Friday, September 30, 2005

Ronald Dworkin on Justice Roberts

The New York review of Books just published an interesting article by R Dworkin on Justice Roberts.

Dworkin examines Roberts' constitutional philosophy as resulting from previous opinions and Senate hearings, and his conclusion is that: " Roberts succeeded in leaving it entirely unclear [...]." Dworkin blames both Roberts, for his failure to disclose his broader constitutional views, and the Senate, for not pressing harder on these important issues. Dworkin then concluded that:

We must hope that it has learned from its failures in the Roberts nomination. It should demand to know the new nominee's constitutional philosophy. If he or she refuses to disclose it, or claims that it is only to respect the rule of law and adds nothing more helpful about what that means, then its constitutional duty is to advise the Senate to reject that nominee as either disingenuous or incompetent.

Interestingly, Dworkin's main worry does not concern cases such as Roe v Wade, or other controversial precedent of the US Supreme Court on matter of civil liberties as applied to US citizens. Instead, he worries that the main source of worries will come from the issue of the 'President's power to conduct his war against terrorism without regard for either international law or the traditional rights of prisoners.'

According to Dworkin, Justice Roberts record is worring because 'Roberts joined an opinion declaring that the courts must show great deference to the President's opinion that international treaties, including the Geneva Conventions, do not protect the Guantánamo prisoners.'

Thursday, September 29, 2005

Varieties of Secularism

In an earlier post, Lorenzo drew attention to a recent paper by Thomas Nagel on 'Secular Philosophy and the Religious Temperament' on the NYU website. The paper deals with a range of issues relevant to the debate on whether European constitutionalism requires a religious or secular ethic. One of the striking themes of that debate (amongst many others) is the fact that the 'secular' alternative to the relatively well defined religious agenda is often underelaborated or even elusive. Nagel's paper sheds light on this debate by looking at whether there is a secular alternative to religion that is capable of answering what Nagel terms the 'cosmic' questions, normally posed and answered within religious traditions. The interest of Nagel's paper is that he looks to see whether secularism is capable of answering the sorts of questions relating to the deeper purpose of human life and its relationship to the cosmos that underpin religion's claims to public attention. In that sense, Nagel looks at whether secularism can play and win 'away' against religion. Not surprisingly, many possible secular combinations don't come away with a win - at best existentialism emeges with a 'no score' draw - heroic resignation to the weight of the 'big' questions combined with a sober recognition that there are no real answers to it, at least formulates a plausible and intellectually coherent 'unit' of attitude and belief. Humanism is perhaps controversially rejected, though ultimately I think plausibly, on the grounds that its human-centred concerns arguably do not provide a broad enough canvass on which to develop a suitably 'cosmic' secular ethic. One of the options that Nagel surprisingly doesn't discuss is the Hegelian-Marxist tradition of secularism. No doubt Nagel, like many others, would view Marx's triumph of the proletariat in the same light as the religious responses to the questions he raises. Certain of those operating within that tradition feel the same way. Most notably, the Frankfurt school. What is worth noting though is the fact Theodor Adorno, one of the leading lights of the Frankfurt School, also launched a critique of the existentialist movement. In The Jargon of Authenticity he warned against the dangers of embracing existentialism as a viable ethical alternative to the sociological failure of Marxist theory. For him, the Marxist ideals that underpinned the critique of capitalist modernity remained valid; existentialism, faced with the same problems, was an attempt, especially in its German varients, to retreat into a concern with the 'interior' life-world of the individual that was just as illusory as the 'happy endings' contrived by the culture industry. Where does this leave us? If we accept the Hegelian-Marixist critique of current structures but find the solutions it offers implausible or inadequate then an individualistic existentialism seems a less than heroic ideal. Perhaps secularism's elusive away win is further off than some might have thought!

Wednesday, September 28, 2005

The French Minister of Justice trying to avoid judicial review of a bill

In France, the judicial review of legislation takes place on demand of the President of Republic, the Presidents of the Parliament or 60 members of one of the Houses of Parliament. It has to be activated before a bill is promulgated by the President. And once it has become enforceable, a bill cannot be struck down by a Court, even in cases of patent unconstitutionality. This system of judicial review of legislation is therefore said to be strictly a priori.

This type of institutional design makes it easier for members the political class to protect a piece a legislation they fear would be found unconstitutional by the judges. In order to keep a bill out of reach of the Constitutional Court, a very large majority of the parliamentarians is however required as 60 of them are enough to start the procedure. It is now very rare that, on controversial issues, this number isn’t reached and thus the Constitutional Court is able to check the important bills. It has happened in latter years that a popular bill was promulgated without being reviewed because the opposition didn’t want to take the responsibility of starting the procedure that would end with the invalidation of key provisions. In those rare occasions, constitutional scholars and journalists denounced a secret pact between majority and opposition to do away with fundamental rights. In other terms the strategy was never reviled by the political actors themselves.

