a bit overbroadly reported as a ruling that the tribunals were unconstitutional. I suppose this is to be expected though.

Friday, January 28, 2005

Right to Habeas, No Right to Disclosure of Identity?

There has been much discussion about "ghost detainees" and the "forcibly missing" individuals in the war on terror, but there is a larger issue that is right under our nose. Specifically, the U.S. claims somewhere in the range of 550 - 600 detainees at Guantanamo Bay, and Rasul and its progeny give those detainees both a right to some due process (although how much is being debated) and a right to counsel. Currently, only about 60 of those detainees are being represented by counsel. So why aren't the rest represented by counsel? For a very practical reason...their names have not been disclosed by the government. Without knowing who the individuals are, it is nearly impossible for an attorney to find a "next friend" for habeas purposes.

Query (as my old Torts professor used to start most of his sentences) is it possible to have a right to habeas and a right to counsel, but NOT to have a right to have your name disclosed as being held? Seems rather doubtful under U.S. habeas jurisdiction (not to mention international law which is being willfully disregarded). Alas, ours is not to reason why...but to actually do something about it. So the question now turns to whether permissive joinder of John Does 1-500 is possible or whether a habeas class action can be obtained. Stay tuned.

DISCLOSURE: I represent several individuals detained at Guantanamo Bay.

Wednesday, January 26, 2005

EU Law on the Web

Duke Law School features a EU Law Web Log that should be a favorite of all serious EU law types. We encourage everyone to check it out.

Italy and the ratification of the European Constitution

On 25 January, the lower chamber of the Italian Parliament (Camera), has voted for the ratification of the European Constitution. An overwhelming majority of the Camera approved the Constitution, with a final result of 436 to 28 (with 5 abstentions). For the Constitution to be ratified, we'll have to wait for the vote at the higher chamber (Senato).
From right to left, there is a substantive agreement on the ratification of the Constitution. The 28 nos come from Lega Nord (The secessionist party of Norther Italy), that stated that the Constitution has "no soul and no popular legitimation." Berlusconi, the prime minister, declared that Italy's position will help other countries that will hold a referendum.
The vote at the Senate is a pure formality. We can safely assume that the European Constitution will soon be ratified by Italy. Therefore, with the vote at the Camera, Italy reaffirms its consistent pro-European stance. Throughout the all process of elaboration, approval, signature, and ratification, Italy has tried to play a leading role. The work of the Convention for the European Constitution started under the Italian Presidency. Moreover, on 29 October 2004, the European Constitution was signed at the Campidoglio, 47 years after the historical signature of the ECSC Treaty. Italy hopes to give a symbolic inauguration of the ratification processes, being the first great historical member state to ratify the European Constitution.

Tuesday, January 25, 2005

Europe vs. America, Vol. II

At the urging of my co-blogger Lorenzo Zucca, the Assembly is now addressing an issue at the core of the mission of this blog: transatlantic political tension. The impetus of this discussion is a recent article in the New York Review of Books assessing several books addressing the US and EU economies and political differences among friends.

I feel that I should start by saying that it is only with the comfort of friendship that such discussions hold the possibility of change and persuasion. In the absence of history and affection, the quarrels of the US and EU would remain devices of pure political posturing.

The NYRB article mentioned above, written by Tony Judt, is the type of article that purports to overturn stereotypes, but in the end, only ends up reinforcing the cultural biases that initially created the stereotypes being protested. Judt starts:

Consider a mug of American coffee. It is found everywhere. It can be made by anyone. It is cheap—and refills are free. Being largely without flavor it can be
diluted to taste. What it lacks in allure it makes up in size. It is the most democratic method ever devised for introducing caffeine into human beings. Now take a cup of Italian espresso. It requires expensive equipment. Price-to-volume ratio is outrageous, suggesting indifference to the consumer and ignorance of the market. The aesthetic satisfaction accessory to the beverage far outweighs its metabolic impact. It is not a drink; it is an artifact.

Really? Such an analogy rings an unconvincing tone that American coffee is all the same (because it is found everywhere) and its only redeeming quality is its size, which, it is implied, is valueless. Similarly, under Judt's analogy, Italian espresso does not fulfill the need and desire of its patrons, but demonstrates Italian "indifference to the consumer and ignorance of the market." The inadequacy of this analogy to demonstrate anything substantive is symbolic of Judt's failure to understand why a discussion between Europe and the US is necessary.

As Lorenzo noted in his previous post, it is a futile exercise to debate which model is superior. (Personally I enjoy both my tasteless American bottomless mug of coffee as well as my inefficient Italian espresso.) Such an argument attempts to convert the unconvertable and projects the basis for building each model onto the other. Instead, the focus should be on an understanding of the language and principles that will enable the EU-US relationship to prosper. Clearly, an extensive assessment of such principles deserves much more than a simple blog post, but allow me to proffer both sides of a similar principle to both sides: (1) the EU needs to understand that international relations can never be fully replaced by international law; and (2) the US must understand that it will not be the hegemenous superpower in perpetuity.

The UN, EU and US have all demonstrated no ability to insulate themselves from the ravages of world politics. Ambitious structures and promises such as the ICC and claims that the world will not tolerate genocide are lofty ideals that have not and most likely cannot be backed in the near future with matching political will. The repeated violation of lofty ideals only tarnishes their value and robs the supranational polities of their lifeblood: legitimacy. International relations theory should be embraced and studied to enable scholars and state actors to pursue avenues where cooperation is possible and avoid catastrophe where it is not.

The flip side of this understanding should be the US, even its current state of substantial hard power, cannot dictate the use of other nations' soft power. There are limitations on power which are not transcended by treats and threats. US power is constantly in a state of flux dependent on the actions of itself and others in any given context, and it must learn to prioritize and utilize its power without being unduly angered by the projection of power by other states against its interest.

Europe vs. America?

