UN reform final outcome document - agreement reached (various news reports)

(Update, September 14, 2005: I've added links to various news stories on the final agreement. Of these stories, probably the most useful guide to what is in the final outcome draft is the Economist. The most interesting from the standpoint of internal debate is the Guardian, with its note that GA President Ping simply removed all remaining points of contention from the final draft.)

The Economist story is here:

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Hardly radical, but it’s a start
September 14th 2005
From The Economist
Global Agenda

Diplomats have agreed on a draft package of reforms to the scandal-hit United Nations as world leaders gather for a summit in New York. The document they are expected to approve is, naturally, full of fudges and omissions. But it is better than nothing

Get article background

IT HAS been billed as the biggest gathering of world leaders ever: a five-year review of the Millennium Summit that set ambitious development goals, and a chance to modernise the United Nations. But the world leaders gathering in New York this week to review a package of reforms to the world body will be given a document that falls short of many of the aims of its negotiators.

In the run-up to the summit, the beleaguered UN was wincing from a body blow. In a devastating report last week, the independent committee of inquiry into the UN-administered oil-for-food programme in Iraq castigated virtually every aspect of the world body, including its Security Council. The report painted a grim picture of corruption both inside and outside the UN system, with evidence of bribes, kickbacks, smuggling and other illicit deals going on throughout the vast programme.

In this environment, both fans and detractors of the UN agreed that it needed thoroughgoing reforms. The “draft outcome document”, which will be put before world leaders on Wednesday September 14th, tackles a range of crucial issues: humanitarian intervention, the definition of terrorism, creating a so-called Peacebuilding Commission, a new human-rights council, development, management reform, and expanding membership of the Security Council, the UN’s most powerful institution. Though some progress was made in the pre-summit negotiations, the need for consensus meant that many worthy aims were watered down.

The main issues tackled by the negotiators were:

• Humanitarian intervention
The UN Charter prohibits intervention “in matters which are essentially within the jurisdiction of any state”. But a panel of experts argued in a high-level report in December 2004 that the principle of non-intervention could no longer be used to shield genocidal acts and other atrocities. The UN should assume a “responsibility to protect” civilian populations when governments are “unable or unwilling” to do so. Military action should be authorised by the Security Council as a last resort.

The United States was wary of any wording that smacked of a legal obligation, but in the end the language of the “responsibility to protect” section is fairly strong: the international community “has the responsibility” to use peaceful means to prevent or stop atrocities, and the document states that “we are prepared to take collective action” under Chapter VII—the one that allows the Security Council to authorise military force—should peaceful means fail.

• The Security Council
The council’s membership has become increasingly anachronistic and unrepresentative. But apart from the addition of four non-permanent members in 1963, bringing total membership to 15, it has eluded all reform. This is partly because of the rivalries of nations competing for seats and partly because of the blocking power of the five permanent, veto-wielding members: America, Russia, China, France and Britain. India, Brazil, Japan and Germany formed an alliance, dubbed the G4, to press jointly for permanent seats. But their hopes dimmed at the end of July when they failed to get the backing of the 53-member African Union, vital for winning the two-thirds majority vote in the General Assembly required for a Charter amendment. All plans for Security Council reform are now in tatters and may remain so. The draft document, while agreeing that the council should be made more representative, fails to say how.

• Development
Developing countries, supported by members of the European Union and some others in the rich world, want wealthy countries to commit to giving 0.7% of their GDP per year in development aid. The Americans, while they have increased their (unusually low) levels of foreign assistance under George Bush, think it is more important that aid recipients reform themselves, tackle corruption and prepare for investment.

Compromise language emerged in the end: America is prepared to see the document recognise that some countries are committed to the 0.7% goal, while it will also reaffirm the need for action by countries that receive aid. Development wonks fear that this is nothing new, and that crucial momentum for “eradicating extreme poverty”, begun with the Millennium Summit in 2000, will be lost. Nicola Reindorp of Oxfam, a non-governmental organisation, says “the summit is in danger of failing before it has begun”, calling the language on development a showcase of past commitments, with nothing new to offer.

• Terrorism
The draft says “we strongly condemn terrorism in all its forms”, and calls on the General Assembly to finish drafting a convention on terrorism this year. But in the end, the negotiators failed in their main task: to define terrorism. An earlier draft included strong language that “deliberate and unlawful targeting and killing cannot be justified or legitimised by any cause or grievance…Any such action intended to cause death or serious bodily harm…to intimidate a population or to compel a government…cannot be justified on any grounds.” But developing countries wanted a declaration that the fight against terrorism should not be used as an excuse to crush “the legitimate right of peoples under foreign occupation to struggle for their independence”—a nod to militants in places like Iraq and the West Bank. This was rejected by other countries, and in the end the terrorism section included no definition.

• Peacebuilding Commission
The summit will establish a Peacebuilding Commission to help prevent post-conflict nations from relapsing into violence. But a row over its control has meant that crucial details are left out of the document. The Americans and Europeans want it to be set up under the auspices of the Security Council, with the council’s five permanent members assigned automatic membership of the new body. Under the Security Council, they point out, the new commission would be taken seriously. But developing countries, which think the Security Council—especially the permanent five—already has too much power, want the Peacebuilding Commission to come under the General Assembly or the Economic and Social Council (ECOSOC), where their representation is stronger. Joint management by the Security Council and ECOSOC is a possible compromise but could leave the commission effectively rudderless. A final decision has been postponed, though the draft calls on the commission to begin work by the end of the year.

• Human Rights Council
Rich countries, including America, want the UN’s discredited 53-member Commission on Human Rights to be replaced by a smaller, more powerful Human Rights Council. But this is being fiercely opposed by those who have most to fear—Zimbabwe, China and Cuba are all current members.

Although the principle of a new body has survived, there is no agreement on its structure, including how many members it should have, who should be included and who excluded. America wants countries currently under UN sanctions or investigation for human-rights violations excluded, while countries including Pakistan and Egypt fought to keep it much as is. Leaving these details for further discussion down the road, the draft document might bury the new Human Rights Council for some time. In one bright spot for human rights, however, the budget for the Office of the High Commissioner for Human Rights (an institution that is separate from, and more credible than, the Human Rights Commission) will be doubled.

• Non-proliferation
This part generated some of the fiercest disputes of all and, in the end, no agreement. The Americans wanted greater emphasis on arms control, believing the proliferation of weapons of mass destruction constitutes “the pre-eminent threat to peace and security”. Developing countries wanted the West to make new commitments to get rid of its own weapons, including nuclear warheads. They also wanted action against small weapons, which threaten poor countries far more than nuclear terrorism does. The draft makes no mention of action on either. Kofi Annan, the UN’s secretary-general, told reporters on Tuesday that this omission was “a real disgrace”.

• UN management
In the wake of the oil-for-food scandal, America especially wanted to see a thorough overhaul of the UN’s working practices. Currently the secretary-general does not have enough power over budgets and personnel to oversee the sprawling organisation effectively, and America wanted to see him given more, in exchange for greater oversight. It also wanted more authority moved from the General Assembly, where every country has an equal vote, to the secretariat, but this was resisted by developing countries (which have a majority in the General Assembly).
In the end, the two sides could not agree. However, the document does urge a strengthening of the UN’s Office of Internal Oversight Services, and a full, independent and external audit of the UN and its agencies, which should make further recommendations to the secretary-general for reform. This is a start. John Bolton, America’s new ambassador to the UN, said the new measures “represent steps forward, but this is not the alpha and the omega, and we never thought it would be.”

The usually outspoken Mr Bolton’s subdued language was echoed in modest statements from other ambassadors as well. The reform document is not a big leap forward. Perhaps it will be, at least, the alpha if not the omega. But continuing reform of the kind Mr Bolton, Mr Annan, and others would like to see will require, most of all, a continued engagement by the UN’s member states—and especially its most powerful, often mercurial, one.

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The Washington Post story is here:

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U.N. Scales Back Plan of ActionAssembly Approves Declaration on Goals, Internal Reform
By Colum Lynch and Glenn Kessler
Washington Post
Wednesday, September 14, 2005; A06

UNITED NATIONS, Sept. 13 -- The U.N. General Assembly on Tuesday adopted a declaration on the need to combat world poverty, promote human rights and strengthen management of the organization, but only after negotiators scaled back the document because of intractable disagreements among nations on sensitive issues.

The 35-page declaration will be endorsed by an estimated 170 world leaders at a three-day summit on U.N. reform that is to begin Wednesday, and delegates expressed disappointment that it had fallen short of Secretary General Kofi Annan's aspirations for a broad reorganization of the 60-year-old organization.

Still, they voiced relief that the entire process had not collapsed, which would have left the summit with no tangible result, and they highlighted relatively modest achievements in the document. Those included provisions that call for an increase in foreign aid, condemn terrorism and underscore the obligation of states to halt genocide and ethnic cleansing. Only Cuba and Venezuela voiced reservations about Tuesday's agreement.

The negotiators were forced to put off action on some of the thorniest and most ambitious goals, including proposals to expand the U.N. Security Council, to create an independent auditing board to scrutinize U.N. spending, and to impose basic membership standards for a new Human Rights Council so that chronic rights abusers will not be able to join.

