Major blow to diplomatic assurances/torture memoranda

To return to an issue that I have blogged on previously, the controversial policy of the UK Government of signing "memoranda of understanding" with states suspected of carrying out or ignoring torture of detainees has been dealt a significant blow with the decision today by the Special Immigration Appeals Commission that two terror suspects that were scheduled for deportation to Libya must not be sent back there. The judgement in the case of DD and AS v. The Secretary of State for the Home Department, available in full here, although not condemning outright such agreements in the abstract, held that the particular memorandum of understanding between the UK and Libya does not provide enough safeguards to allow the UK to fulfil its obligations under Art. 3 ECHR (the prohibition of torture). The crucial passage from the judgment reads as follows (para. 428):

Although we accept that the MOU and other assurances have been given in good faith by Libya, and that there is no probable risk of a breach of Article 3 ECHR were the Appellants to be returned, there remains a real risk that that could happen. That is because there is too much scope for changes to happen, for things to go wrong, and too little scope for a breach of Article 3 to be deterred or for acts which might lead to a breach of Article 3 to be remedied in time, essentially through effective monitoring. There is also a real risk that the trial of the Appellants would amount to a complete denial of a fair trial. We do not exclude the possibility that the SSHD’s case for their deportation could be strengthened over time.

A number of important points can be gleaned from that paragraph alone. Firstly, there need not be any mala fides on the part of the potential receiving state for a memorandum of understanding to be found insufficient to avoid responsibility under Art. 3 ECHR. Secondly, the level of risk necessary that such assurances would be violated is set commendably low: improbable, but genuine. Thirdly, factors such as political volatility, the likelihood of change, and the possibilities for effective monitoring can be essential in determining whether a risk is genuine or not, however improbable. Lastly, the SIAC makes it clear that this is a contextual, and not a general or abstract, judgment, and that changing conditions in Libya over time may mean that diplomatic assurances can be effective in allowing the UK to deport terror suspects there without violating Art. 3 ECHR.

These points, along with a number of others, are dealt with in the judgment in more detail. There is, for example, a lengthy discussion both of Qadhafi's character, and the manner in which his new rapprochement with the West has been driven by an instrumental pragmatism which could, if the situation so demanded, see it reversed, particularly in isolated cases involving the interrogation of islamist extremists (see e.g. paras. 333-372 of the judgment). The Commission concluded that "[t]here is not yet the range of contacts or years of experience of dealing with each other at many different and friendly levels, or the depth of other links between Libya and the UK which would make the diplomatic path predictable" enough for a diplomatic assurance as to the non-resort to torture to be viewed as absolutely watertight (para. 370), even if Libya's recent and continuing rapprochement with the West is a factor of genuine - and increasing - importance in this regard. The necessary chance of such a risk materialising is set out clearly in the following passage (para. 371):

We have accordingly come to the conclusion that although it is probable that [witness for the Home Department] Mr Layden’s judgment as to how the Libyans would observe the MOU in relation to the physical treatment of the Appellants is sound, and that they would not be ill-treated in a way which breached Article 3, we cannot adopt his conclusion that that would be well-nigh unthinkable. Instead we think that there is a real risk that that would happen... We do not therefore have the confidence which we need to have, for the return of the Appellants not to breach the UK’s international obligations. In short there is too much scope for something to go wrong, and too little in place to deter ill-treatment or to bring breaches of the MOU to the UK’s attention.

There is thus also significant consideration given to the matter of monitoring: where the guarantee of adherence to diplomatic assurances rests on a pragmatic ascertation of self-interest (and not, for example, on a growing commitment to human rights, or a culture of honouring one's given word), the first calculation of a regime that thought that it may stand to gain from torturing detainees would not be the threat of sanctions from, or the deteroration in relationship with, the returning state, but whether it could prevent any breach coming to light. The ability of an MOU to work where a regime could use well known ploys to prevent access to a prisoner does depend on the monitoring body having access or the willingness to report obstructions to the sending country. The very real prospect here that a breach could go undetected, or undetected for a long time, means that the potential adverse reaction from the UK would also be delayed or prevented. The downside of any breach could be markedly diminished" (para. 365).

The issue of monitoring, then, becomes vital. The Commission notes, for example, that strong civil society monitoring bodies, such as a free press or genuinely independent NGOs, or even a strong public constituency of popular support for Islamic militancy, are not present. The Commission goes on to note that the body envisaged as implementation monitor, the Qadhafi Development Foundation, although by far the best-placed "NGO" for the job, enjoying a degree of independence unique among Libyan NGOs, is not sufficient for the task. Although it does have an important track record of human rights protection and humanitarian advocacy, it's President is Saif al Islam al Qadhafi, Colonel Qadhafi's second son, who, despite his reformist opinions, is nonetheless still deeply limited in the criticisms he can level at the regime. The QDF, then, would be useful in monitoring the Memorandum in cases in which a rogue guard tortured detainees against the will of the regime; this is not, however, viewed as particularly likely. In the more probable scenario, of torture sanctioned at the highest level, it would be effectively voiceless. The Commission concludes that "[i]t [the QDF] is no more independent of the regime than is Saif himself, and he is not independent" (para. 330).

