UNESCO study on the Migrant Workers Convention (ICRMW) in Europe

While I am on the subject of shamelessly plugging my own work, I might as well mention this report, commissioned by UNESCO and co-authored by myself and Ryszard Cholewinski, on the prospects for ratification of the ICRMW. Here's the blurb:

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the most important international treaty on the rights of migrants, has not yet been ratified by any European country. This report analyzes the reasons behind the non-ratification. It presents the findings of detailed, UNESCO-commissioned reports into the status of the Convention in seven countries: France, Germany, Italy, Poland, Spain, the United Kingdom and Norway. Based in part upon interviews with major migration stakeholders in each country, this study addresses issues such as general awareness of the Convention, political or parliamentary action with regards to it, and the main obstacles to its ratification. It also examines the Convention in relation to the highly developed legal and political system of the European Union overall. Finally, it offers recommendations for future action to increase support for the ratification of the Convention.

Any and all constructive comments welcome!

New volume on international migration law

This volume, International Migration Law: Developing Paradigms and Key Challenges, edited by Ryszard Cholewinski, Richard Perruchoud and myself, has just been published by Asser Press, and was launched last Thursday at the Georgetown University Law Center.

The volume looks to provide a comprehensive overview of the "field" of international migration law, developing some key themes identified in a 2003 collection edited by Chetail and Aleinikoff, entitled Migration and International Legal Norms, and also indentifying some areas of emerging significance. It consists in six broad sections: state sovereignty and responsibility (including chapters on migration-related aspects of terrorism legislation, detention, and multiple nationality); trade and labour migration (with contributions on, amongst others, GATS Mode 4 and remittances); forced migration (looking at the law relating to refugees and internally displaced persons, and the compensation claims tribunals); human rights (with chapters on migrant workers, migrant women, trafficking and statelessness); regional free movement regimes (in Europe, Africa, South America and the Caribbean); and emerging issues (informal cooperation mechanisms, biometrics and the new EU Borders Code). It brings together works both by established academics, practitioners and younger scholars who have already made a contribution in their respective fields. It will, we hope, be both accessible to students and non-lawyers alike, whilst also being substantial enough to be of use to academics and practitioners already expert in their fields.

Available now in all good bookshops! Well, on Amazon, anyway...

Should the Peace Nobel prize go to politicians?

I do not think so. To select a man that represents a party is never a good idea. Al Gore, some may say, defends an environmentalist agenda, not a party.

First that agenda is not based on rock but on sand. It may turn out to be solid sand or friable rock, but we do not really know for sure.

Second, Gore is still eligible to run for the US presidency. This may not be realistic, but a small window remains open. I find it less than desirable to openly support someone who may still have big personal/political interests.

Finally, it is unclear what are the real merits of Al Gore. Is he a good movie director/actor? Well then, he already got an Oscar for that. Is he making ground-breaking scientific discoveries? No we can set this aside. Is he communiticating efficaciously an important political message? Yes! And so what? That is the bread and butter of all good politicians. It does not follow that they deserve a Nobel prize for that reason

Natalia Alvarez, fields of work and research interests

I would like to introduce myself to the bloggers. My name is Natalia Alvarez and I am currently working as lecturer at University of Aberdeen, Scotland. My field of interest are international law, legal theory and human rights. I am researching in the field of violence, legal subject and international law, and I am also participating in a research project on indigenous peoples in Latin- America. My approach to international law is "critical" in the sense of focusing in the unnamed angles of the discipline. These elements can be concepts (violence) peoples (indigenous peoples, women) or places ( Latin-America, Africa) If you are currently working in any of these aspects, I will be happy to hear from you.

Me gustaría presentarme a todos y todas los que participáis de una u otra manera en este blog. Mi nombre es Natalia Alvarez y trabajo como profesora en la Universidad de Aberdeen, Escocia. Estoy interesada en el ámbito del derecho internacional, teoría jurídica y derechos humanos. Mi trabajo de investigación se centra en los aspectos de subjetividad jurídica, violencia y derecho internacional, y en estos momentos estoy colaborando en un proyecto de investigación sobre pueblos indígenas en América Latina. Mi aproximación al derecho internacional es "critica" en el sentido en el que implica una referencia a los aspectos no-nombrados (o anónimos, si lo preferís) de la disciplina. Estos aspectos pueden ser conceptos ( violencia) personas ( pueblos indígenas o mujeres) o lugares ( América- Latina o África) Si estas trabajando en estas áreas, tus sugerencias o aportaciones son bienvenidas.

