Saturday, April 30, 2005

French referendum on EU constitution, May 29

Hearts are aflutter across Europe in the run-up to the French national referendum on the draft EU constitution, with opinion poll suggesting that the French populace may reject it. My own gut feeling is that the French government will promise enough goodies in other areas to cause it to squeak by, but not by much. Here, however, is a good, short primer on the EU constitution and the French referendum, from the National Journal, thanks to RCP.

As I speak with my Western European law students -- LLM students from France, Germany, Spain, Holland -- it becomes clear that the issue is fundamentally Turkey. However much folks on both sides of the Atlantic write high-toned articles about the incomprehensibility of the draft constitution, French concerns about loss of influence in the EU under the draft constitution, the lack of democratic accountability and legitimacy in the EU - all of which is perfectly true, and then some - my students don't think those issues would cause a winning "no" vote in France or any other leading Continental power, whether France, Germany, or Spain (Britain is another matter). These are cultures in which the population is generally content to make democracy a very limited requirement, compared to American sentiment, and only a modest check on what are actually bureaucratic states. What tips things over, although it is especially impolitic to make too much of it on the French left, is Turkey.

If I were a Western European voter, I would share the concern. Culture matters, and Western Europe can't manage to integrate and assimilate the immigrants from dissimilar cultures that it has now. It told itself for a long time that this didn't matter, in a fit of politically correct multiculturalism, but of course it was quite wrong, as it now sees, too little, too late. Europe as currently constituted does not have the ability in any foreseeable future to absorb Turkey economically - it has its hands very full with Eastern Europe and former East Germany. It needs immigrants, to support economically its aging indigenous population, but it doesn't like or want the immigrants culturally, and they feel much the same way - and will eventually feel still more unhappy over the levels of taxation necessary to support the aging indigenous Western European population in the style to which it has become accustomed.

I can't see where taking in Turkey does anything other than exacerbate all those problems. Since I likewise don't see any moral obligation to open the EU's doors to everyone, including those who are profoundly different in culture, religion, wealth, and so on, I don't see why Europeans should be enthusiastic about an expansion of the EU to Turkey and, of course, they aren't. Immigration is a good thing, for Europe and the United States, but it has to be done in such a way that it absorbs immigrants into a common culture, one defined by citizenship and commitment to the fundamental values of the society into which they are entering. That sounds faintly un-PC in today's Western conversation - borders are merely arbitrary lines, the dominant culture must surrender itself to everything that wants to enter, because it has no legitimate moral case to keep anything or anyone out, the notion of a political community that constitutes itself by values that immigrants are expected to absorb is merely cover for nativisim or worse --

Well, sorry, not so long ago even American liberals thought that a commitment to US constitutional values was a necessary condition of citizenship and joining. The one liberal who genuinely had it right - but seems to find it impossible to act on his own analysis, in the sense of actually endorsing things like citizenship education - is Michael Walzer, in Spheres of Justice, from the early 1980s - a much ignored book, because it dared assert that with relatively narrow exceptions, claims of justice are local and particular in nature, claims upon a particular society.

That does not fit well with the prevailing human rights universalism, which proclaims that claims of justice are written in the sky by some transcendency (not, of course, God) and given earthly form by international organizations, in aspiration if not in fact. Merely functioning sovereign state democracies are merely parochial imitations of the real, planetary thing - nice as an outmoded model, but in fact an artefact standing in the way of true universalism. Particular political communities have no claim to universal values - and, bringing it back to immigration and assimilation - have no grounds to keep people out, or to keep people out unless they share in some values of that community, because only the universal political community, the dream of the universal brotherhood and sisterhood of all people, has legitimacy and it, by its nature, knows no borders. Which is a pretty good description of liberal internationalism today - not for it the "really existing democratic sovereigns."

(Update, Sunday, May 22, 2005: Read Chris Caldwell's report on the upcoming vote in the Weekly Standard, here.)

(Update, Monday, May 23, 2005: Read Mark Steyn on the European constitution, here:

"At the Theresienstadt (or Terezin) concentration camp in Poland, Sweden's European Commissioner, Margot Wallstrom, declared: "There are those who want to scrap the supranational idea. They want the European Union to go back to the old purely inter-governmental way of doing things. I say those people should come to Terezin and see where that old road leads."

Golly. So the choice for voters on the Euro-ballot is apparently: yes to the European Constitution, or yes to a new Holocaust. If there's a neither-of-the-above box, the EU's rulers are keeping quiet about it. The notion that the Continent's peoples are basically a bunch of genocidal whackoes champing at the bit for a new bloodbath is one I'm not unsympathetic to. But it's a curious rationale to pitch to one's electorate: vote for us; we're the straitjacket on your own worst instincts. Or as the cute but gloomy Omar Naber, the Slovenian Eurovision entrant, put it in his Naberly way: "Come on; tie my hands so I can drown In lies, I bleed to death in your lap."

And, insofar as the past 60 years in Europe have been comparatively non-bloody, that's surely due to Nato and the American military presence, both of which your average EU apparatchik would scrap in an instant without worrying about Theresienstadts looming round the corner. The nearest to a latterday Theresienstadt was Yugoslavia and that didn't exactly reflect well on the EU. Jacques Poos, foreign minister of Luxembourg and as the holder of the rotating Euro-Presidency the Union's chief negotiator with the disintegrating Yugoslavia, told the Americans to butt out and declared: "The hour of Europe has come!" The hour of Europe came and went, and a couple hundred thousand corpses later the EU was only too grateful for the Americans to butt back in again.

Why does so much of the continental governing class carry on like the sinister Mitteleuropean shrink from a 1940s melodrama, insisting that you're far too unstable to be allowed to leave the sanatorium? Well, either they're the loopy ones or they're desperate, and they'd rather talk about a new Holocaust than any of the more pressing questions - Turkey, the unsustainable euro, unemployment, over-regulation, deathbed demographics. Or maybe they talk about the Second World War because that's the only genuine pan-European topic.

Whatever the answer, the concentration-camps-around-the-corner argument is at least a useful glimpse into how the Eurocrats regard the citizenry. However the French and Dutch votes go, it seems unlikely that the EU's rulers will allow anything as footling as the will of the people to derail the project at this late stage. In Euro-referendums, there's only one correct answer; it's just that sometimes you have to have two votes before the people figure out which one it is. My sense is that the French will vote narrowly for the constitution and the Dutch will narrowly reject it, but either way the EU will figure out a way to inflict it on the Continent. A stitch-up in time saves, nein?

At least Saggy Hussein has his Y-fronts: "Look upon my briefs, ye Mighty, and despair!" as Shelley wrote. By contrast, the EU Emperors have no clothes other than their magic invisible Holocaust-repelling cloaks. They may win the vote, but the way they've conducted the campaign suggests that they know they've lost the argument.")

