Sunday, September 25, 2005

Mark Steyn on the German election

Mark Steyn on the German election. This is not in the same league of analysis and knowledge as Chris Caldwell's piece on the elections, but as always, beneath the breezy humor, Steyn gets to the heart of difficult things. Here.

Robert Samuelson on conflicts between capitalism and democracy

Newsweek's economics columnist Robert Samuelson has a good short piece on the complex and often contradictory relationship between the demands of capitalism and the demands of democracy, as illustrated in the struggle over reform in democratic Germany and Japan and their recent elections. Read it here.

Saturday, September 24, 2005

Chris Caldwell on the German election

Christopher Caldwell, the Weekly Standard writer, Financial Times columnist, and NYT magazine contributing editor, has written the best analysis of the German election in English that I have read. From the Weekly Standard, October 3, 2005. Read it here.

Chris made a very smart career move as a journalist back in the 1990s, when he turned from US domestic issues to Western Europe. Not just the Style-section, soft-life-style-issues mode of reporting that so limits the NYT's coverage of Western Europe (in effect, you have little confidence that the NYT's correspondents in Western Europe could state the law of supply and demand, let alone intelligently discuss Western European welfare states except by parroting the handouts of the social democratic parties). Chris spent his time going to places like Germany - places considered utter bores because they were so dully industrial and mastering gritty but essential economic facts long before anyone else decided to pay attention. In effect, Christopher returned to the mode of serious, economics-and-politics-andculture oriented reporting that had characterized places like the NYT foreign bureaux in Western Europe a generation ago, before the budget cuts in foreign reporting.

Christopher Caldwell, in my view, does the finest reporting on Western Europe in US journalism today. I've posted some of his earlier reporting on Islam in Europe, and in France in particular.

Wednesday, September 21, 2005

Ann Althouse on foreign law in US courts

The ever impressive Ann Althouse, of the Althouse blog and University of Wisconsin law school, has an op ed piece in the NYT arguing that within bounds, the use of foreign law in US constitutional adjudication is okay. I don't agree, but as always it is well-put, here. (I will be discussing this issue today at the State Department, with Edward Swaine of the Wharton School and Vicki Jackson of Georgetown law school, as part of a constitution day event.) From Professor Althouse's op-ed:

September 19, 2005

Innocence Abroad
New York Times

Madison, Wis.

LOOKING at foreign law for support is like looking out over a crowd and picking out your friends," Judge John Roberts told the Senate Judiciary Committee on Tuesday, responding to a question from Senator Jon Kyl about Supreme Court justices citing foreign law as they interpret the Constitution. "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."

Judge Roberts has taken pains throughout the hearings on his nomination as chief justice to present himself as the modest judge who strains over the authoritative texts and forswears all personal preference. For him, citing foreign law inevitably entails discretion. Judges will select the things that say what they already want to say and "cloak them with the authority of precedent." That violates the credo of the humble judge.

Yet to cite something in a judicial opinion is not necessarily to treat it as authoritative precedent. A decade ago, for example, Justices Antonin Scalia and Stephen Breyer, arguing about the meaning of the separation of powers, traded quotes from Robert Frost's poem "Mending Wall." Justice Scalia wrote: "Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: 'Good fences make good neighbors.' " Justice Breyer countered with: "One might consider as well that poet's caution, for he not only notes that 'Something there is that doesn't love a wall,' but also writes, 'Before I built a wall I'd ask to know / What I was walling in or walling out.' "

Clearly, each man spotted the parts of the poem that looked like his "friends." Yet no one thought to ask, "Why are you cloaking Robert Frost with authority?" In quoting the poet, the two men displayed some wit and elegance, and we appreciated the relief from the usual dry opinion.

Last January, at a university function, the two justices debated the question of American judges citing foreign law. Justice Breyer said he and his colleagues needed to get out more and expose themselves to what different people think about things. Foreign judges "are human beings," he said, and when they've worked through a problem that's "similar enough" to an issue that arises in the interpretation of the Constitution, why shouldn't he read it? And if he reads it and finds it helpful, what's wrong with citing it?

The issue became notorious in March, when Justice Anthony Kennedy took account of foreign laws in determining that it was cruel and unusual punishment to execute someone for a crime committed as a juvenile: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." For that, he endured calls for his impeachment. What is so alarming about American judges' reading and citing foreign law? It scarcely seems possible that they would blunder into imagining that the opinions of foreign courts are binding precedent.

Perhaps we prefer the more restricted judge, closed up in chambers lined with American texts, denying himself the indulgence of literary allusions and citing only the binding precedents, lest it appear that he gave too much weight to something he found merely interesting. John Roberts offers to be that man, to take his overflowing intellectual gifts and submit to the rigorous practices of that cloistered life.

I deeply respect Judge Roberts and the conception of judging that he will bring to the court. But I also think that he will need to interact with other judges who do things differently, who open their minds to the opinions of the world and bring some fresh thinking back to constitutional interpretation. There is, I suspect, no ideal judge, but there is an ideal court: one composed of a variety of judges, compelled to talk to each other.

(Ann Althouse is a law professor at the University of Wisconsin.)

Monday, September 19, 2005

Kofi Annan on what UN reform summit accomplished

Kofi Annan writes in the Wall Street Journal, Monday, September 19, 2005, on what was accomplished and not accomplished in the UN reform summit and outcome document, here (sub reqd).


A Glass at Least Half-Full
Wall Street Journal
September 19, 2005; Page A16

The "outcome document" adopted last Friday at the end of the United Nations world summit has been described as "disappointing" or "watered down." This is true in part -- and I said as much in my own speech to the summit on Wednesday. But taken as a whole, the document is still a remarkable expression of world unity on a wide range of issues.

And that came as welcome news, after weeks of tense negotiations. As late as last Tuesday morning, when world leaders were already arriving in New York, there were still 140 disagreements involving 27 unresolved issues. A final burst of take-it-or-leave-it diplomacy allowed the document to be finalized, but so late in the day that reporters and commentators had no time to analyze the full text before passing judgment. It is no criticism of them to say that many of their judgments are now being revised, or at least nuanced.

Indeed, I would not wish to criticize them, since most were very kind to me. They blamed the alleged failure on nation states -- who, supposedly, failed to embrace the bold reform proposals that I had made. It is only fair that I set the record straight.

In March, when I proposed an agenda for the summit, I deliberately set the bar high, since in international negotiations you never get everything you ask. I also presented the reforms as a package, meaning not that I expected them to be adopted without change but that advances were more likely to be achieved together than piecemeal, since states were more likely to overcome their reservations on some issues if they saw serious attention given to others which for them were a higher priority.

In the end, that is precisely what happened.

The outcome document contains strong, unambiguous commitments, from both donor and developing countries, on precise steps needed to reach, by 2015, the development goals agreed on at the Millennium Summit five years ago -- an achievement sealed, as it were, by President Bush's personal endorsement of the goals in his speech on Wednesday.

It contains decisions to strengthen the United Nations' capacity for peacekeeping, peacemaking and peacebuilding, including a detailed blueprint for a new peacebuilding commission, to ensure a more coherent and sustained international effort to build lasting peace in war-torn countries.
It includes decisions to strengthen the office, and double the budget, of the U.N. High Commissioner for Human Rights; to create a worldwide early warning system for natural disasters; to mobilize new resources for the fight against HIV/AIDS, TB and malaria; and to improve the U.N.'s Central Emergency Revolving Fund, so that disaster relief arrives more promptly and reliably in the future.

It lacks the clear definition of terrorism that I had urged. But it contains, for the first time in U.N. history, an unqualified condemnation, by all member states, of terrorism "in all its forms and manifestations, committed by whomever, wherever and for whatever purposes," as well as a strong push to complete a comprehensive convention on terrorism within 12 months, and agreement to forge a global counterterrorist strategy that will weaken terrorists while strengthening our international community.

Perhaps most precious to me is the clear acceptance by all U.N. members that there is a collective responsibility to protect civilian populations against genocide, war crimes, ethnic cleansing and crimes against humanity, with a commitment to do so through the Security Council wherever local authorities are manifestly failing. I first advocated this in 1998, as the inescapable lesson of our failures in Bosnia and Rwanda. I am glad to see it generally accepted at last -- and hope it will be acted on when put to the test.

My proposal for a new U.N. Human Rights Council is also accepted, though without the details that I hoped would make this body a clear improvement on the existing Commission. These are left for the General Assembly to finalize during the coming year. Nations that believe strongly in human rights must work hard to ensure that the new body marks a real change.

Member states have accepted most of the detailed proposals I made for management reform. In the near future we should have more independent and rigorous oversight and auditing of our work; a cull of obsolete tasks and a one-time buy-out of staff, so that we can focus our energies on today's priorities and employ the right people to deal with them; and a thorough overhaul of the rules governing our use of budgetary and human resources.

