#74 The G|O Briefing, October 21, 2021

"It's not about reforming the human rights system, it' s about replacing it" | Is Europe becoming a digital colonial power? | The folly of "Polexit" |

This is an onsite, slightly edited republication of the complete G|O Briefing newsletter

Today in The Geneva Observer, with a follow-up interview about last week’s piece on the funding of the UN Special Procedures and an op-ed on possible ‘Polexit’ in Warsaw, we stay close to The G|O’s primary focus: examining the multiple forms of opposition to what used to be the postwar internationalist consensus—so much a part of what we call ‘International Geneva’.

The debate is not new. But in its contemporary iteration, one of its distinguishing features is that, largely due to the impact of technology on the human social order, it has become truly global, accelerated and highly polarized.

Today, internationalists and nationalists are searching for new allies, and often forming ad hoc and unexpected coalitions to achieve their respective goals. Ideology- and identity-fueled geopolitics are more and more the order of the day. As Hungary and Poland show, Europe is caught in the same dynamic.

This is indirectly the subtext of our interview with Pasquale Annicchino, Senior Assistant Professor of Law at the University of Foggia in Italy. Ten years ago, commenting on the European Centre for Law and Justice’s (ECLJ) successful contribution in overturning a judgement by the European Court of Human Rights, Annicchino, a widely-respected expert on issues of religious freedom, wrote an academic paper describing what he called “the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to reshape European Identity.” His paper was prescient. I decided to ask him what he made of the controversy surrounding the publication of the ECLJ’s latest report.

The European Centre for Law and Justice and Poland’s ruling Law and Justice party share not only a name, but also an aim: to do away with a current order they reject and are attempting to hollow out from within. But, by engineering a constitutional court ruling which effectively refuses to recognize the legal foundations of EU membership, the party might bite off more than it can chew, writes Sławomir Sierakowski, the Director of the Institute for Advanced Study in Warsaw and Senior Fellow at the German Council on Foreign Relations. But regardless of the outcome, all Poles, he says, will pay the price of this worrisome game of brinkmanship.

It's all below.

Philippe Mottaz: By publishing a report on the Human Rights Council Special Procedures, after previously having dealt mostly with the European Court of Human Rights and other European institutions, is the European Centre for Law and Justice (ECLJ) going more global?

Pasquale Annicchino: Not really. I think that to grasp what is happening, one must understand the historical perspective of the conversation. That is what’s missing. People are focusing on small details of the puzzle. This new report is basically along the same lines as the ECLJ’s previous report on the European Court of Human Rights. In both cases, we have often seen emotional reactions to the reports by institutions or academics who feel threatened by the ECLJ. If the ECLJ is falsely writing things about individuals, then the falsehoods must be corrected, and the individuals’ reputation protected. But to be honest, emotional reactions—as always—do not do justice to the debate. Let me be clear: the ECLJ doesn’t have a hidden agenda; it is not involved in a secret plot. It advances a particular understanding of human rights. Many people do not like this, because it represents a conservative understanding of rights. It’s part of a growing global culture war, in the context of which people seem to live in different epistemological realities.

There is no ‘evil plot’ to overturn the international human rights system, it’s all there, openly declared and transparent. The ECLJ says it doesn’t like the human rights system because it has been built around the notion of individual rights. The ECLJ wants something else, and it will fight to obtain it. It mirrors what we have been seeing in the US for many years now, where you have the American Civil Liberty Union (ACLU) defending the liberal position, and being opposed by the American Centre for Justice and Law (ACLJ)—the ‘sister organization’ of the ECLJ. We are thus witnessing the export to Europe and other countries of the American culture war—especially as it pertains to religious freedom issues.

The Lautsi judgment, which established that the compulsory display of crucifixes in Italian public schools did not violate the European Convention on Human Rights (a case where the ECLJ had an important role), served as a catalyst and accelerator. It led to the creation of new alliances where religious groups of different traditions work together toward common political goals. You can’t understand what is happening right now if you don’t understand the networks involved. You can’t understand what is happening in Poland right now if you don’t understand that.

We now have a global fight between a liberal view of the world and a conservative view of the world. This is all connected to this reconstruction of a conservative view of the world which is in deep conflict with the liberal individualistic understanding of rights on which the multilateral institutions were built. It is a challenge to the international liberal order itself.

Speaking of networks, you place particular importance on the Russian Orthodox Church. Why?