(Update, Thursday, May 26, 2005: RCP has an International Herald Tribune essay by Dominique Moisi urging a yes vote on the constitution. I rarely agree with Moisi, but I think he is perhaps the smartest French commentator regularly appearing in the English language press - I always read him very closely. I regard this as about as good an argument for "yes" as has appeared in short form in English - read it here. My own guess, btw, is that French voters are merely teasing their political elites with the possibility of a "no" vote and that it will squeak by.)

(Update, Sunday, May 29, 2005: Well, I was wrong about it squeaking by - it didn't squeak by, it got positively squashed like a bug. See the AFP report here. Seems like Tony Blair's life just got a lot easier. And although I think French voters rejected the constitution for all the wrong reasons, as a believer in freedom and democracy and democratic accountability, I can't say on principle to see it die.)

(Update, Tuesday, May 31, 2005: The UK Daily Telegraph reports on the arguments over whether to go forward with the ratification process or declare the constitution dead, here. Peter Mandelson, EU Trade Minister, seems to think, contrary to what the law says, that no single country has a veto, even though it requires every country's ratification to bring the treaty into force. Treaty proponents seem to want to press forward no matter what - I don't quite understand this and wonder if this is not a reflection of their utter out-of-touchness - the treaty will get rejected in the Netherlands and, if a referendum is held in the UK, there too. And by sizable majorities. Do that very much and it is much worse for the EU as an institution than giving up on a mere constitutional draft. Being in favor of democracy, I hope the constitution is presented and rejected in decisive terms across the EU, even if the French seem to have voted against it in defiance of the most basic law of economics - there is no free lunch. I know that numbers of French economic conservatives hoped for a yes victory in order to rationalize French economic policy, and that the 'non' campaign was a victory for economic shortsightedness. But if you have to choose between the democratic franchise exercised stupidly and no democracy at all even though economically efficient, I'm afraid that I'm with democracy. Eventually the Muslim immigrants to France who make up the next generation will get tired of paying the taxes necessary to support the 'non' generation and that will have many repercussions, for France domestically and for the United States. But freedom to be stupid is part of democracy, too. And it's not as if the Euro elites have done so well with their economic policies.)

Thursday, April 28, 2005

Ali al-Timimi conviction in Virginia

A few friends were surprised by the quote I gave the Washington Post following the announcement of the conviction of Ali al-Timimi by a Virginia jury on charges of encouraging followers to take up arms and jihad against the United States. The quote is accurate - although the ellipsis takes out some important qualifiers.

Essentially, I think the US government overreached in its theories against al-Timimi to the point of criminalizing speech as such, and I think there are serious First Amendment problems with that. I think there were grounds on which he could and should have been convicted for actual direction and participation, rather than speech alone, but the government's theories went well beyond that point. It is not the conviction as such that disturbs me, but the overreaching government theories that create serious First Amendment issues. If you look at how the government presented its case throughout the course of the trial, it did not limit itself by any means to saying, al-Timimi was directing his followers to do this or that; the government prosecutors really argued - also argued - that one could not preach, in the abstract, that one should take up arms against the United States. It is what the prosecutors 'also argued' that troubles me in this case. If they wanted to establish a strong precedent that you can't preach violence against the US, they did so - but that is the wrong precedent, historically and legally, under the First Amendment. Perhaps there are ways in which these lines can be sorted out on appeal.

I may as well add that the safety of the First Amendment lies in the hands of conservatives, not liberals. It's not because conservatives attack the First Amendment and liberals defend it - on the contrary, progressives have long been disenchanted with the First Amendment, because it gets in the way of liberal authoritarianism to impose its standards - on schools, on workplaces, on universities, on churches, and so on - without having to argue and debate them. That disenchantment grows as liberals look with longing to other societies in the world without First Amendment protections and see how much easier it is for liberal elites to control public opinion. So it becomes a special obligation of conservatives and libertarians to be First Amendment purists, proudly and without dilution, protecting even hateful and wicked speech in the way liberals used to, before they discovered their authoritarian streak.

Sunday, April 24, 2005

Attachment ethics in just war theory

I have discussed at length earlier in this blog the importance of "attachment ethics" in just war theory.

By "attachment ethics," I mean the position that at least sometimes it is morally okay to favor your own, on the basis of emotional and sympathetic attachments of family, love, friendship, and so on, over claims by strangers. Attachment ethics potentially has a role to play in just war theory because people in war favor their own side, favor their own, and often do so on the basis of claims of attachment which, if not quite the same as family and personal ties of love and affection, are in the same general category - ties to tribe, land, country, constitution and political order, and so on.

One way to deal with these claims is to deny them any moral status. Pure consequentialism, for example, does just that - a thorough-going consequentialist will not admit of any special status for claims of affection, for example. Neither will a thorough-going, duty-based Kantian - what is love in the face of duty? The difficulties in reconciling these moralities with how the rest of us think about these things has been widely explored and discussed - my favorite article in this literature is Peter Railton's "Alienation, Consequentialism, and the Demands of Morality," in Philosophy and Public Affairs (Vol. 13, 1984).

I want to skip over all the arguments about attachment ethics as such and focus on a different issue more closely related to just war theory. For what positions in the broad range of ethical positions available on war might attachment ethics matter? If you are a thorough-going consequentialist, attachment ethics is inapplicable by definition - you refuse to consider any such attachments. That position I have described as a certain form of moral realism, pure consequentialist moral realism in just war theory.

Most realists, however, are not ethical consequentialists in the pure sense, however, but rather do care about one side or the other. If they are still to be some form of moral realists, however, rather than simply prudential with respect to one side or another in war, then they must give some account of why it is okay ethically to favor one side in war as a realist - for which they will likely need some attachment ethics account. And they will have to give some account of what the limits of that attachment are morally, again to prevent it from simply being a prudential, rather than moral, realism.

But now, what about just war theories of war ethics? Does either Catholic just war theory or Walzer's just war theory need attachment ethics? One might think that they do, given that each allows you, under some circumstances, to fight for your side. One might think, given the importance that Walzer, especially, places on the rights of particular political communities to be particular, indeed parochial, that some form of attachment ethics must be at work.

Curiously, however, this does not appear to be the case. The reason is that both Walzer's just war theory and Catholic just war theory are based on a case of objective, indeed criminal, violations of natural law, viz., aggression. Just war, for both these theories, is an account of the response to aggression. It is a response by a particular political community that has been aggressed against, and by those willing to fight with it, but it is always a lawful response to an unlawful, criminal act - aggression. As such, by definition, a just war is always the war in which it is lawful for one side to fight, objectively morally right for one side to fight. It is a particular, parochial political community that fights, but fighting for it requires no special attachment ethics to fight for that side - it is the side that, objectively, God would fight for. If that is your theory of when it is okay to fight, then God is objectively on your side, and you have no need to justify why, separate from objective rightness, you fight for your side.

