Navigating Darkness

Every lawyer knows that law and its language are malleable tools that can serve different functions. Over the past year, one of these has gained increasing significance: law’s capacity to act as a medium of communication. At a time where other channels are gradually collapsing, with hostility and silence replacing dialogue and debate, law offers a way to articulate our disagreements within the confines of its vocabulary, rules and methods. This matters because talking to one another, even if it is in law’s rigid language that often fails to capture lived experiences, is better than not talking at all.

This is not to say that law and its language are immune from the polarization and patterns of subordination that have proven to be so destructive of our political discourse. Both issues clearly impact the global legal debate. This is perhaps most obvious with regards to the inequities in terms of who gets to speak and who is heard. What is more, the more we seek to fight our political conflicts with legal language, methods and tools, the more unstable law’s function as a joint language becomes – the political then haunts the law, turning the latter from medium into “‘mere talk,’ simply one more means toward the end, […] whether it serves to deceive the enemy or to dazzle everybody with propaganda; here words reveal nothing.”

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About a year ago, we published an Editorial simply titled “human dignity” in which we emphasized our commitment to universal and absolute human dignity as the lodestar for our editorial decisions on submissions in the aftermath of the October 7^th massacre. At the same time, we expressed our commitment to continue to foster discourse. This dual commitment was and remains sincere. Yet, a year later, we know how difficult this balance is to strike at a time where common ground on what human dignity demands when it comes to the discursive sphere is increasingly hard to identify, though this was certainly never easy to begin with.

Of course, there are the obvious cases: submissions that openly deny a group’s humanity or rights or seek to justify unjustifiable governmental actions are easily identified. But the vast majority of submissions (luckily) do not fall into this camp. On rare occasions, we received submissions we thought fell into a grey area, the penumbra. In such cases, our editorial decision-making – far from a simple line-drawing exercise – amounts to a complex balancing act which we must conduct in an increasingly hostile and adversarial discursive environment that is rife with epistemic uncertainties, misinformation, and corrupted by long-standing power imbalances.

To navigate some of these difficulties, we discuss sensitive submissions as a group. What we lack in diversity, we strive to make up for in empathy and thoughtful consideration of different perspectives. When there is disagreement amongst us, we turn to external (more diverse) reviewers. Even with these additional measures, we are bound to make mistakes or simply publish pieces that prove divisive. Editorial misjudgments are painful and consequential lessons, and we do our best to learn from them. As such, we are both grateful to those who critique without demonizing us and to all our courageous authors. This takes trust – not only in us, but in the common project of continuing the conversation, at a time where immeasurable violence creates so much enmity and silence.

As a public law blog headquartered in Germany, where public authorities consider Israel’s security part of its “Staatsräson”, we are acutely aware that it matters which voices and perspectives we publish.

We recognize specifically the responsibility we bear not to perpetuate the long-standing marginalization and silencing of Palestinian voices and perspectives in both international and constitutional discourse – a trend that has certainly only accelerated and intensified in the past year. This holds particularly true in Germany itself, where academic freedom and freedom of speech have come under pressure. This is not only shameful for its destructive impact on already vulnerable voices. It also severely threatens the possibility of a future where the current division, antagonism and mutual dehumanization can be overcome.

We recognize too that Jewish people are also living in fear, are being attacked, and yes, are subject to censorship and silencing. To ignore this reality, and our responsibility to listen, would further the selective empathy and strategic dehumanization that is spreading and corrodes our ability to recognize the humanity and dignity of the other. In times like this, it is crucial to acknowledge both truths, and not to shy away from ambivalences and simultaneities.

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This is why we remain committed to allowing different ‘sides’ to present their legal arguments, as long as these remain within the bounds of human dignity. We believe that any other editorial policy would fatally undermine the role that legal discourse plays, both in general and at this point in time specifically. While boycotts can be effective subversive strategies, their efficacy is less obvious when it comes to (legal) discourse. Academic boycotts are a tool of silencing, of discursive censorship. They foreclose the possibility of speech and its relational quality. Before we can find common ground and with it the hope for community and healing, we must remain able to speak, not just over or at each other but to each other.

