How big is 4?

Following my earlier post discussing Judge Alito's slim international law jurisprudence, I thought I should send along a link to an analysis of one of the 4 cases with international law dimensions he decided. Of course, this may be of particular interest as it relates to forced abortions. Tip to Opinio Juris.

Should America Rule the Internet?

The issue of internet governance strikes me as an issue that will be hotly debated over the next few decades. The US monopoly on internet governance cannot be seen as anything but an unqualified success, but the burgeoning amount of new foreign language based content and discomfort over American influence over the newest form of media is making a lot of people uncomfortable. With that in mind, these words from The Economist, strike me as particularly interesting.

Nevertheless, ICANN's stewardship has succeeded because its focus has been not on politics, but on making the network as efficient as possible. The sometimes fierce debates that break out among techies have been conducted transparently. The result has been an internet open to innovation and free expression, led mostly by the private sector and relatively free from government interference.Yet because the system runs under American auspices, other countries are unhappy with this arrangement.

Many of those who want to relieve America of its control think ICANN's job should be taken over by a United Nations agency. To anybody who has spent much time observing the UN at work, this sounds like a poor idea. It is no accident that the world's telephone systems remained so expensive and static for so long. They have been heavily regulated nationally and their international links have been controlled by the International Telecommunication Union, a UN body which once rejected the idea of the internet in favour of a more controllable and less efficient system. That standard never amounted to much. The ITU's approach reflected the interests of state-run telecom monopolies, which themselves are now being shaken to their foundations by the internet.

It is also no accident that many of the countries loudest in their demands for the internet to be taken out of American hands are those, such as China, Iran and Saudi Arabia, that are keenest on restricting its use by their own citizens. These and many other countries are hoping to use the lead-up to the UN's World Summit on the Information Society to begin to wrest control away from America. By changing its position last week the EU had hoped to act as a "bridge" between America and other countries. Instead, it has simply isolated America, with potentially damaging results.

Alito and international law

When Chief Justice Roberts was in confirmation hearings he unequivocally stated that he believed that the use of foreign court precedent and international law generally, was inappropriate in interpreting the US law. Supporters of this position are likely to find comfort in the nomination of Judge Samuel Alito to the US Supreme Court.

While its not the most scientific of searches, a search of Judge Alito's opinion (over the past 15 years) indicate that he has referred to "international law" in four cases, and "foreign law" in 0 cases. Further, the terms "international precedent" and "foreign precedent" are not present in any of his opinions.

The movement of using foreign precedent (as espoused by Breyer and O'Connor) in the US Supreme Court appears likely to be a short-lived phenomenon.

De-economisation of the spirit

Serge Latouche in an article in the November 2005 edition of Le Monde Diplomatique, explores the idea of the possibility of applying the political project of "décroissance" (de-growth) to the democratic system. Elswhere too, Mr. Latouche calls for the "de-economisation of the spirit". Such radical green political agenda would require the impossible or a substantial state intervetionism that would be as interventionist and imposing as the Communist state (if not even worse). The justification of the communist terror was justice and equality while the justification of the totalitarian green state would be survival of the human species in the long run that is. For more on this read the last edition of Le Mode Diplomatique.

The encyclopedia of genocides and massacres

J Semelin with Science-Po Paris and the CNRS will soon launch an Encyclopedia of genocides and massacres which:

aims to create a regularly updated electronic database focusing on massacres and genocides of the 20th century.Currently, there is no tool available that documents and classifies our knowledge by continent, country and historical period. The Encyclopedia’s first objective is to fill this gap by offering reliable historical description and interdisciplinary analysis of both well-documented and less well-known 20th century massacres. Such a unique database will not only be valuable to scholars, but also the NGO community, international legal experts, policy makers and journalists. Anyone seeking a reliable account regarding a specific case of massacre, in a particular country or on an exact date will now be able to locate the information on the Encyclopedia.

Kosovo-an update

This Friday, 28^th October 2005, together with other three authors I will be presenting our White Paper on Kosovo, “WHY IS DECENTRALIZATION IMPORTANT FOR KOSOVO STATUS TALKS?”, on a special seminar at the Italian Senate. The seminar is co-sponsored and organized by the Parliamentary Assembly of NATO and the Italian delegation to the NATO PA.

The White paper is not directly dealing with the issue of Kosovo’s future status, but it insists that decentralization, although linked with the status talks, should be dealt with separately from these talks. Moreover, the White Paper advances the claim that both decentralization projects of the Serbian and Kosovo Albanian side should be considered in order to reach the final compromise outcome.

In the mean time the UN Security Council on Kosovo was held last week. Serbia reiterated its position, best illustrated in the formula, “more than autonomy, less than independence”, when referring to Kosovo. Kosovo Albanians, on the other hand, ask for unconditional independence and some of them warn that renewed violence in the Province might take place if Kosovo is not to be granted sovereignty very soon.

In a recent article for the Foreign Affairs, Charles A. Kupchan, a clear advocate of Kosovo’s independence, somewhat provocatively (unlike other advocates of the independence of the Province - e.g. Ineternational Crisis Group), called for the Partition of the Province (for the Serbian North of Kosovo to remain with Serbia) and asked the International Community to change its attitude in this regard. As arguments in favor of such position, the author pointed out, Kosovo Albanians are not able to control the Serbian dominated North of the Province. Moreover, the UN SC will not be able to impose Kosovo’s independence on Serbia, due to the fact that Russia and China might oppose to such action. To those who fear that such an outcome might cause further disintegration of territories of other countries of the region (Macedonia, South Serbia, possibly even attempts to establish an autonomy for the Hungarians in the North of Serbia’s Province of Vojvodina), Kupchan assures that partition of Kosovo will most likely not lead to such an outcome.