I have some problems with this. The reasoning is impeccable, I think, but doesn't describe the actual world of war in many circumstances. Sometimes the good side and the bad side are crystal clear, but sometimes they aren't - sometimes both sides are a little right and a little wrong, and sometimes both sides are pretty wrong. More broadly - and this is a separate discussion - I think Walzer's criterion of "aggression" is too narrow - I think it is justified to fight to preserve what he calls "a common life" on grounds that are broader than his definition of aggression - but I will leave that aside for now. For now, I just want to be clear that despite Walzer's defense of particular political communities, it does not appear that his just war theory requires an attachment ethics to defend them with arms.

Saturday, April 23, 2005

Yoo and Waldron debate terror and torture

See this very interesting post at Opinio Juris on a debate between John Yoo and Jeremy Waldron on terror and torture. Here, at Opinio Juris.

I'm afraid I quite disagree with Professor Waldron that the question of the whether you would be willing to torture the person who knows where the ticking nuclear bomb is hidden is, in his words, "bad and corrupt." That's not an answer. It is a real question since September 11. However, he did answer it, and his answer is a morally defensible one - we must never torture, though the heavens fall, as Kant might say. It is also, in my estimation, quite the wrong answer. My own view is best expressed by Thomas Berger, in a passage I have quoted before, from the Lady of the Lake to the dying King Arthur: "Thine obligation was to maintain power in as decent a way as possible while yet being effective."

A nuclear bomb going off in Manhattan because we refused on principle to torture the person who knows where the bomb is located is not effective nor, come to that, decent.

UPDATE, May 7, 2005. Following up on a thoughtful anonymous comment, although without trying to be more than schematic. Here are four different situations where the morality it slightly different in each. (1) The guy who planted the bomb and knows where it is - torturing him in those circumstances is the clearest case, because of the element of culpability. (2) The guy who knows where the bomb is planted, although he didn't plant it himself - there is still an element of culpability here, not necessarily from being part of the terrorist group, but in refusing to share information that could cost a million lives. Torturing him is also not a problem. (3) The guy who knows where the bomb is planted, but won't tell you, because the terrorists have kidnapped his family and will kill them if he talks. (4) The guy who (some sci-fi story) has no connection to the terrorists, is wholly innocent, but his memories of what he saw the bad guys doing won't be triggered unless you torture him.

Cases (3) and (4) can justify torture, I think, but it has to be justified on either a double-effect basis (you are torturing him, yes, but especially in case (4), you are aiming at some other effect and would avoid the torture if you could) or else on simply a consequentialist basis - i.e., you are always entitled, and indeed obligated to torture anyone, even a small child, if it would prevent the deaths of a million people. I am skeptical of the use of the double effect doctrine here - it applies even in the case of (1) and (2), I suppose, and think that it is one of those situations where you simply think that consequences can become so overwhelming, so many dead, that it consequences overwhelm everything else.

What I do think has genuine real world application here - why I think Waldron is wrong to reject the question as corrupt and unreal - is that if we captured Osama, Zarqawi, several others, we would have an opportunity in real time to save many lives, now and into the future, and the element of their culpability opens the possibility to do things to them to obtain that information that one could not do to the person who might actually be the innocent sherpherd. I don't regard Waldron's view as off-the-wall, of course - I have great respect for its principledness - but I don't think it's right. And I note that neither of the two Democratic senators from New York, Chuck Schumer or Hillary Clinton, thinks it is right, either.

Sovereignty conference at University of Texas Law School

Last weekend I was at a fabulous conference on sovereignty at the University of Texas Law School, co-convened by UT professor Sandy Levinson (editor of the Required Reading collection of essays, Torture [my blog comments here], and University of Siena/UT professor Francesco Francioni. If you weren't invited, you should be very jealous indeed! Intellectually, academically, socially, it was a great meeting. I learned a great deal about the range of the concept - including areas I, as an international law type, had never been exposed to, Indian tribal law, for example, from folks such as Karen Engle and Gerald Torres, both at UT. But the conference also went beyond public law into such utterly crucial topics as the WTO appellate panels and the construction of a transnational bankruptcy law. The participation of colleagues and friends from Siena and elsewhere in Europe was crucial to a lively and intelligent discussion.

I came away from the conference more convinced than ever, as an unabashed supporter of US democratic sovereignty, that the erosion of US sovereignty, if it happens, will happen because conservatives will cede more and more power to economic bodies, with consequent erosions of political sovereignty. I am a determined free trader - on both moral and economic grounds - it would seem to me, for example, bad economic policy as well as morally dubious to deny free trade to Central America, for example, by failing to pass CAFTA. But I am also a democratic sovereigntist, and it has to be recognized - not slid under the rug - that the preservation of democracy is not the same as extending the efficiencies of the common market. One can easily come at the expense of the other.

There was also a lively discussion of the use of foreign law in US courts, with Dean Alex Aleinikoff of Georgetown (how does a dean find time for this kind of serious academic work?) asking the very practical question of nay-sayers like me, well, isn't the horse already out of the barn? Isn't this stuff here to stay, one way or another? I'm not so sure. Sarah Cleveland of the UT faculty pointed out in her presentation how much international/foreign law has traditionally been found in US jurisprudence and suggested the practice was not exactly new. Again, I have my doubts this is precisely the issue, but I'll save that for another post.

Philip Bobbitt, of UT law school and author of the indispensable Shield of Achilles: War, Peace and the Course of History, hosted us all at his lovely villa in Austin for dinner. And bbq for us out-of-towners at the Salt Lick. So, as they say, we learned a lot, and a good time was had by all. Special thanks to Sandy Levinson for organizing the meeting.

Intellectual diversity on faculties, or, how to produce South Park Conservatives (off-topic)

It occurs to me, in this papal election season, that the Catholic college of cardinals has greater intellectual and ideological diversity than my faculty does. And this, I'm afraid, is the dismal norm at faculties across America.

In the meantime, at my daughter's hoighty-toighty fancy private school, the February black history month listing of prominent African-Americans in the Bush administration listed, of course, Colin Powell - but somehow managed to leave out [that Republican war-monger? it's the only reason I can think of - could they really just have forgotten her?] Condaleeza Rice. And when my daughter wanted to do her project on Rice, she was gently encouraged (in that passive aggressive, of course, dear, do whatever you think best [naturally I won't think any less of you or grade you down] tone of voice that American kids from an earlier and earlier age understand as the PC-threat and which is primarily responsible for producing South Park Conservatives in generationally record numbers) to think of someone else - Shirley Chisholm, in this case, a perfectly worthy possibility, but not if it's because you think Condi Rice is unworthy. The kid is, so to speak, sticking to her guns, and we'll see what grade she gets on the project.

PC teachers and professors who practice this form of passive aggression are too politically self-absorbed in onanistic congratulation to understand the levels of contempt that their students, even in elementary school, have for their manipulativeness. And one of the unattractive results is that it makes it harder for me, as a small-c conservative, to teach my daughter both that there is value in arguments that liberals make and that if you look beyond PC liberal teachers and professors, sometimes they even make them - the reason being that in this form of passive aggressive, PC manipulation, liberals don't make arguments, they simply manipulate from a position of power - if you don't believe x and accept it as doctrine without argument, you are simply a bad person.

