European Constitution: A Revival?

At least if you listen to what Angela Merkel has to say, it would seem that the relaunch of the European Constitution is a top priority for the EU. See here for a report.

Merkel has just taken up the position of President of the Council of the European Union, a responsibility she holds along with the presidency of the G8. She is determined to make something out of it, as it may be easier to do something at the European/International level than to shake the torpid German political and economic stagnation (although the economy is going better as of late).

Her agenda is incredibly ambitious: 'It included progress on energy security and climate change, a global trade deal, a new partnership agreement with Russia, and greater peace efforts for the Middle East. ' Too ambitious, say the skeptic (the Economist in particular). In the last couple of years, though, the lack of initiative and action was devastating. A bold agenda can be launched now, we will see how long it takes to implement it.

Berlusconi is desperate to be America's Best Friends

At times Silvio (Berlusconi) is endearing, poor old little chap. Now He claims in his clownish fashion that he's the best friend the US have ever had. Then he adds that Prodi and the new italian government are foes of America.

I am always curious to know what is the image of Berlusconi across the Ocean. If you have any contribution please leave a comment. As far as the Atlantic Alliance is concerned, the US should not be afraid. Italy simply can't afford to be a foe of the US. That would be meaningless, if not ridiculous. But abroad many people now know that Berlusconi can indeed be ridiculous.

For a longer report, please read here

Independence of Kosovo vs. Humanitarian Interventions

In the current issue of the German Law Journal, entirely dedicated to the legal dimension of the future status of the Serbian Province of Kosovo I published an article: Srdjan Cvijic, “Self-determination as a challenge to the legitimacy of humanitarian interventions: The Case of Kosovo”, German Law Journal, Vol. 8, No. 1, January 2007

This article questions the legality of imposing independence for Kosovo without the consent of Serbia. It does so by firmly linking this question to the debate on the nature and legality of NATO’s 1999 humanitarian intervention in the FRY / Serbia. The UN-mediated process for negotiating the future status of this southern Serbian province, as well as the legal origin of the UN-mandated administration in Kosovo (UNMIK), represent a continuation of the original military and political involvement of NATO and the entire international community initiated six years ago. It is for this reason that no decision on the future status of Kosovo can be reached without bearing in mind the original basis of international involvement in FRY / Serbia. This article will analyse authoritative international jurisprudence that demonstrates how only “a thin red line” divides humanitarian interventions from being legal under international law. It further argues that instances of humanitarian intervention can, over time, acquire legality provided that stringent conditions are respected, the most important of which being that they serve no purpose other than the prevention of grave and immediate threats to human life. Consequently, humanitarian intervention should not serve as a tool for achieving political goals such as greater political autonomy, self-determination, or independence for particular groups within any given country. Infringement of this condition would amount to a revolutionary challenge to international law and threaten the return of the predominance of spheres of influence in international relations and law, taking us back to a past where war was considered the legitimate “continuation of politics by other means”. The imposition of an independence status for Kosovo on Serbia would not only amount to a revolutionary challenge to the established norms of international law, but would also jeopardize the development of the doctrine of humanitarian intervention.

Constitutional Dilemmas for 2007 (and beyond)

Euthanasia, Same sex unions, the legal status of embryos; these are few of the most daunting ethical issues that are debated in Europe and America.

The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.

Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.

I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.

Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.

This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.

A Conference for 2007: the 23rd IVR Congress of Philosophy of Law

The IVR conference is organized every two year and its main focus is Philosophy of Law. This year it will take place in Cracow, Poland, from 1 to 8 August.

The Transatlantic Assembly will feature with a Workshop on Comparative Constitutionalism, see here

Luxuria, Islam and Gay Rights

The italian transgender MP, Vladimiro Guadagno, AKA Wladimir Luxuria is preparing to travel to Turkey and other Muslim states as a representant of gay rights.

This a very original initiative and it may well provoke more dialogue between Islam and Europe than the recent visit of the Pope.

You can read a good report in english here.

GLJ Koskenniemi Symposium

The excellent German Law Journal, a free online journal focusing, in part, on issues of public international law, has a fascinating collection of articles on From Apology to Utopia, written to mark the republication (with a new, extensive epilogue) of the already-classic volume. Countributors are a mix of established academics (such as David Kennedy) and up-and-coming scholars, and include a response from Koskenniemi himself. Well worth a read.

