Programs in International Justice and Society

"Why is it important to define the concept of 'plain writing' in the legal field?"

LCJ Hub member Paulina Meza, Associate Professor and researcher at the Universidad de La Serena in Chile, contributes this month’s Spotlight on a critical issue around language and the law.

Although the issue of plain language in the legal field has attracted great interest recently (Castellón, 2009; Songa, 2013; Carretero, 2015; Blank and Osofsky, 2017; Alsina, 2018; among many others), knowledge about its development is dispersed (Schriver, 2017). In addition, plain language and legal writing have seemingly followed independent paths so far. To this division, it should be added that most research on plain language comes from language specialists who usually overlook the scope of the law or of legal practice. Furthermore, a significant number of proposals for plain language in the legal field have been based on normative approaches that lack empirical data, that is, indications on what should be done to write clearly in the legal field (Meza et al., 2020).

In an article recently published in Discourse Studies, “Plain Writing in the Legal Field: An Approach from the Discourse of Specialists”, I and three colleagues describe a clear and rigorous research project about plain writing in the legal field that consists of defining “plain writing” and recognizing its properties. To promote the initiative of plain writing, we propose a definition of the term in the legal context, based on both the discourse analysis of 18 lawyers from Chile, Argentina, Brazil, and Spain, and our professional knowledge on this topic. In our approach, the view of lawyers, usually excluded from public discussion, is paramount. This article is an empirical work in which we have collected the contributions of lawyers to understand the construction of legal knowledge and, consequently, their form of written communication. Interdisciplinarity is a central advantage of our approach, as our team included two experts in language and writing, an expert in education and writing, and a lawyer.

The definition proposed from the research is as follows: plain writing in Law is the process of constructing legal discourses aimed at promoting the intelligibility of the various legal institutions or institutions of Law, such as sentences, regulations, contracts, etc., to offer or strengthen security in the legal field. The elements comprising this type of writing correspond to a logical and coherent textual structure; ideas expressed in an organized way through simple language or frequently used language; precision, that is, the absence of ambiguities and the use of precise technical terminology in the legal field; correct and legible grammar structures; and the absence of errors associated with writing norms. As for the message, it should be intelligible to all participants of the legal communicative situation, an achievement that remains subordinate to both a clear definition of the subject and its purpose, as well as to the consideration of the legal field (Meza et al., 2020).

Besides the definition, our investigation revealed that some interviewed lawyers consider plain writing as a problematic issue, arguing that plain language implies a lack of precision. Other lawyers consider plain language as a way of attacking their identity: “Why undermine the best thing we do as lawyers, which is speaking unclearly?”

A definition of plain writing in Law, especially one emerging from empirical and multidisciplinary research on the perspective of lawyers, is essential for different reasons. If we want to promote the use of plain language in public and administrative contexts, we need to understand what lawyers think about it. We are sure that we can convince them about the essential role that plain language plays in facilitating citizens’ access to justice.

Our findings could promote further development in this area. At the same time, this research could contribute to elaborating pertinent teaching material, updating lawyers’ knowledge, and facilitating access to justice.

REFERENCES

     Alsina, A. (2018). Endeavours towards a plain legal language: The case of Spanish in context. International Journal of Legal Discourse, 3(2), 235-268.

     Blank, J. & Osofsky, L. (2017). Simplexity: Plain Language and the Tax Law. Emory Law Journal 66, 189-263.

     Carretero, C. (2015). La claridad y el orden en la narración del discurso jurídico. Revista de Llengua i Dret 64, 64-85.

     Castellón, H. (2009) Hacia la claridad en los textos administrativos. Revista de Llengua i Dret 52, 85-115.

     Meza, P., González, F., López-Ferrero, C. & Gutiérrez, I. (2020). Plain writing in the legal field: an approach from the discourse of specialists. Discourse Studies, 22(3), 356-383.

     Schriver, K. (2017). Plain Language in the US Gains Momentum: 1940–2015. IEEE Transactions on Professional Communication, 60(4), 343-383.

