Italy and France are fighting at the moment a battle on Suez, a French company that Enel (an italian company) is trying to buy. In order to prevent that, the French government agreed on a fusion between Gaz de France and Suez.
Beyond the legal (tricky) problem, there is a much bigger question. Why should a European state do everything to keep a company national? The short answer is quite easy: to protect national interest.
Unfortunately, the short answer clash irremediably with the european ideal of the single market and with the creation of the euro in order to further that single market.
The reason for such a behaviour can be found in France's present political situation. Hurt by the defeat in the referendum, France is now a wounded animal, without clear guidance (Chirac, its president, is over), and more importantly, without clear ideals. France gave up its role as a committed european country and is now looking for its own identity, poor little one.
All this is bad in the short term. It is awful to see national protectionism re-emerge. But in the long run, it is clear that such an attitude would not be viable.
Europe will emerge from the slow death of nationalisms, even though that slow death is at times producing consequences hard to digest. This is particularly regrettable at this very moment, as Europe shows its weaknesses to the whole world without shame, but the only way forward, and away from this mess, is union, not egoism.
Monday, February 27, 2006
Thursday, February 23, 2006
A curious distinction...
Amnesty International has today released a pretty damning report on the UK Government's anti-terrorism legislation, claiming that its implementation has given rise to serious human rights violations", or, in the case of such measures as the introduction of a crime of "indirectly inciting terrorism", is likely to do so in the future. In one other memorable formulation, the report criticises the UK's "Kafkaesque" practice of locking up terror suspects, for years at a time and without trial, on the basis of "secret evidence". The invocation of Kafka's work here is hardly hyperbolic.
A brief summary of the report is available on Amnesty's website. The report itself is quite lengthy, but will undoubtedly make for uncomfortable reading for Blair and co. It does not, however, seem to raise any objections that will shock those who have been following the debates on, for example, the proposed introduction of a crime of "glorifying terrorism" or the Government's practice of seeking guarantees from certain States that returnees will not be subjected to torture on their return (I should add that this impression is based upon the summary of the report in the Amnesty press release and in various UK papers today; I have not read the full report).
What is important, however, as demonstrated by the media coverage that this release is getting today, is the fact that a major and respected human rights NGO such as Amnesty is saying it, and saying it all at once in an official report. This is further indicated by the Government's somewhat odd response, introducing the curious distinction of the title of this post. Lord Falconer, the Lord Chancellor, has argued that, in theory, human rights law allows a high degree of latitude for the adoption of weaker or stronger stances on "security" issues. He went on to argue:
What Amnesty is doing is, in practice, disagreeing with us on whether or not the laws are too tough. But they should not suggest that we are breaking human rights principles because we are always complying with human rights principles. It is unfortunate that an organisation of Amnesty's standard is, in effect, attacking our values when what they are really doing is saying that you are being too tough in relation to the stances you are taking within human rights law.
This argument, that Amnesty are disagreeing with the Government over how human rights should be applied (how tough we should be on terrorists within the framework of human rights law), is a baffling and deeply disingeneous mix of non-sequitor, diversion and naked assertion. No-one denies that human rights obligations can be interpreted in more or less stringent fashions: it is a mammoth (and quite unfounded) leap of logic to suggest that, on this basis, this is all that Amnesty is disagreeing over. Words and phrases such as "in practice", "in effect" and "really" are designed to divert our attention away from the plain meaning of Amnesty's critique, and to reinscribe it within the discourse preferred by Lord Falconer; while his assertion that "they should not suggest that we are breaking human rights principles because we are always complying with human rights principles" is a pretty much perfect example of how to beg a question. To be clear: regardless of the merit of Amnesty's claims, they are not quibbling with the government over the toughness of its stance within the limits set by human rights obligations; they are alleging that Government policy has directly led in the past, and will lead in the future, to trangressions of those limits, violations of those rights.
Lastly it is worth noting Lord Falconer's claim that the fact that the Government has "sought to stay within" the ECHR is proof that their values haven't changed is also more than a little suspect. Firstly, it is interesting to note his invocation of "values", which, in a manner similar to his use of the phrase "human rights principles" above, seems almost suspiciously keen to avoid the talk of hard, pspecific legal obligations. Secondly, mention of the "fact" that they have "sought" to remain within the framework of the ECHR does nto neccesarily mean that they have succeded (although it does seek to have us believe that any transgressions were an unfortunate error, not a result of any human rights mala fides). Lastly, and relatedly, few if any of the practices that Amnesty complained of have been tested before the European Court, and many claims under the Human Rights Act can be expected before the UK courts in the near future. That a finding of violation will not derail the Government has been made clear by Tony Blair, in a quote used by Amnesty to begin its report:
Should legal obstacles arise we will legislate further, including, if necessary, ammending the Human Rights Act in respect of the interpretation of the European Convention on Human Rights.
Falconer's use of the ECHR to deflect the allegations levelled by Amnesty in its report may, thus, come back to haunt him...
A brief summary of the report is available on Amnesty's website. The report itself is quite lengthy, but will undoubtedly make for uncomfortable reading for Blair and co. It does not, however, seem to raise any objections that will shock those who have been following the debates on, for example, the proposed introduction of a crime of "glorifying terrorism" or the Government's practice of seeking guarantees from certain States that returnees will not be subjected to torture on their return (I should add that this impression is based upon the summary of the report in the Amnesty press release and in various UK papers today; I have not read the full report).
What is important, however, as demonstrated by the media coverage that this release is getting today, is the fact that a major and respected human rights NGO such as Amnesty is saying it, and saying it all at once in an official report. This is further indicated by the Government's somewhat odd response, introducing the curious distinction of the title of this post. Lord Falconer, the Lord Chancellor, has argued that, in theory, human rights law allows a high degree of latitude for the adoption of weaker or stronger stances on "security" issues. He went on to argue:
What Amnesty is doing is, in practice, disagreeing with us on whether or not the laws are too tough. But they should not suggest that we are breaking human rights principles because we are always complying with human rights principles. It is unfortunate that an organisation of Amnesty's standard is, in effect, attacking our values when what they are really doing is saying that you are being too tough in relation to the stances you are taking within human rights law.
This argument, that Amnesty are disagreeing with the Government over how human rights should be applied (how tough we should be on terrorists within the framework of human rights law), is a baffling and deeply disingeneous mix of non-sequitor, diversion and naked assertion. No-one denies that human rights obligations can be interpreted in more or less stringent fashions: it is a mammoth (and quite unfounded) leap of logic to suggest that, on this basis, this is all that Amnesty is disagreeing over. Words and phrases such as "in practice", "in effect" and "really" are designed to divert our attention away from the plain meaning of Amnesty's critique, and to reinscribe it within the discourse preferred by Lord Falconer; while his assertion that "they should not suggest that we are breaking human rights principles because we are always complying with human rights principles" is a pretty much perfect example of how to beg a question. To be clear: regardless of the merit of Amnesty's claims, they are not quibbling with the government over the toughness of its stance within the limits set by human rights obligations; they are alleging that Government policy has directly led in the past, and will lead in the future, to trangressions of those limits, violations of those rights.
Lastly it is worth noting Lord Falconer's claim that the fact that the Government has "sought to stay within" the ECHR is proof that their values haven't changed is also more than a little suspect. Firstly, it is interesting to note his invocation of "values", which, in a manner similar to his use of the phrase "human rights principles" above, seems almost suspiciously keen to avoid the talk of hard, pspecific legal obligations. Secondly, mention of the "fact" that they have "sought" to remain within the framework of the ECHR does nto neccesarily mean that they have succeded (although it does seek to have us believe that any transgressions were an unfortunate error, not a result of any human rights mala fides). Lastly, and relatedly, few if any of the practices that Amnesty complained of have been tested before the European Court, and many claims under the Human Rights Act can be expected before the UK courts in the near future. That a finding of violation will not derail the Government has been made clear by Tony Blair, in a quote used by Amnesty to begin its report:
Should legal obstacles arise we will legislate further, including, if necessary, ammending the Human Rights Act in respect of the interpretation of the European Convention on Human Rights.
Falconer's use of the ECHR to deflect the allegations levelled by Amnesty in its report may, thus, come back to haunt him...
Wednesday, February 22, 2006
A little more on Serbia
A quick post to update and expand upon our discussion below on the future of Kosovo. Today's Guardian has an interesting article on Serbia, focusing on the pressure being put on the Government there to "hand over" Ratko Mladic, the General ultimately responsible, amongst other things, for the Srebrenica massacre in 1995, but also placing this in the wider context of the various other trials and tribulations facing the country in the next year or so...
The article notes that:
- The EU is holding firm on threats to pull out of integration talks, agreed upon in principle last autumn, unless the Serb Government hands Mladic over to the Hague by the end of the week. The assumption here, of course, is not just that they have not pursued him as much as they might have, but that they have actively hid him, to the extent that, if they chose, he could be in custody in a matter of days. It will be interesting to see just how strong the EU carrot really is there.
- Kosovo will become independent, on the basis, according to the director of the International Crisis Group, that the "international community has come to the conclusion that Serbia cannot handle keeping Kosovo". One thing's for sure: this debate is not for those who like their international law "pure"; or, for that matter, discernibly legal.
- Montenegro also is set to sever its last, loose federal ties with Serbia and go it alone, signalling - for better or for worse - the completion of the process of disintegration of Yugoslavia that began in the early 1990s.
Given the strength of nationalist feeling in Serbia at the moment - one of Srdjan's main concerns, I know - it seems entirely possible that the coincidence of these three factors - Mladic, Kosovo and Montenegro - might be untimely, to say the least. We can but hope that the EU is, in these circumstances, correct to add so much of its own pressure to such a highly-charged situation.
The article notes that:
- The EU is holding firm on threats to pull out of integration talks, agreed upon in principle last autumn, unless the Serb Government hands Mladic over to the Hague by the end of the week. The assumption here, of course, is not just that they have not pursued him as much as they might have, but that they have actively hid him, to the extent that, if they chose, he could be in custody in a matter of days. It will be interesting to see just how strong the EU carrot really is there.
- Kosovo will become independent, on the basis, according to the director of the International Crisis Group, that the "international community has come to the conclusion that Serbia cannot handle keeping Kosovo". One thing's for sure: this debate is not for those who like their international law "pure"; or, for that matter, discernibly legal.
- Montenegro also is set to sever its last, loose federal ties with Serbia and go it alone, signalling - for better or for worse - the completion of the process of disintegration of Yugoslavia that began in the early 1990s.
Given the strength of nationalist feeling in Serbia at the moment - one of Srdjan's main concerns, I know - it seems entirely possible that the coincidence of these three factors - Mladic, Kosovo and Montenegro - might be untimely, to say the least. We can but hope that the EU is, in these circumstances, correct to add so much of its own pressure to such a highly-charged situation.
Italian Decadence, Helas
The worst of the signs of decadence: italians want to quit Italy.