There is a growing literature on both sides of the Atlantic on whether the European model is superior to the American one. Tony Judt, in the New York Review of Books, reviews three of these books in an open and engaging way. His main conclusion is that Europe is indeed providing a framework that better grasps the future of the world. This would be the case because Europe is trying to build bonds between human beings beyond the national boundaries, which characterised the updated National model. His review is worth reading because it doesn't caricature the strenghts and the weaknesses on both sides. He takes them seriously and balance them in a very elegant way.

Even if I do think that Europe offers an interesting model, I nevertheless disagree with his main point. The reason is that I do not agree with the main question to start with. I do not think it is meaningful to ask whether a model is superior to another. There is no right answer in this case, nor should there be any. The way I see Atlantic relationships is different. There should be competition between the two models; the two can coexist, and must cooperate. European identity, if it will ever emerge such a thing, will be shaped in relation to American Identity.
The two models should compete in order to give a choice to those who want to emigrate and still do not know where their future will be better. Hopefully, China and India will soon join this competition so that the range of choices we have will be consequently augmented.

Beyond competition in order to trigger improvement, America and Europe have common duties towards the rest of the world. It is not sufficient to create 'regional paradises' which attract the poor of all the other countries. We have to help construing a future of their own for poor countries. We have this responsibility, and as long as we fail to meet this responsibility, we cannot accept the practice of banning people at our borders without a proper justification.

America, from the European perspective, is a friend. Maybe it is even more than that, it is part of our family, a sister. We accept it with all its strengths and weaknesses. We want America to improve because we love it, and we hope that America, too, wants Europe to grow healthy and strong, and become a serious competitor in the common struggle to improve the well-being of all human beings.

Monday, January 24, 2005

A Hearty Welcome to the Opinio Juris Blog

We try (and I think succeed) in keeping our list of recommended blog reading short, but I am pleased to announce that we are adding "Opinio Juris" to the blog list on the right.

There is a relative dearth of blogs populated by international law scholars and a shocking wealth of blogs with international law commentary. In such an atmosphere it is a welcome sight to find the Opinio Juris blog, which is entirely populated by bright and thoughtful international law scholars.

We wish them the best of luck and encourage everyone to check them out.

Odd Primaries in Italy

Italy is having a new experience: primaries within the centre left coalition to elect the leader who will against Silvio Berlusconi, the current Prime Minister.
But this first attempt to imitate the American system is already in danger. Italian politicians from the centre left are pressing for having an election with a single candidate. What kind of election is this? What is the reason behind this surprising move? The explanation is quite simple. Last week, the centre left organised a round of elections to select the candidate for the regional elections in Puglia. To the great surprise of everyone, the communist candidate won the contest. (This shouldn't surprise too much, given that extremists are generally the most politically active on a day to day basis). But now the fear is that the secretary of the Communist Party, Fausto Bertinotti, could win the race against Romano Prodi, the actual candidate of the centre left. This is why pressures have been exercised on Fausto Bertinotti, who refused to bow to the cause of the great democratic coalition. Thus, we'll have the opportunity to witness to a very heated round of primaries in Italy.

Wednesday, January 19, 2005

Private and Public Morals in the EU: A Third Post on Buttiglione

I wanted to add something to the two previous posts by Srdjan and Lorenzo by considering a little more closely Buttiglione's "Kantian" defence - his claim that, in a nutshell, although he viewed homosexuality as a sin, he would put his private morals to one side in the exercise of his public function. I must confess to finding Buttiglione's recourse to this defence a little confusing on a number of counts; I do not, however, agree with Lorenzo's point that he used it in a disingenuous manner, or that his previous conduct in the public sphere somehow meant that it could no longer apply to him.

The defence is summed up by Kant in his minor but signifcant essay "What is Enlightenment" in 1784 (see here for one of the numerous translations available on the web). In it, he inverts what we would now look upon as the normal definitions of public and private use of reason (or morality), but the general sense of what he is saying, and why Buttiglione felt it was relevant to him, seem clear. Allow me to quote, at some length, the most relevant section of the essay:

The public use of one's reason must always be free, and it alone can bring about enlightenment among mankind; the private use of reason may, however, often be very narrowly restricted, without otherwise hindering the progress of enlightenment. By the public use of one's own reason I understand the use that anyone as a scholar makes of reason before the entire literate world. I call the private use of reason that which a person may make in a civic post or office that has been entrusted to him. Now in many affairs conducted in the interests of a community, a certain mechanism is required by means of which some of its members must conduct themselves in an entirely passive manner so that through an artificial unanimity the government may guide them toward public ends, or at least prevent them from destroying such ends. Here one certainly must not argue, instead one must obey. However, insofar as this part of the machine also regards himself as a member of the community as a whole, or even of the world community, and as a consequence addresses the public in the role of a scholar, in the proper sense of that term, he can most certainly argue, without thereby harming the affairs for which as a passive member he is partly responsible. Thus it would be disastrous if an officer on duty who was given a command by his superior were to question the appropriateness or utility of the order. He must obey. But as a scholar he cannot be justly constrained from making comments about errors in military service, or from placing them before the public for its judgment. The citizen cannot refuse to pay the taxes imposed on him; indeed, impertinent criticism of such levies, when they should be paid by him, can be punished as a scandal (since it can lead to widespread insubordination). But the same person does not act contrary to civic duty when, as a scholar, he publicly expresses his thoughts regarding the impropriety or even injustice of such taxes. Likewise a pastor is bound to instruct his catecumens and congregation in accordance with the symbol of the church he serves, for he was appointed on that condition. But as a scholar he has complete freedom, indeed even the calling, to impart to the public all of his carefully considered and well-intentioned thoughts concerning mistaken aspects of that symbol, as well as his suggestions for the better arrangement of religious and church matters. Nothing in this can weigh on his conscience. What he teaches in consequence of his office as a servant of the church he sets out as something with regard to which he has no discretion to teach in accord with his own lights; rather, he offers it under the direction and in the name of another. He will say, "Our church teaches this or that and these are the demonstrations it uses." He thereby extracts for his congregation all practical uses from precepts to which he would not himself subscribe with complete conviction, but whose presentation he can nonetheless undertake, since it is not entirely impossible that truth lies hidden in them, and, in any case, nothing contrary to the very nature of religion is to be found in them. If he believed he could find anything of the latter sort in them, he could not in good conscience serve in his position; he would have to resign.

