Latest International Scholarship

While our readership is clearly of the kind who is more than able to track down interesting new scholarship on its own, I thought I would plug a few new entries worth checking out at SSRN. (Tip to Legal Theory Blog)

INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) by Philip Pettit.

Social ontology does not drive political theory as axioms drive a theorem, but it can have an important shaping or constraining effect; this fits with Rawls's idea that our views on normative and related topics should be in 'wide reflective equilibrium' This paper tries to document the shaping effect of Rawls's social ontology on his theory of international justice. It begins with a characterization of Rawls’s rejection of cosmopolitanism. It reviews the claims that he makes about peoples and tries to articulate the ontology of peoples that they support. And then in the final section it shows how that ontology helps to explain his position on cosmopolitanism.

and from our friend at Opinio Juris:

Christopher Borgen (St. John's University - School of Law), Resolving Treaty Conflicts (George Washington International Law Review, Vol. 37, 2005).

If treaties do not hang together, then the international legal system will fall apart. But as treaties proliferate, they increasingly overlap and frustrate each other's goals. This article assesses whether there are effective rules and tools that policymakers can use to avert or resolve treaty conflicts in general, regardless of the specific policy-areas at issue. It finds that the Vienna Convention on the Law of Treaties (VCLT) neither addresses the types of conflicts that are relevant today nor is it successful in resolving certain types of conflicts it does address. In order to be a more coherent system, international law needs rules and procedures that assist States in avoiding or resolving treaty conflicts in a principled manner, without necessarily having to resort to international tribunals. This requires more than just a revision of the VCLT but rather a more rigorous approach to envisioning how treaties affect one another, a practice of drafting treaty clauses that takes this interplay into account, a purposive method of treaty interpretation that will better spot potential conflicts, and the acceptance and application of "default rules" in cases of conflict.

The article has five main parts. Part I sets out a typology of treaty conflicts. Part II describes classic methods of conflict avoidance and resolution and how these norms have not been applied consistently and are of little use in the types of conflicts that are now common. Part III assesses the VCLT and shows, through recent examples from a variety of substantive areas, that the VCLT is not equipped for the types of problems States face today. Part IV reconsiders what one may learn from analogies to contractual and legislative conflicts. Part V draws from the previous sections to suggest options in addressing treaty conflicts and considers the implications of the preceding discussion on the status of international law as a coherent legal system.

CIA Agents Wanted all over Europe

For a commentary of this news please read here

Here's an excerpt: MILAN - From today, thirteen CIA agents are wanted all over Europe. The operatives are accused of abducting Imam Abu Omar in Milan and taking him to Egypt, where he was tortured. The formal transmission of the arrest warrant to the Eurojust judicial coordination office means that it will automatically become effective in all EU member countries. At this stage, any European police officer could arrest, as well as identify, the thirteen CIA agents, who are now “on the run”. According to the American press, the CIA is believed to have taken steps by relocating the operatives to duties outside Europe. Investigations, which so far have involved the Milan consulate, have now been widened to include the US embassy. According to sources at DIGOS, the special operations branch of the Italian police, some of the abductors are thought to have used “cellphones that are part of the service equipment issued to US diplomatic staff in Rome”, even “during the abduction”.

What have the Romans ever done for us?

The American Society of International Law (ASIL) is 100 next year, and is asking for contributions for a publication to mark the event called 'International Law: 100 Ways it Shapes our Lives'.

An example given is enabling people to fly the shortest, most direct route to international destinations. This is as a result of the international agreement permitting overflights of sovereign airspace (The Chicago International Civil Aviation Convention of 1944). Which is great.

The '100 Ways' initiative might however be most productive if it avoids basking in its own glory and takes account of challenges to international law. For instance, another obvious 'Way' which may be included in the publication is enabling people, through the advent of human rights mechanisms, to fight injustice and impunity all over the world. Yet some would say that all human rights have done in Western society is protect the criminals, and that they hamper efforts to make society safer. And it is not just the right which urges consideration of the criticisms of human rights. Tackling such arguments/concerns head on should be an integral part of this initiative.

Contribute your 'Way' and you could win a 'prize'. See here for details.

The many inconsistencies of papal orthodoxy

On 24 June, the Pope met the President of the Republic at the Quirinale, the presidential palace which used to be the home of Popes in the past. The pope's three main concerns are: family, life and education. In the few months of his new papacy he has already intervened several times to repeat ad nauseam his obsessions.
Although the pope said he agreed with the president on the importance of separation between Church and State, he nevertheless forced that boundary in many occasions already. This is only the most evident of all the inconsistencies that the Pope has already come up with. Most of the others have already been pointed out in previous posts, but it can be useful to sum them up.

Concerning education, the pope held that it is the role of the state to set the standards of public education. He added, however, that parents ought to have "the right to choose the best education for their children without being burdened by excessive expenses." In clear, this means that the state should fund parents who send their children to private catholic schools. This is outrageous. Italian public schools have been for very long a major factor of integration between different layers of the society. What the pope is asking now, is that the whole society pays for some people who want to impart a sectarian education to their children. And he defends this by claiming to their freedom of choice. Obviously, freedom of choice is NOT at stake at all. Instead, we are concerned with the question of whether a private religious institution can be founded on public money. The answer, in a lay, pluralistic, society must be no.

Concerning life, the pope has insisted that life begins when the male and female gameths meet. In other words, the embryo is already a form of life which should be protected at all costs. The inconsistency as to the status of the embryo has already been discussed here. What I haven't insisted on yet is the fact that many lives can be saved thanks to the research carried on on embryos. What should a lay state do in this case? It should allow research in order to develop new ways to rescue lives.

The pope has also mentioned those lives at the end of their path. No human intervention, the pope holds, should be allowed in these cases. There is a minor opening, however. The pope mentions that palliative care should be used in order to make the death "more human". Even if the latter is not clear, it is important to stress that the vatican has never fully accepted the necessity of palliative care, namely because this includes the use of morphine, which could have, as a side-effect, the consequence of killing a person.

The ego and the ID...

Tony Blair's next personal crusade on the domestic stage, as he attempts to secure his historical legacy, will be over his flagship security policy: the introduction of national identity cards with a view to building up a national register of persons. This register will contain, amongst other things, a database of fingerprints and other biometric indicators of those on it. Blair's attempts to have the Bill passed last term, before the election, were frustrated by the House of Lords; yet he remains determined, in the face of cross-party opposition (including a significant number of his own backbenchers) to see it through in the early stages of this term. He is even, apparently, prepared to use the Parliament Acts (legislation in 1911 and 1949 designed to reduce the power of the unelected upper house over the Commons) to ensure that this Bill becomes law regardless of the Lords' opposition. Early signs, however, are that things will not run smoothly for him this time around either.

National identity cards are an oddity in terms of European public opinion. Generally speaking, the UK public has historically been very much against the idea in principle - in much the same manner as the US, where, despite the introduction of a whole raft of liberty-curbing measures in the wake of September 11th, national ID cards do not seem to be on the agenda. In continental Europe, on the other hand, they are viewed as utterly uncontroversial parts of daily life; even convenient, in many situations, as for example when travelling between certain European countries, they fulfill the role of a passport.

In Europe at least, the events of September 11th do seem to have effected some sort of rapprochement on this issue: for the first time ever, the British public generally seem to be in favour of the introduction of these cards in principle. This, of course, has much to do with a sustained period of Government propaganda, during which time we have been informed that ID cards are in essence similar to supermarket loyalty cards and yet will fight terrorism, reduce benefit and identity fraud, increase the efficiency of the NHS, control immigration and generally help workers and boost Government coffers by ensuring that no-one is employed "on the black". One almost wonders how on earth we manged to survive for so long without them.