Three days ago, the Minister of Justice, out of all Ministers, publicly advocated this strategy. In fact he tried to force the pact on the left wing opposition more than he proposed it. The Parliament is about to adopt a bill on recidivist sexual-delinquents which will impose them to ware an electronic bracelet. In apparent contradiction with the constitutional principle of non retroactivity of legislation, this new rule would be applicable to delinquents who have already committed these types of facts. Acknowledging that there was “a risk of contradiction with the constitution” he explained that he was willing to run it and that “all members of Parliament could run the risk with him by not asking the Constitutional Council to review this piece of legislation and that those who would demand it would be taking the political and human responsibility of impeding the application of the new bill to the stock of imprisoned sexual delinquents.”

Now the President of the Constitutional Council it self has spoken up arguing that respecting the constitution is not a risk but a duty. The oppositions had to claim that this is an unacceptable unconstitutional behaviour etc. And now it has really no choice but to send the bill before the Constitutional Council.

What conclusions can be drawn from this amusing episode? If the opposition intended not to demand the review of the bill, then the comments of the Minister of Justice were not the smartest things to say. If on the contrary it had its mind set on demanding the review, then the Minister’s comments makes it easier as it is now possible for members of the opposition do it proudly without risking to put off the voters even if the bill is popular (which I don’t know that it is) because they will appear to be heroes who will stop at nothing to protect the constitution against the barbaric members of Government.

In all cases then, Monsieur Clément miscalculated his move. He is one of Sarkozy’s buddies and I hope that he will make many more mistakes of the kind before the presidential elections.

Will a Justice Roberts change the way the Supreme Court views Foreign Precedent?

Hidden beneath the rhetoric over abortion, the right to die, and how John Roberts has been able to keep such a pristine public record was a subtle discussion on how a Justice Roberts would view the appropriate role of foreign law precedents in US Courts.

As noted by the Washington Times, this was Roberts' response to questions regarding the use of foreign law as precedent:
Judge Roberts also indicated he would firmly oppose the movement - aggressively supported by several current justices - to look to foreign law as a guide to interpreting our own Constitution. This use of foreign law, Judge Roberts pointed out, "allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent - because they're finding precedent in foreign law - and use that to determine the meaning of the Constitution."

I think this is a hard argument to rebut. There is ample evidence that when given the opportunity to support an otherwise flimsy argument that judges will use any device available to them to prop that argument up. Legislative history has been a battle ground in this sense for quite a long time, but it now seems that the use of foreign law precedent is the wave of the future.

Tuesday, September 27, 2005

The IRA disarm...

... and Paisley cries foul.

Despite the fact that the IRA has called an end to its paramilitary activities, and has decommissioned its weapons to the full satisfaction of both the independent commission set up to oversee the process by the Good Friday agreement, and two appointed clergy men (one from each "side": a protestant minister and a catholic priest), the leader of the DUP Ian Paisley has claimed that there has been a "cover up", and has refused to even countenance re-entering into devolved government with representatives from Sinn Fein.

The commission's report concludes "In summary, we have determined that the IRA has met its commitment to put all its arms beyond use in a manner called for by the legislation". Both witnesses have expressed in the strongest possible terms their satisfaction with the process. Paisley, however, will not accept this; and this should come as no surprise. He has nothing to gain, and everything to lose, if the peace process in Northern Ireland should come what most of the rest of us regard as a successful end: the removal of paramilitary violence from the political sphere. Much of Paisley's popularity rests on the fact of that conflict; he has thus a vested interest in not allowing it to end.

In this regard, the reaction of the UUP to this is encouraging; one Assembly member described Paisley's attempt to cast apsertions on the integrity of the decommissioning committee as "sad". In terms that also echoed the conclusions of the report, the UUP also called for similar action from the Loyalist paramilitary groups, who had claimed they would disarm should the IRA do so. Paisley, predictably, has had nothing to say on this.

It is tempting to view Paisley's invective as simply the ravings of an anachronism who knows that his time has, finally, come, and thus ignore them. To do so, however, would be to overlook the fact that, as of earlier this year, the DUP became the biggest Unionist party in Northern Ireland (Sinn Fein became the biggest nationalist party). While someone like Paisley remains in a position of such power, the prospects for the region, in particular in terms of the reinstatement of devolved government at Stormont, look bleak indeed.

Monday, September 26, 2005

Bye Bye Tony!

Tony Blair had 'pre-announced' that he will leave his post at the latest in 2007. This event triggers a number of fascinating questions:

1- Will he keep his promise? Tony, in the past, has announced many things that have never come true. One example? The referendum on the euro...

2- Who will be his successors? Gordon Brown is obviously in pole-position but many have voiced their disappointments especially after Brown declared that he will stick to the implementation of the Constitutional reforms Blair initiated. (Frankly, the criticism against this idea are laughable. Can Brown depart in any substantive way from the path taken by HIS government?)

3- What will Tony do afterwards? He is still very young and ambitious, so we really wonder what he has in mind. Is he thinking at the European level or at the international level. Will he do like his friend, Bill Clinton?