But they held back from a clear commitment to give the secretary-general the strong executive authority that I and my successors will need to carry out the ever-broadening range of operations that the U.N. is tasked with.

I had also suggested a reform of the Security Council, making it more broadly representative of today's realities. Here, too, there is agreement on the principle, but the devil is in the detail. The document commits nations to continue striving for a decision, and calls for a review of progress at the end of 2005.

By far the biggest gap in the document is its failure to address the proliferation of nuclear weapons -- surely the most alarming threat that we face in the immediate future, given the danger of such weapons being acquired by terrorists. Some states wanted to give absolute priority to non-proliferation, while others insisted that efforts to strengthen the Non-Proliferation Treaty (NPT) must include further steps towards disarmament. Thus the failure of the NPT review conference in May was repeated.

Surely this issue is too serious to be held hostage to such an Alphonse-and-Gaston act. I appeal to leaders on both sides to show greater statesmanship, and make an urgent effort to find common ground. Otherwise, this summit may come to be remembered only for its failure to halt the unraveling of the non-proliferation regime -- and its other real successes would then indeed be overwhelmed.

(Mr. Annan is secretary-general of the United Nations.)

(URL for this article:,,SB112708454142944392,00.html)

Sunday, September 18, 2005

The ethics of voluntary disenfranchisement

This is somewhat offtopic, but I have been considering a short, speculative article on the following subject.

In the course of the last ten years or so, I have had conversations with three different people who, for reasons somewhat similar and somewhat dissimilar, had all come to the conclusion that they should not vote. All were citizens perfectly entitled to vote, but each had concluded that he should not exercise his franchise.

The first of these was a priest whom I had met some years before. His reason for not voting was that he believed deeply that he belonged to God, and that if he were to vote, he would be compromising his identity as an intermediary of the universal and identifying God with some particular point of view, nation, ethnicity, people, what have you. He thought in some way that he would be compromising his own position as a man of God, a priest - but he also believed that in some way he would be compromising God.

The second of these men was a journalist. He believed that voting would show that he was biased in some way, and he had concluded that as a journalist, his reponsibility was to the truth, and in order to be faithful to that, he could not allow himself any commitments, at least in politics, which was his subject matter, that would suggest partiality on his part. His professional identity defined him in such a way as to preclude political activities as a citizen. Voting meant taking sides and partiality, and he felt it was not compatible with his profession. In this, he followed (although my conversation with him took place before) statements by some prominent newspaper editor in one of the last elections, that he had not voted in twenty or so years for more or less these reasons.

The third was a very recent conversation, a couple of weeks ago, with a young soldier, an officer in the Special Forces. He was well educated at a top university in political science, very intelligent and thoughtful. He had concluded that he ought not to vote because, he said, in some way it violated the ideal of the military being apolitically subservient to the civilian government in a democracy. (Strikingly, when I asked him if it made a difference that he was a volunteer in an all-volunteer army, he told me it absolutely did - if he were a conscript, he would not hesitate to vote - a subtlety that indicates just how intelligent he was.)

I am interested in exploring the ethical positions taken by each of these men in determining, on a well-considered, well-examined basis, that they ought not to exercise that incident of citizenship, the franchise. I believe there is something fundamentally wrong in each case, although the cases are not precisely similar and what is wrong in each case is not necessarily the same. Moreover, I believe that, explored thoroughly, the exercise sheds some light on the nature and social theory of the profession and professional identity - and, in particular, its limits and limtations.

There is one last case I would propose to consider as against these three, and that is the case of Christopher Hitchens. Christopher is a friend, and several years ago I noted in conversation that he had at some point in his writing crossed a certain line and had begun writing about America and Americans no longer as a foreigner, but as "we." I asked him if it wasn't an indication that, in some fundamental sense, he had thrown his lot in with "us," and really was, and thought of himself, as one of "us" now - and wasn't it time to acknowledge that fact and take out citizenship. And to my surprise, Christopher told me that he had reached that conclusion some time before, and was taking out US citizenship (not giving up his British citizenship, but taking out US citizenship). And in doing so, was taking up the vote. Christopher Hitchens, that is, saw his way to engagement as a citizen and saw that, in some sense, as a moral duty.

There is, it seems to me, something worth exploring in Christopher's engagement that bears on the deliberate - and with the best and deepest of moral intentions - disengagement by these other three men.

Update, Sunday, September 25, 2005:

One way to approach the issue of professional detachment from the incidents of citizenship, if I can put it that way, is to locate the professional stance of each of these examples in a spatial metaphor in relation to the polity. By that I mean that the priest in effect puts himself "above" the fray the politics and the political community; he justifies this on the ground that he represents God, and God would not vote - although, surely, depending on the issues, something things at stake in an election might well be matters of right and wrong on which God would have a view, but leave that aside for now. The journalist locates him or herself "outside" - higher? lower? off to the side? - of the political community. Why? Seemingly for the appearance of impartiality, although in the case of most practicing journalists, who are in fact intensely political in their feelings and views, the idea of not voting as a symbol of disinterestedness smacks of pietism, not authenticity, but we'll come back to that. The soldier locates him or herself in a sense "beneath" the polity - its instrument and servant, with the idea that voting for one party or another, one side or the other, might at least appear to compromise one's willingness to act as a pure instrument of the side you didn't vote for should it win.

There is a lot, I think, hidden in the spatial metaphor, the metaphor of space for social hierarchy in relation to the professions.

But there is also the question of a secret ballot. Would it make any difference if the issue were not voting in secret, but instead publicly leading a party while being part of one of these professions? Is the difference between voting in secret and publicly leading a difference of kind or degree? Why, in other words, does it seem to me that in each of these cases, voting is okay and indeed something one should do, whereas leading a political party is not?

It seems to me there is something worth teasing out of these four moral cases about profession, professional identity, citizenship in a country and the cosmopolitan ideal. Maybe.

Mark Steyn on why the UN is unreformable

The inimitable Mark Steyn on why the UN is unreformable, here, from the Spectator (London). Some very unwise people have the impression that Steyn is simply too funny to be intelligent. They are wrong. Hitchens once said to me in passing last summer that Steyn is "very tough-minded." Indeed.

Thanks to Scott Lahti for passing this along - along with the many too-nice things he has said on his blog about my writing for the Times Literary Supplement over the years. Thanks,l Scott.


There is no cure for the UN
Mark Steyn
Spectator (London), September 19, 2005

Kofi Annan is the very embodiment of transnationalism’s polite fictions: a dapper soft-spoken African, he seems the soul of moderation. Even when what he’s actually saying is highly immoderate, and even when he’s standing next to some disgusting dictator as he says it, he’s always a reliably decaffeinated Kofi.

So what if his brother and his son and his son’s best pal are under investigation in the UN oil-for-food scandal? So what if his secretariat got a $1.4 billion oil-for-food administration fee yet apparently couldn’t afford an auditor for the programme? So what if the head of Kofi’s budget oversight committee was too busy sluicing hundreds of thousands of dollars for himself to notice whether anybody else was on the take? So what if Saddam Hussein used the UN as a money-laundering operation to advance his geopolitical aims? Paul Volcker’s independent report has decided that, even though Mr Annan knew of the kickbacks since at least 2001, the secretary-general is guilty of sins of omission rather than commission. He and his deputy, Canada’s Louise Frechette, simply failed to notice the world’s all-time biggest scam exponentially expanding under their noses and with the enthusiastic participation of their closest colleagues.

Possibly they carelessly assumed it was just the usual nickel’n’dime UN corruption — like the child-sex rings and drug cartels that operate out of pretty well every peacekeeping operation. But the point is, while it may have happened on Kofi’s watch, he wasn’t watching, so that’s OK. Like OJ promising to hunt down the real killers, Mr Annan and Mme Frechette are committed to staying in their jobs and redoubling their efforts to spearhead the reforms the UN vitally needs. As the media ‘talking points’ distributed by the secretary-general to his underlings put it, ‘It is time to focus on the important reform agenda’ because ‘the inquiry’s findings underscore the vital importance of proposed management reforms’. And if we say ‘vital’ and ‘focus’ and ‘underscore’ often enough, this whole thing will fade away and it will be back to business as usual.

I, too, am in favour of Kofi Annan staying on, not just till his term expires in December 2006, but for five, ten years after that, if he wishes. If I was as eager for UN ‘reform’ as its supporters claim to be, I’d toss Kofi to the sharks and get some new broom in to sweep clean. But if, as I do, you believe 90 per cent of UN ‘reforms’ are likely to be either meaningless or actively harmful, a discredited and damaged secretary-general clinging to office is as good as it’s likely to get — short of promoting Didier Bourguet, the UN staffer in Congo and the Central African Republic charged with running a paedophile ring. A UN that refuses to hold Kofi Annan to account will be harder to pass off as a UN that represents the world’s ‘moral authority’, in Clare Short’s blissfully surreal characterisation.

