Law double-edged sword...

There are times when I get the need to escape from the everyday parade, uproar and tumult and really think about what is happening around me. These are times when I step back into silent contemplation and musing, complete seclusion. I just thought, how little and powerless we are as individuals against the machinery that is driving the world. The so-called 'law' that we lawyers have learned to revere and analyze, is in fact a double-edged sword. Yes, it can empower the weak, the oppressed, those without power... But increasingly and devastatingly, it is a tool in the hands of the powerful against very those it was designed to protect... It is a tool to disempower, disenfranchise, destroy the will of ordinary people. Injustice through legal channels and under the guise of the law is commonplace. The Bill of Rights is in the gutter. I speak to older lawyers who tell me, 'We won't be a free society in fifty more years.' Someone in fact said, 'Are we a free society today?!' Those in power have the upper hand over the U.S. Constitution, its interpretation, its application, its very existence. The liberal institutions upon which this country has been built and has survived, now are cast into permanent oblivion. Because of economic crisis, people only care about the daily sustenance, not the rights they once enjoyed... But they do not realize that economic-social rights are part of their rights they have lost. Corruption, impunity, complete lack of accountability are commonplace. Police harrassing, intimidating, threatening and beating up people in the streets. No one seems to care. No one seems to talk about these things. You have no right to privacy, no right to speak your mind, no right to walk in the streets freely and fearlessly... The monster is driving the world... and there is no end to be seen.

The law is being used very wittingly and cunningly by those in power against the very those it was designed to protect.

President Obama is trying hard to work with those who do not share his values. Meanwhile, his own values-- values that earned him his popularity and victory-- are dissolving. He is not standing by his promises to unravel the damage brought upon this country by the monster... The promise was exactly that: to uphold the values he was espousing but is now slowly eschewing... Did American progressivism die with Ted Kennedy?! That is the question.

Cycles of history and historian's puzzles

I have posted on my blog about how history gets repeated with amazing regularity here.

March 5, 1946, Fulton, Missouri, Winston Churchill made his historic speech "Iron Curtain", a precursor of the ensuing Cold War. here

September 18, 2008, Washington DC, German Marshall Fund, Condoleezza Rice has made her speech on US-Russian Relations, a precursor of yet another open 'War' between the two countries. here

Puzzling and disconcerting...

September 3

2004, the Beslan school massacre in Russia came to an end after a terrifying two-day siege, when Chechen militants took more than 1,100 people hostage. Most of the victims were children, many of whom died after long torture... Bodies were found burnt beyond recognition... and many more were missing... It was just one more reminder that the war on terror is everyone's war and terrorism cannot disappear without consolidated efforts. [Of course, how you fight that war is a subject for another day and another post]

1783, the American War of Independence ended after eight years of fighting with the signing of the Treaty of Paris by the U.S., Spain, France, and Great Britain. The British recognized the independence of the U.S.

"Do not wait for leaders; do it alone, person to person." [Mother Theresa]

Hopes high too soon

These last 4 or 5 years a lot of people have been wondering whether the Cold War is renewed... Pausing and thinking about it leads to an even more thought-provoking conclusion that perhaps it never ended. The Bush Administration's ambitions about world superiority and continued presence of the NATO in the region when the Warsaw Pact disintegrated and the Berlin wall came down refreshed the deep-seated insecurity of Russia. Putin's leadership restored the Russian sense of national pride and brought a set of ambitions surrounding prospects of world leadership. Now continued expansion of the NATO and probable joining of Georgia and Ukraine is troubling to Russians. Medvedev in tune with Putin has reiterated his concerns (for a story). What has been going on in Georgia and Ukraine in these last couple of decades stems in large part from Moscow's unwillingness to 'surrender' its radar influence on these former republics, determined to follow the political schedule and agenda of the United States. Naturally, these two republics will be hot spots for a long time because of the division between pro-Russian and pro-American philosophies. Some of the Central Asian republics and the Caucasus will also be included, specifically Uzbekistan and Azerbaijan.

Wasn't this story dominating during the entire Cold War? Each superpower fought for bringing others into its sphere of influence in opposition to the other. This whole mentality is continuing... We took a sigh of big relief when the Cold War was 'announced' to have been over... While the Soviet Union is gone and will exist only on the historic maps, Russia/Moscow as the focal center remains as a player...

