Friday, April 29, 2005

U.S. Strongarms Bassiouni out?

Knight-Ridder is reporting that Cherif Bassiouni, formerly serving as a UN human rights investigator in Afghanistan, believes he was pushed out of his position by US officials intent on hiding individuals detained in Afghanistan and a potential transfer of about 200 Guantanamo detainees there.

In essence, Bassiouni believes that the US will try and transfer torture victims before allowing UN inspectors investigate prison conditions. This way, the government can say that it is allowing investigators while simultaneously cleansing these prisons of individuals who presumably would tell UN investigators that they were abused.

The State Department's reaction?

"We came to the conclusion that more than three years after the fall of the Taliban, the situation had evolved," a State Department spokeswoman said. "It was felt...that the special mechanism of the independent expert was no longer needed."

This peculiar response by the State Department left me wondering. First, I am uncertain as to why the fall of the Taliban government should affect a UN investigator assessing US prison conditions in Afghanistan. Second, this argument is exactly on point as to why individuals detained because they were part of the Taliban should be immediately repatriated under the Geneva Conventions.

Gosh, if the situation has changed and Afghanistan is our friend (which I believe) then why are we holding their former soldiers. Notably, these former soldiers, if not caught during the war in Afghanistan are becoming part of the very government that is now a US ally. So now we are supposed to take pride in a ideological belief that the difference between life imprisonment at GTMO and a new Afghan government job is a simple matter of timing?

The government has attempted to preclude an argument over Geneva repatriation by short-circuiting Geneva protections all together. However, the factual landscape continues to evolve in a way in which it is clear that Taliban detainees should be repatriated to Afghanistan. The more the State Department touts democratic development in Afghanistan, the less likely it is that they can argue that Taliban soldiers can be held.

If, as a March 11, 2005 article in the NY Times is correct, that the DOD's "top choice would be to win the war on terrorism and declare an end to it and repatriate everybody," then even the government is operating on a stage where repatriation at the end of hostilities is the desired result. The problem then is that the law is not dictated by the end of the war on terror but the end of hostilities in the relevant theatre of war where each detainee was captured. For example, the DoD wouldn't repatriate a Taliban POW at the end of the Iraq War, or vice versa, because they are different conflicts.

Foreign policy must possess consistency in order to gain efficacy. Inconsistent ideology spurs inconsistent action. There's no remaining logical reason for the government to continue to detain Taliban fighters at Guantanamo.

Italian Constitutional Court and Offences to Catholic Religion

The Italian Constitutional Court quashed part of art.403 of the penal code, which stipulates sanctions for offenders of catholic religion. The argument on which this decision is grounded is that the penal code cannot make sanctions against catholic religion any bigger than sanctions against any other religion (To the present day, this was the case as art 406 of the penal code stipulates lesser sanctions, for offenders of other religions). The court based its decision on the twin action of the principles of freedom of religion and non-discrimination.

Thursday, April 28, 2005

A First Reaction to the Goldsmith Briefing

Tony Blair’s lengthy battle to keep secret the legal advice he received from the Attorney General, Lord Goldsmith, on the legality of any military action in Iraq failed yesterday, when significant sections of the briefing were leaked to Channel 4 News. The Government has since published the entire report, available in full here, or in summary here.

Naturally, the timing of the leak – with the general election only a week away – could not have been much worse from Blair’s point of view, particularly given that Michael Howard, the Conservative leader, had already taken the unusual step of publicly denouncing him as a “liar”. This, of course, ensures that Iraq will be at the very forefront of voters’ minds at the crucial time – the last thing that Blair would have wanted.

But what does the advice say? It covers some arguments in considerable detail, and leaves others basically unexamined. The most striking example of the latter is Lord Goldsmith’s failure to engage in any real way with the controversy over the “revival” argument: that is, that the authorisation for the use of force provided by Security Council Resolution 678 in 1990, after the Iraqi invasion of Kuwait, lay dormant after the ceasefire, but could be revived by a “material breach” of the ceasefire agreement. Lord Goldsmith notes that this argument had been used by his predecessors in order to justify subsequent military operations in Iraq, such as operation Desert Fox in 1998, and, despite acknowledging that it received little support in academic circles, states simply that he agrees with the advice of his predecessors. In effect, then, one of the major controversies over the legality of the action receives relatively little attention in the briefing.

Having thus “established” that the initial authorisation for the use of force ion 1990 could be revived, Lord Goldsmith then turns to the question of under what circumstances (and in particular the circumstances created by Resolution 1441) this could happen. The question, of course, was whether that resolution required another to be passed before the use of force could be viewed as authorised. Goldsmith traces both arguments (focusing more strongly, however, on the “no new resolution” approach) and finds (perhaps predictably) that both interpretations are reasonable and plausible. The crux of the matter seems to rest upon the significance given to operative paragraph 12 of the Resolution, in which it is stated that the Council must meet “to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.” Goldsmith notes that the difference between the terms “consider” and “decide” is highly significant – particularly given the fact that the Americans had rejected French and Russian proposals that would have expressly required a further decision, “precisely to avoid being tied to the need to obtain a second resolution”.

This argument, however, must be treated with caution. At first glance, it seems significant – dispositive, even – that the French were aware that the US would not agree to a resolution that required a second one before force could be used. However, this speaks more to the indeterminacy of these kinds of texts than to any convioncing argument: although Lord Goldsmith chooses not to do so, it seems equally clear that both the French and the Russians were deeply opposed to any resolution that would allow war without a second resolution. The issue, it seems, was simply fudged; and this argument therefore strikes me as something of a dead-end. Certainly, as Lord Goldsmith notes, any court would have difficulty in upholding his conclusions, as the background negotiations on which he relies were, for the most part, conducted in private, and no official record of them exists. In essence, he is forced into a reliance on the bona fides of the US officials when they insist that the French “knew what they were voting for” in resolution 1441, and that it didn’t involve a second resolution.

Another crucial point for Lord Goldsmith is, if there has to be a new determination of material breach by Iraq after its “final opportunity”, then consistent UK practice would imply that it should be the Security Council as a whole, not individual members, that should make that determination. He notes that the UK position on this was radically different from that of the US, who had always argued that a material breach was a matter of “objective fact”, that could be recognised by any member individually. It is therefore not entirely honest to argue, as one journalist in the Guardian has done today, that “the attorney told the PM that it was for the UN security council, not him, to decide whether Iraq was complying with UN resolutions on disarmament or not. Yet we know it was the PM who took that decision.” Indeed, this has been one of the sections seized upon by Blair’s critics in the press. The relevant section from the briefing is as follows:

A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.

This, of course, is not quite the same thing. Lord Goldsmith effectively states that both arguments can be reasonably and plausibly made; and, in an intriguing passage, he goes on to note that:

In reaching my conclusions, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a "reasonable case" does not mean that if the matter ever came before a court I would be confident that the court would agree with this view.

I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained.

This is interesting for a number of reasons. Firstly, it can really in no sensible way be taken as the clear and unequivocal advice that the war was legal that Blair claimed he had, and that formed the basis for the Cabinet decision to resort to military action. It is also, however, of importance to note that, as a matter of UK practice, even for something as fundamental as a decision to go to war, a finding that a legal case for the use of force is “reasonably arguable” is viewed as sufficient to discharge our international legal responsibilities, even though, as the last sentence quoted above seems to imply, a court would be more likely to reject that argument and find the action illegal.

Lord Goldsmith’s conclusion, then, is that it would be “safer” to seek a second resolution, in particular one that could make a definitive finding of new material breach of the previous resolutions:

In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. I have already advised that I do not believe that such a resolution need be explicit in its terms. The key point is that it should establish that the Council has conduced that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.

Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.

Given what was said about the need for the case to be merely “reasonably arguable”, quoted above, the advice received by Blair was that war in Iraq would be legal (or, at least, in keeping with consistent UK practice on the matter of international legality and the use of force). This, however, does not mean that Blair is in some sense “off the hook”. The memo itself adds little or nothing new to the debate over the whether or not the war was legal; and nor was it expected to. Instead, the real question, as with so much of the current debate in the UK over Iraq, centres on Blair’s presentation of it, both to the public and to his own cabinet. By the time the cabinet met to discuss the prospect of going to war, Lord Goldsmith had radically revised his opinion, and presented a “summary” of the secret briefing that had all of the uncertainties and angst removed. Furthermore, Lord Goldsmith’s insistence on the need for “hard evidence” of material breach will not play well with voters now, given the fact that even the Government has acknowledged that such evidence simply didn’t exist. The strength with which this point is made in the summary of the briefing is worth noting:

However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.