Various proposals for expanding membership in the Security Council, for example, had been opposed by countries that felt they would lose out in the deal. And some developing countries fought proposals for changes in U.N. management practices, which they felt would shift authority from the General Assembly to the secretary general's office.

Negotiators also failed to agree on provisions calling on governments to halt the transfer of weapons of mass destruction to terrorists and urging nuclear weapons states to abide by their commitments to dismantle their atomic arms.

Annan said that the members' inability to adopt these measures on disarmament and nonproliferation constituted "a real disgrace" and that he hoped world leaders would see this as "a real signal to pick up the ashes and show leadership."

"There were governments that were not willing to make the concessions necessary," Annan told reporters after the declaration was adopted by the General Assembly. "There were spoilers, let's be quite honest about that."

Still, Annan said he was pleased that the declaration reiterated the U.N. commitment to meet targets for slashing rates of poverty, disease and child mortality and that it called for creation of the new human rights council and a peace-building commission to oversee postwar recoveries. "I would have wanted more, all of us would have wanted more, but it's an important step forward," he said. "I think we can work with what we've been given."

The negotiations provided the first test of American diplomacy at the United Nations since President Bush bypassed congressional confirmation to install John R. Bolton as U.S. ambassador for 17 months.

Bolton on Tuesday demonstrated sufficient flexibility to reach agreements on some issues, while fending off provisions that might have restricted U.S. prerogatives and the freedom to use force unilaterally. Bolton, who led efforts to block the disarmament provision, succeeded in eliminating language that would have urged countries to support a host of international treaties or organizations, including the Comprehensive Test Ban Treaty and the International Criminal Court, which the United States opposes.

But Bolton failed to secure support for a number of key U.S. priorities, including the provision urging states to halt the transfer of the world's deadliest weapons to terrorists and measures intended to expand Annan's authority over hiring and to strengthen the oversight of U.N. finances.

Bolton said that while he would have preferred stronger provisions to ensure greater accountability in the U.N. bureaucracy, Tuesday's agreement would lead to a "somewhat improved U.N."

"But it would be wrong to claim more than is realistic and accurate about what these reforms are," he said. "They represent steps forward, but this is not the alpha and the omega, and we never thought it would be."

"This is not the end of the reform effort," added Undersecretary of State R. Nicholas Burns. "It really is the beginning of a permanent reform effort that must be underway at the United Nations."

Despite setbacks, Burns said that Tuesday's agreement would eliminate the discredited U.N. Human Rights Commission, which includes Zimbabwe, Sudan and other human rights violators. But he acknowledged that "it is going to be a difficult exercise" to win the votes in the General Assembly to create a human rights council that reflects the wishes of the United States.
Burns said that although the United States and other governments had failed to include a clear condemnation of the deliberate targeting and killing of civilians, they had succeeded in extracting an Arab-backed provision that would have excluded so-called national liberation movements that target civilians from being labeled terrorists.

"We have broken the back of this ideological debate here about what constitutes terrorism," Burns said, noting that "sometimes in diplomacy defeating negative measures is very important." U.N. delegates, however, said Arab governments would insist on protections for armed groups fighting foreign occupation in an international convention on terrorism that is being negotiated by U.N. members.

Human rights and development advocates said the membership had squandered a rare opportunity to improve the organization, but praised the negotiators for endorsing the creation of an international obligation to halt attempted genocide.

"There is very little to celebrate," said Nicola Reindorp of Oxfam International. But governments "are showing that they can act boldly, by endorsing their responsibility to protect civilians from genocide, ethnic cleansing, war crimes and crimes against humanity."

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The Guardian story is here:

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Poor nations lose in watered-down UN document
Final draft a bland version of Gleneagles promises
No new money for aid and debt relief

Ewen MacAskill in New York and Larry Elliott
Wednesday September 14, 2005
Guardian

Diplomats at the United Nations finally reached agreement last night on a watered-down document to reform the organisation and tackle poverty just hours before leaders arrived for the start of a world summit.

This final draft, to be presented to the leaders for publication on Friday, fell far short of ambitious proposals for an overhaul of the UN which was set out earlier this year by Kofi Annan, the secretary general.

Development campaigners expressed disappointment at the lack of progress on aid, debt and, particularly, trade. Ambassadors at the UN, who have been engaged in tortuous negotiations for weeks, made one final push yesterday to find consensus but soon abandoned the attempt.
Instead, Jean Ping, Gabon's ambassador to the UN and president of the general assembly, unilaterally removed all the remaining points of contention, leaving in place a bland final draft. It is far removed from the original plan to reform the UN to meet the challenges of the 21st century. The general assembly voted in favour of the final draft, which is unlikely to be changed between now and Friday.

About 149 leaders are scheduled to attend the summit, which would make it the biggest-ever world gathering. The general assembly will be addressed by George Bush this morning, and Tony Blair this evening.

Campaigners and diplomats who favoured a bold approach put much of the blame for the failure on John Bolton, the US ambassador to the UN, who introduced hundreds of late changes to the original document.

Mr Bolton said he was pleased with the final draft: "This is not the alpha and omega and we never thought it would be."

The US ambassador, who had argued that UN reform was too important to be done in a rush, said: "It was only ever going to be the first step."

Oxfam described the development section of the final draft as a "recycling of old pledges". Save the Children said the chance of a historic breakthrough on poverty "had all but slipped through the fingers of world leaders".

The final draft document shows progress has been made during negotiations on intervention to prevent genocide, but limited progress on the creation of two UN bodies, a human rights council and a peace-building commission. There is no new money for aid or debt relief, and the language on fair trade has been weakened. Nor has there been movement on climate change, arms proliferation or expansion of the security council.

The negotiations have been caught in a squeeze between Mr Bolton, and a group of countries that one diplomat referred to as "the awkward squad", which includes Pakistan, Egypt, Sudan, the Palestinian Authority, Syria, Cuba and Venezuela.

Mr Blair, who will meet Mr Bush this morning, is worried that progress made at the G8 meeting at Gleneagles in July on aid and debt may end up being reversed.

The prime minister believes elections in Germany and Japan, together with the impact of Hurricane Katrina in the US, may make it more difficult to persuade G8 members to make good on their promises and to widen the Gleneagles agreement to other rich countries.

Although some development campaigners have criticised the government for exaggerating the success of the Gleneagles deal, Mr Blair believes he pushed the G8 as far as possible. A Downing Street source said: "We always said Gleneagles was just a beginning and it is going to take quite a fight to build on it. There is the risk of a backlash."
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The NY Times story is here:

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September 14, 2005 NYT

U.N. Adopts Modest Goals On Reforms and Poverty

By WARREN HOGE

UNITED NATIONS, Sept. 13 - The General Assembly unanimously approved a scaled-down statement of goals on Tuesday that Secretary General Kofi Annan said would still give world leaders gathering Wednesday a basis for recommendations to reform the organization and combat poverty.

Loud cheers from the delegates, however, could not disguise widespread disappointment at the weakening of the 35-page document.

When Mr. Annan first proposed the statement, it represented an ambitious blueprint for trying to balance the concerns of great powers over security, human rights and management efficiency with the developing world's needs for increased assistance and measures to cut poverty. In the end, virtually every section underwent severe cutbacks.

"Obviously, we didn't get everything we wanted," Mr. Annan said. "With 191 member states, it's not easy to get an agreement. But we can build on it." He noted that it represented progress in setting up a human rights council to replace the discredited Human Rights Commission and a new peace-building commission. He also singled out language on how to fight terrorism and establish means for international intervention when countries failed to protect their citizens from genocide.

He complained pointedly, however, about the elimination in the final version of language covering nuclear nonproliferation and disarmament, labeling the exclusion a "disgrace" at a time when the world feared a spread of unconventional weapons.

John R. Bolton, the American ambassador, said the United States was satisfied with the outcome, which he said matched the limited hopes he had had for the document.
"It would be wrong to claim more than is realistic and accurate about what these reforms are," he said. "They represent steps forward, but this is not the alpha and omega, and we never thought it would be."

The General Assembly vote ended three weeks of tense talks at which regional rivalries and national ambitions succeeded in scuttling attempts by a majority of nations to act in the broader United Nations interest. The continuing debate exposed in high profile the kind of indecisiveness that the document was supposed to address.

"There were governments that were not willing to make the concessions necessary," Mr. Annan said. "There were spoilers also in the group, let's be quite honest about that."

In his discussions with member states, he said, "I've tried to get them to understand that in our interconnected world, we need to look at issues in much broader terms rather than narrow national interests."

In answer to a question, he said he wished voting procedures could be changed so that a small minority of nations could not block the will of a large majority, as has occurred during recent weeks.

Mr. Bolton, a vocal critic of the organization's practices, seized on the events to say: "This is the way the U.N. operates. And it goes to the question, which is a much longer term question, as to whether the culture of decision-making at the U.N. is the most effective for the organization, and that's something that's not going to be resolved today or tomorrow."

