We’re pleased to announce the winning entries of the CGC Blog Competition. The calibre of entries was extremely high which made our job very difficult.
First prize was won by Frederick Till for his article The EU: Democratise or Disintegrate about the perceived democratic deficit at the heart of the EU, and the steps that certain Europeans have taken to try and rectify it.
The joint runners up prizes were won by Kate Cyr and Cameron Trainer. Kate’s article Out of Sight, Out of Mind: On the History & Legality of Detention Centres looks at the history and legality of refugee detention centres through the prism of the recent Australian experience. Cameron’s article Repression, It’s the Law investigates political repression in Russia.
On 9th February 2016, Yanis Varoufakis, the unofficial leader of the ‘Democracy in Europe Movement 2025’, and a coalition of activists gathered together in Berlin to launch the ‘DiEM25’ manifesto. They declared: ‘The EU will be democratised. Or it will disintegrate!’
The former Greek finance minister believes the European Union to be a beautiful conception, but accuses it of opaqueness, elitism and furthering “the habitual domination of corporate power”. Mr Varoufakis is right – at least to the extent that this is a widespread and growing feeling amongst citizens who feel alienated and disempowered across the fledgling European polity. DiEM25 warns that this growing stagnation in democratic legitimacy combined with the growing fragility of European societies faced with economic and technological upheaval and mass migration, is bringing the continent to a critical moment of peril.
“This is the unseen process by which Europe’s crisis is turning our peoples inwards, against each other, amplifying pre-existing jingoism, xenophobia”…“Committed democrats must resolve to act across Europe”.
The manifesto document is light on actual proposals. Those that are presented range from highly feasible reforms – live-streaming European Council meetings and publishing ECB and Eurogroup minutes – to the grander ambition of convening a European constitutional assembly by 2025. What DiEM25 does do is expose a divergence in the strategy of European unity dating back to the early federalists, a divergence that could ultimately prove to be a fatal flaw.
In 1941, at the height of the most recent and terrible of European civilization’s recurring descents into barbarity, Altiero Spinelli and Ernesto Rossi languished on Mussolini’s prison island – Ventotene. Their internment for anti-Fascist dissent gave them the opportunity to reflect on the origins of totalitarianism and to ponder how best to return Europe to a lasting peace. Together they penned an extraordinary document: the Ventotene Manifesto is an explicitly socialist statement of intent. It refers to the “revolutionary masses” and describes the landowning elites as “thoroughly parasitic”, but it nonetheless rejects the classism of Communist parties, arguing against the dictatorship of the proletariat as the historical means of emancipatory progress. Instead of class struggle they advocated for the ‘Movement for a Free and United Europe’. The greatest strength of Spinelli and Rossi was that they understood the imperative need for Demos. Like the DiEM25 manifesto, the Ventotene Manifesto proposed a constitutional assembly; they desired a federated Europe that was representative and participatory with enough power retained by the federal states to allow for “the development of a political life according to the particular characteristics of the people”. The weakness of Spinelli and Rossi is that they were too eager in anticipating what a free and united Europe could be and do, but treated as of secondary importance the institutional framework needed to construct such a political community. This may be an unfair criticism; they were after all stuck on an island with no knowledge of what the conditions at the end of the war would be. Nonetheless, they predicted that the united Europe would take many industries, particularly steel, into public ownership (some debates never die), whilst also remarking that “it would be superfluous to dwell at length on the constitutional institutions”. They presented a sweeping dream with little clarity of method.
