Free Speech In Europe

Anyone remember the new pope? His name is Benedict the XVI and he has received some pretty rough press. Writers to the NY Times have declared Benedict a "clear and present danger to the civilized world". Others have nicknamed him God's Rottweiler. Further, some artists have used their art to indict Benedict as a Nazi. This is probably offensive to Catholics around the world.

So where are the authorities?

After all, it appears that in Italy, you can be indicted for writing something that is offensive to a religion's followers. At least that is the lesson currently being taught by the indictment of Orianna Fallaci for writing a book critical of Islam.

Such indictments are so blatantly ludicrous that they only need to be mentioned to the public to be repudiated. Sadly, such ridiculousness has clearly not kept them from taking place.

Timing is (Almost) Everything

It does appear to be bad timing for the critical French and Dutch referendums on the EU Consitution. In fact, the critical mass of charismatic politicians at the peak of their political power has devolved into a catty group of desperate politicos pleading with their domestic constituency to trust them with the future of Europe.

As the FT wrote this morning:

Veteran EU diplomats wistfully recall the 1980s and 1990s, when Helmut Kohl, German chancellor, and François Mitterrand, French president, propelled the EU, aided by Jacques Delors, energetic president of the European Commission.

Today's enfeebled leaders are more interested in "bashing Brussels" to win over angry voters than building the European project.

As the article aptly notes, the "lame duck" crisis is not limited to France. Tony Blair is expected to resign before completion of his government's 5 year term; Berlesconi is facing certain demise; Schroeder was recently given a kick in the pants from a listless German public.

Even assuming passage, there is undoubtedly a need for key domestic figures to keep the wind in the Constitution's sails for several years to come. Are there adequate personalities in each of these key countries to shepherd the EU Constitution to smooth sailing upon its adoption? Are charismatic politicians enough or does a potential continuation of slow growth in major European economies threaten the Constitution while still in the crib?

My guess is that both important figures and a threshold level of economic success will have to follow the Constitution's passage to ensure its smooth reception among the masses. An unemployment rate of 12% coupled with 1% annual growth is surely a road to failure.

Is British Humor Becoming Too Dry???

Check the facts here.

Abortion Hot Button Alert!

Count me as one of the many Americans that would just like the debate over abortion to go away. The public policy arguments have been bantered back and forth so many times that the original positions of each side seem to have been lost in a hazy thundercloud of anger and misunderstanding. Of course it's hard to live and let live when the Supreme Court agrees to hear yet another abortion case...right before the imminent departure of its Chief Justice. (reaaaaallll smart)

The latest case stems from a New Hampshire parental notification law that, according to the press, "includes an exception for life-threatening medical issues, but not for more routine problems." While that description is (as usual) not very helpful, it is not the focus I find most interesting. What I find most fascinating was the comment of an ACLU lawyer as to what is the crucial constitutional issue in the case.

"The main question in this case is how many women facing medical emergencies have to have their abortions delayed and health put at risk before the court holds a law unconstitutional," said Jennifer Dalven, the deputy director of the ACLU Reproductive Freedom Project.

Really? Not under any constitutional law book I've ever read. Casey held that the standard is whether the regulation undertaken by the state constitutes an "undue burden" for a woman seeking an abortion. While other state regulations have been struck down because they required consent from a potentially abusive parent or spouse (a stereotype I find rather troubling), generally parental notification laws have been upheld. As a result, the real question would be whether the absence of an exception for "routine problems" would constitute an undue burden as it relates to notifying the parent.

I'll be interested in how the Supreme Court irons this one out, but it appears to me that a simple call from a doctor attending to the "routine problem" would not constitute much of an undue burden.

Ultimately, its rarely the public policy arguments that disturb me in hot button issues like abortion but rather the mischaracterization of constitutional law that disfigures the state of the law.

A TransAtlantic Welcome to Neil McDonald!

I would like to welcome the latest member of the Assembly, Neil McDonald. Neil is a dear friend of the blog as well as a very intelligent attorney. Neil currently works for Freshfields Bruckhaus Deringer and is an accomplished author and practicioner in public international law as well as international arbitration.

While many of us were wary of adding another M(a)cDonald, we have no doubt that Neil's insights and wit will be an enjoyable addition for our readers.

Dr. Zucca, I presume...

May I be the first to extend my congratulations to my good friend and co-blogger Lorenzo Zucca, who comfortably and successfully defended an excellent thesis this afternoon at the European University Institute in Florence. An impressed panel stated, after some probing questioning, that they would be recommending it for publication, so watch this space...

Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and in the USA

The following is an abstract of my Ph.D. Thesis, which I will defend on 23 May 2005 at the European University Institute, Florence.

When Fundamental Legal Rights conflict with one another, as for example free speech v privacy or life v autonomy, we are left with no guidance as to what to do. I call these cases constitutional dilemmas. These are characterised by deep disagreement as to who is best placed to decide them and as to how such issues should be decided. Moreover, constitutional dilemmas involve a deadlock: there is agreement that a solution cannot be found without sacrificing one or the other fundamental legal right at stake.

Constitutional dilemmas are a potential threat to the unity and cohesion of a society and of a legal system. The sxistence of persistent disagreement, coupled with the existence of a deadlock, may provoke a breakdown in communication between two opposing parties. The opposition between pro-life and pro-choice parties in abortion cases provides but one illustration of a failure to succesfully resolve arguments over a pressing social issue.

An ideal society would not allow for the proliferation of conflicts. In other words, the overall objective of the constitution of any society, as much as the constitution of the human body, is to find harmony between all of its constitutive parts. In an ideal situation, we could perhaps all agree on what we take to be an harmonious society. However, in a liberal, pluralistic, society, the challenge of any given conception of harmony is a necessary feature of any evolving community. And that is probably the very core of liberty, and its paradox.