Here we have a number of exciting questions that will be answered on this blog!

Saturday, September 24, 2005

Iraqi authorities assert independence in Basra

During the last week or so, the relations between UK forces in Basra and the local authorities (and the locals themselves) - once held up as an example to US forces, by the UK media at least, of urban military policing, have hit rock bottom. The incident was sparked when two men - believed to be undercover SAS operatives - were detained after a confrontation with local police; a confrontation in which, it is alleged, the men killed an innocent Iraqi civilian.

The Guardian reported that, after the incident, the locals took to the streets with loudspeakers, demanding that the men be detained an put on trial. The UK military then took the apparently astonishing decision to storm the jail in which the men were being held, and liberate them by force from the Iraqi authorities. Small wonder that those same authorities have since decided to cease cooperation with UK forces.

The row caused by this action, which, incidentally, was staunchly defended by the UK government as "swift and decisive action in very difficult circumstances", has been reignited now by the reissuance by an Iraqi judge of warrants for the arrest of the two men. The UK military continue to claim that, under the terms of an agreement between the two governments, British soldiersn are immune to prosecution. Interestingly, the judge in question has told the BBC that there is reason to doubt that the men in question are, in fact, British; this, he claims, is sufficient to give Iraqi courts jurisdiction rationae personae over them.

An interesting development, all things considered. The decision by UK forces to storm the prison to free the men seems astounding, both in terms of increasing difficulties with the local population, and also, of course, given that Iraq is, nominally at least, a "sovereign state". The reaction from the local authorities would seem to suggest that they are not, however, going to let the occupying forces have absolutely everything their own way. We'll see how things pan out, though...

Friday, September 23, 2005

Italian Melodrama at the IMF

More on the crisis of the italian government, this time in english.

The international credibility of this government, if there was any left, is completely jettisoned. The president of the Italian central bank, Fazio, who was in the eye of the storm during the summer, is at this very moment in Washington for the yearly meeting of the IMF. Berlusconi has just declared that Fazio does not have the support of the government anymore. His legitimacy has been put in doubt.

As a consequence, Italy is now represented in Washington by a person who is in conflict with the government; moreover, he is also in an open conflict with Giulio Tremonti, the newly appointed minister of Economic Affairs, who had been dismissed in the past from Berlusconi's government precisely because of the pressure exercised by Fazio.

The two men, Fazio and Tremonti, are in Washington at the IMF to defend the interests of Italy. Could something similar happen anywhere else in the world?

Thursday, September 22, 2005

Secular Philosophy and the Religious Temperament

I warmly invite you to take a look at the website of the NYU Colloquium in Legal, Political and Social Philosophy. The colloquium is run two leading writers: Ronald Dworkin and Thomas Nagel.

A very interesting article by Thomas Nagel has just been posted on the following issue: 'Secular Philosophy and the Religious Temperament.'

Italian Drama and the Budgetary Law

More signs of the the disintegration of Berlusconi's government: The minister of economic affairs, Domenico Siniscalco, has left the government. Siniscalco does not want to embark in a furious battle over the budgetary law as he believes that this will be an occasion for the right wing government to fight over the leadership of the coalition. He's right!

There are only eight months left before the elections. No budgetary law at this point is likely to redress the poor italian economy. Hard choices should be taken, but this is not possible at the moment. Hard choices do not sell well with the electorate.

Italy is prisoner of a government whose death is dragging the country in a black hole. Elections should be held NOW!

Wednesday, September 21, 2005

European constitution, German election and the upcoming congress of the French Socialist party

Many people pointed out that, as Lorenzo did, that the elections in Germany raise some of the same questions as the ones addressed during the different referendums for the European constitution: the liberal turn is depicted by government parties as an absolute necessity for European countries while a strong left wing minority is fiercely opposed to it. This opposition is able, some times with the help far right racist parties, some times with the help of radical liberals, to lead to situations of blockage of the institutions.

In France, the leaders of the Parti socialiste believe that they failed in the presidential elections in 2002 and at the referendum on the European constitution last spring because of those small radical left wing parties who drew the votes which made them win before. Afraid that it will lead to more defeats in the future, the leaders of this party have realized that time had come to reposition themselves clearly on the political scale. There are those who would move in the direction of the radicals (Fabius/Mélanchon and Nouveau parti socialiste/Emmanuelli) and those who would move further away from them (Hollande, Aubry, Jospin, Strauss-Kahn). The strategy of the first group is clearly to regain the votes lost to the little parties and eventually make alliances with them. The strategy of the second group is seemingly to regain the votes lost to right wing parties and maybe to fulfil the old dream of winning over the “center”. In two months time, a congress will take place in which the Parti socialiste will decide the direction it will follow in the coming years.

Some can be scandalized that small radical parties are able to force large and respectable institutions such as the PS into tensed decision making. I think that it is great. Deciding clearly on the ideological orientations of a party cannot be bad. No matter which way it goes, it is a first positive consequence for the left wing, of the rejection of the European constitution. It might happen in Germany as well.