This is what a recent italian research show. Read a report here.
This is an excerpt: The figures for young people are particularly worrying. Almost 55% of respondents aged 18-24 years said they would be happy to live abroad.
Five years of Berlusconism have plummeted italian well-being. Is there any more convincing evidence than that?
This is what a recent italian research show. Read a report here.
This is an excerpt: The figures for young people are particularly worrying. Almost 55% of respondents aged 18-24 years said they would be happy to live abroad.
Five years of Berlusconism have plummeted italian well-being. Is there any more convincing evidence than that?
Monday, February 20, 2006
Another (dubious) Change of Opinion
David Irving, the (in)famous Holocaust negationist, has denied it all. This happened during his trial in Vienna (read here for a report).
The reason for this sudden change of mind are not clear. After all, Irving devoted all his career as historian to support his negationist claim.
It may be a farce to avoid a heavy condamnation. The deeper problem is still one of freedom of speech. Can we really be held accountable for expressing an opinion? Or the interest in free speech should prevail, no matter how brutal and incorrect this opinion is?
On this point, there is a fundamental difference between the US and various other European positions. In North America, Free Speech seems to be virtually absolute. In Europe, free speech is likely to be limited more often, especially in the light of previous historical precedents (e.g. nazism). In other words, Europe still bears the scars of extremism and does not want to re-open the wounds.
Another controversial aspect of free speech is that it can be inflammatory and lead to serious disorders. See for the most recent example, the Mahommed case. What is interesting to note is that at the global level a state may decide to restrict freedom of speech in order to protect itself from retaliation. Thus, Danemark may end up limiting free speech in order to avoid muslim retaliation.
The reason for this sudden change of mind are not clear. After all, Irving devoted all his career as historian to support his negationist claim.
It may be a farce to avoid a heavy condamnation. The deeper problem is still one of freedom of speech. Can we really be held accountable for expressing an opinion? Or the interest in free speech should prevail, no matter how brutal and incorrect this opinion is?
On this point, there is a fundamental difference between the US and various other European positions. In North America, Free Speech seems to be virtually absolute. In Europe, free speech is likely to be limited more often, especially in the light of previous historical precedents (e.g. nazism). In other words, Europe still bears the scars of extremism and does not want to re-open the wounds.
Another controversial aspect of free speech is that it can be inflammatory and lead to serious disorders. See for the most recent example, the Mahommed case. What is interesting to note is that at the global level a state may decide to restrict freedom of speech in order to protect itself from retaliation. Thus, Danemark may end up limiting free speech in order to avoid muslim retaliation.
Sunday, February 19, 2006
A Neoconservative Recants
There is exciting news (if that is possible) from the world of American foreign policy intellectuals. Francis Fukuyama, long connected with the infamous neoconservatives, who were an important intellectual wellspring for the war in Iraq, has (more or less) recanted. In an essay in Sunday’s New York Times Magazine entitled After Neoconservatism Fukuyama criticized the war in Iraq, American foreign policy in general and the ideas that have come to be associated with the neoconservative movement. Fukuyama also proposed a series of steps to recalibrate American foreign policy for the post-September 11 world, including greater emphasis on political and diplomatic steps to combat terrorism (and corresponding de-emphasis on military action), more realistic but no less emphatic promotion of democracy and a wiser approach to engaging the United Nations and to multilateralism in general. It will be interesting to see how his neoconservative mates react to his loss of faith. Even more interesting, and more important, will be to see if Fukuyama’s sound prescriptions gain any traction with intellectuals and policy makers.
Friday, February 17, 2006
Vote Vladimir Luxuria
Wladimiro Guadagno (alias Vladimir Luxuria) a famous Italian transsexual and show business person is running for the next Italian parliamentary elections in front of the Rifondazione Communista, part of the centre-left coalition.
One of the strengths of the centre-left collation of Romano Prodi is exactly its diversity of program, where you can vote for pious ex-Democristians and Vladimir Luxuria at the same time, on the other hand many argue that such heterogeneousness of the coalition hurts the electoral chances and makes it more plausible to expect Berlusconi’s victory. At the end one must conclude that the diversity of programs consideration must win over the tendency of homogenization. Italy needs alternative political programs of the example of Vladimir Luxuria and the example of traditionalist Puglia where on the regional elections communist candidate Nicky Vendola (open homosexual and communist) triumphed, shows that voting centre is no longer necessarily the winning formula in Italy. Sometimes original program presents an added value. Most important thing is to make as many people vote for the left-wing coalition, after all all of them are fighting for the same goal, defending Republicanism and Rule of Law against usurpation of the single man and his hostages in the centre-right coalition.
Terrorists and Combatants: Worth Distinguishing?
The Court of Appeal of Milan recently decided that suicide attacks on Marines are not terrorism.
This sounds pretty inflammatory. But before getting upset, try first to understand what this is all about.
From the procedural point of view, the decision will be the object of an appeal to the Cassation Court. The final act has still to come.
Apparently, the appeal will concern the interpretation of the following sentence: "only acts exclusively directed against the civilian population."
The question is whether italian law defines terrorist acts in the above mentioned way or it is possible to extend it also to acts against the military officers. The argument is simple: nowhere italian law talks about exclusivity.
A lot of the discussion, however, goes far beyond italian law. The decision in the first instance drew a distinction between terrorists and combatants. This is something we have to reflect upon.
Imagine, hypothetically, that the Iranian Army invades the US. Imagine also that Italian private people are trained in German camps to fight against the invaders. Italian kamikazes suicide themselves against the Iranian Soldiers. Now, international law and US law condems terrorism. Would you consider Italian Kamikazes as terrrorists or combatants?
Think about it!
The Minister of Justice, Mr Castelli, publicly disagreed with the decision. Not much, however, can be deduced from that. The minister belongs to the Northern League, a party which is overtly against Islam.
Here's a comment on the case on Opinio Juris.
And Here's a summary of the decision as reported in the Corriere della Sera:
“The recruitment of volunteers for Iraq to fight against American soldiers cannot in any way be considered a terrorist activity”. This is true even when, as in this case, “it is evident that suicide bombers are being recruited”.T he statement of grounds for the appeal verdict does more than merely confirm judge Clementina Forleo’s controversial 24 January 2005 ruling, which acquitted three Muslim fundamentalists of charges of international terrorism while accepting as proven the fact that they were recruiting mujahidin for the war in Iraq. The appeal ruling goes further.
The defendant who has gained most notoriety, Moroccan-born Mohammed Daki, is actually the only one of the three to be acquitted of all charges. According to the appeal court judges, “he agreed with the reasons why a Muslim should go to fight in Iraq” and tapped telephone conversations show his “willingness to assist a would-be fighter from Somalia” who asked him to “lend him his passport”. In the event, Mr Daki did not do so, partly because he realised the police were about to arrest him, so “he was only involved by chance”. According to the court of appeal, in the case of the other two defendants, Tunisians Ali Toumi and Maher Bouyahia, it has been “shown that they collaborated from February to March 2004 with the Egyptian Merai and the mullah, Fouad” (the two former imams of Milan and Parma arrested as cell leaders), “aiding volunteers to travel from Europe to Iraq to fight against the Americans, and providing them with false identity documents”. But not even this is terrorism.
The verdict of the court of first instance had cast doubts on the key telephone interception concerning the recruitment of suicide bombers.The court of appeal ruling, drafted by judge Rosario Caiazzo, considers the interception to be genuine – it names three suicide bombers:Habib Waddani, Morchidi Kamal and Habib Sekseka – but immaterial to the charges. “An act may be termed terrorist, in peace time, even when it occasions only indirect danger to the civilian population. But in a situation of armed conflict” this risk “obtains with great frequency”, for example “during bombardments”, for which reason “only acts exclusively directed against the civilian population” count as terrorism.“The prosecution view cannot therefore be shared”. In other words, the ruling rejects the position of public prosecutor Armando Spataro that “suicide bombings as such constitute a danger to the civilian population”.
The ruling makes no mention of the murder of Italian troops in November 2003 at Nassiriya but it does indicate two watershed dates that perhaps deliberately leave the judgement uncertain.The appeal court judge considers it “public knowledge” that “before August 2003, there were no terrorist attacks” because it was only after that date that “suicide actions” struck “civilians as well as military troops”. However, halfway through the ruling, the judge emphasises that “the period of military occupation”, equivalent to the “state of war” that is claimed to justify the suicide bombers, “ended formally only on 30 June 2004 with the first provisional Iraqi government”.
Judge Caiazzo also considers it proven that “the volunteers from Europe were sent to military training camps run by Al Ansar Al Islam”, which was “a full-scale Islamic combat organisation” with “fringes favourable to terrorism”. This, however, “is insufficient” to prove the charge “individually for each one” of the “recruiters”.
Mr Toumi and Mr Bouyahia therefore merit only three years’ imprisonment for the false passports and sending illegal migrants to Iraq, while Mr Daki should be freed with the court’s apologies.
This sounds pretty inflammatory. But before getting upset, try first to understand what this is all about.
From the procedural point of view, the decision will be the object of an appeal to the Cassation Court. The final act has still to come.
Apparently, the appeal will concern the interpretation of the following sentence: "only acts exclusively directed against the civilian population."
The question is whether italian law defines terrorist acts in the above mentioned way or it is possible to extend it also to acts against the military officers. The argument is simple: nowhere italian law talks about exclusivity.
A lot of the discussion, however, goes far beyond italian law. The decision in the first instance drew a distinction between terrorists and combatants. This is something we have to reflect upon.
Imagine, hypothetically, that the Iranian Army invades the US. Imagine also that Italian private people are trained in German camps to fight against the invaders. Italian kamikazes suicide themselves against the Iranian Soldiers. Now, international law and US law condems terrorism. Would you consider Italian Kamikazes as terrrorists or combatants?
Think about it!
The Minister of Justice, Mr Castelli, publicly disagreed with the decision. Not much, however, can be deduced from that. The minister belongs to the Northern League, a party which is overtly against Islam.
Here's a comment on the case on Opinio Juris.
And Here's a summary of the decision as reported in the Corriere della Sera:
“The recruitment of volunteers for Iraq to fight against American soldiers cannot in any way be considered a terrorist activity”. This is true even when, as in this case, “it is evident that suicide bombers are being recruited”.T he statement of grounds for the appeal verdict does more than merely confirm judge Clementina Forleo’s controversial 24 January 2005 ruling, which acquitted three Muslim fundamentalists of charges of international terrorism while accepting as proven the fact that they were recruiting mujahidin for the war in Iraq. The appeal ruling goes further.