2008 elections

Why the 2008 elections are so important for the US? People talk a lot about the economy, oil crisis, big business, jobs, the middle-class... They talk a lot about the health care, incompetence and broken machine in Washington. Of course, they also talk a lot about the war in Iraq. But, while important, these are little pieces of a mozaic, little tidbits of a larger picture that we should not forget to look at. These elections are about the identity of America, its place in the world as a nation. It is about the definition of democracy. It is about how the US can continue defending itself as a nation against perceived and real enemies without shedding human rights, without reneging on the promise of democracy, without resorting to hypocrisy in its relations with other nations in the world. It is also about the ability to co-exist with others in the world and not impose values on other peoples around the globe. Patriotic Americans much too often cross the line from benevolent patriotism to xenophobic nationalism, which has given its deplorable fruits in these last years. We do not have to be the most prosperous nation in the world when the rest of the world is enmeshed in poverty. We can learn from other nations in things they have done better than us. We do not have to be the 'strongest' nation militarily and intimidate others, wiping out all those who disagree with us. Can we be an example? Can we be a leader? Sure. But only if we uphold the deep values that have been at the core of this country from the beginning.

So, when you are listening to all the media stories, about all the imperfections of all candidates, search and find the big picture, do some heart-searching when voting.

(Find out more here about the Bush Administration's actions in the war on terror.)

International law making

Since treaties are crucial in international law-making, their formation, application and interpretation is also of great significance. The law governing this process is prescribed in the Vienna Convention on the Law of Treaties (1969). Perhaps this Convention is the crux of international law because the conduct of States in relation to international treaties indirectly reveals the ‘power’ or ‘weakness’ of international law. The power or weakness of international law in its turn will dictate the world order. When I say ‘power’ I mean legal consequences for violation of law.

Several provisions should be cited here:

Article 27:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

Article 46:
(1) A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

Article 19:
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation, unless:
a) the reservation is prohibited by the treaty;
b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

There is no question that States are bound by treaties they enter into. The problem is how they perform their obligations in light of their interpretation of a treaty. So, performance is very much dependent on ‘interpretation’ of a treaty in the background of internal law. Also, what symbolic power does signing of a treaty have in the absence of consequent ratification by that State? For example, the US has put his signature under many many treaties, but later failed to ratify and even tried to ‘unsign’ them. Isn’t commitment or ‘consent to be bound’ expressed in the signature? What effect does the failure of ratification have on the power of international law? The US constitutional process in treaty-making is of illustrative importance.

Article 11 states:
The consent of a State to be bound by a treaty may be ex-pressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

The US signed under the Rome Statute of the International Criminal Court on December 31, 2000, expressing its intention to be bound by the treaty creating the ICC. However, very soon a letter from the Under Secretary of State for Arms Contol and International Security, John R. Bolton to Kofi Annan said:

This is to inform you… [in connection with the Rome Statute] that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature… The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.

'Consent to be bound' and at what stage it becomes effective is important in terms of the commitment of the State in performing under the treaty. Of course, the role of internal elites is also important. A state is not an abstraction, but a directive effort of its elites, elected officials. Bill Clinton’s administration signed the ICC statute, and Bush’s administration effectively ‘unsigned’ it. How the failure to ratify this statute by the US affected the significance and further development of the ICC is a subject for further lengthy discussion. This is how elites play a crucial role in the making of international law.

(As a footnote, the US signed the Vienna Convention but has not ratified it. However, as the State Department states here, the US considers many of its provisions as customary international law.)

Accountability and transition from democracy to dictatorship

What happens when the government ceases to be accountable to the people? How does it happen? What are the signs of this illness and how can they be detected early? How can the people assert their will and not allow that to happen? Are elections sufficient? How can the electoral process be improved?
Even the most democratic government can turn into a dictatorship over time. This does not happen overnight. It is a long process with many ebbs and flows, with many false hopes and failures. But it is very much dependent on the relationship between the government and people. The two are in a diametric opposition to each other in some contexts (such as civil rights) and in concert in others (such as national defense).
But often it is the people who ‘permit’ or allow their government to slip into unaccountability and prospectively into a dictatorship. You may ask, what if the political elites are simply insensitive to the signals emanating from below, the populace. What if they engage in a tactic of saying one thing and doing quite the opposite. What if they turn a deaf ear to the populace or often blame their lack of response to other external factors. In a democratic country we have elections that hopefully can bring forth new elites, who could perhaps not repeat the mistakes of the former. But the new elites build on what they inherit on. They can never start from scratch. If there is damage of great proportions inflicted by the yesterday elites, how do you suppose the new elites can repair all of that? It is simply impossible. Since most people by virtue of their nature cling to the status quo, things get into a settled pattern. Therefore, the new elites can only continue the trodden paths, even when they have the best intentions.
But had the people not allowed the old elites gone so far, they would not have ended up with no choice.

