One of the more ‘elegant’ ways of restricting freedom of political speech and academic freedom is to use libel and defamation laws. It has increasingly become the weapon of choice of various political actors and regimes. Nobody would gainsay that academics may libel others and that politicians can be libelled and have the right to have their names and reputations vindicated. But, in my view, the proper forum for such is a civil court in an action between individuals. Even then, excessive legal costs and outlandish damages (the UK is notorious for such) may produce an unwarranted chilling effect.
It becomes particularly alarming and at times pernicious when a libel or defamation allegation for statements made in the arena of political contestation is transferred from a private civil action to a public criminal one. To be subject to the opprobrium resulting from a criminal conviction as well as criminal sanctions raises the stakes by several registers and the chilling effect risks becoming a freezing effect.
The fact that countries with impeccable democratic credentials like France regularly use the criminal law in this manner does not kosher this particular pig. EJIL and its Editor had to stand trial for criminal defamation defending academic freedom. It was not pleasant.
Where it is used, we expect courts to understand the huge stakes involved and whilst affording protection to reputations unjustly sullied, not allowing themselves to become complicit in undue restriction of academic freedom and freedom of expression in the political arena, the life breath of democracy.
Robust political contestation necessitates a wide latitude to ‘words which offend’. I have googled, to give by one example, the expression “bunch of criminals” – producing over one million hits. It, or similar broad brush expressions, have been used endlessly to, say, characterize the White House, the Netanyahu government, the British Labor Party and other political bodies with understandable impunity as part and parcel of the aforementioned robust political contestation.
Wojciech Sadurski, is a renowned professor of public law, well known to readers of EJIL and ICON (he is, inter alia, a Council member of ICON-S and Board Member of ICON, the sister journal of EJIL). He has been a colleague of mine in more than one institution and, full disclosure, a friend of many years despite our several intellectual and academic disagreements (Wojciech articulated some of the sharpest criticism of my book A Christian Europe, to give but one example). He is a critic of the current government of his native Poland, some would say an outspoken critic, and author of Poland’s Constitutional Breakdown published this year by OUP.
Recently he stood trial for libel in Warsaw. I thought it would be of interest to interview him for our readers.
The first section of this issue includes three articles. The first article, by Paz Andrés Sáenz de Santa María, examines the treaty-making practice of the European Union (EU) from an international law perspective. Contrary to the view that international treaty law is ill-suited to deal with distinct legal actors such as the EU, this article shows that international treaty law has been a useful and flexible mechanism to fulfil the objectives of the EU’s external relations. At the same time, EU treaty-making practice and adjudication have contributed to the development of international treaty law. The article highlights the main features of this mutually constructive relationship, while also pointing to some challenges that need to be addressed.
The second article, by Vera Shikhelman, assesses the implementation of the decisions of the United Nations Human Rights Committee (HRC) in individual communications. Drawing on an analysis of original empirical data, the article identifies the main factors that influence state compliance with HRC decisions. Arguably, these findings can also shed light on state cooperation with other international human rights institutions.
In the third article, Máximo Langer and Mackenzie Eason challenge the prevailing perception that universal jurisdiction is in decline. They conduct a worldwide survey to show that universal jurisdiction has actually been invisibly but persistently expanding in terms of quantity, frequency, and geographical spread. They then suggest some explanations for this trend and assess its merits and pitfalls. Read the rest of this entry…
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 sixth instalment and regards that staple of academic life: PowerPoint.
There is a concept in Jewish law called ‘Fencing’ (Seyag). It is a prophylactic; a new prohibition is decreed, which is not, in and of itself, biblically based but is introduced in the interest of protecting people from inadvertently committing an infraction of a divine commandment or in order to prevent people from entering into a danger zone of temptation. Here is a trivial example: the recitation of one’s nightly prayers can (and should) take place during the night. Night time lasts, surely, until daybreak – just before dawn. One o’clock in the morning is surely still night time. The Rabbis decreed a ‘Fence’ and fixed a deadline of midnight. ‘A man’, they reasoned, ‘will return home, and say to himself: I’ll eat a little bit, and drink a little bit, and sleep a little bit – and then recite my prayers. [After all, I have all night ahead of me]. He ends up sleeping all night and missing his nightly prayers.’