Ban Ki Moon and the Death Penalty

Ban-Ki-Moon, the new secretary general of the UN since January 1st 2007, hasn't started his mandate very well.
Questioned on the Italian proposal to end death penalty, Ban Ki Moon first rejected the idea on the grounds of national sovereignty. Then, today, he rectified his position through his office, claiming that he is against death penalty, but he believes the success of the motion is unlikely.

In short, Ban Ki Moon does not strike us immediately as a great communicator. Pity, the UN are not doing very well in terms of image and a strong President is the first requirement to build a new an improved image internationally. Let's give him the benefit of doubt.

Italy in the Security Council: No to Death Penalty

On January 1 2007, Italy joined the Security Council of the UN as a non-permanent member.

Its first proposal is very symbolic: Death penalty should be abolished around the world. Coming few days after the execution of Saddam Hussein, the proposal has a huge political impact.

American and Europe, though close on many aspects, do not share the same values when it comes to the desirability of the capital punishment.

Italy is one of the first country in the world where death penalty has been abolished. More importantly, Cesare Beccaria, a philosopher born in Milan in the 18th century, was one of the most outspoken advocate against the death penalty. His famous contribution to that debate, On Crimes and Punishments, is still worth reading for all those who are interested in the problem

European Enlargement and Deepening

Romania and Bulgaria have now joined the European Union. Slovenia has joined the Euro. These are only few signs that the EU is not sleeping, but it keeps very quiet.
Past problems have not disappeared and it is necessary to deal with them explicitly.
That is why Angela Merkl, the new President of the Council of the EU, has stressed the importance of a new text (Treaty or Constitution?) that can bring forward the all-important institutional adaptations. 2007 will be a crucial year in terms of institutional/constitutional reforms.

Democracy and Justice American style

Saddam is dead, hanged.
Is this day symbolic? Is it the beginning of a new democratic regime in Iraq?
Or is it the just end of a fair trial, as President Bush called it?

If it is meant to be the former, that is the building block of the Iraqui Democracy,
then this is a very bad point from which to start. Democracy is better founded on positive values such as respect for life, the life of everyone including grand scale criminals. Moreover, the Iraqui Democracy is in the process of being built. So who has the power to decide that the execution was democratic?

Some would say Justice! The question then is: was this a fair trial with a just end?
Many doubted the fairness of the trial itself (see Amnesty for instance). It is at least debatable whether the court, its composition, and its procedure were up to international standards of Justice.

Finally, and we come back to a previous issue, is the death penalty a just result of this trial. In Europe, this is clear, we agree that death penalty can NEVER be a just result. In America, the belief seems to be, on democratic grounds, that the death penalty can be a just outcome.

We can only wait and see what we will get out of this inhuman act of 'justice.' What we can say for the moment is that America has exported so far only the worst features of its own brand of Democracy and Justice to Iraq.

Scala says No to 'Berlusconi in underpants'

In Milan, people have a certain taste...
That's why the Opera Theather, La Scala, cancelled one of the shows meant to depict
Berlusconi, Chirac, Putin, Blair and Bush in underpants dancing on a black sea (of oil, needless to say).

Here's an article on the issue.

For 2007 we can only wish that the happy family of the five leaders mentioned above will disappear from the international scene.

Berlusconi was the first to go.
Chirac will be the second (French elections in April/May).
Blair will be the third (in june/july he will step down in favour of Brown).
Bush will join them in two years time.
And Putin will leave in 2009, when his second mandate comes to an end

Blair's Battle for Global Values

Tony Blair has decided what to do when he quits his post as Prime Minister:
He will be Philosopher! Here's a lengthy analysis of his political thought on global war and Justice.

This is the abstract: The war on terrorism is not just about security or military tactics. It is a battle of values, and one that can only be won by the triumph of tolerance and liberty. Afghanistan and Iraq have been the necessary starting points of this battle. Success there, however, must be coupled with a bolder, more consistent, and more thorough application of global values, with Washington leading the way.

Feel free to assess Blair's consistency. Words and Deeds do not always match...

Secession of Flanders

Yesterday evening, Belgian public TV station staged a fake programme announcing the alleged unilateral proclamation of independence of its Northern Federal Unit Flanders. It is only after a certain period that the editors of the programme decided to inform the public that the entire programme is fiction. By that time it was late, 89% of the population actually believed the news is genuine. Belgian political elite unanimously condemns yesterday’s programme.

The news actually caught me in an Algerian Restaurant in a beautiful municipality of Saint Gilles in the Brussels Capital Region. My Belgian friends with whom I dinned reacted emotionally, and although doubtful as to whether the news is actually through, started appreciating the state they though belonged to the past. As far as I am concerned, it made me thing of Yugoslavia, how it could have stayed a joint democratic state.