Lorenzo Zucca in the Serbian Daily Danas

On Saturday 21 May 2005, a part of Lorenzo Zucca's recent contribution for our blog got quoted at one of the biggest Serbian national dailies "Danas".

Sun publishes Hussein pictures

UK tabloid the Sun has come under fire for publishing pictures of Saddam Hussein in captivity (and in underwear) on its front page. The newspaper claims that it was given the pictures by a US military source, who it refuses to name, in order that the "myth" of the ex-dictator in Iraq might be shattered, and the resistence might be weakened as a result. The newspaper also claimed to know the name and location of the site at which he is being held, but refrained from making these details public.

The US, however, does not seem to agree with this appraisal of the situation, and claims that it is "aggressively investigating" the affair, even going so far as to suggest that the newspaper may have violated the Geneva Convention rules on the humane treatment of prisoners of war. The Sun, of course, is no stranger to defending the legality of the stories it publishes; however, to have to do so in terms of international law may be relatively unkown territory, even for them...

UPDATE: It seems now that Hussein's lawyers have threatened to sue the paper, which remains unrepentent for the time being, even promising more of the same tomorrow.

European Constitutional Law Review

The second issue ever of the European Constitutional Law Review, published by Cambridge University Press, has just been published on the web. This is a very timely journal, launched at the very same time as the signature of the European Constitution in Rome, on 29 October 2004. The subject area, however, is much broader than the simple analysis of the constitutional treaty. In fact, it covers a wide range of constitutional matters going from theory to practice within and beyond Europe. Please have a look here

A little more on the EU Constitution

With their referendum only ten days away, and with the "no" campaign sustaining a narrow lead in the opinion polls, the French government has been wheeling out some international big guns in order to boost the "yes" vote. Leading left-wing politicians from around half a dozen countries were enlisted to speak in favour of the constitution, with the German Chancellor Gerhard Schröder begging the French "from the bottom of my heart" not to reject it, and calling on them to face up to their "responsibilities" (I wonder how many voters this kind of rhetoric will swing - given, after all, that the idea that a no vote is irresponsible is one of the arguments that people seem to have objected to). Interestingly, Tony Blair was not invited to give his opinion - he is seen by the French left as a vote-loser; a position to which many on the UK left seem to be moving towards.

Also interesting - if not particularly surprising - is the apparently widespread belief amongst Europe's leaders that a French "no" will kill the treaty altogether - to the point at which few if any of the scheduled referenda will go ahead if France rejects the constitution. This casts a little doubt on Blair's previous insistence that the UK would go to the people on this issue regardless of what happened abroad - although he has already begun to nuance this position, stating recently that there would be a referendum "if there was still a treaty". The European consensus seems to be that a French "no" would effectively mean no treaty, thus no UK referendum.


One other noteworthy point is that the debate over the UK's budget rebate from the EU has surfaced again, with many foreign leaders calling for it to be reduced or scrapped altogether. Chirac has been at the forefront of such calls. This does not seem to me to be the most opportune moment politically to be making such claims; for, if France does vote yes in ten days time, the UK referendum will go ahead - and the last thing that Blair needs is an apparently strong, multinational consensus against the retention of the rebate, which is a matter of considerable political significance in Britain. Chirac's stance on this may help sway some voters in France, but, if he maintains it after a vote in favour of the constitution, it will not play well in the UK referendum campaign to say the least. And this is one vote in which Blair will need all the help he can get, as he will require significantly more than the 35% of the vote that he managed to secure in the recent election if he is to have any chance of success...

Less than Partition, more than Federal Kosovo

This blog entry is in response to the critique of Goran Svilanovic, Serbian MP and ex-foreign minister of Serbia and Montenegro, who argued that, concerning the resolution of the Kosovo conundrum, “without a clear position, the text has no value. The time of general arguments has passed, what we need now is a concrete solution to the problem.” I agree that my text was rather vague in its treatment of which particular future scenario I consider realistic and desirable. My intention was, not, to join the bandwagon of numerous Serbian politicians, whom Svilanovic rightly criticizes for producing an infinite number of propoganda and unrealistic political positions as far as the future of Kosovo is concerned. I agree that, at this point in time, every Serb has the responsibility to join the discussion on Kosovo and say clearly what is possible and what is desirable without hiding behind demagogic catch-phrases (i.e. “Kosovo is sacred Serbian soil” etc.). Mr. Svilanovic stepped out with a proposal for what he (and his colleagues from the International Commission on the Balkans) believes to be the best, and most realistic solution for the Kosovo problem.While some of his political adversaries criticized his position in a pitiful demagogic style, his political allies - afraid of siding with a proposal that would suggest independence for Kosovo in any way, shape, or form - tacitly distanced themselves from Svilanovic’s political program for Kosovo. None of the above-mentioned politicians, until now, have offered a clear and elaborate alternative to Svilanovic’s suggestion. Svilanovic’s and International Commission on the Balkans report is the most balanced and objective proposal for the resolution of the Kosovo crisis offered until now by the international community. In this sense, attacks on Goran Svilanovic in Serbia, represent cheap political propaganda, reminiscent of the Milosevic era.

There is one point, however, on which I am not sure if I agree with Mr. Svilanovic and the International Commission on the Balkans. Namely, I would not a priori exclude giving independent Kosovo some kind of federalized institutional structure, based on the ethnic principle.