     Songa, A. (2013). In pursuit of clarity: how far should the drafter go? Commonwealth Law Bulletin 39(3), 415-422.

Margaret Anne McAuliffe deGuzman was recently appointed as a judge of the United Nations International Residual Mechanism for International Criminal Tribunals. The Mechanism carries out a number of functions previously performed by the International Criminal Tribunals for the former Yugoslavia and Rwanda in order to ensure their effective closure and legacy. In a press release , the UN notes that Judge deGuzman “brings to the Mechanism academic and professional experience spanning more than two decades. Since 2009, she has worked at Temple University Beasley School of Law, Philadelphia, where she currently serves as the James E. Beasley Professor of Law and Co-Director of the Institute for International Law and Public Policy. In addition, she has since 2016 consulted on projects related to international criminal law, human rights and transitional justice at the Public International Law & Policy Group in Washington, D.C., where she is a Senior Legal Advisor.”

The Mechanism itself has recently been in the news because a group of Rwandan nationals, either acquitted by the Rwandan Tribunal or convicted and released after serving their sentences, is facing expulsion from the Republic of Niger in violation of a resettlement agreement signed between that country’s government and the Mechanism. The East African reports that the “resettlement to Niger of the group of Rwandans, either released or acquitted for genocide and related crimes but were stranded in Arusha for more than 17 years, hit a snag after the host country made a U-turn following Rwanda’s protest over the resettlement.” The “legal limbo” of these persons – free from the Tribunal but unable to find a country that will take them in – has been a cause for international defense lawyers like Peter Robinson, who represented one of men now rejected by Niger. Read more about “the international justice stateless” from JusticeInfo.net.

The Inter-American Commission on Human Rights (IACHR) has two new members. Roberta Clarke, a citizen of the Republic of Barbados, has led UN Women's regional offices in East Africa and South Africa, Asia Pacific, the Caribbean and Libya. Carlos Bernal Pulido of Colombia has authored books and published in journals on topics such as the protection of human rights and democratic constitutionalism, and he has been a visiting professor and researcher at various prestigious universities across the globe. The new commissioners will serve terms of four years. Read more about the Commission's recent appointments and its composition in an IACHR press release.  

In other news from the regional human rights system, the Inter-American Court of Human Rights (IACtHR) issued in late 2021 its decision in the case Indigenous Maya Kaqchikel Peoples of Sumpango vs. Guatemala, declaring the Republic of Guatemala “internationally responsible for the violation of the rights to freedom of expression, equality before the law and participation in cultural life” of Indigenous Peoples. According to the NGO Cultural Survival, “[t]he historic decision comes after decades of activism by members of the Indigenous community radio movement in Guatemala fighting for their freedom to operate radio stations and broadcast information in Indigenous languages to and from their communities. Currently, in Guatemala, Indigenous community radio stations are not legalized after more than 26 years since this right was guaranteed in the Guatemalan Peace Accords. Today, they continue to operate in a legal gray zone that has led to frequent persecution, disparagement, and criminalization by mainstream media conglomerates, the national police, and politicians.” Cultural Survival, which was one of the parties to bring the case to the IACtHR, considers this decision a hard-fought win and a major milestone for the rights of Indigenous peoples.

Should birth parents have a say in how their children are raised by adoptive parents? The European Court of Human Rights (ECtHR) has found in Abdi Ibrahim v. Norway that there had been a violation of Article 8 (the right to respect for private and family life) of the European Convention on Human Rights when a Somali refugee was unable to maintain contact with her son after his adoption by a Norwegian Christian family. An ECtHR press release provides background to the ruling: “The case concerned the decision by the Norwegian authorities to allow the adoption of a child by a foster family against his mother’s wishes. The mother, a Somali national who had moved to Norway, did not ask for her son’s return as he had spent a long time with his foster parents, but wished for him to maintain his cultural and religious roots.” Read a critical analysis of the ECtHR ruling in the Oxford Human Rights Hub, where commentator Stephanos Stavros notes that the case was not only about rights but also about the issue of integration into European society.