What’s important to understand is that Mr Annan’s ramshackle UN of humanitarian money-launderers, peacekeeper-rapists and a human rights commission that looks like a lifetime-achievement awards ceremony for the world’s torturers is not a momentary aberration. Nor can it be corrected by bureaucratic reforms designed to ensure that the failed budget oversight committee will henceforth be policed by a budget oversight committee oversight committee. The oil-for-food fiasco is the UN, the predictable spawn of its utopian fantasies and fetid realities. If Saddam grasped this more clearly than Clare Short or Polly Toynbee, well, that’s why he is — was — an A-list dictator and they’re not.

Why was there an oil-for-fraud programme in the first place? Because back in the 1990s, having thrown a big old multilateral Gulf war and gotten to the gates of Baghdad, the grand UN coalition then decided against toppling Saddam. So, having shirked the responsibilities that come with having a real policy, America, Britain and the rest were in the market for a pseudo-policy. And where does an advanced Western democracy go when it wants a pseudo-policy? Why, the UN! Saddam correctly calculated that the great powers were overinvested in oil-for-food as a figleaf for their lack of will and he reasoned that in such an environment their figleaf would also serve as a discreet veil for all kinds of other activities. He didn’t game the system, he simply understood far better than Clinton and Bush, Major and Blair how it worked.

That’s the essence of transnationalism. For weeks now the Bush administration has been advised — by Mr Blair among others — that they should sign on to all the multilateral guff being peddled at this week’s so-called ‘High-Level Plenary Meeting’ because come on, it’s mostly a lot of feelgood blather, so where’s the harm? When it comes to identifying which transnational tumours metastasising across the global scene are benign, the Prime Minister isn’t your most reliable diagnostician. As I recall, the principal beneficiaries of the United Kingdom’s signature on the European Declaration of Human Rights were supposed to be British transsexuals, who were very excited about it for some reason or another. Instead, it turned out to be boom time for suspected Islamist terrorists, non-citizens but now serenaded by every London judge with a soothing chorus of ‘Undeportable, that’s what you are.’

Transnationalism is the mechanism by which the world’s most enlightened progressives provide cover for its darkest forces. It’s a largely unconscious alliance but not an illogical one. Western proponents of ‘sustainable consumption’ and some of the other loopy NGO-beloved eco-concepts up for debate in New York this week have at least this much in common with psychotic Third World thugocracies: both groups find it hard to win free elections, both regard transnational bodies as useful for conferring a respect unearned at the ballot box, and neither is unduly troubled by the lack of accountability in global institutions.

Those of us who believe that big government is by definition remote government and that therefore the pretensions to world government of the UN make it potentially the worst of all should, in theory, argue for withdrawal from the organisation. A neighbour of mine periodically pins one of his ‘US OUT OF UN NOW!’ bumper stickers to the back of my rig, and I’m happy to drive around with it. Outside a few college towns and effete coastal enclaves, I don’t believe there would be any political downside for candidates campaigning on a platform of pulling out of the UN entirely, and I’d encourage Republicans to do so if only as a way of unnerving those lazy pols like John Kerry who are prone to mindless transnationalist boosterism. But as a matter of practical politics I can’t see the US leaving the UN any time soon.

Can the US force the UN to reform itself? I mean really reform itself, not just get-Kofi-off-the-hook reform. Well, look at it this way: with hindsight, the UN was most effective when it was least effective — that’s to say, the four decades between Korea and the Gulf when the Cold War mutually assured vetoes at least accurately represented the global stand-off. Now, however, we’re in a unipolar world. And, as a result, the UN is no longer a permanent talking-shop for the world’s powers but an alternative power in and of itself — a sort of ersatz superpower intended to counter the real one. Consider the 85 yes-or-no votes America made in the General Assembly in 2003:

The Arab League members voted against the US position 88.7 per cent of the time.

The ASEAN members voted against the US position 84.5 per cent of the time.

The Islamic Conference members voted against the US position 84.1 per cent of the time.

The African members voted against the US position 83.8 per cent of the time.

The Non-Aligned Movement members voted against the US position 82.7 per cent of the time.

And European Union members voted against the US position 54.5 per cent of the time.

You can take the view of the Will Hutton school that this is proof of America’s isolation and that the United States now needs to issue a ‘Declaration of Interdependence’ with the world. Or you can be like the proud mom in Irving Berlin’s Great War marching song: ‘They Were All Out Of Step But Jim’. But what the figures really demonstrate is that the logic of the post-Cold War UN is to be institutionally anti-American. Washington could seize on Kofi Annan’s present embarrassment and lean hard on him to reform this and reorganise that and reinvent the other and, if they threw their full diplomatic muscle behind it, they might get those anti-US votes down to — what, a tad over 80 per cent? And along the way they’d find that they’d ‘reformed’ a corrupt dysfunctional sclerotic anti-American club into a lean mean functioning effective anti-American club. Which is, if they’re honest, what most reformers mean by ‘reform’.

Obviously, within those various blocs, America has many friends. But the regional voting structure of the UN means that even relatively well-disposed allies become less friendly when their voice is filtered through geographic groupings that prize solidarity over all. For example, Libya became chairman of the UN Human Rights Commission because it was felt to be Africa’s turn and Africa put up only one candidate and the European Union had agreed to vote as a bloc and they didn’t wish to be seen to be disrespecting Africa by voting against its preferred candidate, so they abstained. So, by filtering Britain’s voice through one transnational body (the EU) into another (the UN) to vote on the candidate of a third (the African Union), Her Majesty’s Government is now on record as having no objection to the world’s leading human rights body being headed by a one-man dictatorship that blows up American airliners in British airspace. It’s a good thing the UN has ‘moral authority’, because the United Kingdom certainly doesn’t. Thus, transnationalism artificially diminishes the voice of second-tier powers and artificially inflates basket-case psycho states.

Any real reform of the UN would start by dismantling the deeply unhealthy regional structure. Instead, reformers complain that the permanent Security Council membership excludes all of Africa and Latin America, and demand that Brazil and South Africa be brought on board as regional house captains. That would be a disaster. An India that sits alongside America as a fellow democracy, trading partner and beneficiary of the Britannic inheritance is one thing. An India that represents an invented power bloc defined by the increasingly outmoded constraints of geography would just be a vehicle for taking those 85 per cent negative votes up to the Security Council.

Yet we’re now being told that the United States is obstructing the 60th anniversary ‘full-blown relaunching’, as the Washington Post puts it, by impeding the expansion of the Security Council. One can only hope so. ‘Relaunching’ the UN in a fast-changing world is like trying to redesign a horse-and-buggy for a moon-shot. Take last month’s first Sino-Russian war games, a rare joint venture by the two non-Western members of the Big Five. Moscow may see an alliance with Beijing as its only hope of retaining world-power status. By 2020, when the agreement on the 4,000-mile Russian-Chinese border comes up for renegotiation, the Far East of the Russian Federation, containing 80 per cent of the country’s resources, will have been de facto settled by the Chinese.

That’s not a corner of the world anyone thinks about much right now, but it will look profoundly different in 15 years’ time. How likely are we — or, more to the point, Kofi Annan, Louise Frechette and co. — to be able to construct formal structures for a world just a decade and a half hence? Given the unlikelihood of getting it right, it’s preferable to stick with the second world war victory parade preserved in aspic. The existing Security Council’s ever more obvious obsolescence will be the best counterweight to the lazy assumption that transnationalism is the wave of the future.

So I hope that by the time you read this the deliberations at Turtle Bay are poised somewhere between paralysis and meltdown. The polite fictions of Kofi Annan really belong to the lost world of 10 September 2001. It was very agreeable if you were one of the bespoke chaps cruising from summit to summit — UN, EU, G8 — mediating the cares of the planet. And it was all terribly sophisticated, as sophisticated as an urbane Paris boulevardier from the fin de si├Ęcle, impeccably coiffed and coutured but riddled with syphilis. Since Osama bin Laden blew apart those polite fictions, the effective international relationships — America and Australia, America and India — have taken place without the construction of permanent secretariats. Let’s keep it that way. The best way to avoid having to ‘reform’ transnational bureaucracies is not to have them in the first place.