"You are killing the democracy"

Italian journalists Enrico Deaglio and Beppe Cremagnani made a film that managed to shake the very foundations of the Italian democracy by putting under question the legality of the 2006 parliamentary elections. The film, entitled “Uccidete la democrazia” (You are killing the democracy) makes an interesting and scandalous claim: it argues that a team of Mr. Berluconi’s close associates, acting on his express orders, rigged the 2006 elections.

The Italian governing centre-left coalition played down the importance of the film and the center-right, Mr. Berlusconi's coallition denied the allegations but welcomed a possible (now certain) recount.

The film is developing its story on the basis of electoral analysis but also on the basis of the claims of an anonymous source close to the Italian Minister of the Interior. According to the film Berluconi’s team used sophisticated software (allegedly bought and already used in the 2004 US Presidential elections in Ohio, see) to correct the electronic data arriving to the central computer in the Ministry of the Interior. Allegedly, it transformed many empty ballots (people refrain from voting for any candidate normally as a form of protest against the system), into votes for Berluconi’s party Forza Italia, but not manually but electronically. Thus, there is a possibility to double check the validity of these claims by recounting the totality of empty ballots. Apart from the testimony of the source of this film there are several other indications that, according to the authors, make their claims justifiable.

First the number of empty ballots significantly decreased from the elections in 2001 to the elections under scrutiny (2006). While in 2001 1.692.048 voters decided, so to speak, not to choose by placing empty ballots in the ballot box, in 2006 their number is significantly smaller 445.497. Not only that, but while in 2001 the number of empty ballots varied significantly from one to another Italian province (e.g. 2,6% in Tuscany, 9,9 in Calabria, 5,5 in Sardegna... in 2006 as if a strange centrifuge made Italy turn around producing almost identical percentage of empty ballots in all provinces, including the islands, from 1-2%). Moreover, the film considers strange coincidence the fact that before the elections The Minister of the Interior replaced numerous Prefects all over Italy. Bearing in mind that their offices were in charge of collecting and disseminating further the elections data this fact is not necessarily insignificant. Finally, the exit-polls predicted a much more convincing victory for the centre-left coalition, one that would have made possible a stable government for a full term in office. At present the coalition of the Italian PM Romano Prodi depends on a tight electoral majority often unable to undergo radical economic and social reforms it promised in its pre-election campaign.

An interesting and deeply troubling claim. However, the first logical question to ask is: If we accept the fact that Berluconi rigged the elections, why didn’t he make his coalition win? The film has an answer to this question, allegedly Berluconi’s Minister of the Interior Beppe Pisanu, an experienced Demo Christian politician, decided to stop the entire process preventing the victory of Berluconi’s coalition. Explanation as to why has he done so (the film is making a claim that he knew of the plan and participated in it from the very beginning) is far from clear.

I am personally not sure of this theory of conspiracy, it is indeed deeply illogical. The most illogical thing is the following: Why would Berluconi (and he did, see http://news.bbc.co.uk/1/hi/world/europe/4904294.stm ) publicly contest the results of the elections, he himself allegedly tried to manipulate? Wouldn’t such behaviour be too risky?

All this leads me to another conclusion, urging me to question the reliability of the film’s source. It is more in Mr. Berluconi’s favour (who lost the elections) than in Mr. Prodi’s favour (who won them) to contest the electoral results, regardless of the tight electoral victory of the centre-left coalition. This is simply because it is difficult to imagine that a full recount of 40 million ballots would ever be conducted. In this way, the story of alleged electoral fraud, paradoxically, even if conducted by Berlusconi, casts a shade on the legitimacy of the current government.

Moreover, it can be argued that the actual recount might possibly directly favour Berlusconi’s coalition (if we were to imagine that the total recount would actually occur – Berlusconi is calling for this). Namely, in the lower house of the Italian parliament the centre-left coalition won by a margin of merely 25.000 votes. This, small lead, due to the majority premium, awarded them a comfortable majority in the lower house of the Italian parliament (The ruling coalition has a tight majority in the upper house – the Senate). Bearing in mind that on 40 million voters, the margin of error (the votes are in general counted manually), could easily be 25.000 it is entirely possible that a possible recount comes to the conclusion that it is in fact Berluconi’s coalition, not Prodi’s who won the elections in the lower house. In this case it is Berlusconi that would win the premium of majority in the lower house, which would certainly cause the current government’s demise before the expiration of the 4 years term. Having said this it is highly unlikely that the team of 30 parliamentarians in charge of reviewing the ballots would manage to conduct a recount in 4 years. As an Italian MEP Marco Rizzo said on a recent presentation of Deaglio’s film is Brussels, the time needed to conduct the counting of 40 million ballots, would be “biblical”.