The defendant who has gained most notoriety, Moroccan-born Mohammed Daki, is actually the only one of the three to be acquitted of all charges. According to the appeal court judges, “he agreed with the reasons why a Muslim should go to fight in Iraq” and tapped telephone conversations show his “willingness to assist a would-be fighter from Somalia” who asked him to “lend him his passport”. In the event, Mr Daki did not do so, partly because he realised the police were about to arrest him, so “he was only involved by chance”. According to the court of appeal, in the case of the other two defendants, Tunisians Ali Toumi and Maher Bouyahia, it has been “shown that they collaborated from February to March 2004 with the Egyptian Merai and the mullah, Fouad” (the two former imams of Milan and Parma arrested as cell leaders), “aiding volunteers to travel from Europe to Iraq to fight against the Americans, and providing them with false identity documents”. But not even this is terrorism.
The verdict of the court of first instance had cast doubts on the key telephone interception concerning the recruitment of suicide bombers.The court of appeal ruling, drafted by judge Rosario Caiazzo, considers the interception to be genuine – it names three suicide bombers:Habib Waddani, Morchidi Kamal and Habib Sekseka – but immaterial to the charges. “An act may be termed terrorist, in peace time, even when it occasions only indirect danger to the civilian population. But in a situation of armed conflict” this risk “obtains with great frequency”, for example “during bombardments”, for which reason “only acts exclusively directed against the civilian population” count as terrorism.“The prosecution view cannot therefore be shared”. In other words, the ruling rejects the position of public prosecutor Armando Spataro that “suicide bombings as such constitute a danger to the civilian population”.
The ruling makes no mention of the murder of Italian troops in November 2003 at Nassiriya but it does indicate two watershed dates that perhaps deliberately leave the judgement uncertain.The appeal court judge considers it “public knowledge” that “before August 2003, there were no terrorist attacks” because it was only after that date that “suicide actions” struck “civilians as well as military troops”. However, halfway through the ruling, the judge emphasises that “the period of military occupation”, equivalent to the “state of war” that is claimed to justify the suicide bombers, “ended formally only on 30 June 2004 with the first provisional Iraqi government”.
Judge Caiazzo also considers it proven that “the volunteers from Europe were sent to military training camps run by Al Ansar Al Islam”, which was “a full-scale Islamic combat organisation” with “fringes favourable to terrorism”. This, however, “is insufficient” to prove the charge “individually for each one” of the “recruiters”.
Mr Toumi and Mr Bouyahia therefore merit only three years’ imprisonment for the false passports and sending illegal migrants to Iraq, while Mr Daki should be freed with the court’s apologies.
Thursday, February 16, 2006
Mahommed Cartoons and the Northern League
The Northern League, the separatist party of the North of Italy, is campaigning with a series of T-shirts parading the (in)famous Mahommed cartoons.
This is a very unfortunate and serious mistake. They obviously underline once more their vulgar and violent way of doing politics; worse, they give further visibility to pooly crafted cartoons with the only intent of attracting attention.
This is the kind of allies that the right wing coalition managed to enlist. Add to that the neo-fascist party led by Alessandra Mussolini, niece of Benito, and you probably understand why the present government constitutes a threat to democracy in Italy, and this not only because of the leader of that coalition.
This is a very unfortunate and serious mistake. They obviously underline once more their vulgar and violent way of doing politics; worse, they give further visibility to pooly crafted cartoons with the only intent of attracting attention.
This is the kind of allies that the right wing coalition managed to enlist. Add to that the neo-fascist party led by Alessandra Mussolini, niece of Benito, and you probably understand why the present government constitutes a threat to democracy in Italy, and this not only because of the leader of that coalition.
Territorial autonomy for Istria (Republic of Croatia)?
When thinking about the claims for territorial autonomy in the Western Balkans one usually thinks about Serbia, Former Yugoslav Republic of Macedonia or Bosnia and Herzegovina. In the eyes of many today’s Croatia does not have these ‘problems’. After the mass exodus of Serbs from the Republic of Croatia caused by the operation storm in 1995, Croatia seemed peaceful with its centralized model of governance. This is, however, not the case, at the beginning of 2006 Democratic Union of Istria-Dieta Democratica Istriana, dominant party in this part of Croatia, announced its plan to fight for the granting of territorial autonomy for this costal region of Croatia close to Slovenia and Italy.
Istria had a rather turbulent history constantly changing rulers, after World War I Istria passed from Austrian Habsburg rule to that of Italy. The Slavs were exposed to a policy of forced Italianization. Some claim that the Fascist regime of Benito Mussolini colonized Istria with up to 50,000 Italians. Others claim that there is not clear evidence for such high number of immigrants from southern Italy.
After the end of World War II, parts of Istria were assigned to Tito's Yugoslavia. This time it was the local Slavic population who committed, what would be in todays’ jargon called ethnic cleansing of the region, from 1945 to 1956, thousands of Italians, were killed and their bodies thrown into caves (foibe) and about 300,000 Italians forcibly left the region to settle in Italy. The ethnic cleansing (‘esodo’) was completed in 1956 and the rest of the region was incorporated into Socialist Federative Republic of Yugoslavia. Following the exodus, the areas were settled with additional Croats, Slovenians and a small number of other Yugoslav nationalities like Macedonians, Albanians, Serbs or Montenegrins. Istria, a potentially rich region, presented ‘California’ of Tito’s Yugoslavia where many people from all parts of former Yugoslavia poured. These migrations resulted in an extremely heterogeneous population mix in this region. Despite the fact that many Istrians are ethnic Croats, a strong regional identity has existed over the years. It is largely for this reason, in combination with historic legacy of striving for independence, that the calls for the autonomy of Istria come back to the political agenda in Croatia.
Since Croatia's first multi-party elections in 1990, the regional party Istrian Democratic Assembly (Istarski Demokratski Sabor or Dieta Democratica Istriana IDS DDI) has consistently received an absolute majority of the vote and maintained a position often contrary to the government in Zagreb (despite the authoritarian nature of Tudjman's regime) with regards to their regional autonomy. Today, IDS-DDI is asking for the establishment of the territorial autonomy of Istria once Croatia enters the European Union.
Wednesday, February 15, 2006
What’s in a Name: Five theses on the Self-Determination of Peoples: by Zoran Oklopcic
Zoran Oklopcic is a constitutional and political theorist and a PhD candidate from University of Toronto, Faculty of Law. Zoran was born in Zagreb, Croatia.
I have been following with great interest the lively discussion on the application of the right to self determination in relation to the future negotiations that are supposed to determine the future status of Kosovo. The aim of the reflections that follow is not to argue in favor of one or another interpretation of the right to self-determination in the context of Kosovo. Rather, my aim is to claim that there is a problem with the concept of self-determination itself.
In short, I argue that the concept of self-determination of peoples (and by implication its kissing cousin ‘popular sovereignty’) is (I) circular, and as a consequence of that (II) redundant, (III) misleading, (IV) inflammatory, and finally, (V) already disappearing from the vocabulary of the major political actors involved in the Kosovo crisis.
(I) Circular. The case of the self-determination of peoples is a classical example of the chicken and egg dilemma. ‘The people” is, supposedly, the agent that creates the state while on the other hand the people itself is delineated by the recourse to some territory. For example, some argue that there exists the right of the people of Kosovo to external-self determination. This however presupposes the territory of Kosovo as a relevant unit which is supposed to delineate the particular people that have the right to self-determination. The issue then is about the legitimacy of that particular unit, and not about some purported will of the people which is the construction of the legal arrangement that delineated the territorial boundaries of Kosovo. (Let us not forget that territory is not geographical, but primarily a legal concept that delineates the personal scope of the jurisdiction of some legal order.) So, plainly speaking, there is no self-determination, and there are no peoples which are determining themselves. Is this claim new? Not really. More than fifty years ago, Sir Ivor Jennings famously observed that before ‘people’ decide on their destiny, someone needs to decide who the people is. (It would be interesting to think about the conceptual considerations that allowed the concept of self-determination to linger on, but I won’t entertain these arguments here)
(II) Redundant. So what, you may ask, if the concept of self-determination is circular? First, and somewhat trivially, the right of self-determination may be completely re-scripted in legal terms. Second, and less trivially, by doing so, we would be in a better position to uncover unquestioned assumptions that are obfuscated by the interpretation of what the law on self-determination ‘requires’.
As an example, let me try to reconstruct the argument in favor of a so-called right to external self-determination for the people of Kosovo. This claim can be translated as follows:
The constitutional status of the territory of Kosovo will be upgraded to the status of an independent state if: the majority of its citizens decide so on a referendum.
As I have already noted, that presupposes a tacit assumption about the legitimacy of Kosovo’s boundaries. (For the sake of argument I will not discuss any historical claims that could be made in favor of an independent Kosovo that stretches beyond socialist Yugoslavia) That legitimacy is established by pointing out that; Kosovo was a constituent part of the former Yugoslavia, which in turn presupposes that, The constituent parts of federations have the right to unilaterally declare independence.
Now that’s problematic. As the Supreme Court of Canada has demonstrated in the Secession Reference, that view is highly problematic in modern western democracies. That would in fact presuppose that federations are tacit confederations where the constituent parts have the right of auto-interpretation of a constituent document. That was the legal position of Croatia, Slovenia and Bosnia which claimed that the federal constitution gives them a right to unilaterally secede. Well, who knows. The federal constitution granted the right to self-determinations to nations which exercised the right through their republics (Croats and Serbs in Croatia, Muslims, Croats an Serbs in Bosnia and so on. From that nothing necessarily followed. For an excellent discussion of that issue see Peter Radan’s The Break-up of Yugoslavia and International Law, Routledge, 2002).
But OK, for the sake of the argument let us presuppose that tenet (3) obtains. Tenet (3) could obtain because of the fact that (3a) international law for some reason conceives of all federations as international treaties in disguise, or (3b) it reads Yugoslavia’s socialist constitution in a way that would suggest that the populations of the units below the federal centre can secede. Now (3a) is simply too funny. If we choose to opt for (3b) we would need to presuppose that international law is concerned with how the internal constitutional order is structured. Doubtful, but let us assume even that, for the sake of the argument.
But we have a problem with that in the case of Kosovo. If we assume the Badinter Committee’s opinions to be authoritative statements on international law on the subject (which is highly doubtful, cf. Suzanne Lalonde’s Determining Boundaries in a Conflicting World: The Role of Uti Possidetis, McGill-Queen’s University Press, 2002), we have a problem in the case of Kosovo, as I said.
The Badinter Committee effectively vested the right to self-determination in the peoples of Socialist Republics, not of Autonomous Provinces. Kosovo, according to the principles of the Badinter Committee does not have the right to self-determination.
The International community faces two options then. It can either backpedal, and say: ‘Oh, we were only joking back in 1991, Kosovo, in fact, does have the right to self-determination according to the opinions of Badinter’; or it can try to distinguish out the case of Kosovo by adding new elements to the story or abandoning the recourse to the case of Yugoslavia altogether.
Let me discuss the first option. The proponents of external self-determination would need to (in addition to 1-3b) add a condition that would point out that condition (3) obtains if the population in the territory was subject to serious and protracted human rights abuses.