I am neither unreservedly for independence nor do I lend my unconditional support to the idea either of partition or the Serbian government’s formula of “more than autonomy, less than independence.” I can see the plausibility of Mr. Svilanovic’s argument that “only if both Serbia and Kosovo are moving towards EU membership, can Serbia satisfy its interest in retaining a modicum of control over happenings in Kosovo. If Kosovo does not move towards EU membership, there will be nothing to guarantee that the province’s current Serbian population will be able to remain and nothing to protect other Serbian interests.” I can see that it is unrealistic to expect that the Albanians would consent to anything less than independence, and that they have powerful allies in the international community who are ready to support them in that goal. I, however, want to concentrate on the plausibility of the argument that some future Serbian government might consent to independence and to another problem that is linked to this concern, namely, the fact that the international community seems wholly unready to go ahead with the independence of Kosovo without Serbia’s consent. As one of the most well known international observers of Serbian politics correctly pointed out, Serbia is the only country in the world that can give Kosovo its independence overnight, simply by signing a document consenting to the secession of its souther Province.

Mr. Svilanovic argued that “Belgrade has no position regarding Kosovo, and lacks the courage to deal with this issue. This may change after future elections.” Whereas I might be persuaded by the first observation, I cannot see how realistic is it to expect that some future Serbian government will assume a more assertive stance on Kosovo. Almost the entire Serbian political spectrum, with few exceptions, firmly states that Kosovo cannot be granted independence. Fair enough, this might be simply political propaganda, as Svilanovic states, and it is possible that the positions of political actors will become more sincere after the elections or after the re-composition of the government. Still, since a new government will not be likely to significantly improve its strength, it is rather unrealistic to expect that any of the participants in this administration would decide to play their cards in an open and constructive way as far as Kosovo is concerned. Every party in the government is likely to use the ‘weakness’ of its partners regarding Kosovo to show that it was because of this partner that they had to compromise on certain issues. This is hardly a formula for success, since it leads to political instability as well as stalemate in the process of economic reforms. Entire political debate in the country will be hijacked by the question of Kosovo for a protracted period of time. Only if the new government reaches a consensus on the question of Kosovo is it likely that the problem will be solved. But how likely is that that consensus will be independence even if that independence is to be postponed until the entry of Kosovo and Serbia into the EU? I am not saying that it is impossible but I cannot see the likelihood of such an outcome. I believe that the Serbian government needs to be offered a slightly more concrete incentive to agree to Kosovo’s independence.

The idea of partition was introduced into the blog entry that sparked this debate as a way to offer Serbian political parties a compromise solution that they can use against the opposition’s criticism. I don’t think that partition is a moral option I just thought it is a plausible way to give Kosovo Albanians independence without provoking serious political havoc in Serbia. I understand Mr. Svilanovic’s fears that partition of Kosovo might provoke a domino effect in the rest of Serbia, this is certainly a consideration to take into account. However, I am not convinced that the Albanians living in the south of Serbia proper and the Hungarians living in the north will have the same weight to impose their demands on the central government in Belgrade, as the Serbian minority in Kosovo with support of the Serbian government might have. The two (three) situations remain very different. Partition would likely provoke some political instability, but not as much as the independence of Kosovo without Belgrade’s consent.

I am neither convinced that the Kostunica’s government is principally against partition nor that such a position may not change in the future. I believe that it is more international pressure than the fear of the domino effect in Serbia proper that made Kostunica’s government abandon the idea of partition.

I believe that it is highly unlikely that the international community will recognize Kosovo’s independence without the consent of Serbia. Sure enough, they will try to do everything imaginable to force or court Serbia into accepting this solution, however, it is not certain to what extent they will be successful in doing that. Bearing in mind the rigid Serbian and Kosovo Albanian positions, the extent to which compromising on Kosovo’s status (for both sides) can be detrimental for their internal political standing, and the difficult position in which the international actors are facing themselves (having to decide between what seems politically inevitable- to grant Kosovo independence – and what would be revolutionary in terms of international law – to grant this without Serbia’s consent) we might risk an indefinite prolongation of the potentially explosive and politically debilitating status quo situation.

The interest of the Serbs in Kosovo should come before the national interests of the state of Serbia. Losing a part of its territory would not be necessarily damaging to Serbia’s national interest, having in mind the prospective of the EU integration. In this sense, I support the proposal of the International Commission on the Balkans and the position of Mr. Svilanovic. It is important to note that the Commission has clearly stated that, “Kosovo’s independence should not be imposed on Belgrade.” Moreover, while the Commission has suggested certain institutional guarantees for the Serbian minority in the province, it remained firmly against the idea of partition and, as far as I understand, contrary to any kind of Dayton style arrangement for Kosovo: “The need for policies focused on the needs of minorities should not obscure that the culture of civil society, and not the principle of ethnic separation, is at the heart of the European project. The ‘ghettoisation’ of ethnic minorities could promote institutional weakness and dysfunctionality in the future state.” While I see the rationale for such consideration, I would personally be inclined not to categorically exclude an institutional arrangement whereby Kosovo is given administrative separations that amount – at the very least – to federalization. The prospective of EU membership alone will not satisfy the Serbian politicians sufficiently to prompt their consent to Kosovo’s independence. This is especially true if we consider that that EU membership might come extremely late for both Serbia and Kosovo. At the same time, the Albanians are likely to be pressured into accepting the federal model (or maybe even more?) in exchange for obtaining independence. While the principle of ethnic separation seems anachronistic in the context of the European Union, political reality suggests that the Serbian side (especially the Serbs in Kosovo) must receive firm guarantees, even if these do not follow the principle of multicultural society. At the end of the day, since the principle of ethnic separation is the primary mover of Kosovo’s independence, there are no moral reasons to suggest that Serbs in Kosovo should not benefit from the same principle. As far as practical realities are concerned, they are debatable. I accept the argument that the international community should not seek to impose federal arrangement for Kosovo if that arrangement is likely not to be accepted by the province’s Albanians. Only practical considerations, not moral reasons work in this case. I still believe that imposing a federal structure for the independent Kosovo on the Kosovo Albanians might be possible. It could present a suitable compromise for the Serbian side when the time is ripe. Dysfunctionality (like in the case of Bosnia and Herzegovina) still remains a lesser evil than pushing for Kosovo’s independence even without the probability of Serbia consenting to such an outcome.

