July 24, 2009

Some corrections on Europe

Many thanks to Senhal in the comments, four comments, for pointing out a few wrongnesses on my part about the political and judicial organisation/s of Europe. His various corrections are here, here, here and here.

But they are important and deserve more prominence than just staying in the comments boxes:
It's a shame the ECHR hasn't released an English translation. With the caveat that I'm not a lawyer, and that my French is far from perfect: the judgement doesn't say what Israel and most news reports claim (i.e., 'European Court rules boycott of Israel illegal'). Indeed, the very fact that nobody has bothered to provide an official English translation - in addition to the case's classification as of only level 2-importance (i.e., pretty unexciting - this isn't exactly Soering v UK) should suggest that it is far from as wide-ranging as banning any and all boycott of Israeli products. Furthermore, it is merely a ruling from the Fifth Section of the Court - thus no one seems to have felt that the issue at hand was prima facie of such fundamental importance, or was liable to produce significantly new jurisprudence or precedent, that the case should be heard by a Grand Chamber. This also means, of course, that M. Willem has three months to appeal to a Grand Chamber (and the ruling will not take force until those three months have passed). Finally, there's a very cogent and intelligent dissent from the Czech judge.

The case is one of freedom of speech - in the classic sense - and turns not on the legality of boycott, nor the legality of calling for a boycott in the member states of the Council of Europe (though the majority opinion is frankly very messy on this point), but on whether a specific application of a specific French law violates the basic freedom of speech found in the European Convention of Human Rights. The Court affirmed the uncontroversial position that member states may somewhat curtail individual freedom of speech when necessary for the maintenance of democratic government, &c., &c. In finding that M. Willem's rights had not been violated it relied heavily on the somewhat ad hoc arguments offered by the French courts and subsequently the French government, viz.:

1) M. Willem made his call for boycott in his official capacity as mayor of a village;

2) his call for boycott applied to the actions of the local governmental authority;

3) economic boycotts of foreign countries are a matter of foreign policy;

4) international economic boycotts must be sanctioned by the UN Security Council;

5) France has a legitimate interest in curtailing the making of foreign policy which may be prejudicial by sub-national governmental authorities.

In addition, there's many a redundant mention of 'the Israeli nation' (and not Jews - the Court seems to rely entirely on the ban on discrimination based on nationality, rather than religious and racial clauses); the right of members of a nation not to be identified with the foreign policies of any specific government; and, strangely, a kind of free-market-above-everything-else right of producers not to be discriminated against tout court (almost). The Court further emphasised the fact that M. Willem received minimal punishment (a fine of €1000). A final crucial fact is that the specific clauses M. Willem were held to have violated were apparently originally explicitly intended to police calls for boycott of Israel...

I believe those are the key points, but, as said, the majority opinion is pretty messy. Based on that reasoning, I can't see how this case can possibly set precedent for anyone other than French sub-national elected politicians holding executive office.

The Czech judge, in his dissent, pointed out that the majority were perfectly correct in holding that a member state may curtail freedom of speech, but that they never touch upon the crucial qualifier: necessity. In no way, says he, can this specific curtailment be said to fall under the narrow defence of necessity.

I don't follow the ECHR closely enough to offer any prediction as to what would happen if the case was appealed to a Grand Chamber, but I would be most interested in finding out. I wouldn't be surprised if they reversed - particularly because of the issue of political speech by elected officials - a question the majority touched upon, but never analysed.

The short version of the above: in no way can this ruling be construed as to ban the vast majority of Europeans from boycotting - or calling for the boycott of - Israeli goods and services. (But I am not a lawyer, and this is not legal advice. If anyone more schooled than I in ECHR jurisprudence disagrees with me, I would be most interested in hearing your arguments; I'm fully aware of the fact that I may be completely wrong.)
That was the first. Here's the second:
Thanks for comments on my comment. Will reply in more detail later (have to run right now), but thought I'd provide the link:

http://cmiskp.echr.coe.int/ tkp19...1C1166DEA398649

(Yes, that's apparently the static link... Try http://bit.ly/3Gi6P3 if the commenting software has mangled it.)
Here's the third:
Mr. Elf and others,

It _is_ a very disappointing and disturbing decision, no question about it. But, while protesting it, I think we should also seek to undermine the way it is being spun, and emphasise how very narrow a ruling it is: when next someone attempts to tell you that your calls for BDS are 'illegal' in Europe (and I'm sure someone will), explain to them that you're not a French mayor acting in a (semi-)official capacity:)

(Indeed, one of the strange aspects of the judgement is how the issue is somehow twisted into a matter of (sort of) administrative law (mayors mayn't make foreign policy) instead of the straightforward 'hate speech' prohibition at the heart of the Act in question. It's all very ad hoc, to put it mildly.)

Nevertheless, it is part of a disturbing trend towards criminalising dissent (especially as far as Israel/Palestine is concerned). I wouldn't have been terribly surprised to see this ruling from, say, the High Court (for which every utterance by a Home Secretary is seemingly gospel truth), and anyone who's read a US Supreme Court decision knows what kind of mess those can be, but I had expected something better from the ECHR. One may contrast this with another recent freedom-of-speech decision (TV Vest & Rogaland pensjonistparti v Norway), in which the Court (First Section) found that the Norwegian ban on political advertising on television _did_ violate Art. 10 (that is, the same article _not_ violated by France in Willem). I frankly find it impossible to reconcile the specious ad hoc argument of Willem with the sensible and careful discussion of TV Vest (and I was in favour of the ban before I read it!).

It is indeed also strange to see such an emphasis on 'nation' in Willem - both in relation to Israel, which does not indeed have a concept of _Israeli_ nationality, _and_ in the context of French legal argument, which at least in an ideal sense prefers to talk of _citoyens_.

Finally, I think we also should be concerned about the extreme 'free-market' (heavy inverted commas here) argument for some sort of sacred right of producers to have their goods purchased regardless of the political and moral context. I might have expected something like that from the EU, but I always dreamed the ECHR was above such tosh...
And here's the last, for now:
PS: A (rather important) correction to your post and one or two posts above: the European Court of Human Rights is an organ set up pursuant to the European Convention on Human Rights under the aegis of the Council of Europe, which is entirely separate from the EU. (It is also much larger (47 member states), and predates the EU. For historical/sentimental reasons the EU adopted the same flag and anthem. (Go on: listen to the official Hip Hop version on their web page. I know you want to...* (You can also listen to Churchill speaking French, if the fancy takes you...).))

*http://www.coe.int/aboutCoe/index.asp? page=symboles&sp=hymne
So there's still enough to worry honest anti-racists but it's not all doom and gloom for us, not yet anyway.

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