This was not the case for Jean Monnet. In his Memoirs, which should be required reading in the run-up to the Brexit referendum, he emphasised repeatedly: “I distrust general ideas, and I never let them lead me far away from practical things”. This is indicative of his approach to peace-building in Europe; patient wisdom, meticulous attention-to-detail and utilising a remarkable talent for networking. Over several decades, Monnet relentlessly cultivated friendships across Europe, reaching out to intellectuals, politicians, civil servants, businessman and trade unionists, who he convened together in the ‘Action Committee for the United States of Europe’. Despite their grandiose name, the group adopted the strategy of incremental development that can be identified in the contemporary EU: cautious (pre-Eurozone that is) economic integration starting with the strategic industries in the European Coal and Steel Community, treaty negotiations between member states, regulatory mechanisms, civil society and stakeholder engagement, and a gradually constructed institutional framework. These methods are familiar to students who have studied the Neo-Functionalism vs. Inter-Governmentalism debates in political science. They are the crucial difference in approach between the Ventotene Manifesto and that outlined by Monnet in Memoirs. The divergence between the Movement and the Committee. The Action Committee created an elite vanguard which has contributed incalculably to a stable peace in Western Europe…but a peace lacking a Demos. This is not to say that Monnet, Willy Brandt, Max Kohnstamm and the other associates were anti-democratic. Far from it. Monnet was enthusiastic about the United Kingdom because of our “respect for freedom, and the working of democratic institutions.”
Still a ‘democratic deficit’ in the EU has emerged and is not only a theoretical matter, but a real and harmful problem. It must be addressed, but not through Brexit. Nor through regionalist devolution alone. Both of these options risk impotency in an era of neoliberal globalisation. The deference of sovereign states to exterior institutional frameworks will become increasingly necessary in everything from the protection of marine habitats such as the humble seagrass, to transnational policing, adaption to mass migration flows and internet governance. Unlike ICANN, IMF, the World Bank and other international governance institutions, the EU has a Council whose members are elected heads of states or governments and an elected Parliament. Moreover, it has an institutional understanding of responsibility for fundamental rights afforded to citizens, grounded in common historical experiences, civilizational heritage and political freedom. This is not nothing; it is something that can be worked on. Democratising Europe will require the bold political imagination DiEM25 are calling for.
 The text of the DiEM25 manifesto can be read here: http://diem25.org/wp-content/uploads/2016/02/diem25_english_short.pdf
 The text of the Ventotene Manifesto can be read here:http://www.cvce.eu/content/publication/1997/10/13/316aa96c-e7ff-4b9e-b43a-958e96afbecc/publishable_en.pdf
 Monnet, Jean, Memoirs, translated by Richard Mayne, William Collins Sons & Co. LTD (Glasgow:1978)
 See Project Seagrass statement on the EU: http://www.projectseagrass.org/apps/blog/show/43887552-don-t-let-the-uk-become-a-fish-out-of-water-for-the-sake-of-our-seas-let-s-stay-in-the-eu
Vladimir Putin’s Russia has, especially in recent years, come under heavy criticism from many in the West. Much of this criticism, however, deals with Russian aggression toward Ukraine, the extrajudicial killings of critics of the Putin regime such as Alexander Litvinenko, or accusations of widespread corruption. All of these issues are clearly in violation of a multitude of laws, both Russian and international. Focusing on such issues, while undoubtedly important, pulls attention from more sinister subjects, namely the propagation of political repression through the application of Russian law.
Rule of law in Russia is an interesting topic, and the laws serve a variety of interests. The interests they don’t seem to serve, however, are those of ordinary Russian citizens. Take, for example, the story of a family of bakers in the city of Voronezh. In 2015 they were sentenced to eight and a half years in jail for the sale of traditional poppy-seed buns, which prosecutors deemed to constitute large-scale drug trafficking on account of the trace amounts of opium present in all poppy seeds. The motive behind the arrest, according to those arrested, was that they had refused to pay bribes in excess of $800 per month to law enforcement officials.
Taken in isolation, this case could be considered an abnormality, that either the defendants were constructing an elaborate ruse to escape justice (though this by no means appears to be the case) or that a few corrupt officials had played the system to their own gain. The truth, however, is that such stories are relatively common. In 2006, for example, businesswoman Yana Yakovleva, one of the subjects of Peter Pomerantsev’s critically acclaimed 2014 book Nothing is True and Everything is Possible, was reportedly arrested shortly after refusing to pay kickbacks to a special police drugs unit. The technical term for this is ‘state raiding’, where government officials attempt to coerce payments by initiating a criminal case on trumped up or fabricated claims.
State raiding, however, is only one manner in which the letter of the law is used against the interests of ordinary citizens. Two of Russia’s more contentious laws, at least to those of us in the West, are the foreign agent law (officially named “On Amendments to Legislative Acts of the Russian Federation regarding the Regulation of the Activities of Non-profit Organizations Performing the Functions of a Foreign Agent”) and the LGBT propaganda law (officially titled “For the purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values”).