Although these claims helped to ensure that the issue took a back seat during the election campaign, it is now getting pushed to the forefront again. There are a number of reasons for this, perhaps most powerfully concerns over the safety of a computer database from failure or hackers, and over the potential cost of the scheme (the LSE has recently produced a report stating that each individual - the Treasury is refusing to pay - might have to pay up to £300). Moreover, recent reports that the Government is planning to defray the costs involved by selling the information on the register to certain "accredited" private companies have made many people uneasy. However, the classical objection, that the cards represent an unwarranted infringement on personal freedoms, has also been regaining strength. The most notable recent manifestation of this was when the major trade union UNISON - whose members include the civil servants that will be responsible for ensuring the functioning of the system - voted overwhelmingly to reject it on the grounds that "it's an intrusion on civil liberties". Nor are they the first union to do so.

So why are we, technical worries aside, so concerned over the introduction of identity cards and a national register containing our biometric details? One common and powerful argument is that given by the head of the NO2ID campaign: "The system offers a ready-made police-state tool for a future government less trustworthy than the current one". Certainly, it is terrifying to think what either fascism or communism might have made of such technology. This, however, completely fails to explain the differences between the US and UK and the rest of Europe: the former object to ID cards on these grounds whereas in France, Germany, Italy and Spain, not to mention many of the new Accession Countries - all countries with direct experience of these types of regimes - they are viewed as essentially uncontroversial. There is also, perhaps, something a little dishonest about the claim if it is made as the sole reason for rejecting ID cards; many of us feel a deeper unease, a more profound and less readily expressible sense of discomfort, at the idea of a national biometric database than the fear of the untrustworthiness of future governments can account for. We quite simply don't want to be part of it; it strikes us as being a step too far, perhaps without being able to express why in a full and honest manner.

Of course, the frequent "Big Brother" comparisons, often viewed by those on the continent as exaggerated, don't help. However, with the proposals for the massively increased use of biometric information from fingerprints to retinal scans, they might just be accurate. In this regard, it is interesting to note that proposals to include biometric details on identity cards in France has sparked considerable opposition. Perhaps we're not so different, after all.

CIA Agents Charged with Kidnapping in Italy

Recent development in the world-wide war on terror. According to the press, Italian officials in Milan have issued arrest warrants for 13 U.S. Central Intelligence Agencies in connection with their detention and transfer of suspect Abu Omar from Milan to Egypt for questioning.

Apparently, the Italian investigators have been able to ascertain the real names of the CIA agents (who were operating under pseudonyms). The Italian authorities are also rumored (note the key word) to have tape recorded conversations discussing the abduction and transfer of Abu Omar. According to the press, Italian forces were not aware of the abduction of Abu Omar and CIA agents dressed as Italian police as part of the plot.

As part of the indictment against the agents Prosecutors have identified the aircraft used to transfer Abu Omar to Egypt for questioning. According to prosecutors, a Learjet with a military code left the Aviano military base in Italy for Ramstein, Germany where another jet (this one owned by the Red Sox) left Ramstein for Cairo.

Stay tuned.

P.S. I wonder what Neil McDonald thinks of the Red Sox NOW!

Supranationalist 3

Concerning the democratic deficit in the present Union

To the peoples of Europe:

Until the process of ratification of the Treaty Establishing a Constitution for Europe (“EU Constitution”) our Union had been created through a gradual technocratic process, away from the spot-lights of the public opinions of its member states. Some called this process of slow but steady bureaucratic progress, “doing before the hearkening”, others called it the Monnet method of EU integration. This strategy was arguably the only feasible way to create the Union between the bitter rivals that fought a 6 year-long bloody war among each other. Arguably, making the process of EU integration completely democratic at the early stages of the formation of the Community would be sheer political madness. As one of the writers of the Federalist papers argued:
…I am not much attached to the majesty of the multitude … I consider them [the people] in general very ill qualified to judge for themselves what government will best suit their peculiar situations … The science of government is not easily understood … [only men] … of good education and deep reflection … are judges of the form of a government.
This logic best describes the aforementioned, democratic-wary logic of EU integration. To a certain extent, despite heavy critique from numerous parts of the EU political spectrum, this method was for almost 50 years producing fruitful results. Prosperity, peace, and the seeming lack of political power on behalf of the EU institutions made the Europeans calmly accept that large part of their sovereign power was slowly but surely being transferred in the hands of the technocratic elite in Brussels. Today, when the so-called ‘European Social model’ entered a period of deep crisis, when the standard of living was no longer sufficient to satisfy the appetite of Europeans, democratic control of the EU became once more a reality. In this way the French and the Dutch rejected or at least froze the EU Constitution. Some are hoping that, they will be able, in a due course, try again and possibly get the EU constitution adopted in new referenda in France and the Netherlands. This will, however, not be the right way to proceed.

Referendum is not a suitable democratic instrument to express the normative expectations of the people in the European member states. This is especially true when one is supposed to vote ‘yes’ or ‘no’ for more than 400 pages of a hardly comprehensible document. Internal political rationale is bound to overwhelm the considerations of the content of the Constitution. As the French and Dutch example demonstrated, people voted largely for internal political considerations, understanding very little of the actual constitutional text.

Is this to suggest that we should return to the ‘good-old’ Monnet method of EU integration? Not exactly. In the long run, such a strategy demonstrated significant flaws; without democratic representation the system can last only a limited period of time. Wise men can construct a system that can work well for a limited period of time, the bad side of such a strategy is that it is bound to be overun by a popular revolution. In order for the system to survive even in the times of hardship, not only in periods of prosperity, the people need to have a feeling of responsibility for the existing system, this necessarily means that they need to participate in its creation.

This is, however, not to be achieved through highly unrepresentative and politicized national referenda. We need to think of novel democratic procedures that are able to separate politics (considerations about the content of laws) from strictly speaking internal political party power considerations. One way to proceed in this direction would possibly be to organize a European wide referenda, but one should remain sceptical about the ability of such referenda to sufficiently distance itself from national political debates. At this point, a elaborated system of novel democratic procedure for the EU will not be outlined, this will be done in later editions of the Supranationalist. At point, it is important to spell-out the general formula that best describes the spirit of the new democratic procedure for the EU, that is a mixture between the government of the wise and the traditional models of direct and representative democracy.

Blair's Project (on the future of Europe)

On 23 June,Tony Blair addressed the European Parliament on the future of Europe.
Here you find the full text.

Blair spoke as a real European leader. He is miles above the shabby leaders we have in France, Italy, Germany and the rest. His point is simple: Europe talks of itself as a great thing, but does not do enough to prove it. People, as a consequence, have expressed their doubts about it, when they have been given the chance.

This is time of change, Blair says, and he is right. It is not because Europe has achieved many things in the past, that we have to stick to the old path. Europe needs robust modifications that can only be achieved after consultation of all the constitutive parts of Europe.

Those who do not want to move forward, it is said, hide behind stereotypes and point the finger at Britain as if it was the culprit of want of integration. But this is plainly wrong. Moreover, Blair dismissed the stereotype that associate a well-functioning market economy with the lack of social protection. Those two objectives should not be contrasted. Social protection should not take place instead of market economy, it should, and it can only, be based on it. What type of social model is it that has 20m unemployed in Europe?, Blair rightly asks.

Read the text and you'll understand why Blair is absolutely correct when he asks for a new debate about Europe. For a contribution to this debate, please read our supranationalist manifesto and the following supranationalist papers.

