Implementig Intergenerational Justice

Last week, a colleague of mine, Marisa dos Reis, organised an international scientific conference on the legal implementation of the rights of future generations on the premises of the Calouste Gulbenkian Foundation in Lisbon, Portugal. It was the perfect excuse to put the doctoral thesis beside for a moment and board a plane to (reputedly) warmer regions. We had some bad luck with the weather, but let me get to the point of this posting.

There are a host of contemporary problems that directly affect today's children and tomorrows yet unborn people. They include the global financial and economic crisis, the depletion of natural resources, environmental degradation, conflicts and most notably global climate change. Most of these problems were not heard of only a hundred years ago. Of course there have always been financial and economic crises (1920's!) but until recently humankind just didn't have the technological means to alter our environment in a way that shapes the fate of generations to come. Even if the old Greeks or the Holy Roman Empire would have wanted to, they could not have destroyed or severly damaged the environment in a way that would have affected generations born 100 years later. Even the forest clearance on the Iberian Peninsula, one of the most obvious historical examples for human influence on the environment, was done in the course of many generations. Phoenicians, Greeks, Romans, Portuguese and Spaniards cut the trees down in the course of the centuries to build their fleets, creating the arid climate on the peninsula we know today. But our generation can wipe out the world in a blink of the eye with nuclear weapons.

The problems are thus more pressing than ever. Yet, future generations are difficult to protect against damages through law. This is true even if they are caused knowingly through massive neglect as is undoubtedly the case with climate change. Unborn people do not have legal standing in the traditional sense. Additionally, laws stretching far into the future might clash with the principles of the rule of law, most notably the principle of clarity. But still, politicians on national and international levels always refer to future generations, their rights and the need to protect them. Are these only phrases? Future generations and their rights are named in the preambles of the UN Charter and the Rome Statute of the International Criminal Court. They are mentioned by the Brundtland Commission, by the Stockholm Declaration on the Environment, by the Rio Declaration in 1992 and the UNESCO Decleration on the Responsibilities of the Present Generations towards Future Generations, to name just a few.

So, apart from visiting beautiful Lisbon, it's restaurants and bars and the marvelous towns in the vincinity (Cascais and Sintra a really worth a visit), there was a major question to deal with. The objective of the conference was to elaborate whether the numerous declarations of safeguarding the rights of future generations can be put into practice despite the problems they confront legal practitioners with. International speakers from the fields of philosophy and all sub-fields of law came together in Lisbon to discuss possible ways of implementing these rights on the national, European and international levels.
Many interesting approaches were intorduced at the conference. Emilie Gaillard Sebileau from the University of Orléans presented possibilities how the problem of rights of future people could be solved in French national law. Lucy Stone from UNICEF UK explained how safeguarding children's rights may be a feasible approach to protect the rights of future generations. Maja Göpel from the World Future Council presented a possibility of including the rights of future generations in the Lisbon Treaty of the EU and Sebastien Jodoin from the Centre for International Sustainable Development Law presented a draft code of criminal law addressing crimes against future generations. These speakers are of course just a small selection. The current Ombudsman for Future Generations of the Hungarian Parliament, Sandor Fülop, and the former Ombudsman from the Israeli Knesset, Schlomo Shoham, gave valuable insights into the work of institutions established to protect the interests of future generations. A full participant list of the conference can be found on the website.

The results of the conference will be documented in the scope of the Intergenerational Justice Review of the Foundation for the Rights of Future Generations. The journal is accessible freely and will be published by the beginning of July on the homepage of the foundation.

Thanks for reading!

Comment on the General Elections in the UK

These days I think back a lot to my stay in Leicester, a middle-sized town in the English East-Midlands, right around the corner of Nottingham and Robin Hood's famous Sherwood Forest. I stayed there in 2005/2006 for an Erasmus term. The elections for the German Bundestag took place just a couple of days before I caught my coach to England.