The entirely justified resentment this produces makes it difficult to understand that there are, obviously, arguments on behalf of liberal positions - and not infrequently not only good but persuasive. What's weird - and seems frankly, suspiciously unbelievable to my kid - is that I have to make the arguments on behalf of liberals that liberals themselves can't be bothered to make, at least not when in control of the intelligentsia culture of universities and elite private schools wherein she resides. She is coming to believe - thanks not to conservatism but thanks rather to the liberal PCness of her education - that liberalism consists of unchallengeable dogmas while conservatism consists of arguments and matters genuinely up for discussion. This is intellectually flattering to a conservative like me, but of course simply untrue nonsense, on both sides of that equation, liberal and conservative. Yet it is a powerful perception she has acquired - thanks to the progressivist closemindedness of the education she is receiving.

Update, Saturday, April 23, 2005: Put another way - and liberal intellectuals, professors and teachers, take careful note - my daughter is gradually becoming a conservative because her experience with you is teaching her that to articulate conservatism is (as you folks like to put it, with that insufferable sense of intellectual and moral monopoly) to speak truth to power. Your institutional power, your professor and teacher power, your power over grades, your establishment power; you made the long march through the institutions of learning, but apart from tenure, I'm not sure what it got you, as I don't think it's captured the next couple of generations. I don't like the moral absolutism of the truth to power mantra - I don't like it when liberals do it, I don't like it when conservatives do it, not in what should be the ordinary course of political and policy argument, but that's the moral sensibility you're giving my kid. Congratulations.

(See my earlier post on this subject, here.)

UN reform and US policy; the next SG; and John Bolton

A few final thoughts re UN reform (and thanks to Peggy at Opinio Juris for the kind mention).

The reality is that systematic UN reform is extraordinarily unlikely.

As to security issues and the Security Council, those ideas are dead-on-arrival; the most that might happen are cosmetic changes.

As to issues of poverty reduction, economic development, migration, infectious disease, and so on - well, there are more possibilities here for actual change. Not systematic changes, but possibly technocratic changes to make these functions modestly more efficient.

The focus of change at the UN will likely occur in the jockeying and jostling for the next SG. Annan may set something of the agenda, but he and his crew, with the exception of Mark Malloch Brown - a functionary who somehow always rises no matter what disasters happen around him - are a spent force. The expectations around the next SG are likely to set the tone for what happens next at the UN. If those expectations are that the SG is a "world leader" - a celebrity in the way that Annan turned himself into a celebrity - then it is likely that no reform of any consequence is on the table. Expectations of a "world leader" type-SG, looking for adulation from international NGOs (even when they criticize and carp in the fashion of the loyal opposition) and from Western European states-turned-NGOs, will mean even less in the post-Annan UN than they do now. Annan's standard-operating-procedure - swagger like a powerful world leader before adoring audiences, then humbly announce that you are no more than a servant of the sovereign states of the UN when things go wrong - has worn a bit thin. A new SG in Annan's mold will be likely to try it, but it will not bring about any UN reform.

A better type of SG would be one who, consistent with the analysis I've laid out below, understands that the task of reform is to trim expectations and missions and visions. Glory in being a technocrat, and create a technocratic institution. That means that you can't deal with world peace, except insofar as the great powers let you - but if you abandon those kind of pretensions, and work on the competence, fiscal rectitude, and technical skills part, you can have great power and influence in improving the lives of countless people across the globe.

The best person to press this agenda on behalf of the United States is John Bolton. The US does not need a diplomat at the UN at this moment, it needs someone who cuts to the chase. We are not at a moment in which papering over the differences in vision is a useful thing - it merely prolongs the inevitable death and makes the cost of genuine reform higher down the road. I am not the Bolton brand of realist - but I take it, and him, intellectually very seriously, and I recommend his 1997-98 essay on realism and Burke in the National Interest, here (thanks RCP).

The borking of Bolton is a disgrace. (The inimitable Mark Steyn captures my views nicely, here.)

(Update, Saturday, April 23, 2005: I completely forgot to add what I originally started out to say, which is that the fundamental question in all this for the US is what policy to adopt in case, as is likely, that deep UN reform goes nowhere. The question, really, for the United States, is not so much would should UN reform look like as what the US response should be if there is no serious prospect of UN reform. It's a more important and more difficult question. About which I am still thinking.)

Tom Sargentich, 1950-2005

It is with great sadness that I mark the passing of my Washington College of Law friend and colleague, Tom Sargentich, who passed away last Friday after a long illness. Tom was a great scholar of administrative and constitutional law, among other things, and co-director of our law school's very successful law and government program. He was also someone who would sit and talk ideas with you - warm, friendly, inquisitive, intelligent, and thoughtful. A wonderful teacher and scholar, he will be greatly missed.

Thursday, April 21, 2005

UN reform, post 1: The UN and claims to global governance

The fundamental issue of UN reform - the one that must precede all merely technocratic and managerial reform is global governance and the UN’s relation to it.

The fundamental problem is simply stated. The UN, from the Secretary General on down, sees itself as the bearer of global governance, to and on behalf of, the world as a whole. It sees itself, metaphorically, as a maturing sapling gradually becoming the lofty tree of global governance for the world and all that dwell therein. It sees itself, therefore, as the bearer of what Kofi Annan has called the UN’s “unique legitimacy,” on the ground that UN organizations are nascent governance, if not government, for the world.

The hubris and grandiosity of this self-conception have two related effects, both enormously damaging.

The first is that the UN and its leading organs, seeing it as a sapling that is supposed to grow into this globally overarching tree – majestic and towering – of planetary political authority, takes itself as able and authorized to enter into many fields in which, without this grandiose self-conception, it would obviously have no competence or authority. The Secretary General pronouncing on the illegality of the Iraq war? The CEDAW women’s rights commission criticizing the celebration of Mother’s Day? The International Court of Justice dignifying entirely nonbinding, hortatory General Assembly resolutions on Israel’s wall as supposed sources of law in World Court judgments? The UN’s humanitarian aid chief criticizing the US and others for supposedly stingy tsunami aid contributions, when it took his own organization a month to establish a presence in Banda Aceh, while the US was there in four days? The High Level Panel report sternly if indirectly instructing the US that determinations of threat to US security require the action of the Security Council?

One could multiply outrageous and, often, PC-silly examples endlessly, of course. More important, however, is to understand that these particularly visible emanations of hubris arise because of a solidly-held belief, running under the surface of the organization and its supporters, that it ought, and is entitled, to behave as a government-in-waiting, eroding the sovereignty of the United States in particular, because it is the sovereignty of the United States as the superpower that principally blocks the aspirations of the tree to grow to what ought to be its destiny.