The reason, then why I don't see Buttiglione's use of this argument as disingenuous, at least in the sense used by Lorenzo, is that, according to Kant, his actions as a scholar should be unfettered (to the extent, at least, that they are carefully considered and well-intentioned). It therefore does not matter what he has done in the past in general, only his actions when performing some civic function assigned to him. Likewise, I am unconvinced by the suggestion that the Papal magisterium is "public" in the relevant sense; the fact that it is widespread and in the publci domain does not mean that it cannot, does not form part of the private majority of a great many people.

Buttiglione was, then, for me, was not in some way "barred" from invoking this distinction. Despite the fact that it was drawn first by Kant, however, this cannot be the end of the matter. Buttiglione's reference to Kant does seem strange if we consider it in the broader context of what he is trying to defend: the non-negotiable categorisation of a widespread way of life as fundamentally wrong, on the basis of what someone else (the Pope) has said. This strikes me as the very antithesis of Kantian enlightenment/maturity, the project upon which the distinction is founded, and thus introduces an ironic note, at the very least, to Buttiglione's pleadings.

Secondly, although the public/private (or private/public) distinction is indeed central to many of the freedoms that we hold dear, I would suggest that no-one could seriously argue that it must be absolute. There is, as always, a question of where to draw the line. Would we allow an openly racist politician to become Commisioner for Justice and Home Affairs (an important brief)? I strongly suspect not; and yet I have difficult in seeing any morally significant difference between those who think blacks are inferior and those who think that homosexuals are an abomination. Certainly, within the ethical framework as developed in the EU, in which discrimination on the grounds of race or sexual orientation are both banned, there is none. It is thus, to my mind, quite correct that the democratically elected European Parliament chooses where to draw that particular line.

Thirdly, and relatedly, Kant's argument makes no reference to the fact that these official duties are not somehow self-executing. Within the field of human rights and discrimination in particular, political leaders are constantly called upon to make judgements that entail often a very wide degree of discretion. To this end, it seems right and proper that Buttiglione made clear his opinions on these sensitive issues; I for one am keen to know the directions in which those in positions of power (and whom, theoretically at least, are accountable to me) are going to exercise their discretion. It is also, however, as i have just argued, perfectly right and proper that the Parliament decided that this was unacceptable. In this sense at least, both are to be applauded.

Lastly, Kant himself made it clear that this public/private distinction was not applicable in all situations: consider the last few lines of the passage quoted above. It strikes me as incredible that someone with beliefs as strong and deeply-rooted as Buttiglione on the issue of homosexuality would feel that his duties as Commissioner for Justice, in which he would be responsible for the facilitation and even encouragement of a practice that he viewed as morally reprehensible,"could in good conscience serve in his position". In which case, the Kantian response is clear. He must resign. Buttiglione, however, anticipated this objection; he noted in a letter to Barroso that he didn't expect any conflict to arise, but, if it were to, then he would ask to be exonerated from making the judgement in question, and to be substituted by one of his colleagues. This, however, strikes me as unacceptable for a number of reasons. Firstly, as inaccurate: how could conflicts not arise, not just regularly, but constantly? Not that we expect him to be dealing with a different particular case of homophobic discrimination every day, but rather that, in executing his functions, he will be responsible for the creation of law and the development of an ethos that will undoubtedly impact upon issues of sexual orientation discrimination. Secondly, if the first is rejected, it must be so on the grounds that he will have a wide range of discretion to apply European legal standards in a manner that does not conflict with his conscience; in which case, I refer back to my argument of the previous paragraph. Thirdly, as impractical: who should decide? Buttiglione? Barroso? Those affected by the decision? Any such arrangement would risk leaving the commissioner as something of a lame duck - a fact not lost on MEPs in rejecting Barroso's proposal to take certain sensitive decisions away from Buttiglione's remit.

My take on the whole affair, then, is as follows: I'm glad that Buttiglione made his views on these matters clear, and I'm glad that the European Parliament rejected him and them. It is not difficult, nor dishonest, to characterise this as a victory for democracy, at least in part; although it would be superficial to trumpet that to the exclusion of all other important factors. Perhaps most significantly, it strikes me as a timely reminder of just how misleading the discourse of tolerance is - and how often it can slip into hypocrisy on both sides: Buttiglione is accused of being intolerant of homosexuals, and then complains in return that others are intolerant of him. Best, I think, to recall that when we say "I accept you because I am tolerant", what we mean is "I accept you because you are tolerable". The important aim of increasing the range of the tolerable must always, if it is to be honest, be accompanied by the difficult task of delimiting the boundaries of the intolerable.

Tuesday, January 18, 2005

An Inquisition against Catholics?

As pointed out in the previous post by Srdjan (see below for an overview of the problem), Europe is facing a dilemma:

Can Europeans expressing papal orthodoxy aim at the highest European offices? There are two problems here. First, can we meaningful distinguish here between private morality and public concerns? Second, are christian values banned from the European public sphere?

The case we are treating is Rocco Buttiglione's, the president of a catholic party, and a member of Berlusconi's government. He claimed that his religious views on homosexuality and marriages were private and, therefore, could not impinge on his job as European commissioner for Justice and Home Affairs. The problem is that that job involves crucial policy choices on discrimination based on gender and sex. Can Buttiglione still be evenhanded despite what he thinks and says?