Other authoritative sources argue that top ranking Albanian officials assure that they would prefer partition than deep decentralization as recently proposed by a UN report on Kosovo Standards (Kei Eide), namely, referring to Eide’s hints of desired decentralization for Kosovo, Balkan Investigative Reporting Network says, “A Kosovo government official who did not want to be named said many Albanians would prefer to trade territory than concede such vital powers.”

I wander if this is a good solution. Once again pragmatic requirements of keeping Serbia stable and appeasing the Kosovo Albanians in fulfilling their long lasting goal of independence from Serbia, might result in the ethnic cleansing of the Serbian municipalities that do not belong to the area North of Ibar. Will some future Serbian government that agrees to the partition of Kosovo be able to present this “trade-off” as just? Peace and stability in Serbia for misery and deprivation for the Kosovo Serbs and other minorities living south of the line of division. Probably they will, because at the end of the day Kosovo does not truly matter so much to the majority of Serbs from Serbia. What especially does not matter is the destiny of several thousands of people whose villages will remain south of the line of division in Kosovo, Kupchan proposes. Once again, in the Balkans, trade off of territories comes before the sanctity of life of the individual. Maybe the lenient (but tacit) attitude towards Kosovo’s independence, at the first place, in the 1980s, was not such a good idea?

A little more on Mr Galloway...

A quick update on my earlier post. Today's Guardian reports that Galloway, sensing that his demand to be tried for perjury in US courts will not be accorded, is now considering hiring a venue in Senator Coleman's heartland of Minnesota and challenging him to a debate. He also, however, has expressed little confidence that the Senator will grant him even this forum to respond to the charges made against him.

Love Galloway or hate him, this is pretty gripping stuff; a far cry from the increasingly bland and painstalkingly staged political interjections that we are becoming so used to. It is, of course, showboating from Galloway; but so what? It is much harder to disengage from politics when it is expressed in terms such as the following:

If they say they are going to charge me I'll head for the airport and I'm calling for them to do so, begging them to do so... The charge against me in this sneak attack is that I lied under oath in front of the Senate when I went there in May and trounced this group of lickspittle pro-war Bushites. I am unequivocally stating here and now I'll head for Heathrow now, pausing only to pick up my toothbrush, if they will promise to charge me with perjury. It is very clear what they said, I lied under oath. It is a criminal offence which is what they told me when I swore the oath. It is put up or shut up time. See you in court Senator Coleman.

Smoking Britain

Come on Tony, you can make it! You can do something good for your country and enforce a total ban on smoking! Don't shy away from your responsabilities as a leader. Don't be tempted by the syrens of people shouting liberty for everyone. Smoking in public places is not a liberty. It is a curse that we all have to bear.

Italy, Ireland and others have already gone down this path, and believe me, it made a huge change. Public places are now pleasant places where people can gather, discuss, have fun, without having to put in jeopardy their health and having to bear many other unpleasant side effects (more drinking, more smelling, less sociability).

Freedom will be protected, don't worry. People who wants carry on smoking will be free to do so. Locals that do not want to lose their clientele will put in place new ingenious devices. One example is the heating posts, around which people can gather and form new friendships!

Sarkozy for giving the immigrants voting rights

New/old French interior minister Nicolas Sarkozy presented, in general terms, the policies of his ministry for the future period. He said a vote on the municipal level should be granted to legal immigrants and called for the general increase in legal protection of these people. Simultanouesly he called for a serious clampdown and expulsion of illegal immigrants.

Again, it seems that liberalization of citizenship requirements for immigrants does not go hand it hand with liberalization of the border regime, quite on the contrary.

Iraq has a Constitution

78% of the population said Yes to the Constitution!

Here you can read our precedent posts on this topic.

The future is still uncertain, though...

Seconds away... Round two

A new twist in the tale concerning George Galloway and the allegations that he benefitted illegally from the Iraqi oil-for-food programme. The Senate Committee in the US investigating this scandal - before which Galloway has already performed, to startling effect (see my post here) - has now directly accused him of "lying" to them in his earlier hearing, claiming to have seen "new evidence" that constitutes a "smoking gun" in terms of Mr Galloway's involvement in the affair. If this is correct, it is bound to make a lot of people very happy; Mr Galloway is undoubtedly better at influencing people than he is at making friends.

However, the Senate Commission got such a humiliating roasting from Galloway last time around that you'd expect them to be perhaps a little more careful. Galloway, it must be remembered has been investigated for this on several occasions - not least of which was a libel case with the Daily Telegraph, in which he was awarded some 150,000 pounds in damages - and has always come up remarkably clean. One of the points on which he was able to criticise the senate commission was on the manner in which they had gone about business - effectively holding him guilty before he'd even had a chance to be heard, let alone a fair trial. Which makes the current allegations all the more curious.

Firstly, it seems that the actual, concrete allegations concern money paid into the accounts not of Mr Galloway himself, but of his estranged wife (who worked as a research scientist inIraq at the time) and one of his spokesmen (a journalist). Galloway has simply denied any knowledge of or responsibility for the business transactions of these two. Hardly, at first glance at least, a smoking gun.

However, the Senate Commission seems to have made the same mistake - if, indeed, it was a mistake - again. They have published these allegations as truth all over the international media - without forewarning Galloway, or giving him any chance to respond to them. Thus, the public perception, once again, will be that he is guilty, regardless of the fact that the evidence may not be quite as conclusive as is being suggested. It is difficult here to shake off the impression that the Commission, determined to make up for its humiliation some months ago, is seeking to have the "last laugh" on Galloway by publishing accusations from a position of privilege that would not stand up to scrutiny in a libel court. Exactly the abuse of process that Galloway got so much mileage from in his earlier appearance before them.