This will provide an uncomfortable reminder for Blair of the farce that was his Government’s “dossier” on Iraq’s WMD, which purported to provide us with just such evidence, but which in fact turned out to be little more than a cut-and-paste of a ten-year-old doctoral thesis, plagiarised, it is said, right down to the misplaced commas. It is not, therefore, in terms of the debate over the actual legality of the war that the publication of this advice has its significance, but rather with the possibility of public trust in a leader standing for re-election in just over a week’s time.

By way of conclusion, I’d just like to flag one or two other, miscellaneous points that struck me as interesting on the first, quick reading of the briefing. Firstly, Lord Goldsmith begins by acknowledging three grounds for the legitimate use of force: self-defence, Chapter VII Security Council Authorisation, and “exceptionally” (and “controversially”) action “to avert overwhelming humanitarian catastrophe”. More support for proponents of a right to “humanitarian intervention” – he goes so far as to note that this doctrine “was relied on by the UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones.”

Secondly, complete rejection of the so-called “Bush doctrine” of pre-emptive war. The relevant passage is where he notes “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law.”

Lastly, on regime change. Lord Goldsmith concludes his advice with a reminder of the requirement of proportionality, noting that, even if Resolution 1441 was alone sufficient to revive the authorisation in Resolution 678, any force used must be proportionate to the legitimate objectives in order to be legal. The force thus:

- must have as its objective the enforcement the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;
- be limited to what is necessary to achieve that objective; and
- must be a proportionate response to that objective, i.e. securing compliance with Iraq's disarmament obligations.

He concludes by noting that regime change could be legal “if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action.” Again, given the now widely-acknowledged fact that Iraq had no WMD to disarm, it is this kind of statement that may come back to haunt Blair. At the very least, it allows us to track the shifting justifications used in terms of the war: initially WMD, then, when the truth about their absence began to emerge, a refocusing on humanitarian concerns and on regime change itself as a legitimate objective. It is also interesting to note that, in the same breath as acknowledging humanitarian intervention as a legitimate basis for the use of force, Lord Goldsmith adds that “know of no reason why it would be an appropriate basis for action in present circumstances.” Therefore, while the “reasonably arguable” condition for legality would seem to absolve Blair from any suggestion that he acted contrary to legal advice, or in full knowledge that the war was illegal, there is still more than enough in this briefing to deeply embarrass him; and rightly so. Certainly, his political opponents will ensure he is not allowed to ignore it in the next week or so.

Protest politics and responsibility towards the citizens and the future

Lorenzo wrote about the very interesting position of the ex-French Socialist Prime Minister Lionel Jospin, who invited the French people to vote for the European Constitution and accused parts of the politically affiliated and non-affiliated left who propagate the “no” vote. As far as they are concerned he said, "Nous ne pouvons dépendre ni doctrinalement, ni stratégiquement de ceux qui refusent le pouvoir".

In English, “We cannot depend nor strategically nor doctrinally on those who renounce power”.

This is the essence of the very credible critique of the radical left civil society movements and their way of doing politics. Especially those that do not pretend to take power but participate in politics only to, so to speak, deconstruct, not to construct. This is largely because their political platform rests on maximalist aims completely unaware of political realities (this is completely besides the point that we might find the underlying ideas of that platform morally credible: e.g. solidarity, economic equality argument, pacifism etc.). The political position of these movements rests on a definition of politics as art of the impossible rather than art of the possible.

I am not necessarily condemning making politics as art of the impossible neither suggesting that the only way to do politics in a kind of Metternich’s, Kissinger’s Realpolitik, however, I think that they are times when it is responsible to do so and times when it is not. Or better, that the only time when the politics of deconstruction is ‘allowed’, so to speak, is when it clearly ,and with no doubt, simultaneously constructs. What do I mean? Let me explain this through an example.

A couple of years ago the French rap band called Zebda (excellent band by the way, Raphael recommended that I should listen to them in 2001, and I do ever since then) participated in the local elections in the South-West town of Toulouse as a clear beneficiary of the left wing protest vote, they managed to gather 12.38% of the vote in the first round of the lections. The Socialist candidate got less than the right wing candidate, and in order to win, the Socialists badly needed the votes of the Greens, Politically Affiliated extreme left, but more than them of the “Zebda List” . Without the Zebda votes the right wing candidate for Mayor would have won. Most of the people who voted for Zebda, voted for them as a form of protest, to express their disappointment with the main stream Socialist politics, but also with the political message of radical-left wing parties.

Before the second round of the elections Zebda guys invited their voters to vote Socialist, but more importantly they admitted that they would not be able anyways to run a municipality, this announcement was accompanied by humorous scenes such as dancing of the gray-haired socialist politicians at the Zebda music. The Socialist Candidate, at the end of the day won. Thanks to Zebda voters.

What is my point. Fair enough, Zebda’s direct participation in the elections can be branded as politically irresponsible because they had no clear agenda of what they want to do if they come to power (my word! they even admitted that they are completely incapable of running a municipality), but I do not think that what they did was irresponsible. Their participation made a clear signal to the Socialist mayor, to put it bluntly, to keep to the left when managing the city. The protest vote for them was indeed deconstructive, but a form of deconstruction that constructs.

In the case of the Referendum voting for the EU Constitution we can only vote “yes” or “no”, like in the case of Zebda, we send a strong and clear message, an electroshock, that we do not want such Constitution. Yet, there is a clear difference between the two cases. In the case of the EU Constitution the next chance is not in 14 days, like in the case of French municipal elections (between the first and the second round), but God knows when. And as Lorenzo points out, “But the Constitution may look worse than it was in the first place.” And, I would add, it will certainly not look better (meeting the interests fo the French “no” voters). The new version of the Constitution, thought by the lesson of the French electroschock, will certainly not include clauses that would appease the French left wing supporters of the “no”, but more probably, if the new version of the constitution is ever presented to the EU Member State voters, it would look to moderatly appease the right wing that votes “no”, thus possibly, include Christian values in the Preamble of the EU Constitution etc.

(next week I will contemplate on the possible outcomes of the French “no” vote)

UK releases Lord Goldsmith memo on legality of Iraq War

Obviously, this memo will be parsed as part of the upcoming elections.

Lionel Jospin's come back for the European Constitution

Lionel Jospin's come back to the front of French politics, and for the sake of the Yes to the European Constitution, has a good flavour. His main criticism is directed to the representants of the left that rejects the idea of power. It is because of them, he says, that the socialist party has lost ground. Certainly, he has in mind the past presidential election, where Monsieur Le Pen, a fascist politician, made it to the second round instead of Jospin himself. It seems that French people did not learn from that lesson. They thought they could change France by voting No to the leftist government (Jospin's), and they ended up choosing between Chirac and Le pen.

A parallel can be drawn with the European Constitution. French voters, notably pro-european leftist, are inclined to vote No to the European Constitution. If this happens, they will end up in a non-position, sharing once again the same destiny as Le Pen. Hopefully, there'll be a second round. But the Constitution may look worse than it was in the first place.

Wednesday, April 27, 2005

The ongoing loss of power of national parliaments

In a way, the history of modern democracy since the eighteenth century is the tale of the instant rise and the progressive fall of Parliaments. At the beginning, elected chambers invested with legislative powers seemed to be a perfect way to guarantee popular sovereignty. Towards the end of the nineteenth century came the first disillusions as Parliaments failed to represent the working class and therefore started losing their original legitimacy. The first half of the twentieth century was however a period of hope as reforms were going to be passed in order to restore the faith in representative democracy. Among the many projects produced during this period, the system of proportional representation appeared as the reform with the most potential for fixing what was by then perceived as a strictly bourgeois regime. But as socialist parties were able to become parliamentary forces, other problems appeared: better representation came along with governmental instability and consecutive weakness of the executive which led, in turn, to the failure of the democratic State to defend itself properly against internal and foreign aggressions. After the Second World War the conclusion was drawn that elected Parliaments in continental Europe had not been barriers to fascism and Nazism. All hope was seemingly abandoned as Parliaments had failed to protect fundamental rights and even democracy itself. It was thus decided that they would not be improved from the inside but assigned a much more modest place inside the constitution, that they would be controlled by other institutions. In Italy for example, the Parliament is controlled from the bottom, by the people through the referendum, and from the top, by the constitutional court. In France, the Parliament is essentially controlled from the side, by an extremely powerful government. In Europe, during the second half of the twentieth century, the rise of constitutional justice, the enforcement of the European Convention on Human Rights and the progressive development of the European communities and latter Union constantly diminished the power of national Parliaments.

A recent decision of the French constitutional council illustrates the crisis of modern Parliaments. Amidst great social conflict, which had caused the fall of the previous minister of education, a law on the future of school was adopted in March. As students continued their weeks-long strike, the constitutional council (the French constitutional judge) was asked to control the law’s conformity with the constitution. This law contained the following provision:

The objective of school is the success of all its students. Given the diversity among the students, school must recognise and promote all forms of intelligence to allow them to put forward their talents. Scholarly education, under the authority of the teachers and with the support of the parents, allows every student to accomplish the work and the efforts required by the development of his abilities, intellectual as well as manual, artistic and sportive. It contributes to the preparation of his personal and professional path.