European politics ? No, just the circus

These days, watching the European politics part of the news is like going to the circus. To attend the summit on the budget of the European Union, Chirac had traded is Super Liar’s cape (1) for the costume of Pierrot, the sad clown. All we saw on TV was a sad Chirac, sad after the French No at the referendum, sad to be the most unpopular President under this constitution. But he wasn’t the only star of this humorous show. Blair, came as a magician and tried to make disappear the reasons for Great-Britain’s refusal to give up its financial advantages. Like a rabbit, he pulled the CAP out of his hat. Did any one believe that the urgent problem here is that 40 % of the budget is spent on agriculture? Was he a good enough magician to hide the fact that those 40% would become much less if the national contributions to the budget were raised over 2 % of the GDP? Obviously not, the other actors didn’t buy it and they didn’t like it either. So Super Magician Blair changed the script and explained how he would turn the reform of the CAP into a reform of the UK's EU rebate. In modern circus, even the spectators participate so Bush felt free to state with humour his worries over the unity of the European Union making everyone laugh really loud.

The best is seemingly yet to come. Today every one was calling every one egoistic, the French socialist say that Chirac is egoistic because he failed to reach an agreement; Schröder calls Blair egoistic because he feels that he’s responsible and Belka says that both of them are. Until yesterday I thought that Blair had made the greatest effort at bad humour by portraying agriculture as an anachronous activity and scientific research as a modern one, and by opposing jobs to cows. But in fact the prize of stupidity must be awarded to Villepin. Our freshly named Prime Minister was already making very promising debuts for a career in comedy and we had hopes that he would be as funny as Raffarin his predecessor. However, after the good joke of the politician that will fix unemployment in 100 days, he changed styles and showed yesterday that he could also act in scary movies by falling into the populist habits of the anti-British French discourse. In Parliament he played the detestable part of the Frenchman that will not be pushed around by the bad British hooligan, borrowing images from sports and history he tried to convince the members of Parliament that they should not worry, that our interests would be well protected. I can’t say I’m really reassured! Did Clinton’s career in Hollywood pickup yet? Might be giving bad ideas to all these guys.

(1) For all the different roles that he convincingly played over his long political career, ranging from a Thatcher fan to a Marxist, Chirac has earned himself the title Super Liar. Of course it also has something to do with his judicial problems and how he is able to argue in favour of his innocence.

Are the Royals Value for Money?

Proof if proof be needed that all things must now justify themselves, or be justified, in the language of the market, from this BBC article discussing the new figures on what the Monarchy costs the UK taxpayer. 61 pence each a year, apparently. The Keeper of the Privy Purse, Alan Reid, has loyally maintained that:

We believe this represents a value-for-money monarchy. We're not looking to provide the cheapest monarchy. We're looking at one of good value and good quality.

How long, I wonder, before we see them floated on the stockmarket?

Supranationalist 2

Concerning the European Budget

To the people of Europe:

The European Budget is very small (100 million euros annualy for 450 million citizens), and yet it raises so much controversy these days. The most simple explanation is that money is the meter of power relations in Europe. As far as money are concerned, there is little political compromise that can cover a defeat at the budgetary level: if you had 5 and you end up with 3, there is no clearer defeat.

Each member state thinks this way, thus it is particularly difficult to reach an agreeement. This is particularly the case when a conflict is taking place at the level of principles of organisation of a polity; to translate the conflict in economic terms is very easy, and it gives a neat impression as to who is the winner and who is the loser.

From the perspective of the Union, however, everyone is a loser if there is no agreement as to the repartition of the ressources for the sake of enhancing the progress of the whole. Hence, the conflict, be it between France and the UK, or between any other member state, is not a constructive tension; it can only point to a lack of a shared interest in the European project. Moreover, the European people fail to understand what are the principles of collection and expense of european money.

These tensions are bound to remain so long that the only actor in the creation of ressources of the Union are member states. By deciding alone what are the ressources to be attributed to the Union, they can only protect their national intersts, either by opposing any increase of ressources, or by allowing an increase only if this will be allocated to the benefit of national interests.

We are presently stuck with an anachronistic budget, which unduly favours States like France by heavily subsidizing agriculture.

A proper constitution should achieve two things. It should entrench the principle of no taxation without representation, and it should allow for a scope of innovation as far as expenses are concerned, since Europe is in a desperate need for the creation of new employments and not in the maintaning of archaic agricultural structures.

The first principle, no taxation without representation, create a link between european people and the creation of ressources at the european level. This way, the issue of money would not be a private question of national governments that decide those issues in the shadows, but it would be a open issue which concern the people and their representative ( at the European Parliament for instance).

The second principle, innovation in expenses, would carve out for the Union the power to allocate money where money are primarily needed. It is widely felt at the moment that, for example, european unemployment is plaguing citizens; it is, therefore, of very little advantage to know that agricultural expenses can be safeguarded at their very high level. Primacy should be given to more important issues, and where primacy lies should be, once again, decided by the representative of the people along with the representative of the executives of the states.

Hamilton, in the Federalist No. 30, said:

"Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish."

Being unable to reach an agreement concerning the budget, the Union declared its weakness vis-a-vis political crisis. Even if it did manage to reach a compromise, however, it is not evident whether the citizens will be the beneficiary of that agreement. This can only be safeguarded by creating a direct control of the people over the expenses of the Union, that is by empowering the representatives of the European people to decide the allocation of expenses.

The Frozen Constitution, and the spirit of Europe

The constitutional treaty has been frozen; political leaders have so decided, as they think that a better time will come for this text. Needless to say, this is a sign of total lack of vision and leadership. Mr Junker, the luxemburger prime minister hosting the meeting, held that the Constitution is the best set of rules he can think of for the European Union. Even if this was true, european politicians display a sheer inability to deal with present problems. All they came up with is: just wait and see.

There is little to be 'seen', however, and much to be discussed. That is why, I believe, our initiative called "supranationalist papers" is very timely. It is an attempt to go beyond the mere defence of the constitutional treaty, by asking the relevant questions that can be of interest to both the European people and the ruling class. In other words, it is an attempt to fill the gap between the top-down vision of Europe, which flirts with his image in the mirror, and the bottom-up vision of Europe, which expressed its disenchantment lately.

Supranationalist 1

Supranationalist Manifesto

To the Peoples of Europe:

After witnessing the inefficiency of the present EU system of government, you were called upon to approve the new Treaty Establishing a Constitution for Europe. The majority of the citizens of France and the Netherlands voted “no” to this Constitution. This has led to political stalemate and a period of reflection on the Constitution and on the future of the Union generally.

The importance of this subject cannot be overstated; it has implications for nothing less than the existence of the Union, the safety and welfare of its constituent parts, and the fate of a territory which is in many respects the most interesting in the world.

It has been frequently remarked that it seems to have been reserved to the peoples of this continent, by their conduct and example, to answer the important question of whether societies really are capable of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

If there is any truth in this assertion, the crisis at which we have arrived may therefore be regarded as the era in which the crucial decision is to be made; and imprudent choice on our part may, under this view, deserve to be considered as to the general misfortune of humankind.

The aim of the Supranationalist papers is to construct a fresh dream of Europe in this moment of stalemate in the EU integration process. The authors of these papers do not have a united opinion about how the Union should look; whether it will become a federal state, a confederation or an economic free trade zone. They do, however, share a common goal - to construct a better Europe that could serve as a model for the whole World.

We propose, in a series of papers, to discuss the following topics of particular interest:

What are the fundamental values that Europe should be based on?

What is the desirable organisation for Europe: a supranational order, confederation, federation or some other form of government?

What are the feasible political and institutional structures for the European Union?

What role is Europe to play in the World arena?