A Reply on the Constitutional Status of Embryos

This is a reply by Nathan Gibbs, a lecturer in law at the university of Limerick, to my post on the Constitutional Dilemma of Embryos.

In an earlier piece, Lorenzo Zucca explains the problem of ‘compromise legislation’ on contested issues. He exemplifies this problem with reference to Italian regulation of stem cell research.

I would like to add a rejoinder to the effect that such ‘compromise legislation’ may represent a viable ‘second-best’. I would argue that the lack of direct regulation does not necessarily imply that the legal system does not have to make adjustments in the face of such controversial issues. Litigation and even prosecutions may create a stimulus in favour of legal solutions to contestations over novel and controverted social practices like stem cell research. The provision of a solution may well have subtle effects on the overall scheme of concepts, categories and norms employed by the legal system.

There could also be unpredictable consequences for other social practices in the light of such changes in the overall ‘software’ of the legal system. Arguably specific legislation can be a way of ‘sealing off’ these problems in such a manner as to constrain their disruptive effects.

And in the red corner...

“A blistering attack on US senators rarely heard” on Capitol Hill. This was how CNN’s Wolf Blitzer (his real name, believe it or not – I checked) described the new UK Respect MP George Galloway’s performance (and this seems to be the most appropriate term) in front of the Senate Committee looking into the Iraqi Oil-for-Food scandal yesterday. The Guardian reported that he had used the occasion to “unleash an indictment of the war with a stunning ferocity”. Galloway had come before the committee to contest the accusations that it had laid against him previously that he had personally profited to the tune of millions of dollars from abuses of the Iraq Oil-for-Food programme; and he did so, it seems, with all guns blazing.

Those familiar with Galloway’s style will perhaps not be surprised by this. Indeed, he was the highlight of the recent UK elections for many of us who struggled through the night following the live television coverage. After turning a 10,000 labour majority into one of over 1000 for himself, essentially by standing on an anti-war ticket, his acceptance speech was in stark contrast to the decidedly bland fare that had been served up by most others earlier in the evening. “Mr. Blair” he intoned, “this defeat is for Iraq; and the other defeats that New Labour has received this evening are for Iraq. All the people you have killed and all the loss of life have come back to haunt you; and the best thing that the Labour Party can do is sack you tomorrow morning.” Even at 4.30 a.m., this is pretty riveting stuff.

So it is only to be expected that Galloway would be something less than deferential when facing the US senate committee. No-one, however, particularly not in the United States, seems to have expected his opening salvo, aimed at the Republican Senator Norm Coleman: “I know that standards have slipped in Washington in recent years, but for a lawyer, you're remarkably cavalier with any idea of justice”. And he may well have had a point. Galloway has already forced an apology from the Christian Science Monitor and won a libel case against the Daily Telegraph for publishing similar claims; and, although the accusations of the Senate Committee were made public worldwide last week, the Committee had made no attempt to interview or even contact Galloway before they published them. Even more oddly, they are apparently not supported by any hard evidence at all, but by testimony, the authors of which the US is in many cases seeking to keep secret. It is these two failings that seem to have given Galloway the upper hand, and enabled him to put his remarkable brass-neck to striking propaganda effect during the hearing. Best, perhaps, to leave it to his own words:

As a matter of fact, I have met Saddam Hussein exactly the same number of times that Donald Rumsfeld has met him. The difference is Donald Rumsfeld met him to sell him guns, and to give him maps, the better to target those guns. I met him to try to bring about an end to sanctions, suffering and war… and to try and persuade him to allow doctor Hans Blix and the United Nations weapons inspectors back into the country. A rather better use of two meetings with Saddam Hussein than your own Secretary of State for Defence made of his.

You have nothing on me Senator, except my name on lists of names in Iraq, many of which were drawn up after the installation of your puppet government in Iraq…

Senator, in everything I said about Iraq, I turned out to be right and you turned out to be wrong. And 100,000 people have paid with their lives -- 1,600 of them American soldiers sent to their deaths on a pack of lies, 15,000 of them wounded, many of them disabled forever, on a pack of lies.

Senator, this is the mother of all smoke screens. You are trying to divert attention from the crimes that you supported from the theft of billions of dollars of Iraq's wealth…

There are, of course, many more where these came from. For those who missed it, a video archive of the full Senate hearing can be found here - and it's well worth a look (the fun begins at 1:58…). It is certainly true that Galloway was more concerned with point-scoring and grand-standing for a wider audience than he was with the truth of the allegations laid against him; and the hearing itself has shed little or no light on these matters. This, however, as he noted himself in an interview with CNN afterwards, was exactly what Galloway was aiming at:

Well, frankly, I wasn't here to melt the hearts of the two members the committee that turned up for the hearing. I was speaking beyond these walls to the watching television audience at home. And I came not as the accused, but as the accuser.

So I don't suppose I did much beyond embarrassing the Sen. Coleman with the absurd thinness of what he had to put on the table. But I hope that I reached a broader public, with my broader case, against the war, against the sanctions, and against the mother of all smoke screens, which is what this Senate committee on investigations is engaged in.

All things considered, it is difficult to disagree with the Guardian’s summary of the event: “Whatever else you made of him, when it came to delivering sustained barrages of political invective, you had to salute his indefatigability.” Quite.

Comments on the “Future of Kosovo”: by Goran Svilanovic

Goran Svilanovic is the ex-foreign minister of Serbia and Montenegro. Currently he is an MP in the Parliament of Serbia, Chair of the Working table I for Democratisation and Human Rights of the Stability Pact for South Eastern Europe and a member of the International Commission on the Balkans. This blog entry comments on the previous entry “The Future of Kosovo” , by Srdjan Cvijic.