My answer is no. The reason is that, in this case at least, Buttiglione's private views are just a transposition of the Papal magisterium, a very widely spread public view on matters of morality. Moreover, Buttiglione's suggestion that his private views should not count is disingenous. His life displays a long list of public pronouncements and actions directed at discriminating against gays and women. The burden of proof is on his part! Why should he stop discriminating now that he has been offered a post in the European Commission? On the contrary, his agenda becomes even more visible, and more public, and could be implemented in an even more effective way.
The second problem is of a different genre. The identity of Europe in terms of Christian values has been debated at various times, including in the project of a Constitution for Europe. Buttiglione's rejection and the rejection of inserting a reference to christian values in the European Constitution do not mean that Europe is claiming a rigid separation between State and Churches. I think that most Europeans still agree that Christian values are part of our roots. But many Europeans also agree that the Catholic Church cannot have the monopoly of the interpretation of those Christian values. The Catholic interpretation is an important one, but by no means exclusive. It is a very strong interpretation because it is centralised: it speaks with one voice, which is the voice of the Pope. In this sense, Catholic orthodoxy is more powerful than any other christian doctrine. Thus, it is problematic to entrench christian values because it would have amounted to giving even a more central position to the Roman Church. And this is not desirable necessary. They already have a strong voice, we don't want to strengthen it under the pretext that we are only recognising our common roots, that is, christian values.
As a consequence, Christian values are not banned from the European polity. On the contrary, every christian, not only catholics, and every non christian, must have a say about European identity.

To go back to the central question, a catholic can indeed become a high officer of the European Union. The outgoing President, Romano Prodi, is a Devout Catholic after all. But there are some conditions. First, papal orthodoxy on issues of homosexuality and marriage is not a matter of private morality. It is very public and it aims to lobby the society on issues of homosexulaity and the role of the woman in a society. Papal orthodoxy on those issues leads to discrimination, there is little to be hidden about it. Europe cannot afford it. Second, Catholic candidates are not victims of a "liberal crusade against religious values" or of "an inquisition against Catholics." Let's not be fooled. Certain interpretations of Christian values are very tolerant and pluralist and can only be welcome and cherished as deeply Europeans. Others interpretations of Christian values, including Papal interpretation of what christian values means for homosexuality, are not tolerant and not pluralist. People holding those views cannot become European public officers, let alone commissioner for Justice. Their freedom of conscience and expression is nonetheless untouched. As private persons, they can think and express what they want. But they can't pretend that the same standards are going to be applied to them as public officers. Europe, today, does not want to be ruled by officers who hold discriminating views against homosexuality. And they can't pretend that we believe them when they say that what they think is not going to influence what they do. Unless they believe they are Gods.

Communists and Catholics in the EU Commission

Recently, the European Parliament refused to give a vote of no-confidence to the new European Commission headed by José Manuel Barroso, head of the Commission (see). The biggest problem was over the Italian candidate for the position of the European Commissioner for Justice, Freedom and Security Rocco Buttiglione, Namely, during the hearing in the European Parliament, responding to questions concerning his position in relation to homosexuality, Buttiglione maintained that privately he thinks of homosexuality as being a sin, however, that that would in no way influence the way in which he will exercise his function of EU Commissioner. Adding to this statement Buttiglione’s record on promoting conservative legislation in Italy, EU Parliament, flatly rejected Barroso’s proposal. Buttiglione was to be replaced by another Italian ex-minister of foreign affairs of the Berlusconi government.
This decision of the European Parliament provoked an outcry among the Catholic Community in Europe. One of the most provocative remarks was: Catholics cannot be members of the Commission while the ex-Communists can.

Are there the ex-Communists in the Commission? Here we will concentrate only on the most prominent members of the Commission. First we have the Polish Commissioner for Regional Policy, Danuta Hübner (
cv, and photos) Second, the Estonian Commissioner for Administrative Affairs and Anti-Fraud Siim Kallas (cv, photos). Third, the Hungarian Commissioner for Taxation and Customs Union, László Kovács (cv, photos). A quick glance at their CVs demonstrates that all three candidates are extremely shy as far as their Communist Past is concerned. They do not deny such past completely, but put an emphasis on other aspects of their professional career.

An article on the web page of the BRITISH HELSINKI HUMAN RIGHTS GROUP, despite some inconsistencies presents a thorough analysis of the three abovementioned Commissioner’s careers. (

Whereas Buttiglione’s appointment provoked an earthquake in the European media, the appointment of the above mentioned ex-Communist Commissioners went by smoothly. Is one to draw a conclusion that a conservative religious politician is an unsuitable figure for the EU Commissioner, while the possibly morally corrupt, career-at-all-cost, flip-flopping personalities are not? Of course not all the members of the Communist establishment of Eastern Europe are morally corrupt, however, it is rather strange that Hübner, Kallas and Kovács try to hide such embarrassing aspects of their past.

There is, nevertheless, an important difference before the case of Buttiglione and the appointment of the three ex-Communist Commissioners. The fact that three Commissioner’s past belonging to the Communist Party remains a part of their, so to speak, private sphere, however abhorrent one might consider (Lustrations Laws of Some Eastern European Countires now members of the EU do not think so by the way). None of the three Commissioners public agenda has trace of advocating a Communist utopia or dictatorship of the proletariat. Buttiglione, is different in this sense, his radical Catholicism, once made public, although intended as part of the private sphere of his personality, became in some sense his political agenda, however shy and implicit (to remind Buttiglione’s political, intellectual and legislative record in Italy is less shy with regards to promotion of radical Catholic, at times “discriminatory”, values).

Are radical Catholic values unacceptable in the EU public sphere? Obviously for the EU Parliament they were. This question however raises several interesting questions concerning the nature of the EU polity.

Is Europe a secular “state”, formally speaking? Is being a radical Catholic incompatible with performing an EU public function? Are religious arguments to be included into the public sphere in the EU? Is being an ex-Communist incompatible with a public function, such as that of the EU Commissioner? Should the EU have Czech type Lustration laws?