Other issues include the possibility that the length of time spent in detention either pre-trial (paras. 375-376) and on death row (paras. 377-378) could lead, indirectly, to a breach of Art. 3 ECHR, although, in terms of the latter, execution was not viewed as a real risk - even if a death sentence was a real possibility, it was unlikely to be carried out; and the possibility, gleaned from tentative ECtHR dicta, that the probable lack of a fair trial in the receiving state might act as a barrier to deportation ("[t]he ECtHR has not enunciated any general principle that a state bears an indirect responsibility for breaches of the ECHR by states which are not parties but to whose territories someone is deported", para. 397), holding that a "balancing" (at least in terms of derogable rights) between the rights of the deportee and those of individuals he put at risk, or threat to the host state, could be carried out (para. 400). The Commission even dealt with the significance of Qadhafi's strong personal relationship with the outgoing Tony Blair (para. 380). Lastly, the one of the appellants had raised the possibility that, given his family situation in the UK, deportation would amount to a violation of the right to family life contained in Art. 8 ECHR; an idea dismissed by the Commission in this case (paras. 405-414).

The other area of real interest concerns the Commission's judgment with respect to the 1951 Refugee Convention (it does not consider the Convention Against Torture at all, but we may assume that its holdings in terms of Art. 3 ECHR would also be applicable to the UK's obligations inder the CAT, and in particular its own Art. 3 provision on non-refoulement). In short, it seems unlikely that the Refugee Convention will be of particular importance in cases involving suspected terrorists within the UK in the future: one of the appellants, DD, had already been successfully through a refugee status determination in the UK; however, the Commission ruled that the Secretary of State was correct in his assertion that DD's terrorist activities meant that he was excluded from the provisions and protections of the Convention. The relvent provisions of the Convention read as follows:

1. F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

33. 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

The Commission considered the claim that, as the acts upon which the UK was relying in excluding DD from protection under the Convention had occurred after the positive refugee status determination, they could not be used to divest him of that status (paras. 110-112). This position seemed to be supported by a Canadian Supreme Court case, Pushpanathan v. Canada (MC1) [1999] INLR 36, in which the Court held that "the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status" (para 58 of that judgment). This, however, was not accepted by the SIAC, who, following a judgment of the UK Immigration Appeals Tribunal (in KK v. SSHD [2004] UKIAT 00101) noted that, given the words "prior to his admission to that country as a refugee" were inserted into Art. 1F(b) alone, meant that they could not be read into Art. 1F(a) or (c); thus DD could be stripped of refugee status if he engaged subsequently in "acts contrary to the purposes and principles of the United Nations" - of which terrorism is a generally accepted example (para. 121).

Lastly, the Commission held that, even if DD were not excluded from protection under Art. 1F, then the non-refoulement provision would not apply as a result of Art. 33(2): "It is obvious from our conclusions about national security that it is our view that there are “reasonable grounds” for regarding him as a danger to the security of the UK", and concluding moreover that neither here nor in Art. 1F was the deporting state required to balance the potential for individual rights violation against the suspects if deported against the risk to itself and its citizens. As soon as the criteria of Arts. 1F or 33(2) were fulfilled, there is no bar under the Refugee Convention to deporting the individual in question (although of course other obligations, such as the ECHR or the CAT may well still apply) (paras. 125-126).


One of the most striking things about this judgment in general is the level of acceptance that the appellants are dangerous men, deeply involved in Islamic militancy and posing genuine threats to the UK's national security. The Commission conducts a detailed review of the appellants' activites, and concludes, for example, that "We are entirely satisfied that DD is a real and direct threat to the national security of the UK... [who] is a global jihadist with links to the Taleban and Al Qa’eda" (paras. 71-72), and that "on the open evidence alone AS is a clear danger to national security. He is an Islamist extremist who has engaged actively and as a senior member with a terrorist group clearly engaged in support work for jihadist activities" (para. 104). The Commission makes, to my mind, a commendable summary of the choice facing it, which has led it to its equally commendable decision (para. 430):

We have given this decision anxious consideration in view of the risks which the Appellants could face were they returned, and those which the UK, and individuals who can legitimately look to it for the protection of their human rights, would face if they were not. We must judge that matter, at least in relation to Article 3 ECHR, by considering only the risks which the Appellants could face on return, no matter how grave and violent the risks which, having chosen to come here, they pose to the UK, its interests abroad, and its wider interests. Those interests at risk include fundamental human rights.

The effect of this passage, which to me nicely encapsulates the tragic dilemma posed by this extremely hard ethical question, is, sadly, somewhat diminished by the almost petulant tone adopted by the Commission in the very next paragraph:

The decision of the ECtHR in Chahal in 1996 provides the framework for that decision. It clearly requires us to consider matters in that way, however slight its reasoning or negligible its response to the substantial minority dissent on the problems posed by a direct threat comparable to that arising here to the interests of the country seeking removal, and on the protection to the human rights of others which the deportation of the Appellants would afford. That decision is part of its established jurisprudence, and in reality we are bound by it.