Yet, as Arendt notes, for speech to be capable of initiating a new beginning, it first needs a space “where people are with others and neither for nor against them – that is, in sheer human togetherness.” As a blog, we believe it is ultimately our central responsibility to provide such a space: a space that safeguards the possibility to speak, to exchange, to disagree, to meet and to relate, not just because but in spite of the currently seemingly unbridgeable divides, the pain and the suffering that is felt so widely and deeply, and the growing failure to recognize our common equal humanity. Of course, a corollary of this responsibility is to recognize and redress the inherent power differentials that exist with regards to accessing discursive spaces. For speech to realize its full relational potential, all those who wish to speak must have a seat at the table. In our Symposium on the ICJ Advisory Opinion, we have attempted to ensure that this is the case.

This may seem like a negligible step, or worse, a mere illusion of some degree of cooperation and dialogue when in reality there is none. However, we would like to believe that, at the very least, the Symposium’s successful fruition is indicative of law’s role as a medium through which we remain capable of talking at and perhaps even to each other – even in the face of horrific violence that is designed to eradicate our capacity to recognize the humanity of the other. As Arendt put it: “The smallest act in the most limited circumstances bears the seed of (…) boundlessness, because one deed, and sometimes one word, suffices to change every constellation.”

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Editor’s Pick

by JAKOB GAŠPERIN WISCHHOFF

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The Week on Verfassungsblog

… summarised by EVA MARIA BREDLER

One year after the Hamas massacre, Israel faces a regional war with Iran. Iran fired rockets at Israel on 1 October 2024. Several people were injured, and a Palestinian in the West Bank lost his life. Iran invokes the right to self-defence under Article 51 UN Charter in response to Israel’s killing of leaders from the so-called “Axis of Resistance”. In vain, argues NARIN NOSRATI (GER), for there is no imminent armed attack against Iran.

The week brought two blasts from the colonial past (to prove yet again that it is never really past, of course).

One from the Indian Ocean where the Chagos Archipelago was the UK’s last colonised fragment. The UK officially exercises sovereignty over the archipelago (despite an Advisory Opinion of the ICJ demanding to return it to the Chagossians, who were forcibly deported in the 1960s) but has now announced it is giving up sovereignty. In a riveting report, SEBASTIAN VON MASSOW (EN) laces together how an U.S. military airbase, revived British colonial courts and Tamil refugees complicate things on the archipelago.

Another blast came from the Western Sahara, a former Spanish colony claimed by both Morocco and the indigenous Sahrawi people, represented by the Polisario Front. The Western Sahara is considered a non-self-governing territory, with its people having a right to self-determination. The EU has concluded agreements with Morocco that explicitly apply to the territory of the Western Sahara, resulting in decades of EU litigation. On 4 October 2024, the CJEU has now annulled such agreement for violating international law – a first. JED ODERMATT (EN) on why (and whose) consent to the agreements matters.

Malta is another arena where international and EU law currently collide, with the Maltese investment citizenship scheme raising fundamental questions. The conflict revolves around the question of whether EU law contains requirements for the acquisition of Union citizenship and whether these requirements consist in a “genuine link” between the respective state and individual. Last week, Advocate General Collins delivered his much-anticipated Opinion in Commission v Malta and suggested dismissing the Commission’s action against Malta. MARTIJN VAN DEN BRINK (EN) finds it “hard to disagree with the Advocate General.” LUKE DIMITRIOS SPIEKER (EN), respectfully, disagrees.