Monday, January 17, 2005

Torture and Scapegoats

U.S. Specialist Charles Graner has been sentenced to 10 Years for the abuses he committed in Abu Ghraib. Even though this is a step to determine who was responsible for such inhumanity, his role as a ringleader begs several questions. Does it mean that he was the highest ranking responsible for all that happened? Does it mean that all the responsibility can be circonscribed to a handful of soldiers (7) who executed those acts of torture? Does it mean that those who executed those acts also conceived them?

Specialist Graner held that he merely executed orders from military intelligence. Will we have a chace to know more about this? The mere fact that similar acts of torture took place also in Guantanamo suggests that there is a culture of torturing in view of getting information from the prisoners. The tacit acceptance of those horrors in the past is a reason to enquire further and beyond the responsibility ascribed to Graner.

America has to prove to the world that those soldiers are not merely scapegoats for the sins, and crimes, of the administration in charge at the moment of the war in Iraq

Internal Enlargement in the EU

This blog-entry will try to explain the concept of “internal enlargement” in the European Union. Concentrating on the recent Spanish case it will discuss possible legal and political implications of this phenomenon. At least at the level of political theory the case of “internal enlargement” presents an important challenge to the entrenched definition of sovereignty.

As it is generally known, the concept of “external” enlargement of the EU (or simply enlargement) refers to the process of integration of new states into the EU polity. In this way, 1st of May 2004, what was Europe of 15 accepted another 10 states (largely East European countries ex-members of the Warsaw Pact, for example Poland, Hungary, Czech Republic etc.) All new Member States of the Union had to undergo a long process of institutional and political integration into the EU. In order to become members of the Union they had to accept legal standards of the Member States of the Union.

On the other hand, the process of “internal enlargement” refers to territorial dismemberment of the states already members of the European Union. In this way, according to the proponents of the recognition of such a right, stateless nations in the European Union (e.g. Scots in the UK, Basques in Spain, Hungarians in Slovakia etc.) would have the possibility, within the framework of the EU, to secede from the Member State to which they belong to.

In this way we come to the Spanish case. On 30th of December 2004, the Basque regional parliament adopted the plan (so-called Ibarretxe-plan, named after the regional president) which called for the change of the autonomous status of this Spanish region. For an extensive journalistic account on the Ibarretxe-plan see (the French
“Le Monde”, the UK “Independent”, the UK “Guardian”, and the “Time Europe Magazine”). This change calls for the establishment of the free state of Euskadi (i.e. Basque Country) defined as a “free nation associated with the Spanish State.” The plan would give the Basque regional government the right to call referendums, opening the door to a possible future vote on independence, while removing a Spanish government right to suspend the regional government's powers.
Almost the entire Spanish political spectrum (apart from other autonomists such as Catalan parties) rejected this plan of the Basque regional Assembly. The Nationalist People’s Party called the plan,” treason”, while the current Socialist Prime Minister Zapatero considers it contrary, to both, Spanish and the European Constitution.

As far as Spanish legal system is concerned, it is going to be subjected to the standard constitutional procedure of the revision of the statute of the Spanish autonomous region. After the plan for the reform of the statute of any autonomous region gets adopted it has to be submitted to the Spanish National parliament, which can approve or reject it. Moreover, independently of the Parliamentary approval, there is a possibility that a plan gets struck down by the Constitutional Court. In any case, politically speaking there is no chance that the Spanish Parliament approves the Ibarretxe-plan. In this case the partisans of the Basque autonomy/independence threatened the Zapatero government that they will proceed with a referendum anyways. To remind, the main purpose of the Ibarretxe-plan was to give regional autonomies the right to call a referendum, a right which under a current Spanish constitution belongs to the exclusive national authority.

It seems obvious that the Ibarretxe-plan stands in collision with the Spanish Consititon. What about the Treaty Establishing a Constitution for Europe? The partisans of the right of internal enlargement at the European level, namely the Stateless nations inter-group of the EU Parliament (
here, , see also, and, and finally), during the Convention that brought about the new European Constitutional Bill, struggled for the constitutional recognition of such a right. They argued, “the new Constitution has to contain mechanisms for the practical exercise of the right to internal enlargement, as a concrete modality of the exercising the right to self-determination in this particular historical process.” Such proposal has been flatly rejected by the convention. In Title I, article 5, of the Constitutional Treaty the European founding fathers affirmed, “[t]he Union shall respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security.” Despite the fact that some believe, quoting Title I, article 2 of the Constitutional Treaty (“[t]he Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.”) that there is still place for “internal enlargement”, it seems that the proponents of the integrity of the Member States won over.

What are the possible future institutional possibilities for the constitutional recognition of the right of “internal enlargement” at the European level? Even if such a right were to be recognized by some future change of the European constitutional structure it is still uncertain that, practically speaking, “internal enlargement could occur. Like in the case of external enlargement, for a new state to be admitted in the EU, a consensus of all members of the European Council (i.e. highest representatives of the Member States governments) has to be reached. This would also require for a Member State that would ‘suffer’ from “internal enlargement” to agree with the secession of the part of its territory. How politically possible is this?

There are other interesting legal/political puzzles raised by the question of “internal enlargement”. First would the country applying for “internal enlargement” be considered as to automatically fulfil the criterion for being admitted into the EU, or would its standards in terms of fulfilment of the acquis communautaire be re-evaluated so to speak.
As far as political philosophy is concerned, “internal enlargement” could present an interesting instrument to re-conceptualize the traditional definition of state sovereignty and the legitimacy of state’s powers.