The first of these laws, the foreign agent law, is something of a spiritual continuation of Soviet policy. Designed to curtail the activities of non-governmental organizations (NGOs) engaged in political action, this law requires NGOs involved in loosely defined political activity and receiving foreign donations to register as foreign agents. A Human Rights Watch piece explaining the significance of the law decries the stigmatization of NGOs forced to register as foreign agents, claiming that such a label publically demonizes them. Over 100 NGOs have been registered as foreign agents, leading some to shut down rather than operate under the foreign agent label. Furthermore, NGOs found in violation of the foreign agent law face a variety of penalties, ranging from forced suspension of the NGO’s activities to fines (both directed at the NGOs themselves and at their leaders) or prison. A 2013 report by Human Rights Watch further explains the ramifications of the law, available here, though at this point it should be abundantly clear that this law is aimed at the silencing of NGOs that could criticise the Putin regime.
The LGBT propaganda law, on the other hand, introduced penalties for individuals and organizations aimed at distributing what the Russian government refers to as “propaganda for non-traditional sexual relations” to minors. ‘Propaganda’ is, of course, a loaded term, in this case referring to the mere encouragement of tolerance toward LGBT communities. Moreover, an Al Jazeera article pointed out that, according to activists, this law has effectively condoned violence and discrimination against emerging LGBT activities. In this manner, discriminatory values have been entered into law, allowing for legal persecution of progressive elements and encouraging extrajudicial repression of LGBT communities.
Both of these policies contribute to an increasing inclination toward authoritarianism in the contemporary Russian state, an inclination also demonstrated through the enforcement of laws typical of a Western democracy. Take, for instance, Articles 280 and 282 of the Russian Criminal Code, which outlaw calls for extremist activity and the inciting of religious or ethnic hatred respectively. According to the European Council on Foreign Relations, such laws are utilized to prosecute critics of the Putin regime. In late March, for example, The Moscow Times reported that a criminal case was opened under Article 282 against a deputy from the Kursk region, Olga Li, after she posted a video to YouTube critical of Putin’s policies. Yekaterina Vologzheninova was recently tried on similar charges for her posts on social media criticizing Russia’s actions in Ukraine, according to Amnesty International. Such cases, unfortunately, are far from unusual and represent only a part of the government’s efforts to silence its critics.
Taken holistically, the material presented here represents a limited examination of the perversion of rule of law in Russia. While Western governments are publically focused on Russia’s foreign policy, its actions in Ukraine and Syria, the extrajudicial killings of opposition leaders like Boris Nemtsov, or the prevalence of corruption, it is important to recognize the means by which ordinary Russian citizens are impacted by the Putin regime’s policies. Whether they be victims of state raiding, of silencing through the foreign agent law, victims of violence spurred on by the LGBT propaganda law, or persecuted government critics, it is important to realize that these people represent the greatest hope for a change of course in Russian politics. Indeed, any significant and lasting rapprochement with the West must be preceded by improvements within the political climate of Russia itself.
It’s official: Australia’s “Stop the Boats” campaign is a success. Or so the government claims. Back in 2013, former Prime Minister Tony Abbott ascended to his post in part because of his pledge to “stop the boats,” or, in less catchy rhetoric, to prevent asylum seekers – mostly arriving by sea from the Middle East and Asia – from reaching Australia. Instead, they are either resettled in Cambodia or detained indefinitely in centres in Australia, on Nauru, and on Papua New Guinea’s (PNG) Manus Island. In return, Australia offers these countries aid money and pays their legal fees. As of November 2015, over 2,000 people were in Australian immigration-related detention facilities, 436 of whom had been held for over 2 years, with an additional 1,469 residing in third-country centres.
The measures are meant to deter irregular immigration and the dangers of boat crossings, yet desperate people fleeing countries like Iran, Vietnam, and Afghanistan continue to seek asylum in Australia. The detention centres are “cramped, hot and unhygienic…[with] limited access to water.” Physical and sexual abuse is common; children – including unaccompanied minors – are locked away with inadequate medical care; and violence is a regular reality. The frequency of suicide attempts and protests in the centres speak to their horrific conditions. Doctors and staff who work in the centres even face imprisonment for advocating on behalf of detainees. This is all illegal under international – but not Australian – law.