I have imposed on myself a Fence: No PowerPoint at all (for that matter, no FaceBook, Twitter or Instagram). It is an extreme (im)position, which I am not suggesting others should adopt. However, I am advocating a far more prudent and discerning use of PowerPoint.
The technology was originally developed for the American corporate world, driven by an ethos in which time is money – cut it short, get to the point – and in which presentation trumps deliberation, decisiveness trumps doubt, and communication is oftentimes in the command mode. Read the rest of this entry…
As in previous years, EJIL’s Review Editor, Christian J. Tams, has invited EJIL board members and (associate) editors to offer short reflections on their favourite books of the year 2019. No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Joseph Weiler. You can read all the posts in this series here.
It is the time of year once more when I publish my pick from some of the books that came my way since my last “Good Reads” listing. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyze or critique, but rather to explain why the books appealed to me and why I think you, too, may find them not only well worth reading but enjoyable, good reads.
Anthony Julius, Trials of the Diaspora: A History of Anti-Semitism in England (OUP, 2010)
The importance of peer review has, if anything, increased in recent times. The enthrallment of current academia with ‘objective’ quantitative measures in the processes of selection, promotion and evaluation of academic performance has put a premium on publication in ‘peer-reviewed’ journals. Instead of a faculty reading carefully the work and making up its own mind as to its quality, they will outsource such to two anonymous peer reviewers. Also, in the face of the avalanche of self-publication in outlets such as SSRN (valuable in and of itself) and the like, peer review may help the discerning reader navigate these channels, thereby providing some guarantee of excellence.
Yet this importance is often not matched by the practice of peer review. The rate of refusal to peer review is as high as 50 per cent – oftentimes by authors who themselves have published in, and benefited from, peer-reviewed journals. Authors who publish in EJIL and I.CON undertake to peer review for our journals, an undertaking not always honoured. Of course, there is only so much peer reviewing that one can do and we understand when we receive a request to beg off with a promise to do it on some other occasion.
Then there is the problem of tardiness. Four to six weeks is a reasonable time to expect a peer-review report to come in. Frequently, to our and our authors’ frustration it can be as long as 24 weeks, after a slew of ‘gentle’ and somewhat less gentle reminders. Read the rest of this entry…
This issue opens with three articles that address underexplored corners of international law. The first article focuses on the topic of customs unions. Adopting a historical perspective, Michal Ovádek and Ines Willemyns identify gaps and ambiguities in the contemporary legal definition of custom unions. They then conduct a comparative analysis to examine how different custom union agreements address these ambiguities. They observe that the design and performance of these agreements is affected by concerns over state sovereignty. Finally, they draw lessons for a possible post-Brexit EU-UK agreement regarding customs.
The second article, by Miles Jackson, discusses instigation to commit wrongful acts. He argues that contrary to the common perception, international law does include a general prohibition on instigation. In accordance with this prohibition, a state that induces or incites another state to breach its international obligations may be held responsible for an internationally wrongful act. According to Jackson, the prohibition on instigation is founded on a general principle of law accepted in many domestic jurisdictions, which should be transposed to international law.