If they thought, or hoped, that this casual smear would be the end of the matter, they appear to have been very much mistaken. Galloway's response has been typically bullish; not content with restating his view that the Commission has been "cavalier" with notions of process and justice in this affair (an accusation that it is hard to disagree with, whatever your view of Galloway), he has gone so far, in an interview with the BBC's Today programme, as to demand that he be charged with perjury before US courts, so that this new evidence, and allegations, can receive the formal scrutiny that they deserve - and, indeed, that justice demands. If the Senate Commission is to dispel the impression - and it may well be entirely unfounded - that this is a fairly cynical abuse of process in order to exact revenge for their humiliation of a few months ago, they absolutely must call his bluff on this one; the time for trial by privileged insinuation and unchallengeable accuasation is well and truly over.

Meeting of Head of States under UK Presidency of Europe

On 27 October 2005, Surrey, the European heads of States will meet to discuss the 'state of the Union' under the UK presidency. Blair's ambitious program to relaunch political integration has been somehow played down by the ambiguous result of german elections. However, the text at the basis of the meeting is bold and clear: It is only through modernisation that we will maintain our values, it concludes.

Unfortunately, on many values there is widespread disagreement. Plus, Europe is characterized, at the moment, by a sheer staticity due to a lack of political vision. Blair certainly has this vision, which is well documented in the text linked, but it is unclear whether he has the strength, and momentum, to carry his vision further.

Short proposal to democratise UK declarations of war

Clare Short, the former Labour Cabinet Minister and, alongside the late Robin Cook, one of the most outspoken and high-profile Labour critics of Blair's decision to go to war in Iraq, has introduced a Private Member's Bill to the House of Commons that, if accepted, would mean that, under normal circumstances, the Prime Minister would have to seek the approval of Parliament in a formal vote before engaging in armed conflict. The Bill is set to receive its second reading today.

Opponents of the Bill put forward the fairly unimaginative arguments that such a Bill would be detrimental to national security, stopping the UK from moving quickly and decisively precisely in situations in which such action is most needed. Moreover, they state that national security further demands that legal and intelligence briefings on the situation in question must remain secret. The Bill's supporters, on the other hand, point out that the proposed law would not commit the UK to any action not already commonplace in most democracies, including the US, in which parliamentary approval, and the consequent publication of information, is commonplace. Importantly, the Bill also follows US legislation in allowing for emergency action in which ex post, and not ex ante, parliamentary approval can be sought.

Also of interest, given the recent controversy over Lord Goldsmith's briefing on the legality of an eventual war in Iraq (which, it seems, was not even made fully available to the cabinet, let alone the Parliament), a number of articles of the proposed law commit the Government to prepare a report setting out, amongst other things, "the legal authority for the proposed participation" in armed conflict. This, of course, stops well short of compelling the Government to publish all legal advice it has received on the issue; it would almost certainly, however, provide incentive for them to come up with something a little less crude than the vague assertions of legality, backed up by plagiarised 10-year old PhD theses, that we were served with last time around.

Clare Short has often been viewed as one of Blair's more extreme, less reasoned critics from within his own party; often, this has been to her detriment, and often she has had only herself to blame. Certainly, she did not manage to handle her opposition to the Iraq war with the dignity that Robin Cook displayed. This Bill, on the other hand, seems to be a very well thought-out, and balanced, proposal; difficult, indeed, not to support. This, of course, doesn't make it any more likely that it will become law in the end.

Blair, of course, did allow for a vote - some two days before the war began - but he was not compelled to do so; and many, including Gordon Brown, have suggested that it would be better to view this as having set a "parliamentary precedent", making it "unlikely that except in the most exceptional circumstances a government would choose not to have a vote in parliament". The difficulty here is that it is almost always possible to characterise a decision to go to war, by its very nature, as being taken in "exceptional circumstances". Short's reaction to this argument this morning in parliament was to note that she had "recently lived through the way in which the decision to go to war in Iraq was made" and concluded that "decisions are not well made when they are made informally". Again, knowing what we now know about the quality of the evidence and ambivalence of the legal advice that provided the "grounds" for the war, it is far from easy to disagree.

Evryone is a racist for someone else... it seems

A few months ago, a student protests in Paris was interrupted by groups of juvenile delinquents who attacked some of the students and mostly stole some jackets, phones, MP3 players etc. A few days latter a number of kids who claimed to have taken part in the beatings were interviewed by a journalist who published an article in Le Monde exposing the racist theories of the delinquents. According to the journalist, these kids, who were from a school populated by 80% of coloured students, had planned to interrupt the protests for two reasons: to steal and to beat some white kids. The article came through as the explanation of these kids motivation but also as a description of the motivation of all the delinquents who participated in the event.

This article made a lot of noise and it was quickly followed by a petition condemning racism against white citizens launched by famous intellectuals, some of which are notoriously from the left-wing. A large number of anti-racism associations protested against this petition which some believed to be motivated by an anti-African racism.

It’s interesting to see that a first group (the delinquents) are called “racists”, by a second group (the authors of the petition), who are in turn called racists by a third group (the anti-racist associations), who, themselves are also called racists by a fourth group. This last group’s claim is that the anti racism associations, in refusing to accept that coloured kids can be racist, fail to consider them as equals and adopt instead an over-tolerant position as if members of a minority could not be anything else than victims.