I vividly remember how many other Erasmus students and especially my English co-students in the different seminars asked us Germans what was going on in Germany and how it could be possible that the politicians were not able to form a government for weeks.
The social democrat chancellor of Germany, Gerhard Schröder, had triggered a snap election after losing a couple of important regions to the conservatives. Surprisingly the conservatives did not manage to achieve a clear victory despite the low popularity of the SPD government.

Chancellor Schroeder's appearance on election day has become famous for his psyched behaviour bordering on straight arrogance and many people were wondering if he was actually intoxicated. Long story short: Schroeder refused to step down to make a grand coalition under a chancellor Merkel possible and a political deadlock froze the Federal Republic for many weeks until Schroeder finally gave up and a CDU/SPD coalition could start its work.

In Leicester, we were talking a lot about the advantages and disadvantages of the British style first-past-the-post system and the German system of proportional representation at that time. Most people (including myself) considered it an advantage of the first-past-the-post system, that there was a very low danger of a hung parliament or a blockade like in Germany in 2005.

The General Elections in the UK on May 6th have now proven that this is not necessarily true. The majority of the British citizens are tired of Labour (at least according to 90% of all newspaper articles that I have read on the topic). But their voters are a more coherent group and have a higher regional concentration than those of the Tories or the LibDems, which means that with first-past-the-post even a hugely unpopular government has a chance to cling to power. Even though Labour is the main loser of the general elections, it is not clear yet if Tories and LibDems will be able to get to a coalition agreement, especially since David Cameron apparently does not even want to talk about the LibDems' main demand of reforming the electoral system of the UK.

Regardless of the outcome, the UK case illustrates a worrisome tendency: Not even a first-past-the-post system can apparently stop the decay of the large catch-all parties in Europe. In France, the political left is in hopeless disarray, much the same can be said for Italy. The big German parties are increasingly dependent on three-party coalitions in order to form a government in the German Länder, a trend that seems to be reinforced by the results of the elections in North Rhine-Westfalia today. Of course the LibDems benefited from the youthful charisma of their leader Nick Clegg and the frustration after the long Labour years. The only safe thing to say is that the negotiations about who will take power for the next couple of years in the UK will be interesting to watch. If the Tories fail to win the LibDems over, we could even witness Gordon Brown's comeback. The effects of this historical result on the first-past-the-post system is the second big question mark that will be answered within the next few days.

Argentina and the case of Baltasar Garzón

Baltasar Garzón is probably the internationally best known judge working on a national level. The Spanish judge was born in Torres de Albánchez in the Province of Jaén in Andalusia. After a side trip into politics in 1993, when he ran for the Spanish parliament on the list of the left PSOE party, he quickly dedicated himself to his career as a judge. Baltasar Garzón is currently the examining magistrate of the Juzgado Central de Instrucción No. 5 of Spain’s Central Criminal Court, the Audiencia Nacional. In this position he is in charge of judging Spain’s most important criminal cases.

Baltasar Garzón is considered one of the most active judges in using the principle of universal law and was one of the driving forces that constituted Spain's role as the nation with one of the widest interpretations of universal jurisdiction worldwide*. He is probably best known for issuing an international arrest warrant against the former Chilean dictator Augusto Pinochet who had previously profited from a life-long amnesty as a member of the Chilean senate. The arrest warrant was eventually enforced by the United Kingdom but extradition to Spain was denied on health grounds.

Baltasar Garzón also tried to lift Italian Prime Minister Silvio Berlusconi's immunity from prosecution at the Council of Europe in April 2001 and repeatedly expressed a desire to investigate the involvement of the former U.S. Secretary of State Henry Kissinger in the killings of leftist opposition figures in the Southern Cone in 1975, known as Operation Condor. Additionally he opened investigations on systematic torture in the cases of former prisoners at the US military prison in Guantanamo Bay.
It is rather obvious that Garzón has a knack for taking up spectacular and sensational cases, an approach that is not beyond criticism for a judge who should act on purely legal considerations. Nevertheless his actions in strengthening universal law highlighted cases of impunity and furthered the notion of the primacy of the rule of law worldwide.