Julian Ku on the "third wave" of ATS suits

Hofstra international law professor and Opinio Juris contributor Julian Ku has posted a new paper, coming out in the Emory International Law Review, to SSRN, titled The Third Wave: The Alien Tort Statute and the War on Terrorism. It's a terrific paper - congratulations! - I have just finished reading it, and I do believe Professor Ku is quite on target. Here is the abstract from SSRN:

The Supreme Court's decision in Sosa v. Alvarez-Machain to keep the door ajar for lawsuits alleging violations of international law under the Alien Tort Statute (ATS) has important implications for the U.S. government's prosecution of the war on terrorism. Unlike "first wave" ATS lawsuits against other aliens, or "second wave" ATS lawsuits against multinational corporations, what I call the "third wave" of ATS lawsuits are directed at the U.S. government itself. This third wave has already manifested itself in ATS lawsuits arising out of U.S. mistreatment of prisoners held in Iraq, alleged mistreatment of detainees at Guantanamo Bay, and the rendition of suspected terrorists to third countries.

My goal in this symposium essay is neither to celebrate nor to condemn this coming wave of ATS litigation. Rather, my more modest task is to describe examples of these new ATS lawsuits, explain why the Sosa decision will not prevent such lawsuits, and to suggest how these lawsuits will highlight the role of the executive branch in the administration of international law by U.S. courts. As a doctrinal matter, the executive branch has a crucial, yet unexplored, role to play in the application of international law by domestic courts. The third wave ATS lawsuits will test the importance of this role.

Profile of Professor John Yoo

As Opinio Juris has noted, it is not often that law professors get front page write ups in papers like the Wall Street Journal. Professor John Yoo of Boalt Hall is profiled here (sub reqd.). The article notes that John is part of a new movement within the American legal academy of "sovereigntists" who are challenging the long-received liberal internationalist view of such places as the American Society of International Law. Not everyone is taking the intellectual challenge so well. I am not a sovereigntist in exactly the same sense, I believe, as John. If I understand his position correctly, he asserts sovereignty as its own value, whereas I believe sovereignty is a secondary value - a good because it makes possible or, more exactly, makes safe, another value, viz., democracy. I am a democratic sovereigntist because I am a democrat first, and sovereignty is valuable because it provides the power necessary to defend it. I'm not sure John would really disagree with that, but he is probably more of a foreign policy realist than I am, and in that sense more concerned to emphasize sovereignty for its own sake than I.

(John's work raises another question, however, not an international law one, but a question about the foreign policy power under the United States constitution and the scope of executive power and war power. Some of these questions came up, of course, in the questioning of Judge Roberts this past week by the Senate Judiciary Committee.)

(John has also been the subject of considerable personal attacks for his work in the Justice Department, over the so-called torture memos. I don't have a lot of patience with the personal attacks; I don't agree with all the conclusions of those internal documents by any means, but none of them seemed to me to warrant the level of invective directed at him. There are important questions that need to be answered about how individuals in various categories - Zarqawi, if ever captured, for example, who might well have information that could save many Iraqi lives versus the quite possibly innocent shepherd - should be treated as detainees and, no, the Torture Convention does not really answer them.)

Text of President Bush speech to UN General Assembly, September 14, 2005

Following is the full text of President Bush's speech before the 60th Annual United Nations General Assembly meeting on Wednesday, Sept. 14, 2005:

Mr. Secretary-General, Mr. President, distinguished guests, ladies and gentlemen, thank you for the privilege of being here for the 60th anniversary of the United Nations. Thank you for your dedication to the vital work and great ideals of this institution.

We meet at a time of great challenge for America and the world. At this moment, men and women along my country's Gulf Coast are recovering from one of the worst natural disasters in American history. Many have lost homes and loved ones and all their earthly possessions. In Alabama and Mississippi and Louisiana, whole neighborhoods have been lifted from their foundations and sent crashing into the streets. A great American city is working to turn the floodwaters and reclaim its future.

We have witnessed the awesome power of nature and the greater power of human compassion. Americans have responded to their neighbors in need, and so have many of the nations represented in this chamber. All together, more than 115 countries and nearly a dozen international organizations have stepped forward with offers of assistance. To every nation, every province and every community across the world that is standing with the American people in this hour of need, I offer the thanks of my nation.

Your response, like the response to last year's tsunami, has shown once again that the world is more compassionate and hopeful when we act together.

This truth was the inspiration for the United Nations. The U.N.'s founding members laid out great and honorable goals in the charter they drafted six decades ago. That document commits this organization to work to save succeeding generations from the scourge of war, reaffirm faith in fundamental human rights, and promote social progress and better standards of life and larger freedom. We remain committed to those noble ideals.

As we respond to great humanitarian needs, we must actively respond to the other great challenges of our time. We must continue to work to ease suffering and to spread freedom and to lay the foundations of lasting peace for our children and grandchildren.

In this young century, the far corners of the world are linked more closely than ever before, and no nation can remain isolated and indifferent to the struggles of others. When a country or a region is filled with despair and resentment, and vulnerable to violent and aggressive ideologies, the threat passes easily across oceans and borders, and could threaten the security of any peaceful country. Terrorism fed by anger and despair has come to Tunisia, to Indonesia, to Kenya, to Tanzania, to Morocco, to Israel, to Saudi Arabia, to the United States, to Turkey, to Spain, to Russia, to Egypt, to Iraq and the United Kingdom. And those who have not seen attacks on their own soil have still shared in the sorrow, from Australians killed in Bali to Italians killed in Egypt, to the citizens of dozens of nations who were killed on September the 11th, 2001, here in the city where we meet.

The lesson is clear. There can be no safety in looking away or seeking the quiet life by ignoring the hardship and oppression of others.

Either hope will spread or violence will spread, and we must take the side of hope. Sometimes our security will require confronting threats directly, and so a great coalition of nations has come together to fight the terrorists across the world. We've worked together to help break up terrorist networks that cross borders and rout out radical cells within our own borders. We've eliminated terrorist sanctuaries. We're using our diplomatic and financial tools to cut off their financing and drain them of support.

And as we fight, the terrorists must know the world stands united against them. We must complete the Comprehensive Convention on International Terrorism that will put every nation on record that targeting and deliberate killing by terrorists of civilians and noncombatants cannot be justified or legitimized by any cause or grievance.

And the world's free nations are determined to stop the terrorists and their allies from acquiring the terrible weapons that would allow them to kill on a scale equal to their hatred. For that reason, more than 60 countries are supporting the Proliferation Security Initiative to intercept shipments of weapons of mass destruction on land, on sea and at air. The terrorists must know that wherever they go, they cannot escape justice.

Later today the Security Council has an opportunity to put the terrorists on notice when it votes on a resolution that condemns the incitement of terrorist acts, a resolution that calls upon all states to take appropriate steps to end such incitement.

We also need to sign and implement the International Convention for the Suppression of Acts of Nuclear Terrorism so that all those who seek radioactive materials or nuclear devices are prosecuted and extradited wherever they are. We must send a clear message to the rulers of outlaw regimes that sponsor terror and pursue weapons of mass murder: You will not be allowed to threaten the peace and stability of the world.

Confronting our enemies is essential, and so civilized nations will continue to take the fight to the terrorists. Yet we know that this war will not be won by force of arms alone. We must defeat the terrorists on the battlefield, and we must also defeat them in the battle of ideas.

We must change the conditions that allow terrorists to flourish and recruit by spreading the hope of freedom to millions who have never known it. We must help raise up the failing states and stagnant societies that provide fertile ground for the terrorists. We must defend and extend a vision of human dignity and opportunity and prosperity, a vision far stronger than the dark appeal of resentment and murder.

To spread a vision of hope, the United States is determined to help nations that are struggling with poverty. We are committed to the Millennium Development Goals. This is an ambitious agenda that includes cutting poverty and hunger in half, ensuring that every boy and girl in the world has access to primary education, and halting the spread of AIDS -- all by 2015. We have a moral obligation to help others and a moral duty to make sure our actions are effective. In Monterrey in 2002, we agreed to a new vision for the way we fight poverty and curb corruption and provide aid in this new millennium. Developing countries agreed to take responsibility for their own economic progress through good governance and sound policies and the rule of law. Developed countries agreed to support those efforts, including increased aid to nations that undertake necessary reforms.

My own country has sought to implement the Monterrey Consensus by establishing the new Millennium Challenge Account. This account is increasing U.S. aid for countries that govern justly, invest in their people, and promote economic freedom.

More needs to be done. I call on all the world's nations to implement the Monterrey Consensus. Implementing the Monterrey Consensus means continuing on the long, hard road to reform. Implementing the Monterrey Consensus means creating a genuine partnership between developed and developing countries to replace the donor-client relationship of the past. And implementing the Monterrey Consensus means welcoming all developing countries as full participants to the global economy with all the requisite benefits and responsibilities.
Tying aid to reform is essential to eliminating poverty, but our work doesn't end there. For many countries, AIDS, malaria and other diseases are both humanitarian tragedies and significant obstacles to development. We must get poor countries access to the emergency lifesaving drugs they need to fight these infectious diseases through our bilateral programs and the global fund. The United States will continue to lead the world in providing the resources to defeat the plague of HIV/AIDS.