The constitutional council found these provisions to be deprived of any normative meaning and therefore declared them contrary to art. 6 of the 1789 French Declaration of Human Rights according to which the law is the expression of general will. The constitutional judge decided that as such, laws should have normative meaning. In other words these provisions are not striked down because they create rules contrary to the constitution but because they don’t create rules at all. This decision is a metaphor of the sad state Parliaments are in: deprived of much of its power by the national social and economical context, the European constraints, and the world context, the Parliament ceases to create rules and starts to wish, like a lost child, for things to become better. What is more depressing: that a Parliament would be condemned to such inaction or that a bunch of judges would feel free to tell the MPs that they are not paid to make wishes? If the Parliament can be told to stop wishing then it really isn’t sovereign any more. Of course we didn’t need this decision to come to that conclusion; all it does is that it illustrates the fact that national parliaments continue losing power on all sides. It seems to me that inside national states we are out of ideas as if we had tried every thing and that every thing failed. The EU Constitution doesn’t bring anything new either (the Parliament will be controled from the bottom, the top and the side). If it is adopted, the EU Parliament will be typical of the weak Parliaments in the national models. That can be a motive for satisfaction, as nothing really changes, or one of disappointment, as… nothing really changes.

Tuesday, April 26, 2005

The Pope's Responsibility to Europe

I will admit that I was not hoping for a Ratzinger papacy. I've always had a soft spot for the underrepresented and the underdog (of course these two are usually the same). As such, I really wanted to see a new pope from Africa or Latin America. After all, once you have seen the voracious faith practiced in these lands, is it possible to imagine a world in which the Catholic world is ruled by another European???

Despite my hope for one of the burgeoning centers of catholicism to gain a pope that could evoke feelings of both religious and cultural pride, I am even more dismayed by the fact that Europeans have such a feeling of entitlement to the pope and the Catholic Church. After all, Europe, as much as I adore it, is becoming more agnostic by the day. Cardinal Ratzinger's admonitions against relativism fit Europe like a glove. So why are we hearing a repetive chorus that the election of Pope Benedict XVI will fail to "re-convert" Europe's catholics? Of course he will, so the question that remains is "Who cares?".

Obviously, religious leadership is not designed to preach to the choir, but the complaints that the new pope will not satisfy Europe sound like the cries of a spoiled child. Europe has held the papacy for many, many centuries. Sadly, inertia and proximity to the Vatican leave it in a position of unjustifiable power. Instead of appreciating this power, it appears that Europeans would prefer the Pope change his religious views in order to placate them.

I have no desire for a conservative or liberal pontiff. I do, however, believe that the Catholic Church is capable of making its moral judgments without the benefit of public polls or public pressure. I do not believe the pope, nor any other religious leader, EVER speaks with infallibility, but I DO believe that the Church would benefit much more by listening more to its audiences in Latin America and Africa than its spoiled believers in both the U.S. and Europe.

Monday, April 25, 2005

The End of Berlusconism-- Part 2

The crisis of Berlusconi's government has finally been formalized. Berlusconi had to resign on wednesday 21 April, and created a new government as soon as saturday 24 April. This may look like a formality to people non acquainted with italian politics, but it is in fact a very strong symbol of the crisis of Berlusconism, his philosophy of rupture with the past political instability.

Berlusconi centred its innovation along three lines: Political discourse and symbols, transatlantic relations, and constitutional innovations. His major failure, as a result, must be found within those three domains. Firstly, Berlusconi tried to innovate the political discourse and symbols. He was in 1994 the new man, the entrepreneur who promised to refresh Italy with a new liberal breeze. The gap between his discourse and the reality weakened Berlusconi considerably. Secondly, he prioritised transatlantic relations over european bonds, thereby upsetting a considerable portion of the society, which was unambiguously against the war. Thirdly, he initiated constitutional reforms which look insufficient, if not altogether wrong.

Internal tensions within his coalition now seem unbridgeable. The christian democratic hawks are there to monitor any faux pas of Berlusconi. In good traditional style, they are ready to become condors, and eat from the corpse of the dying animal, Silvio Berlusconi.

The ball is now in Prodi' s hands. He has to show that, unlike Berlusconi, he is able to unite his allies around a common political agenda. If Prodi does not learn from this, no left coalition will be there to last and this will be to the detriment of our country.

Prodi for the French "yes"

Romano Prodi, Ex-President of the EU Commission and the current leader of the Italian center-left coallition Unione called the French voters to vote "yes" in the 29th May referendum, if the "no" prevails, said Prodi, that "would be catastrophic for Europe, form a social and economic point of view, not only political...there is no Europe without France..." (see).

Friday, April 22, 2005

Christopher Townley

Competition Law and the European Constitution

This is part of an exchange I had with Christopher Townley, a fine competition lawyer, who recently defended his Ph.D thesis titled "A.81: Putting Policy in Its Place", at the European University Institute, Florence.

The argument that you [Lorenzo] are running is quite complex. I discuss it to a certain extent in my thesis, Chapter One. In essence, in the EU we have decided to adopt a market economy over a planned one. The reason for this is that it allows more choice for consumers (it encourages producers to make better quality products at cheaper prices), it reduces waste (in the sense that goods are directed to those that most need them - in other words are prepared most for them) and it is far simpler for government to organise in a fair way for its citizens (think of the queus in Russia and Gorbachov crying when he sees a US supermarket). That said, such a system does have problems (for example, it is not necessarily help the needy that pay more for a product but the rich, which seems unfair).

Given that we have opted for a market economy we need to regulate it in a way that the benefits outlined above are achieved. We need to encourage firms to be efficient and to pass on their savings to consumers (there are other kinds of efficiency that I discuss in my thesis but this is probably the easiest one for you to argue). You are right that, in theory, it is better to have an efficient market mechanism and then redistribute afterwards if we think there are unfair outcomes. We do this with unemployment benefit, the NHS, free bus fairs for the elderly, etc. The problem is that the system is not static and so as soon as you start redistributing then you undermine the efficiency of the system. I note in my thesis that this means that economists often end up arguing that we should not redistribute later, or they try to restrict then.

Having said that (1) I am not clear in my mind why they think that the Draft Constitution changes anything about this mode of market economy (the implication being that it is ok at the moment, but the draft constitution will make it worse, unless i miss their point). We talked about this and the main section of the Treaty remains unchanged. In any event there are already 7 policy linking clauses in the Treaty (articles 6, 127(2), 151(4), 152(1), 153(2), 159 and 178 of the Treaty. Similar points are raised by rules, such as Declaration 29 to the Amsterdam Treaty on sport, which may try to achieve a similar end) which, in my view, demand that other policies are taken into account in competition law, and thus is it really right to say that the Treaty is just pure unadulterated capitalism? I also think that the hierarchy of the Treaty moves in this end too, see my thesis Chapter Two, section 2.

(2) There may be an argument even that the Draft Constitution undermines the economy even more than today in fact. That is because of article III-1, "The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account…" This may mean that one needs to distort competition even more away from efficiency goals towards all other EU objectives. Having said that in my thesis I argue that we are already at this position, but the argument is certainly easier with this clause. Although articles III-4 and III-5 preserve specific policy-linking clauses too.

(3) if they argue that the current system is also bad, then i suggest that they are just reading the treaty wrongly. It may be that the practice of applying the treaty is not great at the moment, but we have all the tools for blending competition policy and other policies, see above.

(4) The main problem with their argument though, attacking it on its face, is that if we are to distort competition using industrial policy then we (my which i mean government, the competition authority or agencies like that) must be able to predict which industrial policies will be successful, otherwise we waste taxpayers' money on this. I talk about how bad this was for Korea in my artickle in World Competition (Vol 7 [2004] issue 1) which you can get on the internet. Why not allow companies to take these risks and risk their (as opposed to taxpayers' money) if they get it wrong. Also note that they are probably better at predicting the successful strategies than governments that are far removed from all the relevant markets. They will probably cite airbus to you as an excellent case of industrial policy. In fact that has so far worked out well, but it has cost also. We will see how it fairs when it no longer gets eu subsidies.

“Stalin” vs. “Mickey Mouse”

This blog-entry is a shorter version of a paper presented as part of an exchange with Euan MacDonald at the Legal Theory and Philosophy Group-Fiesole (San Domenico) in June 2004. The title of the original paper was, “A science of International relations as a challenge to normative conceptions of international law: Realist Theory of Henry Kissinger”

This blog-entry presents a response to the challenge made recently by Scott in his “The Limits of International Law" by Goldsmith & Posner” . The intention of this blog-entry is, like that of Rapahel’s “More on The Limits of International Law” to elaborate more on the idea of rational choice study of international law. To be precise, I will not directly refer to the theory of rational choice, but, inspired by it, offer another, similar, framework to analyze and study the international arena. I will start off as Stalin but end up as Mickey, or Goofy, some would say.

