There is an important neglected aspect of the UN Migration Compact controversy, which culminated in a government crisis last week: The fact that opinions of two highly regarded legal scholars on the binding nature of the compact were both initiators and crucial deciding factors in the public and political discourse, and that these opinions were contrasted with opposing claims of other legal experts.
Birgit Aasa, attorney and PhD candidate at the European University Institute takes a look at the debate, focussing on the onus on experts presenting themselves as such in being impartial, refraining from oversimplifying complex social phenomena, and not colouring statements with personal opinion.
Two versions of the ''truth'' were presented to the public last week. As a lawyer and legal scholar this concerns me, as it highlights the dangerous recent trends in Europe and the wider world: the post-truth era, fake news and societal polarisation all leading to populism, and the derivative role of politicians, the media and scientists' responsibilities in handling this new reality.
The healthy functioning of democracy hinges on the availability of objective facts for the wider public and subsequent fact-based political debates on policies and choices acceptable according to the societal values of that particular society.
But who is responsible for these generally available facts and their objectivity and truth-value? Primarily the media, but also those providing facts to the media: scientists, experts, opinion leaders, politicians, and ordinary people, as well.
The role of scientists in society
Scientists and experts hold a particular fiduciary position in generating and influencing public opinion. We trust scientists because of their institutional, education and presumed ability in dealing with or solving complex natural or social science questions objectively, thoroughly and in a balanced manner, using the scientific method.
Trust is a social capital, which simplifies the functioning of society – instead of controlling each and every fact separately, which we so often do with ordinary people and politicians, we treat the claims of scientists as a priori truthful and objective. But such broad trust also entails a responsibility that scientists need to adhere to in their activities, especially in those which are public.
One representation of such responsibility lies in the obligations expressed in the Estonian scientists' code of ethics, according to which scientists should maintain independence in conducting expert assessments; conduct them honestly, impartially and responsibly. If a scientist is unable or unwilling to sign up to that, they should refrain from acting as an expert.
A human being is a political creature: we all embody some degree of political convictions and perceptions, and scientists are no different. However, the difference with scientists is that, at least when performing publicly as an expert, they must either: (a) Admit their political views and ensure that these do not affect the communication of facts, conclusions and explanations within their expertise to the general the public; or (b) publicly disclose their political or other biases and then express their opinion as a private individual (or opinion leader).
In the latter case, this opinion would be a general political opinion that one can on a value-basis either agree with or reject; believe the facts presented therein or not (ie. check them) as you wish, but this cannot be taken at face value for a priori factual grounds for policy making.
Disclosing theoretical and ideological standpoints is also part of the scientific method: it enables to evaluate, test and criticize the outcome. And a good scientist should presumably treat her object of inquiry comprehensively and in a balanced manner, presenting all relevant aspects and arguments.
Without this, a scientist opens her research to easy criticism. Scientists should refrain themselves from presenting half truths or only half of the truth.
Binding or non-binding?
How is it still possible that two diametrically opposed claims about the binding nature of the UN compact got fed to the public? The foreign ministry, backed by some legal scholars, claims it is not legally binding; the minister of justice, backed by other legal scholars, stressed that it will become binding or that "the provisions therein will be used as norms".
What is the truth? As a lawyer, I would only dare to claim that truth, as often with complex social phenomena – international law being one of the most complicated social phenomena of all – is somewhere in a the middle, encapsulated in the sentence: "The framework is not legally binding, but ...".
And this is where legal scholars should enter the public debate to clarify to the public precisely, comprehensively, and based on fact, not emotions or ideology, what actually follows the word "but".
Yes, there is a theoretical, but very unlikely, possibility that the UN framework could in the distant future become a norm of customary international law, but the Estonian state can avoid that with certain measures and activities.
What customary international law is should have been explained, together with how it is formed, what some practical examples from the past are, and how long it takes for customary international law to actually become binding upon all states. What is the practical distinction between something being legally or politically binding? Moreover, for me as a lawyer, the question also arose what is actually meant by politically binding and is it something within the competence of a legal scholar to explain or establish?