This is the argument that says that self-determination is ‘earned’ by victimization. Very well. How about human rights abuses against Serbs in last 7 years? Let us for the sake of argument agree that they are at least comparable to the plight of Albanians in Milosevic’s Serbia. Let us also, for the sake of argument, agree that it is morally problematic to attach greater moral value to the suffering of Albanians than to the suffering of Serbs. If we agree on that we end up concluding this:
The final status of Kosovo will be favorable to the intense political desires of the Albanians of Kosovo because they were victimized; while the equally intense opposite political desire of the equally victimized Serbs of Kosovo will not be accommodated because they are a minority in a pre-determined political unit.
So, here it is, circularity again: victimization legitimizes the scope of the unit; the scope of the unit legitimizes victimization. I suppose there is another way, more elegant in its cynicism, of putting all this. It is simply to say to the opponents of this kind of “external self-determination”: Sorry, bad luck!
(III) Misleading. The prevalence of hypocrisy is only a symptom of why the very idea of self-determination is problematic. In fact, as I will try to argue later, there is no way around hypocrisy. However, instead of understanding the creation of new political communities (or municipal legal orders, for Kelsenians amongst us) through the meaningless lens of self-determination, let us take a look at how that process really looks like. Please note that the account that will follow is just a tentative and a very general sketch.
My argument has 2 elements.
First, instead of positing the ‘self’ we should realize that ‘self’ is the outcome, and not the source of radical constitutional reconstruction. The ‘self’, if there is any value in talking about it, emerges from the contestation between provisional ‘insides’ and ‘outsides’. By ‘inside’ I mean those politically mobilized groups who wish to be governed within the single constitutional order, or end up being governed by it, but as well those actors (‘outside’) who are instrumental in creating the constitutional order, but do not fall within its sway once it is constituted.
Why do I say ‘provisional’ inside/outside? Because there needs to be a provisional exogenous push that delineates the unit of contestation, in this case Kosovo. What constituted the “self”in Kosovo is not self itself, but NATO intervention that froze the political situation and created a provisional constitutional order. So, the first element in my suggestion is the inevitability of exogenous influence. That influence might vary, it can be more or less hidden, but it is there.
The second element in this account is that the process of state-formation is not only antagonistic; it is also discursive. None of the parties is saying: We want the political outcome X because we want it! They justify their claims, either by interpreting the purportedly relevant norm of international law (I have tried to give an account of how that might look like in the previous section) from the legal point of view, or try to infuse it with a universal ethical or prudential aspiration. So we hear about how “Serbia lost the moral right to govern Kosovo” (Albanians), or how “the requirements of international stability must be upheld” (Serbs); or how the solution must be “functional” and in tune with “the European perspective” (EU and US).
This brings us back to hypocrisy. Do all these actors, dressing their particular claims in a universal garb mean it? Yeah, right. But then again, maybe they do. The point is that the interpretive and aspirational aspect of the discourse of polity formation cannot be conceived without a possibility of hypocrisy. Is this such a bad thing? Not necessarily. Elster has argued that hypocrisy has civilizing effects. By invoking a universal claim which is supposed to cover your particularistic demand, you need, in order to make yourself credible, give in a bit, allow your opponent to buy into your universal ‘story’. How does this relate to Serbs and Albanians and Kosovo? First, it should collapse the difference between ethnic and civic nationalisms. (for an excellent critique see B. Yack, Popular Sovereignty and Nationalism, Political Theory, 2001) Instead of perceiving nationalisms as bad (ethnic) v. good (civic) we should perceive them as stupid vs. smart. The ones that get the logic of polity creation, versus the ones that don’t. The Serbian political elite in the last 15 years notoriously fell in the first category.
The current generation of Serbian politicians seem to have learned the game of hypocrisy. Mr Draskovic, Tadic and Batakovic all seem very concerned about the possible damage done to the system of international relations and law if Kosovo were to become an exception. There is one problem with that though. They have learned the game of hypocrisy too late. Unwilling to preserve the norm of international law on the territorial integrity of states, and unable to stretch the norm of self determination to the case of Kosovo (see my discussion of 1-3b), the members of the international community started to call the case of Kosovo “unique” and “exceptional”. (Well, if the sovereign is he who decides on the exception, as Schmitt had argued, there you have it. It is not the people of Kosovo, or Serbia, who is sovereign, but the actors who pronounce that international norms will not apply.) In addition to calling Kosovo an exception, parties are counseled, especially the Serbian side, to act in accordance with the principle of realism. What does that mean for Serbs, for example?
It means, I take it, something like this: (a) we, (the ones who invoke the principle) created a status quo; (b) the status quo is, in reality, the most similar to the political aspirations of your opponents; (c) so it should be; (d) by calling it a principle we are unwilling to debate with you on (c).
IV. Inflammatory. OK, so the self-determination of peoples, and their alleged sovereignty is a misleading concept. But why is it inflammatory? My intuition is that that is so because of two reasons. First, the claim of peoplehood is an opaque one, yet the one which claims higher legitimacy than any other equally empty claim. Second, the claim of people, by its very invocation, attempts to shut off its challengers from the discussion, by simply denying their existence. Taken together, these claims make the will of the people, as the Kosovo Assembly has stated, “not negotiable”. In blunt terms, the logic of peoplehood is: My claim is meaningful/justified. Yours is not. And I am not explaining myself to you. This, and not only conflicting territorial demands, or historical narratives, is also one of the causes of the inflamatory and volatile nature of radical (nationalist) politics.
The advantage of extending the scope of rhetorical tropes used in the political constestation over the creation of an independent political unit is that it reveals additional actors, with additional rhetorics who bear upon the construction of a political community. Here, the “people” is just one of the names of meaningfulness of a political project. The advantage of bringing in “stability”, “efficiency”, “multiethnicity”, a “European perspective”, is that it unpacks the non-responsive, sullen invocation of moral and political superiority of the “People” into a set of values which possibly conflict with each other, but cannot but invite demasking and critical investigation. What do you mean by “efficiency”? Does “stability” trump the “multiethnicity”, “properly” understood? Is the “European perspective” invoked by current Brussels bureaucrats, the only European perspective? The first hope of enlarging the constituent power is that this game of masking and de-masking via commonly acceptable empty words could force the poweful external, constituent (arm-twisting) powers to moderate their particular(istic) political goals and defer more to the political wills of the constituents that will end up living under the newly created constitutional orders.
The game of demasking might only go that far, as we have demonstrated in a previous section. As we have seen, the invocation of the principle of realism is a way of ending the discussion; a political rhetorical version of the Humean is/ought fallacy. The fact that the US and UK are espousing it, should come as an ironic, bitter-sweet compliment to the negotiating skills of the Serbian side. It is an admonition on behalf of the State Department and the Foreign Office that they cannot come up with a cogent universalizable (and following Laclau – ethical!) argument in favor of Kosovo’s independence.
(V) If that is correct, we should also stop speaking about self-determination, not only because of its internal inconsistencies and deleterious effects, but also because the international actors are ceasing to talk about it themselves.
What they talk about is “final status”, “Belgrade and Pristina”, “Kosovars, Serbs, Albanians”, even the “will of the people”. But this particular “will of the people”, according to the UNSC resolution 1244, is only one the factors in determining the status of Kosovo. Recently, an American official said that Kosovo should become independent because that is the will of its majority community. Now, that’s not the same as “the will of the people of”.
I don’t think these subtle and less subtle changes in vocabulary are trivial. We will need to await the outcome of this process, and see whether self-determination will indeed be used as a justificatory device for the final status of Kosovo. In the meantime, we should start thinking about its appropriateness.
Tuesday, February 14, 2006
More on Italy
Some further comments on Italy and the forthcoming elections. Thanks to Luca for pressing on the issue. These are his comments to my previous post:
"Do you have any sociological (opinion polls) back up to defend such a claim, i.e. that Berlusconi and his myth are no longer appealing to the Italian people. The Italian left will not win the elections by simply dennying Berlusconi's chances to triumph again...this is wishful thinking...they should have protested against the new electoral law...they should have done something...no observe...I am not sure the left will be able to win...they might win in the Senate but not in the lower house..."
This is my reply:
In fact, I am not all that concerned about who is going to win. My point is that Berlusconi's philosophy is not appealing anymore to the large public. You probably can understand this if you look at the way Fini or Casini, berlusconi's allies, behave. They are constantly undermining Berlusconi and constantly denying what he says. They present themselves as a trio, but in fact what they hope is to get rid of Berlusconi themselves!
On the other side, we find Prodi (Don Quixote) and a number of Sancho Panzas. I do not believe they will radically change Italy if they win. I am not sure they believe that too. What they have now is a long, serious, program (270 pages).
Oppose that to the 5 points contract Berlusconi offered to italian people 5 years ago. His philosophy was all about easy delivery of great goods. None of those goods were delivered (in politics it is almost impossible) and Berlusconi cannot deny that. He won on a grand ticket. Now, he sinks precisely because of that.
The problem with Berlusconi is that his strenghts are very often at the same time his weaknesses. In business, to have a clear, manichean view, may help. Politics, to the contrary, is the art of nuances. Berlusconi is not nuanced. He is not subtle enough to be a great politician. Now, his black and white type of politics does not appeal that much anymore, and as I said before Fini and Casini know that.
Come on, he is still talking about anti-communism??? 17 years after the fall of the wall and in a moment where nobody cares about that anymore.
More things can be said about Berlusconi's political philosophy. Luckily enough, politics is not exclusively about polls and numbers. It is about ideas, and I am confident to say that Berlusconi does not have any idea of how to rescue Italy from the present, rather grim, situation.
"Do you have any sociological (opinion polls) back up to defend such a claim, i.e. that Berlusconi and his myth are no longer appealing to the Italian people. The Italian left will not win the elections by simply dennying Berlusconi's chances to triumph again...this is wishful thinking...they should have protested against the new electoral law...they should have done something...no observe...I am not sure the left will be able to win...they might win in the Senate but not in the lower house..."
This is my reply:
In fact, I am not all that concerned about who is going to win. My point is that Berlusconi's philosophy is not appealing anymore to the large public. You probably can understand this if you look at the way Fini or Casini, berlusconi's allies, behave. They are constantly undermining Berlusconi and constantly denying what he says. They present themselves as a trio, but in fact what they hope is to get rid of Berlusconi themselves!
On the other side, we find Prodi (Don Quixote) and a number of Sancho Panzas. I do not believe they will radically change Italy if they win. I am not sure they believe that too. What they have now is a long, serious, program (270 pages).
Oppose that to the 5 points contract Berlusconi offered to italian people 5 years ago. His philosophy was all about easy delivery of great goods. None of those goods were delivered (in politics it is almost impossible) and Berlusconi cannot deny that. He won on a grand ticket. Now, he sinks precisely because of that.
