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A Further Note on Civility and the Moderation of Comments on EJIL: Talk!

Published on November 17, 2016        Author: 

In a recent Editorial EJIL reconfirmed its commitment to a robust policy of freedom of speech and academic freedom. A few weeks ago I also noted that:

We welcome robust and critical analysis and comment — including the slaughtering of Holy Cows. We welcome both the harsh and the whimsical. But it has always been the policy of EJIL that we endeavor to maintain a tone that does not offend good taste and that in interpersonal exchanges — in our debates in EJIL and in comments on EJIL Talk — disagreements are expressed in a non disagreeable manner.

One’s commitment to the freedom of speech and academic freedom is tested when confronted with speech with which one strongly disagrees and might even consider offensive. The ability to respond, contest and debate, on equal footing and in the same forum, is often time the best form of dealing with these issues — which is the default policy of EJIL in all its outlets — the Journal itself with its policy of EJIL Debates, EJIL Talk! and EJIL Live.

There are limits to all freedoms, especially when they conflict with other equally fundamental values such as dignity or reputation – though where exactly these limits lie is an issue itself hotly contested. Our tendency is to err on the side of academic freedom and freedom of expression. In the libel suit against EJIL we vigorously defended a contested book review, but as we stated there, had we considered that the contested book review had crossed the line into defamatory territory we would have withdrawn the book review. The French judiciary confirmed our assessment that the line had not been crossed, offensive and painful as the author of the book in question found the review.

Censoring the substance and material content of a position is thus something that should be done with great caution and only in extremis, no matter how offending one finds the contested opinion.

EJIL: Talk draws another line, that of civility of discourse, particularly pertinent, given the nature of the forum – unedited, non-refereed, comments – and the habits and customs of unbridled talkbacks rife on the net. We would feel such is inappropriate on the blog of a scholarly journal as we understand ourselves.

The comments in response to the recent post on the future of the SOGI mandate give rise to these issues. To judge from some emails I received, some of our readers considered that the substantive content of some of the views expressed were unacceptable for publication. I do not think that they reached that level. I have placed this type of question on the agenda of the next meeting of the full Editorial Board so that it can be addressed with the necessary deliberation and gravitas.

But on one element in that exchange it is our duty to take a position right now. We are aware that in the passion of a debate on strongly held beliefs, the line might be crossed inadvertently. Be that as it may, the ad personam characterization of Mr Vitit Muntarbhorn  as a “a political ideologue [rather] than a serious human rights lawyer,” crosses, in all the circumstances of the case, the limits of civil discourse to which EJIL aspires. Not surprisingly other similar personal characterizations followed.

In writing to me some readers used very similar characterization of the authors of these comments –  but such views would be equally unacceptable for publication in EJIL Talk!

I have therefore decided, in consultation with the Editors of the Blog, in light of the unfortunate turn in the tone of discussion in the comment thread to the post on the SOGI mandate, to close the thread for further comment. The editors of the blog do not wish to engage in substantive censorship, but incivility will not be tolerated and infringing comments will be moderated as appropriate under the circumstances.

I repeat yet again: We welcome robust and critical analysis and comment — including the slaughtering of Holy Cows. We welcome both the harsh and the whimsical. But it has always been the policy of EJIL that we endeavour to maintain a tone that does not offend good taste and that especially in interpersonal exchanges disagreements be expressed in a non-disagreeable manner. Critical in content, civil in expression.

I have asked the Editors of the EJIL Talk! to be vigilant in ensuring the continued civil tone of the blog. We expect contributors to the blog to respect its sensibilities.

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Filed under: Editorials, EJIL, EJIL: Debate!
 

A Note on Civility from the Editor in Chief

Published on October 30, 2016        Author: 

As Editor in Chief of EJIL I also hold overall responsibility for EJIL Talk and EJIL Live — all part of the EJIL Community. I want to post a reminder about our policies in all EJIL publishing vehicles: EJIL, EJIL Talk! and EJIL Live. We welcome robust and critical analysis and comment — including the slaughtering of Holy Cows. We welcome both the harsh and the whimsical. But it has always been the policy of EJIL that we endeavor to maintain a tone that does not offend good taste and that in interpersonal exchanges — in our debates in EJIL and in comments on EJIL Talk — disagreements are expressed in a non disagreeable manner.