1. Having read your text, I cannot clearly grasp position you take regarding the future status of Kosovo. Without a clear position, the text has no value. The time of general arguments has passed, what we need now is a concrete solution to the problem. To arrive at such a solution, we must be clear on how we can solve this issue, and clearly elaborate what this solution will look like in legal and political terms. When we do that it is bound to hurt [politically]. Catchphrases lost all usefulness apart from that of political propagandising.
2. The idea of The International Commission on the Balkans, of which I am a member, is not, as you argue, to use Kosovo to pay for future Serbian EU membership. On the contrary, the idea is that only if both Serbia and Kosovo are moving towards EU membership, can Serbia satisfy its interest in retaining a modicum of control over happenings in Kosovo. If Kosovo does not move towards EU membership, there will be nothing to guarantee that the province’s current Serbian population will be able to remain and nothing to protect other Serbian interests. This is the crucial difference between our [The International Commission on the Balkans] idea and your interpretation.
3. Belgrade has no position regarding Kosovo, and lacks the courage to deal with this issue. This may change after future elections.
4. Can the Serbs accept that Kosovo becomes a third unit in the Union of Serbia and Montenegro? Leaving aside, for the moment, the position of the [Kosovo] Albanians, no one in Serbia has given a clear answer to this eventuality. Let’s say that the previous scenario materializes and that Kosovo does become a third unit in the State Union of Serbia and Montenegro. Will this be just another step on Kosovo’s road towards independence? To answer this question, we should consider the current state of the Union of Serbia and Montenegro: a considerable part of the political spectrum considers this Union to be nothing more than step towards independence for Montenegro. Finally we must ask: can Montenegro bear to become a third, junior, utterly irrelevant [vis-à-vis Serbia and Kosovo] partner in such a relationship?
5. In the final analysis, if you think that partition is what buys Serbia’s consent to Kosovo’s independence (I did not quite understand if this is what you are advocating or not), I will make only two remarks. That was indeed the position of the Zivkovic government [The government of Zoran Zivkoic was formed after the murder of the Serbian Prime Minister Zoran Djindjic in March 2003. Zivkovic’s government stayed in power until the beginning of 2004 when the new government led by Vojislav Kostunica was formed]. Kostunica’s government abandoned this position and proclaimed a policy of not accepting the partition. As far as I know, this is now the explicit position of the Serbian Prime Minister Kostunica. In this sense, it is in full accordance with the position of the EU. Thus, the motivations of the Serbian government are not those that you indicated. Rather, the reason is that the partition of Kosovo, despite the fact that it would satisfy many appetites in Serbia, inevitably means that the Albanians get the same thing in the South of Serbia [Serbia proper, referring to the Presevo, Medvedja and Bujanovac municipalities with the great percentage of Albanian population] (I pointed this out in an interview with Monitor, a Montenegrin weekly magazine). Whatever the status of Mitrovica end up being [North Mitrovica: Serbian majority city in the North of Kosovo] will determine the status of the south of Serbia. In addition, the same goes for the 6 municipalities in Backa [North of Serbia, part of the autonomous province of Vojvodina bordering Hungary largely populated by the Hungarian ethnic minority]. The Hungarian minority would demand the same status as the Serbs in Mitrovica or the Albanians in Presevo and Bujanovac. Think about these arguments and you will understand why this government has abandoned the idea of partition.

Goran Svilanovic (translated from Serbian by Srdjan Cvijic)

All words between "[ ]" are added by the translator to facilitate the reading of the text.

Justice Kennedy Importing European Constitutional Law

Opinio Juris has an interesting post on Justice Kennedy and the reference to international law by the Supreme Court. I totally agree on the point concerning the US and international law. I also agree on the lack of meaning of the 'world-is-flat' metaphor.

The final point expresses skepticism as to the desirability of judicial reference to international material in the interpretation of the Constitution:
"What is "beginning" is aggressive judicial invocation of international law (even international law that the other branches have rejected) to interpret the U.S. Constitution. This is new stuff, and I don't think (based on his own use of it in Lawrence and Roper) that Justice Kennedy himself has come up with an explanation of why it is so important to cite international treaties when interpreting the Constitution. No justice has offered a particularly impressive defense of this practice (see discussion of Ginsburg here and Breyer here). It's too bad that the Justice can't do better than simply telling us that the "world is flat"."

I would like to moderate this skepticism by saying that the both the decisions in Lawrence and Roper are to be welcome as a progress. From the point of view of an outcome based type of constitutional philosphy, I would say that these decisions are un-objectionable.

Of course, the problem here is the procedure. I think I can give a pragmatic answer to that. I remember asking Justice Kennedy, after a public speech at NYU, what lies behind his conviction that external sources to the US system can improve the interpretation of the US Constitution. His answer relied on his pluri-annual experience as a visitor at the European Court of Human Rights, in Strasbourg. As you know, the Strasbourg Court hears cases coming from more than 40 different judicial systems in Europe. It does so by consulting with other National and International Courts. It does so under the constant risk of unduly impinging on the constitutional balance of other legal systems. Yet, I guess, the external observer can see a virtuos circle in this kind of procedure that takes open and engaging debate with other leading institutions as an advantage rather than a burden.

My guess is that Justice Kennedy sees this open confrontation as a virtue too. His message is: other jurisdictions are serious about international law and they are progressing fast under this stimuli. If the Supreme Court wishes to continue to be a leading source of constitutional debates, than it has to engage itself in constitutional conversations. Otherwise, it will be regarded as a narrow minded, not-very-authoritative, court. If it does not do so, while other leading jurisdictions are, then it will simply lose the place it used to have in the "global constitutional market."