As far as the communitarians are considered, “internal enlargement” goes towards the fulfilment of their dream where every nation has a state of its own. Also this argument could be convincing for those who are convinced that a meaningful democracy (i.e. deliberative democracy) is possible only within a small community. There are others who are sceptical of such political developments. It is enough to look at the painful experience of the post-Cold War period, to be wary of an outright recognition of the right to secession. What seems as a reasonable communitarian argument can easily transform into the drum-beat of the new nationalistic wars. Does the EU supranational framework make a difference in this case? Arguably, the institutional structure of the EU plays a role of a pacifier of the claims for national autonomy. In this way the peaceful realization of the communitarian dream (for those who believe in it) of “every nation has its own state” is possible. This is the essence of the argument of the authors who elevate the concept of “supranationality” at the level of fundamental purposes of the EU (see Joseph H. H. Weiler, The Constitution of Europe : 'Do the New Clothes Have an Emperor?' and Other Essays on European Integration

Arguably, however recognition of the right of secession, or if not an explicit constitutional recognition then at least existence of the political opening for such an outcome, is a sign of the elevated quality of a democracy of a particular country an can exist even outside of the supranational framework, within classical Westphalian states such as Canada for example.

Tuesday, January 11, 2005

The US Rescue of the Kyoto Protocol

As a number of newspapers in the UK reported just before Christmas, Margaret Beckett recently announced that the Blair government was failing in its “ambitious” attempt to achieve 20% reductions in carbon dioxide emissions by the year 2010, although they are, as Tony Blair was keen to point out, “proud” of the fact that the UK is one of the very few European states (along with Sweden) to be on target to achieve, and even exceed, the reductions in the six key greenhouse gases imposed by the Kyoto Protocol of 1997 (due to come into force in February of this year, thanks to its ratification by Russia) – set at 12.5% below 1990 levels for the UK.

The statement begins as follows: “The Government is well on course to meet its Kyoto emissions reduction target, but more needs to be done to achieve our national goal of reducing carbon dioxide emissions by 20 per cent below 1990 levels by 2010.” The intention is clear: to offset a (projected) failure to achieve domestic policy through reference to international legal commitments that impose lower standards. There is, of course, nothing new in this; what makes it interesting, however, is the particular nature of the problem itself, and the status and worth of the international instrument relied upon.

President Bush’s decision to abandon the Kyoto protocol has been widely discussed and criticised; indeed, many feared that the American rejection would sound the death-knell for the instrument before it had even formally entered into force. My feeling, however, is that Bush’s actions should be criticised for having precisely the opposite effect, that is, in breathing new life into an instrument that was viewed even by the most optimistic at the time of its adoption as an extremely tentative and worryingly small first step. In abandoning it, Bush immediately transformed it from something of an embarrassment into a beacon of hope, a standard around which all those in favour of saving the planet could rally.

The Kyoto Protocol to the United Nations Framework Convention on Climate Change, to give it its snappy title, was an attempt to replicate an new and innovative response to the peculiar problems that faced attempts to enact environmental legislation in the international arena. Chief among these were disagreements over what scientific data was to be used how, and the difficulties created by the extremely cumbersome nature of international rule-making compared with the speed that scientific discoveries could create the need for new obligations. In order to respond to precisely these issues within the context of the protection of the ozone layer, the international community developed the notion of framework conventions, to be supplemented by protocols at a later date. One of the main purposes of the 1985 Ozone Convention was to set out the broad principles of ozone protection (“Parties shall take appropriate measures to..”), leaving the detailed provisions concerning the phasing out of damaging substances to be dealt with in protocols. Central to the framework convention were general obligations regarding the sharing of scientific information and co-operation in research, which allowed the development of a shared body of knowledge that in turn facilitated agreement on what norms had to be created. The Montreal Protocol of 1987, widely viewed as a major success for international environmental regulation, was the result of this; a protocol containing detailed provisions and binding targets for the phasing out of harmful substances. Remarkably, it even allowed, in certain circumstances, for the revision of targets by majority decision rather than consensus, meaning that states could be forced to accept new obligations against their will; unusual in international law generally, not to mention in the environmental sphere.

The Kyoto Protocol was, if anything, proof that this innovative method of norm generation was not, in itself, sufficient to deal with the problems facing the global environment. It seems clear from the drafting history that the provisions of the framework convention had failed to create the harmonious body of scientific knowledge that was so central to the success in Montreal. The result was an instrument that very much represented the lowest common denominator (or so we thought, until Bush showed it was possible to go significantly lower still): reduction targets that, if met, would have no impact on the rate of global warming; and an emissions trading regime and carbon sinks programme so complicated as to render even these targets easily avoidable. Clearly, the Montreal Protocol and the ozone protection regime had benefited from a degree of concerted political will that simply did not exist in the area of climate change.

All of which brings me back, somewhat circuitously, to my point. The Kyoto Protocol was more of a failure than a triumph for international environmental law in terms of the problem that it sought to regulate. The debate should have moved on immediately to how the targets could be significantly increased, how the loopholes could be tightened up; in short, to how the legacy of Kyoto could be left behind. Instead, it has become the focal point for environmental campaigning, allowing those (few) such as Blair actually on target to meet the reductions targets to trumpet their “pride” in achieving what, without the American u-turn, would have been viewed as woefully little progress, and to offset their failure to secure what would constitute significant progress against this.

Bush, then, by allowing himself to be cast as the environmental super-villain, has made other, albeit lesser, villains appear saintly by comparison; and, in doing so, has significantly set back the project of turning the tide of global warming to the point at which we may well feel that we’d have been better off if Kyoto had simply never happened. Interesting, then, to read Scott’s earlier blog about a conservative “softening” towards the Protocol; the debate seems to have been quite literally set back by ten years or so. If indeed this is happening, and it is due to an acknowledgement of the reality of global warming, then we may yet be able to move the debate to the necessary level, significantly beyond an endorsement of the targets and procedures agreed upon at Kyoto; however, if I was a concerned resident of one of those countries whose very existence is threatened by global warming, I wouldn’t hold my breath. Then again, in a few years’ time, perhaps that’s exactly what I’d be doing…

Demos vs. Democracy

Our French Member of the TransAtlantic Assembly Raphael Paour suggested I read this book: Pierre Rosanvallon, Le People Introuvable, Galimard, Paris, 1998. (here) I did and I warmly recommend it to all of you. Here is a short digest of this interesting piece. For Political Philosophers and Legal Theorists who are too busy to read "other" stuff, to put it in an awkwardly, I would suggest The Introduction, First Chapter and The Conclusion. But if you have time, by all means, read it all.