The problem with Berlusconi is that his strenghts are very often at the same time his weaknesses. In business, to have a clear, manichean view, may help. Politics, to the contrary, is the art of nuances. Berlusconi is not nuanced. He is not subtle enough to be a great politician. Now, his black and white type of politics does not appeal that much anymore, and as I said before Fini and Casini know that.
Come on, he is still talking about anti-communism??? 17 years after the fall of the wall and in a moment where nobody cares about that anymore.
More things can be said about Berlusconi's political philosophy. Luckily enough, politics is not exclusively about polls and numbers. It is about ideas, and I am confident to say that Berlusconi does not have any idea of how to rescue Italy from the present, rather grim, situation.
Monday, February 13, 2006
Italy is at a Turning Point
So far so good in Turin. Olympic Games are working well and the security threat has not materialized.
The Games are also a breath of fresh air in Italy, where the political campaign is nauseating everyone, starting from the very electors.
I wonder how many people can still cope with the image of Berlusconi after he managed to appear on screen more than any other star in the world. I am pretty confident that he could be a new entry for the Guinness Book.
But, his case is lost, as it has been said many times before. Berlusconi does not have political support on the part of his allies. As condors, they are only waiting the moment in which Berlusconi's corpse will be abandoned in the arena.
More importantly, Berlusconi has lost his impact on italian people. Few keep believing in miracles, even though Berlusconi compared himself to the Christ. He just wants to remain at the centre of everyone's attention.
But what really makes a difference, his philosophy, is not appealing anymore. The gap between his image and what he has actually achieved is so big that nothing can cure that hiatus. Not even the extreme use of media or the maquillage of certain politics.
Italy is doing poorly nationally and internationally. That's about it, we don't have to lok very far. The country does not even manage to attract tourists, which is incredible, given the local ressources. The brand, made in Italy is under huge pressure to China and others. Cars have had a very bad time, but more importantly the italian capitalist model based on the family-owner and the aid of the state is collapsing under the european pressure.
An overhaul of the whole system is needed. Nobody believes that Berlusconi is the right person to do this. He's probably the last one. Whether the opposition will be able to deliver on so complicated matters, it is another issue.
Berlusconi cannot.
The Games are also a breath of fresh air in Italy, where the political campaign is nauseating everyone, starting from the very electors.
I wonder how many people can still cope with the image of Berlusconi after he managed to appear on screen more than any other star in the world. I am pretty confident that he could be a new entry for the Guinness Book.
But, his case is lost, as it has been said many times before. Berlusconi does not have political support on the part of his allies. As condors, they are only waiting the moment in which Berlusconi's corpse will be abandoned in the arena.
More importantly, Berlusconi has lost his impact on italian people. Few keep believing in miracles, even though Berlusconi compared himself to the Christ. He just wants to remain at the centre of everyone's attention.
But what really makes a difference, his philosophy, is not appealing anymore. The gap between his image and what he has actually achieved is so big that nothing can cure that hiatus. Not even the extreme use of media or the maquillage of certain politics.
Italy is doing poorly nationally and internationally. That's about it, we don't have to lok very far. The country does not even manage to attract tourists, which is incredible, given the local ressources. The brand, made in Italy is under huge pressure to China and others. Cars have had a very bad time, but more importantly the italian capitalist model based on the family-owner and the aid of the state is collapsing under the european pressure.
An overhaul of the whole system is needed. Nobody believes that Berlusconi is the right person to do this. He's probably the last one. Whether the opposition will be able to deliver on so complicated matters, it is another issue.
Berlusconi cannot.
Friday, February 10, 2006
Decentralization of Kosovo
As a follow up to the expressed need to concentrate on the protection of minority population in Kosovo I wish to draw your attention to the White Paper on Decentralization in Kosovo that I wrote and recently presented together with three associates. A link to the paper, which you can download, you can find at the bootom of the page.
Kosovo and Self-Determination: My tuppencworth...
I wanted to add my thoughts to the enjoyable and provocative debate taking place, between these pages and those of the Global Law and Politics blog, on the vexed issue of self-determination for Kosovo. What follows was formulated and posted as a comment to a couple of replies to Srdjan's pieces below on that blog, in particular to Matej Avbelj's useful contribution.
The international human right of peoples to self-determination is, in legal terms, beyond doubt. It exists for all peoples fulfilling the requirements helpfully laid out here. I think that one area of agreement between all protagonists here is that the Kosovars constitute a "people" within the framework of international law.
Of crucial importance here, however, is not whether the Kosovars have the right to self-determination (they do), but what that will mean when operationalised in practice. It is quite simply an error to equate self-determination with secession and independence. Moreover, it is the progressive advances of the last twenty or thirty years that make this so; when the concept was first introduced, in the context of decolonisation, independence was envisaged. The decision, however, to extend the right to all peoples, not just colonised peoples, meant that this would, of course, have to change.
This is perhaps the central point that I want to make: far from being outdated, as has been suggested, it is Srdjan's understanding of the concept of self-determination that best reflects the developments in the law in this field in recent years. He perhaps overstates the point in insisting that the Serbs have a legal veto; it seems to me that the famous Canadian Supreme Court case on this issue retains a high degree of persuasive authority. That case basically found that the right to self-determination did not require secession and independence, but if a democratic majority of a people requested such action, then the politicians of the larger state were obliged to take it into consideration. In the context of normal democratic politics, this was all the law could say; the rest must be left to the play of the political.
There remains the question of whether the gross human rights abuses perpetrated by the Serbs against the Kosovars creates, as seems to be the suggestion here, an automatic right of external self-determination. The answer, I think, is that it does, for as long as the crisis situation holds. The rationale behind this is simply that, if gross human rights abuses are being perpetrated on a people, then their right to self-determination is clearly not being respected - as no people would choose that fate.
Srdjan makes an important point, however, when he notes the advances made by Serbia in terms of transition to democracy. It is simply no longer the case, as it was under Milosevic, that the only way that the Kosovars can have meaningful self-determination is through secession; a regional autonomy scheme could discharge that obligation.
All this to conclude: as things stood in Kosovo before NATO's intervention, there was perhaps a case to be made that the Kosovar's had the right to secession from Serbia. Now, in law they have no such right; only to have their wish, if it be so, taken into consideration by the Serb government (and to actual meaningful autonomy short of independence). It is simply no longer the case that only independence can guarantee them meaningful self-determination; and the law stops there. And make no mistake; it is the recent developments in the law of self-determination, which make it quite plain that secession is only to be mandated in the most exceptional circumstances, that necessitate this conclusion.
What happens as a result of political, rather than legal, reality is, of course, an entirely different matter...
The international human right of peoples to self-determination is, in legal terms, beyond doubt. It exists for all peoples fulfilling the requirements helpfully laid out here. I think that one area of agreement between all protagonists here is that the Kosovars constitute a "people" within the framework of international law.
Of crucial importance here, however, is not whether the Kosovars have the right to self-determination (they do), but what that will mean when operationalised in practice. It is quite simply an error to equate self-determination with secession and independence. Moreover, it is the progressive advances of the last twenty or thirty years that make this so; when the concept was first introduced, in the context of decolonisation, independence was envisaged. The decision, however, to extend the right to all peoples, not just colonised peoples, meant that this would, of course, have to change.
This is perhaps the central point that I want to make: far from being outdated, as has been suggested, it is Srdjan's understanding of the concept of self-determination that best reflects the developments in the law in this field in recent years. He perhaps overstates the point in insisting that the Serbs have a legal veto; it seems to me that the famous Canadian Supreme Court case on this issue retains a high degree of persuasive authority. That case basically found that the right to self-determination did not require secession and independence, but if a democratic majority of a people requested such action, then the politicians of the larger state were obliged to take it into consideration. In the context of normal democratic politics, this was all the law could say; the rest must be left to the play of the political.
There remains the question of whether the gross human rights abuses perpetrated by the Serbs against the Kosovars creates, as seems to be the suggestion here, an automatic right of external self-determination. The answer, I think, is that it does, for as long as the crisis situation holds. The rationale behind this is simply that, if gross human rights abuses are being perpetrated on a people, then their right to self-determination is clearly not being respected - as no people would choose that fate.
Srdjan makes an important point, however, when he notes the advances made by Serbia in terms of transition to democracy. It is simply no longer the case, as it was under Milosevic, that the only way that the Kosovars can have meaningful self-determination is through secession; a regional autonomy scheme could discharge that obligation.
All this to conclude: as things stood in Kosovo before NATO's intervention, there was perhaps a case to be made that the Kosovar's had the right to secession from Serbia. Now, in law they have no such right; only to have their wish, if it be so, taken into consideration by the Serb government (and to actual meaningful autonomy short of independence). It is simply no longer the case that only independence can guarantee them meaningful self-determination; and the law stops there. And make no mistake; it is the recent developments in the law of self-determination, which make it quite plain that secession is only to be mandated in the most exceptional circumstances, that necessitate this conclusion.
What happens as a result of political, rather than legal, reality is, of course, an entirely different matter...
Thursday, February 09, 2006
A Reply to Jernej Letnar
Jernej Letnar, a member of the very interesting blog "Global Law and Politics", criticized my interpretation of the political and legal implications of the future status of Kosovo (here). This letter is my reply to his comment.
Dear Jernej Letnar,
Thank you very much for your contribution. Let me take on your valuable comments one by one.
First you state that there is no need for Serbia’s consent to Kosovo’s independence, arguing that, “simply there is no need for such a consent, since everywhere where basic human rights have been violated and where international crimes have been committed, people may freely exercise right to self to determination. Kosovo falls in that category no matter how hard Serbian/Yugoslav governments try to question it.” This is moral not factual analysis of current state of international law.
Let me be clear I do not question that crimes have been committed in Kosovo and neither do the current Serbian democratic governments, the proof that the Serbian governments do not deny that crimes were committed is that it extradited Milosevic to the Hague (Djindjic government) and that it forced other indicted regime officials to surrender to the ICTY (Kostunica’s government). This is, however, just a part of the answer other part is your ‘legal’ claim that violations of human rights justify free exercise of self-determination. You say that traditional international law corresponds to my position but that, ‘new’ international law, I presume you want to say such law exists, supports your position. You give the example of Indonesia by saying, “East Timor is only one of recent examples of new progressive approach to right to self-determination.” However, you forget that Indonesia's national assembly ratified the results of East Timor's independence vote, clearing the way for the territory's separation from the country. This is all I want to say, Serbia will have to have a final say on this, whether pressure will exerted on the Serbian government to do so this is another issue, yet, in terms of the legal argument, I did not miss the point but you did.
East Timor is not the only example, what about Kurdistan in Iraq? US forces in Iraq have no intention to grant Kurdistan independence despite the human rights violations committed by Sadam’s regime. All I want to say, as far as the political argument is concerned, is that the current democratic government of Serbia did not commit human right violations against the Albanian population in Kosovo and there is no reason to try to exclude them from the process of establishing the future status of Kosovo. Serbian government needs to be given the chance to build a multicultural state or union of states together with the Kosovo Albanians.