This explanation, however, is not sufficient as far as American Constitutional Law is concerned. The Supreme Court competitiveness on the global constitutional market is not enough to justify the bending of the Constitution itself. But this is another matter, and I leave this argument to federal constitutional justices.

The Constitutional Dilemma of Embryos

On 12 June, Italy will hold a popular referendum in order to seek to abrogate the statute on medically assisted procreation. The statute, legge 40, was approved by Berlusconi's government with the intent of filling a legal vacuum on the practices concerning the treatment of embryos and stem cells research. Unfortunately, this statute is badly tailored, so much so that many have claimed that a legal vacuum was still better than a bad law.

The problem is not easy, let's grant it. The status of the embryo is troublesome. How can a jurist come up with a clear answer to that? Is he going to apply well established legal concepts? If so, are we going to treat the embryo as a thing or as a person? Maybe it is something in between. But then, a jurist needs innovation of legal concepts.

Even if we agreed that the embryo is a person, would this mean that research on it/he/she is strictly forbidden. What about diagnosis that can prevent fatal illnesses?

It is clear that we are facing a dilemma. There is a conflict between the interest of research on stem cells and embryo, which could improve our lifes and prevent many illnesses, and the interest in protecting 'human material.' I do not think that there is an easy solution. Though, I am convinced that strict bans will not produce any good result, and will simply make us dependent from the research done in other countries.

Let's suppose that our community agreed that research cannot be done. Since, this is not the case in other countries, it is possible that their research will help finding new treatments for illnesses. What would we do in this case? Would we simply refuse to undergo that treatment, on the basis that it is the result of evil science, or we would accept it for the sake of improving our quality of life?

To illustrate the stupidity of this law, I will take what I consider the most outrageous aspect. A woman can be inseminated, the statute says, but there cannot be a diagnosis pre-implant of the embryo. This, it is said, is to avoid any type of eugenism, that is selection on the basis of subjective criteria of fitness. But the problem is that the mother is then permitted to have a diagnosis during pregnancy and decide to abort in case the foetus has a major problem. Thus, the statute creates a tragic inconsistency, which is the bottom line of the problem.

Constitutional dilemmas are not easy to solve. They imply hard choices, which will provoke the loss of something we value. When faced with such dilemmas, however, we have to take the responsibility as a community to ensure that our decisions are not ad hoc judgements, which claims political authority in the name of the majority that backs them up, but have no moral authority because they defy reason. More importantly, these measures should not have legal authority because they make a mess of the constitutional panorama by the creation of deeply inconsistent norms.

Foreign Affairs Power and the Bush Administration

As the NY Times has written here and as commented on generally by Opinio Juris here, several local and state governments are taking action to implement Kyoto protocol protections themselves.

As Opinio Juris notes, "Under recent Supreme Court precedent, the President can preempt state and local laws that he deems inconsistent with a clearly established national policy? President Bush relied on this authority, in part, when he invalidated (or tried to invalidate) Texas laws denying certain rights to foreign defendants on death row."

While I agree with Julian that there is real Supreme Court precedent for preemption of state and local laws that oppose clearly outlined foreign policy, I somewhat doubt such precedent would be active here. From my understanding of the situation, these localities are voluntarily implementing environmental controls that mirror Kyoto requirements. The implementation of these controls is not clearly a statement on foreign affairs or in contradiction to current foreign policy and as such can be justified independent of any foreign policy concerns. Let me comment on these two points separately.

Unlike the Massachusetts Burma laws which were designed as state sanctions against a foreign regime, the implementation of Kyoto controls are content neutral. On their face, they make no statement as to what is the foreign policy of the United States. As such, they are not impeding the federal government's ability to "speak with one voice" in foreign affairs. Further, the US government did not clearly create a foreign policy where environmental controls are contrary to US foreign policy, but rather a policy that the US government was unwilling to obligate itself to implement national controls.

If the Bush Administration wants to block state and local implementation of Kyoto protections, it is going to have to find something other than a foreign affairs power argument to do so and that's a whole 'nother blog entry.

The future of Kosovo

This blog entry presents various international and local positions on the future of the Serbian autonomous province of Kosovo. It provides a critical reflection on these positions and situates this debate in the broader philosophical framework of the future and purposes of the EU. The entry concludes that, whatever the future status of Kosovo will be, the only way to prevent renewed conflict between the Serbs and the Kosovo Albanians in the foreseeable future is to offer to both Serbia and Kosovo a clear prospect for EU membership. International law alone is clearly not able to solve and stabilize the situation in the region.

Kosovo is currently under the international protectorate of the UN and NATO-led peacekeeping force KFOR. This regime was established by UN Security Council resolution 1244, which came into force after the 1999 NATO Alliance bombing of the Federal Republic of Yugoslavia (now called “Serbia and Montenegro”). Formally speaking, this resolution affirmed that Kosovo remains under the sovereignty of Belgrade. De facto, however, the Province is run by an international administration as well as local institutions that are growing in power. Kosovo’s Albanian majority is increasingly dissatisfied with the present status quo, and is pressing for the province’s independence. At the same time, the life remains exceedingly difficult for province’s national minorities, despite certain meager improvements recently. The international community insists that talks on the province’s final status cannot begin before standards on issues such as basic human right and minority protection are achieved. There is a tacit consensus that this policy, “standards before the status” has failed to produce results, and that regardless of the standards, the negotiations on a status agreement are likely to start towards the end of this year, possibly in September. What are the options?