But Baltasar Garzón is also an inconvenient judge on the national level. With his investigations into the party financing of the Spanish Conservative Party, the Partido Popular (PP), and against a PSOE minister involved in creating death squads to fight the ETA terrorist organisation between 1983 and 1987, he has made himself enemies in both political camps. This fact is currently backfiring on him as he has come under fire for allegedly exceeding his authorities in the scope of an investigation.

Baltasar Garzón started investigating the crimes of the Franco regime during the dictatorship even though an amnesty was democratically passed in 1977. Three organisations, including the radical right wing party Falange, have sued him for perversion of justice. The Spanish High Court has opened the trial against him and the administrative body of the Spanish judges will decide on Thursday if Garzón will be stripped from his office. Scores of Spanish victim's and civil society organisations, including film stars and directors like Pedro Almódovar, are protesting against the proceedings.

It is an obvious scandal that right-wing parties can not only fend off investigations into crimes committed during the dictatorship but even put the judges investigating these crimes under pressure. Internationally the acceptance for amnesties is rapidly diminishing, a development emphasized by the creation of the International Criminal Court (ICC). The Rome Statute, establishing the ICC, has already been signed by over 110 states with obvious repercussions on the validity of amnesties covering war crimes, crimes against humanity and genocides. Passing the 1977 amnesty would be all but impossible nowadays. An amnesty could only be possible if concrete steps to investigate the crimes are taken and the truth is brought into the open. Those directly responsible for the crimes could not completely evade punishment and the victim's rights would receive considerably more attention today.

In an ironical twist of history, the Argentinean attorney Carlos Slepoy has now declared that he will apply for taking up criminal proceedings in connection to crimes against humanity or even genocide committed by the Franco regime. Ironically, Garzón himself had started investigations against Argentinean Junta leaders in the past, thus contributing to their amnesty being revoked. Now it is possible that we will witness the first case in which Argentina applies the principle of universal jurisdiction itself, another indicator that the relation between Europe and Latin America is changing. Latin America's democracies are sufficiently self-confident today to teach European states a lesson in respecting victim's rights, a thought that will surely cost some Europeans to adapt to.

A victim's organisation has started a collection of signatures against the indictment of Baltasar Garzón at http://www.afeco.org/

*Even though the use of universal jurisdiction has increasingly been limited due to the political fallout of the cases. The criteria for the cases having a direct relevancy for Spain have been strengthened, reason for the failure of the attempt to start investigations into the Operation Cast Lead of the Israeli Defence Force in Gaza by the end of 2008 in Spain.

What Europe and Latin America can learn from each other

In 2010 many Latin American states are celebrating their 200 years of independence anniversaries, called 'bicentenario' in Spanish. Chile, Argentina, Mexico, Venezuela and Colombia are preparing their respective celebrations with growing enthusiasm. In Mexico there will be a soccer tournament to celebrate independence and Colombia sports its own 'bicentenario' hymn. The celebrations also mark a point in history at which the relations between Latin America and Europe were transformed in a decisive way. Simon Bolívar, Francisco de Miranda in Venezuela and Miguel Hidalgo in Mexico, to name a few, all played their part in liberating Latin America from Spanish domination from 1810 onwards. Nevertheless the independence wars were mainly an elite revolution fought by the influential criollos (people of mixed Spanish and indigenous descent) for their own liberty. They did not bring liberty to the indigenous people of Latin America who were still considered of lower social status by the criollos.
The accumulation of independence anniversaries in 2010 is a welcome opportunity to have a look at how Europe and Latin America have fared since the former Spanish colonies gained their right to self-determination.