Lack of accountability to its people also translates into lack thereof to the world. If you don’t care about your own people’s will, you will care less about the opinion of the world community. Thus civil rights violations at home, a necessary by-product of unaccountability, will also result in human rights violations abroad. There is no secret about it. It all extends in a linear fashion.
You may ask how people can stop a democracy from turning into a dictatorship? In this highly sophisticated, highly commercial world of material values, people are caught in the whirlwind of a culture that is not civic any longer. However, time goes very fast and one day they may wake up and not be able to control their very lives. Peope may miss the train unwittingly.

No government in the world was born to be a dictatorship. It is the people who ‘permit’ and allow it to turn into such by their complacency and inability to speak up. You can speak up in many different ways, such as voting, getting engaged in your community, or simply getting involved in local politics.

For example, at its inception in 1919 the Soviet Union was by its design and nature, a government for the people essentially… The very purpose of the Great October Revolution of 1917 was to topple the Tsar, who was deeply insensitive to the people and institute a government ruled by people, the working class and peasants. At its birth it was essentially a ‘democratic’ government, despite the fact it was energized by Marxism rather than the Western liberal ideals. (Many may disagree with this, but it all depends how you define ‘democracy’). However, very soon the Communist Party emerged. Crucially, people voluntarily subordinated themselves to the will of the Party and allowed the Party to slowly turn into an absolute dictatorship. There was resistance but unorganized and haphazard. This was all under the name of the ‘proletariat,’ the working class. It soon ceased to be accountable not only to its people, but also to the entire world. But it was the people after all who ‘permitted’ that to happen. Nobody wants violence or revolutions to topple governments. I am talking about civic resistance-- by becoming a member of a civic society.

Think about the Iraq war, the Bush administration’s actions at home and abroad. Think also about the paradox of Bush’s reelection.
Some may say, national security is paramount in times of crisis. But does national security have to come at a price of a democracy? Is it really necessary to turn into a dictatorship to protect our homeland? Can’t a democracy do it better?
Democracy/human rights and national defense are not mutually exclusive. We also have to be very critical in our definition of ‘crisis.’ An act of terror is not an invasion into one’s country, which would warrant invasion into another. If that was so, all countries on Earth would be justified in invading one another, because acts of terror occur in each and every one of them, with varying severity. So, there are different levels of ‘crisis.’ As far as protection against perceived and potential threats, there are many more means of doing so, such as diplomacy and economic incentives, without turning into an absolute dictatorship.

Aren’t we permitting a wonderful democracy that we used to have to slowly turn into a dictatorship? Perhaps we will wake up in half a century and America may have missed the train…

Think about this, when you go to vote next time in the elections! Think about the extinction of the civic society in our culture and the damage flowing from that...

Gorbachev... Yeltsin... Putin

The three Russian leaders were destined to leave a lasting mark on the history of Russia, each his own way. Mikhail Gorbachev was to let the gin out of the bottle and make a courageous U-turn for Russia towards political and economic reform. When he came to power, the Soviet Union was in deep trouble, economically, sociologically and internationally. An incorrigible idealist and an admirer of the West, Gorbachev committed to reform. While his heart was in the right place, the course he took was not rational. You cannot destroy and build a new house overnight. His policies therefore were simply suicidal for his political life and for the country. The 'shock therapy,' the uncontrollable and unattended privatization were going to be a Tsunami for the Soviet way of life. A comparison of his policies with those of the gradualist Deng Xiaoping (1904-1997) in China reveals how systematically wrong was Gorbachev. China was not in a better shape after the insanity of Mao Zedong, when Deng Xiaoping took over. Today China's economic boom is a product of the clever policies of this man. (For more on this read China expert, Richard Baum's "Burying Mao.")


Therefore, Gorbachev spelled the seeds of disaster for Russia, while he must be given serious credit for commitment to bring needed reform to the USSR and the end of the Cold War. Yeltsin was even more incompetent. While he was also an idealist like Gorbachev, he had no clear vision of how to forge the reforms in Russia. During his time, Russia went into a deeper depression, economically, politically and sociologically. He gave free reign to the oligarchs and oil magnets, who plundered the country's natural resources and pocketed the money without paying to the treasury. The so-called "new Russians" acting as businessmen were allowed to commit the worst financial crimes with impunity. The complete absence of social services and unregulated free markets created an abyss, a huge gap between the rich and the poor, unseen of in the former Soviet Union. The poverty in Russia during Yeltsin can be compared only to that of during the Tsars. Organized crime was infiltrating all segments of the government and bribery, worse than it was during the Soviet Union was commonplace. I know this from firsthand experience because I lived in Russia during this period.