Two aspects of this debate are particularly surprising: 1/ the use of the term “racist” exposes one to be called a racist right back ; 2/ some naïve minds, especially from the left-wing, believe that racism is a privilege of poor white, French, citizens.

International Justice versus Peace

Recently there was an interesting exchange of opinion in the International herald tribune regarding the recent arrest warrant, issued by the International Criminal Court against top rebel leaders of Uganda’s Lord’s Resistance Army, “shadowy group that has been terrorizing northern Uganda for 19 years”. Arguably, such arrest warrants are likely to alienate these leaders and make them ‘go back to the bushes’ and abandon the participation in the preparation of peace accords between the above mentioned rebel group and the Ugandan Government.

Richard Goldstone, former justice of the Constitutional Court of South Africa, former Chief Prosecutor for the International Criminal Tribunal for the Former Yugoslavia, wrote an opinion article that was strongly in favour of international justice (vis-à-vis peace). He argues that as far as short term consequences there might be some cost but that in the long term perspective ICC involvement is for the good of peace in the world. Katherine Southwick, a US lawyer and a long term researcher in Uganda is strongly against the arrest warrant of the ICC, that she regards as irresponsible. Ms. Southwick says that ICC became an “obstacle to what International Crisis Group called ‘the best opportunity for peace that northern Uganda has had since the war began’”.

This discussion is interesting and it brings one necessarily to question to incremental validity of International tribunals and international justice. Namely, is international justice too blind? Is political responsibility, knowledge and emotional link with a particular political and social context, a necessary element of an adequate system of justice? Thus, are only national courts endowed with a sensibility, and ultimately political responsibility, that allows them to measure carefully before they make a move, such as take judicial action against leaders of the Lord’s Resistance Army in such a particularly sensitive moment for Uganda’s peace.

I cannot offer a definite position on this issue. Some time ago, in the Serbian political context I wrote an article for a publication of the Italian “Mulino”, in which I criticized the legal action of the Prosecutor of ICTY who always made secret indictments public in sensitive political moments in Serbia. I must say that I revaluated my position to a certain extent. Hence, one could say that if international justice is backed up by certain mechanisms in which the international community manages to balance the negative effects of the pursuit of that justice, then the legal action is justified. In the case of Serbia, this accompanying moves include ‘carrots’ of financial aid and potential EU membership for the country, in Uganda, on the other hand there is very little on offer and it is rather dubious if the goal of international justice is ‘worth more’ than the achievement of a pragmatic peace-deal in the country.

Physician Assisted Suicide Now!

Some useful material concerning the forthcoming decision on physician assiseted suicide (PAS), here

Oregon v Gonzalez will be an important case. Gonzalez is the (in)famous Attorney General. Oregon is the only American state that permits by legislation a restricted form of PAS.

Postwar Europe

Tony Judt on Postwar Europe, read here Alan Ryan's review

An historical examination, which can be of interest to those who study European Constitutionalism.

A Way out of the etical dilemmas on stem cells?

The prestigious scientific publication, Nature, publishes an article on this them. Please Read here

An excerpt:

Religious and ethical concerns are forcing researchers using human embryonic stem cells to seek ways to sidestep these issues. In a first attempt, biologists this week revealed details of two techniques for deriving the cells that do not involve the destruction of a viable embryo.

Primary elections in Italy

Yesterday, 16 October 2005, Italy held the first primary elections of its constitutional history. The success was extraordinary as 4.2 millions electors turned up to cast their preference in favour of one of the candidates of the centre left coalition. The score is considerable if you take into account the fact that the whole italiam electorate amounts to 40 million people, thus giving the centre left electorate an average sum of 20 million people. This means that more than 20% of the centre left electorate actually went to vote.

The result was a clear confirmation of Romano Prodi, who won with a majority of 74.4% The second best voted was Bertinotti, the secretary of the post-communist party, with 14%.

This enormous success gives a boost to the centre left coalition in view of the national elections which will be held in April 2006.

Kingsbury's alternative theory of public international law

Benedict Kingsbury offers an alternative theory of public international law, in his paper 'the problem of the public in public international law', presented at the NYU colloquium of Legal, Political and Social Philosophy.

Here's the paper.

The Pope, liberte' and laicite'

Ratzinger argued that Fundamental Rights do not come from politics but from God.
He sent this message to a conference entitled Laicite' and Liberty. In his letter, he also holds that the liberal state is good if, and only if, it guarantees the right to one's faith and the other fundamental rights as they flow from God.

Ratzinger goes on sayint that Laicite' should not interpreted as in opposition to faith, but instead it should be understood as creating a space for everyone, individuals and groups, where to practice religious convictions.

It is somehow amusing that this Pope invokes a right to religious liberty and pluralism, when so many other times he has attacked pluralism, and any other truth not stemming from his own magisterium as far as religion is concerned.

In much the same way as Wojtila, Ratzinger has a double standard of judgements. When he plays in defense, he uses pluralism and tolerance as a shield from outsiders' attacks. When he plays in attack, he condemns pluralism and tolerance, and admonishes that there is only one truth: that stemming from the Vatican!

It is hard to square those two positions. And it would be very dangerous to accept any claim of the Pope over the interpretation of Fundamental Rights!

Is decentralization of state power part of the acquis of the European Community? The example of Vojvodina

On 13th of October 2005, European Parliament (EP) held a Public Hearing on the Situation of minorities in Vojvodina. This hearing presented one in the series of events related to this Northern Serbian Province, organized by the European Parliament. Even before the hearing, EP adopted a resolution that expressed concern about violations of the rights of minorities in Vojvodina.