With these last words, the Commission seeks to challenge the absolute legal prohibition laid down by the ECtHR in terms of refoulement in torture cases, implicitly suggesting instead that this should be subject to the kind of legal balancing act common to many other rights dilemmas. There is no space to go into this in detail here, but many, myself included, although believing that, ethically speaking and at an abstract level, torture can and must be balanced against other possible ethical risks (that there can, philosophically, be no absolutes), it is a different matter entirely to attempt to write that necessary relativism into positive law. It is a subject on which I may blog more soon; for the moment, however, it is enough to refer any reader who have made it this far to Jeremy Waldron's excellent article on the subject, "Torture and Positive Law: Jurisprudence for the Whitehouse", 105 Columbia Law Review (2005) 1681-1750.

The EU has long lost its leverage in Kosovo: By Aleksandar Mitic

[This article is published in the European Voice 26 April - 2 May 2007]

The EU is facing risks over Kosovo: there is a stalemate in the UN Security Council, a division within the EU and not a slight sign of Serbia accepting Martti Ahtisaari's plan on cutting Kosovo away from it.

The special UN Security Council mission to Kosovo will undoubtedly see what has been largely downplayed in the "pinkish" reports drafted by Pristina-based UN chiefs: only 5 percent of the 220,000 Serbs expelled by Albanian extremists from Kosovo have returned, while Serbs living in the shameful, heavy-guarded enclaves lack freedom of movement and express mostly fear and mistrust.

This could also be a good eye-opener for Brussels. The EU has greatly lost in leverage in the last several months: the Kosovo Albanians look at Washington to lead a diplomatic "blitzkrieg" on their behalf, while Serbia and the Kosovo Serbs have found in Moscow a reliable partner ready to oppose an imposed secession.

One thing is now clear: there will be no UN Security Council resolution based on the core of Ahtisaari's proposal because there is simply no agreement on why Kosovo should be the first case in the 62-year long history of the UN in which the body legitimizes a dismemberment of a member country.

Repeating the senseless mantra about Kosovo's "uniqueness" will not fly, while warning about Kosovo Albanians going ballistic if they do not get what they want only reinforces the argument that they are not ready for self-governance let alone statehood.

Ahtisaari's proposal is unfortunately by no means a compromise, unless your definition of a compromise involves a shameful trade off: human rights for territory.

Respect for international law, for recognized borders of Serbia and for the need of the Kosovo Albanian majority to rule itself would get the UNSC to adopt a resolution, the EU to stay united and take its responsibilities in Kosovo. This will bring Pristina and Belgrade firmly on the road to the EU.

Otherwise, it is back to square one on the thin line.

Congress v. the President: Round 2

As expected, the Democrat-led Senate has also passed the Bill seeking to make continued funding for the Iraq adventure conditional on a definite start date for withdrawal, and a target completion date. Republicans have, again, dismissed the Bill as nothing more than a "stunt", which seems a little disingenuous, given the undoubted strength of feeling involved for many of those who feel that the US should not remain in Iraq. Interestingly, but perhaps not surprisingly, given their dependence on US support, senior Iraqi Government officials have taken a similar line, with Foreign Minister Hoshyar Zebari suggesting that "this is part of the politicking, basically, in Washington and this has been damaging in fact to the security, political development, not only in Iraq, but in the entire region..."

Bush has, naturally, reiterated his intention to use the veto, safe in the knowledge that the Democrats cannot muster enough votes in Congress to override it. Perhaps, however, this is not such a big deal, however it may look to those of us unfamiliar with the Presidential system (for example, for all of the accusations levelled against him in this regard, it is difficult to imagine Blair going directly against a clear Parliamentary vote on an issue such as this; not least of all because only the Queen is constitutionally "empowered" to do so). The BBC provides a helpful comparison of other presidents' usage of the veto power:

George W Bush: 1

Bill Clinton: 38

George Bush Snr: 44

Ronald Reagan: 78

FD Roosevelt: 635

Thomas Jefferson: 0

Roosevelt was in power for 12 years, from 1933-1945; which works out, by my reckoning, at just over one veto per week... Clearly, then, the use of the veto alone is not something that is viewed as in and of itself undemocratic in the US (perhaps unsurprisingly, given the direct electoral mandate of the President); it would be interesting to know, however, what if any the constitutional safguards are in terms of the dramatic situation in which we now find ourselves - namely, the ongoing prosecution of a deeply unpopular war, by a President in the latter years of his period in office, and whose Party suffered heavy losses at the most recent elections (largely as a direct result of that war). Anyone?

A little note on excrements and shop entrance doors

In an article published in the London Review of Books, Slavoj Zizek, Slovenian sociologist, postmodern philosopher, and cultural critic, used a metaphor of a toilet to compare the cultural differences between the German, French and US,

"In a traditional German toilet, the hole into which shit disappears after we flush is right at the front, so that shit is first laid out for us to sniff and inspect for traces of illness. In the typical French toilet, on the contrary, the hole is at the back, i.e. shit is supposed to disappear as quickly as possible. Finally, the American (Anglo-Saxon) toilet presents a synthesis, a mediation between these opposites: the toilet basin is full of water, so that the shit floats in it, visible, but not to be inspected."

