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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there, had we considered that the contested book review had crossed the line into defamatory territory we would have withdrawn the book review.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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Editorial Changes at EJIL:Talk!

Published on November 1, 2016        Author: 
Monica Hakimi

Monica Hakimi

It is a pleasure to announce additions to the team of editors at EJIL:Talk! We are delighted to announce three new Contributing Editors to the blog. They are:

Monica Hakimi who is Professor of Law at the University of Michigan School of Law where she was until recently, Associate Dean for Academic Programming. She previously served as an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State where, in addition to other tasks, she served as counsel before the Iran-U.S. Claims Tribunal and worked on cases before the International Court of Justice and U.S. federal courts and agencies.

Lorna McGregor

Lorna McGregor

Lorna McGregor, who is Professor at the University of Essex Law School where she is also Director of the Human Rights Centre at Essex University. Lorna is Co-Chair of the European Society of International Law’s Interest Group on Human Rights and a Commissioner of the UK Equality and Human Rights Commission. She is currently leading a number of funded research projects including acting as Co-Director of an ESRC Large Grant on Technology, Big Data and Human Rights; Principal Investigator of a Nuffield-funded project on the role of National Human Rights Institutions in Complaints-Handling; and a Co-Investigator on a British Academy Newton Fund grant on The Effects of International Human Rights Law on Public International Law and its Sub-Branches.

Andreas Zimmermann

Andreas Zimmermann

Andreas Zimmermann is Professor of International and European Law at the University of Potsdam, Germany, and Director of the Potsdam Centre of Human Rights. He has advised the German government in various capacities including being a member of the Advisory Board of the German Ministry of Foreign Affairs on United Nations issues as well as of the Advisory Board on International Law. He has been counsel in several cases before the International Court of Justice and inter-State arbitration. Has also been judge ad hoc at the European Court of Human Rights.

They have written in the European Journal of International Law and are previous contributors to the  blog. We look forward to their contributions over the coming months and years. Remaining on the team of contributing editors are Anne Peters and Christian Tams.

Rotating off the team of contributing editors are Matthew Happold and Antonios Tzanakopoulos. We owe a debt of gratitude to Matthew and Antonios for their contributions to the blog over the past few years. We hope they will continue to write for the blog as guest contributors.

We are also very grateful indeed to Iain Scobbie whose tenure as a co-editor of the blog ended earlier this year. Also leaving us earlier this year was Geraldo Vidigal who gave really valuable service as Associate Editor before moving on to take up a position in the Legal Service of the World Trade Organization.

Geraldo was replaced as Associate Editor by Dr Helen McDermott who is a research fellow at the Individualisation of War project at the European University Institute, an Associate of the Oxford Martin Programme on Human Rights for Future Generations and a Visiting Fellow at the Blavatnik School of Government at the University of Oxford.

We welcome the new members of the team!

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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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New Issue of EJIL (Vol. 27 (2016) No. 3) Published

Published on October 10, 2016        Author: 

The latest issue of the European Journal of International Law (Vol. 27, No. 3) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Deborah Whitehall’s A Rival History of Self-Determination. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

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Continent in Crisis

Published on October 7, 2016        Author: 

Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:

I have invited Jan Klabbers, member of our Scientific Advisory Board, to write a Guest Editorial for this issue of EJIL (Vol. 27 (2016) No. 3).

In the early 1990s, when many were dancing in the streets to celebrate the fall of the Berlin Wall and the long-awaited arrival of the end of history in the form of a liberal victory, historian Mark Mazower was working on a book that would caution some sobriety. The victory of liberalism, he wrote, had not been inevitable, nor due to its inner charms and attractions; it had, instead, been hard-won, locked in deadly battle with the forces of totalitarianism both on the left and the right. The fact that liberal democracy came out victorious owed as much to the failings, structural and strategic, of fascism and communism as to liberalism’s own virtues. If anything, so Mazower demonstrated, Europe has always been a rich and fertile soil for totalitarian movements; the fact that these were momentarily defeated should not result in too much complacency and self-congratulations about European values and all that.