The representatives of the European Commission present at the hearing, warned against the over-dramatization of the situation in the Province, in view of much more serious problems elsewhere in the region (e.g. Kosovo, South Serbia and Montenegro). The representatives of the Serbian and Vojvodina governments, also attending the hearing, rejected the accusations and underlined the improvement in the living condition of minorities since the last fact finding mission of the EP. EMPs from Hungary, human rights activists from Serbia, as well as minority representatives, in dramatic tone, pointed out to the violation of minority rights. It is important to point out that no-one accused the government of directly contributing to such a situation. Nevertheless, they pointed out to the lack of effectiveness of courts who are processing cases of inter-ethnic intolerance and violence. The response of the Serbian government in this regard was that court system in Serbia is generally inefficient and slow (due to the lack of resources and often human capital) and that thus, court cases against perpetrators of violent acts against minorities are also progressing slowly.

Not to say that there is certain amount of inter-ethnic tension in Vojvodina, but it seems rather surprising, that the EP is organizing an event on human rights violations in Vojvodina and does not do the same for Kosovo where the treatment of minorities is far worse than in Vojvodina. Seemingly, the aforementioned resolution and the parliamentary hearings on these topics are strongly pushed by the Hungarian nationalist EMPs who want to improve their public image in Hungary in the light of next year’s general elections in this country. Interestingly the hearing was directly broadcasted on of the biggest Hungarian televisions.

Most of the critics of the Sebrian government argued that the slow return of authority to Vojvodina’s autonomy causes inability of the Province’s institutions to protect minorities (to remind the readers Vojvodina enjoyed great territorial autonomy under the Communist Constitution of 1974, this autonomy was almost completely de facto abolished by Milosevic’s regime, the democratic governments after 2000 managed to return some formal power to Province’s institutions). Some Hungarian, German and UK EMPs added that if Serbia wants to continue its path towards EU integration, it needs to give back Vojvodina the autonomy it enjoyed before. After the intervention of certain participants in the panel, arguing that decentralization is not an institutional must, so to speak, in Europe, invoking the example of France of the example of recent Portuguese referendum, where the people decided for the country not to go in this direction, the representatives of the European Commission confirmed that decentralization is not crucial. As long as minority rights are secured, the country is in line with the best standards of the EU. Regardless of whether institutional structure for minority protection is individually, collectively or territorially based.

UK deportations to Zimbabwe in doubt

The British government will have to rethink its policy on deporting failed asylum seekers to Zimbabwe, after the Asylum and Immigration Tribunal ruled that an unnamed failed asylum seeker would risk being harmed by Mugabe's regime if he returned. The High Court is also considering a judicial review on this issue, but had postponed that case until the outcome of this tribunal hearing was known. It will be interesting to see what the Court decides in the light of this result.

The tribunal ruled on the grounds that there was evidence that those who had fled the regime in Zimbabwe, and in particular those who had sought protection from Mugabe and his secret police in the form of asylum in a foreign state, were viewed as traitors by the Zimbabwean regime, and thus risked persecution accordingly. This raises an interesting issue in terms of international refugee law.

The definition of "refugee" in the 1951 Refugee Convention reads in relevant part that:

the term 'refugee' shall apply to any person who: . . . (2) . . . owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;

In 1999, the House of Lords handed down a major decision in terms of asylum and international law, ex parte Shah. There, it was noted that:

In order to qualify as a refugee the asylum seeker ... must therefore prove: (1) That she has a well founded fear of persecution. (2) That the persecution would be for reasons of race, religion, nationality, membership of a particular social group, or political opinion. (3) That she is outside the country of her nationality. (4) That she is unable, or owing to fear, unwilling to avail herself of the protection of that country.

The interesting thing in this case, of course, is that the asylum seeker in question had already, in the eyes of the British government, failed to fulfil these criteria (presumably at the first or second hurdle). The Asylum and Immigration Tribunal appears to have ruled, however, that the very fact of having failed in an asylum application itself meant that such asylum seekers had a well-founded fear of persecution if returned to Zimbabwe. Given that the most likely grounds for having failed in the asylum process in the first place is the absence of such a well-founded fear, the British government would seem to be caught in something of a catch-22 situation.

So perhaps any failed asylum seeker in the UK from Zimbabwe need only reapply, on the grounds that having applied in the first place was itself sufficient to create a well founded fear of persecution. Certainly, the non-refoulement provisions would make it very difficult for the UK to deport such "failed" asylum seekers, if the findings of the Tribunal are accepted.

Of course, any would-be refugee would still have to fulfil the second of the House of Lords' criteria: that the persecution be on the grounds of race, religion, nationality, membership of a particular social group, or political opinion. The first three do not seem applicable to the case of Zimbabwe; the latter two, on the other hand, quite possible are. However, if the government could argue that persecution on the grounds of having requested asylum does not fall under "persecution on the grounds of political opinion" (quite plausible, depending on context), then everything would turn on the meaning of the phrase "membership of a particular social group".

This phrase was central to the House of Lords decision in ex parte Shah. They made it clear that two questions would have to be answered: firstly, does x constitute a particular social group?; and secondly, is the persecution for reasons of membership in this group? The judgment examines these issues in considerable detail (including citing a number of foreign judgments, most prominently those from the US). It seems clear that, in the present case, if "failed asylum seekers from Zimbabwe" was held to be a "particular social group", then the causation issue would not be problematic. However, can such be held to be a "particular social group"?