Today, America's working with local authorities and organizations in the largest initiative in history to combat a specific disease. Across Africa, we're helping local health officials expand AIDS testing facilities, train and support doctors and nurses and counselors, and upgrade clinics and hospitals. Working with our African partners, we have now delivered lifesaving treatment to more than 230,000 people in sub-Sahara Africa. We are ahead of schedule to meet an important objective providing HIV/AIDS treatment for nearly 2 million adults and children in Africa. At the G-8 at Gleneagles, Scotland we set a clear goal: an AIDS-free generation in Africa. And I challenge every member of the United Nations to take concrete steps to achieve that goal.

We're also working to fight malaria. This preventable disease kills more than a million people around the world every year and leaves poverty and grief in every land it touches. The United States has set a goal of cutting the malaria death rate in half in at least 15 highly endemic African countries. To achieve that goal, we pledge to increase our funding for malaria treatment and prevention by more than $1.2 billion over the next five years. We invite other nations to join us in this effort by committing specific aid to the dozens of other African nations in need of it. Together, we can fight malaria and save hundreds of thousands of lives and bring new hope to countries that have been devastated by this terrible disease.

As we strengthen our commitment to fighting malaria and AIDS, we must also remain on the offensive against new threats to public health such as the avian influenza. If left unchallenged, this virus could become the first pandemic of the 21st century. We must not allow that to happen. Today, I'm announcing a new international partnership on avian and pandemic influenza. The partnership requires countries that face an outbreak to immediately share information and provide samples to the World Health Organization. By requiring transparency, we can respond more rapidly to dangerous outbreaks and stop them on time. Many nations have already joined this partnership. We invite all nations to participate. It's essential we work together, and as we do so, we will fulfill a moral duty to protect our citizens and heal the sick and comfort the afflicted.

Even with increased aid to fight disease and reform economies, many nations are held back by another heavy challenge, the burden of debt. So America and many nations have also acted to lift this burden that limits the growth of developing economies and holds millions of people in poverty. Today, poor countries with the heaviest debt burdens are receiving more than $30 billion in debt relief.

And to prevent the buildup of future debt, my country and other nations have agreed that international financial institutions should increasingly provide new aid in the form of grants, rather than loans.

The G-8 agreed at Gleneagles to go further. To break the lend- and-forgive cycle permanently, we agreed to cancel 100 percent of the debt for the world's most heavily indebted nations. I call upon the World Bank and the IMF to finalize this historic agreement as soon as possible.
We will fight to lift the burden of poverty from places of suffering, not just for the moment but permanently. And the surest path to greater wealth is greater trade. In a letter he wrote me to in August, the secretary-general commended the G-8's work but told me that aid and debt relief are not enough. The secretary-general said that we also need to reduce trade barriers and subsidies that are holding developing countries back. I agree with the secretary- general.
The Doha Round is the most promising way to achieve this goal. A successful Doha Round will reduce and eliminate tariffs and other barriers on farm and industrial goods. It will unfair -- it will end unfair agricultural subsidies. It will open up global markets for services.

Under Doha, every nation will gain, and the developing world stands to gain the most. Historically, developing nations that open themselves up to trade grow at several times the rate of other countries. The elimination of trade barriers could lift hundreds of millions of people out of poverty over the next 15 years.

The stakes are high. The lives and futures of millions of the world's poorest citizens hang in the balance. And so we must bring the Doha trade talks to a successful conclusion.

Doha's an important step toward a larger goal. We must tear down the walls that separate the developed and developing worlds. We need to give the citizens of the poorest nations the same ability to access the world economy that people of wealthy nations have, so they can offer their goods and talents on the world market alongside everyone else. We need to ensure that they have the same opportunities to pursue their dreams, provide for their families, and live lives of dignity and self-reliance. And the greatest obstacles to achieving these goals are the tariffs and subsidies and barriers that isolate people of developing nations from the great opportunities of the 21st century.

Today I reiterate the challenge I had made before. We must work together in the Doha negotiations to eliminate agricultural subsidies that distort trade and stunt development, and to eliminate tariffs and other barriers to open markets for farmers around the world.

Today I broaden the challenge by making this pledge. The United States is ready to eliminate all tariffs, subsidies and other barriers to free flow of goods and services, as other nations do the same.

This is key to overcoming poverty in the world's poorest nations. It is essential we promote prosperity and opportunity for all nations.

By expanding trade, we spread hope and opportunity to the corners of the world, and we strike a blow against the terrorists, who feed on anger and resentment.

Our agenda for freer trade is part of an agenda for a freer world, where people can live and worship and raise their children as they choose. In the long run, the best way to protect the religious freedom and the rights of women and minorities is through institutions of self-rule, which allow people to assert and defend their own rights. All who stand for human rights must also stand for human freedom. This is a moment of great opportunity in the cause of freedom. Across the world, hearts and minds are opening to the message of human liberty as never before.

In the last two years alone, tens of millions have voted in free elections in Afghanistan, and Iraq, and Lebanon, and the Palestinian Territories, and Kyrgyzstan, and Ukraine, and Georgia. And as they claim their freedom, they're inspiring millions more across the broader Middle East. We must encourage their aspirations. We must nurture freedom's progress, and the United Nations has a vital role to play.

Through the new U.N. Democracy Fund, the democratic members of the U.N. will work to help others who want to join the democratic world. It is fitting that the world's largest democracy -- India -- has taken a leadership role in this effort, pledging $10 million to get the fund started. Every free nation has an interest in the success of this fund, and every free nation has the responsibility in advancing the cause of liberty.

The work of democracy is larger than holding a fair election;; it requires building the institutions that sustain freedom. Democracy takes different forms in different cultures, yet all free societies have certain things in common. Democratic nations uphold the rule of law, impose limits on the power of the state, treat women and minorities as full citizens. Democratic nations protect private property, free speech, and religious expression. Democratic nations grow in strength because they reward and respect the creative gifts of their people. And democratic nations contribute to peace and stability because they seek national greatness in achievements of their citizens, not the conquest of their neighbors.

For these reasons, the whole world has a vital interest in the success of a free Iraq. And no civilized nation has an interest in seeing a new terrorist state emerge in that country.
So the free world is working together to help the Iraqi people to establish a new nation that can govern itself, sustain itself and defend itself.

It's an exciting opportunity for all of us in this chamber. And the United Nations has played a vital role in the success of the January elections, where 8-1/2 million Iraqis defied the terrorists and cast their ballots. And since then, the United Nations has supported Iraq's elected leaders as they drafted a new constitution.

The United Nations and its member states must continue to stand by the Iraqi people as they complete the journey to a fully constitutional government. And when Iraqis complete their journey, their success will inspire others to claim their freedom; the Middle East will grow in peace and hope and liberty; and all of us will live in a safer world.

The advance of freedom and security is the calling of our time. It is the mission of the United Nations. The United Nations was created to spread the hope of liberty and to fight poverty and disease and to help secure human rights and human dignity for all the world's people. To help make these promises real, the United Nations must be strong and efficient, free of corruption, and accountable to the people it serves.

The United Nations must stand for integrity and live by the high standards it sets for others. And meaningful institutional reforms must include measures to improve internal oversight, identify cost savings and ensure that precious resources are used for their intended purpose. The United Nations has taken the first steps toward reform. The process will continue in the General Assembly this fall, and the United States will join with others to lead the effort.
And the process of reform begins with members taking our responsibility seriously. When this great institution's member states choose notorious abusers of human rights to sit on the U.N. Human Rights Commission, they discredit a noble effort and undermine the credibility of the whole organization.

If member countries want the United Nations to be respected -- respected and effective, they should begin by making sure it is worthy of respect.

At the start of a new century, the world needs the United Nations to live up to its ideals and fulfill its mission. The founding members of this organization knew that the security of the world would increasingly depend on advancing the rights of mankind, and this would require the work of many hands. After committing America to the idea of the U.N. in 1945, President Franklin Roosevelt declared: The structure of world peace cannot be the work of one man or one party or one nation. Peace is the responsibility of every nation and every generation.

In each era of history the human spirit has been challenged by the forces of darkness and chaos. Some challenges are the acts of nature; others are the works of man. This organization was convened to meet these challenges by harning (sic) -- harnessing the best instincts of humankind -- the strength of the world united in common purpose. With courage and conscience, we will meet our responsibilities to protect the lives and rights of others, and when we do, we will help fulfill the promise of the United Nations and ensure that every human being enjoys the peace and the freedom and the dignity our Creator intended for all.