The main objective of this blog-entry is to challenge the normative theories who consider the international law as being ultimately justifiable by a normative root (modernist or post-modernist same difference). To achieve this goal I will offer an alternative approach, advanced by Henry Kissinger for example, who suggests looking at international law and international order, as a purely scientific discipline that operates within a given set of parameters (i.e. the number of major international players, the availability of resources, the nature of the interplay between the domestic and international sphere for a given international actor etc.). According to the Science of international relations (law) the normative structure of the international law is absolutely contingent not universal.

This does not mean that the science of international relations presents a crude theory deprived of any, hidden normativity. There is something, intrinsically valuable in maintaining the status quo, aiming at power equilibrium, whatever the costs.

Peace can be defined as the normative goal of the international system. Peace is not perceived as a mere avoidance of war (or peace with a small "p"), rather, Peace is marked by certain principles that are not universal but acknowledged within the context of the particular international order. Such understanding of peace is motivated not so much by the conscious moral determination to end all kinds of violence (e.g. Pacifism, religious or secular) but by the action of the states who further their selfish interests, and in this process inevitably strive at achieving the equilibrium. The normative ideall is thus built on the scientific understanding of how the system actually opperates, not deluting itself with the idea of being able to change the nature of system's operation. So defined, science of international relations is not very different from Posner’s and Goldsmith’s idea, since it indirectly recognizes the existence of “coercion”, “coordination” and “cooperation” as regular mechanisms defining international legal order.

The major question of international law (as any law really) is “what can make authority legitimate?” Some believe in universal formula for legitimacy. Others, like Kissinger and the Science of international relations, or possibly Posner and Goldsmith, do not. Legitimacy needs to be generally accepted by all the major powers and it is not to be confused with a quest for peace nor justice. Legitimacy, in the science of international relations is an international agreement about the nature of workable arrangements, permissible aims and methods of foreign policy. All major powers agree about the basic framework of international order so that no state is dissatisfied with it. A state not satisfied with the nature of the order might decide to cure its frustration by embarking on a revolutionary foreign policy. One that decides to proceed in such a direction does not respect the agreed legitimacy.

Principles agreed upon in the international arena within a particular historical framework are to be combined by the system of balance of powers (international equilibrium of power). In such a system, wars still occur but they are fought in the name of the existing structure. Peace that follows is a better expression of the ‘legitimate’ general consensus. To take the example of the period Kissinger’s book is concerned with (Post-Napoleonic Europe 1812-1822), general mark of legitimacy was conservativism, in the sense of prevention of social upheaval not because of some ever lasting universal principle but for the fact that it was the common denominator of the group of major powers forming the Holly Alliance that defeated Napoleon. The point of the system of equilibrium (de facto multilateralism as opposed to institutional multilateralism of the post WW II, until Kosovo, system) was not only about marshalling a superior force but also by obtaining a voluntary submission to his version of legitimacy. This system is comparable, as Metternich would say, to the spider web, that is capable of sustaining light attacks but not a gust of wind, the wind blows away its legitimacy and then usually the equilibrium.

Moving from the metaphor of the spider-web and the wind to the concrete example of international order the greatest threat to the Kissingerian notion of peace is the rise of a revolutionary power that does not respect the set rules of the game. Whenever there is a power that considers the international order (the structure of the equilibrium) or the way in which it is legitimized, oppressive, relations between that power and the rest of the international actors will be revolutionary. Revolutionary power usually wishes to pursue its interests outside the realm of the system convinced in its dominant position. Or the system itself is at stake and what is in place is a revolution in the international affairs or a simple adjustment of differences is experienced. During the initial period after the first claims of the revolutionary power are made and first actions taken, due to the mixture of wishful thinking optimism, other states are often unavailable to correctly understand the situation they are facing (e.g. in the case of Kosovo 1999). Stability prevents others from understanding that the power rising is in fact a revolutionary power because they have the tendency to treat its action as a mere tactical adjustment within the established legitimate order rather than the slow destruction of such an order. By the time they realize they are dealing with the revolutionary power the old structure of the order is already destroyed and its legitimacy perverted. To be more precise the first victim of the rise of the revolutionary power is usually the legitimacy of the old structure of the international arena (e.g. in the case of Kosvo, International law engineered at Yalta).

Is the present structure of the international law explicable by the method of Science of International Relations? Arguably, it is.

The outlawing of war as a legitimate instrument of international politics since the Kellogg-Briand Pact 1928 and the article 2 of the UN Charter has inbuilt into the structure of international law a strategy of appeasement of the revolutionary power that is bound to appear at some point. Namely, the powers respecting the equilibrium legitimized by the present international law will seek not to resort to an open-war as the strategy of international involvement. The revolutionary power, as the example of Bush’s and Clinton’s US shows, will seek to on one hand consistently undermine the legitimacy of the order and on the other will try to justify sticking to the article 2 of the UN Charter. By re-interpreting the international customary law etc. However, the old international legal system can be re-intepreted only to a certain point, like when making a pizza, their is only ever so much you can pull the pastry until the part that you are holding brakes off...

The case of Iraq 2003 (arguably already that one of the NATO intervention in Kosovo 1999) presented a serious blow to the WW II International Order. US can be described as a revolutionary power willing to dismantle the equilibrium. Are we thus, heading towards a catastrophe or the recreation of the new equilibrium?

For those who have a normative understanding of international law, for "Mickeys", the occurrence of Bush’s Presidency (arguably Clinton’s also, as far as foreign policy is concerned) is indeed a catastrophe. For those who espouse Posner’s and Goldsmith’s view of international law (or that of Science of International relations) it is just a natural move towards the reassertion of the equilibrium. Nothing to worry about, that is how things work.

Interpreting the current international developments from the perspective of the science of international order one can recognize two possible outcomes. A pessimistic outcome by which the rise of the revolutionary power will ultimately lead to the creation of such a situation were an al-out conflict with the grouping of status quo powers would be inevitable. On the other hand, in an optimistic outcome the US policy of destruction of the present international order and its legitimacy (international law) would lead to the new equilibrium. In such a situation US would have to try to accommodate its view of legitimacy of the order to the demands of other international actors. Such an optimistic outcome would probably not seek to recognize the legitimacy of the new equilibrium within the realm of traditional international law but in its reformed version or in a completely new structure.

The moral outrage a consistent tendency to rule and construct the international system according to the scientific model Kissinger suggests is oblivious of the negative effects the international order trying to construct the world on the basis of a moral dictum. An apparent morality of the international order always presented a historically contingent legitimacy of the given order. Even if the international system whose goal would be to advance the logic of peace seen in absolute Kantian terms was to be instituted, the efforts of the normativist philosophers in the field of international relations would be of no avail since the most ruthless member of such a system will benefit from the situation and impose its proper interest on the rest. Or at least "Stalin" argues so.

In Kissinger’s system babies might die, freedom and universal principles can be crushed but the world tends to remain relatively stable (just to mention that Euan was particularly impressed by this passage of my paper). Normative theory is futile and potentially dangerous because it ignores the scientific nature of international relations and it leads towards the reification of present international order, potentially leading to a complete disorder.

Nevertheless, we continue to hate the cold-blooded calculators who simply act as an integral part of the complex historical machine of international order. We still opt for a normative Mickey Mouse although we can recognize the potency of Stalin’s, Kissinger’s or Posner’s arguments.

What is the international law supposed to be: a mere description of how things actually go in the international arena, a standard slightly superior to the situation on the ground, or an ambitious set of norms?

For further reading about what I decided to brand as Science of International Relations see Henry Kissinger, A World Restored: Metternich, Castlereagh and the Problems of Peace 1812-1822, Phoenix Press, London, 2000. This book grew out of his PhD thesis.

Thursday, April 21, 2005

Interview with Blair

The Independent today has an interesting interview with Tony Blair, on the campaign trail preparing for elections in May. The whole thing is worth reading, as, although relatively short and sympathetically written, it ranges widely over topics such as Iraq, the EU Constitution, pulic trust, his relationship with Gordon Brown (the Chancellor) and his views on the other major parties. There were two points, however, that I wanted to flag.

The first concerns Iraq. Blair will never admit that he got this one wrong - I don't think he actually believes he did in general, although he has acknowledged some strategic errors in presentation. However, his tone is overwhelmingly conciliatory: he respects those who disagree with him, and hopes merely that they understand how hard a decision it was to take. In an intriguing passage, he goes on to state that:

It was the threat of force that got the inspectors back in. Now imagine what would have happened if I had backed away and that the Americans also backed away and the conflict had not happened. Saddam would still be in charge and immeasurably strengthened and there would be no further possibility about enforcing the community's will in regard to UN resolutions.