Can wealthy nations be brought to account for not equitably distributing COVID-19 vaccines? In "To Address Vaccine Hoarding, Do Not Look to International Criminal or Human Rights Law", Ebba Lekvall, Melanie O’Brien and Tara Van Ho respond to a Guardian Op-Ed where former WHO director Anthony Costello called for states to be tried before an international court for vaccine hoarding. The authors systematically explain why the International Criminal Court is not an appropriate venue for such cases given its jurisdictional limitations, nor would human rights bodies like the UN Committee on the Rights of the Child or the UN Working Group on Business and Human Rights have the power to bring states to account. The authors conclude: “No one is served by unrealistic calls for human rights bodies and international courts to do things they are not designed to do. It gives the public false hope that an ‘easy’ solution is coming soon... Those who know how the system works—like those who work for foreign offices in the German, UK, Japanese, South Korean, and Canadian foreign ministries—know that such calls are paper tigers that redirect the population’s anger from those with real responsibility over this crisis to those without any power to address the issues.”

A new international protocol provides guidelines, based on international human rights law and directed primarily to governments and justice officials, to promote an effective response to threats against human rights defenders and, in particular, to support the effective investigation, prosecution, and punishment of threats. The aptly named Esperanza Protocol, the result of an initiative led by the Center for Justice and International Law, aims to provide hope for those who work in this dangerous sector. The protocol is supported by a wide range of human rights, justice and development organizations, as well as high-profile human rights experts from around the world. Watch a short YouTube video on the launch of the Esperanza Protocol.

Last month saw the start of the International Decade of Action for Indigenous Languages, an initiative overseen by the United Nations Educational, Scientific and Cultural Organization (UNESCO). The Organization has launched a Global Task Force which “sets up a solid pathway for ensuring indigenous peoples’ right to preserve, revitalize and promote their languages, and mainstreaming linguistic diversity and multilingualism aspects into the sustainable development efforts.” The Global Task Force will act as an international coordinator, helping to prepare, plan, implement and monitor activities around indigenous languages from 2022 to 2032.

In anticipation of the International Decade, UNESCO also launched the World Atlas of Languages in late 2021. This interactive platform “provides a new approach to better understand linguistic diversity, and how languages can contribute to improving literacy, inclusion, access to public services, combating stigma and discrimination, and closing digital divides,” according to Tawfik Jelassi, UNESCO’s Assistant Director-General for Communication and Information. Learn more about how to access and use the World Atlas in a short video.

 

In a separate effort, the Global Coalition for Language Rights is marking 22 February 2022 as Global Language Advocacy Day, seeking to promote public awareness of language justice and language rights. Visit the #GLAD22 website to learn how to create your own language advocacy event on 22 February.

Two recent trials of foreign nationals in German courts have underscored the effectiveness of prosecuting international crimes in domestic courts under the legal principle of universal jurisdiction.

On 30 November 2021, an Iraqi member of the Islamic State (IS) group was found guilty of genocide against the Yazidi religious minority, a Kurdish-speaking population in northern Iraq. A court in Frankfurt sentenced Taha al-Jumailly to life for crimes including the murder of a Yazidi girl in Iraq. The court determined that the jihadist had enslaved the five-year-old in 2015, chaining her up in the sun and leaving her to die of thirst. He was also ordered to pay the girl’s mother, who survived her enslavement and acted as a plaintiff in the case, 50,000 euros ($57,000). Al-Jumailly is the first IS member to be convicted of genocide against the Yazidis. His German wife was previously found guilty of “crimes against humanity in the form of enslavement” and sentenced to ten years in prison. Read more about the case and how the charge of genocide was argued from JusticeInfo.net.

On 13 January 2022, former Syrian colonel Anwar Raslan was sentenced to life in prison by a Koblenz court for committing crimes against humanity at a jail in Damascus a decade earlier. Raslan was found to be complicit in the torture of thousands of people as well as guilty of other crimes, including killings, serious deprivation of liberty, rape, sexual assault and hostage-taking. UN Human Rights Commissioner Michelle Bachelet called this a “landmark leap forward”, noting that Raslan’s trial casts “a much-needed renewed spotlight on the torture and inhuman treatment countless Syrians suffered in detention facilities.” The Raslan trial also brought up some interesting “side issues,” such as a lack of Arabic translation that kept the larger Syrian public from following the proceedings and the need for enhanced witness protection in such high-profile cases.

