Why we shouldn’t care about the fixation of Neo-Nazis with the Middle Ages

People are obsessed with what racists, white supremacists, Neo-Nazis, etc. use to cover their ignorance, to hide their lack of political or social arguments, and to boost their pathologically low self-confidence. Now it seems to be the Middle Ages.

Some time ago I already read about this new trend, but I didn’t care. For me, as a supporter of a revival of Indo-European as a modern language, it was a relief that their fixation was somewhere different than Indo-Europeans.

The usual false syllogism for Indo-European questions goes Right populists support the supremacy of Aryans, ergo supporting the existence of expansions/language/social customs/etc. of Indo-Europeans means supporting Aryan supremacy. You can see the immediate association by the general population of Indo-European matters with Aryan supremacy by looking for information on Indo-European + white supremacy/Aryans/nazism, etc. on the Internet.

If you do that search, you might read a lot of right populist crap using Indo-European matters to support their ideas. You might even begin to associate one with the other, because it seems as if research on Indo-European questions somehow boosted those extremist ideals, right? If you think that, you are obviously part of the problem.

Apart from Aryans, Nazis have had fixations with ancient symbols (like the Swastika or Celtic symbolism), neo-paganism, the Roman Empire, the western European ‘heir empires of Rome’ that ensued, Catholicism, Germanic peoples, Romans, Greeks, Slavs, whiteness, blondness, Neanderthals…

And all of this has come at a cost for anyone involved or interested in any of those themes. It is only natural that Nazis evolve; just like shit decays, they move on. However,their interest about medieval times is not new (as is clear from the featured image of this post, and other propaganda from the time); it is just stronger now.

Now I see some medieval scholars complaining, in Twitter and in the news, calling for all to do something to protect the field of Medieval Studies.

But why? Why should we care about those who will regard medieval historians as tainted with Nazism? About you being called a Nazi, about people tacitly suggesting that you support their ideas? What have you done to protect Indo-Europeanists from the accusations, from the name-calling, from the shame?

Perhaps more importantly: now that you have become aware of this problem for the study of the western Middle Ages… What have you planned to do to help Indo-European studies once you are free from that yoke, that presumption of guilt? Probably nothing, you just care about yourselves. We all do.

I think it might be actually beneficial for Academia if more scholars suffer the same discrimination, if Nazis keep widening their areas of interest, so that we can all just ignore a simplistic and overused Nazi-shaming by stupid critics.

I don’t recall anyone defending Indo-Europeanists from those playing the Nazi card. The most recent example I know is the discussion around Lazaridis et al. (2017) paper, on Minoans and Mycenaeans. Some outrage from those involved in Human Evolutionary Biology (read the comments), but not too much from the rest of the world; too much concern this year about poor medievalists to care, I suppose.

You might not remember the infinite other times when you didn’t care about us being called Nazis because of our interest in (or writings about) our beloved academic field. But we do. And if you are complaining now, you certainly knew what was happening (what is happening), because how else could you know what this new love of right populists means for Medieval History, the shit it will bring?

Now your turn has come to enjoy the populace’s unending ad Nazium arguments. Publish anything about the social life in the Mediaevum, about medieval wars, religion, peoples, languages, symbols, etc., and just about anything that does not follow perfect political correctness will get you publicly shamed. Publish anything remotely interesting, and populist sites will publicise and manipulate your words, and critics and journalists will destroy your work by using populists’ words to describe it, not yours.

But, really, you shouldn’t care about the automatic association of your field with Nazis, about the unending insults, about the tacit (and oftentimes also explicit) link they will make of your work with Nazi ideas.

Just take a look at Indo-European studies. Not many Nazis have felt inclined to study (this or any other subject) because of their historical fixation with Aryans, so fear not, they will not take over your scholarships. However, their fixation has been a great filter for our field, to get rid of the weak of the heart, of those who care too much about what other people think, of those who are not convinced that this is what they want to do.

It seems to me that Indo-European studies have fewer scholars than it should, compared to other (in my humble opinion less promising or interesting) subjects, but the community is strong. Not much fuck is given about political correctness when publishing theories and models on the spread of Indo-Europeans, on their myths and customs, on their language. ‘Patrilocality’, ‘violent conquest’, ‘migration of peoples’, ‘women exchange’, ‘slavery’, are common (otherwise unpopular) words to describe their history and evolution, their ancestry, and they are becoming popular to describe anthropological evolution in general. We are in a privileged position to observe reality, and also the stupid political correctness of many.

Also, you might find comfort when passing this moment of truth professionally and personally knowing that, in the future, another field – whose scholars don’t give a fuck now about your popular shaming – will be their love object, and you will be able to tell them what I am telling you now.

Welcome to the dark side!

(EDIT 9/SEP/2017) I just realized that most (tacit or explicit) Nazi-shaming come from people within the field, who are obviously the ones interested in what you write. It is without a doubt the easiest way to criticise the work of your peers, who won’t need to do their research and answer formally with careful investigation. So good luck with that too!