Scott Sulivan, Raphael Paour, Lorenzo Zucca, Euan MacDonald, Neil McDonald and Srdjan Cvijic

Is redistribution inside national boundaries legitimate ?

It seems to have become increasingly difficult to argue for policies of redistribution in favour of the working class. Traditionally, these types of policies encountered two main criticisms in political discourse. The first, definitively stemming from a right-wing ideology, is grounded in a concept of justice according to which everyone should have goods in proportion with individual merit. Redistribution is not desirable because it ruins the just allocation of resources provided by the market. The second criticism is neither from the right nor from the left-wing. It argues that redistribution is not unjust but simply inefficient: that it grips the mechanisms of the market thus hampering the production of goods. More goods are distributed, relatively to what is produced, but fewer goods are produced and in the end the situation of the individuals meant to be helped is more harmed than enhanced.

If it is becoming more difficult to argue in favour of policies of redistribution it is because besides these two classical criticisms, a third one definitely based in a left-wing ideology is becoming increasingly present in political discourse. This third criticism is the opposite of the first one as it is grounded on a concept of justice which justifies redistribution. According to this criticism, redistribution is desirable insofar as it is not restricted to the working class of a particular country. Both the boundaries of the Nation State and those of the working class lead to unjust limitations in policies of redistribution. This criticism favours policies of redistribution through which fewer goods are redistributed to each individual but they are redistributed to more individuals.

This argument was formulated with particular force in two recent debates. The first time was during the debate around the EU Constitution. It is unjust, said some promoters of the constitutional project, to refuse the Treaty in order to preserve a higher level of social protection in certain countries. Justice would require the working class in richer countries to abandon their level of social protection in order for people in poorer countries to benefit from the increased protection that would go along with further European integration. The second time the argument was formulated with force was during the controversy of ‘Le lundi de Pentecôte’. Last year the French government decided to raise money in order to help older and socially isolated citizens by cancelling a vacation day and collecting all of the worker’s salaries from that day. But a large part of the population refused to go along and attendance at work was quite low. Many workers refused to work arguing that it shouldn’t be the workers helping their elders but rather society as a whole or the richer social classes. In this occurrence again, it was said that the left-wing was acting in an egoistic manner, refusing to help an other, less well-off, social class.

This third criticism rests upon an argument which is appealing. As the alter-mondialist movement shows, the reconstruction of a post-communism left-wing political project should certainly be fuelled by a worldwide social empathy. However because it is an appealing argument, it is also a dangerous one which should be used with caution. A few remarks are therefore in order.

1/ If, in common (as opposed to philosophical) political thinking, it is accepted that redistribution should be done on a scale much wider than the national State, the novelty of this political culture should not be neglected. Which society, in the past, has accepted that its members should accept to lower the level of their welfare for the sole reason of improving that of citizens of a different country?

2/The argument doesn’t contain in itself any reasons for limiting redistribution inside Europe or the countries applying for membership. Policies destined to protect social rights of citizens in richer countries are illegitimate as long as they contribute even indirectly to hampering the improvement of the welfare of a poorer community, somewhere in the world. According to this argument, for example, we should not at all restrict the importations of Chinese cloths for to protect European industries. But we could go further than that and say that democratic institutions that tend to make the industry of a country A rather competitive (because they provides peace, education, possibilities for research etc.), are illegitimate because in some poorer country B, the political climate doesn’t provide such conditions; the goods produced there are less competitive, fewer are sold and therefore the welfare of the population is not improved as much as it would if the institutions in country A were not democratic. Following this line of thinking we should conclude that not only democracy but also education, peace, research, efficient infrastructures etc. are also illegitimate. All that is good for us is bad for others… This is of course a very simplistic argument; however it may go to show that the criticism on national based redistribution has the potential to threaten more than just a high level of social rights protection.

3/ Finally this criticism seems to suggest that in richer countries we would give up certain social rights now to help others and possibly regain them later all together. Social rights were not awarded by the generous capitalists, nor were they always negotiated by able and socially sensitive politicians, they were gained through battles involving violence, death, hunger, humiliation etc. Since the eighteenth century and until now, the number of rights possessed by the working class slowly but constantly increased. When initiating the reversal of this historical movement we should not forget how much time it took to get to where we are and thus not neglect the fact that it may take a very long time to get back.

An Apologist's Dilemma?

Is it possible to love customary international law and hate America? Maybe not...

There seem to be two positions taken at the same time by some PIL scholars, summed up in the following handy (non) quotes:

(1) "PIL works. PIL is adhered to generally, and what you class as violations or failures of PIL actually strengthen the customary rule in question when States appeal to it to validate the act in question (it says so at para.186 of the Nicaragua judgment). You can't quantify all the times that PIL is adhered to in practice because it's impossible to measure that kind of stuff"; and

(2) "I really wish that America wouldn't do that. It's frustrating and a bit embarassing when they just do whatever they like. Take Iraq for example. I was so professionally humiliated over that whole thing. Y'know, you work on all these rules and as soon as something important comes along it's like the whole thing just goes out the window."

The best examples of the alleged violator of international law appealing to the rule of international law in response to criticism concern the USA. Take as examples Iraq (self defence) or Guantanamo (humanitarian law/human rights).

So, is the US the secret PIL champion? If the US didn't go on its wee adventures and appeal to PIL in justification for its own overt acts (as opposed to States pointing out each others' violations) , maybe the PIL scholar as described above would have no ammo to back up their 'PIL works' arguments...

Opposition of Negatives as a Human Right

David Kopel at the Volokh Conspiracy answers the questions "Is Resisting Genocide a Human Right?" in the affirmative in a recent paper.

Kopel's premise, as explained in the opening of the paper essentially runs like this: A positive rule against genocide exists in international law, this rule can't be considered an effective right (as opposed to a nominal right) without a remedy. The regular enforcement of international laws against genocide are spotty at best, as such, each individual possesses a broader right against being a victim of genocide that includes taking up arms against those intending to perpetrate genocide against your people (and presumably yourself).

Obviously this premise has considerable support in domestic legal theory. Someone being threatened with murder has a right to self-defense which acts as a defense to a charge of murder. The next natural question is how this right is extrapolated to other "rights" under international law. The domestic law extrapolation is demonstrated by a right of property owners to expel trespassers with non-lethal force. Does this extrapolation follow in international law? I don't think there is a niced canned answer to this, but I suspect that the answer would generally be that it depends on the clarity of the international rule barring certain state actions and the gravity of the actions being opposed. For example, the mere fact that the source of an international law is customary rather than treaty based would imply that the parameters of that law are more difficult to ascertain, and, as such more difficult to create a right of opposition.

Anyway, I encourage all to read Kopel, et. al.'s paper and form your own conclusions.

Direct Democracy, Embryos and the Italian Referendum

Italy is one of the few country in the world where it exists a strong instrument of direct democracy: the abrogative referendum (art. 75 of the Italian Constitution). It is abrogative in so far that, people can only decide whether to repeal part or the totality of an existing statute. They can only do so by answering a question that has been prepared by the organizer of the referendum. Albeit limited in scope, the referendum played an important role in italian life on issues such as abortion, divorce [1974], and electoral statutes [1993].

Today, unfortunately, italian people have failed to abrogate a very bad law on the status of embryos, which I have already criticised. The referendum did not succeed in abrogating the statute because of the low turn up (only 38%).

This is a good example to use against all those that pretend more direct democracy. Italina has had a massive use of it. At times people responded, other times they couldn't be bothered. Today, it is the case. The question is vital, since it concerns the future of research on embryos, plus a set of associated problems concerning assisted procreation.