The Serbian government is wary of clearly pronouncing its position before negotiations actually start. For this reason, for a long time Belgrade has kept silent on its negotiating platform, while branding the Kosovo Albanian independence platform as totally unacceptable. This prompted criticism from the international community, which argued that Belgrade is clear on what they do not want (invoking international law and the resolution 1244) but is ambiguous on the extent to which it is ready to make concessions towards the Kosovar Albanians. Belgrade’s silence in terms of what it wants would seem to indicate that it supports to the status quo ante (thus the regular 1974 territorial autonomy for Kosovo), which is totally unrealistic, in the sense that the Kosovo Albanians would never agree to it. Then, recently, the Serbian government came with a plan for the decentralization of the province, with it’s status to be governed by vaguely worded phrase “more than autonomy, less than independence.” Arguably, this phrase was a reply to the international criticisms that Serbia only says “no” without proposing politically pragmatic ways to resolve the problem.

The Albanians want nothing less than full independence. There are nuances between Kosovo Albanian political parties insofar as how much autonomy they are ready (and able) to concede to national minorities once Kosovo becomes independent. Some Kosovo Albanians want an independent, ethnically homogenous (i.e., Albanian) Kosovo, others are ready to secure some institutional protection for minorities (Serbs, Roma etc.), aware that this will contribute to the positive international image of their state and increase its chances for eventual EU membership. A minority genuinely dreams of a multicultural Kosovo.

The international community has – for now – excluded three scenarios: the partition of the Province (where the Serbian part remains in Serbia, the Albanian goes independent), the unification of independent Kosovo with Albania and the return to the pre-1999 constitutional situation.

There are numerous independent proposals on how the future status of Kosovo is to be arranged; most of these suggest that independence is the most likely solution. These proposals, however, differ in the extent to which they are ready to take both Albanian and Serbian concerns into consideration.

The International Crisis Group, a prominent think thank and a powerful ad hoc lobby group, suggested in a recent report that Kosovo be granted independence, notwithstanding Serbia’s objections. Drawing a parallel with the 1999 bombing of Serbia - which, according to many mainstream observers, violated of international law - the ICG argues that Serbia should be sent a clear message that the “train is leaving the station”: Kosovo will move towards independence with or without its consent. As far as the Security Council is concerned, the ICG suggests that Kosovo be granted independence, even in the case of a Russian veto or disagreement. The rationale for such proposal is pragmatic: a disastrous economic situation and general insecurity has made Kosovo Albanians nervous, and thus more likely to commit violent attacks against the Serbs, like those of 17th March 2004, in the future. As far as the international community’s insistence on the “standards before the status” policy, the ICG says that the Albanians cannot be “generous” towards minorities if they feel insecure, and that hence, only independence will render them secure. The report’s most striking sentence, however, is that, “it would be appropriate, given everything that has happened in the past and the uncertainties about the behavior in the future”, to give the Kosovo Albanians independence. Whereas they desire to avoid moral argumentation, their argument remains tacitly moral. In a timid way they want to say: Kosovo Albanians should get independence because of what they suffered during the years of Milosevic regime, especially during the 1999 NATO bombing of FRY. Without the moral argument ICG’s suggestion is factually weak because they are unable to answer the question of what will ensure that the Kosovo Albanians, after independence, if the economic situation of the country does not improve (and this is the most likely scenario at least in the near future), will not turn against their Serbian and Roma neighbors (and others) to vent their frustration at economic hardship. The ICG suggests several institutional provisions to countenance this, but they remain insufficiently elaborated. What the ICG does not want to say is that Kosovo morally deserves independence because of the past events. The ICG does not want to advance this argument because it is not likely that such a position would win over anyone within the international decision makers. It would cause a dangerous precedent, not to enter to the historical justification of such an argument. Finally, the ICG forgets to pay attention to Serbia, and the negative implications of the imposing on Kosovo’s independence on the fragile Serbian democracy.

Recently, the UK House of Commons‘ Foreign Affairs Committee issued a report entitled The Western Balkans on February 23, 2005. This report, like that produced by the ICG, suggests that independence might be the most realistic solution for Kosovo, but is much more prudent as far as the strategy of reaching that goal is concerned. Based on an interview of the Norwegian ambassador to NATO, Kai Eide, the report predicted that, if the final status of Kosovo is not resolved soon, Albanians could commit ethnic cleansing of Serbs one more time. It was said, however, “final status…could see an exodus of the Serbian minorities heading back towards Belgrade.” As one UK MP argued, “we are damned if we do and damned if we do not” resolve the status of Kosovo. Misha Glenny--one of the contributors to the report and an expert on the region’s history and politics - argues that “going [to Belgrade] now and telling Serbian politicians that they have to support the idea of a final status which is likely to result in independence of Kosovo is turkeys voting for Christmas. It is no good asking Serbian politicians to do that.” Glenny is convinced that this would bring about the electoral rise of the extreme-nationalist forces in Serbia, an outcome that could possibly have disastrous effects on the region as a whole.

The International Commission on the Balkans, in a report entitled The Balkans in Europe’s Future, published April 12, 2005, also suggests that independence of Kosovo is the best solution, but adds that this could only be achieved if EU membership is a clear prospective for both Serbia and Kosovo. There is, however, a fundamental difference between this report and the report of the ICG: here they argue,” [w]e do not believe that Kosovo's independence will solve all the territory's problems, but we are concerned that postponing the status talks will lead to a further deterioration in the situation in the province.” Moreover, this report, unlike the ICG’s report, takes the interests of the Serbs into account. Their argument boils down to the strategy of Kosovo’s independence in stages, whereby Kosovo would be granted “independence without sovereignty” in 2005/2006 meaning that Kosovo would legally be a protectorate of the UN (or, preferably, the EU). In the following stage, the report calls for “guided sovereignty” where Kosovo starts accession negotiations with the EU. Finally, the Province would move towards full (and the report adds “shared”) sovereignty, which would be reached only at the moment when Kosovo enters the EU (shared in the sense every EU Member State has a shared sovereignty, not that many in the EU would feel comfortable with such a definition). This report is convinced that this can only be achieved if Serbia receives a fast-track EU membership and if the Kosovo Serb community receives substantial guarantees of protection. In this way, the International Commission on the Balkans invokes the old proposal that the international community should buy Serbia’s consent to Kosovo’s independence with EU membership. Is this indeed how much the “most expensive Serbian word [Kosovo]”, costs? The 1389 Kosovo battle myth suggests that it is priceless, but reality says differently.