Welcome to Natalia Alvarez, our new blogger!

Natalia is Lecturer in Law at Aberdeen University, Scotland, UK.

She specializes in International Legal Theory and is particularly interested in Human Rights issues in South America.

She brings a wider perspectives on the Americas than we previously had. In addition, she brings linguistic diversity as she will contribute both in English and Spanish.

New Vest for Old Blog

Hope you like this new vest for our blog. Any feedback is welcome!

Scottishprudence...

... is a blog on Jurisprudence based in Scotland.
Worth having a look for those of you who are interested in legal theory and various
other scholarly issues.

Gordon Brown's New Clothes

Apologies to all our readers for the long summer break due to logistic problems for most of us.

Let's go back to business with a very interesting piece on Gordon Brown's real identity as a politician by Jonathan Freedland on the NYRB.

Gordon, after his first 100 days in power, emerges as a skillfull prime minister who has grand plans on domestic and International politics.

Personally, I have no doubt about his policy skills. The open question which is tellingly not addressed concerns the place of the UK in Europe. More to come on GB's views on Europe...

Constitutional Dilemmas

is now available in the best bookshops

Brave Serbian Judges!

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

Milan on Top

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

Mickey goes fundamentalist...

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

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

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

2007 UK Law School Rankings

This is the Times good universities ranking:


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

This is the Guardian's Ranking:


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

Sarkozy Wins.

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

French Elections: A Preamble

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

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

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

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

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

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

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

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

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

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

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

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

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

Scottish Elections: the chaos wins

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

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

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

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

Major blow to diplomatic assurances/torture memoranda

To return to an issue that I have blogged on previously, the controversial policy of the UK Government of signing "memoranda of understanding" with states suspected of carrying out or ignoring torture of detainees has been dealt a significant blow with the decision today by the Special Immigration Appeals Commission that two terror suspects that were scheduled for deportation to Libya must not be sent back there. The judgement in the case of DD and AS v. The Secretary of State for the Home Department, available in full here, although not condemning outright such agreements in the abstract, held that the particular memorandum of understanding between the UK and Libya does not provide enough safeguards to allow the UK to fulfil its obligations under Art. 3 ECHR (the prohibition of torture). The crucial passage from the judgment reads as follows (para. 428):

Although we accept that the MOU and other assurances have been given in good faith by Libya, and that there is no probable risk of a breach of Article 3 ECHR were the Appellants to be returned, there remains a real risk that that could happen. That is because there is too much scope for changes to happen, for things to go wrong, and too little scope for a breach of Article 3 to be deterred or for acts which might lead to a breach of Article 3 to be remedied in time, essentially through effective monitoring. There is also a real risk that the trial of the Appellants would amount to a complete denial of a fair trial. We do not exclude the possibility that the SSHD’s case for their deportation could be strengthened over time.

A number of important points can be gleaned from that paragraph alone. Firstly, there need not be any mala fides on the part of the potential receiving state for a memorandum of understanding to be found insufficient to avoid responsibility under Art. 3 ECHR. Secondly, the level of risk necessary that such assurances would be violated is set commendably low: improbable, but genuine. Thirdly, factors such as political volatility, the likelihood of change, and the possibilities for effective monitoring can be essential in determining whether a risk is genuine or not, however improbable. Lastly, the SIAC makes it clear that this is a contextual, and not a general or abstract, judgment, and that changing conditions in Libya over time may mean that diplomatic assurances can be effective in allowing the UK to deport terror suspects there without violating Art. 3 ECHR.