In the meantime, the ECtHR dealt with asylum law in M.D. and Others v. Hungary and found Hungary guilty of violating the prohibition of collective expulsion. For DANA SCHMALZ (DE), the ruling not only clarifies the scope of protection under Article 4 of Protocol No. 4 but also shows how the court quietly pushes back against the complete erosion of legal standards in asylum and migration law.

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In Asia, the war on fake news is reaching the next level. Several countries tightened regulatory demands over the past few years and introduced criminal liability for users and platforms publishing false content online. The laws effectively make the truth: true is only what the law says to be true. South Korea and Singapore now criminalize election deepfakes without needing proof of harm. LASSE SCHULDT (EN) situates these laws in the broader context of stricter controls of digital communication in Asia and beyond.

India likewise polices truth in the digital age. In 2023, the Indian central government established a Fact Check Unit to monitor online content related to the Government and take down of any information that it considered fake. The FCU itself was envisaged as a public body and a part of the central government. As the FCU would be the last arbiter of what could be said online in India about the central government, the amendment instituted what ANMOL JAIN (EN) criticises as a “Ministry of Truth” in reference to George Orwell’s classic 1984.

Not only truth-making threatens elections. Sometimes, states simply fail to conduct local government elections, as in Sri Lanka, where the government did not release the necessary funds. The Supreme Court now found the Election Commission in violation of fundamental rights for its failure. SANJIT DIAS (EN) argues that the decision sends a strong signal to all guarantor institutions in Sri Lanka to maintain their independence and to use their powers to discharge their functions.

Governmental politics also caused dismay in France, where the appointment of Michel Barnier as French Prime Minister and the designation of a cabinet even further to the right has sent thousands of protesters rallying. CYPRIEN LUZIN (EN) reflects on this summer’s constitutional tensions in France and argues that Emmanuel Macron’s did not only exceed his constitutional powers by appointing Barnier, but also set a dangerous precedent for future presidents.

In Germany, since Solingen, political debate seems to only revolve around security, hence surveillance. Also on Verfassungsblog, Bavarian (CSU) Interior Minister JOACHIM HERRMANN demands “More victim protection through data retention”, and parties across the political spectrum are calling for a mandatory storage of IP addresses. ERIK TUCHTFELD (GER) offers a fact-check: The digital investigative tools available to law enforcement have never been better and the digital data pools have never been larger, making other investigative approaches more promising.

Less promising seems the idea of Munich General Prosecutor’s Office to eavesdrop on a telephone line which the “Last Generation” used as a so-called “press phone”. Several journalists have since filed a constitutional complaint with the Federal Constitutional Court. THORSTEN KOCH (GER) considers this a good move, as the measures against journalists raise fundamental questions regarding the freedom of the press.

Finally, we’ve launched two symposia this week.

In our Symposium on Law and Political Economy in Germany, introduced by EVA HERZOG, authors explored what the Movement could provide for the European and especially the German legal discourse. DOMINIK RENNERT and ANDREAS KERKEMEYER outlined the differences and similarities of the US and German Situations, legally and with regards to socio-economic questions. ANNA-JULIA SAIGER, EMMA SAMMET and MARVIN REIFF gave concrete examples for LPE thought on current issues. THOMAS WISCHMEYER dealt with the movement’s position on constitutionalism, while ALEXANDER HELLGARD and BETTINA RENTSCH analyzed the toolbox of LPE and gave the movement some homework to build an own Theory of science.

The 2024 ICJ Advisory Opinion on the Occupied Palestinian Territory (EN) was a groundbreaking moment in international law. It has consequences not only for Israel, but also for third States, as well as international and regional organizations, in terms of non-recognition and non-cooperation. In the symposium, Palestinian, Israeli, and other scholars take stock of the Advisory Opinion and its regional and global impact. Read the introduction by KAI AMBOS and insightful pieces by DAVID KRETZMER, OMAR YOUSEF SHEHABI, BARAK MEDINA and ARDI IMSEIS.

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That’s it for this week! Take care and all the best.

Yours,
the Verfassungsblog Team

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