Programs in International Justice and Society

"What does English-language dominance mean for the field of international law and justice?"

This month’s Spotlight comes from Language, Culture and Justice Hub director Leigh Swigart. She brings us her reflections, along with those of other scholars, about the impacts of having a single language dominate a field that purports to both reflect and serve a global population characterized by enormous linguistic diversity. 

It cannot be denied that the English language has become in the contemporary world what language scholars Ingrid Piller and Alexandra Grey have called the “hyper-central language of globalization”. That is, for the last half-century or so, English has become the medium that ensures communication across a whole constellation of languages. Furthermore, note Piller and Grey, “a native speaker of English has the advantage that this one language is likely to fulfill all their communicative needs on a local, national, international, and global scale.”

This privileging of English and English speakers has left a pronounced mark on the field of international law and justice. In her provocative monograph Is International Law International?, Anthea Roberts describes how shifts toward English in both spoken and written modes “have clear distributional effects in terms of whom they privilege” (p. 260). Justina Uriburu succinctly captures the essence of what she calls "English-centrism" in the field: “The choice of language significantly determines the way in which international law is made, interpreted, and applied, what knowledge is produced by scholars, and the participants of the conversation.” Scholars Christian Tomuschat and Odile Amman have laid out specific ways in which the dominance of English not only determines which scholars have their work accepted by the most prominent journals and publishers of international legal scholarship, but also how narrowly conceived is this scholarship since the featured authors often cannot read and cite  research beyond the "Anglosphere." Recent Opinio Juris blogposts (here and here), by Alonso Gurmendi and Paula Baldini Miranda da Cruz, offer the perspectives of Latin American scholars who are directly impacted by both linguistic and cultural bias in the field: "We posit that peripheral scholars may be less represented at least partially because they communicate differently and have different things to say from those that are already part of the establishment of international law."

My own contribution to this debate is a piece entitled "The Impacts of English-Language Hegemony at the International Criminal Court" (open-access version available here),  a chapter in the soon-to-be published book, International Criminal Justice – A Counter-Hegemonic Project? (Springer 2023). Based on a multi-year ethnographic project on how the ICC addresses diverse language challenges, this chapter explores the impact of the uneven status of the Court’s working languages, English and French, on those who work at and with the ICC, as well as on what the Court conveys to the world through the communications of its top officials, its judgments, its outreach activities, and its everyday language choices. I aim to show that English-language hegemony is not only entrenched but has detrimental effects for the ICC in both practical and symbolic spheres, rendering the Court less efficient while also undermining its mission as a global institution. (The 2020 report of the  Independent Expert Review of the ICC notes in its very short section on "Multilingualism" that more French speakers should be recruited as staff but presents this imbalance as a strictly practical problem).  I also contend that while the ICC’s “constituents” as well as its own staff speak many languages, the institution itself operates according to a monolingual ideology, one that implicitly considers communication via a single and discrete language as expected, normal and desirable.
 
What Amman eloquently asserts (p. 30) about international legal scholarship can be extended, I believe, to the entire field of international justice, across its full range of instruments, institutions, processes and communicative acts – “[international law] cannot afford to ignore the language biases that it creates and perpetuates unless it is willing to sacrifice its own credibility and relevance. If we do not address language bias, the legality and legitimacy of inter­national law will continue to suffer."

Jack Smith, a former Prosecutor of the International Criminal Court and more recently the Specialist Prosecutor at the Kosovo Tribunal in The Hague, has been appointed by the US Justice Department to oversee the criminal investigations into the retention of classified documents at former President Donald Trump’s Mar-a-Lago resort, as well as parts of the 6 January 2021 insurrection. In addition to his international experience, Smith has a long history of relevant domestic work, at both the state and federal level. He has prosecuted cases of public corruption, including those involving lawmakers. He also served from 2010 to 2015 as chief of the Justice Department’s public integrity section, which investigates politicians and other public figures on corruption allegations. Read more about Smith’s appointment from in a US Justice Department press release.