These points, along with a number of others, are dealt with in the judgment in more detail. There is, for example, a lengthy discussion both of Qadhafi's character, and the manner in which his new rapprochement with the West has been driven by an instrumental pragmatism which could, if the situation so demanded, see it reversed, particularly in isolated cases involving the interrogation of islamist extremists (see e.g. paras. 333-372 of the judgment). The Commission concluded that "[t]here is not yet the range of contacts or years of experience of dealing with each other at many different and friendly levels, or the depth of other links between Libya and the UK which would make the diplomatic path predictable" enough for a diplomatic assurance as to the non-resort to torture to be viewed as absolutely watertight (para. 370), even if Libya's recent and continuing rapprochement with the West is a factor of genuine - and increasing - importance in this regard. The necessary chance of such a risk materialising is set out clearly in the following passage (para. 371):

We have accordingly come to the conclusion that although it is probable that [witness for the Home Department] Mr Layden’s judgment as to how the Libyans would observe the MOU in relation to the physical treatment of the Appellants is sound, and that they would not be ill-treated in a way which breached Article 3, we cannot adopt his conclusion that that would be well-nigh unthinkable. Instead we think that there is a real risk that that would happen... We do not therefore have the confidence which we need to have, for the return of the Appellants not to breach the UK’s international obligations. In short there is too much scope for something to go wrong, and too little in place to deter ill-treatment or to bring breaches of the MOU to the UK’s attention.

There is thus also significant consideration given to the matter of monitoring: where the guarantee of adherence to diplomatic assurances rests on a pragmatic ascertation of self-interest (and not, for example, on a growing commitment to human rights, or a culture of honouring one's given word), the first calculation of a regime that thought that it may stand to gain from torturing detainees would not be the threat of sanctions from, or the deteroration in relationship with, the returning state, but whether it could prevent any breach coming to light. The ability of an MOU to work where a regime could use well known ploys to prevent access to a prisoner does depend on the monitoring body having access or the willingness to report obstructions to the sending country. The very real prospect here that a breach could go undetected, or undetected for a long time, means that the potential adverse reaction from the UK would also be delayed or prevented. The downside of any breach could be markedly diminished" (para. 365).

The issue of monitoring, then, becomes vital. The Commission notes, for example, that strong civil society monitoring bodies, such as a free press or genuinely independent NGOs, or even a strong public constituency of popular support for Islamic militancy, are not present. The Commission goes on to note that the body envisaged as implementation monitor, the Qadhafi Development Foundation, although by far the best-placed "NGO" for the job, enjoying a degree of independence unique among Libyan NGOs, is not sufficient for the task. Although it does have an important track record of human rights protection and humanitarian advocacy, it's President is Saif al Islam al Qadhafi, Colonel Qadhafi's second son, who, despite his reformist opinions, is nonetheless still deeply limited in the criticisms he can level at the regime. The QDF, then, would be useful in monitoring the Memorandum in cases in which a rogue guard tortured detainees against the will of the regime; this is not, however, viewed as particularly likely. In the more probable scenario, of torture sanctioned at the highest level, it would be effectively voiceless. The Commission concludes that "[i]t [the QDF] is no more independent of the regime than is Saif himself, and he is not independent" (para. 330).

Other issues include the possibility that the length of time spent in detention either pre-trial (paras. 375-376) and on death row (paras. 377-378) could lead, indirectly, to a breach of Art. 3 ECHR, although, in terms of the latter, execution was not viewed as a real risk - even if a death sentence was a real possibility, it was unlikely to be carried out; and the possibility, gleaned from tentative ECtHR dicta, that the probable lack of a fair trial in the receiving state might act as a barrier to deportation ("[t]he ECtHR has not enunciated any general principle that a state bears an indirect responsibility for breaches of the ECHR by states which are not parties but to whose territories someone is deported", para. 397), holding that a "balancing" (at least in terms of derogable rights) between the rights of the deportee and those of individuals he put at risk, or threat to the host state, could be carried out (para. 400). The Commission even dealt with the significance of Qadhafi's strong personal relationship with the outgoing Tony Blair (para. 380). Lastly, the one of the appellants had raised the possibility that, given his family situation in the UK, deportation would amount to a violation of the right to family life contained in Art. 8 ECHR; an idea dismissed by the Commission in this case (paras. 405-414).