The three-day meeting is expected to attract more than 170 presidents and prime ministers. The document they will be asked to approve does create a human rights council, but it leaves out any mention of its size and duties and drops language proposing that membership be subject to a two-thirds vote of the General Assembly. That was meant to insure that notorious rights offenders would not become members. While it condemns terrorism "in all forms," language saying that making targets of civilians is unjustified was deleted in exchange for dropping language exempting movements to resist occupation.

Management reform does not include strengthening the Secretary General's office, which is considered essential if the office is to have the flexibility to act decisively. In this case, a small group of developing countries blocked action out of fear of seeing power taken away from the General Assembly, where their voices are heard but where real decision-taking is discouraged.

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Bloomberg reports that agreement was reached on a final outcome document for the UN summit that opens tomorrow morning in New York, here:

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UN Diplomats Reach Accord on Restructuring World Body (Update2)

Sept. 13 (Bloomberg) -- United Nations member governments agreed today on a 35-page declaration of steps to restructure and improve management and oversight of the world body that U.S. President George W. Bush and other world leaders will be asked to endorse this week.

``The adoption of this document is a tremendous achievement,'' U.K. Ambassador Emyr Jones Parry said after the General Assembly adopted the text. ``For us the challenge will be to maintain the progress of what has been agreed today.''

U.S. Ambassador John Bolton and envoys representing 32 other nations finished negotiations behind closed doors on a declaration for 150 world leaders to adopt on Sept. 16. Cuba and Venezuela were the only nations to oppose the text.

Bush and other heads of state and government began gathering in New York today to mark the 60th anniversary of the UN's creation. Bush visited UN headquarters today for a 40-minute meeting with Secretary-General Kofi Annan, and ``expressed his support'' for the world body, according to a UN statement.

Diplomats agreed yesterday to create a human rights council to replace the Geneva-based commission that has been criticized for including nations such as Cuba, Sudan and Zimbabwe accused of human rights abuses. They also accepted a peace-building commission to aid post-conflict reconstruction and institution- building efforts.

Independent Ethics Office

The final text today affirmed the role of the secretary- general as ``chief administrative officer'' and asked Annan to make proposals for the ``most efficient use of the financial and human resources available to the organization.'' It also called for Annan to ``submit details on an ethics office with independent status.''

That paragraph resolved a debate in which Egypt and other developing nations said the General Assembly should retain its traditional authority over personnel matters.

Improvements in management and oversight became an imperative for Bolton and other envoys after former U.S. Federal Reserve Chairman Paul Volcker led an investigation into corruption of the $69.6 billion UN-administered Iraq aid program that he said weakened the world body. Volcker said changes were ``urgently needed.''

The declaration includes commitments to UN Millennium Development Goals such as halving world poverty by 2015, and to the target of allocating 0.7 percent of the gross national product of industrialized nations to development aid. Bolton initially opposed those references, then compromised on their inclusion.

Security Council

A general endorsement of expansion of the Security Council to make it ``more broadly representative, efficient and transparent'' was included. The formula for expanding the 15-member panel, and which nations will get new permanent seats, was left to future talks.
The U.S. compromised on a statement ``underlining the central role'' of the United Nations in the areas of peace and security, development and human rights. ``We don't like it, but we'll take it,'' U.S. deputy Ambassador Anne Patterson said.

Bolton told reporters the declaration would lead to a ``somewhat improved UN.''

Disarmament Dropped

Details on how to determine membership of the Human Rights Council also were left to further talks, and a proposed section on nuclear disarmament and non-proliferation was been dropped from the text.

``We didn't get everything we wanted, but it is an important step forward,'' Annan told reporters. ``On non-proliferation, we failed twice this year. I hope the leaders will see this as a signal to pick up the ashes and show leadership on this important issue.''

The first failure came during a month-long nuclear nuclear non-proliferation and disarmament conference in May that ended without agreement.

``There were hopes that this summit would reinvigorate disarmament, but governments have passed up an historic opportunity to do so,'' Greenpeace disarmament official Nicky Davies said in an e-mailed statement. ``The failure to strengthen the Nuclear Nonproliferation Treaty at this summit and to also put in place a moratorium on all nuclear re-processing means that disputes such as those in Iran are likely to be just the tip of the iceberg. The world is now a far more dangerous place.''

Amnesty International said in an e-mailed statement that the ``proposed text on the Human Rights Council is woefully inadequate in failing to call for minimum elements essential for an improved and more authoritative human rights body.'' Amnesty International blamed China and Russia for blocking agreement on the makeup of the new rights body.

`Many'

``We have a document that many people will criticize from many directions, but still we have one that will lead us forward,'' Swedish diplomat Jan Eliasson, who will be president of the UN General Assembly for the next year, told reporters.

The beginning of the 60th session of the General Assembly, originally scheduled for 10 a.m. local time today, was postponed to allow talks on the summit declaration to continue.

``This very ambitious reform proposal represents a major step,'' Eliasson said. ``The secretary-general set the bar very high with what he wanted. What is coming out, if you compare to other partial reform efforts, will rank as a major step.''

To contact the reporter on this story:
Bill Varner in United Nations at wvarner@bloomberg.net.
Last Updated: September 13, 2005 18:56 EDT

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And here is the Reuter's report.

Several commentators on UN reform

Here are a couple of references and articles on the current state of play on UN reform:

• Joe Loconte of the Heritage Foundation comments on the broken UN human rights machinery, particularly the Human Rights Commission, and why the current reform efforts are not likely to fix it. September 13, 2005, here. Loconte's article is striking because it does not simply announce that nothing can be done to improve things - it offers a series of proposals that merit discussion. I hope they don't get dismissed out of hand by the human rights ngo community because they are offered by Heritage, but they probably will.
• The BBC has the following report on the state of negotiations over the final document, here.

Opinio Juris blog on UN reform

Chris, Julian, and Peggy at Opinio Juris blog have been having very interesting discussions about UN reform.

Judge Roberts on use of foreign law in US courts

Somewhat to my surprise, Judge Roberts did get asked today about the use of foreign law in US court cases, particularly constitutional cases. He gave a more expansive answer than I expected, and it was one that certainly I agree with. I was struck by Roberts' putting both the "unfettered discretion" objection to foreign law as well as the "democratic theory" objection on the table, and indeed beginning with what I think is the weightier objection, democratic legitimacy. This was not something that Justice Scalia offered as an objection in the Scalia Breyer debate here at my law school. However, given that Roberts would replace Rehnquist, there would still be six members of the Court who would permit foreign law citation (only Scalia, Thomas, and Rehnquist were clearly opposed). Here is the exchange, via Opinio Juris (thanks Peggy) and SCOTUSblog:

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KYL: It's an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law. I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn't like. For example, many nations have a weak protection for freedom to participate in or practice one's religion. Iran and some other Middle Eastern nations come immediately to mind. But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts. Should we look to France to tell us what the free exercise clause means, for example? Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom. Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There's a lot more to say on the subject. But I wanted to hear from you. So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we're not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views. And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law. The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate. The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.

ROBERTS: If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.

September 13 version of UN summit outcome document

Negotiations at the UN produced a new version, the September 13 version, of the final outcome document of the UN summit that opens tomorrow, September 14-16. The pdf is available at Global Policy Forum, here. Global Policy Forum has a useful page, here, updated frequently, on various UN reform issues with links to original documents as well as analysis.

I have only had a chance to skim the new September 13 draft, but it is significantly shorter - about ten pages shorter - than earlier drafts. Among other items, it compromises on the .7% GDP OPDA issue, offering encouragement but no commitment. It also drops any attempt at a definition of terrorism, and pushes it off into a future draft of a treaty on terrorism. Security Council reform is also pushed off, although with a supposedly firm date for resolution, by December 2005. In the use of force category, beyond the hortatory stuff about the responsibilities of the Security Council, it does not, at first reading anyway, appear to constrain in any new way - in particular, the imminence issue does appear to be in this draft (I reserve to read more carefully.) It calls for creation of a Human Rights Council, but pushes off to the General Assembly to figure out who gets to join it and under what terms.

In general, the document is the usual UN goody-grab bag of something for everyone and very little that means anything, and the postponement of anything that might cause anyone pain. If this were openly acknowledged as compromises that are frankly acknowledged to be paralysis because the nations of the world simply do not agree, that would be a step forward - not diplomatic and therefore a step forward in transparency. Instead, however, the document pretends that formulas of paralysis are steps forward.

Symptomatic of this is the number of times the document solemnly declares that x and y are "mutually reinforcing" - all the different supposed human rights, for example, including economic, social, and cultural rights, or economic growth and environmental protection, for another example - when that is manifestly not the case. They are, rather, very frequently competing values and competing social goods. Each is a kind of good, but they involve tradeoffs. The characteristic approach of this document, what puts it into never-never land, is the assertion - as though a tone of sufficient gravitas will make it so - that mere declaration can turn trade-offs into "mutually supporting pillars," as the document says about sustainable development.

One might as well put as the motto over the door of the United Nations, "There is a free lunch."

On the basis of this document, then, the US will have done very little to advance its goals of UN reform - certainly this signals nothing real about transformation of the UN's patronage, bureaucratic, corruption culture, all the attention to it in the document notwithstanding. Perhaps I am wrong about that and too pessimistic; I hope so.

