Why the Catholic Church should mind its business

The Catholic Church tries to conquer the hearts of some people by raising its voice on social issues such as housing and employment. In Italy, this move has been greated with appreciation by the moderate and extreme left wing parties. Here's a report.

But the political position of the Church remains deeply ambiguos: "The essential point is again made by Benedict XVI: from Jesus there comes “full respect for the distinction between, and independence of, what is Caesar’s and what belongs to God”. The Church has a “mediated” task while the “immediate” one falls to the lay faithful. Thus “if on the one hand it acknowledges it is not a political actor”, on the other “it cannot avoid taking an interest in the good of the entire civil community” by “forming in the political and entrepreneurial classes a genuine spirit of truth and honesty”.

In many ways, this position is not healthy at all in a secular democracy. The Church has the luxury of taking strong positions on very controversial issues without ever having to be accountable for them. In short, this is the worst form of demagogy.

Of course, it is very nice to say permanent jobs for everyone and housing for everyone. But unfortunately there is shortage. Political institutions make hard choices between job protection and enhancement of the market. But the problem is: if the job protection is too strong, then it wil be much more difficult to create new jobs. So what looks like a nice ideal, may turn out to be a damning precept.

What is worse is that the Church can say whatever it pleases anyhow it will never have to do the job. That is the reason why, the Church should truly and definetely concern itself only with spiritual matters. It can intervene, as it does, to improve social conditions on a daily basis. But it cannot engage in sweeping policy debates as this is totally outside of its realm, and makes hard choices even more unpalatable for governments which are already facing tough enough social dilemmas.

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...

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.

Embryos, Rights and Dilemmas

Ms Evans's embryos will be destroyed. Her and her partner's embryos had been frozen few years ago. The married couple then split, but Ms Evans wished to use them without her partner's consent, since she's lost fertility after an ovarian cancer operation.

The UK courts and the European Court of Human Rights, including the Grand Chamber (the highest formation of the European Court), declined the request of Ms Evans.

Under these circumstances, the case was particularly difficult to decide and probably raised issues that were not legally solvable. The ambiguous position of the judges and the lawyers who 'feel dreadful' for Ms Evans, but can only decide against her is a sign of a widespread discomfort and the symbol of the existence of a dilemma (for my academic commentary see the European Constitutional Law Review http://journals.cambridge.org/action/displayJournal?jid=ECL, October 2006.

EU and Christian Values

While the EU celebrates its 50th anniversary, the Pope admonishes it. Ratzinger is incessantly repeating that the EU needs to recognize its Christian roots.

Can we dismiss his claim or do we have to take it seriously? Secularists, who are the overwhelming majority in Europe, believe that we should not even pay attention to it.

But an increasing number of religious people feel excluded and non-represented by the European and the national institutions.

The biggest risk is the polarization of our European societies, making cohabitation even more difficult than it is now. Moreover, rejecting religion altogether may have the opposite effect of making the religious minorities more vocal and ultimately stronger.

This is a real dilemma which deserves close attention on the part of politicians, the civil society and academics.

Obama like Orwell

Obama launches the first serious attack on Hilary Clinton. In a suggestive video (http://www.youtube.com/watch?v=NL8FRXO-QV0), Clinton is portrayed as imposing top down her 'conversation' with the people that look brainwashed and uniformised. The video suggests that Clinton is a control freak that would like to transform America into an Orwellian state of permanent control of individuals.

Obama promises that 1984 (the famous Orwell's political tragedy) will not happen in 2008.

Pope against Rights

The Vatican pursues its offensive line against the liberalisation of Italian society, but its message is obviously applicable to the whole world.

The battle is directed at the moment against the same sex union project of law. In Europe, Spain, France, Benelux, the UK and other States have already adopted legislation to this effect.

The Pope's turn of the screw include also some curious policies such as strengthening the use of latin during Mass. Read here.

Italy: a new immigration law

The draft proposal will be presented in Parliament next week.

You can find a report here.

Here's an excerpt:
The eight-page text, drafted by the legal offices of the Interior and Social Solidarity ministries, is finally ready. It will introduce a series of fast tracks for hiring home helps, carers and those with special skills, such as engineers and university staff, but entry will also be open to unskilled foreign workers.And to all those who already speak Italian.

American Universities and Equality

...do not go hand in hand. Rich people have a privileged access to the best Universities, as this interesting study in the NYRB confirms.

here's an excerpt:

The causes and consequences of these dispiriting facts are complex, and the cost to society—moral and material—is high. There is moral cost in the shortfall between the professed ideal of equal opportunity and the reality of rising inequality. As for the material cost, "there has never been reason to believe that all outstanding candidates will be able to pay whatever fees are charged without help," as Bowen and his colleagues put it, and "society at large needs all the trained talent it can marshal."

Catholics, pain and Europe

Are Catholics in Europe moving onward or backward?

Some medieval practices that are spreading again in Italy suggests the latter:

Here's an interesting article:

Here's an excerpt:

Catholics and the Return of the Spiked Metal “Cilicio”.