Here, I offer a glimpse into the history and legality of such centres vis-à-vis the Australian case, with three disclaimers. First, Abbott’s anti-“boat people” program is not new to Australia, but began in 1992 under PM Paul Keating. Second, Australia is not wholly anti-immigrant – it admits 200,000 immigrants and settles over 13,000 refugees every year. These policies only target asylum seekers arriving by sea. Finally, Australia is not the only country to have detention camps for would-be refugees (Camp Moria on Lesvos Island is another example).
Concentration camp, detention centre, and internment camp are different names for the same concept: “A camp where persons are confined, usually without hearings and typically under harsh conditions, often as a result of their membership in a group the government has identified as suspect.” In the case of Australia, the suspect group are boat people; during the Second World War, for Americans, they were people of Japanese descent, and for Germans the Jewish population; and in North Korea, the persons are critics of the state.
As the system of laws, norms, and treaties that currently governs global politics was still in its infancy, states were able to imprison “undesirable” people easily. The first camps were set up in the late 19th century by the Spanish Crown in Cuba to contain peasant guerillas and the detention centres constructed by the British to detain Boers and southern Africans during the Boer Wars. Often, governments carried out what would now be considered egregious human rights abuses by stripping people of citizenship or their humanity, labeling groups as a security threat, and/or simply building secluded, inaccessible internment facilities.
Thanks to the advent of technologies like television, mobile phones, and social media, the plight of those currently in camps is harder to ignore than in the past. Given the history of brutality associated with internment camps, international organizations like the UN have set up legislation and treaties to prevent their use.
For example, the 1951 Convention and 1967 Protocol Relating the Status of Refugees enshrines the right to asylum, including access to courts, housing, and employment – and, most importantly for Australia’s asylum seekers, freedom from “penalties, on account of their illegal entry or presence.” Article 9 of the Universal Declaration of Human Rights explicitly states, “No one shall be subjected to arbitrary arrest, detention or exile;” Article 13 offers the right to freedom of movement; Article 14 guarantees “the right to see and to enjoy in other countries asylum from persecution;” and Articles 1, 2, 3, 5, 6, 7, 10, 15, 25, 28 offer protection against the degradation of dignity, nationality, free trial, asylum, and other rights that have been violated by the actions of Australia and other governments using similar detention centres for asylum seekers and those deemed security risks. The UN’s Optional Protocol to the Convention Against Torture (Opcat) takes these measures a step further for detainees, requiring “UN inspections of immigration detention centres.” These are just a few of many conventions, treaties, and norms that protect asylum seekers and people in detention without trial.
Countries like Australia often have national laws against degrading treatment, making such detentions illegal on multiple levels. How, then, do such camps persist? States can choose to ignore domestic and global outcry at their actions; bypass UN conventions, resolutions, and international norms (which are secondary to national law); use other nations as third parties for detention; and, of course, countries are free to legislate their own standards. The United States, in setting up a facility for the detention of untried, suspected terrorists at Guantanamo Bay, Cuba, utilized all four of these approaches. Australia has acted similarly towards asylum seekers: it ignores protests by its own people; refuses to ratify Opcat; organized offshore centres; and has changed its own laws – ruled constitutional by its highest court – to allow overseas detention of asylum seekers.
What hope can Australia’s asylum seekers possibly posses against such a rich, powerful nation? Many appeal to international public opinion for help or launch lawsuits against the government. If the wave of anti-detention sentiment gains enough force, it may be able to capsize Australia’s discriminatory policies. Already, asylum seekers have achieved some success – and not the kind trumpeted by the government – while contending detention on Nauru and Manus Island. Perhaps their strategy can usher in a new tide of humane treatment for asylum seekers not just in Australia, but the world over.
In the meantime, learn about your country’s internment and detention camp policies. The Global Detention Project offers information on many countries’ centres. For UK readers, I also suggest Standoff Film’s documentary “Campsfield House: An Immigration Removal Centre.”