Your argument of human rights violations does not stand on another account, let us accept for the sake of the argument that human rights violations justify exercising of self-determination in the way you suggest, does this mean that you intend that Serbs in Kosovo could exercise the same right toward the territory of Kosovo as a whole, meaning that the North of Kosovo and other enclaves south of the river Ibar could secede? What is going on there since 1999, especially having in mind the organized violence of March 2004 would clearly grant them the right (according to you rationale) to head on towards deciding on independence, regardless of the wishes of the Kosovo Albanians. And where would this lead us…back to 1990s, Croatian and Bosnian wars, same old stories, this is something I am firmly against. I simply think it is not prudent to open this Pandora’s box, Serbian democratic government should be given the chance to build a multi-ethnic polity, including or excluding Kosovo, however, its own say in the whole process, as well as the say of the Serbian population in the Province, should not be neglected over dubious moral precedent you defend.
As far as the proposal of the Slovenian President Janez Drnovsek several proposals sounded very interesting and constructive, I also share his opinion that in order to facilitate the final institutional settlement in Kosovo one needs to ensure the institutional protection for the Serbian minority there. On the other hand, it was rather expectable that the Serbian government gives the Slovene counterpart an official demarche because of Mr. Drnovsek’s insistence on the independence of Kosovo. You forgot to mention that the Slovene Government and Prime Minister Jansa, distanced themselves from the political positions of the President regarding Kosovo. The same happened in the Czech Republic Prime Minister Paroubek gave relative support to the idea of the division of Kosovo. Later it was clarified that this is his own personal opinion. This is all legitimate and I would say needed. We need to discuss about Kosovo and contributions like that of Mr. Drnovsek are more than welcome, although some times it is desirable that they are more diplomatic.
To conclude, I want to use this opportunity to ask you to question, using the force of the abovementioned arguments, your though stance on the right of self-determination. Romantic attitude towards the right of self-determination is something that belongs to 19th century, then this ideology was a part of the overall movement of the liberation of peoples and classes, today it is rather the opposite self-determination is a way to hide all other political problems. This is especially the case in Kosovo. When advocating the right of self-determination in the way you do remember that "The Road to Hell is Paved With Good Intentions."
I enjoy your blog and I invite you to continue this fruitful exchange of ideas.
Yours Truly and a Toast to France Prešeren,
SrdjanWednesday, February 08, 2006
Preventing a humanitarian catastrophe or facilitating self-determination: Kosovo 1999-2006?
On 24th March 1999 NATO attacked Serbia to prevent the humanitarian catastrophe caused by the apparatus of force of Milosevic's regime. This was the rationale for their action. In 2006 Serbia and Kosovo Albanians are to start negotiations on the future status of the Province. Some members of the contact group are trying hard to impose the solution on the Serbian government and the Kosovo Serbs even before the negotiations start. They (some UK foreign office officials) are sending a clear message: Kosovo will be independent. In order to lead the negotiations in the direction of independence of Kosovo, led by a rather straightforward formula, International players will need and prefer to get Serbia’s consent to such an outcome (international law and common sense require). This formula is clear, if they have to impose the solution on Serbia, then the 1999 war was actually a self-determination war and their actions were revolutionary vis-à-vis the international order. In this way international precedent of self-determination war will be created. How many countries in the world are ready to support this?
Caricatured one-downmanship...
A slightly new twist to the Cartoon Controversy: the Iranian newpaper Hamshari - owned by the Tehran City Council - has, apparently, launched an international competition to find images satirising the Holocaust, which it will then publish in retaliation for the caricatures of Mohammed. The newspaper claims it is testing the West for hypocrisy:
The Western papers printed these sacreligious cartoons on the pretext of freedom of expression, so let's see if they mean what they say and also print these holocaust cartoons.
It seems clear, of course, that it is not really a "test", but rather a provocation; the use of the word "pretext" makes it quite clear that the newpaper feels that the freedom of expression argument was not honestly deployed, and thinks that it has come up with the means to expose this. The two situations are much more different than alike (excepting, perhaps at an extreme level of generalisation such as "images likely to upset a lot of people"); and I really wonder if they will have the desired effect. Certainly, they will draw sharp criticism, and some condemnation, from "the West", as have the Mohammed caricatures; but if they are looking to elicit a response comparable in magnitude to that of sections of the Muslim world to the latter, then I think they will be disappointed. If there was no burning of embassies when the Iranian president called the Holocaust a "myth", then I don't think a few - almost inevitably both crude and crass - "satirical" depictions along similar lines will cause much more excitement.
The Western papers printed these sacreligious cartoons on the pretext of freedom of expression, so let's see if they mean what they say and also print these holocaust cartoons.
It seems clear, of course, that it is not really a "test", but rather a provocation; the use of the word "pretext" makes it quite clear that the newpaper feels that the freedom of expression argument was not honestly deployed, and thinks that it has come up with the means to expose this. The two situations are much more different than alike (excepting, perhaps at an extreme level of generalisation such as "images likely to upset a lot of people"); and I really wonder if they will have the desired effect. Certainly, they will draw sharp criticism, and some condemnation, from "the West", as have the Mohammed caricatures; but if they are looking to elicit a response comparable in magnitude to that of sections of the Muslim world to the latter, then I think they will be disappointed. If there was no burning of embassies when the Iranian president called the Holocaust a "myth", then I don't think a few - almost inevitably both crude and crass - "satirical" depictions along similar lines will cause much more excitement.
Tuesday, February 07, 2006
Olympic Troubles Ahead
Italy will be at the centre of the global scene for the forthcoming 2 months.
On Friday 10 February, Turin will open the Winter Olympics 2006. Moreover, as mentioned before, Italy is preparing for its elections on 9 April.
In this two months, Italy has to keep its eyes wide open as the threat of terrorism is only predictable. Italy took part in the war in Iraq and took pride in being one of the US best allies (Berlusconi dixit).
The recent accidents provoked by the Mohammed cartoon controversy led to the killing of an Italian priest in Turkey, and to other accidents in Kabul, Afghanistan, involving italians.
The atmosphere is tense. As a result, the message to italian politicians engaged in their petty polemics is clear: stop quarelling uselessly, and give strong signals as to where Italy stands and what it aims to do in the future.
On Friday 10 February, Turin will open the Winter Olympics 2006. Moreover, as mentioned before, Italy is preparing for its elections on 9 April.
In this two months, Italy has to keep its eyes wide open as the threat of terrorism is only predictable. Italy took part in the war in Iraq and took pride in being one of the US best allies (Berlusconi dixit).
The recent accidents provoked by the Mohammed cartoon controversy led to the killing of an Italian priest in Turkey, and to other accidents in Kabul, Afghanistan, involving italians.
The atmosphere is tense. As a result, the message to italian politicians engaged in their petty polemics is clear: stop quarelling uselessly, and give strong signals as to where Italy stands and what it aims to do in the future.
Monday, February 06, 2006
Con/federal Kosovo and conditional independence
Recently, Vladimir Putin, the President of Russia, commenting on the future status of Kosovo, underlined that it is a very important issue for Russia, “not only in terms of maintaining the international law principles, but being guided by practical interests of the post-Soviet territory” that the solution worked out for Kosovo by the Contact Group be of “universal nature”. Meaning, explained Putin, that if Kosovo goes towards independence the same should occur in the breakaway Georgian Republics of Ossetia and Abkhasia and Azeri Nagorno-Karabach.
This relatively unexpected statement turned back like a boomerang to the US Administration who wishes to reassure the Russian President by stating, “Kosovo is a unique phenomenon.” Meaning that Russia and the rest of the world (Spain, UK, France, Italy etc.) should rest assured that granting Kosovo independence without the consent of Serbia will not apply elsewhere. One should not take Putin’s words too seriously. Russia will at the end of the day accept the US-EU proposal with regard to Kosovo future status. Russia’s interests in the Balkans are, commensurate to its strength, thus purely economical. Putin withdrew all Russian troops from Kosovo 3 years ago and has no intention to get seriously involved in the region. Politically, Kosovo is outside of Russia’s sphere of influence. Russia uses the Kosovo issue instrumentally to pursue its own agenda in the Caucasus but also as a bargaining chip to further its economic interest in the Balkans and elsewhere.
This blog entry will not pay further attention to the political analysis of the background of Russia’s motivations in this regard, rather it will ponder on Putin’s wish to find a universal solution to the problem of secessionist provinces and movements. Should nations have the right to self-determination and is this right to trump the sovereignty claim of the state? What procedure should they respect and follow in order to reach this desired objective?
Let us stick to the Kosovo example. There are two ways to approach to this issue, internal and external legal analysis. Internal legal analysis concentrates on the legal precedent of Socialist Federative Republic of Yugoslavia, one which allowed individual Republics to secede from the Federation. Following this constitutional right, as well as the conclusions of the Badinter Commission (see here), ex-Yugoslav Republics of Slovenia, Croatia, Macedonia and Bosnia and Herzegovina seceded from the Yugoslav space. Montenegro voted to remain in the federation with Serbia at the beginning of the 1990s and now again reconsider their decision. No one at the Serbian side contests this right of the Montenegrins as such, but criticizes the referendum procedures and the political benefit of secession.
In the case of Kosovo, the situation is different. Kosovo (and Vojvodina) were autonomous provinces of Serbia in Tito’s Yugoslavia so they did not have the right to secede from the Federation. Some try to argue that the fact that these autonomous provinces had a vote in the executive body of the Socialist Federation could lead to the interpretation granting them a right to secede seems naïve, or better, not very cunning sophism. Internal legal precedent does not go in favour of Kosovo.
What about International law? Recently I came across a really interesting puzzle asking – there is only one country in the world that is able to momentarily give Kosovo independence – which one is that – the answer is (not the US if you thought that as a first guess) but – Serbia. Kosovo is a Province of Serbia currently under International administration, however, according to the Resolution 1244 Kosovo (see) is still under the formal sovereignty of Serbia. The resolution reaffirms the “the commitment of all member states to sovereignty and territorial integrity of the Federal Republic of Yugoslavia…” as well as demands, “substantial autonomy and meaningful self-administration for Kosovo”. Serbian Government continues to insist that the process of determining the future status for its Southern Province must remain under the framework of this resolution. It is difficult to imagine that the UN Security Council would unanimously oppose to the decision to which Serbia would directly and strongly oppose.
