Constitutional Dilemmas

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Brave Serbian Judges!

Nata Mesarovic and Radmila Dicic Dragicevic, Serbian judges, sentenced the organizers and assassins of the late Serbian Prime Minister Zoran Djindjic. These men, members of Milosevic’s secret service death squads and criminal gangs, were sentenced to maximal sentences of 40 years of imprisonment. Despite enormous pressure from the underworld and retrograde political forces in Serbia the judges carried on with the process and pronounced their verdict. In this way many argue that the Serbian judiciary passed the test and managed to impose itself as a true and independent third branch of government. For more on this sentence see here, here and here.

Milan on Top

Three finals and 2 cups in five years: you can hardly do better than that!!

Mickey goes fundamentalist...

Cartoons and Islamic fundamentalism don't always mix; there are, however, some exceptions, as this clip, from a Hamas TV station (and taken from the website of the Palestinian Media Watch organisation), amply illustrates. It depicts a man in a Mickey Mouse costume leading a children's TV programme, leading them in songs about Coming to Jerusalem for the Time of Death, and the ubiquitous problem-solver that is the AK-47.

This is all assuming, of course, that the subtitles provided are accurate; I am unsure about what the nature and agenda of that organisation is, so this is an important caveat to make. However, if they are at all reflective of the message being portrayed, and whatever one's view on the complexities of the Israeli-Palestine issue, it is difficult to be anything other than disturbed by the message, and in particular the intended audience, of this piece of rhetoric.

Even if, as some may argue, Mickey has been an instrument of child-targeted propaganda for many years before now...

2007 UK Law School Rankings

This is the Times good universities ranking:


1 Cambridge
2 Oxford
3 Univ Coll London
4 LSE
5 Aberdeen
6 Durham
7 Nottingham
8 Edinburgh
9 King's Coll London
10 Manchester
11 Leeds
11= Warwick
13 Glasgow
14 Strathclyde
15 Queen Mary
16 Dundee
17 Queens, Belfast
18 SOAS
19 Bristol
20 Kent

This is the Guardian's Ranking:


Oxford
Cambridge
London School of Economics
King's College London
UCL
Warwick
Soas
Edinburgh
Birmingham
Aberdeen

Sarkozy Wins.

Sarkozy wins, he claims he will be the President of everyone. But social unrest and conflicts are ahead. Will he be able to cope with them?

French Elections: A Preamble

Be it Sarkozy or Segolene, France will have to steer away from the past, the present past and the more remote past.

The present past saw a clear decline in social and economic terms. Social conflicts in France is under the eyes of everyone, although people started acknowledging it only recently. I still remember 1998, when France won the World Cup. Many French friends of mine used that as an example of perfect integration of immigrants a la francaise. I thought back then, and I still think, that the french republican model of integration dramatically failed, despite its good will. A republican model means for French mainstream ideology a value monist system of values based on French Constitutional history since 1789. Multiculturalism, and value pluralism, have always been rejected as impracticable and 'anti-french.' In other words, living in France required people to become French; no alternative was/is possible. This situation needs to be radically reformed.

The more remote past concerns the institutions that moulded the French Nation in the past two centuries. Elite institutions as the Ecole Nationale d'Administration, Ecole Polytechnique, Ecole Normale and all the bodies of the state that go with them are in need of a deep reform as well. Those institutions had an extraordinary success during the age of nations, more or less up to WW2 and few decades after that. Globalisation, however, showed the intrinsic limits of institutions that work within a rigid (french) republican mould. The inability to compete with other institutions in the world is becoming staggering and the only option left is the overhaul of the whole system.

It is unclear whether Segolene or Sarkozy will manage to push forward these massive changes. There is no easy recepee to bring France out of the present stagnation. Perhaps something can be learned from Tony Blair's bitter sweet (more bitter than sweet) rule. He acknowledges nowadays that the greatest battle was the one for the change of attitudes of people ( a cultural change in relation to the way of doing politics in a completely different international landscape). French people are at the moment skeptical, afraid of globalisation, incapable of competing on a wider scale than the national one, and tired of the old Chiral like type of politics. May the next President achieve the difficult mission of change!

Scottish elections/ Does the UK need a "genuine" constitution?

The actual results for the Scottish election are as follows: the Scottish Nationalists won 20 seats to take their total to 47, and to become, for the first time ever, the largest party in scotland, ending 50 years of Labour domination; Labour lost 4 seats, moving down to 46; the Tories and Lib Dems lost one each, to move down to 17 and 16 respectively; and, in many ways the biggest losers of the night, "others" (such as Greens and Socialists) lost 14 seats - only two greens and one independent remain. There is already a lengthy wikipedia page on the results.