The unfortunate senator and Opus Dei numerary Paola Binetti fell into the trap of admitting on television that she was familiar with the “cilicio”, a spiked metal garter, and attempted to explain why it is used: “It forces us to reflect on the fatigue of living. It is the sacrifice of a mother waking up at night because her baby is crying”.

8th of March

Women's day.

This is the year of Segolene Royal, Hillary Clinton and Angela Merkel.

Royal is still misterious. Is she going to reform France at the root, or will she bring more of the old (French socialism).

Hillary is very ambitious and very experienced. But unfortunately, many men do not like ambitious women, or at least that is my feeling. They should give her a chance.

Angela Merkel is doing well despite many things. Her government formed by a large coalition is a slow machine. But Germany is improving economically and Europe is following. Merkel is also leading the European Council with more energy and ideas than their recent predecessors (notably Tony Blair).

We can only hope that 2007 will be a succesfull year for Women!

Yoo Shall Torture

Professor John Yoo gave a huge contribution to Bush's administration in its more troublesome period (2001-2003). His memo in defense of Torture is one of the most controversial, and in my mind, repelling documents ever written by a lawyer working for a government.

Yoo may have taken Alexander Hamilton as a role model, but he does not understand that boldness does not equate with lack of intellectual honesty.

Yoo's most recent book on this and other issues 'War by Other Means: An Insider's Account of the War on Terror,' has been admirably reviewed by David Luban in the New York Review of Books.

Distant Brides and Plural Societies

A court in Italy has recognized the validity of a marriage celebrated via telephone and in conformity to Pakistani laws. The woman will now be allowed to join her husband, who is presently in Italy, thanks to the norms that facilitate family reunion in Europe.

Yet another challenge to the Catholic conception of marriage? Is Italy moving to a value pluralist understandig of Marriage? In many ways, this is certainly the case. In this particular event, however, it simply comes down to a question of private international law.

The Vatican and Same Sex Couples

Today Prodi, the Italian Prime Minister, met some of the Vatican Archibishops to talk about the new same sex partnership law proposal. It is reported that the dialogue went well.

The Church is very skeptical about such proposal, but it seems as if they want to engage in a discussion to test new ideas.

Is it a sign of conversion on the part of the Vatican? We can only hope so. But I doubt it.

Same Sex Unions and Religion

The italian project of a civil union law is provoking extreme reactions in the country, as it was sadly predictable. The Vatican is trying to insist on the inviolability of the family understood as the union between a man and a woman. The Church is unable to understand that discrimination vis-a-vis homosexuals is comparable to any other type of discrimination based on race, or religion.

For a more balanced religious view, listen to Michael J Perry, a Catholic Law Professor at Emory, in his recent book Toward a Theory of Human Rights:

"I expect that within the next generation or two -within the lifetime of our children's children-- the understanding will come to be widely shared, in the world's liberal democracies, that refusing to recognize same-sex unions, if not morally akin to outlawing interracial unions, is nonetheless bereft of any non demeaning rationale.'

Toward a Theory of Human Rights by Michael J Perry

This book does exactly what it claims: it attempts to develop a theory of human rights. Perry suggests that a theory of human rights should deal with three basic issues. First, the moral foundation of human rights. Second, the normative relationship between the morality and the law of human rights. Third, the institutional arrangements that best protect human rights.

To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.

Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.

Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.

All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.

In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.

How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.

Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.

It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.

This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.

I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.

Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.

The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.

Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.

To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.

Same Sex Unions in Italy

Italian Government has presented today its legislative proposal for same sex unions. If you read italian, you can have a look at the proposal here.

The proposal still has to be voted in parliament (both lower and higher chambers). Amendments are likely to be presented.

That said, the text is a very big effort of Prodi's majority to find a compromise between the religious and the secular wing of the coalition. Any amendments would risk to compromise the compromise (if I may say).

One important proviso, this proposal has the main goal of recognising de facto couples, including homosexual couples. It does not allow homosexual to get married.

It is still an important step toward the recognition of rights and duties of stable, non-married, couples.

A final point: the debate is likely to be intense. The vatican has already intervened many times to discourage this possibility.

The ECHR has a New President

Jean Paul Costa is the new President of the European Court of Human Rights. His mandate has just begun. He replaces the former Swiss President, Luzius Wildhaber. Here's Costa's interesting speech.

New Books on Theories of Human Rights

A Couple of good titles for those of you interested in Theories of Fundamental Rights.

The first, just published, is Tim Macklem's Independence of Mind, Oxford University Press.

The second is M.J.Perry, Toward a Theory of Human Rights: Religion, Law and Courts published by CUP (forthcoming 2007)


I add Constitutional Dilemmas: Conflicts of Fundamental Legal Rights, just to make three.

Constitutional Dilemmas for 2007 (and beyond)

Euthanasia, Same sex unions, the legal status of embryos; these are few of the most daunting ethical issues that are debated in Europe and America.

The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.

Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.

I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.

Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.

This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.