Today it is not a victory for anyone. Even those who voted for the no, knows that this is a bad statute: they will have to modify it in the parliament. It is, however, a defeat for direct democracy.

International Solidarity and Debt relief for poorest countries

On 11 June, in London, the Finance ministers of the G8 reached a deal on debt relief for poor countries. I believe this is good news, and it is so for several reasons.
First of all, this is definetely a good example of international solidarity, which I defended in a previous post.
Secondly, it gives good news from UK domestic politics. Gordon Brown is reharsing his role as a leader. After they reached the deal, he declared: "This is not a time for timidity, this is a time for boldness." He is deadly right.
Thirdly, Tony Blair is exercising strong pressure on George Bush to have some of his plans implemented at the international level. And Bush seems to be collaborative.

There is no reason to be overly optimistic. Of course, debt relief is not the whole story. In Africa, structural problems remain extremely important. Dictatorships plague political systems; Western trade with Africa is not fair yet, as Western countries export to Africa without limitation, and they import at virtually zero costs.

But, debt relief should be taken as a good starting point. It is not meant to favour this or that dictator, it is meant to clear the ground from an huge burden, so that the rest can be done. Second steps should be taken, but this is beyond the point. And it is poossibly more controversial. For, certain more positive interventions could indeed be perceived as paternalistic and illegitimate. Debt relief, on the contrary, is like putting the watch backward and tell african people: now it is up to you, this obstacle has been removed. It is not charity for the sake of it, it is a necessary action to create the pre-conditions for you to give it a try to grow.

So, in conclusion, is debt relief an answer for Africa? I say it is an important, albeit not sufficient, first step. Let's build up from that.

Without Europe?

French and Dutch voters refused to approve the EU Constitution. Many in the Western Balkans interpreted this as causing a serious slowdown in the process of negotiations of these countries into the EU (Croatia, Serbia and Montenegro, Macedonia, Bosnia and Herzegovina and Albania). Since a large portion of the vote seems to be caused by a negative attitude towards last enlargement and a fear of the future enlargement, one could conclude that countries of the Western Balkans are indeed not in a favorable position.

What lesson did the Western Balkan politicians draw from this result it is, at this point, difficult to judge with outmost certainty ? The EU tends to play the role of a ideal-scenario in the politics of the Western Balkans. EU is looked at as a remedy for every imaginable political, economic and social problem in these countries. Europe will bring wealth, prosperity, employment, it will make a renewed armed conflict impossible, it will facilitate the independence of Kosovo etc. In short, at least until present, Europe was a demagogic story. After the French and Dutch no vote to Europe, political elite of the Western Balkans can no longer sustain such populist image of Europe. From now, they will have to explain to the population why certain political and economic choices are made without resorting to the European dream. Citizens will justifiably claim, “Wait a moment, if that EU is so great why the Dutch and the French refuse it!”

Does this mean that the effect of these referenda is necessarily positive for it exposes the, so to speak, ‘real’ EU to the voters of the Western Balkans? Is it to make Western Balkans politicians seriously explain to their populations what they win and what they lose in the EU integration process? Does it mean that from now on, every voter in the Western Balkans will be more acquainted what he personally can win and can lose if his country joins the EU?

Not necessarily, there is a threat that such ‘realization’ will only enforce Euro skeptic political forces in these countries that are equally dogmatic and populist. A while ago an archbishop of the Serbian orthodox church said concerning the EU integration, I paraphrase, what does it mean EU will come to us, Europe already came to us, first in 1914 in the uniforms of the Habsburg and German soldiers who occupied our county, then it came again in 1941 in the uniforms of the Nazi soldiers and then finally in 1999 in the form of NATO bombing, do you want that Europe, I do not...There is a danger that such discourses will flourish facing the inevitable stalemate of the EU integration process in this region. Euro skeptics that are still in minority might one day become a majority...this could risk bringing the realities of the 1990s back to the region.

What the member states of the EU must assure is that they do not lose the unique opportunity to pacify its backyard of the Western Balkans and integrate it in the Union. This does not necessarily mean that such integration must occur immediately. This would be potentially damaging for the Union since most of these countries prove still to be unready to join the EU. However, the EU must assure that the French and Dutch no votes do not eliminate the determination to include these countries into the European commonwealth when the time is ripe, that is when they fulfill the conditions. This is not only for humanitarian reasons, to so to speak, being peace and democracy to the region of Western Balkans, but also because it is in the best interest of the EU that playing a decisive role in the pacification of this region, demonstrates that it has a capacity to play the role of a determined international actor. This is a unique opportunity to show to the rest of the world that the EU model of helping democratization and prosperity presents an appealing alternative to the US strategy of democratizing the world.

Rules of the game for a European State

Not long ago, Lorenzo posted a link to an article in Le Monde describing the failure of the French social system. It was an interesting and very critical peace. The surprising thing however was the force of the criticism, usual for journalists who tend to adopt more neutral points of views. The failure of this systems remains a point a view, it is hardly a raw fact. However, even a quick overview of the main stream French media shows that this type of strong criticism is coherent with what seems to be a fairly well thought out plan of action of the media and some of the main political parties. They understand the results of the French referendum as coming from an unjustified faith of a large portion of the population in the French social system. If people falsely believe that this system should be preserved – even at the cost of European integration – then, in order to avoid this type of democratic accident in the future, the media and the politicians should start explaining right now that their beliefs are not grounded, that the system they want to keep is no longer virtuous.

I am sure that the media are partly right, and that this type of illusion fits into the complex set of reasons that explain the leftwing vote. What is worrying is that they should focus only on that explanation and won’t understand that if the Constitution was rejected by so many people in several countries it is also because it wasn’t a good enough text. They remind me of parents who can’t cook but complain that their child won’t eat the tasteless food they prepared.

As Lorenzo wrote, we should not dwell too much on the reasons of the various votes and think about the future. How can we go on with the European integration ? It was an argument of the leftwing No that after a final rejection we would be able to start again with a better, more ambitious project for a Constitution. However the failure of this project - which was a beautiful effort - is instructive. Why did it fail ? There are many different reasons, but in the end, if it was rejected in several countries, it is because this constitution was not sufficiently consensual. It was not able to obtain the consensus required by a constitution – because it gives legitimacy to the system as a whole – because it was, as the construction of the European Union itself, ideologically determined. In this sense it was more than a constitution. As Euan argued, to be consensual, the supreme norm of the legal system should not entrench politically controversial issues which should remain up for grabs and decided legislatively through majority decision. The next text for a constitution should give us the rules of the democratic game in a potent European State. According to leftwing opponents of the EU Constitution, the text was not good enough, not because it didn’t protect the French welfare State – as many people say – but because it made it impossible a priori for Europe to adopt a similar model. To content this part of the population the next text should instaure a democratic forum where their representatives could try to persuade others that the welfare State would benefit Europe. Rules of a democratic game are not enough as they only allow a State to formulate political preferences. A potent State is required for these preferences to be applied : one which can decide to raise taxes and decide how to spend them.

Two problems (and many others) remain: part II and part III of the Constitution. Fundemental rights should be entreched only if it is fairly easy for the democratic institutions to overturn a decision of the European Court of Justice interpretating them. How rights should be interpreted is a politically controversial issue which should also be up for grabs. Part III of the Constitution incorporated many rules set by previous treaties into this constitution. This didn't change the place that these rules have in the hierarchy of norms. It was precisely the problem: the new text should lower the level of these rules and retrograte them to the legislative level so that they could be submitted to democratic discussions and decisions by the European legislative institutions.