"Some will say that would have been better than having the conflict. That's a perfectly understandable view. I only ask people to understand there wasn't a middle way."

We must question this argument. Is it really the case that our only options were a) take the action we did, resulting in the removal of Hussein and the deaths of tens of thousands of innocent civilians, or b) do absolutely nothing, strengthening Hussein's grip on power and utterly castrating the attempt to hold him to account for WMD? I have my doubts... As I have suggested on here before, these simple, dichotomous arguments tend to be more strategic than honest, presenting us with none of the nuance that an evaluation of the actual situation demands, and removing many reasonably available options from discourse.

The second is his reaction when questioned on the UK referendum on the EU Constitution - will there be one even if the French vote "no"? Blair's response is decidedly evasive: "There will be a referendum in Britain provided there's a constitution". Given the current UK opinion polls on the subject, I suspect he'd be even happier than Raphael if the French reject it...

Premption, Conflict, Development and Democracy

We are all now, whether we like it or not, becoming familiar with the controversial Bush doctrine of pre-emptive self-defence. However, in a recent article in The Guardian, Naomi Klein argues that things have taken a surprising further step: that the Bush administration has now moved into the realm of “pre-emptive reconstruction”.

This curious title is how she chooses to style the setting up, in August of last year, of the Office of the Coordinator for Reconstruction and Stabilisation, whose task it is to “draw up elaborate ‘post-conflict’ plans for up to 25 countries that are not, as yet, in conflict”. Thus, the task of the Coordinator is to monitor the situation in a number of states perceived as “high risk”, and to assemble something along the lines of a rapid response reconstruction team, ready to be parachuted in the minute conflict subsides sufficiently, and who will be armed from the outset with a detailed and, crucially, locally tailored plan of action.

To many, this may sound like responsible forward planning. The US Department of State describes the new body in the following terms:

The Office of the Coordinator for Reconstruction and Stabilization (S/CRS) will lead and coordinate U.S. Government planning, and institutionalize U.S. capacity, to help stabilize and reconstruct societies in transition from conflict or civil strife so they can reach a sustainable path toward peace, democracy and a market economy.

There will be many, however, who, like myself, have grave doubts about such a project. This is not, of course, to argue that international aid, and US aid in particular, is not sometimes absolutely necessary in post-conflict situations. However, questions must be asked (in the light of fairly bitter experience) about the pre-arranged role of certain private companies and the size and value of the contracts they will be awarded; about the criteria through which the US will decide which states are to be monitored; and, perhaps most importantly, if such plans are being drawn up with a particular view to states in which the US has an “interest” in intervening itself, to name but a few.

The statement alone, however, hints at a couple deeper, linked controversies that are only now beginning to come into the mainstream of international legal discourse: the first is the troubled relationship between concepts such as democracy and market economy; the second concerns the role of market economics in development projects, and the link between these and conflict.

Concerns over the relationship between democracy and market economics have been thrust to the fore due to the prominence of the debate over the “democratic entitlement” in international law. This “right to democratic governance”, most notably promoted by Thomas Franck and Anne-Marie Slaughter among many others, would mean that international law guarantees, for all states and peoples, a certain basic minimum of civil and political rights. Indeed, in most of the literature supporting the right, the proposed basic minimum involves: voting rights, property rights, market economy and the rule of law.

I do not have space here to go into this debate in any detail, although there is much that is interesting in it, from arguments based on Kant’s “Perpetual Peace” through to the issue of “intolerant democracies”. However, it is important to note that many critics of the right have suggested that focusing on such an impoverished array of basic components means, simply, that democratic politics is there to facilitate and support the growth of the free market, rather than, as liberal ideologues would have us believe, the other way around. The very “thin” conception of democracy favoured in this context, and the fact that the market is viewed as of equal importance to it, risks merely legitimating or normalising societal structures that are deeply unjust instead of genuinely empowering a people to change it: much of social and economic policy is simply removed from the scope of democratic deliberation (in a move thoroughly helpful to powerful multinational corporations). Instead, these critics argue, we need to focus on encouraging a model of democracy that, to paraphrase Susan Marks (whose book The Riddle of All Constitutions (2000) provides an excellent critical overview of this debate), ensures that democracy is about genuine self-rule, rather than simply legitimating a new set of procedures for rule-by-others. I have written more on this subject (a few years ago now) here.

The second, and obviously linked, controversy is centred on the role of the market in development and reconstruction efforts, and the ways in which these may actually serve to encourage conflict, rather than avoid it. A recurring theme in this debate is that of neo-colonialism: the idea that international development programmes, in particular those driven by international financial institutions such as the IMF or the World Bank, create a new colonial class and much economic hardship in many of the countries in which they operate, factors which can in themselves, it is argued, contribute to the development of conflict situations.

One recent(ish) book that has dealt with this matter in considerable detail is Anne Orford’s Reading Humanitarian Intervention (2003). In it, she is at pains to point out that, in places where such intervention was deemed necessary, such as Yugoslavia or Rwanda, the international community was already deeply involved in development programmes. Many of these had taken the form of the World Bank’s economic “shock therapy” and “structural adjustment” programmes, which make crucial loans dependent upon certain often difficult economic reforms, that can contribute to widespread economic hardship in the short-term – which can, of course, easily become social and political instability and unrest. Orford claims that, in the case of Yugoslavia, the World Bank even scrupulously removed all social and political factors from its predictions of what the effects of its demands would be, in order that they remain rational and “scientific”. This does not seem a responsible manner to assist with the reconstruction of fragile societies.

The colonial metaphor – if it is indeed only a metaphor – also takes on resonance when considering the world of the development professional community who must relocate to the country with which they are engaged. A new dominant class is almost instantly created – hugely wealthy and dripping with status symbols that the locals in such countries simply cannot even aspire to in most cases. Certainly, few if any of the well-paid jobs are held by members of the local population; and yet much of foreign aid money seems to go to keeping a certain professional class in the style to which they are accustomed. Orford even recounts instances where land, at a premium for agricultural use, with a significant percentage of the population lacking the basic land from which to subsist, was commandeered for building offices and villas, so that professional representatives of the international development community could come to the assistance of the local population. With such examples of crass insensitivity, it is small wonder that a degree of resentment exists.

A couple of points need to be made in conclusion. Firstly, a blog entry does not provide sufficient space to deal with complex issues such as these in anything like satisfactory detail (a book can just about manage it). As such, I am aware here that I have used a fairly (or, perhaps, unfairly) broad brush. I do not mean here to criticise the development community as a whole, and nor do I wish to remove any of the blame from those who actually committed atrocities in conflict situations such as Yugoslavia and Rwanda. However, if the international economic and development programmes that go hand in hand with the type of “democracy” that many in the mainstream of the international legal community support today in any way create or support the societal conditions of possibility that allow for such widespread atrocities to occur, as seems to me to be the case, then the time is certainly right for a radical rethink. Certainly, we must, at the very least, be wary of the moral force claimed by, for example, “development” or "reconstruction" programmes, “humanitarian intervention”, and the Office of the Coordinator for Reconstruction and Stabilisation.

A Public Debate On the European Constitution

The surprising French resistence to the European Constitution has triggered a number of discussions and round tables. On 20 April, a public initiative on this topic was organised at the European University Institute, Florence. The aim of this debate was to understand the reasons of the French threat to vote no to the European Constitution at the forthcoming referendum, on 29 May.

It is particularly difficult to do justice to this kind of debates without judging them through one's own prism of values. Few people, although very committed, were for the No. The remaining majority were for the Yes. Now, as it was rightly pointed out, there is a great variety of different Nos/Yes, that is, the reasons for voting in a certain direction in a referendum on a constitution are multiple. For example, supposing that France and the UK will say No, their Nos will have completely different, if not opposing, reasons.

Nevertheless, it is important to map, even if in a somewhat stylised way, the different Nos, and then rispond to them. To start with, I'll eliminate arguments coming from the extreme right, which claims itself as nationalist and anti-european. Its position is clear, and it is certainly not an European Constitution that would make them change their minds.

The positions I am concerned with span from moderate to extreme left wing, and they declare themselves as pro-european. They maintain, however, that the European Constitution is not a good step towards a better Europe. The first, less articulated, point of view comes from what I shall call the Vox Populi. People, it is argued with a purely rethorical device, are afraid of this "new liberal Europe". They cherish their "droits acquis"/ social standards, and they do not want to lose them. Nor do they want to share them: what if polish workers-- it has been argued--invaded France and, as a consequence, compete with local workers thereby depriving them of their high social protection?