The other area of real interest concerns the Commission's judgment with respect to the 1951 Refugee Convention (it does not consider the Convention Against Torture at all, but we may assume that its holdings in terms of Art. 3 ECHR would also be applicable to the UK's obligations inder the CAT, and in particular its own Art. 3 provision on non-refoulement). In short, it seems unlikely that the Refugee Convention will be of particular importance in cases involving suspected terrorists within the UK in the future: one of the appellants, DD, had already been successfully through a refugee status determination in the UK; however, the Commission ruled that the Secretary of State was correct in his assertion that DD's terrorist activities meant that he was excluded from the provisions and protections of the Convention. The relvent provisions of the Convention read as follows:

1. F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

33. 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

The Commission considered the claim that, as the acts upon which the UK was relying in excluding DD from protection under the Convention had occurred after the positive refugee status determination, they could not be used to divest him of that status (paras. 110-112). This position seemed to be supported by a Canadian Supreme Court case, Pushpanathan v. Canada (MC1) [1999] INLR 36, in which the Court held that "the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status" (para 58 of that judgment). This, however, was not accepted by the SIAC, who, following a judgment of the UK Immigration Appeals Tribunal (in KK v. SSHD [2004] UKIAT 00101) noted that, given the words "prior to his admission to that country as a refugee" were inserted into Art. 1F(b) alone, meant that they could not be read into Art. 1F(a) or (c); thus DD could be stripped of refugee status if he engaged subsequently in "acts contrary to the purposes and principles of the United Nations" - of which terrorism is a generally accepted example (para. 121).

Lastly, the Commission held that, even if DD were not excluded from protection under Art. 1F, then the non-refoulement provision would not apply as a result of Art. 33(2): "It is obvious from our conclusions about national security that it is our view that there are “reasonable grounds” for regarding him as a danger to the security of the UK", and concluding moreover that neither here nor in Art. 1F was the deporting state required to balance the potential for individual rights violation against the suspects if deported against the risk to itself and its citizens. As soon as the criteria of Arts. 1F or 33(2) were fulfilled, there is no bar under the Refugee Convention to deporting the individual in question (although of course other obligations, such as the ECHR or the CAT may well still apply) (paras. 125-126).


One of the most striking things about this judgment in general is the level of acceptance that the appellants are dangerous men, deeply involved in Islamic militancy and posing genuine threats to the UK's national security. The Commission conducts a detailed review of the appellants' activites, and concludes, for example, that "We are entirely satisfied that DD is a real and direct threat to the national security of the UK... [who] is a global jihadist with links to the Taleban and Al Qa’eda" (paras. 71-72), and that "on the open evidence alone AS is a clear danger to national security. He is an Islamist extremist who has engaged actively and as a senior member with a terrorist group clearly engaged in support work for jihadist activities" (para. 104). The Commission makes, to my mind, a commendable summary of the choice facing it, which has led it to its equally commendable decision (para. 430):

We have given this decision anxious consideration in view of the risks which the Appellants could face were they returned, and those which the UK, and individuals who can legitimately look to it for the protection of their human rights, would face if they were not. We must judge that matter, at least in relation to Article 3 ECHR, by considering only the risks which the Appellants could face on return, no matter how grave and violent the risks which, having chosen to come here, they pose to the UK, its interests abroad, and its wider interests. Those interests at risk include fundamental human rights.

The effect of this passage, which to me nicely encapsulates the tragic dilemma posed by this extremely hard ethical question, is, sadly, somewhat diminished by the almost petulant tone adopted by the Commission in the very next paragraph:

The decision of the ECtHR in Chahal in 1996 provides the framework for that decision. It clearly requires us to consider matters in that way, however slight its reasoning or negligible its response to the substantial minority dissent on the problems posed by a direct threat comparable to that arising here to the interests of the country seeking removal, and on the protection to the human rights of others which the deportation of the Appellants would afford. That decision is part of its established jurisprudence, and in reality we are bound by it.

With these last words, the Commission seeks to challenge the absolute legal prohibition laid down by the ECtHR in terms of refoulement in torture cases, implicitly suggesting instead that this should be subject to the kind of legal balancing act common to many other rights dilemmas. There is no space to go into this in detail here, but many, myself included, although believing that, ethically speaking and at an abstract level, torture can and must be balanced against other possible ethical risks (that there can, philosophically, be no absolutes), it is a different matter entirely to attempt to write that necessary relativism into positive law. It is a subject on which I may blog more soon; for the moment, however, it is enough to refer any reader who have made it this far to Jeremy Waldron's excellent article on the subject, "Torture and Positive Law: Jurisprudence for the Whitehouse", 105 Columbia Law Review (2005) 1681-1750.