While Yeltsin should not be held responsible for all these problems, his incompetent presidency was a scourge for Russia. His health and alcoholism contributed to it. Idealism of Gorbachev and Yeltsin was not paying the dividends because it was not rational. Bill Clinton also was an idealist, but he was very rational and therefore, successful. Of course, Bill Clinton did not inherit a post-Communist country, to give some break to Yeltsin.


Russia was sinking like a big bag of stones thrown into the river when Putin took over. In contrast with the irresponsible idealism of Gorbachev and Yeltsin, this was a realist and pragmatist. Beginning from his serious demeanor and posture and ending with his policies, finally this was a man that rolled up his sleeves and went to work. His unquestionable popularity in Russia during his entire presidency associate his figure with that of Peter the Great (1672-1725)-- not a bad accomplishment, while of course, Peter the Great was a benevolent despot, similar to Napoleon.

He began with an anti-corruption campaign-- his biggest contribution to the country. Watching Russian TV, I am amazed with the number of prosecutions commenced for bribery on a daily basis. Bribery at all levels of government bureacracy was the biggest plague in the entire history of the Soviet Union. Putin's commitment to fight it is very courageous, because behind this corruption is the Russian mafia. Second, he went immediately after people like Berezovsky and Khadorkovsky. His goal was not to exterminate the big business. He understood Russia's strategic interests in oil. But he forced them to pay the taxes that they had ignored to pay for a decade. The 'stick' was nationalization of industries. Putin did that, to the great dismay of capitalists in the West and was attacked as anti-democratic. Perhaps, people will remember Roosevelt's steps taken to take the country out of the Great Depression. Putin had no choice.

Internationally, just like Peter the Great, Putin sought European integration. While Yeltsin also should be given credit for this, Putin continued these efforts strongly than ever. He played a major role in abolishing the death penalty. Today Russia does not impose the death penalty even for terrorists. Russia surrendered to the jurisdiction of the European Court of Human Rights, which now is flooded by cases from Russia. In the aftermath of the 9-11 Putin offered his genuine help to the US to combat terrorism, unaccepted by the over-confidence of the Bush administration, who chose unilateralism instead. The war in Iraq undermined the relationship between Russia and the US, because Russia's contracts in Iraq dissolved as a result.

The US plans for the Missile Defense Shield and decision to place strategic nuclear rockets in Eastern Europe further challenged Russia as a world power. Putin who set out to take his country out of the psychological depression of the 90s, has taken steps to countermand the US expansion and superiority in the world. His partnership with China through the development of the Shanghai Cooperation Organization has many realpolitik goals.

Russia prior to Putin reminded of the Germany in post-World War I. It felt humiliated. Nationalism bordering to Nazism was flourishing. People like Vladimyr Zhirinovsky were yelling the wipe out of Jews and of all non-Russians (very similar to Ahmadinejad of Iran). While nationalism is still very prominent in Russia, Putin was able to bring stability to the country by his calm and rational behavior as a politician. Moreover, his intelligence level is much higher than that of any Soviet leader. It should be noted that most Soviet leaders were never to the liking of the people. Putin was the first in many decades to win the hearts and minds of people.

There were many downsides to the institution of stability. It came at the expense of the democracy we portray in the West. Freedom to speak your mind and uncensored criticism are still not accepted well in Russia. The Russian mafia is still strong, while is under control. Chechnya, while stabilized during Putin, still is breaking the record of human rights violations. There is still much work to be done to develop the technology, industries and social services. Also the strong leadership of Putin has created some aura of the cult of personality, very similar to Maoism or Stalinism. But Putin's figure is much akin to Peter the Great in the minds of people, not ever to Stalin-- a good sign.

Putin was able to repair the fallen image of Russia, which is a double edged sword. On one hand, it recreates the balance of powers, absent from the world arena in these couple of decades. We saw how many troubles we have had because of the unipolarism. Islamic fundamentalism was an outspring of that. On the other hand, if Russia asserts itself as a world power like it used to, we will probably be very close to the brink of another Cold War. Competition between superpowers with nuclear weapons is a Hobbesian tragedy...

With all his shortcomings and failures, Putin stopped the sinking of Russia and did many positive things for his country, hence his popularity. The opposite is true of Bush, who in fact caused the sinking of the US... Very sad, given the differences between a post-Communist struggling country inherited by Putin and a strong functioning democracy with an excellent economy inherited by Bush...