Europe and German Elections

In the spring, some people thought that the French and the Dutch Referenda gave a massive blow to European Integration. They did not know about the recent German elections. The financial and political stability of Europe depends very much on Germany. If Germany is unstable, then we all are.

What is worse is that German elections identify a common European problem and dismiss it at the same time as not-too-important. The problem is that we are struggling in order to find answers to european crisis, especially related to the job market. Jobless people are obviously unsatisfied and frustrated. The problem is that they do not want to take the medicine, that is a robust reform of the european social sphere. The reason is that they feel they are doing well, after all.

This is the worse possible feeling. Our standards are lowering, but we are waiting until dramatic conditions will arise before taking responsibilities. Deterioration of the European social and welfare sphere will happen, unfortunately. It is time to act now, we cannot wait anymore.

Tuesday, September 20, 2005

Humanitarian Intervention and the UN World Summit

The UN World Summit has been largely regarded as a failure: as one Guardian leader noted, it was "little more than a heavily spun restatement of its [the UN's] loftiest ambitions". This, although real grounds for criticism, cannot have been much cause for surprise. The definition of "terrorism", for example, has for years proved to be quite as intractable an issue as the definition of "aggression"; for, most likely, fairly similar reasons (any definition will almost inevitably appear both under- and over- inclusive to most states). However, most reports have agreed that one real, substantive advance has been made in the field of humanitarian intervention.

I, for one, have found these reports a little confusing. I assumed, on the basis of a few articles and news bulletins, that some notion of an individual right to armed intervention to defend populations suffering grave human rights abuses had been agreed. The same Guardian piece, for example, applauded the "one real shift: recognition that the world body has a 'responsibility to protect' - to ensure that genocide, ethnic cleansing and other war crimes should not be ignored in the name of state sovereignty."

Just how much of a shift is this, though? Certainly not as much as the Guardian piece suggests. The Security Council has already shown itself willing (albeit only very occasionally) to view such serious human rights abuses as "threats to international peace and security" - the "trigger phrase" for enforcement action under Chapter VII. They have thus already acknowledged that state sovereignty in this field can be overridden by the International Community acting through the Security Council.

Perhaps, though, it could be argued that, for the first time, the United Nations has accepted an obligation to intervene in cases of genocide, ethnic cleansing or other crimes against humantiy. Perhaps it has learned its lessons from Rwanda after all. I'm not so sure, however: here is the relevant section from the World Summit outcome:

Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes against Humanity

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapter VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the UN Charter, including Chapter VII, on a case by case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and its implications, bearing in mind the principles of the Charter of the United Nations and international law. We also intend to commit ourselves, as necessary and appropriate, to help states build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assist those which are under stress before crises and conflicts break out.

Does this really constitute the "unambiguous acceptance by all governments of the collective international responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" breathlessly proclaimed on the UN website? I have serious doubts. (See also the post on the Carpterbagger Report for an interesting view in this regard, noting that, in respect of genocide at least, such responsibility to protect already existed under the Genocide Convention). The language, when it comes to the role of the international community, and even more so when it comes to the use of force, is decidedly less than mandatory.

Thus, the international community "should, as appropriate, encourage and help States to exercise" their individual responsibilty to protect their own populations from these serious human rights violations. It also has the responsibility to use "diplomacy and other appropriate peaceful means to help to protect" populations from genocide. In terms of the use of force under Chapter VII, no obligation at all is accepted; it is nothing more than a restatement of what we already new: "we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the UN Charter, including Chapter VII, on a case by case basis".

There is, to my mind, nothing here for proponents of humanitarian intervention to get in the least excited about; indeed, there seems to be little, if anything, that is new at all. Any action must still got through the Security Council; and Security Council paralysis will not lead to any right to act unilaterally (except to the extent that such a right can be said to exist already under customary international law). Not that those who are deeply uneasy about the proposed customary right to unilateral humanitarian intervention, relied on by the UK as the legal basis for the Kosovo bombings (according to Lord Goldsmith; see my post here), to get excited about; this was a real opportunity missed, for both sides. Those in favour could have seen much of the controversy over the proposed right removed; more importantly, from my own point of view, those uneasy could have seen the potential for such a right - the acceptance of which now seems more and more likely - to be used in an absolutely arbitrary manner could have seen some much needed specifications, thresholds and safeguards put into place. At least the legal categories of genocide, war crimes and crimes against humanity are a little more specific than Lord Goldsmith's formulation of "the use of force to avert overwhelming human catastrophe".

to its Of course, it is perhaps naive to hope for an individual right to humanitarian intervention to be specified within the framework of a UN summit. However, if the Charter can make exceptions for self-defence, why not for humanitarian intervention? Would it be so different from the domestic analogy, in which a right to defend others is often inferred from the right to self-defence (particularly now, when the focus of international law has shifted from its subjectsobjects)? Arguments in favour of such a right seem to me to have a very sound basis in ethical theory (and not merely a foundationalist ethical theory); however, they are currently outweighed by the danger created by the lack of ex post accountability generally in international law, exacerbated by the current situation of single power hegemony. The summit would thus have been an ideal opportunity to provide some delimitation of the "right" to humanitarian intervention, so that this ethically sound but practically extremely dangerous doctrine could begin, at least, to shed some of its controversy and begin to aid those most in need with a much reduced risk of cynical appropriation for individual interests.