This majestic but entirely hubristic self-conception arises from within the organization, but it also arises from without. Other countries, in Western Europe notably, which are, so to speak, “post sovereign” – meaning that they no longer worry especially about sovereignty because they no longer have to worry about the physical security of their populations – endorse this ideal as a matter of ideology. In part this ideology is, well, just ideology – yet also in part, it reflects, in realist terms, a tendency of politically weaker but physically secure states to find ways to tie up the power of the superpower.

In addition, the UN – the SG, especially – has sought to overcome its own “democracy deficit” by appealing to rapidly multiplying international NGOs, most of whom already share the UN vision of global governance and gradually eroding sovereignty, as a kind of alternative “electorate.” The SG has repeatedly told these NGOs that they are “global civil society,” as though the world were a domestic society in which UN institutions formed the top level government, and that these NGOs, rather than governments, are “representatives” of the peoples of the world. It is a naked bid for the legitimacy of representative government, seeking to find “representatives” of the world’s peoples – an effort to which international NGOs, seeking access, influence, and sharing the SG’s vision of global governance, eagerly lend themselves.

However, one must also note the many ways in which the United States itself contributes to this grandiose mis-vision. When the US wants to dump an unpleasant task – some aspect of nation-building, for example, in Iraq today, in Somalia a dozen years ago – it frequently turns to the UN, and does so with language that elevates precisely this sense of “unique legitimacy.” The Bush administration did so, for example, with complete short-sightedness in the run-up to the Iraqi elections, desperately seeking UN approval and election monitoring that, in the event, turned into the usual anti-US sniping and, more important, has the long term effect of reinforcing the argument that such UN players are indispensable for legitimacy. There are obviously many circumstances in which acting under UN cover is a useful exercise for the United States – failed states and civil wars, for example, where the great powers, the P5, have no serious conflicts of interest at stake. But the US needs to be far more careful of its long term interests in how it describes such actions, and not heedlessly grant the UN a governance legitimacy that the US cannot finally accept in the grandiose form that others hope to achieve.

The second damaging effect of this mis-vision is a consequence of the first. If you believe firmly that the UN is a sapling that must be encouraged to grow up into a towering tree of global governance, then you will be strongly inclined to forgive and forget mistakes, incompetence, mismanagement, waste, inefficiency and indeed outright corruption. And you will do so over and over again. On this mis-vision, all these bad things need to be corrected (all in good time, of course), but they must also be understood as the sapling growing into the tree – and if you have “unique legitimacy,” even if only in a nascent form, then you must be allowed many, many mistakes, because of your final destiny. To question, for example, whether the UN really needs all those thousands of civil servants – or whether they ought even to be thought of as “civil servants,” as though they were part of a government, rather than, say, contract employees – well, that is to question the fundamental vision itself. The usual response of would-be UN reformers is soothingly to say that we do not question the ultimate vision, but only the efficaciousness of methods for getting there, that’s the only reason we’re looking at, for example, the budget of some UN agency. Whereas what needs to be examined is the actually existing structure, its employees, their numbers, functions, budgets, and all the rest, because we think the fundamental vision is misconceived. As for corruption – well, at some point, so goes the soothing response, the level of corruption threatens to taint the vision itself, in which case it is time for a limited cleaning out for damage control, but nothing, again, that questions the self-vision of an organization that believed that it could manage such a program. These soothing answers are deeply wrong.

What needs to be rejected, therefore, at the level of fundamental vision of the UN is - what needs to be rejected in order to get on with fundamental UN reform, is:

that it is a body of global governance or even a body which is gradually growing to become such a body [don't know why the bullet point function won't work here],

  • that it has any unique legitimacy beyond that which it is granted for specific tasks, that it has any business taking positions on such matters as nation state sovereignty,
  • that its leaders are leaders of the “world” rather than agents of the nation states that put them there, and
  • that the UN and its leaders carry any moral or legal authority beyond furnishing a talking shop for the nations for matters of mutual concern, a coordinating body of modest means for specific tasks and, through the Security Council, a talking shop among the great powers, including the good and bad, the virtuous and wicked, among them.

UN reform, post 2: If not global governance, what should the UN be?

A shift in the fundamental vision of the UN is not impossible, although it is highly unlikely – if not for the UN itself, then for significant players, starting with the US.

After all, the evolution of the term “global governance” itself reflects a growing recognition by so-called progressive idealists during the 1990s that true “global government” was not achievable any time soon, and that anti-sovereignty forces needed to regroup around a less threatening ideal, “governance” that would elide the precise nature of who and what was doing the governing.

The shift in debate is not so much a matter of international law/anti-sovereignty/global governance idealists versus sovereign power realists. Rather, it is increasingly a conflict between idealists of very different persuasions - liberal internationalist/anti-sovereignty/global governance idealism versus a new form of idealism, or rather a resurrected idealism, the idealistic belief that the best form of world order is one of democratic sovereignty of the nation state, whereby the realist power of sovereignty is used as a vehicle for the value of constitutional democracy, at the nation state level and without any belief that this can or should be transcended by transnational or supranational global governance. (I discuss this in my review of Anne-Marie Slaughter's A New World Order, available from SSRN in pdf here.)

John Fonte, Jack Goldsmith, Curtis Bradley, Eric Posner, Jeremy Rabkin, and I are all among the so-called “new democratic sovereigntists” seeking to debate the transnationalist pillar of internationalist thought that up until recently was seen as sacrosanct. (Perhaps the most interesting, from the standpoint of how this debate is opening up, is Yale law professor Jed Rubenfeld, whose blistering articles against supranationalism as an attack on US constitutional popular sovereignty are quite stunning – particularly as Professor Rubenfeld is impeccably left-liberal in his political views.)

This suggests, then, that this discussion is not solely a matter of rejecting things – rejecting a misguided vision of the UN, a misguided view of multilateralism and internationalism. There is a positive vision to be asserted here – a new and better vision of the UN. The first is a matter of metaphor – if the UN is not the sapling growing into the tree of global governance, what is it? Ideally, it is not a tree, but a set of low yet sturdy hedgerows designed for particular tasks, for particular missions, with particular and narrow competencies. A reconceived UN would be one which abandoned all pretence to the grandiosity of global governance – and which gave up all the excuses for incompetence and corruption that such a vision grants – and instead saw itself as a strictly limited institution with particular agencies dedicated to particular tasks.

Competence and efficiency would be the criteria of success, whether in public infrastructure investments in basic health and education in Africa, or combating HIV, or delivering emergency services in war or natural disaster. It is a frankly technocratic view – one in which the UN would be kept out of fields in which the relevant criterion of success were anything other than technical and measurable outputs. Tasks would be limited, legitimacy likewise limited, and aspirations to governance limited most of all.

This would mean, inevitably, that the UN would focus on poverty reduction and economic development, health and literacy, control and prevention of epidemic disease, and so on. There is no question that the UN has a major, profound role to play in such matters – it plays a significant role already and, if it abandoned its reach in matters in which it cannot play such a role, it could contribute inestimably to the reduction of misery on this planet.