On the other hand, thanks to Bolton's edits, relatively little damage will have been sustained - although that is not entirely so, as the accretion of small, apparently meaningless, hortatory individual documents that shift the conversation always one way is one important reason the US position at the UN has weakened. Only occasionally does the US take a robust, undiplomatic stand in opposition, and when it does, it then has to face the consequences of having allowed the diplomatic conversation to have drifted away over the course of years and years by countries that frequently have nothing better to do than yack and write memos and, of course, few other avenues for pursuing their policies.

There are, however, a couple of ways in which the document does contain serious challenges to US ideals and interests. One of them is found at para. 149, on the role of the General Assembly. That paragraph refers to the role of the General Assembly in "standard setting and the codification of international law." The language is somewhat ambiguous, but it can be read - and will be read to mean by the International Court of Justice - that General Assembly resolutions can be read, notwithstanding that the Charter says they are non-binding, as important if not definitive sources of international law. The ICJ is already turning into an echo chamber for the General Assembly, citing its supposedly non-binding resolutions as though it were strong evidence -over, for example, state practice - of international law. The Assembly responds by giving it ever more resolutions to cite. Although the language of 149 can be read to mean nothing more than what it has long been taken to mean - non-binding, not especially good evidence of international law (Cf. the Restatement of Foreign Relations Law, 3rd), it is easy to take this as license to take GA resolutions as far, far more. Nor is this limited as a matter of concern to ICJ jurisprudence - it is very easy to see a US judge, hearing an Alien Tort Statute case and trying to figure out the content of customary international law, looking to General Assembly resolutions and, on the basis of the seemingly US-approved language and notwithstanding the language of the Charter, saying that the GA resolution will be determinative of the content of customary law. This is, in my view, quite disturbing language.

More generally, the United States needs to consider how to address concerns in a document that represents in large part a compromise, but which contains ambiguous language that could be read by various organs against US views. The US ought to prepare a statement - and announce it as opinio juris - of the interpretations that the US gives to these ambiguities, in no small part to protect itself in US court ATS cases, among other situations.

Sebastian Mallaby on the US and the UN

Sebastian Mallaby, once upon a time of the Economist and now of the Washington Post editorial page, is someone I read very closely. Below is his take on the US and the UN; I don't agree with all of it, but as always it is worth close reading.

Mallaby's point about seeking the balance point in international institutions and intiatives between achieving legitimacy while avoiding paralysis is a very good one, and he is right that the US has sought exactly that through its work with such discrete institutions as the OAS.

I do not agree, however, with Mallaby's assessment that the great opportunity on offer in UN reform was reform of the Security Council - that was always a chimera. The US was right, contra Mallaby, to aim at cleaning up at least the worst muck of the corrupt UN Secretariat; this was achievable in some degree, whereas Security Council reform would require a change of principle that was never possible.

And if Security Council reform was a chimera, then it was far from petulant, as Mallaby says, for the US to pick a fight over the poverty reduction goals, the technical annexes dreamed up from whole cloth by the UN secretariat to the Millenium Development Goals - on the contrary, being willing to pick a fight over them showed an abiding interest in one of the issues that ought to preoccupy the UN. Other countries, as the latest UN Human Development Report 2005 candidly acknowledges, make apparently deeply concrete pledges of money and resources that never actually materialize - so much so that the currency, the report says, of pledges is devalued to the point of worthlessness.

So I don't think Mallaby is on the right track here; his errors are, curiously, most of the errors of the British government's position, which has been lobbying frantically to try to get the US to back down. That lobbying is offered on the dubious assumption that John Bolton is the Little Satan, and if only he had not appeared on the scene with his red-lining software in Word, the gracious and presumably more reasonable - ie, more easily cowed - Secretary Rice would not dared to break the slow momentum to consensus on the draft of the final outcome document. I am no insider, but that seems to me entirely wrong - nothing Bolton put into his edits represents anything other than long held and often deeply held US policy.

But here is the article, from Washington Post, via RCP, here:
***
Bush's Missed U.N. Opportunity
By Sebastian Mallaby
Washington Post Monday, September 12, 2005; A19

Sometimes what the Bush administration doesn't do is as amazing as what it does do. This week is going to bring a Class A error of omission. But before I tell you about that, consider the following pieces of conventional wisdom.

Just about everyone, inside the administration and out, agrees that globalization is unstoppable. This globalization spreads prosperity and freedom, but it also sets the stage for global financial crises, global terrorist networks and the fast diffusion of disease; and, we lack competent global institutions to manage these problems. The policy conclusion is that the United States should seize every chance to make global institutions more effective.

Conventional wisdom, piece number two: The United States has no serious military or economic rival, but this may not endure forever. As Michael Mandelbaum argues in his forthcoming book, "The Case for Goliath," the United States underpins global prosperity by providing a global currency, secure shipping lanes and a host of other public goods; it's scary to think what might happen if the United States lost the ability to perform this function. The policy conclusion is the same: The United States should build global institutions that will help keep the world stable even if American supremacy fades a bit.

Conventional wisdom, piece three: There's more to this American power than money and military muscle. You can only defeat terrorism if American ideals win hearts and minds in the terrorists' recruiting grounds, and if other countries willingly support U.S. initiatives on things such as terrorists' finances or Iran's nuclear program. Guess what: The policy conclusion is the same again. The United States needs to legitimize its actions by creating effective global institutions and acting through them.

You get the point: Global institutions matter. They matter more now than before globalization brought the people and problems of weak states to American and European cities. But even though globalization has increased the need for global institutions, it has simultaneously made them harder to manage.

Up until the 1990s, you could do a global trade deal or a global environmental deal if the United States, Japan and Europe were on the same page; together, these players accounted for nearly all of the world economy. But thanks to the energy unleashed by globalization, emerging powers led by China, India and Brazil now demand a seat at the top table. As a result, global efforts such as the Doha round of trade talks are hung up over arguments between emerging economies and rich ones.

So the trick with global initiatives is to make them inclusive enough to be legitimate but narrow enough to be manageable. The Bush administration usually appears to understand this. It has shown a healthy interest in regional institutions such as the Organization of American States and the African Union, believing that these offer legitimacy without paralysis. The OAS and the AU help to set norms of democracy and accountability on their respective continents, legitimizing American pursuit of those objectives.

The administration has also gone along with a clever move on climate change. There's no way that China or India will accept tough emissions targets as part of a second Kyoto Protocol, so Kyoto-style global negotiations are hopeless. Instead, climate change has been handed off to the World Bank; thanks to its 24-member board, on which some seats are held by single powerful countries and others by clusters of lesser ones, the bank is a good forum for global diplomacy -- it is both manageable and legitimate. The bank is trying to create financial incentives that would move clean technologies into fast-growing emerging economies. This would promote Kyoto's goals without requiring impossible Kyoto-ish diplomacy.

Which brings us to this week's error of omission. After two years of planning, the United Nations is convening a summit of world leaders that was supposed to relaunch the organization 60 years after its creation. The key challenge was to refashion the Security Council, whose five permanent members reflect the power relations of another age, excluding the second-biggest economy in the world (Japan) plus 1 billion Indians and all of Africa and Latin America. Intelligent Security Council reform, which would create a weighted system of representation modeled on the World Bank's board, would serve the United States well. It would end the Russian and Chinese vetoes, and, by bringing in emerging democracies such as India and Brazil, it would strengthen the Security Council's ability to legitimize global action.

Rather than seizing this chance to bolster a key global institution, the Bush administration joined the debate on Security Council reform belatedly and limply. Bowing to congressional pressure, it declared that reform of the patronage-ridden U.N. secretariat was a higher priority, even though such reform has been on the U.S. agenda for years and is largely hopeless. Having made the wrong strategic call, the administration compounded its error by picking petulant fights over the U.N. poverty-fighting Millennium Development Goals, jeopardizing the limited prospects for secretariat reform still further.

So whatever comes out of this week's summit, it's not going to be the full-blown relaunching of the United Nations that its sponsors had aspired to. And a large part of that failure will reflect the Bush administration's refusal to get behind reform. It is a squandered opportunity.

No draft document ready for UN summit meetings?

This article from the Sydney Morning Herald reports that the UN summit meetings beginning on Wednesday, September 14 will likely not have a final draft document on UN reform:

***
Summit unlikely to finalise UN reform
By Michael Gawenda
Herald Correspondent in New York
September 13, 2005

The United Nations summit of world leaders due to get under way tomorrow looks almost certain to go ahead without an agreement on a final document on major UN reform, and on aid development targets aimed at eradicating world poverty.

More than 150 leaders are to attend the summit, which marks the 60th anniversary of the establishment of the UN at the end of World War II.

The leaders were expected to consider a draft document drawn up by ambassadors of a working party from 30 member countries, including Australia's ambassador to the UN, John Dauth, based on recommendations in a report commissioned by the Secretary-General Kofi Annan and presented to the UN General Assembly six months ago.

The recommendations are far-reaching and include reform of the UN Secretariat, heavily criticised in the Volcker report into the Iraq oil-for-food program, expansion of the Security Council, including new permanent members, an agreed definition of terrorism and reform of the discredited Human Rights Commission.