Similarly, the direction in which the shop, restaurant etc. entrance door opens (towards the street or towards the inside of the place) is telling of a particular society’s position towards the notion of the public space and public good. Namely, in US shop doors open towards the outside and thus invade the public space, hence one is to conclude, or that America has bigger side-walks so they can allow such luxury, or that this is something to do with fire prevention (mind you one can always break the glass door), or that private property is more important than the public one. In Europe shop windows usually open towards the inside thus reflecting the nature of our social and political system.

Congress v. the President: Round 1

Following on quickly from the article to which Lorenzo referred immediately below, it seems that Bush's growing isolation over Iraq is no longer limited to the international plane, or to domestic public opinion; he looks now to be at direct odds even with his own Parliament. The House of Representatives voted this evening, albeit by a narrow 218 votes to 208, to make continued replenishment of the President's war chest conditional on the commencement of troop withdrawal in October, with the planned completion date for this process March 2008. The Bill is set to be voted on by the Senate tomorrow, and, given the Democrat majority in that House too, seems likely to be up for Presidential approval before long.

The Whitehouse reaction? "Tonight, the House of Representatives voted for failure in Iraq - and the president will veto its bill". Utter intransigence, then; and he is not alone. His position is supported by most Republicans, many in the military establishment, and the Iraqi Prime and Foreign Ministers, no less. The criticisms of the last two actors in particular have to be taken seriously; the trouble is, however, that those who are - ostensibly at least - the President's most important audience, the American people, have made their collective will on this issue relatively clear; it is difficult to view Bush's refusal to accept the judgment of Congress as anything other than deeply undemocratic.

the Guardian recently published an interesting opinion piece by Naomi Wolf, "Fascist America in 10 Easy Steps", outlining the basic 10-point blueprint that has historically underpinned the move to fascism in a variety of different states, and suggesting that the US has already made significant progress along a number of these paths. They are

1) Invoke a terrifying internal and external enemy;
2) Create a gulag;
3) Develop a thug caste;
4) Set up an internal surveillance system;
5) Harass citizens groups;
6) Engage in arbitrary detention and release;
7) Target key individuals;
8) Control the press;
9) Equate "dissent" with "treason";
10) Suspend the rule of law.

Initial reactions to these claims may well be, as mine was, that they involve some fairly crass hyperbole; however, as the author develops her argument in lucid and eloquent fashion, it becomes clear that the US has indeed progressed worryingly far along a number of these routes (although she does acknowledge, correctly in my view, that the US's democratic traditions and institutions are too strong for the country to be at risk of a descent into fascist totalitarianism). Wolf recounts, for example, the astonishing story of Professor Walter F. Murphy of Princeton University, denied a pass to board a plane at Newark Airport on the grounds that he was on a terrorist watch list. The airline employee, clearly trying to be helpful, inquired as to whether he had been on any peace marches, as "we ban a lot of people from flying because of that". When the ex-Marine Professor indicated that he had given a very public lecture at Princeton that was highly critical of Bush, the response from the airline representative was simple: "That'll do it".

Moreover, the prosecution of the war on terror requires, of course, the creation of a feeling very similar to it amongst the general population, through the constant invocation of life-threatening danger and amorphous yet ever-present enemy; Guantanamo and the even more secret network of CIA prisons throughout the world are performing the task of the Gulag nicely, and seem also to have arbitrary detention (if not release) pretty much covered; and the rhetoric of "with us or against us", so characteristic of the US approach to this whole affair, strongly suggests that Bush will brook no dissent whatsoever, and, indeed, that to do so is "unAmerican" - as the Whitehouse reaction to this evening's vote shows.

We can, perhaps, add another "step" to the list; a confrontation between the strong Leader and the recalcitrant Parliament, in which the former blatantly and steadfastly refuses to give way to the wishes of the people's democratically elected lawmakers on issues of great importance. We have, it seems, reached just this point now; it will be interesting to see how things play out over the next few days.

Bush after Ambush and other stories

The NYRB has a very interesting piece on the clash between Bush and the Democrats after the recent elections.

For those who have a subscription I also recommend Jeremy Waldron on the US Supreme Court internal clashes of personalities.

And John Gray on our moral nature and the existence of intractable moral dilemmas.

Do you want to know more about Scottish Elections?

Here's a good link for you: http://www.holyrood2007.net/Scotlandnew/index.php

This is an interesting new e-democracy project, which deserves some attention!