Social contract theory and the fiction of the “People” that it created is the main culprit for what Pierre Rosanvalon calls, the “malaise” in democracy. In order to acquire a new legitimacy for the system, social contract theorists as well as revolutionary politicians at the end of the nineteenth century France and United States, driven by the imperative of equality, created an individual based concept of the people abstracted from the social reality and divisions. For this reason democracy seems always not achieved, argues the author, and this is not only because of the, so to speak, operational weaknesses of the system, such as abstention or non-inscription, the danger of populism that leads to drifting of votes towards the extremes or the inherent problem with representative democracy in which exists a radical split between the people and the political elite.

The culprit for the malaise in democracy is an inherent tension between the philosophical definition of democracy and the conditions for its instrumentalization.The Revolutionary Jacobin model of the one and undividable republic considered anachronistic any substantial institutional recognition of the social divisions. However, this move towards formal (legal) equality had serious weaknesses. For example, lower classes of the society remained heavily unrepresented. As a result working class movements asked for separate representation. This proposal met with an outright rejection by the ruling elite.

Today, only France seems to be more or less loyal to the Jacobin ideal, while many other liberal democracies recognized that abstracted concept of the People, refusing to account for the social divisions within the state, rather than assuring equality, breeds inequality. As a result today we have federal states, confederations, multinational states, multicultural states and finally supranational states such as the European Union. We don't have separate representation for the workers. Does the working class (or better its political representation) exist in modern TransAtlantic Politics?

Monday, January 10, 2005

Kofi better watch out...

Now that Bush I and Clinton are on tour trying to drum up more aid for the tsunami victims, it appears that the "Clinton for UN Chief" talk (which started in October) might have a little more validity than first thought. I honestly wonder what people outside the U.S. would think of such a possibility.

Saturday, January 08, 2005

State and Mafia

State and Mafia
What is the difference between states and organized crime organizations? American sociologist Charles Tilly (here), in his famous essay War Making and State Making as Organized Crime argues, “If protection rackets represent organized crime at its smoothest, then war making and state making-quintessential protection rackets with the advantage of legitimacy-qualify as our largest examples of organized crime.”

In order to support this powerful statement Tilly gives an account of the development of the European modern state to demonstrate how, at their origins, there is nothing substantially different between the State and Organized Crime. “Early in the state-making process, many parties shared the right to use violence”, slowly however, certain Princes (Organized Crime bosses) prevailed. It is however false to believe that the elimination of local rivals led to an undisturbed domination of the winners, beyond the territory of medieval European city-states, power alone was not sufficient to rule. Thus in order to assure a stable control over a particular territory the ruler needed to make a pact with the population. In other words his power needed to be legitimate, not in some universalistic understanding of the word, but to the extent it reflected the normative expectations of the population of the given territory.

Thus the difference between the organized crime group and the state is in the level they manage to represent these normative expectations. This is what, in the long run, distinguished the violence produced by states from the violence delivered by anyone else.

Apart from contributing to the theoretical understanding of the concepts of the state and organized crime this debate could serve as a heavy critique of the neo-liberal right wing political attempts to promote, what they consider to be the only legitimate function of the state-that is physical protection. Tilly sees no essential difference between the monopoly of protection and the monopoly of coercion. In the sense of this critique the neo-liberal minimal state ideal is no different than the organized crime group.

Suggested reading:
-Niklas Luhmann, Law as a Social System, Oxford University Press, Oxford, 2004. (For the definition of law as a stabilizer of normative expectations within a society)
-Charles Tilly, “War Making and State Making as Organized Crime”, in Peter B. Evans, Dietrich Rueschemeyer, Theda Skocpol (eds.), Bringing the State Back in, Cambridge University Press, Cambridge, 1985.
- Robert Nozick, Anarchy, State and Utopia, Basic Books, New York, 1974.

Friday, January 07, 2005

ICJ Biased...but toward what?

Eric A. Posner and Miguel de Figueiredo (University of Chicago Law School and University of California, Berkeley) have posted Is the International Court of Justice Biased? on SSRN. (Tip to Legal Theory Blog). The abstract:
The International Court of Justice has jurisdiction over disputes between nations, and has decided dozens of cases since it began operations in 1946. Its defenders argue that the ICJ decides cases impartially and confers legitimacy on the international legal system. Its critics argue that the members of the ICJ vote the interests of the states that appoint them. Prior empirical scholarship is ambiguous. We test the charge of bias using statistical methods. We find strong evidence that (1) judges favor the states that appoint them, and (2) judges favor states whose wealth level is close to that of the judges' own state; and weaker evidence that (3) judges favor states whose political system is similar to that of the judges' own state, and (4) (more weakly) judges favor states whose culture (language and religion) is similar to that of the judges' own state. We find weak or no evidence that judges are influenced by regional and military alignments.

Anyone note an irony here? While I confess that I have only skimmed the paper so far (and it deserves a full read), I am struck that most of these biases are truly irrelevant. While I realize that is generally considered an inherent nature of a "bias". But, what I mean by that is that while items (1) and (2), of which there appears the strongest evidence of bias are the most completely irrlevant on the list to what should be cogent international law interpretation and analysis. Honestly, I wouldn't have been surprised or disappointed to see more of what appears to be one of the weaker biases, namely, a bias toward the political system and culture of which the judge is a product. By this, I mean, that it a judge's analytical thinking would naturally (and SHOULD naturally) be influenced by having first-hand knowledge and appreciation of the internal machinations, advantages, and shortcomings of the nation-state from which they came. This knowledge should inform their decisions on legal reasoning in the supranational polity as well. It shouldn't be THE factor, but surely it should be A factor. While the statistical evidence of the paper doesn't rule this out, it appears to say that there is a weak correlation. Interesting, no?