Its role in security matters, as an institution, on the other hand, would be sharply curtailed, in the imagination of its leaders just as it is limited in fact – essentially, limited to discussions among the Security Council members without the bully pulpit interventions of the SG, and whatever pronouncements the General Assembly would make, with a renewed emphasis on their hortatory and nonbinding – non-law creating – nature. There are things that would be given up in this process – for example, one would not look to the UN technical experts to opine on whether genocide was underway in Darfur or not – it is, ultimately, a plainly political question framed in technical language that would fail the “technocracy” test of what the UN as an institution could address. Instead, legal experts and diplomats of the various states, and particularly the democratic sovereign states, would debate it. The question of whether the Security Council acted or not in a situation such as Darfur would be - as it always is whether admitted or not – a matter of great power politics, interests, and values. At the same time, however, by no longer assuming that the Security Council was necessary to act in a place like Darfur or Rwanda, the virtuous great powers – the US above all – would not be free to excuse their own inaction on the grounds that the Security Council had not acted.

What to replace the flawed “values” component of the UN? It is something that gets talked about endlessly, but which, in the rub of events, gets pushed aside by two inescapable facts. The first is that the members of the Security Council must necessarily be the great powers, good and bad among them, because power is power – but that fact by its very nature limits the moral authority of the Council, and makes it no more than a place for discussion and, in situations where the interests of the great power do not conflict, occasional action. It is no nascent global legislature in security matters or anything else, and a body on which sit China and Russia with veto rights can never have any great moral legitimacy.

The second is that beyond the Security Council, only about half of the members states of the UN are democracies. The values that the UN is, at its best, supposed to embody must be carried forward by coalitions of the willing democratic sovereigns. That might mean occasional military action – a no-fly zone over Darfur, for example. But it more routinely means what some have called a “caucus of democracies” to carry forward the values that are necessary in nation-building in such places as Iraq and Afghanistan, in supporting reform in weak and failing states, in supporting values beyond China’s realpolitik acquisition of hydrocarbons or Saudi Arabia’s export of its own values instability.

The UN, embodied above all in the scandal of the UN Human Rights Commission, cannot reliably speak to those values, because it is a talking shop of all states – that talking shop has a certain value, but the fact that all are included by definition limits its moral authority. And the US will have to recognize that in pressing for and leading a caucus of democracies there will be times, yes, in which it will have to compromise its will and policies in order to be the multilateral leader. The task is to balance its own values against the value of coalitions, and yet recognizing that, as Stephen Sestanovich recently noted in the National Interest (Spring 2005), here subscriber only, many of the best changes in the world have occurred when the United States ignored the doubters, went for the maximalist values position, and gambled American prestige and power on it.

There is, in other words, a “positive” position, not merely a rejectionist critique. It consists of

  • revising downwards the vision of the UN to be a “hedgerow” institution rather than overarching tree,
  • scaling downwards the UN to be a combination of technocratic agencies of limited scope and mandates, measurable by competency, on the one hand, and a “talking shop” of the nations in the form of the General Assembly and “talking shop” of the great powers in the form of the Security Council, on the other,
  • replacing “values” advocacy for democracy and human rights in the UN directly with forums of democratic sovereign states, eager to press the agendas of democracy and human rights through donor aid, rhetorical support (not irrelevant from small, poor states), and, as necessary in extreme cases, military action.

UN reform, post 3: Existing reports on UN reform

How does any of this comport with the recently issued reports on UN reform offered by the High Level Panel and by the Secretary General? The answer is simple - both those reports are deeply and irremediably flawed. They are nonstarters not only from the standpoint of US interests (and the interests of other great powers – China has unequivocally rejected them) but from the standpoint of US values.

The High Level Panel Report. The High Level Panel report is noteworthy for five positions (discussed earlier in this blog here and here and here).

The first is its linking of security and development. It is essentially hortatory and need not detain us.

The second is the assertion of the nearly exclusive authority of the Security Council to authorize the use of force, save in very narrow circumstances. It needs little discussion that this is and should be a nonstarter for the United States. It essentially rejects US positions on the war in Iraq (and Kosovo, for that matter) and would unacceptably tie the hands of the United States to the judgments of China and Russia, among others, on the use of force in nearly all circumstances. Brent Scowcroft, a member of the Panel, should be deeply embarrassed, given all of his supposed American-interest realism.

The third is its call for reform and expansion of the Security Council. There is merit in some of these proposals, although the idea that yet a third Western European state, Germany, would join the SC as a permanent member – bringing no significant military assets to the table and bringing instead its useless 'functional pacifism' – is unfathomable. All these proposals founder, in any case, on China’s declared unwillingness to entertain them. These proposals are likely to draw nearly endless attention from policy analysts and academics, and yet not go anywhere.

The fourth is its call to reform the UN Human Rights Commission. These ideas again have tactical merit – although a better strategic idea would be to get rid of the Commission altogether and take over its functions outside the formal UN structure, through something like a caucus of the democracies.

The fifth is its attempt to define terrorism (I have discussed this issue at length elsewhere and also here and here in this blog). The definition is acceptable – as far as it goes. It defines terrorism as acts against civilians, with certain other conditions. (The Secretary General’s report, see below, accepts this language and is highly commendable for its willingness to apply it to suicide bombers attacking Israelis.) It also accepts the separately defined acts of terrorism in already existing treaties and conventions.

What it does not cover – what makes it cripplingly incomplete from the standpoint of the United States, or any democratic sovereign facing terrorism – is that this civilian-limited definition of terrorism does not cover what the United States indubitably regards as terrorist attacks against military targets. For example, the HLP’s definition of terrorism would not cover an IRA attack against a British military target, nor would it encompass civilian collateral damage ensuing from such an attack. Similarly, it would not cover the terrorist attack against the USS Cole, for the reason that in order to rule out an attack against what, in war, would be a legitimate military target, you must have some criterion for determining who is legitimately able to make war and who, if not, is a terrorist. The US can grant the virtue of the report’s definition, but only as a partial definition. There is currently no indication that the US government sees a problem in this definition, and this is a considerable danger for US anti-terrorism policy.

The Secretary General’s report. The SG’s call for reform essentially adopts the HLP’s views and recommendations, with one fundamental addition (see my earlier post, here, as well as the comments by Wretchard at the Belmont Club, from which I have drawn substantially for my views). The SG’s report treats the role of the UN as the essential go-between in a proposed grand bargain between the wealthy world’s desire for security from terrorism and the developing world’s desire for development. The UN is proposed to act as the mechanism, and the means is essentially income transfer from north to south. Hence the sharp emphasis in the report on reviving the so-called “0.7%” of GDP for official foreign aid – as much as possible of it to move through UN bodies.

It is not overstating matters by much to describe this grand bargain between rich and poor as a kind of hostage stand-off – give us money or you’ll have terrorists, with the UN serving as the transfer agent, for a fee. It is, beneath the anodyne language of the bureaucrat bolstered by the supposedly bold and imaginative language of a bureaucrat under siege, an astonishing extension of the vision of the UN. It needs to be rejected out of hand, of course, as a nonstarter.