The conclusion is that there is no consistent legal principle, concerning both international and internal legal norms, that straightforwardly suggests how we proceed with Kosovo. Neither did Croatia and Slovenia gain independence exclusively thanks to the SFRY Constitution or the conclusions of the Commission of ex-Mitterand's minister of Justice. Arguing that violation of human rights in Kosovo committed by the Milosevic regime, creates the situation in which authentic solutions are possible, is not acceptable. Today Serbia is ruled by a democratic regime perfectly respecting international human rights standards, Milosevic and his policies are on trial in ICTY, again thanks to the Serbian democratic government that extradited him there. Rather the solution for Kosovo and any other Province demanding secession from a greater political space is to be found through patient balancing between the forces of the legal argument of both sides, as well as balancing between the forces in play always aiming to reach stability and equilibrium, as the El Pais journalist Josep Ramoneda, recently mentioned concerning the case of Estatut of Catalonia, “one thing is certain, L’Estatut does not solve anything definitely, but it should lead to the period of stability in the relationship between Catalonia and Spain." The same goes for Kosovo, the negotiation process leading to the future status of Kosovo will not set the status of the Province indefinitely, rather it would lead towards an arrangement acceptable for both sides at this particular moment. Legal principles in matters of sovereignty (area at the border between law and the state of nature-or international law) help maintain these "periods of stability" but cannot lead to the final decision like the national court can.
As I wrote in a reply to ex-foreign minister of Serbia and Montenegro Goran Svilanovic, solution for Kosovo is probably going to be conditional independence (no seat in the UN). Such independence should be conditional upon setting up of institutional protection of the Serbian minority living in the Province. This is to be achieved through decentralization (meaning in this case creation of entities, con/federalization of Kosovo) and an establishment of a guaranteed number of seats of the Serbian minority in the Kosovo Parliament.
Ronald Dworkin on Alito: He'd better be wrong
You can read Dworkin's article on the NYRB, here is an electronic version.
At times, I wonder whether Dworkin is jokin or he's serious. In this article he laments the conservative bias of Judge Alito. What did he expect? An ultra liberal elected by George Bush? This is (literally) like asking the Pope to bless homosexual marriages.
This is his conclusion:
'It is dangerous to predict what the Supreme Court, or indeed any justice, will do, and I hope my fears will turn out to be exaggerated. Justice Anthony Kennedy now replaces Justice O'Connor as the swing vote, and several of his recent opinions are encouraging (for example, his argument that the federal government could not prohibit Oregon's assisted suicide plan). But there seems little doubt that the Court will now move to the right. We may be on the edge of a new, long, and much darker era of our constitutional history.'
If anything, we learn that Dworkin will never become a Justice of the Supreme Court.
At times, I wonder whether Dworkin is jokin or he's serious. In this article he laments the conservative bias of Judge Alito. What did he expect? An ultra liberal elected by George Bush? This is (literally) like asking the Pope to bless homosexual marriages.
This is his conclusion:
'It is dangerous to predict what the Supreme Court, or indeed any justice, will do, and I hope my fears will turn out to be exaggerated. Justice Anthony Kennedy now replaces Justice O'Connor as the swing vote, and several of his recent opinions are encouraging (for example, his argument that the federal government could not prohibit Oregon's assisted suicide plan). But there seems little doubt that the Court will now move to the right. We may be on the edge of a new, long, and much darker era of our constitutional history.'
If anything, we learn that Dworkin will never become a Justice of the Supreme Court.
Italian Elections Countdown: Only Two Months Missing
Italian elections are two months away: they will be held on April 9.
Prodi and Berlusconi will be the contending leader of this important, and tense, election. So far, Berlusconi has monopolised the screen (TV), and attempted to challenge Fidel Castro's record of the longest speech ever.
Needless to say, Berlusconi does not have anything to say; so He's trying to replace quality by quantity. For someone who is the head of a Media Empire, this is a surprisingly silly mistake.
The explanation of all this is quite straightforward. Berlusconism, his philosophy, is over. The man who, more than twelve years ago, presented himself as the alternative to the politics of the past, now he's a caricature of old, wordy, italian politicians.
Berlusconi knows that he has very few chances and he's now displaying his weaponry to the full extent in order to salvage the present situation. But as any dying animal, he does not have a coherent strategy of survival. He is simply firing at one time all his bullets, then he will see.
The ball is in the hands of the opposition: please use it well!
Prodi and Berlusconi will be the contending leader of this important, and tense, election. So far, Berlusconi has monopolised the screen (TV), and attempted to challenge Fidel Castro's record of the longest speech ever.
Needless to say, Berlusconi does not have anything to say; so He's trying to replace quality by quantity. For someone who is the head of a Media Empire, this is a surprisingly silly mistake.
The explanation of all this is quite straightforward. Berlusconism, his philosophy, is over. The man who, more than twelve years ago, presented himself as the alternative to the politics of the past, now he's a caricature of old, wordy, italian politicians.
Berlusconi knows that he has very few chances and he's now displaying his weaponry to the full extent in order to salvage the present situation. But as any dying animal, he does not have a coherent strategy of survival. He is simply firing at one time all his bullets, then he will see.
The ball is in the hands of the opposition: please use it well!
Justice is served!
Almost exactly a year ago, I posted a short blog entitled "On the arbitrariness of rules and denials of natural justice", which focused upon the injustice of certain referreeing decisions in the France v. Scotland match in the Six Nations rugby union tournament.
I am delighted to be able to report that the rerun of this annual fixture, played yesterday, was officiated impeccably...
I am delighted to be able to report that the rerun of this annual fixture, played yesterday, was officiated impeccably...
Thursday, February 02, 2006
The Mohammed Cartoon Controversy
No-one paying any attention whatsoever to the news over the last couple of days can have failed to notice the controversy caused in the Muslim world by a number of cartoons published by a Danish newspaper, depicting caricatures of the Prophet Mohammed. The extent of the protests, however, does remain surprising. Reports today suggest that these include, on top of ordinary protests: a number of boycotts of Danish products; a bomb hoax at the Danish embassy in Syria; and gunmen from the Palestinian al-Aqsa Martyrs Brigade occupying the EU office in Gaza, demanding an apology from the Danish Government. Moreover, there has been a startling diplomatic response: Saudi Arabia has withdrawn its Ambassador in Copenhagen, Syria has recalled its chief diplomat, and Libya has closed its embassy there. The Danish Government, whilst refusing to apologise itself, has welcomed the qualified apology - for offence inadvertently caused by "misinterpretations" of the cartoons - issued by the Danish newspaper.
In the name of freedom of the press, a number of newspapers in other European countries - including France, Germany, Italy, Spain, Switzerland and Norway - have since republished the images, no doubt fanning the flames of the controversy somewhat. French paper France Soir boldly proclaimed "Yes, we have the right to caricature God!". Spoken perhaps a little too soon, however: the next day, the newspaper apologised and sacked the editor responsible for the headline. For those interested, the cartoons are available on the website of the German daily Die Welt.
The debate has, in general, run along fairly predictable lines, with each side proclaiming its own defence to be unconditional and inviolable. Thus, the newspapers have insisted on their unlimited freedom of expression within the confines set by law, whilst Muslim critics have focused on the doctrinal interdiction on portraying images of the prophet at all. As always with debates polarised in such a fashion, there is little or no prospect of any progress on the issue; and, as always, a mature reflection on the issues involved mujst lead to the conclusion that there are powerful and persuasive arguments on both sides. The only way to make sense of issues such as these is to leave the plain of general abstraction ("freedom of press" v. "no depictions of prophet"), and have a closer look at the content and context of what has been done.
We can, therefore, accept that, while freedom of the press is important, perhaps particularly so in a secular country, it is not and should not be unlimited. This is accepted by all newspapers, who are even now couching their defence of the caricatures in terms of freedom within the limits imposed by law. This, however, strikes me as a little disingeneous, as nobody is suggesting that the Danish cartoons violated Danish law (although they might soon violate UK law, if Blair gets his way; that's another issue); the claim is rather that their publication was unethical or immoral. This claim cannot, as various newspapers have sought to do, be answered by a simple reference to the legality of the issue. The claim that freedom of the press should be unfettered within legal limits, as an ethical or moral claim, amounts to little more than a fetishisation of law; the idea that legal limits correspond necessarily and absolutely with moral or ethical ones. This claim is clearly unacceptable.
Equally unacceptable, however, to the secular mind at least, is the idea that any subject can be absolutely taboo, placed once and for all beyond the critical wit of society. To do so in one case would quickly lead to the castration of the press if any sort of policy or legal coherence was to be achieved. Many secular societies have decided, rightly in my view, that general "conversation stoppers" of this sort have no place in their political and social life; we can, as such, broadly agree with the sentiments expressed by Roger Köppel, editor-in-chief of the German paper Die Welt (one of those that has published the caricatures), that:
It's at the very core of our culture that the most sacred things can be subjected to criticism, laughter and satire. If we stop using our journalistic right of freedom of expression within legal boundaries then we start to have a kind of appeasement mentality. This is a remarkable issue. It's very important we did it. Without this there would be no Life of Brian.
These two apparently contradictory considerations should, in my view, form the basis for reflection on this issue; a basis from which an examination of the particular case can proceed. The question of whether the caricatures should have been published thus, of necessity, comes down to a consideration of the quality, content and context of the cartoons themselves. And here, I think, there are some very legitimate concerns: nearly all of the cartoons portray the prophet in a violent light: there is, of course, the infamous Mohammed-with-bomb-for-turban; but there is also another of him, flanked by two women, bearing a huge knife (and a slightly demented expression). In the latter image, the women are completely covered, dressed in black, with only their eyes showing; the prophet is represented in white, with his eyes blacked out (by the piece of material that was cut out of the women's costumes to allow them to see, it seems). In both of these images, we can clearly see the linking of some of the most readily identifiable aspects of Muslim garb - often themselves used in petty racial stereotyping - with fanaticism, violence and terrorism. Most of the other cartoons continue this theme, although not in so striking a manner. Add this to a context of growing fear and suspicion of Muslims, particularly in the wake of the terrorist attacks on Western soil, and it is not difficult to imagine that the caricatures may indeed incite racial hatred in some.
And nor is it sufficient for the newspaper to cite "misunderstandings" in the interpretation of the images. We are all responsible not merely for what we say, but also, to some degree at least, for the foreseeable effects thereof within the audience that it is meant to reach. The ethics of what we say and do lies in the type of community that we create with our audiences; which means that we must be wary not only of our own intention, but the ways in which our words can be interpreted also.
A brief example may serve to clarify what I mean here. Think of the racist joke: told by certain people to certain audiences, it is clearly meant in an ironic fashion, and is widely interpreted as such. Told by a different person, however, or to a different audience, it can have an altogether different, deeply bigotted meaning. As we have already had one reference to Monty Python, let's make another: take their song "Never Be Rude To An Arab" - the second verse of which begins with the line "Never poke fun at a nigger". This song, sung by a comedy group known for their liberalism and their irony, and where their audience would be broadly similar in outlook, is quite clearly ironic; it is extremely unlikely that any racist beliefs were created, hardened or deepened as a result. Change the performer, however (to Bernard Manning, for example) or change the audience (to, say, a BNP party meeting), and a quite different meaning is drawn from the song. And just as Manning would be criticised by the Python audience for his performance (as his history of racist jokes would lead them to interpret it in a different way), so we could criticise the Python team if they had performed it before the BNP or Front National, for the foreseeable manner in which it would be interpreted.