Europe has witnessed a fundamental transformation during the last 200 years. The ideas of the French revolution were still fresh and the consecutive waves of change were still rippling the political framework of the 'old continent'. The reality of Europe was still dominated by powerful nation states engaged in antagonistic relations and competing for influence within and outside of Europe. Balance of power politics and changing allegiances, accompanied by regular outbursts of war, shaped the relations between Europe's nations.

Today, the continent has grown together politically and economically in the scope of the European Communities. Only small patches of the continent remain outside the Union, either out of their own choice (Switzerland, Norway) or because they are not yet fulfilling the criteria for acceptance as Member States. While non-EU states like Switzerland and Norway are politically and economically integrated despite lacking membership, states like Croatia and Serbia are on their way towards accession.
But political crises like the fallout of the financial and economic crisis show that the cultural differences between European countries remain and sometimes lead to quarrels and misunderstandings. Germans are complaining about the mentality of sloppy accounting of southern Member States like Greece and do not want to pay other people's bills. France is pointing at German selfishness when addressing the growth of the German economy bought at the cost of wage sacrifice and the competitiveness of neighbouring economies.
Every European who has lived for some time in another Member State or has family in another European country has made his experiences with cultural differences. Most of the time these encounters are enriching experiences, opening our eyes for different cultural contexts. But sometimes it is frightening to see how easy it is to be misunderstood when out of one's own cultural context. Add to this mix of European cultures the cultures of the migrant groups living in many European cities and you have a huge variety of different cultural backgrounds crammed together on a relatively small continent. It is probably not surprising that the cultural cohabitation between Europeans of different nationality and migrants from different origins does still not run smoothly.

Latin America on the other hand is still in the process of economical and political cohesion. The difficulties in covering the large distances between Latin American states (intracontinental plane flights are not affordable for a large portion of the population) and the pervasiveness of political conflicts between them are a clear indicator for this. Even though Latin American integration is advancing, there is still a very long way to go. Culturally, on the other hand, Latin America is a remarkable example for a unique continent-wide culture including African, European and Latin American roots. Nobody who has read books by authors from different Latin American countries can deny the closeness in style and the same cultural roots of, say, Colombia's Gabriel García Marquez and Uruguay's Juan Carlos Onetti. The continent shares a common Iberian linguistic heritage, defying the trend of accepting English as the global 'lingua franca'. And the mix of cultures to be found on the continent is a herald of things to come with the advancing globalization. The strength Latin America can draw from its rich cultural heritage in the globalized world of tomorrow is considerable.

On a shrinking planet, the political, economical and cultural cohesion of regions is key for ensuring their influence on a global scale. While Europe has advanced on the political and economical level, it has a lot to learn from cultural cohesion in Latin America. The mix of cultures that respects African, European and indigenous roots could be a blueprint for a culturally unified Europe that does not overwrite its unique and diverse cultures by some kind of standardized culture, but produces a synthesis that is larger than the sum of it's parts. Growing together on a cultural level does not imply to lose the respect for the cultural roots of the different Member States. Latin America is the living example for this.

The Falkland/Malvinas case

The United Kingdom and Argentine are upholding a conflict about the status of a small group of islands in the South Atlantic since decades. Even the name of the islands, consisting of two large and several smaller ones, is contested. The British name is Falkland Islands while they are called las Malvinas in Argentine. Both the British and the Argentinian government claim the islands to be part of their territory. While Argentine sees them as an integral part of their Tierra del Fuego Province, Britain maintains their status as British dependent territory. The Argentinian claim is even included in transitional provisions of its constitution.

The contested islands look back at a changing history of rivaling claims. The British first landed on the islands in 1690. France claimed de facto control over the islands by founding a settlement in 1764. The 1713 Treaty of Utrecht conceded control of the islands to Spain, which lead to the expulsion of French and British settlers from the islands by 1770. The Argentinians first claimed sovereignity over the islands in 1820 after it's independence from Spain. Argentina was still known as the United Provinces of the River Plate Since at that time. Since 1833 there is a fully fledged British colony on the islands. The population of the islands sees itself as British, but Argentine declines their claims for self-determination, stating that the original (Argentinian) population has been expelled by British colonists who thus do not have a genuine right to self-determination.

