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Wiley and the European Law Journal

Published on February 5, 2020        Author:  and

 

It is, we believe, unprecedented that both Editors-in-Chief and the entire Editorial and Scientific Advisory Board of a learned journal should resign en masse in protest at the high-handed behavior of the commercial publisher. But that is what has happened at the European Law Journal in their dispute with their publishers Wiley Publishing.

The statement of the Editors in Chief of the European Law Journal is appended below.

Between the two of us, Editors in Chief of ICON (the International Journal of Constitutional Law published by OUP) we have clocked dozens of years serving as Editors and members of Editorial and Advisory Boards of at least two dozen legal journals; one of us is co-Editor in Chief of EJIL, also published by OUP. We can safely say that never before have we seen even remotely the like of this.   By ‘this’ we do not just mean the mass resignation, but the entire approach of Wiley to the relationship between a commercial publisher and the academics – the editors, editorial boards and authors – who actually make the journal not only an academic and intellectual success, but also give it monetary value for its publisher. The journal generates hundreds of thousands of euros in annual revenue, and Wiley itself estimated its monetary value in the millions. You would expect some respect for the value of the academic world which generate these profits for them, would you not?

In a very productive and amicable relationship with its original publishers, Blackwell Publishing, the European Law Journal (ELJ) had carved a special and distinguished place in European Law scholarship, complementing with its contextual approach the more doctrinal distinguished journals in the field.  Some years ago, however, Wiley bought the ELJ from Blackwell. As mentioned in the Statement by the Editors of the ELJ, the Journal was thrown into crisis when Wiley attempted unilaterally, and in a totally non-transparent process, to appoint new Editors who themselves were given misleading information about the process. That crisis was overcome when an amicable solution was sought and found, and the current editors were appointed with the approval of the Board and on the understanding that this procedure would be the template for the future. The Journal was back on the mend thanks to the extraordinary work of the current editors.

But in the last few months when the new contract was presented, Wiley were back to their old ways. They rejected in toto a compromise proposal on a range of issues  and insisted on their right to hire and fire the editors at their entire discretion. They owned the Journal, it was their property and they would do as they wished with it.

 The Editors and the Board, though disappointed by the rejection by Wiley of a whole range of issues which would operate in the interest of European law scholarship, were not excessive in setting their one line in the sand: Academic appointments to the Journal should be done by mutual consent.   But even this basic principle was rejected by Wiley.

At issue here is the very integrity and independence of the scholarly endeavor in the face of powerful commercial interests.  

We want to believe that no self-respecting scholar will allow himself or herself to be used in any way by Wiley to defeat the principled stand taken by the Editors and Boards of the ELJ.  It is we, scholars of European Law, who actually give commercial value to such a journal by submitting and publishing our work in its pages. We should not be complicit in undermining the most basic values of the scholarly world.

The Board have announced their intention to continue the outstanding and unique service to the scholarly community for which ELJ stood, by establishing in short order a new learned journal with a different publisher to continue the unique voice which the ELJ provided. They deserve our full support.

Filed under: Editorials
 

What a Journal Makes: As we say goodbye to the European Law Journal

Published on February 5, 2020        Author: 

 

On January 31st, the Editorial and Advisory Boards of the European Law Journal resigned en masse from their positions in protest after the publisher, Wiley, decided that it was not willing to ‘give away’ control and authority over editorial appointments and decisions to the academics on the journal’s Boards. We recount our small act of resistance here because we think there may be lessons for the wider academic community. We are not looking to portray ourselves as martyrs for academic freedom or principled radicals looking to overhaul the entire system of academic publishing. Indeed, the most significant aspect of our rupture with Wiley lies in the modesty of the demands they were unwilling to meet.

In 2018, Wiley sought to appoint Editors-in-Chief without as much as consulting the Board of Editors and the Advisory Board, in a process both unfair to the prospective, excellent, new editors and in complete disregard of the integrity and autonomy of the academic community gathered in the Boards. The new editors withdrew, and the Boards resigned in protest. Wiley finally relented and agreed on an open competitive process administered by a committee of Board representatives leading to an appointment by mutual consent of the publisher and the committee. In the end, our recent negotiations with Wiley broke down on our one necessary if insufficient condition for agreeing to new terms: to simply have this process formalized in our new contract. It is a modest point, but one of vital importance: it clears the way to a model where Editors respond to the Board, not to the publisher, and where Editors work for the journal, not as remunerated contractors for the publisher. In other words, it is a fundamental condition for safeguarding academic autonomy.