The proposed reforms also look at new ways of dealing with proliferation of weapons of mass destruction, including nuclear weapons and new rules for UN intervention in countries which are threatening major harm to its citizens - a major change to UN rules which have been based on the inviolability of state sovereignty.
But according to some UN sources, despite weeks of intense negotiation the working groups on the proposed document have failed to agree on virtually any of the major proposed reforms.

The US has refused to accept a 0.7 per cent of GDP target for aid to developing countries and the controversial US ambassador to the UN, John Bolton, has suggested major amendments to the draft document, including any reference to the Kyoto Protocol and the World Court.

But one observer said Mr Bolton merely represents the view of the Bush Administration and no US government was going to accept major changes to its policies based on multilateral negotiations.
The US is not the only hold-out on the draft document: it seems that the two groups of developing nations involved in the negotiations have rejected most of the proposals for reform of the UN, including a definition on terrorism and the proposal for UN intervention in states threatening genocide of their own people.

The Prime Minister, John Howard, who will address the UN on Friday, seemed to accept that no draft document would be agreed on for the world leaders to consider. "Even if the discussions break down it shouldn't discount for a moment the tremendous importance of the issues that will be discussed," he said.

Sec of State Rice's briefing on UN reform

Here is the text of Secretary of State Rice's briefing in advance of her trip to the UN General Assembly meetings. She outlined four priorities for the US:

"During the United National General Assembly, the United States will focus on four key policy areas. We will focus on the importance of trade and lifting people out of poverty in the development agenda. Having dramatically increased official development assistance, it is important to keep focused on creating an environment that can make ODA effective -- the rule of law, free market reforms and reducing corruption. It is essential that the outcome document that we are now negotiating reaffirm this comprehensive approach to financing for development the one that is in the Monterrey Consensus.

Second priority is promoting democracy and human rights. We continue to see progress here and we will work at the United Nations. I will have a number of meetings that focus on this issue of promoting democracy and human rights. The President, for instance, will celebrate the opening of the Democracy Fund while he is in New York. But I will have discussions with the G-8 and with various individual countries about this important set of issues.

We will also focus on making America and the world safer and fighting terrorism. The Security Council summit will consider a resolution on the incitement of terror and we will call for progress on the Comprehensive Convention on International Terrorism to establish a legal framework to deter and prosecute acts of terrorism.

Finally, on the important issue of United Nations reform, we need a United Nations that is strong and reformed and we are going to continue to seek consensus on an aggressive reform agenda to make the United Nations more effective. In order to do so, the United Nations must be fully accountable, transparent and efficient, with a workforce based on high standards of integrity and competency. And that is the work that we are doing and seeking in the UN outcome document."

In the questions by reporters, Rice was asked about the Bolton edits:

"QUESTION: Madame Secretary, that outcome document you mentioned, the United States has pushed for a lot of changes to it in the last three weeks or so. There's a perception that the United States is sort of kind of swanning in at the last minute and making changes to something that's been in the works for a very long time. How much of that sentiment are you hearing and what will you say about it when you see your counterparts in New York?

SECRETARY RICE: Well, I will remind people that we've been working intensively on this process and this document for many months now, including the decision to have a full-time person, Ambassador Shirin Tahir-Kheli, who spent a lot of time at the UN starting in the spring and in the summer to work with the facilitators that President Ping had put together. I myself went to New York and talked about the direction that we needed the document to go. I had a meeting with President Ping.

And so the United States has been clear about the way that we felt this document needed to come out for quite a long time and we have -- we looked at the document, we believe that there were a number of changes that needed to be made. But we are working very effectively, I think, and very cooperatively with others to try and get important changes. So I might just note that, for instance, in order to move the process forward on the development section, we put forward new comprehensive -- new compromise language that would be kind of a broad tent where we can state our concerns about development and our ways of thinking about development. Others might be able to state theirs so that there's a sort of big tent on the development issue. I think that those were changes or proposed changes that were very well received. I've heard back from a number of people that they were very well received.

And so we're trying to work very cooperatively. We do believe that this is an important document and it has to be a document that represents certain key principles. For instance, the Human Rights Council has got to be a human rights council that is effective and that is principled. It cannot be a human rights council, where again, Sudan could be elected to it at the same time that it is being accused of genocide. We believe strongly that the management and -- management reforms and Secretariat reforms have got to be taken in the wake of the oil-for-food problem and a number of problems with peacekeeping around the world. It goes without saying that I think there's a broad consensus that you've got to have strong management and secretariat reforms. Secretary Annan has said that himself.

And I might just note that we have bipartisan consensus in this country to that effect. I want to thank Congressmen Lantos and Hyde who have been in New York and Senator Coleman, trying to promote the reform agenda. And we appreciate their efforts.

So there are a number of very important issues. Is the peace building commission going to really be effective? This is a very important document. We are working cooperatively and hard to get a document. We also have got have a document that really means something and so the United States is working with all of our colleagues. I think I'll probably be making a number of phone calls today. I talked to my Indian counterpart just a little bit ago about the importance of getting this moving."

UN report criticizes US international aid levels

Celia Dugger reports in the New York Times, here, via Limeyphish, on the new UN Human Development Report 2005, which criticizes the US for being second to last in official development aid (ODA) as a percentage of national income (although it is first in absolute amount of ODA).

The New York Times story - like the report itself - fails to make note of the difference between ODA and total aid flows from all sources, including NGO assistance, etc. As the US has noted in many official statements of policy, ODA as a specific percentage of GDP bears no logical relationship to what is actually needed to reduce severe poverty in the world and what mechanisms actually matter in achieving sustainable economic growth. ODA has proven to be a dismally bad predictor of that. What matters is improvement in governance in poor nations themselves - something that is not captured in any sense by ODA.

Struggles in UN over definition of terrorism

This story from AFP discusses how agreement on a universal definition of terrorism - one of the key elements of UN reform in the conference taking place September 14-16 - appears in danger of being derailed, mostly over disagreements on Palestinian attacks on civilians. Secretary General Kofi Annan has called for a definition of terrorism that makes deliberate targeting of civilians terrorism no matter what the cause or justification; it is resisted by various Arab and other governments. (I have noted in earlier blog posts that although this is a large step in the right direction, it is still an incomplete definition of terrorism because it leaves out attacks on military personnel such as British military by the IRA that would ordinarily be counted as terrorism even though they are not civilian.)

***
UN struggles to agree on definition of terrorism
First posted 10:28am (Mla time)
Sept 12, 2005
By Agence France-Presse

UNITED NATIONS -- World leaders at the UN General Assembly summit this week must try to find common ground on the vexing issue of terrorism, despite sharp disagreements focusing mainly on the Israeli-Arab conflict.

For eight years, diplomats have been sweating over a comprehensive draft convention that would encompass previous texts on the fight against terrorism (bombings, financing and nuclear and biological terror).
But they have so far stumbled over an acceptable definition of terrorism, particularly in the Middle East, where groups seen by some countries as terrorists are viewed by others as freedom fighters.

Last March, UN chief Kofi Annan proposed a formula stipulating that no cause or grievance, "no matter how legitimate," could justify attacks on civilians.

He then outlined a strategy aimed at cutting support, finance and equipment for terrorist groups, deterring states from sponsoring terrorism, developing counter-terrorism capacity and defending human rights.
Annan has repeatedly stressed the need for agreement on a universal definition of terrorism that could be part of a declaration at the September 14-16 gathering of world leaders here ahead of the UN General Assembly.

But terrorism is one of seven contentious issues that member states are still trying to resolve in last-minute negotiations to save the summit from failure.

Those in favor of a definition want the statement at the very least to say that "killing civilians to achieve political objectives amounts to terrorism," said a diplomat negotiating the tough issues as part of a 33-country core group.

"The Palestinian position is at the heart of this," he said, stressing that the Palestinians, backed by Arab countries, want the right to resist foreign occupation firmly recognized and assurances that measures to combat terrorism should not be used to curb a legitimate struggle of self-determination.

They also oppose anything that would imply that the actions taken in Palestine by the Palestinian authority could in some way amount to terrorism.

"It implies that it is legitimate under certain circumstances to kill and that's a view the European Union will not accept," the diplomat noted. "So chances of getting concessions at the moment -- because that's an issue that's been around for years -- are pretty slim, but we're still working."

Another diplomat directly involved in the terrorism talks said the summit might decide to agree a general statement and leave the details to negotiators drafting the comprehensive convention who have set a December deadline for the General Assembly to endorse it.

World leaders will also discuss terrorism on the sidelines of the summit when they attend a special Security Council session on September 14.

The council, which is chaired by the Philippines this month, was expected to approve a draft resolution introduced by Britain which aims to discourage incitement to terrorism.

The British move was clearly prompted by the July 7 London suicide bomb blasts, which killed 56 people, and the failed repeat attack on July 21.

"It's a tricky, sensitive issue because we all respect free speech, but there must be a limit on freedom to incite terrorist acts and that's what we are pointing out," Britain's UN envoy Emyr Jones Parry said in submitting the draft September 1.