Coming from what defines itself as a pro-european, leftist, standpoint the latter position has something deeply perverse. Not only it is incredibly nationalist, but it is also strikingly egoist, hence completely opposed to any idea of solidarity between individuals and between people. We want Europe provided that it means only more social protection!, would be the motto of this position. But the crucial question is, social protection for whom. Their answer would be: social protection for us.Where 'us', means French nationals. But not all of them, only the lucky one who have a social protection coming from their status as a worker (yet, I am sure that many French who do not benefit of a fully fledged social protection would happily trade-off less protection with more competition on the job market. Any sensible would in their position: I'd rather be employed and protect myself, than be unemployed and hope for an external protection!)

A second, more refined, standpoint can be defined as Euroimpatient. For them, the Constitution does not dare sufficiently. They want to see a brand new Europe, where tensions are sweeped away, social policies are carried out and enforced effectively, and where Europe can propose, and impose, its noble humanitarian concers to the rest of the world. Since the Constitution does not do all this ( Assuming that a Constitution can transform dreams into realities), they suggest a temporary arrangement whereby a group of virtuous pioneers (France and Germany and god knows who else) would go ahead establishing a reinforced cooperation on matters such as tax, defense, social justice etc. Of course, all this would be in the respect of all other countries: the coalition of the willing is not a closed family! Whoever wants to join the French TGV is very welcome to do so (even Turkey or Georgia). Isn't this beautiful and very innovative?, they wonder astonished.

Notwithstanding the ideal, which is surely noble from their own (individual) point of view, many doubts arise as to the desirability of such a view. This is best explicated in terms of the tension between the recent enlargement and the old federalist ambitions. Logically, it is not possible to be heartfelt defenders of the enlargement and proposers of rapid advanced integration amongst few, highly selected (only few member state can afford this luxury, provided that they want), members. Moreover, Euroimpatients fail to understand the tension, possibly even more problematic than the previous one, between economic growth and distribution of wealth. Even though ex-communist countries were champions of equal redistribution of wealth, they did not last very long because, after a while, there was nothing left to distribute. To be "good Robin Hoods" we still need something we can distribute. The only way to do so is by producing goods and services; the best way to produce goods is through a market where the competition is free and undistorted (I'd wish to know who wants a market where the competition is unfree and distorted). Thus, the problem with Europe cannot possibly be its stress on the common market. If anything the common market, when duly regulated, is a pre-condition of fair re-distribution.

Euroimpatients fail to acknowledge the sacrifices that newly enlarged countries went through in order to become part of the European Union. They haven't even started profiting of the advantages of the Union that they are told: Run faster lazy ones, we don't want to be burdened by your lack of willingness to cooperate, and accept our higher standards of integration! If this is solidarity, then freedom means slavery, as in the famous Orwellian line.

Wednesday, April 20, 2005

Benedict XVI: Against The Secular Dictatorship in the EU?

Yesterday, the Catholic world got the new Pope Benedict XVI. Joseph Ratzinger, the “Enforcer”, the “Inquisitor”, the “Panzerkardinal”, the “God’s Rottweiler”, the “Cardinal No”, the “Grand Inquisitor”, the “Big Bad Wolf of the New Inquisition”, “Dart Vader of the Catholic Liberals” got elected 265th Pope. Radical Conservativism of the new Pope indicates that his role will most likely be extremely divisive for the Catholic Church and possibly harmful for its historical mission. Yet, Benedict XVI got elected after only 2 days of the Conclave and reportedly 4 ballots, obtaining 2/3 majority of the College of Cardinals. Is the fact that he manage to acquire more than 2/3 of the College of Cardinals to suggest, that the new pope will be less extreme than feared? Can the Pope Benedict XVI forget the conservativism of Cardinal Ratzniger?

Spiritual names chosen by the Popes are not random and usually indicate the nature of the future Pontificate. The fact that Ratzinger chose, the name of Benedict XVI may indicate two things. First, Benedict XV reined during the years of the WW I, and is usually perceived as the Pope of Peace, simultaneously, however, he was a stringent defender of the last great Catholic Empire, the Habsburg Monarchy and a rather bitter enemy of the Orthodox Churches. Second, Benedict II is considered the Patron Saint of Europe. Many believe that Ratzinger wishes to continue this legacy and concentrate on “saving” the European Continent for the Catholic Church.

For a long time, Ratzinger has been the right hand of John Paul II. According to many, Ratzinger represented the “dark”, conservative side of Woytila’s Pontificate. His rigid, almost insulting views of Ecumenism, regarding the Catholic Church being the “mother”, not “sister” as Wojtila claimed, of other Christian Churches, had certainly alienated the Protestant and Orthodox Churches from the inter-religious dialogue, and made highly unlikely that Benedict XVI will fulfill John Paul II’s dream to visit Russia and Serbia for example. Ratzinger is not only a conservative in the doctrinal sense of the word, but, unlike John Paul II who at least courted with progressivist left wing social justice movements, a bitter foe of movements within and outside of the Church preaching social equality, more distributive economic policies etc. As John Allen Jr., correspondent of the National Catholic Reporter from Vatican, in his new book “The Conclave” claims, Ratzinger heads the so-called “Border Patrol” informal Church Party as far as internal matters of the Church are concerned, and is closer to the “Integralist” informal Church Party, rather than to the “Social Justice” Party, as far as worldly matters.

Benedict XVI will not simply represent the continuity of John Paul II’s reign. If he were to embark on this route he would have chosen the name John Paul III not a different one, as he did.

There are two strategies in which different actors within the Catholic Church aim at expanding their influence in the world, arguably, using the EU terminology, one of enlargement and one of deepening. John Paul II was the representative of enlargement, rapid, evangelization, compromise with secular ideologies and regional cultures. Ratzinger is the representative of deepening strategy. He is a “rigorous defender of the Catholic identity”, relying on Christ’s parable of mustard seed, “great things will eventually grow from the tiniest seed…Christianity may need to become smaller and less culturally significant to remain faithful.” In this way, with a strong identity, it will raise in its full splendor some time in the future. One just needs to be patient and Ratzinger seemingly is.

How is this strategy to be interpreted in the case of the EU? Many fear that Ratzinger, a proclaimed enemy of EU’s enlargement into Turkey and a fighter for “re-Chrisitanization” of Europe will use the possible failure of ratification of the EU Constitution to mount a violent “integralist” campaign for a more explicit insertion of Christian (Catholic) values in the EU Constitution and that he will exert the pressure of the Catholic Church on the EU’s politicians to abort the project of enlarging into Turkey.

This is, however, not necessarily true, we are maybe to face an extremely “shy” pontificate externally and a rigid doctrinal “police state pontificate internally”. One thing is certain, Ratzinger, Benedict XVI broke the rule that “who comes in as Pope goes out as a Cardinal.”

Tuesday, April 19, 2005

More on "The Limits of International Law"

A little while ago, Scott M. Sullivan wrote a post on this blog about The Limits of International Law, a book by Jack L. Goldsmith and Eric A. Posner. After describing the content of the book and indicating that he agrees with it, he issued a challenge to his co-bloggers :

“I challenge my co-bloggers (or any other commentator) to refute them. My point is not that these ideas are infallible, but that they are much stronger than you might think.”

I can’t meet that challenge for two reasons. First because I know next to nothing about international law, and more importantly because I agree with him: this book does seem to be very interesting. In fact this type of explanatory approach which interprets the behaviour of actors as the result of strategic actions is used in other fields of legal academia. J. Elster has applied rational choice theory, of which he is a master, to several areas of constitutional law. Under a different terminology, the same type of approach it developed by M. Troper a French legal theorist and constitutional lawyer. Several books, published by his students, explain points of constitutional law as the result of strategies put in place by public institutions seen as rational actors pursuing an institutional or personal interest. At first M. Troper’s position was seen as very radical and was marginal. Over the years he has been able to convince a large part of his colleagues and his views now tend to become main-stream.

J. L. Goldsmith and E. A. Posner point out the differences between their approach and that of the classical international law scholarship, on one side, and that of International Relations, on the other. They need to make a strong claim because they are calling for a major change in methodology. And indeed they do: they believe that the programme of research pursued by classical international law scholarship is a dead-end. This position is excessive. It is true that the dominance of classical, formalist, legal academics is an obstacle to a sufficient understanding of how the law works. But dominance of any type of methodology would have similar results. We can simplify things by opposing two points of view on the law: an internal one which takes the law seriously and an external point of view which takes Power, ambition, self-interest seriously (as explanatory factors of the law). The internal point of view, which is the one used by classical International Law scholars is necessary for two reasons: 1/ it provides a normative account of the law – which the external point of view does not get into – and is therefore useful not only to understand the law but mostly to judge it, to interpret and apply it; 2/ it provides an alternative explanation (one which is further from reality I believe, but still valuable) of the law. J. L. Goldsmith and E. A. Posner give the bad man’s account of the law, a cynic, and realist account while classical scholars give the good man’s account, the cartoon, the Walt Disney account. As most men who make international law are neither Stalin nor Mickey Mouse, it is good to have both paradigms to approach what probably goes on in reality.