French Elections: a short exchange

Raphaël Paour (following from previous post)

Hello boys. Sorry to disagree Lorenzo. So far Bayrou has done close to nothing for a simple reason. His score is due to the rejection of Royal, by typical socialist voters, and of Sarkozy, by typical UMP voters. There fore his success seems very much linked to a punctual situation ; and if either Sarkozy or Royal leave the spotlight after the elections, things should get back to normal with an UDF around 10%. During the weeks prior to the elections, some of his closest advisors (J-L Bourlanges in this case) said they were very afraid that if Bayrou was not second or third, the political force which he represents would be wiped clean during the legislative elections. In the past, they were able to gain many seats in Parliament thanks to the agreements they had with the UMP (hence the choice of several leaders from the UDF to fallow Sarkozy rather that Bayrou who will probably be less able to preserve their positions of power). Having heard that several times, I was very surprised to see how happy Bayrou seemed yesterday night. I can't help thinking that it isn't authentic happiness. If he doesn't show that he believes he can create a new movement, no one will. He had no other choice than to pretend he was really satisfied with the result; he’s trying to start a movement, he can’t look depressed.All night yesterday and all day today, I've hearing politicians, journalists and scholars say how great it is for democracy that Sarkozy was able to win back votes that went to Le Pen in previous elections. I think that, the very fact people don't see what is wrong with that shows what kind of a problem we have on our hands. The way Sarkozy was able to appeal to these voters was by picking up Le Pen's discourse, using his words, his images and often his very expressions. Worst, parts of his program are inspired by Le Pen’s, so the similarity isn’t only formal – substantially, their views of society, authority, foreigners, national identity are close. Sarkozy doesn't say the contrary, Le Pen certainly recognizes it. So what has happened? Words and ideas which were before called "racist", "dangerous", "intolerant" are now called "democratic". Somehow it has now become acceptable to defend Le Pen's ideas. Thank you Sarkozy indeed! The fact that his overwhelming success yesterday was due to his ability to appeal to the far right, using partially the FN's racist, authoritative, violent program is a very scary thing for the future in this country.Raphaël Paour


Srdjan Cvijic said...
I agree with a number of the points you raise Raphael, esspecially those referring to Sarkozy swinging to the right. One must closely watch at what will he offer to Le Pen's voters to incite them to vote for him, introduction of a proportional representation system at the legislative elctions possibly? However, I disagree with one point Bayrou is the king maker, if he has the courage to risk and shift in support of Royal but under the condition that she agrees to form a governing coallition after legislative elections. In this way France would follow a political process already in place in Italy, along the lines of the Blarite shift, that is transformation of the traditional left into a third way political groupaion. She would inevitably lose some votes on the far left, whether she will be elected this is a real question?

Lorenzo Zucca said...
Raph, I think that Le Pen, even if He is hardly acceptable, has concerns that are shared by many people in France. To address those problems is a way of living in a democracy: you try and capture the mood of the majority of people. Sarkozy 'stole' some of Le Pen's concerns but presented them in a way that is acceptable by French standards. Now, if you want to say that French standards of democratic discourse are low and that many people are racist and intolerant in a disguised way, I can only agree with you.My impression on Bayrou may be wrong. It's just a communicative impression. From that viewpoint, I found that Sarkozy was quite nervous, and Royal was very rigid after the result. I think they both feel that they have to do a lot to make sure that they win. Royal more than Sarkozy... I think. Bayrou has a clear strong result, which is a very strong progression from last time he run (In 2002 he had 4% or so; today he almost has 19). He is, if he wants, the Queen maker as Srdjan says. But I am not sure he wants to settle on a compromise at this moment. He would probably work on this result to have a good result at the parliamentary elections and then he will decide.

Srdjan Cvijic said...

I have to make a small clarification, strictly formally speaking no compromise between Bayrou and Royal would be even acceptable at this point, Presidential elections are direct so the president directly represents the people and not some alligment of political parties. This of course does not mean that they cannot make, however, a political agreement, implicit. Yet, the problem is in the formalistic aspect, who is to guarantee to Bayrou that Royal and PS would really support him in the legislative elections. Second, who is to guarantee that Bayrou's voters will vote for Royal or Sarkozy?

More on Kosovo: By Bernhard Knoll

What should we make of Serbia’s argument, repeated recently by Prime Minister Kostunica at the meeting of the UN Security Council, that it was entitled to the protection under international law of its territorial integrity since its current government is committed to inviting its estranged Kosovo-Albanian cousins back into its polity based on equality and non-discrimination, in recognition of their cultural identity and on the basis of full respect for their internal autonomous arrangements?

The argument is neatly summarised by Srdjan Cvijic: “Milosevic’s regime certainly misgoverned Kosovo, but one can justifiedly ask why the Serbian democratic government should have to pay the price for the abuses of Milosevic’s authoritarian regime". ( In "Self-determination as a Challenge to the Legitimacy of Humanitarian Interventions: The Case of Kosovo’, 8:1 German Law Journal 57-79 (2007), at 74). NATO’s bombing campaign, so the argument continues, has relieved the Kosovo Albanian population of the threat of persecution, and possibly with it, of the option of consuming a right to seek external self-determination.

On whichever side of the debate over the underlying international legal and political reasoning accompanying the status resolution one finds himself, the Serbian idea of ‘more than autonomy, less than independence’ never seemed to gain support amongst the Contact Group which, along with UNOSEK, are effectively arbitrating Kosovo’s fate. Indeed, the forcible re-incorporation of 2 million hostile Kosovo Albanians in a 7,5 million-strong Serbian body politic had always appeared to them as running against the true interests of a stable Serbia.