A 2019 book by Mark Chadwick tells the story of how piracy on the high seas gave rise to the notion of crimes that are so serious that they should be prosecutable anywhere. In our era, these crimes include genocide, crimes against humanity and war crimes. The Twittersphere also reminds us of this history.

The Belgian Parliament has voted overwhelmingly to recognize the international crime of ecocide. The resolution sets out various tasks for the Belgian government, including consideration of whether the crime of ecocide could be included in Belgian criminal law, and determination of the diplomatic initiatives that could be taken to propose, on behalf of Belgium, amendments to the Rome Statute of the International Criminal Court to include the crime of ecocide. An Independent Expert Panel developed a legal definition for the crime of ecocide in 2021. The rampant burning of the Amazon Rainforest in Brazil, which has escalated to “dire proportions” during the presidency of Jair Bolsonaro, has led some parties to suggest that he be criminally prosecuted. According to Inside Climate News, “Bolsonaro’s role in destroying the Amazon, they believe, makes him a criminal on a par with genocidal dictators or the architects of war crimes.”

Recognizing the impacts of climate change on conflict, United Nations Peacekeeping is reiterating the importance of its Environment Strategy for Field Missions. The Strategy, initially issued in 2017, sets out a vision that the Department of Operational Support will strive to achieve by 2023 in relation to environmental management in peace operations. The pillars of the strategy are energy, waste and wastewater, solid waste, the wider impact, and environmental management systems.

The Inter-American Commission on Human Rights (IACHR) and the Rule of Law Program for Latin America at the Konrad Adenauer Foundation (KAS) have launched the first free, open-access database of IACHR rulings and decisions. According to a Commission press release, [t]he repository is part of the KAS's Iuslat platform and enables users to perform smart searches of the decisions and standards developed by the IACHR. Specifically, it contains (1) admissibility, merits, and friendly settlement reports; (2) thematic and country reports; and (3) precautionary measures.” The platform also provides relevant jurisprudence from the Inter-American Court of Human Rights, as well as rulings, sentences, and court orders from both regular and constitutional courts in Latin America and the Caribbean.

The winner in the recent Photography 4 Humanity competition shines a spotlight on our changing environment. This UN program is an “international initiative that calls on photographers around the world to bring to life the power of human rights through their images. Highlighting the most compelling human rights imagery – illustrating courage, despair, hope, injustice, compassion in ways small and large, the images serve to inspire people to personally get involved and take a stand for human rights.” The winning image, “Thirsty Earth,” illustrates the challenges that extreme drought creates for women in West Bengal, India. More photos may be viewed at the Photography 4 Humanity site.

Since announcing a new option for the rapid publication of scholarly articles based on payment, the research publisher Taylor and Francis has been the subject of widespread outrage and derision. The publisher's site claims that this “accelerated publication” scheme, with various levels of payment, “can help you get your research into a high-quality, peer-reviewed journal, fast.” In a tongue-in-cheek commentary in Opinio Juris, Kevin Jon Heller described how the Taylor and Francis option works. “The Proletarian Track takes up to 16 weeks from submission to publication. But it’s free! The Petit Bourgeois Track takes no more than 9 weeks. But it will cost you $3900/€3400/£3000 per article. And the Haute Bourgeois Track takes no more than 5 weeks. But it will cost you a mere $7000/€6200/£5500 per article.” Scholars who submit using the fastest track will only be charged a review fee, and the reviewers will only be paid, if their article is accepted, clearly setting up a conflict of interest. Heller asserts that this accelerated publication scheme will exacerbate “the knowledge and professional inequality that already plagues academia” – scholars with resources, almost certainly from the Global North and mostly white males, can pay for rapid publication, while their colleagues from the Global South will remain on the slow track.