Recent events demonstrate painfully just how correct Mazower’s assessment was. While communism remains largely dead and buried (unless one counts the surprise emergence of left-wing politicians in the UK and even the US as manifestations of a resurgence), Euro-fascism is clearly on the rise again. This is visible in Hungary and Poland, where the Rule of Law has been all but abandoned or, in an alternative narrative, cynically deployed so as to undermine itself. This is visible in much of the Balkans, with governments building fences and walls to keep out people fleeing persecution and destitution. This is visible in the streets of Finland, where self-appointed vigilantes patrol the streets at night in order to fight largely imaginary crimes, and find considerable encouragement in the speech by which the President inaugurated the parliamentary year in 2016. This is visible in Denmark, which enacts laws to strip poor people of their belongings so as to pay for being treated unkindly. This is visible in the streets of Germany and the Netherlands, with Pegida demonstrations demanding attention. This is visible in Ukraine, where the streets are filled with Russian militias. This is visible in the United Kingdom’s rediscovered isolationism mixed with delusions of grandeur. This is visible, in short, all over Europe: the triumph of liberal democracy is quickly giving way to the triumph of what can only be called some kind of fascism. And it is not limited to Europe, if the presidential campaigning in the US is anything to go by: who would have thought, even a few months ago, that a vulgar loudmouth such as Donald Trump, not hindered by any trait of common decency, would stand any chance of success? Read the rest of this entry…

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There is Chutzpah and Then There is David Cameron

Published on October 6, 2016        Author: 

It is hard to translate the Yiddish word Chutzpah. Cheek doesn’t quite capture it. ‘What a cheek’ is not the same as ‘What Chutzpah’. Chutzpah involves a certain brazenness. ‘What Chutzpah’ is usually associated with a rubbing of the eyes or a shake of the head in disbelief. Even a kind of perverse admiration. The classical example of Chutzpah is the son who kills his mother and father and then turns to the judge and pleads: Mercy, I’m an orphan.

Cameron has taken Chutzpah to new heights.

A good place to start would be in the final weeks of the campaign when Cameron’s refrain was ‘Brits don’t Quit!’ Rub your eyes – this from the Brit who just months earlier had presented his ‘either we get this and this and that or, well yes, we quit’. Takes some nerve, does it not? Of course to have any credibility in his pre-referendum Brussels negotiations he would have to sell himself and his country as ready to quit.

You would think that in playing against the grain of ‘Brits don’t quit’ there would have to be something huge at stake. You may just remember the weeks that became months when the world and its sister were waiting for him to present his list of demands. You will certainly not have forgotten the disdainful disbelief from all and sundry when he finally presented his Potage of Lentils – that thin gruel of demands for which he was willing to gamble the future of the UK membership of the European Union and much more.

It was also an insult to one’s political intelligence. As a ploy to address internal party politics – the real reason behind the whole unfortunate manoeuvre – did he really believe that even if his demands were met in full (and they mostly were) this would keep the wolves at bay? Even more damning in my view, it was clear that Cameron never grasped the serious problems of the European construct which, if one were to use the ‘nuclear option’ of threatening to quit, could and perhaps should have been raised. Read the rest of this entry…

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On My Way Out – Advice to Young Scholars III: Edited Book

Published on October 5, 2016        Author: 

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the third instalment and it is one in which, even more than my earlier instalments, I look back ruefully and in St Augustine fashion offer a ‘don’t do what I did…’ set of suggestions.

A more appropriate title would have been Unedited Books and the crux of my advice is – proceed with caution, avoid if at all possible.

The routine is well-known and well-practised. You receive an invitation to present a paper at some conference. You accept (see below). You may adapt something you have already written or something that you are working on which is in some way connected. It is often not exactly what the conveners had asked for or had in mind, but perhaps close enough so as not to have to reject the invitation. The conveners are often accomplices in this little approximation. They are committed to the conference; it is often part of some grant they have received. Almost always you are pressed for time – after all it is not as if these invitations arrive when you are sitting back, twiddling your thumbs and looking for things to do. In general they are disruptive of your flow of work. So the result is not as good as it might have been. Sounds familiar?