Beyond the reliance on the notion of remedial secession that may only tentatively reflect an international legal standard, Serbia’s argument is open to challenge on the ground of its current constitutional choices. If Serbia would have been serious in its intention to grant ‘Kosovo and Metohija’ the widest possible range of autonomous rights within its State, it could have entrenched them in its 2006 Constitution. Instead, the Constitution provided for the possibility of severe restriction of autonomous rights, through means of ordinary legislation, in the fields of territorial boundaries, human and minority rights, the management of provincial assets, kind and amount of direct revenues from Republican level, etc. As the Venice Commission has formulated in its recent Opinion, the Constitution “does not at all guarantee substantial autonomy for Kosovo, for it entirely depends on the willingness of the National Assembly of the Republic of Serbia whether self-government will be realised or not”. (Opinion No. 405/2006), 70^th Sess., Venice, 17-18 March 2007, at 8).

French Presidentials: The winner (for the moment) is: Bayrou

Sarkozy, Royal, and Bayrou have all celebrated yesterday. Perhaps, paradoxically, the happiest was Bayrou, who claims to have created a new political movement from scratch. He's probably right, as 18,5 % of support is a very hefty portion of the electorate.

Royal and Sarkozy looked more tense. They have to look ahead and prepare for the second round in two weeks time.

I think that the second round will be more a referendum about Sarkozy than a competition between the two candidates. He's in a very good position and at this point he can only lose the contest. If for example the global turn out will be lower, but his electorate will keep on voting, this will mean that he will start with a 35/40 % basis. To reach 50 + % will not be terribly difficult.

Much will depend on what Bayrou's supporters will do. It is likely, however, that Bayrou will not take a public stance in favour of either candidate. To do so, would subsume his new political centre to either right or left, and that is precisely what he wants to avoid as his message is:
we are a 3rd fully independent force.

This will count massively in the legislative elections, which may end up giving some further surprises.

End of an era: 2nd time

Yesterday in Florence the Italian Party of the Democrats of the Left voted itself out of existence. DS is going to merge with the centrist MArgherita into a larger Democratic Party. This is arguably a further step away of this party from the legacy of the The Italian Communist Party

In 1991 the PCI disbanded to form the Partito Democratico della Sinistra (PDS), with membership in the Socialist International. The communist tendency, led by Armando Cossutta, left the party to form the Partito della Rifondazione Comunista (PRC) or Communist Refoundation Party. A truly earthqacky moment was the PCI congressin Bologna when Ochetto, the leader of the PCI since 1988, stunned the party faithfully assembled in a working-class section of Bologna with a speech heralding the end of communism, a move now referred to in Italian politics as the Bolognina. Italian film direcor Nanni Moretti rendered these moments of transition immemorable in his "La Cosa" - The thing.

In 1998 the PDS, with several smaller parties, the Laburisti (liberal socialists), the Cristiano Sociali (Christian socialists), the Comunisti Unitari (right-wing split of the PRC), the Sinistra Repubblicana (left republicans) and the Riformatori per l'Europa (social democratic trade unionists), co-founded the "Democratici di Sinistra" (DS) or Democrats of the Left party. Later in the same year the Armando Cossutta tendency left the PRC to form the Partito dei Comunisti Italiani (PdCI) or Party of Italian Communists.

Yesterday in Florence not all members of the DS agreed to embark on the project of the formation of the new Democratic Party. Fabio Mussi, the leader of the left wing of the DS, refused to fowllow suit and wished his ex-party colleagues all the best, "good luck comrades" he said. Despite reconciliatory tones (they will continue to support Prodi's coallition government) his message was clear, "we are staying here" (on the left). He announced the formation of the autonomous left wing party faithful to the traditions of European Socialism and hinted at the possibility of assembling the left wing around this entity. To the majority of the party that decided to disband the DS and form the Democratic Party he said "This Party [Democratic Party] will be centrist and American and will not be able to take part among European Socialist parties".

This is in fact the essence of the disagreement between the two parties that indulged in the process of forming the Demoratic Party, whether or not to adhere to the Party of European Socialists, ex-DS wing of the Democratic Party is decisively for while the centrist ex-MArgherita is against. It was obvious from the speech of its leader Rutelli that the intention of ex-MArgherita members will be to make of the Democratic Party a modern European centrist party. Referring to French presidential campaign Rutelli said that it was a shame that Segolene Royal (the Socialist candidate for the presidency) refused to accept the call of some of her party colleagues to join forces with Francois Bayrou and his UDF.

Rutelli and his party certainly have a different conception of state church relations from the ex-DS despite formally defending the secularist positions. On matters related to civil liberties, Italian Democratic Party will certainly not resemble Zapatero's Socialist Government and it is rather probable that it will further lose votes to the left spectrum of italian politics. Should Mussi and DS members who refused to join the Democratic Party succeed in uniting the hoplessly divided Italian left wing parties (Communist Refoundation Party and Party of Italian Communists) the battle on the italian center-right arena will remain open . The dominant position of the Democratic Party is by no means assured.

France and Scotland Face Big Political/Constitutional Changes

France will elect its new President. Segolene or Sarkozy, or maybe even Bayrou will change the scene of French politics, or at least they will refresh it given that Chirac has monopolized it in the last 12 years.