Having this in mind, we could construct another theory of conspiracy (provided that the film is indeed such a theory)…this time with no proof whatsoever so I beg the reader to take it as an intellectual exercise, by no means a claim to what has actually happened. Having in mind the fact that Mr. Berlusconi unsuccessfully urged the government to recount the votes perpetually after the 2006 elections. What if Mr. Berlusconi thought of another strategy to get the government to fulfil his demands? What if, the source of the film was actually instructed by someone close to Mr. Berluconi to contact the journalists and make them question the legitimacy of the 2006 elections? This is not entirely illogical. The governing coalition pressured by the public opinion (out of which an important part its own voters) is now forced to organize a recount. Now the centre-right coalition got what they wanted, the Court ordered the legislature to recount the empty ballots in some Italian provinces, and there is a possibility that the legislators will have to, at the end, recount every single vote made at the 2006 elections.

More on Scottish Independence

Things have been a little quiet on here of late, Lorenzo's efforts notwithstanding. To get the ball rolling again, I thought I'd share this interesting and insightful comment on, and expansion of, my post below that I received via email from my father Angus MacDonald, a lifelong resident in and observer of the Scottish political scene...

It is interesting to note that recent polls on Scottish independence show considerable support for this idea on both sides of the Scotland - England border. The polls seem also to show that the support for this in England is based substantially on the view that the Scots are 'subsidy junkies', reliant on an unequal distribution of government financial support through a funding mechanism known as the Barnett formula. Joel Barnett was Chief Secretary to the Treasury during the years 1974 to 1979. The first North Sea oil was piped in to Teesside in 1975. In 1974 Professor Gavin McCrone, who was Economic Adviser to the Secretary of State for Scotland, wrote his report entitled 'The Economics of Nationalism Re-examined'. This report concluded that an independent Scotland “could now expect to have massive surpluses on its budget and on its balance of payments and with the proper husbanding of resources this situation could last for a very long time into the future”. It also concluded that “for the first time since the Act of Union was passed, it can now be credibly argued that Scotland's economic advantage lies in its repeal”. This report was suppressed and only recently released under freedom of information regulations.

At that time, when the oil had just begun to flow, the slogan ' It's Scotland's Oil' had much appeal, but there was also, understandably, some doubt about the true value of the oil, how long it would last, and what would happen to a separate Scotland once it was finished. But there was also some unease about the situation that could develop in the best case scenario - that the oil truly was a massive and long-term windfall; these islands are probably too small, comfortably to contain massive differences in wealth between neighbouring states. That the balance of advantage would lie very clearly with the very much smaller state could only heighten the potential for tension. Perhaps this thought partly underpinned Professor McCrone's qualified comment - repeal of the Union could arguably be in Scotland's economic ( as opposed to political?) interest. The suppression of this paper meant that the debate was uninformed by the authoritative assessment of the potential of oil for Scotland that Professor McCrone had made, but in my view it is by no means certain that Scotland would have opted for independence then, even if the views expressed in this report had been widely known. Whether from fear of going it alone, from a sense of solidarity with and affection for England and the other parts of the UK, from an unwillingness to create major inequalities of wealth and the tensions that this could cause, or from a mixture of all these things, Scotland may well not have opted for independence at that time.

This background makes the view that independence would be good for Scotland, because Scots would then realise that, as Simon Jenkins wrote recently in the Guardian in an otherwise reasonable and balanced piece, 'that public money does not grow on English trees', deeply ironic. Deprived of the conclusions of an authoritative analysis, perhaps even motivated to some extent by a degree of altruism, Scotland continued with the Union, a situation sweetened a little by the Barnett Formula. The high political visibility of this formula, coupled with anunquestioned assumption that the wealth provided by North Sea oil could not possibly have been bestowed anywhere other than on Westminster, have been major factors in producing the view in England of Scotland as a land supported by subsidy; this in turn has fuelled the growth of the view in England as well as Scotland that independence for Scotland would be good for both - the very thing that the suppression of the McCrone report was designed to avoid. Had a fully informed debate been allowed to happen at the time, the Union would not now be threatened by the combination of smug condescension on the one hand, and resentment on the other.

The end of Paparazzi in Italy

The very name, Paparazzo, comes from an italian movie of the 60's (La Dolce Vita). Paparazzo is an obsessive photographer who runs after cinema stars. The rest is history.