Especially from 2008 onwards, the Russian Orthodox Church has been developing its own understanding of human rights, which is a rereading, a reinterpretation of the human rights convention. It puts a very strong focus on article 29, and on the role of duties instead of rights. It’s a more collectivistic understanding of rights—and is a clear signal of where the world is heading, where there is not a single narrative on rights. The Orthodox Church’s position largely overlaps with the position of the Russian Federation. Many countries have been strongly affected by theological reflections on rights—what are rights, and how do we conceive them—and this has been percolating in legal instruments and in politics. I don’t think people realize how deep these changes are.

Is the West losing the battle on human rights?

The crisis comes from the very heart of the Western world. When you have the United States withdrawing from the Human Rights Council and openly criticizing the multilateral system, how can you expect other countries, outside the Western world, to not criticize the multilateral system and the values it embodies? The West is now very often alone in defending a certain understanding of human rights. But it’s confronted more and more by non-Western countries forming strategic alliances to push their agenda. Look at the Commission for Unalienable Rights created by former Secretary of State Mike Pompeo. It brought the US closer to Russia on human rights than any other European country. That tells you how deep the crisis is. And so what I see happening is a continuous fragmentation of the human rights system between the conservative, the liberal, and the ultra-liberal view. People just focus on their narrow understandings, which in turn creates the polarization and increases the clashes. People are simply unable to talk to each other—which is a repetition, again, of the US internal debate. These are just American culture wars going global. And why are American culture wars going global? Because in the American cultural ecosystem, there is a faith in law, that law can change society. This explains why litigation is becoming central in shaping the law.

Will we see the same debate ‘spilling over’ to some other international organizations?

Yes. China is already investing in a reinterpretation of the international human rights regime and more globally in a transformation of the International multilateral institutions. In Geneva, China is particularly active in all the international organizations active on tech, particularly at the ITU [International Telecommunication Union]. China has brought the conversation farther from the traditional discussion on rights because China understands that technology determines rights in a society that is constantly evolving, digitally. If you can influence the specifications and technical standards, then you are able to know which organizations collects what.

I’d also say that I think that we have lost track of the one of the main issues which has been driving lawyers for ages, which is the distinction between what is public, related to sovereignty, and what is private, especially in the big tech scenario. I mean, what is Huawei, is it an entity of the state, or a private company? But we should apply the same standards to the US tech companies that are now more powerful than some states.


A propos tech, our friends at Passblue have a detailed and excellent report on Antonio Guterres’ search for a new ‘tech czar’. Tech giants wield more power and influence than many states and governments, making decisions that affect billions of people daily. The position might well become one of the most important within the UN system—that is if Guterres abandons what some of his critics would say is an instinct to nominate people close to him, in age, gender or background. On his past choice of Fabrizio Hochschild Drummond, now on leave, PassBlue writes:

“The Association for Progressive Communications, a group of civil society organizations with official UN consultative status, wrote to Guterres in October 2020 to ask that the new envoy have the necessary technology expertise and that the appointment be done transparently.
European countries had hoped that a strong advocate on technology and policy would get the post to emphasize regulation and accountability — the European Union is no fan of Google, for example — while protecting individuals’ rights to free speech. Some countries had asked that the envoy not be a person in the UN but someone outside it with an appropriate portfolio. Numerous European countries are still competing for the post.
“The way this was carried out raised quite a bit of eyebrows,” one Western diplomat told PassBlue in January. “Normally, member states are asked to submit qualified candidates, particularly women, for such a job.”

And finally, among the documents that caught our attention this week was Digital Colonisation by the Transnational Institute. Its latest trade and policy paper looks at Europe’s digital trade agenda:

The global battle for control of the digital economy is typically portrayed as one fought by only two titans: US and China, but that does not mean that the EU has been standing still. As this briefing document, the EU has been making strong efforts to catch up using trade negotiations and trade rules to assert its own interests. In the process, the EU is trying to climb up on the backs of the developing countries, undermining the chance for all to equitably share in the benefits of technological development.” The full report can be downlaoded below.

The Possibility of "Polexit"

By Sławomir Sierakowski*

After the Soviet Union collapsed, Poland’s greatest dream was to join the European Union and NATO. Scarred by Nazism and then communism, Poles longed for a fresh start, and membership in NATO and the EU became a goal that transcended politics.

EU membership was considered so important that Polish liberals pointedly refrained from taking up divisive issues concerning Polish history or the Catholic Church. Even Pope John Paul II (a Pole) got involved, pushing the slogan “from the Union of Lublin to the European Union,” in reference to the 1569 pact that finalized the unification of Poland and the Grand Duchy of Lithuania (under which today’s Poland, Belarus, and Ukraine comprised a single, democratically governed state). In 2003, more than three-quarters of Poles voted in favor of EU membership.