Very soon, Scotland will also vote for its 'local' elections, perhaps the last. If the SNP (scottish nationalist) wins, then those elections will probably be national in the future. For an European living in Scotland this alone may be a good argument against SNP: why would we vote to lose our vote?

Gordon Brown will look at this election with great interest. If the SNP wins and Scotland goes toward independence, then its chances of becoming a strong prime minister collapse: he could not claim anymore to represent british interests. In any event, UK constitutional politics seemed geared toward a time of change!

All this may contribute to a renewal at the European Constitutional level. France may well have a new referendum on a simplified text, probably a simple Treaty. The UK will have to redesign its European politics. If England remains Euro-Skeptic, Scotland is in general quite Euro-friendly.

Is "La Repubblica" becoming a tabloid?

In its article "Cofferati father at 60: second child in November"normally a serious and distinguished Italian newspaper writes about Sergio Cofferati, Mayor of Bologna and one of the most popular figures within the Italian Party of Democrats of the Left.

Although the article is listed within the politics section of the newspaper it is entirely concentrating on private life of the Bologna's mayor. It states the mayor's age, that his girlfriend is 20 years younger than him, that he left his wife 3 years ago when he won the municipal elections in Bologna, that his wife went back to live in Rome, that he has already a grown up son who is 30 and works and lives in Milan, even the article says referring to the birth of the child that "the boy or a girl, as far as we know, will be born in November".

When I read the article I first laughed then I had a sudden urge to cry. I am truly shocked by it and hope that this is only an exception and that such intrusion into the irrelevant privacy of italian politicians will not repeat itself.

Witch-hunt in Poland and Polish treason?

Ignacio Ramonet editorialist of the “Le Monde Diplomatique” criticizes the new Polish Lustration law (see). Namely, in March 2007 the controversial law went into effect and it is judged that it goes further than anything similar in the region, requiring hundreds of thousands of citizens in positions of authority, including academics, journalists, teachers, and state company executives, to declare in writing whether they cooperated with the communist secret services -- or risk losing their jobs.

Polish lustration law differs from those of the rest of Europe for it does not narrow itself to vetting people who hold public office -- MPs, ministers, directors who pursue national interests – but it aims at a much wider group of people.

Ramonet argues that in comparison to the Polish Lustration law McCarthyism in US seems as “amateur anticommunism”. The Polish law requires hundreds of thousands of Polish citizens to officially respond to the question, “Did you secretly and consciously collaborate with the old communist secret service agencies?” After filling in the form responding to the question the individual has to submit the answer to his hierarchical superior at work and this one will in turn send the information to the Institute of Memory in Warsaw. There the information will be checked and subsequently a certificate of “political purity”, as Ramonet puts it, will be issued to the individual under scrutiny. In the case of proved cooperation, journalists for example, will be automatically fired. If an individual refuses to respond or lies risks a prohibition to exercise their profession for 10 years.

Many argue that the law is a result of the ferocious anti-communism of the conservative twin brothers Kaczynski, President and Prime Minister. Opponents of this law say that the law is unconstitutional because a citizens is asked to prove something he did not do. The Polish Constitutional Court will pronounce itself on the law at the beginning of May.

It is undisputable that this law is to say the least problematic. The communist-era secret police harassed large numbers of people, forcing many to sign loyalty declarations or to collaborate. Most people lied, signing the declarations but not really spying. The 2000 verdict of the Polish Supreme Court decided that such people are not to be considered collaborationists. The new law legislates differently. A group of journalists from "Gazeta Wyborcza," which is one of Poland's most influential newspapers and was created by anticommunist dissidents, has announced it is boycotting of the law. The country's largest academic institution, Warsaw University, called on March 22 for the suspension of the new law.

For Ramonet the controversial lustration law logically fits into the nature of policies of the new Polish government. He underlines the example of Roman Giertych, vice-premier minister of Poland and Education Minister from the right-wing League of Polish Families who is famous for his outrageous homophobic policies, as well as anti-Semitist pronouncements of the ministers’ father Maciej Giertych, who is also the member of the European Parliament. The later is on the contrary famous for ambiguous statements that can certainly be branded as anti-Semitic.

From there Ramonet stretches his argument in an interesting fashion. He argues that all these measures constitute an attempt of the ruling Polish elite to return to a pre-communist moral order, a “sick nostalgia” for the pre-WW II period when racism was “proudly displayed”. He argues that certain do not even hesitate to glorify collaboration with Hitler’s Germany against the Soviet Union. At the end of his article Ramonet makes a geopolitical conclusion arguing that the above mentioned political spirit in Poland manages to present Putin’s Russia as the old Soviet Union, which in turn facilitates political moves such as the Polish government accepting to install on its territory the US anti-missile system that is perceived by Russia as a direct threat to its security – despite the opposition of the major EU states. For Ramonet all this “demonstrates how in politics, paranoia, can lead not only to spiritual atrophy, but also to a certain form of treason”.