On this, we can only speculate. In his judgment in the case, Lord Steyn noted that the persecution alone could not be constitutive of the social group (i.e. the group could not be identifiable solely by the fact that they are persecuted against): He then goes on to quote approvingly A. v. Minister for Immigration and Ethnic Affairs and Another (1997):

If it were otherwise, Art. 1(A)(2) [of the Refugee Convention] would be rendered illogical and nonsensical. It would mean that persons who had a well founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution . . .

Lord Steyn stressed the need for a contextual evaluation of this issue; he also, however, in the context of that case, held that a) women in Pakistan were a particular social group and b) the appellants also fell under a narrower social group, that of women accused of adultery in Pakistan. The second of these groups does seem to run the risk of being a group defined by the fact of persecution; Lord Steyn however held that this was not so, due to "the coincidence of three factors: the gender of the appellants, the suspicion of adultery, and their unprotected position in Pakistan".

In the present, speculative case of a failed asylum seeker being deported to Zimbabwe, the gender issue is obviously a non-starter. However, the other two remain relevant. Such people are allegedly viewed as traitors and spies by Mugabe's regime; and they seem unlikely to be able to rely on protection from the Zimbabwean courts to defend themselves from these charges. Of course, such decisions can always go either way; two similar courts could make two completely opposed findings on the issue. However, i suspect that there is enough in ex parte Shah to enable UK judges to rule that such failed asylum seekers were a "particular social group", if they were so inclined. Given the sabre rattling that has been coming from the judiciary in recent weeks, announcing that they will not be "browbeaten" by the government on the issue of deportations, who is to say that they wouldn't be.

Such a decision would, on the other hand, make a complete nonsense of the term "failed asylum seeker from Zimbabwe"...

Nobel Prize to Harold Pinter

Harold Pinter is the 2005 Noble Prize winner.
I would have preferred Philip Roth, who was amongst the nominees. Just a personal preference...

Jurisprudence in Action

For all those interested in Anglo-American Jurisprudence, there's a special dish waiting for you here.

You'll find two draft chapters of Ronald Dworkin's new book which will be presented tomorrow at the NYU Colloquium in Legal, Political, and Social Philosophy.

Dworkin's new book, which will be entitled Justice in Robes, will be a collection of articles on topics such as objectivity and truth, monism v pluralis of values, and interpretation of principles.

A little bit of history repeating?

When the British Army first moved into Basra, they were held up as an example, particularly to their American counterparts, of how to manage a tricky urban warfare scenario. They had, it was widely agreed, learned much from decades of in many ways similar challenges during the Troubles in Northern Ireland, and were now putting that to good effect in southern Iraq. Some of the events of the last week or so, however, have made the reference to Northern Ireland seem, if still relevant, altogether less hopeful.

Firstly, it must be borne in mind that the British did indeed enjoy relatively good relations with the citizens of Basra during the war and its immediate aftermath; and some of this was no doubt down to techniques learned in the six counties. However, it must also be noted that the simple demographics of the situation favoured them greatly in comparison with US forces: the largely Shia areas of the south certainly had no love for Saddam Hussein, and were far more likely to welcome the invading forces as liberators rather than occupiers. However, as time has gone on, these relations have become increasingly strained, with both parties arresting and detaining officials (policemen or soldiers) of the other. These events culminated recently in the storming of an Iraqi prison by UK forces to free two of their group arrested by Iraqi authorities, and the arrest of Iraqi policemen by UK forces on charges of terrorism (accompanied by the startlingly open accusation that Iran was responsible for arming them). There can be no doubt: the people of Basra, on the whole, want the UK out of their country.

Anybody in the British Army mulling over the reference to what they learned during their time in Northern Ireland must have been struck by a sense of déjà vu. After all, UK forces were first called into the province to protect the Catholic minority from the Protestant majority, and a police force so biased in favour of the latter that it could not be trusted to fulfill that role. And they were welcomed by the Catholic community; at first. It didn't take long, however, for these relations to sour either (for a whole myriad of complex reasons, among which, undoubtedly, as in Basra, must be counted the cynical propaganda of those seeking to ferment violence for their own aims); soon, the UK forces were viewed as an occupying force by those who had welcomed them as liberators.

If, however, we can say of the British army that they have learned from this experience - at least in terms of urban guerilla technique, if not of the inevitable unpopularity of occupying forces - it seems, sadly, that the same cannot be said for the Government. Tony Blair plans to introduce to the Commons tomorrow a bill to grant a new raft of powers to the police, amongst which the most controversial will be the plan to allow detention without trial for up to three months.

OK, Guantanamo it ain't. Nonetheless, the British government tried something very similar before, during the Troubles: internment. The policy of arresting and detaining Irish Catholics without trial is widely viewed now as one of the most disastrously counter-productive moves made by the Brits in the whole conflict, yielding very few results in terms of intelligence or arrests, and providing hugely fertile grounds for recruitment of new members to the Republican cause - and to acts of terrorism. Certainly, there are some differences with the new proposed legislation; Blair, for example, has made much of the fact that such detentions will be brought before the judiciary for weekly confirmation. This, however, has not been enough to silence the critics; whose membership includes several prominent members of the judiciary themselves.

Already, commentators and opposition politicians in the UK have begun to link the two, arguing that there is nothing to suggest that history will not repeat itself this time around. Labour MPs have warned that it could "split the Party". Blair, however, seems determined, on this issue as on so many others, to live from hand to mouth...

Yet another italian tragedy

Lapo Elkann, one of the heirs of the Agnelli dinasty, the family who owns FIAT and controls a great share of the italian financial system, is now in coma.

The coma has been caused by a cocaine overdose.

Elkann is one of the most visible public managers of Fiat; i believe that this story tells a lot about italian elites and their lack of responsibility. Fiat is the biggest car company in Italy (it also owns Ferrari), and represents Italy at the International level.