The Millenium Development Goals and Bolton edits kerfuffle

It bears repeating how the kerfuffle between the Bolton edits and the second draft outcome document on UN reform came about with respect to the Millenium Development Goals (MDGs). The US has been very clear that the US supported the general goals of the MDGs. That was what it said in joining the Monterrey Consensus, for example. It has also been equally clear that it had not signed on to the detailed numbers and quotas that the bureaucrats of aid attached to them. In particular, the US has been entirely clear that it thought the .7% GDP target for official development aid (ODA) was wrong in principle. The MDGs carry two obverse, fatal flaws - on the one hand, the detailed quotas and numerical targets have all the marks of a Soviet five year plan and, on the other, they have all the substance behind them as well as possiblity of success of a Potemkin village. They purport to order the world about, in ways that are themselves self-deceiving. The bureaucrats and diplomats in charge of seeing through this process have thought, perhaps cynically, perhaps not, that if they simply seized on US support for the general principles, and went about their business of rewriting them to suit their views - despite the clear US record of non-support - at the end of the day, the US would be too embarrassed to call foul. And in another administration (and even perhaps in this one), that bet might pay off. That is why (one reason why, anyway) Bolton is so hated - he has called the bureaucrats' and diplomats' bluff and said that the US will stick to its long held positions, and will not be rolled over in the name of international solidarity and not upsetting consensus and all that rot. It was a consensus that was only reached by deception and self-deception, anyway, and the result, as the Economist magazine article noted in the previous posts observes, is precisely what might have been predicted - few of the targets met, and those that are met, not very much on account of the MDG process itself. That is the result that the mandarins of the international community ought to take away from the Bolton edits kerfuffle - but they won't.

The Economist on the UN reform summit

The Economist magazine - the September 10, 2005 issue has just arrived at my door - has a special report on UN reform: Special Report: The United Nations: Can Its Credibility be Repaired? World leaders are setting about reforming a flawed world body at a time when has been further weakened by the Iraqi oil-for-food scandal. (September 10, 2005, at 30-32.) Read it here - sub reqd.

It also has a very useful article explaining to the uninitiated what the Millenium Development Goals (MDGs) are, here (sub reqd) and the Bolton kerfuffle over them. Note the Economist's conclusion as to the MDGs, and the controversy over Bolton xx'ing them out of the UN reform outcome draft (that appears to have been reversed over the weekend, according to the Guardian):

***
September 8, 2005,
The Economist
Aspirations or Obligations?
[The Millenium Development Goals]
JOHN BOLTON, who recently became America's representative to the United Nations, is not over-fond of his new place of work. He belongs to the school of thought that sees the UN not as a temple to international co-operation but as a polyglot talking shop, with exorbitant Manhattan parking privileges.

“The currency of pledges from the international community is by now so severely debased by non-delivery that it is widely perceived as worthless.” That is the kind of sentiment one might associate with George Bush's man in New York, but those are not his words. Surprisingly, perhaps, they come instead from the latest Human Development Report, just published by the United Nations Development Programme.

The report appeared a week before the UN's big summit in New York on September 14th-16th, and five years after world leaders minted a new set of pledges to free their fellow man from “the abject and dehumanising conditions” of extreme poverty. The pledges were translated into eight “Millennium Development Goals” (MDGs), which aim to halve poverty and hunger, enrol every child in primary school, spare mothers and their infants from untimely deaths, thwart infectious diseases, save the environment and forge a “global partnership” in pursuit of development. The first MDG—cutting extreme poverty to half its 1990 level by 2015—may well be met in global terms, the Human Development Report says. But there the good news ends. On present trends, the report concludes, most poor countries will miss almost all the goals, in some cases by “epic margins” (see table). Extreme poverty, for example, will not be halved in any region except East Asia. The report calculates that by 2015 380m poverty-stricken people, most of them Africans, will remain in the condition from which the UN's members promised to liberate them.

If the value of such pledges is debased, how should the world respond? One way to restore the value of a currency is to back it with something tangible. This is what the Human Development Report proposes. It says that rich countries should offer more aid to poor ones (see article) and less to their own farmers. It also urges governments in poor countries to tackle the inequalities within their own societies. Only 40% of Pakistan's primary-school pupils are girls, for example.
But another way to restore the value of a currency is to restrict its supply. This is the route Mr Bolton seems to prefer. In recent weeks he has proposed excising all mention of the MDGs from the final declaration, removing from circulation the pledges the Human Development Report fears are now perceived as worthless.

Mr Bolton's editing provoked dismay. On August 26th, he wrote to his peers at the UN “to eliminate any possible misunderstanding”. America supports the development goals of the Millennium Declaration, he insisted, but it does not support the Millennium Development Goals. Confused? Mr Bolton explains that America signed up to the goals expressed in the 2000 Millennium Declaration—which include most of the headline targets such as halving poverty and hunger by 2015, promoting universal primary schooling, and cutting child mortality by two-thirds—but not to the full panoply of indicators and schedules formulated by the UN secretariat the following year.

The chief appeal of the MDGs is precisely that they convert high rhetoric into hard numbers. But most of the targets are less rigorous than they look. There is, for example, no way of knowing whether several of them are being met or not. In a forthcoming paper in Public Library of Science Medicine, an academic journal, Amir Attaran of the University of Ottawa points out that only one African country (Mauritius) registers births and deaths according to UN standards, and that no country regularly measures how many people are newly infected by tuberculosis. In July 2000, he says, a scientist concluded that it was not possible, in general, to measure the number of new cases of malaria. These shortcomings will prove increasingly embarrassing to the UN, Mr Attaran predicts. As 2015 approaches, people will want to know whether the MDGs have been met, and the UN will not be able to tell them. Indeed, the UN is already quite defensive. Mr Attaran quotes a UN memo, circulated a year ago, which cautioned that next week's summit “should not be distracted by arguments over the measurement of the MDGs”.

One target that can be measured is the 0.7% of GDP which rich countries are supposed to devote to foreign aid. Many donors have promised “efforts” to reach the target, but only five have met it. Mr Bolton does not intend even to try. “The United States has consistently opposed numerical aid targets from their inception in the 1970s,” he wrote to his UN colleagues.
But Jeffrey Sachs, the economist who is the MDGs' chief intellectual sponsor, thinks the 0.7% target now has more than history to recommend it. Suppose, he says, we gave the money needed to reach the poverty line to everyone below it. How much would it take?

Martin Ravallion and his colleagues at the World Bank put the international poverty line at $1.08 per day, measured in 1993 purchasing-power parity dollars. They estimate that in 2001, 1.1 billion people fell short of this line, by $113 on average. Giving $113 a year to 1.1 billion people would cost $124 billion. As Mr Sachs points out, this is little more than 0.6% of the combined GDP of the OECD's 22 donor countries, measured in the same purchasing-power parity dollars. Thus the promise to devote 0.7% of GDP to fighting poverty has a theoretical rationale today that it did not have when first proposed in 1970. With an aid budget that size, the “poverty gap” could in principle be filled.

Mr Sachs's thought-experiment is intended as no more than an “eye-opening” illustration. But it is nonetheless misleading, argues Surjit Bhalla, a former World Bank economist who now runs Oxus Fund Management, a hedge fund. As Mr Bhalla points out, the “dollars” used when measuring poverty around the world are not the dollars given in aid. The first is a unit of purchasing power. The second is a unit of currency, which has varying purchasing power depending on where it is spent and what it is spent on. As Mr Bhalla points out, a dollar earned in America buys much more in Ethiopia or India than in Japan or America itself.

So how many dollars would have filled the poverty gap in 2001? Not $124 billion, Mr Bhalla reckons, but only $25.1 billion. In fact the rich world gave more than $46 billion in aid that year, and has been giving more than enough to fill the poverty gap in almost every year since 1990.
Unfortunately, a victory over poverty cannot be so easily purchased. The rich world cannot pour a given amount of money into one end of an MDG pipeline and expect to see, emerging from the other, a predictable number of people freed from destitution and disease.

The global targets the world set for itself five years ago did not emerge from the bottom up, as the sum of what might be feasible in each poor country. They were instead imposed from the top down. Their fit is thus often rather awkward. Thanks to its rapid economic growth, China has already met the goal of halving poverty, more than a decade early, while sub-Saharan Africa is likely to be generations late. Of course, ambition is a good thing if it encourages countries, rich and poor, to redouble their efforts. But in Africa's case, efforts must be quadrupled or quintupled. That is a promise the international community cannot possibly keep, and so was perhaps unwise to make.

James Traub on reimagining the UN as something new and different

Journalist James Traub (who is also writing a book on the UN and alternatives to it) has a very thoughtful piece in the New York Times Magazine today (September 11, 2005, page 17, The Un-UN) on how a new international organization might be imagined to supplement and, in time perhaps, even to supplant the UN as it currently stands. Read it here. (And read Ed Morrissey's take on it here - I'll add some other reactions to it in the blogosphere as I notice them.)