Sophie Germont

THIRD WAY OR.... CUL-DE SAC? By Sophie Germont

This blog entry is written by Sophie Germont, an expert EU lawyer from the European University Institute.

Following Srdjan's contribution on the diversity of French "No" voters, I will focus on the "progressivist no" that Raphaël defended hereunder. My position is that the "progressivist no" is, as much as the results of the 2002 presidential election, a symptom of the deep identity crisis within our socialist party (PS). Before exploring the arguments of the supporters of the “no”, it might be useful to precise that only a minority amongst PS officials opposes the draft Constitution (48% I believe). The objective of this discussion is thus to analyse the “progressivist no” position advocated by this loud minority and largely echoed within French society.

As a French leftist, I was naturally tempted by the "no". I have listened and read with great interest the arguments in favour of this "electroshock". The socialist "no” voters oppose the Constitution for being a neo-liberal project, insufficiently democratic, social and deprived of genuine federalist ambitions.

First, it is quite ironic that the PS, who showed much enthusiasm about the ratification of the most hardcore free market EU Treaty some years ago (You will have recognised the Maastricht treaty) opposes the improvements offered by the draft Constitution... who was the prime minister at that time again? Edith Cresson (PS).

The argument that the Constitution is a neo liberal project shows both bad faith and contradiction. How can anyone who seriously read the Constitution and know a bit about economics call it a neo liberal project? ! Most of the Treaty provisions are unacceptable for neo liberals. Most importantly, our provisions on competition contain far too many exception rules in their view. The special status granted to services of general interest under the Constitution is just counter-efficient in neo liberal thinking. I would thus simply call the Constitution a liberal project.

More seriously, let us remember the “Jospin times”, when Blair happily gathered with Schroeder, d'Alema and others to inaugurate the revolutionary "3rd way". Jospin refused to join, claiming that the French socialists would persist in fighting free market economy. The obvious contradiction between this claim and the actual orientation of the French and European Economy certainly played a role in April 2002. The PS is perfectly entitled to oppose liberalism and stay out of the "third way" but what do they offer as an alternative? Which project lies behind the "no"? As far as I understood, none. In 2002, I hoped that the French "no" to our socialist party would help for a redefinition of PS 's thinking, but we are still stuck at the same point, between the 3rd way and ....

As long as the PS does not offer an alternative to free market economy, the liberal character of the Constitution can not be retained as a valid argument against it.

Second, numerous “no” voters claim that the Constitution would not be democratic or social enough. Before exploring these issues, it is crucial to keep in mind that we are voting on the ratification of an international treaty. Thus, as far as democracy is concerned, our ambitions shall adapt to this specific context. In particular, the prevailing role of the Council of ministers over the Parliament is intrinsically linked to the sovereignty principle, dating back from the Westphalian peace. Does the PS wish to question this principle? I believe it does not. They want more co-decision procedures. Well, this is what the Constitution offers. "Progressivist no" voters also fear a stiff revision procedure. As Lorenzo pointed out, the Constitution makes it easier to amend the Constitution as it was under former treaties.

As far as EU social policies are concerned, "progressivist no" voters want harmonisation of Tax Policy and Industrial Policies. This is of course, as Lorenzo fairly stressed, to freeze competition from the East. Hearing Laurent Fabius, I believed that the draft Constitution made it impossible to lead any pan-European industrial policy. I was obviously wrong (or misinformed): I would advise everyone to read Art. III-180 of the Constitution to get this point clear. On the contrary, Fabius is right to argue that the draft treaty requires unanimity for tax harmonisation. First, it seems paradoxical to reproach the EU a "democratic deficit" and then, to claim that it should be entitled to decide on our taxes by qualified majority. Second, did Mr Fabius ever hear of Magna Charta? This is the cornerstone of the British Constitution, do we really expect any British government to give up on that? This would show a weak understanding of our partner, despite so many years of "entente cordiale", sad, really...

Finally, I was very sensitive to "progressivist no" arguments claiming that the Constitution watered down federalist ambitions. In particular, provisions on closer co-operation were crucial for those who wanted to go further. This is where the most shameful arguments appeared on the side of the “no”: I have read in numerous French newspapers that any closer co-operation would require a unanimous authorisation from the Council of ministers. This is simply a lie. I concede that the chapter on closer co-operation is tricky to understand for non-lawyers, but the Council shall definitely grant authorisations by qualified majority.

It is true that Joschka Fischer's hopeful call for a federation in 1999 seems far away. But when we think twice about it, this is by no way due to the Constitution but it is a necessary transitory period following our biggest enlargement ever. Would the PS have anything against enlargement? Would they imply that solidarity is only worth between Frenchmen?

I wish I would agree with Raphaël that a ""progressivist no" constitutes the rebirth of a European left wing movement", but I do not believe that a pan-European left wing movement ever existed. As far as our PS is concerned, I'll only believe in rebirth when they finally offer us a leftist thinking which is workable in contemporary Europe.

Monday, April 18, 2005

The end of Berlusconism

Italy is the country of melodrama par excellence. Today, in the Vatican, the Archbishops from all over the world are deciding who will be the new Pope. At the same time, in Rome, Berlusconi is living the last day of his government. A law of perfect simmetry would command that the election of the new Pope coincide with the end of Berlusconi. But this is a matter of contingencies, and it does not matter so much. At the end of the day, we can safely establish an ideal parallel.

The parallel is clear as Berlusconi considers himself as the Pope of the lay italian society. He's the pontiff of us all, in his own philosophy, as much as Bush is the pontiff of Americans [with the difference that Bush believes to be the Pope also in religious matters]. He is the one. The one blessed by god. He is the best, the richest, and the tallest (even if he is only 5 feet and a small banana). He knows about everything, and other people are simply wrong if they disagree with him. Of course, judges too are wrong if they interpret the law in a way that is not favourable to Berlusconi. He is the law-maker, how can the law be against him?

For a while, Berlusconi's friends, and the majority of italian people, believed in Berlusconi. They believed that he could really save us, change us, create one million jobs, and, more importantly, he provided a model we could try to imitate (But, of course, nobody can be like Him). The truth is that since he is prime minister ( obviously not primus inter pares), his coalition has lost an increasing number of votes. The last episode of the saga, the regional elections, saw a defeat 11 to 2 of Berlusconi's coalition.

As a result, the faith many italians had in Berluconi faded away. His friends betrayed him (Follini, the president of the renewed Christian Democrats {UDC}, left the government along with his party members. His miracles did not happen: Italy is still Italy, beautiful and slightly damned.

In short Berlusconism, his philosophy, is dead! Will he be able to resurrect? I don't think so; he is simply like us, after all.

Friday, April 15, 2005

French Referendum: Internet debate

I found an interesting site on which you can find different discussions, articles related to the Referendum on the Treaty Establishing a Constitution for Europe. To find out more about it go here.

Thursday, April 14, 2005

My Tuppenceworth...

I wanted to give a few of my own thoughts, briefly, on the debate that has been raging here for the last week, as someone who has not yet made up his mind on how to vote in the forthcoming election. It seems to me that there are powerful arguments available on both sides: indeed, this has been amply demonstrated by the posts on here on the issue. A few points seem in order.

Firstly, I’m not at all certain that Srdjan and Lorenzo do not take their emphatic arguments for a “yes” too far. In his last post, for example, Srdjan suggests that anyone voting “no” is “unwittingly voting for the le Front National”; however, he then goes on to insist that a “yes” vote is not a vote for Hollande, Sarkozy, Chirac. This argument to me bears many of the hallmarks of the dichotomising impulse that political theorists have placed at the heart of ideological strategy: to reduce a complex situation into a simple yes/no choice, and to ensure that one of the options appears as unpalatable as possible. In the recent past we have seen such arguments used most prominently in terms of the use of force: with regard to the Kosovo intervention, fror example, we were effectively told that we could either bomb Serbia or appease Milosevic and become complicit in genocide. Any more nuanced responses to what was, after all, an extremely complex situation were thus strategically removed from discourse. I acknowledge what Srdjan is saying when he notes that a referendum tends to make such dichotomies unavoidable; however, the result of the spin that both he and Lorenzo put on the choice is to effectively disenfranchise anybody with the kinds of concerns that Rafael and I share.

Secondly, I think that Rafael is quite correct to insist upon acknowledgement of the political, symbolic force of the term “constitution”; that is, after all, one of the reasons that it was chosen. This choice, it seems to me, was a strategic error: at a time when Europe desperately needs new institutional mechanisms to deal with the fact that we have ten new members (and soon to be more – Parliament voted today to allow Romania to join), these measures have been included in a package that was always going to be controversial if only because of the title “constitution” itself. However, it is something that now needs to be factored in to the decision on how to vote on the constitution, particularly for those of us in favour of Eastward expansion.