In this, however, as, apparently, in everything else, the best that the leaders of the world could muster was a rhetorically fudged restatement of the status quo.

Friday, September 16, 2005


The Government has nominated Ms Eleanor Sharpston QC to replace Advocate General Francis Jacobs, who will retire at the end of December from the European Court of Justice in Luxembourg. Ms Sharpston's nomination, which follows an open competition for the post, is the UK's first female nomination to the European Court of Justice.

Welcome to our new guest blogger

Nathan Gibbs is joining our blog. Nathan belongs to our family of EUI (European University Institute) alumni, and specializes in European Constitutionalism and Legal Theory. I am sure he will bring a huge contribution to this blog!!

Please have a look here for one of his recent article posted to the SSRN (Social Science Research Network), and published on the European Law Journal.

Benedict XVI and Opus Dei

Benedict XVI uncovers a statue in honour of Josemaria Escriva, the founder of Opus Dei. It is not clear as yet what is Ratzinger's position towards the all-mighty catholic organisation, but this beginning marks a certain predilection.

The dark side of John Roberts

William Taylor, Georgetown professor of law, wrote the most interesting piece I've read so far about John Roberts, the nominee. Please read here

An excerpt:

"But it was in the second major civil rights battle of the early Reagan administration that Roberts, winner of an undergraduate history award at Harvard College, revealed a surprising ignorance of America's racial past. The issue in 1981 was whether Congress should renew key provisions of the Voting Rights Act of 1965 and overturn a 1980 Supreme Court decision that threatened to undermine the gains that African-Americans were making in securing their right to vote.

The history of discrimination was unambiguous. Despite the guarantees of the Fifteenth Amendment, from the end of Reconstruction in the late nineteenth century through the early 1960s the states of the Old Confederacy kept black people from registering to vote by a variety of strategies. As the Supreme Court struck down one device after another for disenfranchis-ing blacks as violating the Fifteenth Amendment, states replaced them with others, finally resorting to primaries limited to white people. These practices were reinforced by racial violence. Many local black leaders who were organizing people to vote were murdered by members of the Klan."

Thursday, September 15, 2005

New Italian Electoral Law: Berlusconi's dirty (little) secret

As said many times before, Berlusconi is dying politically. This is good. But the problem is that he wants to drug Italy to hell with him. His latest invention is an electoral law that would allow him to win the elections despite popular defeat. At the moment the opposition weighs 52%, and Berlusconi's coalition 44%. The electoral reform proposes to exclude from paliamentary posts small parties. As a matter of fact, the opposition features a good number of small parties that would not be eligible to seats in Parliament. As a consequence, Berlusconi calculated that the opposition would lose something like 10%, therefore letting Berlusconi win. The electoral law includes a majority prize that goes to the winner. Theoretically, Berlusconi could still make it this way: to call this dirty would be an euphemism.

Giovanni Sartori, an eminent political scientist, and world expert on electoral reforms (he's italian after all), condemns the reform here, on the Corriere della Sera.

Wednesday, September 14, 2005

Is there a doctor in the house?

Indeed there is; two now, in fact...

On behalf of all (the rest) of us at the Transatlantic Assembly, I'd like to extend our warmest congratulations to Srdjan, who today became the latest member of our group to successfully defend his doctoral thesis (on, if memory serves me well, the theory of open borders and the liberal state) at the European University Institute in Florence.

Feeling the pressure, Raph? I know I am...

Congratulations, Dr Cvijic!

Tuesday, September 13, 2005

Politics 1A: How To Miss The Point

Bush, speaking recently in New Orleans in an attempt to deflect the growing criticism over the almost every element of the way in which the current crisis has unfolded, was according to the Guardian, "particularly animated" when it came to the issue of the role of race in the crisis:

The storm didn't discriminate and neither will the recovery effort. When those coastguard choppers ... were pulling people off roofs, they didn't check the colour of a person's skin.

We can only hope that this kind of deliberately obtuse comment fails in its goal, which is to close once again the eyes of the American public, and indeed the world, that have been so dramatically opened to the current reality of perhaps the most difficult and persistent issue in the history of the US. The idea that "race was not an issue" in the Katrina disaster is, quite simply, intellectual dishonesty of the lowest order.

Monday, September 12, 2005

Modernity and Catastrophe

Very many appalling, and deeply moving, images and stories that have come out of New Orleans in the last week or so, the most memorable of which have focused upon the most vulnerable members of society, such as children and pensioners. At the same time, the most commonly expressed sentiment (after, perhaps, grief and outrage) has been astonishment: how could this have happened, have been allowed to happen, in the richest, most "modern" country in the world?