Thank you.

(Source: Federal News Service)

Hitchens v Galloway

Kimberly A. Strassel of the WSJ reports here (sub reqd) on the debate between Christopher Hitchens (photo) and the utterly vile George Galloway, MP on the Iraq war. Galloway, of course, is a thug who should be in jail.

Hitchens, true to form, "came armed with facts, figures and inescapable logic. He kept to the formal debate style - "we on this side of the House hold ..." - and gently waved down those of his supporters who would heckle Mr. Galloway. He picked apart his opponent's positions and did it with wit and humor."

WSJ editorial on UN reform, Volker report, and Bolton edits

The WSJ editorial of September 16, 2005, A14, "Another U.N. Charade," on the conjunction of the UN reform summit of Septmeber 14-16, 2005, the latest installment of the Volker reports on the oil-for-food scandal, and the efforts by John Bolton to revise the final Outcome document. The editorial notes correctly that with the exception of that United States, pretty much everyone would like simply to forget about the oil-for-food scandal, for the simple reason that they mostly all, and particularly France and Russia, took enthusiastic part. Where the editorial goes slightly wrong is in thinking that this is "corruption" in any ordinary sense. France, for example, does not think of its participation in the scheme as corruption - it thinks of it as foreign policy and regards the United States as merely finding a highfalutin' tone by which to pursue its own interests. No one - and I mean no one, not the Canadians, the Swedes, the Swiss, the usual repositories of accountability - cares about managerial reform of the UN or accountability for its funds except for the United States - everyone else either comes from someplace where that is normal business practice or, if from someplace like Switzerland or Norway, as the price you pay for having a "representative" organization. The demand for fiscal rectitude is seen merely as US bullying. As for the UN itself, well, as someone (Mark Steyn? someone) has said, oil-for-food is the United Nations, not an exception - it is how the UN conducts its business, by covert deals, hidden promises, enrichment of countries as well as individuals, patronage, and so on.


Another U.N. Charade
Wall Street Journal
Editorial page, September 16, 2005; Page A14

The United Nations world summit that has clogged Manhattan traffic arteries for the past three days has a way of clogging minds as well. So let's think carefully about exactly what, other than a commuter's nightmare, this latest exercise in global diplomacy has achieved.

On the plus side, the summit seems to have done no real harm: It has not further extended the authority and reach of the U.N., it has not foisted another "protocol" or "convention" for the Senate to consider, and it has not established another significant seven-letter acronym -- er, agency -- for U.S. taxpayers to pronounce, and especially to fund.

That may be a negative accomplishment, but it is certainly a real one, especially as Secretary General Kofi Annan had envisioned the summit as an opportunity to expand membership in the Security Council, expand his own powers and require rich countries to pony up additional billions in foreign aid, among other brainstorms. It took new U.S. Ambassador to the U.N. John Bolton seven weeks of dogged negotiation to make sure none of that happened, and for this he deserves credit.

On the other hand, the diplomatic price the U.S. paid for a no-harm-done outcome was a no-reform result. It has not been 10 days since Paul Volcker delivered the devastating conclusions of his 847-page Oil for Food inquiry and his call for the complete overhaul of U.N. management practices. Yet already his report is being treated as a historical artifact of no particular relevance. In the U.N.'s strange universe, it's as if Oil for Food never even happened.

For example, the so-called Outcome Document to which world leaders agreed at the summit specifically "[commended] the Secretary General's previous and ongoing efforts to enhance the effective management of the United Nations." Yet Mr. Volcker's report found, among other things, that Mr. Annan and his staff knew of Saddam Hussein's kickback schemes in Oil for Food but never reported the problem, much less took steps to address it. If this is what the international community thinks is commendable behavior, imagine what sorts of management standards it believes are merely tolerable.

Equally unhelpful have been some of the comments by Secretary of State Condoleezza Rice, who recently gushed to the New York Times that "I've never had a better relationship with anyone than I've had with Kofi Annan."

Assuming (we hope) that Ms. Rice is being insincere, her calculation seems to be that American diplomatic capital should not be spent seeking Mr. Annan's departure, and that U.S. interests at the U.N. are best served by a politically wounded, and thus presumably beholden, Secretary General. She might want to rethink that assumption in light of some of Mr. Annan's recent comments, such as blaming "spoilers" and "governments that were not willing to make concessions" for the failure of the summit. Chief among the governments not willing to "make concessions" was the United States, an implication lost on nobody.

The biggest loser here is the U.N. itself. We have never accepted the view -- increasingly common in some liberal precincts -- that America should conduct no foreign policy in the absence of U.N. benediction, much less that U.N. agencies and offices ought to take the lead role in maintaining international security and promoting economic development. But as long as the U.N. exists, we'd like to think that it can, in limited circumstances, be a useful instrument of U.S. foreign policy, provided the organization is politically credible and relatively effective. This was the original hope for Oil for Food; instead, it became the emblem of the U.N.'s incompetence and corruptibility.

What the outcome of this summit makes clear is that the U.N. patient will not heal itself. On the management side, the Volcker report vividly describes the organization's implacable resistance to reform, for reasons that are both cultural and institutional. Politically, Mr. Annan's original reform proposals were both overambitious and wrongheaded, and while their demise is nothing to be regretted, the fact that the member states could not agree to anything better casts doubt on the possibility that changes will be achieved through international negotiation.

We have a modest proposal of our own. The Bush Administration should insist that the U.N. bureaucracy be placed under a five-year trusteeship to implement the management reforms suggested by the Volcker report. The trustees should be a handful of real international worthies -- Mr. Volcker and his fellow commissioners Richard Goldstone of South Africa and Mark Pieth of Switzerland would fit the bill -- whose probity and good judgment are beyond dispute. The U.S. cannot dictate such terms to the U.N., but Congress has the power to withhold American funding until such a trusteeship is established. We hope it does so.

This is tough love, we know. But the people who should like this idea the most are those who claim to be fervent believers in the U.N. and its multilateral purposes. They can't possibly be proud of the spectacle on display at Turtle Bay during the past two weeks.

Economist on UN reform after summit meeting

The Economist's view of UN reform following the September 14-16, 2005 global summit and adoption of the final Outcome document. (I have earlier posted the Economist's summary of that document.) The article is from the September 17-23, 2005 issue (sub reqd.). Excerpts:

United Nations reform:
Better than nothing -
But hardly

Sep 15th 2005
From The Economist print edition, September 17-23, 2005

SOON after his appointment as secretary-general of the United Nations in 1997, Kofi Annan lamented that he was being accused of failing to reform the world body in six weeks. “But what are you complaining about?” asked the Russian ambassador: “You've had more time than God.” Ah, Mr Annan quipped back, “but God had one big advantage. He worked alone without a General Assembly, a Security Council and [all] the committees.”

Recounting that anecdote to journalists in New York this week, Mr Annan sought to explain why a draft declaration on UN reform and tackling world poverty, due to be endorsed by some 150 heads of state and government at a world summit in the city on September 14th-16th, had turned into such a pale shadow of the proposals that he himself had put forward in March. “With 191 member states”, he sighed, “it's not easy to get an agreement.”

Most countries put the blame on the United States, in the form of its abrasive new ambassador, John Bolton, for insisting at the end of August on hundreds of last-minute amendments and a line-by-line renegotiation of a text most others had thought was almost settled. But a group of middle-income developing nations, including Pakistan, Cuba, Iran, Egypt, Syria and Venezuela, also came up with plenty of last-minute changes of their own. The risk of having no document at all, and thus nothing for the world's leaders to come to New York for, was averted only by marathon all-night and all-weekend talks.

The 35-page final document is not wholly devoid of substance. It calls for the creation of a Peacebuilding Commission to supervise the reconstruction of countries after wars; the replacement of the discredited UN Commission on Human Rights by a supposedly tougher Human Rights Council; the recognition of a new “responsibility to protect” peoples from genocide and other atrocities when national authorities fail to take action, including, if necessary, by force; and an “early” reform of the Security Council. Although much pared down, all these proposals have at least survived.

Others have not. Either they proved so contentious that they were omitted altogether, such as the sections on disarmament and non-proliferation and the International Criminal Court, or they were watered down to little more than empty platitudes. The important section on collective security and the use of force no longer even mentions the vexed issue of pre-emptive strikes; meanwhile the section on terrorism condemns it “in all its forms and manifestations, committed by whomever, wherever and for whatever purposes”, but fails to provide the clear definition the Americans wanted.