The EU has long lost its leverage in Kosovo: By Aleksandar Mitic

[This article is published in the European Voice 26 April - 2 May 2007]

The EU is facing risks over Kosovo: there is a stalemate in the UN Security Council, a division within the EU and not a slight sign of Serbia accepting Martti Ahtisaari's plan on cutting Kosovo away from it.

The special UN Security Council mission to Kosovo will undoubtedly see what has been largely downplayed in the "pinkish" reports drafted by Pristina-based UN chiefs: only 5 percent of the 220,000 Serbs expelled by Albanian extremists from Kosovo have returned, while Serbs living in the shameful, heavy-guarded enclaves lack freedom of movement and express mostly fear and mistrust.

This could also be a good eye-opener for Brussels. The EU has greatly lost in leverage in the last several months: the Kosovo Albanians look at Washington to lead a diplomatic "blitzkrieg" on their behalf, while Serbia and the Kosovo Serbs have found in Moscow a reliable partner ready to oppose an imposed secession.

One thing is now clear: there will be no UN Security Council resolution based on the core of Ahtisaari's proposal because there is simply no agreement on why Kosovo should be the first case in the 62-year long history of the UN in which the body legitimizes a dismemberment of a member country.

Repeating the senseless mantra about Kosovo's "uniqueness" will not fly, while warning about Kosovo Albanians going ballistic if they do not get what they want only reinforces the argument that they are not ready for self-governance let alone statehood.

Ahtisaari's proposal is unfortunately by no means a compromise, unless your definition of a compromise involves a shameful trade off: human rights for territory.

Respect for international law, for recognized borders of Serbia and for the need of the Kosovo Albanian majority to rule itself would get the UNSC to adopt a resolution, the EU to stay united and take its responsibilities in Kosovo. This will bring Pristina and Belgrade firmly on the road to the EU.

Otherwise, it is back to square one on the thin line.

Congress v. the President: Round 2

As expected, the Democrat-led Senate has also passed the Bill seeking to make continued funding for the Iraq adventure conditional on a definite start date for withdrawal, and a target completion date. Republicans have, again, dismissed the Bill as nothing more than a "stunt", which seems a little disingenuous, given the undoubted strength of feeling involved for many of those who feel that the US should not remain in Iraq. Interestingly, but perhaps not surprisingly, given their dependence on US support, senior Iraqi Government officials have taken a similar line, with Foreign Minister Hoshyar Zebari suggesting that "this is part of the politicking, basically, in Washington and this has been damaging in fact to the security, political development, not only in Iraq, but in the entire region..."

Bush has, naturally, reiterated his intention to use the veto, safe in the knowledge that the Democrats cannot muster enough votes in Congress to override it. Perhaps, however, this is not such a big deal, however it may look to those of us unfamiliar with the Presidential system (for example, for all of the accusations levelled against him in this regard, it is difficult to imagine Blair going directly against a clear Parliamentary vote on an issue such as this; not least of all because only the Queen is constitutionally "empowered" to do so). The BBC provides a helpful comparison of other presidents' usage of the veto power:

George W Bush: 1

Bill Clinton: 38

George Bush Snr: 44

Ronald Reagan: 78

FD Roosevelt: 635

Thomas Jefferson: 0

Roosevelt was in power for 12 years, from 1933-1945; which works out, by my reckoning, at just over one veto per week... Clearly, then, the use of the veto alone is not something that is viewed as in and of itself undemocratic in the US (perhaps unsurprisingly, given the direct electoral mandate of the President); it would be interesting to know, however, what if any the constitutional safguards are in terms of the dramatic situation in which we now find ourselves - namely, the ongoing prosecution of a deeply unpopular war, by a President in the latter years of his period in office, and whose Party suffered heavy losses at the most recent elections (largely as a direct result of that war). Anyone?