Many fingers have been pointed in an attempt to answer this question; the politics of blame have been in full swing since the scale of the disaster became apparent. None of these, however, from allegations of incompetence to more sinister suggestions, are as disquieting as that offered (admittedly in another context) by the French author, Michel Houellebecq. In his recent novel, La possibilité d’une île, one character discusses the heatwave in France in 2003, which claimed the lives of some ten thousand people in two weeks. Noting the reaction in the press in the days and weeks that followed this, he talks of the series of appalling images and reports that appeared, containing scenes worthy of concentration camps, and the apparent lack of compassion that allowed things to reach this stage. He then goes on to discuss, in the following terms, the prevailing response to these:

“Des scènes indignes d’un pays moderne”, écrivait le journaliste sans se rendre compte qu’elles étaient la preuve, justement, que la France était en train de devenir un pays moderne, que seul un pays authentiquement moderne était capable de traiter les vieillards comme de purs déchets, et qu’un tel mépris des ancêtres aurait été inconcevable en Afrique, ou dans un pays d’Asie traditionnel.

There are, of course, significant differences between the French canicule of 2003, and what we are now witnessing in New Orleans. The basic point, however, remains both salient and deeply disquieting: that the "modernity" that we trumpet, and from the standpoint of which we express our utter disbelief at our own reaction to catastrophe (again, and again, it seems), may, in fact, be in some way causally implicated in that reaction. Could it be, in fact, that it is only in times of catastrophe that we are forced to confront the alienation that in fact characterises la vie quotidienne?

Thursday, September 08, 2005

Bush, Kofi, and the international community: friends forever?

Opinio Juris posted some excerpts of Condoleeza Rice's public speech thanking foreign countries for contributions. I'd like to make some comments about them (below in Bold). Mrs Rice says:

I just want to say that people have said without fail that the United States is a compassionate country that has helped so much when there has been devastation around the world that they want give back to the United States. And that should make us feel good as Americans to know that people acknowledge how much we have been able to help and that they now want to help us.

It is NOT because the US is a compassionate country that the world is giving an aid. Facing a human tragedy of those proportions, everyone feels bound to help. But it is not a 'do ut des' type of aide. That is to say, it is not a pay back. It would happen with any country in the world, with no discrimination, and this for the simple reason that we all have a moral duty to help those who have been struck by a lethal blow.

The United Nations has mobilized their disaster experts. I want to thank Secretary General Kofi Annan for that. Their people are sitting with our people in Washington to plan out UN support. So there's just a lot.

Oh all of a sudden, Kofi boy becomes a good old friend. And the UN a great, supportive, institutions. This is ridiculous.

And if I could just close with one story that is particularly heartening to me, the small country of Sri Lanka, which has just gone through its own devastation because of a tsunami, is one of the cash contributors to this effort. And that says something about the heart of the world as well as the heart of America.

This should be taken as a lesson and not as a fairy tale. Sri Lanka is simply giving an example of (international) solidarity. A word, that the Bush administration can barely comprehend. Bush and Rice say that because of their compassionate attitude, the world is now showing solidarity. The truth is that the world is showing international solidarity precisely because of the lack of domestic solidarity seen in the US. We know Bush's administration had the financial means to cope with the tragedy. This is not the issue. Bush' s administration lacked the will of showing strong, immediate, domestic solidarity. Sri Lanka gave a moral lesson to the Bush administration.

How does the story end? Today (??) Bush is asking the Congress to give money for relief...

Wednesday, September 07, 2005

Katrina and International Law

I have the unfortunate burden of being subscribed to the American Society of International Law's email list-serve. Never before have I seen such nonsensical drivel. As a conscientious scholar of international law, I do my best to sift through the garbage in order to find clear thinking analysis of important international law issues.

Recently, while attempting to do this sifting I ran across this (names omitted to protect the guilty).

Dear X,

With respect, I think you are mistaken: politics cannot be
from the law in any context. Further, neither law nor politics can
be separated
from ethics, logic, or linguistics, among other

And to whatever extent politics is thought of as being separate
from law,
or vice versa, to that extent we are not discussing politics or
law, but TYRANNY
and CRIME.

You can't separate anything from its
purpose, and the results matter:
Katrina was an act of god, but our response
to that act was ours and ours alone.
Wars happen because we instigate and
permit them; poverty and famine are
entirely the result political and legal
We have had the
capacity to live a "civilized" existence
for something like 4,000 years now, and
in all that time we have yet to
achieve it. That fact is entirely our fault, and
that fact could literally
be changed overnight by simply choosing to change it.

The only thing
stopping us is the fact that so many of us think being an
ignorant savage is
just a good idea.


It is enormously frustrating to hear such yip yap as a crisis still rages. I can only hope that the high handed arrogance of such individuals fades with experience.