The conflicting claims from Britain and Argentine first led to real tensions during the Falklands War / Guerra de las Malvinas in 1982. The Argentinian military junta used the claim for the islands as a vent for the growing discontent of the population with the military government. These claims quickly culminated in an Argentinian invasion of the islands in 1982. Contrary to Argentinian expectations, the United Kingdom under Margret Thatcher reacted quickly and sent a naval force to retake the islands. The resulting conflict lasted 76 days and cost the lives of 1000 soldiers and a handful of civilians and ended with the British reposession of the islands. The loss of the islands led to the toppling of the military junta that had originally triggered the conflict to consolidate it's rule.

Argentinian claims for the islands have never since been secluded and have been renewed in 1994, 2009 and 2010. The recent discovery of oil in the sea around the islands has led to new tensions in February 2010. While British companies began preparing the extraction of the oil, supposed to start in 2011, Argentinian President Christina Kirchner declared that Argentine is taking control of all shipping between its coast and the islands in order to hamper the exploitation of the oil field. While there are voices in the international (especially the British) press, saying that President Kirchner is using the Argentinian claim for the islands as a vent for discontent with her government, just like the military junta in 1982, Argentinians are taking the claims as a serious issue of national identity.

A suitable first step to defuse the conflict would be an agreement between the British and Argentinian governments to exploit the oil fields in a joint operation and share the profits. Economical cooperation could then help to unravel the highly symbolical issues that have proctracted the conflict. A conflict between two of the largest and most important states of Europe and Latin America can be a monkey wrench thrown into the process of deeper cooperation between the two continents and it is questionable if a group of remote islands are really worth the price to pay.

A sign on the Argentinian side of its border with Brazil,
proclaiming the Argentinian claim for the islands

Germany's blind spot: Latin America

At the beginning of the year, I wrote a post about Europe's foreign policy vis-à-vis Latin America with hopes for a boost of the relationship due to the Spanish EU presidency. Unfortunately, near state bancruptcies in some European Member States, tragic earthquakes in Haiti, Chile and Turkey as well as a dispute about the creation of the new European foreign service have tied up the EU's resources and a real breakthrough for the EU-Latin American relations is not in sight.

Meanwhile, Latin America has once more underscored its objective of leaving the US-American 'backyard' and becoming an independent region having an important word in global relations with the founding of the Community of Latin American and Caribbean States (CALC) in February 2010. The organization includes all Organization of the American States (OAS) members but USA and Canada, which is a clear signal towards more independence of the region.

Some Member States of the EU have understood that Latin America will be a key region in the future and have intensified their economic ties in the region instead of waiting for a coordinated EU approach towards Latin America. France winds up arms deals with Brasília, supplying a nuclear-powered submarine and probably Rafale fighters. At the same time Paris is courting Bolivia in order to gain access to the large Lithium deposits in the Uyuni salt lake. Non-EU states, like China, are pushing their economic relations with Latin America with even more force. China has become the number one trade partner of several countries in the region. Germany, on the other hand, has slept through most of the Latin American boom.

Companies from Spain, Portugal and Italy seized the moment when Brazil privatized its telecommunication market in the 90's and invested in the growing market that has gained considerable importance now. The Spanish Santander Consumer Bank is another good example for European companies that have seized their window of opportunity in Latin America. In Santander's rise to becoming a global player in the financial sector, it's early investments in the Brazilian banking sector play a crucial role. German companies did not even have a spectator role in all these developments, also a consequence of Germany's foreign policy that focused on India and China while practically ignoring Brazil. When Angela Merkel visited Brazil for the first and only time yet, she stayed for one and a half days, a bad joke considering the size of Brazil. Additionally it took the German government five months to name a new ambassador for Brazil. The downfall of German interests in Latin America is apparant, especially in comparison to the Interwar Years when 'Made in Germany' became a guarantee for quality in Latin America.