It is not a paradoxe that a shorter text, containing less rules would be more ambitious than the one which was rejected. The ambition here is to find consensual rules which gives the basis for discussions and decisions on controversial issues, not rules to decide them a priori.

Some brief reflections on the ESIL Research Forum 2005

Having had a week or so to reflect and digest, I wanted to post something, as promised, on the recent ESIL conference in Geneva, Switzerland. The European Society of International Law is, of course, a very new one - it was created just last year - but it seems an important one nonetheless, as evidenced by the quality of speakers and commentators attending this year's event. Add to this some magnificant weather and a generally stunning location on the shores of Lac Lemain, at the Graduate Institute for International Studies (HEI), and the scene was set for a memorable occasion.

The conference itself lasted from Thursday afternoon until Saturday evening; it kicked off and finished with plenary sessions, but Friday and Saturday mornings were devoted to more specialised, parallel workshops. The conference organisers made the decision to favour younger, up-and-coming scholars in these workshops, with the standard form being four such papers, and then a comment from a more established academic; this idea, it seemed to me, was a success, and meant that the quality and innovation presented in many of the workshops was high. It often seems at conferences that the quality of a paper is inversely proportional to the reputation of the presenter; the potential gains and losses for younger academics are simply much higher than for their more established colleagues. Between the plenary sessions, then, and the workshops, the conference organisers managed to strike an effective balance between younger and older scholars.

Another noteworthy point was the genuinely bilingual character of the proceedings. Often in supposedly bilingual organisations, one language is paid lip-service, and the other (usualy English) in fact dominates the proceedings. Not so here; although English was more commonly used, I don't think that there was one session in which a full paper was not presented in French; and those more comfortable in the latter language were also encouraged to use it in formulating questions to the panelists, regardless of which language the initial paper was presented in.

The first plenary session, although boasting an impressive panel, was perhaps a little disappointing; this, however, was the fault of the topic, "Are the rumours of the death of the Westphalian System exaggerated?". Understandably, the organisers wanted to open the forum with a topic sufficiently broad to be of interest to everyone; however, this one was so vague and open as to provide little or no coherence to the presentations or theme for the discussion. This is not to say that the individual papers were not enjoyable to listen to (those by Ian Brownlie and Brigitte Stern being the pick of the bunch for me), but there was perhaps little of real academic worth in them.

The keynote speech was given by Hisashi Owada, judge at the ICJ, focusing on the reform proposals for various UN institutions. He also ranged fairly widely over a broad set of issues, focusing on the Security Council and the ICJ. Always interesting to hear a judge discussing potential reforms of his own Court, even if most of those he suggested, such as opening up access to the Court to non-state parties or increased use of the advisory opinion function, are not new ideas. In terms of the Security Council, he signalled reform of the veto system as a priority.

Saturday morning's workshop on international legal theory was the one that I was most interested in, and it was, for me, the best session of the forum. Again, the topic itself was vague - "revisiting contemporary international legal theory", but the papers given were all interesting and innovative, even if dealing with at times completely different subject matters (not to mention struggling with the profound injustice of being asked to talk on legal theory at 8.45 on a Saturday morning...). Although there did seem to be an overall attempt to deal, in most papers at least, with critical approaches to international law, it did this from perspectives as varied as feminism, cultural relativism, or Nietzschean epistemology, then rounded off with a more positivistic attempt to "purify Kelsen". It fell to Koskenniemi to sum up and attempt to draw together the various threads; this he did by means of a memorable plea for the recognition for a norm of jus cogens against ever asking the question "how can this theory be applied in practice".

Other workshops that morning dealt with other "hot" international legal issues; treats to human rights in the war on terror, international protection of the environment, cultural heritage law, migrants and refugees, international administrations, and private actors in he international legal system. The last of these was another very interesting, if slightly schizophrenic, workshop, focusing both on the increasing (or otherwise) role of NGOs, and on the responsibilities of multinational corporations. This thus was really two panels rolled into one, and this impression was confirmed by the fact that there was little time for discussion of either section once the panelists and discussant had all had their say.

Friday afternoon was spent at the Palais des Nations, the UN buildings, in an extended International Law Commission session with Giorgio Gaja, the special rapporteur on the responsibility of international organisations. An interesting topic, and a great opportunity for participants to see inside the Palais; however, as there had been, at the time of the session, only 7 or so recommendations adopted, the two and a half hours dedicated to this single issue may have seemed a little excessive; perhaps, given that the entire ILC was present, the floor could have been opened at some point to a more generally discussion of the work of the Commission.

The closing plenaries fortunately managed to avoid the pitfalls of the opening one; a topic was chosen that was of interest to most if not all, but that was sufficiently well circumscribed to give the panels a sense of coherence and purpose. In effect, all of Saturday afternoon was devoted to a discussion of the recent ICJ adivsory opinion on the wall in the occupied Palestinian territory; firstly with some detailed discussion of the judgment itself, followed by a round table on the wider implications of the decision for international law more generally. Naturally, having a number of ICJ judges present lent a particular force to the critiques and calls for clarification that were peppered throughout the contributions.

In conclusion, a couple of gripes; one fairly minor, and one, linked, fairly major. The first is that each speaker was given only ten minutes in which to present their papers. This was a double-edged sword. On the one hand, it did mean that, more often than not and despite the fact that most panels had four speakers, a chair, a convener and a discussant to speak, there was a significant amount of time left over for questioning at the end. On the other hand, ten minutes is not at all long to develop an argument in any great depth or detail - a shortcoming that must be felt all the more clearly when panel topics are so broadly framed. This, however, was compounded even further by the more major failing: namely, that the papers and presentations were not made available to those attending the sessions in advance. This meant that not only did the presentation have to be fast, but it had to be performed to an audience who were coming to it absolutely "cold", so to speak. Both the complexity of the arguments advanced and the worth and detail of the subsequent discussions were hampered as a result.

All in all, then, my overwhelming impression is that the forum was a thoroughly worthwhile experience, on many levels: academically, intellectually and socially. A real pity then that, in terms of the intellectual points at least, it must remain only an impression; the lack of a more detailed p-ackage of materials circulated significantly in advance has prevented it from crystallising into anything more substantive. Nonetheless, it bodes well for the future of the European Society of International Law; a society that seems to be maturing at a remarkable rate. Gone, this time, were the self-conscious attempts to fashion anything like a rigorously "European" sense of international law, and the anti-American posturing that can often accompany it, that seems to have characterised, to some extent at least, the inaugural conference in Florence last year. A European Society, as judge Bruno Simma noted right at the outset, that seeks not to challenge but rather complement the American Society strikes me as thoroughly desirable and well on the way to being realised. I'm already looking forward to Paris 2006...

The Pope intervenes in Italian Politics

Few months after his election, the Pope, Benedict XVI, is already taking part in Italian politics. The occasion to do so is given by the Italian Referendum on the 'legge 40,' which sets up a legal regime of embryos.

Ratzinger's longstanding reputation of being a rigid thinker is amply confirmed. His obsession with the idea of life at any cost from the embryonic stage leads to huge practical and theoretical problems.

The first practical problem is his defense of a very bad statute (legge 40). The very majority that enacted it is now going to referendum with opposite intention: some of them are voting for the abrogation, some of them for its up-keeping, others are planning not to vote. The pope himself is in favour of abstension. Not for principled reasons, but because it is the only way of maintaining the statute in place.

A second problem that makes the pope's position inconsistent is that of constitutional tragedies at the edge of life. Take, for example, Jodie and Mary's case, that of conjoined twin from birth. The only way of saving Jody was to kill Mary, since Mary did not have organs developed enough to survive on her own, as a consequence she had a 'parasitic' existence upon the body of her sister. Catholic orthodoxy would have commanded to keep them united and dead. One of the competing suggestion was to save the stronger, and the only viable, child by killing the other. A sacrifice is there to be made. But why would it be worse than letting them both die?