This is another sign that the italian economic and political system needs a profound reform.

Bye Bye Schroder.. Hallo Angela

The former German Chancellor, Gerhard Schroder, leaves active politics.
After a tough exchange on how to sort Germany out of its political deadlock, Schroder gives up and leaves the post of Chancellor to Angela Merkl, the first woman to become head of the government in Germany.

Merkl's government will be supported by a grand coalition, supported by the centre left and the centre right. The ministers will be equally distributed.

The open question is whether the new German Thatcher will be able to solve the economic crisis of Germany by reforming the rules of its market. This is not a very easy task, but Germany and, more generally Europe, desperately need an acute awareness of the structural problems that burdens our economic development.

Transatlantic cut of agricultural expenditure

Please read here

An excerpt:

In an effort to revive stalled World Trade Organization (WTO) talks, US Trade Representative Rob Portman said the US would cut farm subsidies by 60%.

In response, EU Trade Commissioner Peter Mandelson said the EU "will match, and indeed go substantially beyond" that reduction.

How to Choose a Supreme Court Judge

Most discussions of which Supreme Court judge to appoint often revolve around the position that the proposed indivdual is likely to take on a set of 'hot button' topics - abortion, 'right to die', the death penalty etc. There are also some euphemisms for this such as asking about the 'judicial philosophy' of the proposed candidate. In fact, judges don't seem to entirely willing to meet in full any expectations that may be engendered as regards on the basis of their apparent 'judicial philosophy'. For example, Rehnquist's theoretical position on the Miranda rules on the rights of suspects weren't entirely reflected in his decision not to overrule that precedent in Dickerson.
This type of reticence is probably explained by the fact that judges can often perceive that there is a 'wider picure' that sometimes mitigates against a single -minded pursuit of one's own views even where the law does indicate scope for discretion. For example, in Dickerson, Reinquist was apparently swayed by wider arguments of legal certainty. Such considerations suggest that there is a danger of over-emphasizing the political aspects of these appointments (the fact is that the incumbent president will hold most of the best cards so far as this dimension is concerned). Maybe a more naive approach is preferable in which proposed candidates' legal credentials (in terms of their general nous and ability to take a wider view of a problem) are genuinely seen as the key aspect of the appointment so far as public scrutiny of that process is concerned.

God told me to do it...

The BBC is set to allege in a documentary that Bush claimed, in discussion with a Palestinian delegation, that God himself spoke to him, and told him to invade both Afghanistan and Iraq - and to secure a Palestinian state. As the Independent notes, such a claim is hardly implausible given what is known about Bush's religiosity; if it is true, however, it is terrifying. What resonance will such claims of a "Holy War" find in even the most moderate Muslim communities? And what chance does international law have of providing any constraint if the world's most powerful man genuinely and fervently believes himself to be on conversational terms with the Almighty?

US Supreme Court and Euthanasia

The US Supreme Court will go back to the issue of physician assisted suicide in a forthcoming case, Gonzales v. Oregon, 04-623.

The new court will therefore immediately tested on one of the most framatic issues. This will be an occasion to read the opinions of both Justice Roberts and Justice Myers.

Oregon is the only American state to make physician assisted suicide permissible by legislation. The only other States in the world being Belgium and Holland.

For a short report, please read here

Iraqui Referendum on the Constitution

Some messing up in Iraq prior to the referendum on the Constitution. Please read here

The international community has criticizrd the government for changing the rules of the referendum. As a consequence, the government backed up. Read our previous posts on the Iraqui Constitution, here, here, and here.

Justice without values?

Why is the American press so relieved for the nomination of Justice Miers?
Ok, she doesn't appear to be a right wing extremist, but hey, is that a relief? First, nobody seems to know what are her deepest convictions. Secondly, she has never been a judge, so there is no guarantee that a good lawyer can become a good justice. The reason is precisely that a justice in the US Supreme Court has to dwell with a number of value-decisions, which does not seem to be Mrs Miers cup of tea. As for Justice Roberts, commentators say that she'll be a good, pragmatic, lawyer, working on a case-by-case basis. Again, is this a guarantee of fair decisions? Far from clear... O'Connors might be remembered as a non-ideological justice who determined the outcome of many cases by her swinging. It is difficult to assess the long term impact of her swinging, though. It may well be that so much swinging leaves too many ambiguities that can be exploited by those who are more ideologically minded. The senate will have to press Mrs Miers more than it did with Justice Roberts, because the US do not want to go to justice blind-folded when it comes to its fundamental rights.

A little more on the DUP and decommissioning...

A quick update on my post below on the reaction of Ian Paisley's Democratic Unionist Party to the recent finding by the body set up to oversee the process of IRA decommissioning that its goals had finally been completely achieved. Paisley initially claimed that the two witnesses - a protestant minister and a catholic priest, chosen to appeal to both sides in the conflict - had in fact been "nominated by the IRA", thus casting doubts on the impartiality of their views and the reliability of their findings.

After the UUP (the more moderate Unionist Party) denounced this as "sad", the DUP have changed tack a little. Keen not to openly accuse the protestant witness in particular - who has openly stated "I never felt as right about anything as I felt about this" - they have hit on a new formula for perpetuating the conflict for the foreseeable future. They now argue that "No-one is disputing that the two men are faithfully reporting what they saw. The question is, did they see it all?"

At first glance, this looks like an entirely respectable question to ask. The IRA, after all, is a terrorist organisation; as such, it is certainly not above lying in order to achieve political goals. However, a moment's reflection is sufficient to illustrate why this objection, given the context, is both dangerous and disingenious.