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Comments Off on Book Discussion: Taking Economic, Social and Cultural Rights Seriously in International Criminal Law: A Response to Cryer, Stahn and Van den Herik
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ESIL-International Human Rights Law Symposium: Human Rights and Development Regimes – Reflections on Convergence and Influence

Published on February 10, 2016        Author: 

Human rights and development interact in a range of ways. They occupy many of the same spheres and this has increased due to the expanding reach of the development policy and activities alongside the proliferation of IHRL. Moreover the overarching goals of human rights and development regimes may be argued to enjoy a purposive affinity, particularly in areas of social and human development. Despite this interaction and affinity however, the relationship between these regimes evidences an evolution along separate tracks and development regimes’ relative autonomy from human rights law and general law may exemplify the fragmentation of international law.

This comment considers the degree to which human rights law has influenced development regimes, exploring the place of international human rights obligations in development policies and their impact in operational terms. Despite substantive overlaps and certain affinities, when assessed from the perspective of obligations, the uptake has been inconsistent and the direct influence quite limited. Viewed from the perspective of principles however, the uptake and influence are more extensive: the place of human rights principles such as participation, accountability, inclusion, equality and non-discrimination and attention to vulnerable groups is now rarely contested, even within mainstream development regimes.

What are the reasons for this differentiated influence? There are important qualitative differences between the frameworks governing human rights and development regimes. Law and legal accountability are defining hallmarks of human rights, which remain a quintessentially legal concept. As Coomans, et al. have written “[L]aw has remained central to the notion of human rights. […] it is law that authoritatively defines a society’s understanding of what are human rights.” Development, for its part, is underpinned by global goals such as the Millennium Development Goals (MDGs) or the Sustainable Development Goals (SDGs), and by the policy frameworks and strategies of development institutions, which do not generally rely upon international legal norms in direct or explicit terms. The binding legal frame of reference for development cooperation emerges either at the level of the constitutive instruments of development agencies (between member countries) or at the transactional level of individual legal agreements governing particular operations (between the agency and a client country). While each of these instruments is an international treaty under public international law few international development policy frameworks are defined in terms of international legal obligations: the text of both the MDGs and the new SDGs evidence this. Read the rest of this entry…

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Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC

Published on December 3, 2015        Author: 

Editor’s Note: This is the author’s concluding post in the EJIL:Debate! regarding an article in the current issue of EJIL Vol. 26 (2015) No 2, by Stefan Talmon. The original post is here. See also the posts discussing the article by Omri Sender and Michael Wood, Harlan G. Cohen and Fernando Lusa Bordin.

I am very grateful to Sir Michael Wood and Omri Sender, as well as Harlan G. Cohen and Fernando Lusa Bordin, for their thoughtful comments on my EJIL article. Both Harlan and Fernando seem to agree with my main propositions and, in particular, with the proposition that the ICJ, in order to determine rules of customary international law, uses induction and deduction as well as assertion. They raise interesting questions that I did not address in my article, such as why the ICJ was not more interested in developing a clear methodology and why States might actually prefer ‘methodological mayhem’, or the flexibility of methodological uncertainty, over the strict application of the inductive method or a relaxation of the demands of that method. Their contribution takes the debate further and may be read as a complement to my article.

In the following, I will focus on the comments of Sir Michael Wood and Omri Sender, who are more critical of my propositions. I will only deal with their substantive comments and leave readers to decide for themselves how many eyebrows they would like to raise while considering what the authors identified as ‘some bold statements’ in my article without, however, specifying their concerns. Let me respond to their counter propositions one by one before offering some final remarks on the work of the ILC, and thus Sir Michael’s work as its Rapporteur, on the identification of customary international law. Read the rest of this entry…

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