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Filed under: Editorials
 

JHH Weiler, Co-Editor in Chief, in Conversation with Professor Wojciech Sadurski

Published on December 13, 2019        Author: 

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.

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Academic Freedom Under Pressure

Published on December 2, 2019        Author: 

 

Contemporary threats to academic freedom are global, diverse and mounting. The ICNL-commissioned report Closing Academic Space published in March found “repressive and potentially repressive government practices against higher education institutions, including academics and students, in more than 60 countries”, including Hungary, Russia, Venezuela, Turkey, Egypt and China.

Challenges to academic freedom and autonomy in Europe, particularly the EU, now seem alarming, despite significant resistance. A couple of causes célèbres illustrate the point. On Wednesday 27 November, the distinguished constitutional law scholar Professor Wojciech Sadurski faced the first hearing in one of three SLAPP lawsuits brought against him under civil and criminal defamation laws by Poland’s governing Law and Justice party and the public broadcaster, TVP. Various actors have stood in solidarity with Professor Sadurski. In the run-up to the hearing, constitutional law scholars launched the #WithWoj hashtag, following an open letter on the Verfassungsblog in May; ARTICLE 19 submitted an amicus curiae brief, live-monitored the hearing and, together with other NGOs, issued a statement.

On Friday 15 November, my institution, the Central European University (“CEU”) officially inaugurated its Vienna campus, having been forced to move its US accredited degree programmes from Budapest as a result of amendments to Hungary’s higher education law adopted in April 2017 (“Lex CEU”). The subsequent fight to defend CEU spurred street demonstrations, the #IstandwithCEU hashtag and thousands of statements of support – including from academic institutions and associations, Nobel Laureates, German Chancellor Angela Merkel, Irish Taoiseach Leo Varadkar, the late former UN Secretary-General Kofi Annan and a network of freedom of expression NGOs. It also motivated the adoption of the Utrecht Declaration on Academic Freedom by human rights academics.

These cases raise a number of individual human rights issues and deep concerns about the implications of restrictions on scholars and universities for democracy and the rule of law across societies. They further prompt questions about the definition, scope and place of the notion of “academic freedom” in international law. Read the rest of this entry…

 

Turkey’s Military Operation in Syria: A Freedom of Expression Perspective

Published on October 28, 2019        Author: 

There is no doubt that Turkey’s use of force in Syria and the unfolding consequences thereof should generate much legal debate and analysis. The legal issues are broad. They cover primary norms under international law on the use of force, international humanitarian law, international human rights law and international refugee law. In addition, the relationship between the Turkish Armed Forces and Free Syria Army (or Syria National Army as recently renamed in Turkey) engages questions of attribution alongside individual criminal responsibility under international law. Alongside this long list of issues of engaging the state responsibility of Turkey, we can certainly ask whether any third-state responsibility is engaged and whether other states have been facilitating acts, which would have been unlawful if they carried them out themselves.

Some of these issues have been addressed on EJIL Talk!  here and here, and, elsewhere, here and here. Some have generated responses and counter claims here and here. My aim here is to highlight one, as yet, unaddressed aspect — freedom of expression and, academic freedom as a lex specialis of freedom of expression.

Discussions about Turkey’s military actions on international law blogs thus far have not been written by Turkish international lawyers, with one exception: a reply to a post on EJIL Talk! defending Turkey’s justifications for the lawfulness of the use of force under ius ad bellum.  My hunt for academic seminars held on these issues at any university in Turkey has drawn only blanks. Not one single academic seminar, not one single debate has been held to discuss multilayered legal issues around a major military operation. This is curious. Why do Turkish international lawyers not partake in the opportunity to debate and discuss international law in real time, and use their linguistic advantage to access key sources?

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