Tuesday, September 06, 2005

Torture and non-refoulement

The Guardian reported yesterday that Tony Blair has hinted that he may seek to change the Human Rights Act in order to force courts to accept his plans to deport radical muslim imams to countries in which they face the threat of torture or cruel, inhuman and degrading treatment. The UK has been seeking to conclude "memoranda of understanding" with the Governments involved, but Blair has acknowledged that the British courts are unlikely to view these guarantees as sufficient.

Things, however, cannot be as easy as a simple amendment of the Human Rights Act. Firstly, because this Act was intended to incorporate the European Convention on Human Rights into UK law, and the UK Government will still have the same obligations under that convention regardless of what it does to its domestic law. More interestingly from my own point of view, however, there is also the issue of the UN Convention against Torture. In this regard, it is worth bearing in mind that this Convention was at the centre of one of the most high-profile House of Lords judgments of recent times, in the Pinochet case.

Article 3(1) of the Torture Convention is very clear on the subject of deportations.

No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

This, however, seems little more than a logical extension of the general definition of the crime of torture included in Article 1:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

It is also interesting to note the striking language used in Article 2(2) of the Torture Convention, particularly in the context of the deportation of those who are seen to encourage terrorism:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

It certainly may be argued that knowingly returning someone to a country in which"there are substantial grounds for believing that he would be subject to torture" would constitute the "consent or acquiescence of a public official" under the meaning of Article 1. The wording of Article 4(1) of the Convention also seems to support such a reading:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

If, therefore, we can coherently argue that deporting someone to a country in which there are substantial grounds for believing that he may be subjected to torture can be described as the "consent or acquiesence of a public official", and, if such consent or acquiesence can be viewed as "complicity" in the sense of Article 4, then those responsible for the extradition could themselves be guilty of under international law of any torture that does, in fact, result, an "international crime in the highest sense", according to the Pinochet judgment, and one which, due to its jus cogens nature, "justifies states in taking universal jurisdiction over torture wherever committed" (Lord Browne-Wilkinson). Nor is this chain of reasoning particularly outlandish; the "consent or acquiesence of a public official" is what is required to make any torture an international crime; thus, it seems sensible to suggest that the official who provides such consent is guilty as "complicit", regardless of whether they were directly involved in the actual act.

Blair may well, thus, win the current battle, forcing reluctant courts to accept the controversial plans to deport those suspected of preaching terror to countries in which they face the risk of torture. This might not, however, be the end of the affair; if my reasoning here is sound, then he may risk incurring personal international criminal liability for any torture that does, in fact, occur. Nor, of course, after the Pinochet judgment, would he enjoy any immunity rationae materiae in respect of such allegations, and as such had better choose his holiday destinations with care when he eventually steps down in a couple of years' time...

Tribe on the US Supreme Court

Laurence Tribe, professor of constitutional law at Harvard, has an interesting piece on late William H. Rehnquist and the future of the US Supreme Court. Please read here.

An excerpt: "Chief Justice Rehnquist's goal of weakening the checks on presidential power happily met decisive opposition within the court, although I worry that the seeds he planted to that end might yet bear dangerous fruit. No pleasure in argument could overcome my sadness at the Supreme Court's performance in the 2000 election, or my disappointment at how far the chief justice succeeded in his goals of lowering the wall of separation between church and state, shrinking Congress's power and reducing the protections accorded the mostly poor people of color who are suspected or accused of crime."

Monday, September 05, 2005

Niger, "famine" and the media

Niger's ongoing difficulties with malnutrition, so prevalent in the broadsheets just a couple of weeks ago, are no longer getting anything like the same level of news coverage. Things came to something of a head when then President, Mamadou Tandja, launched a startling attack on the manner in which it was being reported, and in particular on the use and imagery of the term "famine". Tandja's insistence that things were not as bad, and certainly not as simple, as they were being portrayed elicited many indignant responses, such as this one from the Independent.

However, as this interesting BBC article, provocatively entitled "Can aid do more harm than good" argues, as other news pushed Niger from the front pages, some aid and development experts are suggesting that Tandja may have had a point. The article, well worth a read, raises the prospect that dramatic aid appeals can actually be counter-productive, focusing attention away from chronic, long term structural problems in favour of short term solutions; not to mention the sometimes perverse incentives for aid agencies to simplify and exaggerate situations for their own ends.

Again, this is not to cast aspersions on the worthiness of the goals that aid agencies pursue; it does, however, as I have suggested before, provide us with another reason not to accept the image of aid and development that we are so accustomed to, and comfortable with, without a good deal more critical inquiry.

NYT's editorialist reads our blog for a bit of inspiration

Here's a proof that Paul Krugman, an editorialist of the NYT, gets inspiration from our blog.

His article on 'Katrina' makes a vwery similar point as Srdjan's post on Friday.

Compare the two and judge for yourself!