Both Mr Annan and, more surprisingly, George Bush have nevertheless sought to put a good face on things, with Mr Annan describing the summit document as “an important step forward” and Mr Bush saying the UN had taken “the first steps” towards reform. Mr Annan and Mr Bolton are determined to go a lot further. It is now up to the General Assembly to flesh out the document's skeleton proposals and propose new ones. But its chances of success appear slim.

NYT on Bolton post UN reform summit meeting

Warren Hoge has this article, "Bolton and UN are still standing after his first test," in the Sunday, September 18, 2005 NYT on evaluations of John Bolton's performance by other participants in the UN summit meetings of September 14-16, 2005. The article makes note of the number of ambassadors who found him essentially a tough negotiator, not the nemesis made out by, among other venues, the NYT, not a squishy world federalist of course, but essentially a tough negotiator. Excerpts:

UNITED NATIONS, Sept. 17 - When President Bush greeted Secretary General Kofi Annan on Wednesday, he gestured toward John R. Bolton, the United States ambassador, and asked, "Has the place blown up since he's been here?"

The internal United Nations television sound boom that picked up the jest did not record any response from the Secretary General, who simply smiled.

But the same question, in less explosive form, has been posed repeatedly around the United Nations since the Aug. 1 arrival of Mr. Bolton, who famously once said that the headquarters building was filled with such sloth and incompetence that it would not matter if 10 of its 38 floors were lopped off.

In response, his fellow ambassadors say they are impressed with Mr. Bolton's work ethic, his knowledge of his brief, his clarity in declaring it and his toughness as a negotiator.

In the three weeks of intensive negotiations on the document approved Friday night by the 153 presidents, prime ministers and monarchs here for the summit conference on global poverty and United Nations reform, he was in his chair at 8 a.m. and often still there when the meetings adjourned at 1 a.m.

Some delegates, however, faulted him for emphasizing what the United States would never accept, saying it ended up encouraging more active opposition to American positions.
They complained that he devoted too much time to talking about the American "red lines" and about the red pen he had in his pocket at the ready.

Those diplomats who feared that Mr. Bolton came with devil's horns thought they saw them spring forth three weeks ago when he submitted more than 400 substantive amendments and deletions and ordered up a line-by-line renegotiation of the summit document.

One of the recommendations was to eliminate all mention of a series of antipoverty measures called the millennium development goals.

The surprise attack on a cherished standard sent shock waves across the United Nations where officials had grown hopeful that the Bush administration's hostility to the United Nations had significantly lessened, particularly after supportive comments from Secretary of State Condoleezza Rice and State Department opposition to calls for the United States to withhold its United Nations dues.

A week later, the phrase was restored at Ms. Rice's direction, and on Wednesday, President Bush declared in his speech to the General Assembly, "We are committed to the millennium development goals."

So a question arose about whether Mr. Bolton had been carrying out the traditional mission of executing State Department policy or originating his own more assertive view.

R. Nicholas Burns, under secretary of state for political affairs, denied in an interview that there was any disconnect with Washington, and he noted that he had been in touch with Mr. Bolton every day.

"We set out from the month of April a very well-defined set of objectives as to what we wanted to achieve by the September summit," Mr. Burns said. "The policy was consistent, and when John became ambassador, he was fully involved in that policy and very much represented the views of our government."

John G. Ruggie, a professor of international relations at Harvard and a former under secretary general for planning, said he thought Mr. Bolton's approach had emboldened opponents of American priorities, like reforming the United Nations management structure to give more power and flexibility to the Secretary General.

"After Bolton's bombshell, they were able to make the case that this is why we have to stand firm, because if we give great discretionary authority to the Secretary General, there is a danger that the Americans will roll over him, and behind him always stands the Congress willing to withhold funding," he said.

Mr. Bolton said his purpose in calling for a line-by-line renegotiation was to avoid having a text by "nameless, faceless textwriters," a reference to the writing staff of the General Assembly president, Jean Ping of Gabon.

But in the end such a text proved to be the only way to gain consensus. Three weeks of wrestling with the language had left a document on Tuesday morning with 27 unsolved issues and 149 phrases in brackets, meaning that they were still in dispute.

A decision was made to present the ambassadors with a final version refined by Mr. Ping, and it was that text that the General Assembly endorsed Tuesday night, just hours before the arrival of the world leaders.

Much of the positive reaction to Mr. Bolton has come from how he did not live up to his negative reviews.

"People were very cautious, to say the least, because of his reputation as a tough guy who didn't like the U.N." said Abdallah Baali, the ambassador of Algeria, who said he knew Mr. Bolton from working with him in Africa. "In fact, I was the only one who said that Bolton was an intelligent man who could be creative and constructive and wouldn't go around bullying delegations."

Instead of strong-arming delegations, Mr. Bolton won points for glad- handing them, making it a point to make contact with all 32 envoys who participated in the talks.

"I was struck by this almost hysterical notion of what having Bolton in the room would mean and how that would work out," said a European ambassador, who said he could comment on a colleague only anonymously.

"Quite frankly," he said, "not even one-third of what was feared about John Bolton, his style, his approach, the way he would work, actually came through in the room. All I saw was an ambassador who did his work and did it well."

Saturday, September 17, 2005

Mary Ann Glendon on foreign law in US courts

Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, is, among many other things, one of the leading comparative law scholars in the United States. (And friend and mentor to me, I add with pleasure.) I was therefore especially interested in seeing her views on a question much considered on this blog, the place, if any, of foreign law in US constitutional adjudication. The occasion for Professor Glendon's was the question Senator Kyl put to Judge Roberts on whether such citation was appropriate; as noted in an earlier post, Judge Roberts said no, for reasons of democratic theory and constraint of the judiciary. The venue was the opinion page of the WSJ, on Friday, September 16, 2005, "Judicial Tourism: What's wrong with the U.S. Supreme Court citing foreign law?" Read it here.

Judge Roberts' view coincides with my own. Professor Glendon has taken a more nuanced, slightly more middle view - title of the article notwithstanding. She firmly rejects the use of foreign law simply to endorse one's judicial predilections, for all the reasons noted by Justice Scalia and many others. Yet at the same time, she observes that even such a conservative as Chief Justice Rehnquist cited foreign law. "Contrast the responsible use," Professor Glendon says, "made of foreign law by Chief Justice William Rehnquist in Washington v. Glucksberg, to support Washington state's legislative prohibition of assisted suicide in an opinion noting that in "almost every state--indeed, in almost every western democracy--it is a crime to assist a suicide."

That is, Professor Glendon draws an important distinction between using foreign law to support the judgment made by a legislature in America, and foriegn law used to supplant and reject it. Comparativism, she says, can be an important element of buttressing what democratic majorities have endorsed, but it is quite a different story to use foreign law - and, she adds, social science - to strike it down, which is what the Court did in Roper v Simmons. I myself am not prepared to go that far - because I believe the element of democratic sovereignty should be more powerful than that, even to preclude using it in support of legislative propositions - the legislature might want to discuss and learn from and evaluate foreign law and cases, but that is different from the courts so doing. Nonetheless, this is a very subtle, graceful point from someone I wholeheartedly admire.


Judicial Tourism:
What's wrong with the U.S. Supreme Court citing foreign law.

Friday, September 16, 2005 12:01 a.m.
Wall Street Journal

References to foreign law in Supreme Court opinions have become controversial. Nevertheless, it was startling when Sen. Tom Coburn suggested in the Roberts confirmation hearings that justices who cite foreign authority might deserve impeachment. At first glance, it is hard to see why these side-glances at what other countries do have provoked such alarm. True, the references have increased somewhat, but they remain rare, and no one suggests that the court has directly based any of its interpretations of the Constitution on foreign authority.

As the issue was framed recently in a debate between Justices Stephen Breyer and Antonin Scalia, it comes down to this: The former says that if a judge abroad has dealt with a similar problem, "Why don't I read what he says if it's similar enough? Maybe I'll learn something." Yet the latter would exclude such material as wholly without bearing on the meaning of the Constitution; and quite apart from originalism, the different political, constitutional, procedural and cultural contexts in other nations drastically limit its relevance. Justice Breyer counters that the experience of others "may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem."

The Breyer view may sound sweetly reasonable; but when one looks at the cases where foreign law has figured prominently, it is evident that the practice is more problematic than proponents have let on. Earlier this year, in Roper v. Simmons, a 5-4 majority struck down the death penalty as it applied to persons over 15 and under 18. Justice Anthony Kennedy stated for the court that "the overwhelming weight of international opinion [is] against the juvenile death penalty," and that "the opinion of the world community, while "not controlling our outcome, does provide respected and significant confirmation for our own conclusions." In its effort to delegitimate state laws in question, the Roper majority, including Justice Breyer, not only reached out to "international opinion," but selectively cited various social science materials.