Paolo Amorosa then explores a forgotten episode in the well-studied history of the international legal struggle for women’s equality. Whereas the common narrative dates the beginning of this struggle to the aftermath of World War II, Amorosa traces its roots to the signing of the Equal Nationality Treaty and the Equal Rights Treaty at the 1933 Montevideo Conference. In so doing, he takes a step towards the re-inclusion of early feminist activists in the dominant history of international law. Read the rest of this entry…
The EU – A Community of Fate, at Last
I have great sympathy for the outburst of Donald Tusk on special places in Hell. I believe I was just as harsh or even worse in writing about the Cameron folly. At the time of writing, the final act in the Brexit farce is still unfolding. I am one of those Europeans who genuinely regret the departure of the United Kingdom – and I am not thinking just of the material consequences, as most are prone to do. A Europe without the UK is diminished. But I also respect the sovereign decision of the British people and, equally, I will of course respect a sovereign decision to change course, should that happen. Responsibility for the current shambles rests primarily on the very issue which so taxed Tusk: going into the referendum without any serious governmental assessment of the hows and whats and whens.
Some responsibility also falls on the Union. I thought that the decision to postpone any discussion of future relations before the divorce terms were settled wasted a precious year of joint reflection, negotiations and preparations. I thought then and still think that there was no reason not to run both tracks in parallel so as to avoid the very crunch that we now face. In private, some European leaders have admitted such to me.
And finally, I continue to find it not credible that the combined public authorities of the Union, the UK and the Republic of Ireland cannot come up with a Frontstop solution on the lines proposed here, thus diffusing the most explosive stumbling block for some semblance of an orderly exit. Read the rest of this entry…
Some things never seem to change. It was, I believe, with a keen eye on emerging talent, that we published Martti Koskeniemmi as the lead article in Volume I, Issue 1 of EJIL. We thought it was appropriate when we celebrated our 20th anniversary to invite him to revisit what had by then become a classic. And for our 30th anniversary we had known for some time that we would invite Koskenniemi to be the author of our annual Foreword article. Have we lost our keen eye for emerging talent? I do not think so (see our Vital Statistics below). Koskeniemmi is like a good wine or spirit that loses nothing of its bite and yet offers a particular savour and mellowness as it ages.
We debated how to mark EJIL’s 30th anniversary: after all, we published a special issue at 20 and another celebration at 25. I looked at my Editorial for our EJIL at 20 issue. In some ways, it is a bit like all living creatures. There is something in their defining characteristics that remains constant. There is not much that I would add to that Editorial.
Still, there has been some innovation in the last 10 years: Think EJIL: Talk! (celebrating its 10th Anniversary) EJIL: Live!, The Foreword, Roaming Charges and the Last Page, the Debates, and more.
For the sake of nostalgia we reproduce here the earliest letter we can find from the birth of EJIL. Please be sitting when you take a look and kindly suppress the guffaws. (Yes, what happened to the English/French idea…?) It was all in earnest and good faith. But has your life turned out to be as your parents thought and maybe hoped when you were born? Read the rest of this entry…
This issue opens, as noted in the introductory Editorial, EJIL at 30, with Martti Koskenniemi’s Foreword.
In our Articles section Valentina Vadi focuses on the evolving field of international legal history, exploring the adequate scale and perspective in this realm and stressing the importance of a pluralist, inclusive approach based on micro-histories in contrast to the still prevailing macro-histories. Hannah Woolaver analyses the intricate interplay between the domestic and international levels with regard to states’ treaty consent both in relation to treaty entry and exit. Focusing on three prominent examples – Brexit, the possible US abandonment of the Paris Agreement, and South Africa’s potential departure from the International Criminal Court, she fills a research lacuna regarding international legal recognition for domestic rules of treaty withdrawal and argues for an invalidation of withdrawal in the event of manifest violation of domestic law. Claire Jervis concludes this section with her article, which scrutinizes the questionable substantive-procedural dichotomy in international law. Taking the International Court of Justice’s famous Jurisdictional Immunities case as a starting point, she points towards the fallacies inherent in this binary approach.
We introduce a new occasional Series – The Theatre of International Law – with a piece by Lorenzo Gradoni and Luca Pasquet, ‘Dialogue concerning Legal Un-certainty and other Prodigies’. Further submissions in this vein are welcome. Read the rest of this entry…