Lastly, however, I think that Lorenzo is quite correct when he argues that France does not have a monopoly on the interpretation of leftist values. Rafael, for me, makes the same mistake as Srdjan and Lorenzo when he makes his strong claim that anyone holding radical left wing views cannot vote yes to the constitution. This is for two reasons: firstly, as he has acknowledged, a polity the size of the European Union may have sufficient economic and political clout to introduce radical welfare reforms and redistributory measures on a scale and to an extent that simply would not be possible within the confines of a single nation state. Secondly, as both Lorenzo and Srdjan have pointed out, the failure (both theoretically and practically) of Marxist economic meta-narratives have meant that the free market must be incorporated into leftist thinking – and there is, as yet, no uniformly agreed manner on the best way in which to do this. Mature radical leftism today must amount to more than a simple “no” to the free market.

The issue of alternatives raised by Srdjan is also important. The key question has to be “are we more or less likely to see the sorts of redistributory measures that we want to see with or without the Union, with or without the constitution”. Rafael’s unspoken premise seems to be that there are grounds for hope that a “no” to the constitution will create opportunities for a more openly leftist political agenda to assert itself. I would be intrigued to hear his reasons for this: certainly, in terms of the current political climate in the UK, it strikes me as unpersuasive. Even in France, it seems unlikely: the left seems in utter disarray, as the success of Le Pen in the presidential elections illustrates, and the few notable successes they have had, such as the introduction of the thirty-five hour working week, are being steadily dismantled as we speak. To think, then, that a rejection of the constitution will lead to a more leftist political agenda coming to the fore strikes me as simply niave: it is in these terms that the call to vote pragmatically must be taken seriously.

As I said, I am as yet undecided on how to vote. One thing seems clear, however: the existence of this debate is extremely helpful, at the very least to those like me. I will remain, therefore, deeply sceptical of all attempts, from both sides, to argue that a certain political position compels either a “yes” or a “no”. The issues involved are much more complex than such an assertion implies; and there is undoubtedly considerable scope, as the debate on here has illustrated, for much “reasonable disagreement”.

French Referendum and Populism

Once again I wish to come back to the discussion on the French referendum on the Treaty Establishing a Constitution for Europe. Principally I am against referendum as a form of democratic deliberation. Since there is no chance that the people will actually go on and read thousands of pages of the European Constitution, the referendum is bound to bread political populism, where both proponents of the “yes” and “no” have only indirect and very limited political responsibility for the political agenda they advance. The only thing that will matter politically, is the overwhelming impression as to why the referendum failed and, I think and will try to elaborate on in this blog, the general message, if the French majority votes "no", will be nationalist and racist. Voting for “no”, you are, unwillingly voting for “le Front National” or simply expressing a protest vote against the government and its policies. Here, it is useful to remind, we are not voting for or against the government, but for a much more important project.

I still think Raphael Paour should consider the overwhelming political effect of the French "no" to the Constitution. It is not only, civil society left-wingers, close to his heart, that promote this agenda, but many other French politicians, with whom, Raphael, quite surely, generally disagrees. Let us briefly present their arguments.

Some centre-right politicians from UMP and UDF say no to the constitution, but also say "long live Europe". They do not want to vote for the Constitution because they do not want to see Turkey in the EU fearing that its entrance to the Union will seriously and irreparably damage the prevailing system of values in the EU. A “no” to the Constitution would give a chance to the French voters to express their opinion about Turkey’s entrance in the EU. They are, at least declaratively, not against Turkey’s membership because it is a Muslim country but because it is not geographically in Europe. In this way, they believe, “we are going towards a Europe that will have nothing political and that will simply be an area of free exchange of goods and services.” One of the two MPs, Riviere further argues “Turkey has nothing to do with Europe.” Riviere believes in the creation of the Europe-nation and Europe superpower and is convinced that this Constitution is absolutely not going in this direction. This is why he invites the French to vote “no”.

Communists are for the “no” argument because they reject, as Raphael Paour does, the neo-liberal Europe. What do they want? What is their alternative social and political project, it is hard to understand. Arlette Laguiller, from Lutte Ouvriere, a radical left-wing Trotskyite Party, is one of the strong proponents of the “no”. She criticizes the European project proposed by the current French President, government and Socialist Party, but she does not have an alternative, apart from some poorly elaborated proposals.

Some time ago, just to give an example, in a TV program Laguiller suggested a total nationalization of the French economy. When the journalist asked her, and I paraphrase, so ok you are going to nationalize these companies and the workers will continue producing what they produce and, say for example, that the people are not really interested to buy their product, what will you do, how will that company earn the money, how will the workers get their salaries? Laguiller, remained silent, but history did not, look at how the Communist experiment ended. This is not to defend neo-liberal capitalism but to expose political amateurs such as some proponents of the “no” vote in France. They might have their ideas right, in terms of social justice (at least I believe so) but they are dangerously utopian. Similar, irresponsible political agenda, threatens to hamper the EU future.

Le Penists are against the Constitution because they are against the EU per se. Le Pen screams “No to the Turkish Europe” and “no to treason, decadence and corruption”. For him this Constitution is wrong because it even more strengthens the idea of Federal Europe.

The problem with this referendum is that you can only say “no” but not also WHY NOT. With the political elections the situation, although imperfect, is somewhat better, at least after 4 years, if not satisfied with the record of the government one has the opportunity to vote no. In the case of the referendum, everyone will claim that it is exactly his position that brought the referendum down. Referendum is indeed a perfect setting for the protest vote. The strongest political entity will have the means and power to say that it is their position that won the majority of the votes for “no”. The civil society, vibrant in the pre-referendum stage, insufficiently unified, will be to weak to express their view and say that it is for their arguments that the Constitution failed.

The most fundamental feature of this Constitution that it is a result of a compromise. People criticize it from fundamentally opposing positions: because it is neo-liberal, because it is giving more power to the EU powerful institutions interfering with every aspect of the economic life in the Union (see the comment of EU-serf )because it is creating a Federal Europe and because it fails to do so, because it is white and because it is black etc.

This Constitution is leading towards the deconstruction of the nation-state. Parallel to this process it is slowly transferring the political discourse, or at least big parts of it, from the national to the EU level. True enough, EU is not as democratic as the nation-state, but it is going in that direction. This Constitution creates the possibility for the left-wing sensitive voters, like Raphael, to fight for the socialist Europe at the European level, since it is going towards the creation of a European wide public sphere.

There is another argument suggesting that Raphael and other responsible proponents of the “no” vote, should change their minds. Look at the example of Spain. Are the Spanish left wingers less left wing then the French? Are they less concerned by the social Europe than the French. No, and despite this fact, in Spain the adoption of the Constitution was a pure formality (80% for “yes”). The Spanish voted for the Constitution because of the perception that the EU membership brought huge economic to that country. The French will vote “no”, not really because they are against such Europe, but because they wish to express dissatisfaction against the French political elite, economic slowdown etc. Not only that they will not read the text of the EU Constitution but will pay very little attention to the deep aspects of the “yes” and “no” debate. It is important to remember that this vote is not the vote of confidence to the French mainstream political elite but a referendum for the EU Constitution. I think that the problem in France is that many political or social groups voting and campaigning for the “no” see this as their chance to make significant political gains. But this is indeed not an appropriate setting to indulge in these political operations.

Let us, however, leave the Constitution alone for a moment. Let us talk about the alternatives. Fine, the French vote against the Constitution and then what? The Dutch might follow, the EU Constitution goes to the dustbin of history and the current EU Treaty system continues to apply. A victory for the left-wingers? Not at all. Most of the legislation that they do not want to see adopted can anyway get adopted both at the national and at the EU level. The only thing they will achieve in this way, is that they are going to strengthen nationalist (Euro-sceptical) sentiments in Europe, and they will refuse to create the political Europe (or at least move towards its creation) that would help for their voice to be heard at the EU level, through the parliament. Voting “no” you vote for the present Treaty structure. Do you like Nice? No. Well, you are voting for it.

Indeed, one can criticize this constitution for many things but one has to propose the alternative and be always aware of the political reality. Are the proponents of the “no” able to, get their version of the Constitution adopted, some time in the future. No chance. Then think about your acts, politics demands responsibility, or at least I believe so.

Pragmatism in Politics against dangerous idealism (or dangerous protest vote) suggests you should vote “yes”.

If I were to vote for the same position with Le Pen, I would think twice.

It is important, to be able to comprehend the long term importance of the “yes” vote. It is important that voting “yes” you are not voting for Hollande, Sarcozy, Chirac but for a future that goes well beyond their lifetime. For that reason, dear (honestly not sarcastically) left-wingers, hold your nose and vote “yes” regardless of the political benefits this result would give to the present government and mainstream opposition.

For further Information about the Constitution see 1 and 2.