Eighteen years later, Polish support for EU membership stands near 90%. The EU thus enjoys a democratic mandate stronger than any achieved by a Polish government since 1989, owing primarily to two factors: national security and the economy. The EU is widely seen as the guarantor of Polish independence, which has for centuries been threatened by Russian imperialist ambitions. When Poles see Ukraine being tormented by Russia, they see their own fate were it not for the EU and NATO.

Similarly, Poles rely heavily on the EU for economic development. In 1989, Ukraine had a higher per capita GDP than Poland. Today, Ukraine’s per capita GDP (based on purchasing power parity) is $13,060, whereas Poland’s is $34,265. If Poland had followed the Ukrainian path, its economy would currently be performing at the same level as in 2001.

Mirosław Gronicki and Ludwik Kotecki of the European Financial Congress (and previously of Poland’s Ministry of Finance) calculate that from EU accession in May 2004 through July 2021, Poland received more than €206.8 billion ($240 billion) in cohesion funds. That is more than twice the country’s entire 2021 budget. And with the Law and Justice (PiS) government having negotiated €160 billion for Poland over the next seven years, the country will likely remain the largest beneficiary of EU funds within the bloc.

In typical fashion, the government has already plastered the country with billboards proclaiming the astronomical sum of zł770 billion in new funds, without mentioning that the money would be coming from the EU. Yet while the billboards have already been paid for, the EU funds have not been secured, because the European Commission has since suspended its approval of Poland’s National Reconstruction Plan.

EU Commissioner for the Economy Paolo Gentiloni has said that the European Commission is suspending the approval of the Polish National Reconstruction Plan, owing to the steady erosion of the rule of law in Poland. A recent decision by the Constitutional Tribunal, which denied the supremacy of EU law – the basis of EU membership itself – was the last straw. Having already agreed to support the debt mutualization through which the National Reconstruction Plan will be financed, Poland now stands to bear the costs of the EU recovery fund without sharing in the benefits.

The EU has every reason to worry about the illiberal and anti-democratic reforms that Poland’s PiS government has implemented during the past six years. The government’s politicization of Polish courts, for example, has implications extending far beyond Poland, because judgments in one EU member state are expected to be recognized and enforced in all others. Moreover, Poland has signaled that it does not want to implement EU court rulings intended to protect judicial independence.

By design, numerous PiS politicians sit on the Constitutional Tribunal, including the authors of the government’s judicial reforms, Stanisław Piotrowicz and Krystyna Pawłowicz, who once called the EU flag “a rag.” Leaked emails from the chief of the chancellery, Prime Minister Mateusz Morawiecki’s right-hand man, provide strong evidence that PiS directly controls Julia Przyłębska, the head of the Tribunal. In the leaked messages, PiS politicians report on their meetings with Przyłębska, during which they discuss judicial appointments and other decisions. One therefore must assume that PiS leaders dictated the Tribunal’s decision rejecting the primacy of EU law.

The European Commission has made clear that Poland must back down in order to receive EU funds. But the PiS government has doubled down. According to Adam Glapiński, the president of the National Bank of Poland, “We will manage very well without EU funds.”

But why would the government gamble with its reconstruction plan? One factor is the recent decision by a group of MPs led by Jarosław Gowin to quit the ruling coalition. The government thus has become even more dependent on a group of MPs led by Minister of Justice Zbigniew Ziobro, who staunchly opposes any agreement with the EU in which funding would be made conditional on Poland’s compliance with the rule of law. Because Ziobro is competing against Morawiecki for the mantle of aging PiS leader Jarosław Kaczyński, he stands to benefit politically from the failure of the current government’s signature economic initiative, the “Polish Deal” – which was to be financed by the National Reconstruction Plan.

On the other side is the opposition with its new leader, Donald Tusk, a former Polish prime minister and former president of the European Council. Tusk’s strategy is to publicize the fact that PiS is steering the country toward a “Polexit.” His message appears to be sinking in. On October 10, immediately after the Constitutional Tribunal’s ruling, as many as 100,000 protesters turned out in Warsaw, and similar demonstrations were held in 120 other cities.

It is hard to say what the government will do now. It has painted itself into a corner with the Constitutional Tribunal’s ruling, depriving itself of the money it needs to shore up its chances in the 2023 elections. It is becoming increasingly possible that PiS is willing to sacrifice not only EU funds but even Poland’s EU membership, just to cling to power.

*Sławomir Sierakowski, founder of the Krytyka Polityczna movement, is Director of the Institute for Advanced Study in Warsaw and Senior Fellow at the German Council on Foreign Relations.

Copyright: Project Syndicate, 2022.

Today's Briefing: Philippe Mottaz - Jamil Chade

Guest essay: Slawomir Sierakowski

Edited by: Dan Wheeler