Not huge losses for Labour, then, but significant enough to see them lose the symbolic status of largest party in Scotland, and, more importantly, to make it likely that SNP leader Alec Salmond will be the next First Minister. There was a significant swing from Labour to SNP; this was bolstered significantly, however, by the fact that most of the supporters of the Scottish Socialist Party seem to have opted to vote for the Nationalists after the fairly spectacular, if grindingly inevitable, implosion of their first-choice party; and it is this that largely accounts for the fact that labour are only 4 MSPs down, despite the Nats gaining 20.

We are, it seems, set for some interesting times in Scotland; and this, at least, is to be welcomed. Indeed, it may be that the devolution arrangements, so clearly designed with Labour governments both sides of the border in mind, will be tested in the next few years by an SNP-led executive in Edinburgh dealing with the Tories in Westminster. The inevitably messy politics of coalition are also playing out in Scotland now, with minority government a real possibility as the Liberal Democrats have stated fairly publicly and clearly that the largest party has the "moral authority" to govern, and that a unionist coalition to stop a nationalist government was thus not on the cards (although it remains to be seen whether they will hold firm to this, or perform a laughable u-turn to match that of their 1999 "pledge" on university tuition fees - the jury is out on this one).

The biggest issue, however, has, as one commentator put it fairly early on last night, is "not the count but rather the counting". Lorenzo is correct to note, in his post immediately below, that the Scottish elections turned out to be a shambolic, shameful embarrassment in many ways: hundreds of postal votes not issued in time through nothing other than ineptitude; numerous counts postponed until the next day through teething problems with the new computer systems; and, most importantly, over one hundred thousand spoilt or rejected ballot papers. To try to put that last figure in perspective: let's assume a possible electorate of something like 4 million voters, and a turnout of around the 50% mark (unfortunately, I haven't been able to find accurate figures for these; any info on this would be welcome). That gives us around 2 million people actually casting their votes, of whom 100,000 - or a massive 5% - have been effectively disenfranchised (excepting, of course, the few that will have spoilt their papers on purpose). The reason for this seems clear enough - the decision to switch to a single transferable vote system in the local elections which took place at the same time, and which, for the first time, required not simply putting a cross beside a candidate's name, but providing a set of numbered preferences. There seems to have been clear confusion over which ballot paper requried which marks, with one election officer suggesting that around 60% of those voting were less than sure of exactly how to do so when entering the polling stations.

This much is clear. What is significantly less clear, however, is the extent to which this in any way reflects on the absence of what Lorenzo refers to as a "genuine" constitution - by which, I suppose he means a clear, written document, laying out systematically the "nature of devolution, the place of the House of Lords, and the status of the Human Rights Act". Firstly, it seems clear that none of the difficulties encountered last night would have been in any way reduced by such a move. We do not have to look to ancient history to find that serious electoral difficulties have arisen in states that have provided models for the whole world as to what a "genuine constitution" looks like; and attempts to introduce the constitutional question in these terms and at this time begins to look a little like disingenuous back-door constitutionalism.

Secondly, and at a more general level, it is far from clear that the heirarchy and pre-commitment involved in constitutional entrenchment of the sort that Lorenzo envisages is always entirely desirable; that very often, the attempt to formalise and systematise everything leaves no space for the common sense that has long been a part of the British, and particularly the Scottish, political, social and philosophical mindset (indeed, this is one of the source of one of the most commonly criticised caricatures of the EU in the UK).

Put simply, there is, in the UK, a genuine sense that we don't need a "genuine" constitution; that, for all of their formal imperfections and lack of clear conceptual divisions, the UK political institutions generally function in a largely satisfactory manner. And, in defence of such a viewpoint - which, I think, is the unspoken - perhaps even unconscious - starting position of many of my compatriots - we have in the UK a history of functional political stability, and liberal democratic credentials, that stand up to comparison with even the most heavily constitutionalised of European or American states.

Considerations such as these are not, of course, conclusive one way or the other; they do, however, call for serious engagment from those for whom the UK's lack of a written, or "genuine", constitution is major ethico-political issue. Perhaps we must, in exploring these issues, revisit the classical debate on the French Revolution between Edmund Burke and Thomas Paine; in any event, I hope it is a call that Lorenzo will take up in more detail here...

Scottish Elections: the chaos wins

Everyone expected the results of the elections, but by now it is like waiting for Godot. What characterised the Scottish elections is the lack of clarity produced by a shambolic voting system.

SNP and Labour parties are fighting to the last vote to secure the majority and lack of clarity in these circumstances is not at all positive.

In any case, my feeling as an external beholder is that the UK should engage in a wide constitutional debate as to the nature of devolution, the place of the house of lords, and the status of the human rights act.

This may be the right time to start developing a genuine constitution for the UK.

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.