There is, of course, no such thing as a "world community." As Eleanor Roosevelt and her fellow drafters of the Universal Declaration of Human Rights well understood, universal rights are premised on the acceptance of a legitimate pluralism in forms of freedom. Human rights become real only when brought to life in concrete cultural settings. In our system, rights are protected not only by courts, but by the structure of our government--designed to give us citizens a say in the kind of society we wish to bring into being, limited only by constitutional text and tradition. But neither our design for government nor our model of judicial review has been widely copied. "International opinion" usually means the opinions of likeminded judges, academics and journalists who wish to use the courts to impose their vision of the good society.

In Roper, the absence of an American consensus on the death penalty prompted Justice Sandra Day O'Connor to dissent. Though not averse to consulting foreign law, she could "assign no such confirmatory role to the international consensus described by the Court." The majority had simply substituted its own "independent moral judgment" for the judgments of many state legislatures that juries are capable of determining whether the youth of a murderer should be taken into account in the penalty phase.

The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective. They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state. With reason, Justice Scalia accuses them of "looking over the heads of the crowd and picking out their friends."

What has been overlooked in these debates is the crucial difference between the legitimate use of foreign material as mere empirical evidence that legislation has a rational basis, and its use to buttress the court's own decision to override legislation. Take Lawrence v. Texas, the decision striking down criminal penalties for homosexual sodomy, where Justice Kennedy, joined by Justice Breyer, wrote, "The right petitioners seek . . . has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent." The remarkable implication is that it is up to our legislatures to justify a different view of human rights from that accepted elsewhere. This gives short shrift to the fundamental right of Americans to have a say in setting the conditions under which they live--the right that is at the very heart of our unique democratic experiment. Contrast the responsible use made of foreign law by Chief Justice William Rehnquist in Washington v. Glucksberg, to support Washington state's legislative prohibition of assisted suicide in an opinion noting that in "almost every state--indeed, in almost every western democracy--it is a crime to assist a suicide."

The importance of the distinction between these two modes of use cannot be exaggerated. It is not only a question of respecting the separation of powers. Those who believe the Washington legislature got it wrong can work to change the law through the ordinary democratic processes of persuasion and voting. But in the U.S., unlike in countries whose constitutions are easier to amend, the court's constitutional mistakes are exceedingly hard to correct. The unhealthy ripple effects of judicial adventurism are many: Legislatures are encouraged to punt controversial issues into the courts; political energy, lacking more constructive outlets, flows into litigation and the judicial selection process.

Few judges have understood the distinction between legitimate and problematic uses of secondary authorities so well as the late Henry Friendly, one of the most respected judges never to sit on the Supreme Court. In the 1970s, when judicial citation of social science materials was being hotly debated, Judge Friendly defended their use, but cautioned that when judges use social science or foreign material to substitute their own judgment for that of the legislature, their legitimacy is at its lowest ebb. For all who hope the next Supreme Court justice will possess interpretive skill and respect toward authoritative sources of law, it is an encouraging sign that John Roberts received his first lessons in judging as law clerk to Henry Friendly.

(Ms. Glendon is Learned Hand Professor of Law at Harvard Law School.)

John Bolton on UN reform - WSJ interview

This article from the WSJ, Saturday, September 17, 2005, by Bret Stephens, summarizes a September 6 interview with John Bolton.

Perhaps most interesting with respect to the UN reform final Outcome Document is how Bolton describes how and why he issued the hundreds of supposedly last minute changes. As he says, American diplomats had been feeding these changes into the "facilitator process" only to have them disappear without reaction. The process was fundamentally aimed at facilitating what Annan had in mind in the first place with a veneer of negotiation and discussion. Bolton broke open American disagreement by sending a "Dear Colleague" letter to all the UN ambassadors from all countries, explaining the American positions accompanied by American proposals - in effect he forced through not the American position as such, but instead forced the opaque, backroom process actually to negotiate - which was what senior UN people had been seeking to avoid all along.

For that, Bolton has caught no end of grief from bien pensant opinion, in the US and abroad.


So what does Mr. Bolton intend to do about the bureaucracy? He wants to rationalize the way it works, eliminate duplication, insist on better oversight, apply some American muscle to make that happen: "We can't be shy when we're giving 22% of the base budget of the United Nations from making clear we have strong feelings about this."

His other way of dealing with the bureaucracy is to talk right past it. Prior to his arrival in New York on Aug. 1, the U.S. had been struggling to make its views known on the so-called Outcome Document--a statement of U.N. goals, methods and principles envisioned as a kind of new U.N. charter. The U.N. had arranged an opaque "facilitation" process to get just the document it wanted.

"We had been consistently making very detailed comments to the facilitators," explains Mr. Bolton, waving a marked-up document predating his arrival. "The problem was the facilitators were not taking our changes. So what I did was write a 'Dear Colleague' letter to all 190 missions. I laid out our general principles, took them through the changes we were proposing, and then showed them the kind of line-by-line changes we were going to make."

All in all, Mr. Bolton's changes numbered in the hundreds. "That's what diplomats do," he says. "When you have disagreements you sit down and negotiate. That's not what we were doing in the facilitator process."

This brings Mr. Bolton to his second front in the struggle for U.N. reform. "A lot of what we have in mind when we talk about U.N. reform is not just better management practices; we're also talking about the conduct of member governments. . . . The U.N. is an international organization and its member governments need to hold the Secretariat accountable."

There are two difficulties here, however. First, member governments have shown little or no interest in a well-functioning U.N. bureaucracy--and not a little interest in one that remains dysfunctional and corrupt. Indeed, the main reason the Oil for Food scam grew so vast and lucrative is that countries such as China, France and Russia tacitly conspired with U.N. bureaucrats to turn a blind eye to Saddam Hussein's abuses and avail themselves of his favors.
The second difficulty is ideological. Throughout our interview, Mr. Bolton speaks repeatedly of "old thinking," "age-old controversies" and "decades-old concepts." One such concept is the U.N.'s goal of getting rich countries to spend 0.7% of their GDP on official development assistance. "The levels of ODA assistance don't necessarily tell you anything about the effectiveness of the development policies of the recipient country," he says. "The main thing they need is sound economic policy domestically, not hostile to foreign investment, open to foreign trade and open to international markets."

Mr. Bolton's logic is compelling, especially given how much of past Western largesse to the Third World ended up in numbered Geneva bank accounts. But there's a hiccup: The rest of the world is besotted by 0.7%. The nonaligned movement insists on 0.7% as the price of agreeing to "reform," for reasons that are well-comprehended. The Europeans also like it, in part because some of the smaller countries actually approach the target, in part because it is a handy way of scoring the U.S. (ODA: 0.16%) for its alleged stinginess. Mr. Bolton says it's "fantasy" to think countries are going to agree to what they do not agree with, as the U.S. does not agree with 0.7%. Yet when a fantasy takes place in fantasyland--that is, when the U.N. talks about 0.7%--it acquires a kind of plausibility and even the force of necessity, like a magic broom in a Harry Potter novel.

In other words, it remains to be seen whether it isn't Mr. Bolton who turns out to be the fantasy here, while the U.N. perdures as it has for 60 years and through countless "reform" bids. That's certainly one conclusion to draw from the results of this week's U.N. summit. The Outcome Document to which the administration eventually acquiesced crosses no American red lines: "The main thing about this document is that it's not as bad as it could have been," says a senior administration official. But it's easy to imagine Mr. Bolton gagging over much of it. On management reform, for instance, the document "commends the Secretary General's previous and ongoing efforts to enhance the effective management of the United Nations." Apparently, the Volcker report has already been forgotten.

In our interview, Mr. Bolton insists that the current document is just the beginning: "Reform is not a one-night stand," he says. "Reform is forever." It's a good line, and there can be no doubt that while John Bolton remains U.S. ambassador--he has 17 months to go--he'll continue to roll the reform rock up the U.N. mountain. There's a myth about that. It inspires admiration for the hero. It does not inspire hopefulness about the outcome.

John Bolton is Sisyphus in the Twilight Zone.

(Mr. Stephens is a member of The Wall Street Journal's editorial board.)

Friday, September 16, 2005

UN Reform - Text of Final Outcome Document

Here is the text of the final outcome document, as approved by the General Assembly. Via the very useful documents index page at Global Policy Forum.

Tuesday, September 13, 2005

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:

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.

The Washington Post story is here:

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."


The Guardian story is here:

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

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."

The NY Times story is here:

September 14, 2005 NYT

U.N. Adopts Modest Goals On Reforms and Poverty


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.

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

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.


``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
Last Updated: September 13, 2005 18:56 EDT

And here is the Reuter's report.