All of this to say that the linking of some of the most sacred and recognisable imagery of Islam (clothing, turbans, and, indeed, the prophet himself) in such an explicit, and, it should be said, none-too-subtle manner with fanaticism and suicide bombings, is not particularly responsible given the wide audiences that newspapers may be expected to reach; particularly when the issue becomes a journalistic cause celebre. Perhaps ironically, had it been left alone as a peculiarly Danish issue, it would have been less dangerous - as the conciliatory reaction of Muslim bodies in Denmark to the qualified apology issued by the newspaper involved would suggest. In this sense, the conclusion of Die Welt, that the images represented nothing but a "harmless joke" to Western eyes is perhaps not as straightforward as it might seem.
However, as the current debate in the UK over the proposed charge of the "glorification of terrorism" amply illustrates, the issue of where to draw the line in such circumstances is hellishly difficult to resolve. In the inevitably messy balancing act that must always be performed in the resolution of any ethical question, I am far from convinced that the potential for harm caused by these images outweighs the harm that could be caused by stopping their publication, particularly by legal means. Even for those who would like to have seen such images banned, it must be impossible to conceive of the law that could do this without being far too general in scope (unless, that is, we accept quite particularised prohibitions, such as "no depictions of the prophet", something that few in the West would like to see).
My main concern, then, is not with the fact that many in the Muslim world have been offended by the images, but rather with the quality and politics of the satire itself. Mohammed-with-bomb-for-turban does not strike me as either particularly witty, thoughtful or insightful; and it lends itself to a particular understanding of the current problems with global terrorism that I find both distasteful and incorrect. Whether this was done by the intention or the recklessness of the cartoonist is of little import, given the global audience that the work has now reached; for this, however, the caricatures deserve to be censured, not censored.
That being said, if I saw it on South Park, I' d certainly laugh...
In the name of freedom of the press, a number of newspapers in other European countries - including France, Germany, Italy, Spain, Switzerland and Norway - have since republished the images, no doubt fanning the flames of the controversy somewhat. French paper France Soir boldly proclaimed "Yes, we have the right to caricature God!". Spoken perhaps a little too soon, however: the next day, the newspaper apologised and sacked the editor responsible for the headline. For those interested, the cartoons are available on the website of the German daily Die Welt.
The debate has, in general, run along fairly predictable lines, with each side proclaiming its own defence to be unconditional and inviolable. Thus, the newspapers have insisted on their unlimited freedom of expression within the confines set by law, whilst Muslim critics have focused on the doctrinal interdiction on portraying images of the prophet at all. As always with debates polarised in such a fashion, there is little or no prospect of any progress on the issue; and, as always, a mature reflection on the issues involved mujst lead to the conclusion that there are powerful and persuasive arguments on both sides. The only way to make sense of issues such as these is to leave the plain of general abstraction ("freedom of press" v. "no depictions of prophet"), and have a closer look at the content and context of what has been done.
We can, therefore, accept that, while freedom of the press is important, perhaps particularly so in a secular country, it is not and should not be unlimited. This is accepted by all newspapers, who are even now couching their defence of the caricatures in terms of freedom within the limits imposed by law. This, however, strikes me as a little disingeneous, as nobody is suggesting that the Danish cartoons violated Danish law (although they might soon violate UK law, if Blair gets his way; that's another issue); the claim is rather that their publication was unethical or immoral. This claim cannot, as various newspapers have sought to do, be answered by a simple reference to the legality of the issue. The claim that freedom of the press should be unfettered within legal limits, as an ethical or moral claim, amounts to little more than a fetishisation of law; the idea that legal limits correspond necessarily and absolutely with moral or ethical ones. This claim is clearly unacceptable.
Equally unacceptable, however, to the secular mind at least, is the idea that any subject can be absolutely taboo, placed once and for all beyond the critical wit of society. To do so in one case would quickly lead to the castration of the press if any sort of policy or legal coherence was to be achieved. Many secular societies have decided, rightly in my view, that general "conversation stoppers" of this sort have no place in their political and social life; we can, as such, broadly agree with the sentiments expressed by Roger Köppel, editor-in-chief of the German paper Die Welt (one of those that has published the caricatures), that:
It's at the very core of our culture that the most sacred things can be subjected to criticism, laughter and satire. If we stop using our journalistic right of freedom of expression within legal boundaries then we start to have a kind of appeasement mentality. This is a remarkable issue. It's very important we did it. Without this there would be no Life of Brian.
These two apparently contradictory considerations should, in my view, form the basis for reflection on this issue; a basis from which an examination of the particular case can proceed. The question of whether the caricatures should have been published thus, of necessity, comes down to a consideration of the quality, content and context of the cartoons themselves. And here, I think, there are some very legitimate concerns: nearly all of the cartoons portray the prophet in a violent light: there is, of course, the infamous Mohammed-with-bomb-for-turban; but there is also another of him, flanked by two women, bearing a huge knife (and a slightly demented expression). In the latter image, the women are completely covered, dressed in black, with only their eyes showing; the prophet is represented in white, with his eyes blacked out (by the piece of material that was cut out of the women's costumes to allow them to see, it seems). In both of these images, we can clearly see the linking of some of the most readily identifiable aspects of Muslim garb - often themselves used in petty racial stereotyping - with fanaticism, violence and terrorism. Most of the other cartoons continue this theme, although not in so striking a manner. Add this to a context of growing fear and suspicion of Muslims, particularly in the wake of the terrorist attacks on Western soil, and it is not difficult to imagine that the caricatures may indeed incite racial hatred in some.
And nor is it sufficient for the newspaper to cite "misunderstandings" in the interpretation of the images. We are all responsible not merely for what we say, but also, to some degree at least, for the foreseeable effects thereof within the audience that it is meant to reach. The ethics of what we say and do lies in the type of community that we create with our audiences; which means that we must be wary not only of our own intention, but the ways in which our words can be interpreted also.
A brief example may serve to clarify what I mean here. Think of the racist joke: told by certain people to certain audiences, it is clearly meant in an ironic fashion, and is widely interpreted as such. Told by a different person, however, or to a different audience, it can have an altogether different, deeply bigotted meaning. As we have already had one reference to Monty Python, let's make another: take their song "Never Be Rude To An Arab" - the second verse of which begins with the line "Never poke fun at a nigger". This song, sung by a comedy group known for their liberalism and their irony, and where their audience would be broadly similar in outlook, is quite clearly ironic; it is extremely unlikely that any racist beliefs were created, hardened or deepened as a result. Change the performer, however (to Bernard Manning, for example) or change the audience (to, say, a BNP party meeting), and a quite different meaning is drawn from the song. And just as Manning would be criticised by the Python audience for his performance (as his history of racist jokes would lead them to interpret it in a different way), so we could criticise the Python team if they had performed it before the BNP or Front National, for the foreseeable manner in which it would be interpreted.
All of this to say that the linking of some of the most sacred and recognisable imagery of Islam (clothing, turbans, and, indeed, the prophet himself) in such an explicit, and, it should be said, none-too-subtle manner with fanaticism and suicide bombings, is not particularly responsible given the wide audiences that newspapers may be expected to reach; particularly when the issue becomes a journalistic cause celebre. Perhaps ironically, had it been left alone as a peculiarly Danish issue, it would have been less dangerous - as the conciliatory reaction of Muslim bodies in Denmark to the qualified apology issued by the newspaper involved would suggest. In this sense, the conclusion of Die Welt, that the images represented nothing but a "harmless joke" to Western eyes is perhaps not as straightforward as it might seem.
However, as the current debate in the UK over the proposed charge of the "glorification of terrorism" amply illustrates, the issue of where to draw the line in such circumstances is hellishly difficult to resolve. In the inevitably messy balancing act that must always be performed in the resolution of any ethical question, I am far from convinced that the potential for harm caused by these images outweighs the harm that could be caused by stopping their publication, particularly by legal means. Even for those who would like to have seen such images banned, it must be impossible to conceive of the law that could do this without being far too general in scope (unless, that is, we accept quite particularised prohibitions, such as "no depictions of the prophet", something that few in the West would like to see).
My main concern, then, is not with the fact that many in the Muslim world have been offended by the images, but rather with the quality and politics of the satire itself. Mohammed-with-bomb-for-turban does not strike me as either particularly witty, thoughtful or insightful; and it lends itself to a particular understanding of the current problems with global terrorism that I find both distasteful and incorrect. Whether this was done by the intention or the recklessness of the cartoonist is of little import, given the global audience that the work has now reached; for this, however, the caricatures deserve to be censured, not censored.
That being said, if I saw it on South Park, I' d certainly laugh...
Wednesday, February 01, 2006
The Comedic Genius of Kim Jong Il
First, I must apologize to my co-blogger Jack who first exposed Kim Jong Il's humor (and whose post I inadvertendly deleted!).
I think that in these difficult times, it's important to stop and smell the roses. It's important to note the funny things about international relations and international politics. In that vein, I offer...Kim Jong Il's ELEVEN holes in one in his first round of golf. Yes, that's right...ELEVEN.
According to CNN, "North Korean publications describe Kim Jong Il as a renaissance man who has flown fighter aircraft, written operas and shot 11 holes-in-one in his first try at golf." For a more detailed assessment of the amazing 38 below par round of golf check out this article from "Anyone for tee". The Anyone piece backs up Kim's claim by noting that all 17 of his bodyguards attest to the fantastic performance.
When I read these things I wonder... What would it feel like to be the North Korea PR guys who sit down and say "You know...I think it might be too unbelievable if we said he got 13 holes in one and that he might get mad if we say he got only 9 holes in one. Let's split the difference and give him 11."
Just imagine what Kim Jong Il could do in an NFL game. He's welcome on my team anytime.
I think that in these difficult times, it's important to stop and smell the roses. It's important to note the funny things about international relations and international politics. In that vein, I offer...Kim Jong Il's ELEVEN holes in one in his first round of golf. Yes, that's right...ELEVEN.
According to CNN, "North Korean publications describe Kim Jong Il as a renaissance man who has flown fighter aircraft, written operas and shot 11 holes-in-one in his first try at golf." For a more detailed assessment of the amazing 38 below par round of golf check out this article from "Anyone for tee". The Anyone piece backs up Kim's claim by noting that all 17 of his bodyguards attest to the fantastic performance.
When I read these things I wonder... What would it feel like to be the North Korea PR guys who sit down and say "You know...I think it might be too unbelievable if we said he got 13 holes in one and that he might get mad if we say he got only 9 holes in one. Let's split the difference and give him 11."
Just imagine what Kim Jong Il could do in an NFL game. He's welcome on my team anytime.
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