The fundamental issue for Traub is whether the leading international organization should be open to everyone - open simply in virtue of territorial sovereignty - or whether, instead, it should have some standards for membership that imply some minimal shared values. As the UN stands now, it is an organization with everyone included. This has the virtue of providing a place where good guys can talk with good guys, and good guys can talk with bad guys - and bad guys can talk with bad guys, and scheme with bad guys, and give mutual support among bad guys, and all the stuff that leads to - not alone among UN organs - the current Human Rights Commission.

There is much discussion these days about a democracy caucus that would be its own bloc in the UN to counteract the organized behavior of the bad actors. The US and a number of other leading democracies have in fact been organizing precisely such a caucus for several years - Secretary Rice made a point of stopping through a meeting in Santiago not long ago. Traub proposes something that is at once less than a caucus of democracies and yet more. His proposal is that democracy is too narrow and too exclusionary a category - this is the "less" part - because his sweeping vision is to create a new global organization that would be a caucus of the relatively good guys, even if that means taking in some states that are not democracies. The organization would, in effect, replace the current UN as the leading actor in the international organization world - and this is the "more" part. The organization would have standards - what would they be, if they are not as stringent as democracy per se? Traub says:

"But perhaps rather than reconciling ourselves to the U.N.'s inherent limits, we should ask whether we can imagine a different kind of institution - one, for example, that looks more like NATO, which consists only of members with a (more or less) shared understanding of the world order and thus a shared willingness to confront threats to that order. This new body, which I will call the Peace and Security Union until someone comes up with a more resonant name, would require members to accept, in advance, a set of core principles, including:

Terrorism must be unambiguously defined and confronted both through police and, where necessary, military means; states have a responsibility to protect their own citizens, which in turn confers an obligation on the membership to intervene, at times through armed force, in the case of atrocities; extreme poverty and disease, which threaten the integrity of states, require a collective response.

Who should be eligible to join? There has been some discussion, mostly in conservative circles, of a new organization of democracies. But many third-world democracies resist almost any encroachment on other countries' sovereignty, whether in the case of "humanitarian intervention" or the singling out of human rights abusers; to grant them automatic admission would be to jeopardize the P.S.U.'s commitment to core principles. And it would be just as dangerous to automatically exclude China, since large parts of Asia - and not only Asia - would be reluctant to cross a Chinese picket line.

A better solution is to stipulate that any state that formally accepts the core principles and pledges to put them into effect will be permitted to join the P.S.U. Very few nondemocratic states would be willing to meet this threshold, especially if they could be ejected should they renege on their commitments. But no state could reasonably claim that it had been unfairly excluded."

In effect, then, it is a less-for-more, or more-for-less, proposal, depending on which way you look at it - standards less stringent than would otherwise constitute the "good guys" on both human rights and democracy, but an acceptance of certain standards of outside intervention on the basis of state failure or massive abuse. But this club, rather than being simply an ad hoc caucus seeking to be its own lobbying bloc within the existing UN (and almost certainly doomed to failure as a lobbyist, sadly), would seek to be something far more powerful - like NATO in its post-Cold War reach, and perhaps even a replacement organization for the UN, or at least parts of it, over time.

Traub sets this view against the view of Edward Luck, a long time observer of the UN, that the limitations of the UN are structural and cannot be shifted - and therefore it is better to go for small, incremental changes that do not challenge the structural limits. Traub's answer to that is, first, to agree that the limitations of the UN are indeed structural - and therefore the answer is a new type of organization. But even an imaginary and imagined organization must come to grips somehow with the facts of power, and it must therefore be open to the possibility of powerful states that are not democracies committing themselves to some other set of acceptable principles. The country he has in mind, of course, most of all, is China.

It is noteworthy that Traub does not line up Bolton and the Bush administration in his sights as the inevitable bad guys in all this - rather, he correctly notes that, the structural limits of great power politics in multilateralism being what they are, most of the great powers and many smaller ones are happy to see the reform efforts falter, especially if the US took the blame:

"If U.N. reform falters this week, or if only a few noncontroversial measures pass, the blame is bound to fall on the Bush administration and its confrontational ambassador, John Bolton. It's true that Bolton has shattered a great deal of crockery since arriving in Turtle Bay last month, loudly disparaging the laboriously assembled reform package and then submitting a new version with 750 amendments, as well as making common cause with the Chinese to block Security Council expansion.

And it's true as well that the United States, owing to its unique position of power and the ideological proclivities of this administration, is willing - no, eager - to make a very public bonfire of the high-minded principles of multilateralism.

What is less noticed, however, is how many other states - Russia, China and many members of the U.N.'s still-extant "nonaligned movement" - are perfectly content to dance around the embers. Many members of the U.N. are simply not willing to sacrifice whatever they define as their national interests for the collective good that the organization aspires to represent and advance."

I do not agree that the issue is always a question of national interests versus international "collective good," as Traub puts it. On the question of 0.7% ODA, for example, one might disagree over whether it is a good idea or a bad idea, rather than, say, pursuing aid through NGO mechanisms rather than official development assistance that has proven itself so badly spent over decades. One might claim that the US is simply cheap. But it is, in my view, a principled position on the part of the US to reject it, and not simply an exercise in self-interest. And many other issues in which individual countries, the US in particular, have taken positions against the UN - whether the Security Council or that particularly irreponsible and nasty agglomeration, the General Assembly (committed by the UN charter itself to the privilege of mouthing off without any fear of consequences or responsibility) or other organs - which are clearly expressions of ideals, including ideals of democratic sovereignty, rather than self-interest. It is far too quick and quite wrong to assume that the positions asserted by the UN and its organs represent "collective good" against "self interest." The UN's position are frequently in its own bureaucratic interest, rather than any genuinely "collective" interest, frequently "bad," rather than good, and the positions of its members against UN positions are frequently idealistic and good rather than self-interested; moreover, it is not illegitimate for sovereign democracies to put the interests of their citizens first.

I likewise have doubts about Traub's alternative, more inclusive criteria for membership. It reflects what is the current "next big thing" on the minds of many reformers - both political left-progressives, but also including many thoughtful conservatives - the so-called responsiblity to protect, to protect populations against the depredations of their own governments, against the abuses of failed states, and so on. As a practical matter, Traub says that trying to make the core principles - rejection of terrorism and pursuit of terrorists; intervention in matters of the responsibility to protect; and collective action against severe poverty - stringently binding will have the effect of keeping out states that worry about authorizing intervention. As well they might - after all, the point of a responsiblity to protect is, indeed, to abrogate once and for all the traditional sovereign boundary against intervention. So, he says, all states need do is accept the core principles to join the new organization - commit themselves to those principles to join up.

Traub says that very few of the worst of the bad guys will be willing to join on those terms. In the beginning that is very likely so. If it were actually to gather steam as an organization, over time I think it more likely that they will be willing to mouth the words or not depending on what they think it nets them. Consider how counries rushed to be counted among the United Nations back when it was still the anti-fascist alliance at the close of the World War II - even dubious neutrals such as Argentina were careful to jump on the "next big thing." Bad guys will say the magic formula if they think there is something worth it on offer. At that point, the choice for the organization will be to say, come in and we will try to use suasion to alter your political behavior - improvement through moral example, a kind of Sunday School to the nations - or say, nope, you don't meet the requirements, change your system and we will consider you. An organization which has already, in the name of great power politics, accepted what remains a totalitarian and deeply nationalist and, indeed, belligerent state such as China will have great trouble keeping anyone else out, except perhaps for a few small and unimportant pariahs. On the contrary, the tendency will be to take them in, even if they pollute, so to speak, the prayer circle.

(Because all these proposals for inclusionary or exclusionary new or reformed clubs of nations revolve, principally, around concepts of purity and sinfulness, the analogy with religion is actually a useful one within limits. There is a certain utility in considering the circumstances in which religious groups invite in the sinners and the circumstances in which, to avoid impurity and sin, they keep them out.)

The other grand issue in this is the question of whether Traub, or other proponents of new arrangements and new clubs, are offering what for a great many people in the world are simply stalking horses for the containment of US power that they resent and dislike. Certainly it seems to me that many progressives hope, out of the idea of a caucus of democracies, to contain the US in an arrangement that makes it harder for the US to use force unilaterally, or to cobble together a coalition of the willing. These progressives both recognize the inherent moral problem of UN action - bad guys and good guys together? - and they also believe that US power should be constrained and put to the collective use of the good guys, while understanding fully that what the US thinks is good and what western Europe thinks is good diverge considerably. It is hard not to detect a certain strain of this in Traub's thinking, as well. It is not necessarily a cynical or unprincipled position - but it is hard, if not impossible, to reconcile with a strong ideal of democratic sovereignty, a democratic sovereign that has no political superior. What finally matters, after all, is whether one accepts or not global governance as the morally right form of global organization, over the requirements that democratic sovereigns owe to their own particular citizens.

I have problems with Traub's approach. But it is a welcome attempt to come up with something that is both idealistic yet takes power into account. Congratulations to him - I will look forward to reading his book - and to the editors of the New York Times Magazine, Gerry Marzorati, and do I detect the felicitous hand of Scott Malcomson here? for running this piece as the UN reform summit launches to who-knows-where.