You attend the conference. It shows. The papers presented are of very variable quality and relevance. There is the usual conference overload so that the habitual 10-15 minute ‘commentator’ input may be interesting but of limited value to your paper. The general (‘unfortunately we only have xx minutes for questions’) discussion is even less so – how many actually read the papers (which not infrequently arrive two days before the conference)? Still sounds familiar? Read the rest of this entry…

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From the Editor’s Mailbag

Published on October 4, 2016        Author: 

The following are two letters received from Claus Dieter Ehlermann and Robert Howse respectively.

“I am writing to you as Editor of the European Journal of International Law about the recent article by Robert Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’ in the EJIL, Volume 27, No. 1 (2016). At page 41, Professor Howse devotes a paragraph to the resignation of Debra Steger, the first Director of the Appellate Body Secretariat, in late March 2001.

As Chair of the Appellate Body at that time, I would like to offer some facts to avoid misunderstandings.

First, as WTO Director of the Information and Media Relations Division, Keith Rockwell, said at the time, Professor Steger resigned for personal reasons. Second, the Appellate Body Members have always held her in the highest respect, she has always been very loyal and respectful to us, and we remain very close friends to this day. Third, there was absolutely no linkage whatsoever to the EC-Asbestos amicus brief issue. All seven Appellate Body Members and Professor Steger were in complete agreement on this issue and case all the way through.”

C-D.E.

“We should all be grateful to Claus-Dieter Ehlermann, former Member of the WTO Appellate Body, and one of its original Members, for clearing the air concerning the Appellate Body’s relationship with its Secretariat, and particularly the head Debra Steger, during the turbulent formative years that were marked by, inter alia, the controversy over amicus curiae briefs.  I have always had excellent amicable professional relations with both Dr. Ehlermann and his former Appellate Body colleagues, as well as with Ms. Steger; given my high esteem for all involved it is comforting to be assured that the controversy in question did not in any way test or strain a vital working relationship that was very likely crucial to the Appellate Body’s early success as a true trade court.”

R.H.

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Conflicts of Interest in the Editorial Process

Published on October 4, 2016        Author: 

EJIL encourages the submission of articles that challenge received knowledge and subject institutions of the international legal order to critical scrutiny. Inevitably, this may result in conflicts of interest in the editorial process. Members of the Board of Editors are not remote from the life of international law. They write articles and books, act in cases, serve on courts and tribunals. From time to time we receive a submission which may implicate such: be critical of a book or article written by a Member of the Board, relate favourably or otherwise to a case decided by a Member of the board or in the process of being decided, etc. Our standard practice when such a conflict of interest comes to our attention is immediately to recuse the Member in question from any editorial decision pertaining to the item concerned.

Likewise, if someone writes on a case in our Critical Review of Jurisprudence section we would normally not accept such from one of the counsel in the case. Where dealing with such a case is part of a larger piece, we expect full disclosure to the reader.

Book reviewers are asked to recuse themselves if there is a conflict of interest such as a relationship of close friendship or enmity. Read the rest of this entry…

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EJIL: In this Issue

Published on October 3, 2016        Author: 

This issue opens with a pair of articles addressing aspects of human rights protection in the European Union. In a compelling critique of the CJEU’s adverse Opinion on the EU’s accession to the European Convention on Human Rights, Turkuler Isiksel argues that the roots of the Court’s Opinion lie in an attitude of ‘European exceptionalism’, that institutional accountability results in the better protection for human rights, and that this applies with equal force to the EU legal order itself. Nora Markard then examines the EU’s practice of outsourcing its border controls, presenting a forceful argument that the involvement of third countries in this regard does not exempt the EU from international responsibility in relation to the law of the sea and the right to leave.

The next three articles in this issue investigate the intersection of international law and politics in several areas. Michal Saliternik argues that the introduction of procedural justice norms to peace negotiations will remedy representation deficits and enhance the success of such processes. Armin Steinbach explores the different analytical logics underpinning rational choice and behavioural economics, by comparing these approaches in their application to non-consensual forms of cooperation in international law. And Daniel Augenstein considers the relationship between the localization of the politics of human rights to sovereignty structures in global resource exploitation.   Read the rest of this entry…

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