The release of over 11.5 million documents from Mossack Fonseca, a Panamanian based law firm, has revealed the lengths to which individuals and companies will go to avoid their national tax obligations. When asked about the problem of tax avoidance, President Barack Obama acknowledged that those with wealth can avoid their tax systems when necessary, especially if they have the right lawyers and accountants. ‘A lot of it is legal,’ the President said ‘But that’s part of the problem.’
Those of us interested in the global rule of law and global constitutionalism should pay attention to President Obama’s point. Promoting the rule of law is hardwired into the international normative order. NGOs, international and regional institutions, and well-meaning liberals argue that law rather than politics ought to guide decisions at the global level. As John Adams, American founder and president maintained, we want a ‘government of laws and not of men’.
But law is not divorced from politics, either at the international or domestic level. A legal system results from political decisions, and those political decisions result, in part, from power configurations. Perhaps we ought to abandon our quest for the rule of law and recognize what Marxists have long emphasized, that law simply reflects a social and economic reality which, for all its pretentions, it cannot transcend. If this is true, does this mean that the quest for the rule of law is nothing but a chimera at the global level?
I’m not ready to give up on the rule of law. Without it, violence and coercive power would dominate the world order. The argument of those working in the realm of global constitutionalism is that we need not abandon the hope of a rule governed order. There must be some way to harness power and law to produce a more just and equal political order.
At the domestic level, this can come about either through representative government, although realizing truly representative institutions which are not tainted by injustice is no easier at the domestic than at the global level. Revolutionary movements to advance the cause of equality and justice are another means, one that has created the representative systems we have in many countries around the world. There is no representative institution at the global level, so perhaps we are left with the revolutionary model?
A third way might be through the device of constituent power. Constituent power is the act of a people to establish its political order through the creation of its constitution. Constitutional conventions remain the paradigmatic instance of constituent power. But as Jason Frank has argued, the constitutional convention is not the only constituent power moment; a constitutional system results from continued engagement of the people with its legal and political order. Those engagements can at times be conflictual and even revolutionary, but at other times they may be more prosaic. The point is that such constituent moments need cultivation and attention, and need to be recognized as such in order to give them the power to shape and reimagine a political order.
Does constituent power exist at the global level? If we name political protests, NGO activism, and forums in which activists and political leaders meet to articulate new agendas and ideas, then perhaps we do have something like this. Especially if those activists articulate their claims in the language of rights, law and democracy, they may well count as efforts to constitutionalize the global order.
The activism of the International Consortium of Investigative Journalists which released the Panama Papers demonstrates how those engaged in the protection of free speech and hardnosed journalism – classical liberal virtues that keep lawmakers honest in domestic societies – provides an instance of global constituent power. This organization does not represent anyone, but constituent power is not just about representative democracy; it is also the moral force that ensures constitutional orders remain true to their purpose.
President Obama is right in recognizing that tax havens are legal. But the constituent power of those who revealed the failure of global law gives us hope that global justice is possible when we make use of the emancipatory potential of law to advance rights and equality around the world. Recognizing the release of the Panama Papers as an instance of global constituent power can play a small but significant role in advancing that agenda.
Anthony F Lang, Jr holds a Chair in International Political Theory in the School of International Relations at the University of St Andrews and is Director of the Centre for Global Constitutionalism.
Image courtesy of Dronepicr
The spring schedule for the Constitutional Law Discussion Group at the University of Edinburgh Law School is now available.
Please see PDF for details: CLDG Spring Semester Schedule.
The Centre for Global Constitutionalism and the Centre for Peace and Conflict Studies are hosting a talk by Professor Catherine Lu of McGill University on Monday, 18 April, 5:00pm in the Arts Lecture Theatre.
Professor Lu will be speaking on the topic – ‘Justice and Reconciliation in International Relations’. All are welcome.
The Centre for Global Constitutionalism will be hosting a talk by Professor Antje Wiener of the University of Hamburg, a leading constructivist IR theorist, on Monday, 4 April at 5PM in the Arts Building Lecture Theatre.
The topic will be “Contested Norms in International Encounters: The ‘Turbot War’ as Prelude to Fairer Global Fisheries Governance”.