Although I can fully subscribe to Ramonet’s criticism of the controversial Polish lustration law I consider his later geopolitical argument a simplification. It is more probable that the rationale behind the lustration law can be explained through the logic of Polish internal politics (see)

A malicious reader of Ramonet’s article could conclude that, “alas, non-ideological interpretations are impossible and that Ramonet’s article is also marked by the spirit of paranoia – Communist paranoia”, but this is a malicious reader, I limit myself to ignoring the concluding remarks of his article and accept the critique of the Polish lustration law in an openhearted fashion. It is certainly an interesting reading.

Embryos, Rights and Dilemmas

Ms Evans's embryos will be destroyed. Her and her partner's embryos had been frozen few years ago. The married couple then split, but Ms Evans wished to use them without her partner's consent, since she's lost fertility after an ovarian cancer operation.

The UK courts and the European Court of Human Rights, including the Grand Chamber (the highest formation of the European Court), declined the request of Ms Evans.

Under these circumstances, the case was particularly difficult to decide and probably raised issues that were not legally solvable. The ambiguous position of the judges and the lawyers who 'feel dreadful' for Ms Evans, but can only decide against her is a sign of a widespread discomfort and the symbol of the existence of a dilemma (for my academic commentary see the European Constitutional Law Review http://journals.cambridge.org/action/displayJournal?jid=ECL, October 2006.

GAL at NYU

A quick post to flag a project that I have recently become involved with: the emerging field of Global Administrative Law, a research project involving a wide network of scholars, based at New York University. The project is driven by two basic insights: firstly, that much of the global or transnational regulation currently viewed under the rubric of "governance" can be properly seen as regulatory administration; and secondly that a body of administrative law is emerging that seeks to regulate that regulation. There is, however, both a descriptive and a prescriptive element to the research agenda: not merely what are the principles of an administrative law character that are shaping global governance, but also what should they be. The website provides the following working definition of the project (which is fleshed out in much more detail in a couple of conceptual papers on the issue):

Much of global governance can be understood as regulatory administration. Such regulatory administration is often organized and shaped by principles of an administrative law character. Building on these twin ideas, we argue that a body of global administrative law is emerging. This is the law of transparency, participation, review, and above all accountability in global governance. We posit an increasingly discernible “global administrative space”, in which the strict dichotomy between domestic and international has broken down, administrative functions are performed in complex relations between officials and institutions not organized in a single hierarchy, and regulation using non-binding forms often proves highly effective in practice. Exercises of public power in the global administrative space are increasingly channeled, and controlled, by mechanisms of an administrative law type. These include rules requiring greater transparency, adoption of notice-and-comment procedures in rule-making, and the opening of new or strengthened avenues of judicial and administrative review. We thus regard global administrative law as encompassing the legal mechanisms, principles, and practices, along with supporting social understandings, that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring these bodies meet adequate standards of transparency, consultation, participation, rationality, and legality, and by providing effective review of the rules and decisions these bodies make. We describe this field of law as “global” rather than “international” to encompass the enmeshment of national and intergovernmental regulation, the increasing roles of private regulators and public-private hybrid bodies, the wide array of informal institutional arrangements that now operate alongside formal institutions, and the foundations of the field in normative practices, and normative sources, that extend beyond international law sources.

The Project distinguished among, but seeks to encompass each of, five main types of globalized administrative regulation. These are: (1) International Administration, by formal international organizations (such as United Nations Security Council individual sanctions programs, or UN administration of territory); (2) Network Administration, based on collective action by transnational networks of cooperative arrangements between national regulatory officials (such as the Basel Committee of national bank regulators); (3) Distributed Administration conducted by national regulators under treaty, network, or other cooperative regimes (such as the Basel Convention on transboundary movement of hazardous wastes); (4) Hybrid Administration, by hybrid intergovernmental-private arrangements (such as ICANN, the Internet Corporation for Assigned Names and Numbers); and (5) Private Administration, by private institutions with regulatory functions (such as the ISO, the International Organization for Standardization).

New systems of administrative procedures, review mechanisms, and decisional principles have arisen to promote greater accountability in decision-making by this rapidly proliferating variety of global regulatory administrative bodies. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and non-governmental organizations. Global Administrative Law is an emerging field of law and practice addressing both the new structures of administrative law and international law that have arisen in these different institutional contexts, and their normative dimensions, including regime integrity, protection of subjects' rights and promotion of democratic values.

It seems to me that, from this useful and provocative working definition, a number of interesting questions immediately arise at an abstract, general level: in what sense can these administrative law principles be justifiably characterised as "global" (in that the negative justification offered, in contradistinction to the "international", may be necessary but insufficient to justify this rhetoric)? Does it really make sense to talk of one unified global administrative space, rather than a plurality of spaces? What is the relationship of global administrative law to the emerging, if at least equally vague, sphere of "global/international constitutionalism"? And how do the administrative law ends of transparency, participation, review and accountability relate, if at all, to notions of democratic governance?

Such issues are only a small, if important, part of the research agenda. Much focus otherwise is on empirical studies of actual administrative regimes, in order to discern what the principles and norms guiding there function are, and what elements, if any, seem to be common among them. The website provides access to a large number of articles and working papers on the issue. As I mentioned, it is a project that I have recently become (heavily) involved with, so any and all comments on it are welcome!