A third problem concerns more specifically the inconsistency of catholic orthodoxy and the status of embryos (This point is raised by Emanuele Severino, one of the most important italian philosophers). The church believe in a doctrine of "unitary entities." Life comes from an single entity that has a potential for life. As much as a statue comes from a block of stone that has a potential to become a statue, so does human life. Now, the problem is that the embryo itself does not come from unitary entities, as by definition it comes from the union of the male and female gameths.

Given that the Church holds that life begins at the very moment of fecondation, the Pope is denying the very doctrine of unitary entities that is so central to Catholic dogma. In order to be consistent, the Pope should accept that life is created in two steps. First there is the appearance of the embryo, which is the unitary constitutive material of a potential life. Then, at a second stage, God injects a soul into the unitary entity, which is the embryo.

From this distinction, we can arrive at a similar point as St Thomas: embryos are just like animals at their very beginning; hence, there is a qualitative difference between them and actual human life.

Transatlantic Turbulence and the International Plane

Scholars can provide you with easy answers as to why international law doesn’t function as a ‘normal’ legal system (It has no centralised power, no effective sanctions, it’s politicised etc. etc.). One example from the last week poses the question of why this has to be the case.

Europe and the United States recommenced battle before the WTO last week, in what is predicted to be the most expensive trade dispute in the organisation’s history. The squabble revolves around State subsidies provided by the EU and US, for Airbus and Boeing respectively. The dispute highlights an ‘efficacy gap’ between dispute resolution in trade law as opposed to international law in general.

The WTO process is quick (normally no more than 15 months from initial complaint to appellate judgment) and binding on the parties. In the case of non-compliance by the losing party, the other State can be authorised by the WTO to take countermeasures, for instance by imposing tariffs on the offending party’s exports. Other international legal institutions like the International Court of Justice must be a wee bit embarrassed surely – the Genocide in Bosnia case, for instance, has been on the docket of the ICJ since 1993, and a public hearing on the merits is not due until February 2006.

Why does the WTO dispute resolution system work so much more efficiently than that under general public international law? From a legal perspective, the easy answer is that it has an effective sovereign (in that States give up a reasonable measure of sovereignty to the WTO), and effective sanction (rulings backed up by the possibility of countermeasures in the event of non-compliance by a party). It also has tight procedural deadlines. Public international law in general has none of the above.

But more importantly, why are States prepared to cede sovereignty to the WTO over trade when they are not prepared to do so (to the same extent) to other institutions over international criminal law, human rights, or the use of force? The economy and national security are both priorities for States, both are big domestic election issues – why submit wholeheartedly to an international regime for one and not the other?

Round Table on the French and Dutch Referenda

Today Monday 6 June, at the European University institute, there will be A Discussion of the Results of the Dutch and French Referenda on the EU Constitutional Treaty

Panellists will include: Bruno De Witte, Tom Eijsbouts, Yves Mény, Rick van der Ploeg, Jacques Ziller.

A report will be posted later on

UPDATE.

European Academics are puzzled on the issue of referenda. Honestly, they did not expect it to be so bad. I do not know why --it looked pretty previsible-- but this is it. The overall impression is that they do not know what to say, and do. They blame this failure on politicians and badly timed political choices. They stress that there are no leaders at the moment in Europe. Plus, those who are there seem to be dramatically weakened. Schroeder, Chirac, Blair, and Berlusconi are very weak.

So are european intellectuals, I say. To point to the lack of leadership is a distressingly unhelpful from the academic viewpoint. If leadership cannot gather consensus, this is also--and maybe mainly-- because there are no fresh ideas on what Europe should be and how Europe should be presented to Europeans at large.

Pessimism for this result should not prevent us from thinking innovatively. This would be the worst thing!

Europe's Foundational Ambiguity

So, two referendums into the ratification process, and two fairly resounding "no"s, with the very real prospect of a kind of "domino" effect on those still to hold ballots on the subject, if, as seems increasingly unlikely, they actually go ahead. Even more worrying, perhaps, is the recent controversy over the Euro, expressed most dramatically by the calls from the Italian Social Security Minister for an improbable reintroduction of the Lira. Schroder and Chirac attempt to call together a meeting of the original 6 countries, presumably to try to push ahead with with deeper integration amongst themselves, but the Dutch and Italian leaders refuse to attend. More generally, the Union seems set to be split down the middle in what looks like being an acrimonious row over the future economic direction it should take, with France and Germany on one side, and the UK and a number of new accession countries on the other. Add to this already potent mix a healthy dose of uncertainty - it is quite possible that none of Schroder, Chirac, Blair or Berlusconi will be in office two years' hence - and the scene seems set for the final implosion of the entire European project.

Such runs one, we might call it "pessimistic", narrative of the current and future events. That it exists should not be surprising, given that it is precisely this doomsday scenario that was painted by "yes" campaigners in the referenda in order to scare people into voting for the Constitution. There is, of course, another way of telling the story. This one seems to be favoured by more moderate voices (on both sides of the yes/no divide), who see in this apparent failure the reassertion of democratic control over the European project. A recurring theme here is that now, finally, we get the chance to have a mature debate on the issue, and decide on the kind of Europe that we, the European public, want to live in.

Both of these narratives strike me as potentially disastrous for the European project. The first, if allowed to dominate, may well allow a critical mass of (quite unwarranted) criticism to build up that may, as the prophets of doom suggest, derail the entire endeavour. This would indeed be a tragedy; anyone denying the remarkable achievements that the European Union can boast is quite simply taking them for granted. It is too easy for those of us lucky to be born in the latter period of the 20th century, for example, to overlook the significance of the fact that armed conflict between the members of the Union now strikes us as unthinkable. In this, then, those preferring the second, more optimistic version of events have my support. This remarkable and exciting European project must continue.

It is, however, the idea that we now need to decide "which direction Europe should take" that I want to take issue with. Firstly, pragmatically, it strikes me as seriously naive for anyone to believe that a debate, no matter how mature and reasonable, can provide an answer to this most vexed of questions at this most vexed of times. A brief look at the events of the last few days should be sufficient to illustrate this. Internally, the French "no" relied for success upon the combined votes of two diametrically opposed sectors of the political spectrum; externally, the Dutch have (and the Brits would have) voted no for a completely different set of reasons than those of the French socialists who now trumpet the likelihood of a "social Europe". It seems clear that any attempt to debate our way to a clear, unambiguous and homogenous "vision" for the future of our supra-national polity will be more divisive than unifying; indeed, it may be the very thing that preticipates the doomsday scenario that its advocates seek to play down.

This idea of formulating such a vision of Europe's future also, however, seems to me to be flawed on a more theoretical level. Europe was founded, and has progressed, not on certainties about the future but rather on creative ambiguities. Even its early formulations, as peace through economic interdependence, is not without obvious conceptual tensions; these have become even more evident, not to mention complex, as the Union has transformed itself into the fully-fledged, yet sui generis, polity in which we now live. The dichotomies of neo-liberal/social welfarism, or, more broadly, economic/political union are perhaps the most evident examples of this; and yet, the Union has been able to become what it has not in spite of these controversies, but rather precisely because they are, and remain, controversial. A Union that had settled these issues long ago would simply not have been able to command the level of public support that it has taken to get to where we are now; and indeed, correctly or otherwise, it seems to me that it was a perception, correct or otherwise, that these issues would no longer remain controversial upon adoption of the new Constitution, that drove many on the French left to reject it. The success of the Union is premised, in part, upon its ability to be most things to most people.