Until now though. The italian justice is investigating on a scandal involving various paparazzi who blackmailed their victims. They asked money in exchange with the prohibited pictures.

The scandal is looming large, many seem to be involved in the scandal. Paparazzi seem destined to have a tougher life!

Read a report here

Back on the agenda: Scottish Independence

After a few years of turmoil and worse-than-expected electoral performances from the Nationalists, the issue of Scottish independence seems to be firmly back on the agenda, with a recent Scotsman/ICM poll putting support for separation from the UK at some 51% - its highest level since before devolution. Doubtless this is in large part the Scottish manifestation of the UK-wide disillusionment with Labour in general and Blair in particular, with the increasing support for the Tories that is evident in other areas of the United Kingdom not really a serious option in its northernmost nation. This has been further bolstered by the release of previously secret government documents from the 1970s, in which the then Labour Government was advised by a leading economist that oil revenue would give an independent Scotland one of the strongest currencies in Europe and an "embarassingly" large tax surplus. The report was supressed by the Government of the day, fearing the almost inevitable surge in support for the Scottish Nationalist Party, and was only made public a few months ago under freedom of information legislation. Many are likely to feel, not without significant justification, that the decision to do so was as cynical as it was fundamentally undemocratic, particularly as the first devolution referendum, held at the end of the decade, failed to achieve the qualified majority required by legislation.

Leaving aside the democratic significance of the fact that the recent poll suggests that 51% of Scots now favour independence, it is worth having a brief look at the contours of the current debate, with potentially crucial Scottish Parliament elections approaching next year. As Simon jenkins has noted in the Guardian, some fairly big guns from the UK Labour Party, including Blair, Brown and Reid, have been in Scotland recently to make the case against independence. I'm far from convinced, however, that Blair's chosen line of attack will be effective:

What I think it's about is the attempt by the SNP and others to say you're only truly Scottish if you're making the case for independence, but that's rubbish... You can be Scottish and British.

We share a currency, we share armed forces, we share social security systems - you rip Scotland out of the UK and you lose those benefits, and you will end up with an uncertain economic future with less power for people in Scotland to effect the big changes in the world.

the trouble with these is that, while the first just doesn't ring true, the second is likely to be counter-productive in the prevailing Scottish climate. The claim that "real" Scots support independence and reject "Britishness" altogether is an attempt to win support by making the position of the enemy extreme and unpalatable to most; it is not, to my knowledge, one that finds much support in the official rhetoric of the Nationalists, or, indeed, of the other pro-independence parties represented in the Parliament, namely the Socialists and the Greens. As argumentative strategies go, it is fairly transparent, and unlikely to be successful as such.

In terms of the second part of his argument, Blair would do well to remember that Scotland overwhelmingly voted "old" Labour throughout the Thatcher years - it always was, and remains, a considerably more left-wing nation than its southern neighbour, and the directions taken by New Labour in pursuit of the middle-English vote have not always been welcomed in the North, with the Scottish Labour Party being tainted by association if not by actual complicity. Nowhere is this clearer than, for example, the controversy over the war in Iraq; unpopular enough in England, but even more so in Scotland. Long used to the risk of having their voices lost in Westminster, many the Scottish electorate may well decide that having less power internationally is infinitely preferrable to having "big changes" effected in the world, of the type seen most dramatically in Iraq but readily evident elsewhere, in their name but without their consent.

Blair is correct that it is "up to them to make the argument" about the positive benefits of the UK; however, the current strategy seems to be a decidedly risky one. Of course, no decision about whether to remain within or dissolve the Union is without risks, both economic and political; but, as the impressive weight of expert opinion on both sides of the question suggests, these can only really be assessed in hindsight. In any event, it seems unlikely in the extreme that the simple act of secession would itself determine the future prosperity of either Scotland or England, in the manner that some on both sides of the debate seem to suggest; rather, such would depend in very large degree on the choices made subsequently. In terms of the current debate, in the light of forthcoming elections, we can but hope that, this time around, the Scottish people will be entrusted with all of the facts available in order to make a properly informed choice on this issue of central importance.

Benedict XVI does not think like Ratzinger!

I am glad to see that the Pope has expressed positive views on the entry of Turkey in the European Union. Ratzinger, the Cardinal, was extremely negative up until last year.

This is positive. Let's see how far Turkey can go now. The European Union itself seems to have some old prejudices, which will not be swept away easily.

The Legal Research Society ...

... is a nice Blog you may want to have a look at.
Have a look here