Smith’s position in the Kosovo Specialist Prosecutor’s Office has been filled for the time being by another veteran international and domestic prosecutor, Alex Whiting. Read an extensive interview with Whiting from the Brandeis Ad Hoc Tribunals Oral History Project.

In an unexpected change of policy, the United Kingdom has agreed to negotiate with Mauritius on the handover of the Chagos Islands, which many believe were unlawfully retained when Mauritius gained its independence in 1968. The Guardian reports that “[t]he intended agreement will allow for the return of former inhabitants of the Chagos archipelago who were forcibly displaced by the British government in the 1960s and 1970s. The UK would intend to maintain control of its strategic Indian Ocean military base in Diego Garcia, which it leases to the US.” UK control over the Chagos Islands has been ruled as illegal by both the International Court of Justice, which deemed that “the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence,” and the International Tribunal for the Law of the Sea, which confirmed the sovereignty of Mauritius over the Chagos Archipelago. Read more about the story of these islands, and about the recent book recounting their prolonged struggle for decolonization and full sovereignty by international lawyer Philippe Sands, at The Interpreter. 

In news on a related topic, the United Nations Fourth (Special Political and Decolonization) Committee recently approved a draft decision to request an advisory opinion from the International Court of Justice on Israel and the Occupied Palestinian Territory.  The Jurist explains, “[t]he draft stipulates Israel’s violation of Palestinian rights to self-determination from its prolonged occupation, settlement and annexation of the Palestinian territory, occupied since 1967, including measures aimed at altering the demographic composition, character and status of the holy city of Jerusalem, and from its adoption of related discriminatory legislation and measures.”  Israeli Ambassador to the UN Gilad Erdan criticized the draft at the Committee hearing, calling it part of a “long line of anti-Israel resolutions,” adding that “[t]he only purpose is to demonize Israel and exempt the Palestinians from responsibility.” Read more about the Israeli reaction to the draft decision, and which states supported and opposed it, at The Times of Israel.

Proposed changes to UNESCO’s provisions on cultural property have alarmed some observers and led to fears that the endorsement of state ownership of all cultural objects, including private and religious property, could end most global trade.  Cultural Property News explains that earlier interpretations of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property may have called for demonstration that so-called “cultural heritage” truly expressed a nation’s identity, or proof that it was under threat or had been subject to serious pillage. The 2022 proposed Model Provisions, in contrast, “would apply severe restrictions to trade in an exceptionally broad range of objects, from national treasures to objects duplicated in the millions. They cover ethnological art and items mass produced for commerce as well as antiquities. All the proposed changes are geared to expanding the reach of foreign state governments’ control over European, UK, and US ownership of art and cultural property, whether it belongs to private citizens, museums or is circulating in the art trade.” Experts in the field also note that UNESCO has failed to solicit or attend to public comment about the proposed changes from key stakeholders.

A recently published article in Human Rights Quarterly by scholar Richard Ashby Wilson, “The Anti-Human Rights Machine: Digital Authoritarianism and the Global Assault on Human Rights,”  explores how governments and state-aligned actors increasingly target human rights defenders online using techniques such as surveillance, censorship, harassment, and incitement. Wilson terms such techniques “digital authoritarianism.”

His article analyzes the characteristics of anti-human rights speech and provides new empirical findings on the negative effects on human rights defenders in Colombia and Guatemala. Human rights defenders who are targeted online report negative health outcomes and identify a nexus between online harassment and the criminalization of human rights work. The result is that many take protective measures, engage in self-censorship, abandon human rights work, and leave the country. Wilson asserts that to prevent these harms, social media companies must implement stronger human rights-protective measures in at-risk countries. The article concludes by advocating for a new United Nations-sponsored Digital Code of Conduct that would require states to adopt transparent digital policies.
 
Read an open-access version of the article. Watch a YouTube video of Wilson discussing this topic at a recent event hosted by Arizona State University's Center on the Future of War.