The specific causal connection between the world’s poorest people and terrorism is questionable – Afghanistan is a special case, and what is far more representative of terrorism is not its connection to absolute poverty, but instead to incomplete modernization, whether unintegrated middle class Muslim youth in Western Europe or the moral disaster that is Saudi Arabia. Islamic terrorism is about ideology, and the SG is merely engaged in a special version of poverty related “root causes” of terrorism argument.

As for the 0.7% solution, income transfer has been discredited for decades as a solution to poverty – what is needed is improvements in governance to provide the basis for private investments that provide jobs and private incomes to the world’s poorest people and, above all, reform of agricultural and textile protectionism by the rich world. There is an important role for serious, costly investments in public infrastructure in poor nations – in health, education, and so on – and it might cost less than 0.7% and it might cost more. What is not needed is income transfer for its own sake, income transfer through what has alas been proved to be the UN’s rake-off machine, and income transfer marketed as a means to buy off would-be terrorists.

Three continuous posts on UN reform

I am creating three continous posts on UN reform. I am on a UN reform panel with a group of Washington think-tanks, all very bipartisan and distinguished. My particular role is a narrowly expert one on poverty reduction and economic development. But my own views on UN reform at the grand level of the vision of the UN itself are the subjects of these three posts. You can find post 1, here. Post 2 is here. Post 3 is here. What is missing from this analysis is what the response of the United States should be if there is no room for serious UN reform. How should it deal with what is the most likely scenario - the inability to reform, as we get in the windup to Kofi Annan's successor?

Official French support for Taiwan invasion law

In a state visit to China, French premier Jean-Pierre Raffarin backs China's anti-secession law against Taiwan, and backs an end to the "anachronistic" arms embargo. Leave it to France to want to sell weapons to China with which to kill Americans ... here, thanks to Instapundit.

(I am curious, though. Since 1990, is there any instance of France passing up a business relationship. at least over time, with a bad or abusive state? Any case in which it did not put its commercial interests, over time, above principles of human rights or humanitarian interests? I am sure there must be some examples, but I can't think of any offhand. Saddam - well, no. China, up until now, might be the most important example ... perhaps some instances in Africa. But Iran, no. Libya, no. Algeria - not sure. I don't pretend to have the facts on this, but I am curious.)

Update, September 12, 2005: Note that the EU has decided to scrap its embargo on arms sales to China after all. It is noted here, in a briefing of September 9, 2005 with Secretary Rice:

"QUESTION: Madame Secretary, many in Washington appeared to believe that the EU's plans to lift the arms embargo against China was all but dead, but Javier Solana said in China this week that it will be lifted and EU diplomats privately say that any code of conduct that would accompany the lifting of the embargo will be limited in time so European countries can actually start making sales right away on the grounds that a code will be gone by delivery time.

What is your reaction to these comments, these developments, and will you be raising this with your European counterparts at the UN?

SECRETARY RICE: Well, I think we've made our views very clear about the EU arms embargo -- the potential lifting of the arms embargo against China. I think we've made it clear that we, after all, defend the Pacific and we believe very strongly that that needs to be understood by our European colleagues.

We've made a lot of progress with the Europeans in beginning to work toward a common strategic understanding of Asia. When you think about it, this is not a conversation that we have tended to have with our European colleagues. We've tended to talk about Europe or about the Middle East, but not about China and about Asia. And so our -- some State Department diplomats, Dan Fried and from the White House others went out to Europe. We've had policy planning talks with the Europeans about Asia and I think we will continue that discussion.

But our view of a lifting of the arms embargo has certainly not changed and I'll make that very clear. I don't want to start reacting to a comment here or a comment there. I think we've gone quite a long way to a common understanding of why the lifting of the arms embargo is problematic for the United States. And yes, I'll raise it but for now I'll leave it at that."

Wednesday, April 13, 2005

Roger Alford on foreign law in US constitutional adjudication

Professor Roger P. Alford of Pepperdine University law school has a new and outstanding article out in 52 UCLA Law Review 639 (February 2005), on the theory behind the use of foreign law in US constitutional adjudication. It is titled "In Search of a Theory for Constitutional Comparativism." It is the latest, and a superb, entry into the discussion of this issue - required reading for anyone interested in the matter. Professor Alford takes a measured, sober look at how the use of foreign legal materials fits with the current theories of Constitutional adjudication - originalism, natural law, majoritarianism, and pragmatism.

He concludes that natural law theory readily accepts foreign law citation - yet it is itself discredited as a theory of US Constitutional interpretation. Pragmatism is the "leading candidate for a theory that can sustain constitutiional comparativism ... But pragmatism is hardly capable of sustaining the full freight of the comparativist agenda. Pragmatic decisions that enhance civil liberties are rare, and they frequently offer a rationale for curtailing rather than advancing constitutional rights ... Devoid of a summum bonum, pragmatism is not prescriptive to the degree that most comparativists would like it to be."

Opinio Juris blogs on ICRC issues

Check out Opinio Juris for a discussion of the Casey and Rivkin articles on the ICRC, as well as discussion about my posts here on the issue. I will post here a response to the discussion there, but it will take me a few days as I am on my way to a conference organized by Sandy Levinson at the University of Texas on sovereignty - it is a follow up to an earlier meeting on the same topic at the University of Sienna, which was one of the loveliest academic meetings I've ever attended - outstanding people from both sides of the Atlantic, good conversation, new ideas, wonderful setting. But I'll be away from my computer for a couple of days, although I definitely plan to follow up on the ICRC stuff.

Monday, April 11, 2005

Lee Casey and David Rivkin on the ICRC

Lee Casey and David Rivkin have an important new article out criticizing the International Committee of the Red Cross for what they see as bias in its treatment of the United States. It is in the National Interest, here. They urge the US government to take a harder look at the funds which the United States contributes to the ICRC, which are sizable - the "United States, through the State Department, is the ICRC's largest donor. In 2003 alone, the U.S. contribution was almost $200 million, or 34 percent."

I share many of the criticisms of the ICRC - I think the organization increasingly suffers from a desire to abandon its longtime, genuinely "above the fray" role and instead simply turn itself into another Euro-NGO. During the 1990s and up to today, I see a considerable amount of desire within the ICRC to have its cake and eat it too - a desire to benefit from the access and special privileges that go with being the neutral, special guardians of international humanitarian law, but at the same time, have the NGO activist coolness of nakedly advocacy, partisan, press-hungry organizations such as Human Rights Watch or Amnesty International. There is a marked tendency within the ICRC to want it both ways.