Against this background, it should be seen as a positive sign that Germany's new foreign minister, Guido Westerwelle, has declared Latin America one of his main areas of interest. There is definetly enough ground to be recovered for German foreign policy in Latin America to keep a foreign minister busy for a term or two. As a kick-off visit for his new Latin America strategy he visited Argentina, Uruguay and Brazil for five days. Unfortunately, German media's discussion of Mr. Westerwelle's trip mostly focused on one issue: the composition of his fellow travelers. His companion, Michael Mronz, is already an inherent part of his travels abroad. In the case of Brazil, which will soon host the Olympics and the Soccer World Cup, German news media see a commingling of private and professional interests on part of Mr. Westerwelle since his significant other is an event manager. There are speculations that Mr. Mronz used the trip to meet potential business partners on-site. Other members of Westerwelle's business delegation have been linked to himself and his brother, leading to further accusations of Westerwelle not respecting the red lines of his office.
One can only hope that this political discussion will not be the only public reaction to the foreign ministers first trip to Latin America. After all there were five days of talks with high government representatives in Latin America. The results of these talks should receive their fair share of attention in the national media. This is important for fostering the ties between civil society representatives so important in contemporary foreign politics.

Social benefits discussion revisited

Nearly one month ago I wrote a posting on our societal approach towards poverty, addressing the discussion of social benefits in German newspapers, especially a philosophical discussion in German feuilletons. Already some German right wing politicians were attacking the social consensus on welfare that had developed in Europe during decades.

Now, the German constitutional court recently delivered a judgement on the basis for calculating the social benefits. The judges reasoned that this basis is intransparent and does not take all the cost that incur in everyday life into consideration. This was not a judgement calling for a rise of social benefits, but for an overhaul of the basis for calculation. Theoretically even cuts would be possible as a reaction to the ruling, but in some areas the court deemed it obvious that benefits were too low. This especially applies to the rates for children. So far the needs of children have been calculated as a 60% of adult needs, which is obviously nonsense.

Furthering children and ensuring that they have the possibility to obtain an appropriate education can be very costly. Paying for private tutors, schoolbooks, private lessons for the piano or dancing lessons can easily add up to a monthly sum much superior to what an adult needs in the same period. And this does not even include spendings for clothes. Especially young children and teens need a lot of clothes simply due to the fact that they are growing rapidly.

But instead of triggering a discussion of how we can ensure that the poorest of our society can meet their needs and how to avoid that children growing up in poverty will automatically fail to advance in our educational system, the liberal party immediately started a discussion about the worth of labour in the German society. The discussion was spearheaded by the German foreing secretary and vice-chancellor Guido Westerwelle. After 100 days travelling across the globe and showing a reasonable diplomatic performance many Germans had already forgotten that the leader of the German liberal party was not only capable of a diplomatic demeanor but was also one of the loudest demagogues of the country. Now he has reentered the domestic political stage with a bang.

According to Westerwelle, Germany is approaching socialism and "late roman decadence" because people who do not work are leading lives in "wealth", earning more money than people who are working. Well, there is some truth in his claims. Some people work 8 to 10 hour shifts to earn a wage barely surpassing social benefit levels, but decadence is hardly the word for people struggling to get along with about 380 euros per month. Especially in times in which bankers, whose irresponsible gambling cost society a fortune, lose their jobs well endowed with a "golden parachute" or are even looking forward to record bonuses at the end of 2010. Westerwelle is demanding that the weak should be protected from the resourceful and sluggish. According to him, everybody is talking about the recipients of tax money while forgetting about those who pay taxes. 

What he does not realize is that the current asymmetry between social benefits and low wages might as well be a consequence of the increasing pressure on wages and the wage sacrifices of German workers and not following from immorally high social benefits. We do need a discussion about the worth of labour in our society, but from a completely different angle than Westerwelle is suggesting.