And nor is this indeterminacy one of its many weaknesses; rather, it should be viewed as one of its greatest strengths. For it represents the possibility, the promise, of the political; a promise that many feel has been all but removed from the domestic arena. Any attempt to push through a homogenous vision of the future of Europe, even if it did not bring the whole edifice crashing down, would nonetheless represent the reification of a partisan and inevitably shaky "consensus", an essentially arbitrary snapshot of public opinion taken at an essentially arbitrary time, into a timeless "path" for future generations to follow. Any attempted constitutionalisation of this process, moreover, would symbolically "precommit" us to this path; "We the People" would have spoken in a miraculously unified voice, in order to remove from the scope of the political certain questions that must remain up for grabs if Europe is to be in any meaningful sense "democratic". It is not my intention to suggest that such as strategic depoliticisation of key issues is what the Constitution was intended to effect; however, it was undoubtedly perceived as such by large portions of the French left. As Slavoj Zizek has noted in a recent article in The Guardian, the tactics employed by the "yes" campaginers, which often resembled the experts lecturing (and now chastising) the ignorant, can only have served to increase this impression.

Any "decision" on what Europe is or should become would be a tragedy for, indeed antithetical to, the European project. Without this creative ambiguity, this fundamental indeterminacy, the promise of democratic politics must always remain one of empty and strategic rhetoric rather than the emancipatory ideal that it claims to represent. Europe's future can be and must remain sketched only with the lightest of brushes if our "post-national" polity - something to be celebrated - is not to be governed by "post-political" doctrines - something to be deplored. Any decision on the future of Europe is thus, by definition, the wrong one.

Serbian and French worker

Imagine the following story. A French worker worried that he might lose his job, angry at Jacques Chirac decides to vote against the Treaty Establishing a Constitution for Europe. He is worried that the Constitution might elevate certain values to the status of constitutional principles and in this way completely impede any construction of the welfare state at the European level in a conceivable future. The French worker is not necessarily racist or nationalist, he just gives priority to the maintenance of the French welfare state over the creation of a political Europe-ideal that he does not necessarily dislike.

A Serbian worker on the other hand is asked, from the European Union to accept complete liberalization of the economic system of the state. He is asked to suffer, to lose his job, so that Serbia is able to undergo a transition process, necessary for the country to enter the EU. He is asked practically to sacrifice his proper life, for the benefit of the country and its future generations.

Voting against the European Constitution the French worker send a clear message to the Serbian worker: I don’t care much about you. Notwithstanding the fact that you sacrifice so much to join the Union I am ready for my own benefit to postpone your entry into Europe.

This is exactly what the French and Dutch voters by the way did. They, according to numerous sources, prolonged the accession process of not only Turkey, but possibly of the Western Balkan countries and possibly even Bulgaria and Romania. This is just one negative aspect of the French and Dutch no votes. Look at it in this way, political situation of the Western Balkan post-war societies is very fragile, there is a direct link between economic decline of the certain (large) portions of the population and political radicalism that breads conflict and eventually war. The political elite in the countries of the Western Balkans is able to maintain a relatively stable political order only thanks to the carrot of EU membership. Only, in sight of such a, what they increasingly believe to be a bright future (before the French and Dutch “no” votes) are the Serbian workers ready to sacrifice their living standards so that their children can have a prosperous future. Only the prospect of EU membership is able to facilitate the, e.g. Kosovo’s independence from Serbia or is able to tame secessionist forces in the frail states of Macedonia and Bosnia and Herzegovina. The longer these countries wait for EU membership, more likely is it that their population will become disillusioned with the EU dream. Euroscepticism in the candidate countries will most likely bread a return of violent nationalism to politics. Voting for the “no”, to be provocative, the French worker sends a message to the Serbian worker, I am not ready to sacrifice anything for the common EU future, I do not care much if this means that war will happen again in your country, I do not want it by all means, but I hold my welfare state dear enough to be able to risk a portion of responsibility in what happens in the Balkans. The French worker might say to his Serbian friend, “even if the no vote delays your EU membership for a couple of years, so what, this will not mean that war will break out once more in the Balkans”. I am not sure, this is a negative aspect of the “no” vote once should be seriously worried about. This dilemma brings us to the fundamental questions concerning the nature of the EU polity, maybe EU is not sacrificing for, maybe the welfare state is more important, maybe its better that we all go our own way, back to 1939.

The End of the French Social Model?

For an extremely interesting article in the French Press,
please read here

Solidarity as the Foundation of a New European Project

Fair enough, I say. Dutch people have rejected the EuConst making it a dead text walking. Realism commands the following: let's forget about that text, and vote a new treaty that encapsulates the basic institutional improvements (Minister of Foreign Affairs, Long Presidency of the European Council etc..).

The European project, however, does not, and should not, end here. To the contrary, it should begin now. We should learn from defeats, especially from bad defeats as those coming from France and Holland. We should not fear failure for the future, we should launch new ideas for a better Europe.

The reason for doing this should not be found within our polity only, as it has commonly been the case for other project of constitutionalism. In the European case, the constitutionalist project is victim of its own success. Stability, prosperity and peace have been secured to a reasonable extent in Europe. It is only foreseeable, and desirable, that stability, prosperity, and peace within Europe will remain a stable foundation of our continent. From this point of view, we do not need a strong constitution, we only need to reassert old principles. Hence, it would seem at first sight that a constitutional project is only an unnecessary extra.

The truth, however, is that Europe should take greater responsibilities vis-a-vis its neighbours and more generally vis-a-vis the world, which does not have the same level of wealth and opportunities. We do not need internal wars to create a community. Nor need we imagination for building a strong responsible Europe. We merely have to face the reality of the rest of the world: poverty, famine, struggles for liberty and democracy, genocides, wars. Europeans cannot sleep on their comfortable pillows, and limit themselves to the complaint of "camemberre and baguette for all."

Solidarity should be the sovereign values that unites us all. Firstly, solidarity towards our fellow citizens. We cannot turn a blind eye to the fact that our small privileges curtail the opportunities of other people. For example, a strong and static welfare state may create protection for few, but it also rigidifies the entrance level to the job market for many (see the growing unemployment in Europe).

Secondly, solidarity towards new member states. The fall of the Berlin wall disenfranchised many people. As soon as that happened they turned to Europe asking for help and integration. On what basis could we meaningfully refuse that help? I find no good reasons to reject it. They have already made sacrifices to join our family, and in the mid run they will bring more advantages to us than anything else. Why then should we be afraid to help them making their way into the European Union?

Thirdly, solidarity towards the poorest all over the world. Again the question is, can we really act as if nothing is happening, and enjoy our golden babel tower without taking steps to redress injustices all around us? I do not think we can, and I believe we stil do too little in this direction. We should be unite in order to bring around us a strong message of hope and a substantive help towards reconstruction.

All this is necessary not only on the basis of pure "good samaritan" feelings. It is necessary because in our present world the distinction between internal and external problems has collapsed. We should not be capable of resolving our own problems without thinking of someone else's issues too. After all, how good would it be to be the healthiest person ever, when everyone else around you is weak and ill? To be honest, the necessity of solidarity has always existed, but borders and misinformation have always prevented us from fully grasping the reality. This is not possible anymore.

The European project, therefore, should be based on a strong value of solidarity. Moreover, it should reflect on all the issues stemming from it. This is only a preliminary word, but I hope that our discussion will bring us far in the direction of a stronger, more responsible, Europe.

Dutch voters smack down EU Constitution

The results are coming in and the results are clear.