The most obvious way to ‘buy’ Serbia’s consent to Kosovo’s independence would, of course, be a partition. Benefits of partition would accrue to Serbian public opinion (which would receive a partial satisfaction and relief for the loss of Kosovo), as well as to the Serbian population living in the enclaves that would merge with Serbia (which would not have to rely on the goodwill of the Albanian majority to offer them institutional protection). The negative side of this solution is that it has the potential to cause exodus of, the Serbs living in enclaves situated in the territory of the independent Kosovo who would move either to the northern enclaves (which would merge with Serbia) or to Serbia proper. Such a situation provides a clear moral concern for the representatives of the international community who would be charged with mediating such a settlement.


Serbian politicians indeed agonize about Kosovo. As the ICG report suggests, the political climate in Serbia at the moment is such that a politician who declares himself openly supportive of Kosovo’s independence (for pragmatic or moral reasons) is bound to be sidelined by a vast majority of the political elite and the population. Kosovo is very expensive for the Serbian political elite, even more expensive than the lives of the Serbs living in the Province.

The secession of the ex-Yugoslav republics of Croatia, Slovenia, Bosnia and Macedonia had basis in international law. Namely, like the Constitution of the Soviet Union, the constitution of Tito’s Socialist Federal Republic of Yugoslavia (SFRJ) gave the republics a right to secede. However, it did not give any such right to autonomous provinces. Since Kosovo, was, and still formally is, an autonomous province of Serbia, it cannot invoke the precedent of Croatia and Slovenia in its favor. For this reason, many members of the international community, including the EU and the US, are unlikely to follow the suggestions of the ICG and simply grant Kosovo independence without regard for Serbia’s consent. Instead, they would force (or buy) Serbia’s consent to such an outcome. Serbian politicians are becoming increasingly aware of this and are playing on this card. It is, nevertheless, unclear whether the Kosovo Albanian politicians truly believe that they can gain independence, even without Serbia’s consent. Kosovo’s independence would, even more than the bombing of 1999 and the 2003 Iraq war, disrupt the post WW II international order. It seems rather unlikely that the US and the EU would force such a solution. For this reason, the only solution is to offer Serbia, to use highly inappropriate vocabulary, good price for Kosovo. This price would be either partition, EU membership with strong guarantees for the Kosovo Serbs, or both. The problem is that the Serbian politicians are increasingly aware of this and ask for a higher, unattainable price.

The law of history suggests that young nations living on a small territory with a high demographic growth (Albanians) tend to expand and claim the neighboring territory, through war, migration and then secession, or both. If the neighboring nation, living on a comparatively large territory, is tired and relatively old, with a low demographic growth, like the Serbs are, the situation is ripe for instability in the form of claims to resources and territory. Kosovo is with no doubt the cradle of the Serbian culture and the defining element of the national identity of the Serbs, however, it is a “Serbian cradle in which the Albanian child rocks.”

Is it the role of international law to stop or promote the law of history? To some extent, the role of international law and political constructions is to mediate such laws of history. Old nations have a number of ‘options’: they can choose to stimulate their own demographic renaissance, merge with the young nation through defining its citizenship in a multicultural way, try to assimilate the young nation, or commit genocide. Most nations in the world (nation-states) are a product of one or all of these strategies. It is enough to read Victor Hugo’s 1793 to learn about the forging of the modern French nation. The European Union, more than international law, is an effective tool to keep peace on the continent and to mediate the laws of history. I firmly disagree with the political theorists of the EU polity that argue that peace was, but no longer is the ideal, in whose service the EU exists. They tend to support the argument that the EU is about prosperity and supranationalism but no longer peace. Regardless of how unlikely we think war is, it is highly probable that in the future (maybe very soon in relative terms, in our lifetime) young generation of Europeans (in the Balkans but also in France, Germany etc.) will forget about the horrors of the WW II and the ex-Yugoslav wars of the 1990s. The smoke of Auschwitz and the ruins of Dresden will be a myth… and they will be ready to fight again, for in the absence of a secure legal, social and economic environment war becomes an appealing option. The EU supranational polity offers hope in the form of an innovative instrument to countenance the negative aspects of human and societal nature. Only the EU can facilitate Kosovo independence and bring the Serbs and the Albanians closer together, despite the fact that “the most expensive Serbian word” will be lost, maybe forever, and despite the fact that Kosovo Albanians might have to content themselves with a compromise solution of some sort (not as high as the Serbian political elite optimistically expects). The purpose of the EU is to render old realpolitik contemplations futile. Some Serbian politicians like to say: we are losing this territory (referring to Serbian parts of Croatia, Bosnia, Kosovo...) until geopolitical circumstances in the future of humanity change in “our favor”. The EU renders such thinking unnecessary. The ideal of Peace (and supranationalism) is there to try to keep the EU polity together, even in the situations of economic decline of the continent, or at least we hope so.

Italy will leave Iraq in early 2006

Italy will leave Iraq in early 2006. This is what the italian minister of foreign affairs, Gianfranco Fini, has announced yesterday, 11 May. According to the official position, this is not an early withdrawal, but it follows the guidelines prepared by the U.N. I wonder to what extent this is accurate. In any event, what needs to be taken into account is that italian elections will be held in the spring of 2006. A coincidence? Comments are welcome.