That said, the overwhelming majority of the US's $200 million goes to humanitarian relief of a kind that the ICRC is indiputably expert at providing. Moreover, Swiss rectitude in money matters is important quality all by itself - UN style corruption would, in my view, simply be unimaginable at the ICRC. I think it would be profoundly wrong of the United States to go after the aid which the ICRC uses in humanitarian relief, even while sharing Casey and Rivkin's irritation at the ICRC's 'wanting it both ways" behavior. The United States, in the interest of the people in the world served by the ICRC in utterly critical situations, should treat these as separate spheres and issues. There are ways to deal with the latter problems - starting with the question of access, and the US should explore them.

The essential problem here is not fundamentally the ICRC. It is that the debate and conversation over the rules of war has lost its element of reciprocity - those who propose to set the rules are no longer those who fight. The European states write many memos and hold many meetings on what the rules of war should be - but all they really mean by this is that they write many memos on how the US should behave. The ICRC participates in this charade by elevating mere statements, memos, resolutions, diplomatic statements, decisions of tribunals over actual state practice by states that fight wars while making serious efforts to obey the rules - i.e., the United States. The Western European states, Britain excepted, are really, in this matter of negotiating the rules of war, less like states than NGOs. They are free to propose any extravagant set of rules they feel like, knowing that it will never impede their military activities, because they have none. The United States, on the other hand, must continue to do what states traditionally have had to do in the rules of war - balance humanitarian requirements with military necessity. If you have no military necessities, you are not so much a state in these matters as an NGO; it costs you and your people nothing to impose rules on everyone else. The ICRC has bought into this model, and this will eventually bring - is bringing - an erosion of the legitimacy of the rules of war themselves.

Update, Tuesday, April 12, 2005. See also Casey and Rivkin in the April 11, 2005 Wall Street Journal Opinion Page, on the ICRC. That article deals more directly with the just released ICRC study on customary international humanitarian law.

ASIL meetings

One of the great pleasures of the ASIL annual meetings (just concluded a week or so ago) is the chance to see old friends and acquaintances from around the world, and also to make new ones. I was particularly delighted this year to meet Chris Borgens, one of the three group bloggers at the international law blog Opinio Juris. I am a huge fan of Opinio Juris - I read it pretty much every day, and think you should too. I am also looking forward to meeting one of these days Chris' co-bloggers, Julian Ku and Peggy McGuinness - probably at another ASIL meeting. Chris - I'm very glad you walked up and introduced yourself, and Julian, I was delighted to get your email, to which I'll reply as soon as I get back from a conference in Austin this week on ... sovereignty.

Britain's use of GCIII, Article 5 tribunals in First Gulf War

In the current arguments - in court and out - over the Bush administration's classification of Al Qaeda, Taleban and, under new guidance circulating in draft form, other terrorist organizations as unprivileged combatants, a consistent complaint has been that individuals so designated have not necessarily received hearings on their status by a competent tribunal pursuant to Article 5 of Geneva Conventions III. I have argued elsewhere on this blog at length as to why a literal reading of Article 5 does not necessarily require such a hearing, although sound policy would ordinarily do so; a US District Court judge, with no attention or analysis of the text at issue, has found that this is a violation of international law. The Bush administration was in Federal appeals court last week arguing that the judge was wrong.

I wonder whether the Bush administration lawyers are aware of the practice of the British government in the First Gulf War.

The UK government detained a number of Iraqi men who were in the UK on legitimate business, on the grounds that they might return to Iraq and join the fighting, whether voluntarily or under the requirement of an Iraqi draft. Others were deported. The detention on purely security grounds of foreign nationals who might join the fighting has always, of course, been quite accepted. The men were delivered into military custody and they were designated as POWs (although they might have been detained as civilians under GC IV). They then contested their detention, first on the ground that they were not POWs because they were not members of the Iraqi armed forces.

Since the Iraqi detainees had not "committed a belligerent act," GC III, Article 5 did not on its face apply to them. Whatever the merits of the dispute itself, the behavior of the British government in the event was as follows:

It decided to "apply Article 5 ... by analogy, requiring the army [which held the men in custody as POWs] to create a 'competent tribunal' ... Whether or not to hold such an inquiry was at the discretion of the camp commandant and he ordered one only if he was satisfied that there was a doubt as to the status of the detainee. There was a right to make representations to the [commanding officer] and thence to the Army Board." Francoise Hampson, "The Geneva Conventions and the Detention of Civilians and Alleged Prisoners of War," Public Law (Winter 1991) (emphasis added).

In other words, British state practice in this case set up a tribunal procedure, but did not regard Article 5 as in all cases requiring a tribunal, nor did the UK government regard Article 5 as requiring a tribunal to determine whether there was "doubt," but instead left it to the military commander to determine whether there was, in the first place, doubt triggering a competent tribunal.

Saturday, April 09, 2005

Dominique de Villepin and Rene Char

The title of French interior minister (and foreign minister at the time of the Iraq war) Dominique de Villepin's new book is Le Requin et La Mouette, which translates as The Shark and the Seagull. (Photo at left.)

As reviewer Martin Walker notes in his The National Interest review, "French Without Tears," No. 79, Spring 2005, Villepin has "carefully avoided challenging the general view of his reviewers that the shark is a metaphor for the United States while the seagull represents France." Quoting Villepin, the shark "drives through the sea to snatch its prey ... a symbol of power, strength and the refusal to be halted by the complexity of the world." The seagull, by contrast, "watches, soars, approaches, climbs and swoops, turns suddenly. The straight line is seldom her course. She listens to the world."

It hardly bears saying that I am no fan of Villepin's - he incarnates the wild romantic and the romantic intellectual in power (if you think wild romantic - leave aside intellectual - is a description of George Bush, then see Villepin's book on Napoleon; Bush is not in the same universe of romance as this minister who hopes to replace Chirac). It is to our global benefit that he has been the faithful representative of a France largely without power save to ... well, swoop, soar, approach and turn suddenly. Fly around, in a word.

(Villepin reminds us of that epigram of Stendhal in the Red and the Black - "Julien fell asleep, dreaming of honors for himself, and liberties for everyone else.")

Nevertheless, the title of Villepin's book comes from none other than the great and, in English, almost entirely unknown, French poet Rene Char. I am using a phrase from Char, "this time of damned algebra," as the title for my book manuscript on the just war. So let it be said ... a man, even Villepin, cannot be wholly without merit who quotes from the very great Rene Char.

Christopher Caldwell joins NYT Magazine as contributing editor

Congratulations to Christopher Caldwell, senior writer for the Weekly Standard and columnist for the Financial Times, who has become a contributing editor of the NYT Magazine. This is one of the shrewdest moves the magazine, under the editorship of Gerry Marzorati, has made to broaden and deepen its intellectual range - well beyond that, one should add, of the rest of the paper. Caldwell is the best American writer today writing on Western Europe - his reporting on Islam in Holland, Sweden, France, and Germany is absolutely essential reading. Brilliant move by the NYT Magazine, congratulations to Christopher.

(You can get some idea of the depth of Christopher Caldwell's thought from his recent address at the American Enterprise Institute, on Raymond Aron and the Atlantic alliance, here, with thanks to RCP.)