It is dangerous because, if accepted, it gives the DUP licence to perpetuate the conflict as long as they see fit. They work, it must be remembered, on two basic principles in this context: 1) the IRA are never to be trusted; and 2) Nobody but the IRA can ever know for certain what weapons they have. These two premises alone mean that it is extremely unlikely that the DUP will ever declare themselves fully satisfied with an act of decommissioning, or at least one that is politically achievable. This, in their view, also gives them carte blanche to continue to refuse to enter into devolved government with Sinn Fein (and it is important to remember, in this regard, that these are the biggest Unionist and Nationalist parties in Northern Ireland at present). The IRA, in its view, has called an end to conflict and disarmed fully, to the satisfaction of the body set up to verify this. However, it may not take much political gamesmanship from the DUP to convince them that there proclaimed faith in the political process was misplaced, and to send us back to square one.

The DUP's new approach is also deeply disingenious, as it ignores the context within which decommissioning has taken place. The body, led by General de Chastelain, was set up precisely to overcome this difficulty created by the fact that only the terrorists know for sure what weapons they have, the witnesses were brought in to ensure a degree of transparency to the process. Paisley's attack on the latter as "IRA nominated" was, of course, intended to remove this transparency, and thus all legitimacy, from the body's findings; however, he has backed away from that, and been left with the insinuation that "they might not have seen it all". Such an argument can thus only be taken seriously by those with a complete (and willful) lack of understanding of the complex substantive and procedural mechanisms that have been set up to ensure that we could be as certain as possible that IRA disarmament was genuine and complete.

The churchmen said in a joint statement that "Beyond any shadow of doubt, the arms of the IRA have now been decommissioned". Reverend Harold Good, the protestant witness, has since acknowledged that it is, of course, impossible in these situations to be absolutely certain of what has happened; this is why particular processes and institutions are set up in the first place. He is also adamant, however, that the inevitable presence of this modicum of uncertainty cannot be allowed to continue to hamper political progress in the manner sought by the DUP. He has noted:

I'm prepared, if it were ever proven to me that I had been fooled in this... well, that's the risk one takes... I don't believe that I have been, not for one moment, but we have to be prepared to be fools for the sake of the greater good.

Although this kind of language does risk playing into the DUP's hands, it must, again, be taken in context: that unavoidable uncertainty must not be allowed to hamper progress that has been achieved beyond all reasonable doubt.

Apologies...

... to those who have left comments to our posts on here in the past, and to those who may have done so in the near future. As some may have noticed, we have had a spate of adverts posted masquerading as "comments"; and it was getting to the stage at which we felt it was adversely affecting the quality of the site. The comments feature has been disabled while we look for a better solution; we hope to have it activated again as soon as possible.

Some current uses of UK anti-terror laws...

"If you've nothing to hide, then you've nothing to fear" runs the popular, logically-suspect response to those who worry over the civil liberties implications of the current raft of new powers that have been awarded to police recently. This argument is, of course, as spurious as it is superficially rhetorically appealing; we should therefore be grateful that the UK force seems intent on doing its utmost to demonstrate this by making use of their new powers in situations that can only be described as absurd.

Tony Blair cannot have been pleased, for example, to learn that the public relations nightmare that surrounded the ejection of an octogenarian from the recent Labour Party Conference, for heckling the Prime Minister over Iraq, was to be made worse by the police reaction to his attempts to return to the conference hall. They detained him under the "stop and search" powers of the Terrorism Act of 2000; this, of course, was "intended" to allow police to detain suspected terrorists for the purpose of searching them. It was used, however, to stop an eighty year-old Labour Party member from gaining access to the Party Conference.

The Guardian reports also that another elderly protester was stopped, and searched, under the Terrorism Act. He was apparently wearing a T-shirt proclaiming that Bush, Blair and Sharon were leaders of "Rogue States" (an idea proposed by Chomsky, amongst others), and demanding that they be tried for war crimes. Police records indicate, apparently, that the grounds for intervening were given as "carrying placard and t-shirt with anti-Blair info", the "purpose" of the search being, quite simply, "terrorism". We really need no reductio here in order to arrive at the absurdum.

Of course, neither man was arrested following their brush with anti-terror laws; this, however, is beside the point. It remains abundantly clear that the police are prepared to use these powers in order to control, frustrate and intimidate those who seek to make their voices heard in exercising basic political rights. And this is a dangerous game; as, the more difficult and ineffective peaceful protest becomes, the more appealing - and legitimate - other methods of making a point inevitably appear.

Turkey and Europe

Turkey is a barometre of European weather at the moment.
After the French and Dutch Referenda, Europe is caught in a stagnant phase:
Everybody wants to move somewhere, but nobody wants to take risks. Turkey is a big question mark, but there are some indications that if we took the step of bringing turkey closer, we could be repaid with a success. A risk, however, needs to be taken.

Lessons from the recent past have to be taken into account. For example, enlargement is perceived by everyone as a crucial constitutional decision. As such, it cannot be taken from the top down, but it should be widely discussed in public. Hopefully, this will not be disregarded.

To bring Turkey in Europe would mean more stability. It would send a clear sign that Europe welcomes culture that do not fall exclusively under the christian bless. It would help negotiations concerning Cyprus. It would soothe relations between Greece and Turkey. It would give European muslims, especially turkish one, a sign of acceptance and recognition.

It is, therefore, the moment to dare. Because Europe must give strong signs right now. Otherwise, it will be confined to a role of minor importance

UPDATE:

EU finds deal on Turkey. Austria, the only opponent, accepted that Turkey may start negotiations.