What are the applicable enforcement mechanisms, and is there really a chance that the Estonian state will lose its right to design its own migration policy, against its explicit will?
The aforementioned, however, were largely absent from the discussions last week. The public was given only half the truth – a bogeyman called ''international customary law'', without any explanation of what it exactly is and what conditions are available for a state to avoid it.
It was claimed that, by supporting the compact, the state would restrict its own sovereignty, or even that the compact will make migration a human right, legitimise illegal immigration or provide for a right for any person to settle in whatever country he or she chooses.
I find that all legal scholars have a moral responsibility today to emphasise that these statements are clearly false, and that the creation of customary law from a legally non-binding document is by no means a simple or rapid process.
Moreover, the state can take measures to avoid the development of binding customary norms by using the persistent objector doctrine, the solution which [University of Tartu International Law] Professor Lauri Mälksoo in essence proposed.
Adding a general declaration that would exclude the framework of becoming legally binding might not be the most refined or diplomatic solution. One provided by an expert could be more analytical, rather than over-simplistic.
I suggest that employing the ''persistent objector" doctrine requires a prior exhaustive analysis of both the already existing and new obligations provided in the framework, and subsequent domestic political debate as to which aspects of the new obligations are genuinely unacceptable to the Estonian state and society.
Such an enterprise would also enhance public awareness and debate as well as clarify different political contours, since many of the political forces prone to right-wing populism will probably find it difficult to attribute to the compact things that are not actually contained in it, when faced with concrete legal obligations.
With regard to responsible communication, both sides have made mistakes and have polarised. The government and the foreign ministry could have translated, analysed and disclosed how the framework might become legally binding in the future, which obligations are already adhered to in Estonia and which not, and initiated a public debate based in fact and analysis already long before the polemics arose.
Legal scholars should have presented their opinions in a more factual, balanced way, explaining to the public the subject matter of their expertise fully, with examples. Above all, they should have refrained from presenting political and ideological (often unproven) opinions as truth and creating fear and polarisation in society. Or failing that, disclosing their biases explicitly, thus refusing to wear their scientist's hat and presenting their opinions as an opinion leader instead.
Scientists do not ''do politics'', especially when it concerns deeply value-based policies. Governments who are politically accountable in democratic elections make politics. At the same time, the statements of legal scholars and experts both initiated and decisively motivated the government's decision, or more precisely its inability to reach a decision, last week.
In the context of all of this, I worry whether the scientists, experts and politicians who have contributed to the discussion understand that the biggest threat to Estonian sovereignty is not merely one UN migration document, nor legal or illegal migration itself, but the global tendency of moving from a multilateral world order to a unilateral one. That is the power of the strongest instead of international law, agreements and alliances; choosing simple solutions and short-term political self-interest over dealing systematically, analytically and factually with complex social and economic problems.
This all typifies the recent populist election victories and governing patterns, with whom, at least with regard to its international reputation, Estonia joined last week.
I am also concerned as a legal scholar whether all scientists and experts who participated in the public debate understand the importance of their role and trustworthiness in society and the responsibilities that derive therefrom. If scientists can no longer be assumed to be politically impartial, thorough and comprehensive in communicating their expertise then, in addition to the particular authority of the legal scholar at hand, the credibility of all science takes a hit. There would then be no rational reason for politicians and the media to trust scientists and to ask for their input in policy formation.
If Estonian society loses the trustworthy reference point of scientists as the mechanism to distinguish between truth and non-truth, only uncertainty and endless relativism remains – as Jürgen Ligi put it: "The effect of the migration compact lies in the eyes of the beholder."
The discrediting of science brings with it the spread of pseudo-scientific theories and misconceptions and the over-simplification of complex social phenomena. Unfortunately, this is no longer a utopia in Estonia also.
Birgit Aasa is a PhD candidate at the European University Institute in Florence, Italy, visiting scholar at Columbia Law School, New York, and attorney at RASK Attorneys-at-Law in Tallinn.
Editor: Andrew Whyte