Given the wide coverage of the Calvo-Goller/Weigend/Weiler saga, EJIL Talk readers will be well aware of the topic of challenges to academic freedom. This post seeks to draw readers’ attention to another instance involving risks of an altogether different degree, and to raise awareness for what seems to be a worrying attempt, by a court, to silence dissent among academics: the Court in question is the Philippine Supreme Court, which is threatening 37 members of the University of Philippine’s College of Law with disciplinary sanctions for contempt – a charge that may eventually result in the loss of their bar licenses. This is only the latest twist in legal proceedings that from the outside seem altogether surreal, but that involve risks of a very real nature to some of our colleagues. So what is it all about, and why should we care?

What it’s about

The contempt proceedings have their origin in the proceedings of Isabelita Vinuya et al. v. Executive Secretary et al., in which the plaintiffs sought an order requiring the Philippine government to seek reparations from Japan for the mistreatment of Philippine “comfort women” during World War II. The Supreme Court declined the request, and in the course of its decision discussed concepts such as jus cogens and obligations erga omnes. Its discussion was curious because it quoted passages from works by Dr Mark Ellis, Professors Evan Fox-Decent and Evan Criddle and myself without properly attributing them, and, it seems, without really having understood them – hence attempts to apply jus cogens or obligations erga omnes meaningfully were presented as evidence of their questionable status.

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 Christian J. Tams is Professor of International Law at the Univeristy of Glasgow. His publications include Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005).

The International Court of Justice’s Kosovo opinion of 22 July had been much expected. It was one of the not so frequent instances which the world (as opposed to State parties, or a small group of international lawyers) was waiting for the world court to speak. Great expectations can lead to great disappointment. And judging from the first round of reactions and responses on this blog and in other fora, there is indeed a feeling of disappointment: of course among those who expected a different outcome, but also among those who would have hoped for a fuller discussion of the legal issues raised by the unilateral declaration of independence of 17 February 2008.

I share many of the points made in the posts by Dapo and Zoran in their posts on this blog, notably their surprise at the Court’s strained conclusion on the identity of the authors of the declaration of independence – a readjustment of the request that is rightly criticised by Vice-President Tomka in his declaration. Instead of reiterating my agreement with other criticisms, I will use this comment to make two broader points on the scope of the opinion. The first comes back to the “minimalist” focus of the opinion, and essentially is an attempt to shift some of the blame away from the Court. The second is a reflection on what seems to be the crucial substantive statement of the opinion – namely that general international law does not prohibit declarations of independence.

A narrow answer to a narrow question

First, the Court’s minimalism. Few fail to mention it, some even speak of a “non-opinion”. I agree: the Kosovo opinion is narrowly argued, and its advisory value limited. But unlike some others, I do not think the Court can really be blamed for that. Of course, some of the judges may have been relieved to offer a narrow/cautious/minimalist reasoning, yet this is not unusual: when faced with high profile disputes courts often decide to be technical, and the ICJ is no exception. The real point is another one, and while obvious, I do not think it is properly reflected in the discussion so far. It is this: (more…)