UN reform summit meeting opens Wednesday

The much debated United Nations global summit on UN reform opens at UN headquarters in New York on Wednesday. I have noted in earlier posts Ambassador Bolton's edits to the (second) draft outcome document. I have also logged my disagreement with the furor from bien pensant international opinion that the United States should dare actually to, uh, negotiate the terms of a diplomatic document intended to set the terms of the world's leading international organization for a long time to come.

Where do things stand now? Apparently, according to the Guardian, here, over this weekend, the British government has been lobbying Washington furiously, attempting to get Secretary of State Rice to "rein in" Bolton. The UK is fully behind the draft outcome document, says the Guardian, and sees the whole summit at risk. It further reports that one of the important US demands - that the document drop references to the Millenium Development Goals (MDGs) - has been shelved. On the other hand, the US reportedly refuses to sign on to the requirement of 0.7% Official Development Assistance (ODA), as it has always refused to do (references to the US having agreed to it in the Monterrey Consensus notwithstanding).

The Guardian article, which has been widely circulated in the blogosphere, says:

***
World summit on UN's future heads for chaos
UK leads last minute effort to rein in US objections

Ewen MacAskill, diplomatic editor
Saturday September 10, 2005
The Guardian

The British government is mounting a huge diplomatic effort this weekend to prevent the biggest-ever summit of world leaders, designed to tackle poverty and overhaul the United Nations, ending in chaos.

The Guardian has learned that Jack Straw, the foreign secretary, has made a personal plea to his American counterpart, Condoleezza Rice, for the US to withdraw opposition to plans for wholesale reform of the UN. He has asked Ms Rice to rein in John Bolton, the US ambassador to the world body.

Mr Bolton has thrown the reform negotiations into disarray by demanding a catalogue of late changes to a 40-page draft document which is due to go before the summit in New York on Wednesday.

Mr Bolton, one of the US administration hawks, became ambassador last month only after a long confrontation with the US senate, mainly caused by his ideological dislike of the UN.

The foreign secretary is planning to make calls to fellow ministers around the world over the weekend.

Mr Straw spoke to Ms Rice in a three-way conference call last Tuesday organised by Kofi Annan, the UN secretary general, to try to break the deadlock.

Mr Annan has been weakened by the criticisms voiced this week by an inquiry into the UN's running of the Iraq oil-for-food programme and needs a successful summit to avoid renewed calls for his resignation.

The British government, in a rare divergence from the US, is fully behind Mr Annan's reforms and fears the summit will fail to build on the agreements on aid reached at the G8 summit at Gleneagles.

Aid agencies and other international groups monitoring the talks expressed fears yesterday that ambitious goals on aid, protection of civilians and curbs on the arms trade will be lost.
Nicola Reindrop, head of the New York office of Oxfam International, said: "Negotiations are on the verge of collapse."

A representative of another group, at a lunch with Mr Annan on Thursday, described the negotiations as "imploding".

Ambassadors at the 191-member UN remained divided last night, three days after the deadline for completion of the draft document had passed. Talks will continue over the weekend. Monday has been set as the new deadline.

The summit, to which 175 world leaders have accepted invitations and which has been in the planning for more than a year, is billed as making the UN fit for the 21st century.

The three-day summit begins on Wednesday, with each leader allocated five minutes at the podium, a minimum of 14 hours of speeches. But the real diplomacy will take place behind the scenes.

The summit document is due to be unveiled next Friday. Proposals include:

· meeting the millennium development goals that would halve poverty by 2015 and make sure everyone has access to primary education;
· setting up a peace-building commission to help with post-conflict reconstruction;
· creating a human rights council;
· introducing a responsibility to protect citizens from genocide, much tougher than existing international obligations;
· imposing curbs on the arms trade;
· reforming the UN bureaucracy, particularly after the oil-for-food scandal;
· defining "terrorism".

But there are still more than 200 points of disagreement in the document.

Although the US has emerged as the leading opponent of the reform package, objections have also been lodged by some governments from the Non-Aligned Movement, which represents much of the developing world.

Ricardo Alarcon, speaker of the Cuban parliament, whose hopes of attending the summit along with President Fidel Castro were dashed when he was denied a visa by the US, said in Havana the summit "has been totally devalued, its original purpose kidnapped".

Although there has been little movement over the last few days, the mood in New York among diplomats was marginally more optimistic yesterday.

Mr Bolton has so far made only one significant concession, dropping his demand for the term "millennium development goals" to be deleted.

But Mr Bolton said the US will not renew a promise to pay 0.7% of gross domestic product towards aid, regarded as necessary for meeting the millennium development goals.
Controls on arms is likely to be dropped. But agreement is almost certain on creation of the human rights council. A deal could be reached on the peace-building commission, in spite of disagreements over who should run it.

There is a divide over the definition of terrorism, with pro-Palestinian states objecting that the proposed terminology be amended to exclude Palestinian fighters.

The most significant reform, expansion of the 15-member security council to about 25 members, has been shelved until at least December.

The Bolton edits to the Annan UN reform proposal

Via the Huffington Post, here is the document mentioned in the Washington Post and other media that contains John Bolton's proposed edits - or anyway, the US State Department's proposed edits - to Kofi Annan's draft proposals for UN reform (technically the draft presented by the President of the General Assembly, following negotiations among GA members, but essentially Annan's reform proposals adapted from his earlier documents), due to be presented at the UN summit meeting in New York starting September 14.

The Huffington Post article is here; the link directly to the Bolton pdf is here.

I of course do not share the Huffington Post's outrage, first, at the idea that the US would propose changes to a document of (presumably) such importance for decades to come - the first real attempt structurally to reform the UN in a long, long time - of course the US will have views, and the views of a country as central to everything that the UN does will carry commensurately greater weight than, say, the views of Luxembourg. Second, the complaint that these edits are coming at the last moment fails to note

• the US has raised the issues behind the actual line by line edits for long periods of time, typically many years; they are not new;
• the final draft from the SG has seemed to take the risky, raise-or-call position that the US's long standing concerns could simply be ignored in the final draft and that the US will back down in the face of MSM and international bien-pensant opinion that it is too late to raise objectionsn - but Ambassador Bolton, bless his soul, has called Annan's bluff; and
• had the entire 'civilized' world not spent so much time attempting to block Bolton's appointment over the course of the last year, then objections thatl clearly carry the view of the administration might have been offered a long time ago.

US position on UN Human Rights Council to replace Commission

This press release from the State Department outlines the official US view of what a new UN Human Rights Council, to replace the discredited UN Human Rights Commission. The key position is that countries on the Council would have to be peer vetted to try and establish standards for membership. This is far from what Secretary General Kofi Annan has proposed, which would leave membership in the hands of the General Assembly, thus reproducing all the problems that already exist of having the world's leading human rights abusers serving on the Commission. On the other hand, I can see plenty of opportunities for problems in a peer vetted arrangement - the US would find itself endlessly vetted by Western Europe on matters ranging from the death penalty to the rights of the child. No matter what happens, abolishing the Commission is a step forward - even if it were replaced by nothing official, and the pressure on human rights issues left in the hands of ad hoc bodies, such as the Caucus of Democracies.

Congratulations to Larry Solum

On September 7, 2005, Professor Lawrence B. Solum will be invested as the John E. Cribbet Professor at the University of Illinois (Champaign) College of Law. Professor Solum was formerly at the University of San Diego law school and before that at Loyola Los Angeles Law School. He is a leading expert in jurisprudence, constitutional law, and intellectual property, and runs one of the most widely read blogs in legal academia, the Legal Theory Blog.

I am deeply proud of, and for, Larry, who is an old, dear friend dating back to our days in the philosophy department at UCLA and later at Harvard Law School. He is a wonderfully intelligent, deeply learned scholar. He was here in DC for a conference this weekend, and it was delightful, after many years, to have him over for dinner last night.

Larry, congratulations! And well-deserved!

Supreme Court nominees and foreign law in US constitutional adjudication

I've made this point repeatedly on this blog, but with the passing last night of Chief Justice Rehnquist, and the opening of the hearings on John Roberts' nomination, the question of how nominees view the role, if any, of foreign law in US constitutional adjudication takes on ever greater importance. It also has certain virtues as a line of inquiry, in that unlike many of the direct "values" questions, it can plausibly be put as a matter of judicial philosophy, a question of what kinds of sources are appropriate for a US judge in interpreting the constitution. It does not need to be asked, or answered, as a question about particular cases. I have strongly articulated views against the practice of taking foreign law into consideration - see my Policy Review essay, here - but in any case, I think it is a crucial question of the jurisprudence of nominees.

(Update, Wednesday, September 7, 2005: Here is Jeffrey Toobin's take on Justice Kennedy's passion for foreign law, from the New Yorker, here, issue of September 12, 2005. Toobin is an "echo-chamber" journalist - he can't imagine that he might ever have to address the sensibilities of anyone other than the idealized New Yorker reader, and so it never occurs to have to ask Justice Kennedy anything other than fawning questions and or to start from any other assumption except that this foreign law passion is a good globally-progressive thing. Why should Toobin bother, and why should it occur to him at all, since these are the implicit starting points of both Toobin and his readership? Skepticism about something so self-evidently progressive and good? You have to be kidding.)