Wednesday, January 05, 2005

The reemergence of "proletarian expropriation"

Below is a post from our Serbian member, Srdjan Cvijic. Due to technical difficulties, I agreed to post it for him:

Proletarian expropriation is a new/old form of civil disobedience in the past practiced mainly in Europe during the 1960s and 1970s, and now reappearing in Italy. First, I will offer a brief account of the actions of proletarian expropriation in Italy with some examples (and for the benefit of anglo-phones, an example in English). Second, I will try to analyse the legal implications of such forms of civil disobedience.

What is proletarian expropriation? It is a form of civil disobedience intended to represent a form of protest against a disproportional raise of prices and despite stagnating or lowering personal income. It aims at emphasizing the necessity of a Welfare State or more broadly social solidarity and justice. People who practice proletarian expropriation seize commercial goods, and then declare such goods either “expropriated fully” or demand an automatic discount. In their thinking, this practice ensures that they, not the “market.” that determines the “just” price of goods.

In Italy, a political group called “Disobbedienti” has been practicing proletarian expropriation. In Rome they have expropriated some goods (mainly food) in a local shopping mall. In Bologna they demanded a 70% auto-imposed reduction of second hand book prices and a 30% reduction for new books. The manager of a bookstore agreed to such reduction. In Venice as a punishment against a restaurant owner that organized a gala-dinner for the representatives of the NATO-parliamentary assembly, the same group booked, several nights later, the whole restaurant for 50 people, they eat and drank the most expensive champaigne and then went out without paying, although leaving the waiters an extremely generous tip.

There is no elaborate plan in which the stolen goods are redistributed, these goods are taken by the people who perform proletarian expropriation personally or given to passers-by who find themselves near the shop in which the civil disobedience is exercised. In Rome the group asked the people who were waiting in cashier lines to leave the shop without paying; some cheerfully agreed, but most waited and paid.

Almost the whole of the Italian political scene has condemned such actions. Right-wing Berlusconi’s government coalition branded it as sheer vandalism or a “criminal act” and asked for politics of “zero tolerance” towards such actions. The centre-left opposition argued that “a great social problem such as raising prices and declining standard of life cannot be solved through forms of behaviour that represent violations of law.” The organizers maintain that a right to civil disobedience is sacred and that, in this sense, original forms of protest should be welcome for they might prove efficient in transmitting the message to the public opinion and political elite.

The fundamental question raised by this example is asking where civil disobedience morphs into simple criminality. The answer to this question is not merely important to understand the nature and limits of proletarian expropriation but also might prove instructive to understand the phenomenon of law more generally. In the case of Italian examples of expropriation the perpetrators were accused of committing theft and robbery. A legal representative of the accused expropriators could try to defend them for the lack of the subjective (voluntary) element necessary for the complete criminal sentence for the act of theft. Nevertheless, this attempt would probably not be accepted by the court. Robin Hood syndrome is covered by the definition of theft. Would it be different one can ask, if the expropriation of goods was to be followed by a organized distribution of stolen goods to people targeted as being in need. Expropriators could try to sell the goods and make payments to non-governmental associations that could distribute the funds to the poor. In this way the action of expropriation would be politically more convincing but it would hardly, as far as the positive law is concerned, be considered as outside of the domain of the criminal law. Maybe the court could in this case take into consideration the circumstances under which the act is committed and pronounce the lesser sentence or complete liberation of criminal responsibility of the perpetrators. The court could also go in a different direction and argue that, in any case, such violations of law present a serious disturbance of the public order and a negative example for others. In this sense within the domain of positive law the court has the liberty of what can be branded as political interpretation. In any case at least in the theoretical sense, if not in practical terms, practice of proletarian expropriation as a form of civil disobedience strikes at the very heart of the capitalist system and is explicitly asking the law to take strong, definite positions.

UPDATE: Thanks to Brian Leiter for his referrals...I encourage all new visitors to take a look at other posts on the home page to see other contributions from the Assembly's members from France, Scotland, and the U.S.!

A legal definition of torture

Bush's counsel, Alberto Gonzales, sought ruling about Torture. For this purpose, he asked the Justice Department to come up with a legal position on this issue. Is it really possible to draw a line between what constitutes torture and what is permissible to do to detainees? Seen from the European perspective, such a definition is hollow. On this matter, it could be interesting to refer to the European Convention of Human Rights (ECHR), as interpreted by the Court of Strasbourg. In its article 2 the ECHR prohibits torture AS WELL AS inhuman and degrading treatments. As a result, the Court of Strasbourg not only sanctions actions falling within the realm of torture, but also less intrusive treatments that are nonetheless inhuman or degrading. To be clear, the fact of being imprisoned without a due trial could very well be considered as a degrading treatment. The lesson for America is important: Torture is not the only evil an administration can commit. There are others. In order to maintain a reasonable level of security, some evils may be justified at times. But, the price to pay for justifying too many evils is the loss of integrity of the power in place.

Monday, January 03, 2005

U.N.: reform or death?

The U.N. is not doing very well. It has lost legitimacy on the international scene. And now, it also lacks the support of the US government. Internally, they have big problems too. Kofi Annan has been accused of covering the oil-for-food scandal. Moreover, the administration is what it is: a bureaucratic monster. The most pressing issue is the following: Is Kofi Annan the right person to reform the U.N. in order to give to it new vitality? The answer is very complex. Here, I can only suggest that the only way to relaunch the U.N. is by reforming it thoroughly.