TransAtlantic Race to Watch the Space


An excerpt:

"A transatlantic race to see who can create in the next ten years the most powerful eye to scrutinise the universe in the hope of making spectacular discoveries. European scientists are planning a telescope as much as one hundred metres in diameter"

Another excerpt:

"Hopes of photographing a planet similar to our own in orbit around some far-off star are hidden under the terraces of the stadium in Tucson, Arizona.This is the home of the Mirror Lab, and the stamping ground of lanky, greying Roger Angel, the wizard who dreamed up a new way to manufacture telescopes. It is here that a very special mirror, 8.4 metres in diameter, is under construction. With seven similar mirrors, it will be part of the world’s largest observatory. The final seven-mirror telescope, known as Giant Magellan, will be able to explore the furthest reaches of the cosmos with the precision of a single, much bigger mirror 23 metres across. Current technology cannot produce mirrors that broad, but the problem has been sidestepped by combining several smaller ones. The project will cost half a billion dollars, and the seven American promoters, including Boston’s MIT and the Carnegie Institution of Washington, have yet to find the necessary funds."

Friday, September 02, 2005

Natural Disasters and the Minimal State

America is the greatest, undisputed power in the world but it seems that it is not able to adequately deal with the devastating results of the Hurricane Katerina. Many blame the current American President for lack of decisiveness in dealing with this situation but there is enough evidence to suggest that the very structural nature of the US system is weak in confrontation with such natural disasters. True enough, it is doubtful that any country in the world would be able to stand up to such a challenge in an adequate manner, however, several indicators suggest that, to an extent, the nature of the libertarian ethos of the United States to a large extent renders the state structurally weak in confrontation with such natural disasters. Natural disasters require decisive action on behalf of the state, societal solidarity just cannot do. Such situations require sometimes almost complete neglect of private property and entrenched understanding of individual liberty.

In the case of Katerina, the US Government proclaimed the state emergency, urged the population to evacuate the area of New Orleans but did nothing substantial to facilitate their retreat. One cannot escape the images on one hand of the middle class New Orleans leaving the city in their cars well before the Hurricane and on the other hand, poor, almost 100% African-American population that had nowhere to go, that remained in the city to the mercy of the scarcely efficient relief effort.

Would it be different in European states with a more entrenched culture of the extensive state? I believe so, at least the state would have much less to worry about in the case of forceful removal of the population from the areas threatened by natural disasters. Moreover, it would be much easier to spend and justify money employed for such an action. Once upon a time a close friend of mine, a convinced libertarian from the US, told me provocatively, referring to the penal code in most of the Continental European Countries imposing the Good Samaritan behavior on the citizens in cases of emergency where the life of others is under threat, and the absence of such legislation in the US, “no one needs to tell us Americans to help our neighbor”. Coming back to the case of state reaction in the case of natural disasters I wish to advance a provocative claim that a libertarian state lacks the culture and instruments able to deal with natural disasters in an adequate manner.

This is not to lead one to the logical conclusion that undemocratic totalitarian states deal perfectly with natural or other types of disasters (look at the reaction of the Soviet Union post and prior to the Chernobyl catastrophe). It is just to argue against the arrogant libertarian conviction that a minimal state is better than a more extensive one in absolute terms and that the invisible hand of the market has the propensity to mend everything. At the end of the day, if nothing else, the disaster caused by the Hurricane Katerina de-masked the nature and structural weakness of the American deeply socially and economically divided system. More extensive state does not necessarily react better in such situations but it has a positive effect on human solidarity, to express myself bluntly, people are more used to be forced to give to the others, in such states individual citizens do not need to write signs such as “Keep away or die”, and at the end of the day there are much less weapons around, so the state comparatively easier job of dealing with the vacuum of law and order.

Italian political tragedy

Silvio Berlusconi, our prime minister, is politically dead, as already pointed out in previous posts. Why would that have tragic sides?
Italy, sadly, is able to turn every comedy into tragedy and, happily, every tragedy into a comedy. Berlusconi's slow decline belongs to the former category.

With elections coming up next April, Berlusconi is desperately striving to maintain his position. He has to fight against the opposition and against his own 'comrades,' who are desperately trying to get rid of him as a leader of the center-right coalition. The problem is that, as Berlusconi controls the vast majortiy of italian media plus a good slice of italian companies, he is planning to use all its 'artillery' to fight back and avoid defeat.

This macabre show is all the more sickening when looked at from the viewpoint of small/medium dignitaries of Berlusconi's party who, in a very italian way world wide known as 'trasformismo', are quitting the ranks of Berlusconi's party to join the opposition in view of forthcoming elections.

Berlusconi declared once that he made the transition from 1st to 2nd republic possible. The spectacle we are witnessing these days, however, reminds us of the early days of the italian republic, if such thing has ever existed.

Thursday, September 01, 2005

Conservative Melodrama

Old is not very trendy these days. Kenneth Clarke's candidature has sparked a considerable amount of debate because of his age, he is 65 years old.

This issue tells a lot about the depressing state of conservative politics in the UK. For those who weren't aware, Clarke has stood as a competitor for the post in the past 3 internal elections.

He is now a political mummy, who awakes from rest everytime internal elections are at stake. Thus, it is not his actual age that matters, but his political age: just beyond the limit.