Renewed German reparation demands by Poland mean also renewed territorial disputes

german-dialects

Maybe it is my impression, and this has been going on for a long time now, but in the past few months I have received many notifications from German newspapers about increasing demands by the Polish Government for war reparations (see today, five days ago, and see some editorials on the subject by the Berliner Zeitung and Die Welt).

This might seem a quick and easy way of obtaining money for the Polish administration; after all, Greece has been trying to do that since their economic crisis, not the least because of Germany’s strong support of austerity measures during it. The position of Greece, however, is different. There was no exchange between both nations after the war.

According to the Polish Government, before the fall of the Soviet Union Poland was a Soviet ‘puppet’ (their words, not mine), so the Two Plus Four Agreement – and indeed, it is to be understood, all previous treaties regarding reparations – are not legally binding.

However, if that is so, which demands did Germany relinquished to end with insurmountable WWII reparations? That is, which German demands can then be brought to the table again?

german-atlas
West Germany map of the 1960s showing Germany with their pre-1937 borders in many of their school atlases. On the map you can see the GDR in the Green / Yellow colours, Pomerania, Silesia and Eastern Prussian are noted as “At current time under Polish administration”, the same for Kaliningrad Oblast but as “Under Soviet administration”.

Just yesterday a Reddit user posted a typical German atlas from the 60s and 70s, including “Polish-administered lands”. In my experience, German language books tend to show German-speaking territory in what is now Poland without changes from the pre-war situation, even including (especially those up to the 90s) old administrative borders.

In 1970 at the Treaty of Warsaw the current borders were accepted by West Germany and Poland, and West Germany stopped printing their atlases this way. East Germany – also a Soviet ‘puppy’ then, according to the Polish Government – had already accepted the Oder-Niesse line in 1953 after Poland relinquished their demands for reparation in exchange for the eastern German lands.

Until recently, only the NPD (Germany’s far-right party) had openly supported the idea of returning the eastern territories and the Sudetenland. And these demands are not to be taken lightly, since the party is mainly voted by neighbouring east Germans and populism is on the rise everywhere.

npd-karte-neu
Typical map of Germany, from the NPD website

Reparations for mass expulsions of Germans from Poland and the Sudetenland have been mostly repressed, in my experience, by German news outlets and officials alike. Abuse of the east German population is an unpopular subject within the Germans’ general desire to close wounds and go forward. Only rarely could you watch some documentary about the mass expulsions, killings, rape, and violence in general that was seen in post-war Germany (including pre-WWII territories).

This is one of the questions that could be described as officially taboo. And probably for good reason. Like criticising the effects of the Multikulti movement (or the integration of the Turkish population) some twenty years ago, or today for example mentioning the foreign nationality of crime suspects to avoid inciting hate crimes.

However, judging from innumerable maps of German lands and WWII (and alternative history maps set after WWII) that appear in Reddit and DeviantArt, there are a lot of Germans who still regard with nostalgia the territories where their parents or grandparents lived.

In a time of European challenges like Brexit, rising populist parties, Balkanisation trends, and war against religious extremism, you have to understand what kind of new Pandora’s box you are ready to open. I hope Poles understand what their representatives are doing, and are ready for the consequences of repealing these treaties.

Featured image: Typical map of German dialects in the 1930s.

The Aryan migration debate, the Out of India models, and the modern “indigenous Indo-Aryan” sectarianism

indus-valley-early-harappan

The Proto-Indo-European Urheimat

Not long ago, the Proto-Indo-European language Urheimat problem used to be cyclic in nature: linguistic and archaeological publications appeared supporting a Copper Age migration from the steppe proposed by Marija Gimbutas, or a Neolithic expansion from Anatolia (or Armenia) proposed by Colin Renfrew, and back again.

I have always supported the simpler, more recent Chalcolithic migration of Late Indo-Europeans from the Pontic-Caspian steppe over an older Neolithic expansion from Anatolia with agriculture. The latter model implied a complex cultural diffusion over a greater span of time than is warranted by linguistic guesstimates, understood as the general grasp that anyone can have on how much a language changes in time, comparing the different stages of different Indo-European languages. Whether they like to talk about it or not, or whether they would describe them as such (or else as terminus ante or post quem), most known linguists and archaeologists involved in Indo-European studies have published at some point their own guesstimates.

To have an idea about how guesstimates work, you only have to learn some Indo-European languages from different branches, the ancient languages from which they are derived, how they have evolved from them through time, and their proto-languages, to see how unlikely it is that the differences from Late Indo-European to Proto-Greek, Proto-Indo-Iranian, Proto-Celtic, or Proto-Italic need a leap of ca. 3000 years almost without change, as required by the Anatolian hypothesis. Some have strong reactions against guesstimates arguing you cannot compare historic or proto-historic changes to prehistoric ones, to support a different linguistic change rate from Proto-Indo-European to proto-languages. I find this to be a sound criticism, but often used justify a worse, ad-hoc estimate that supports other theory.

Glottochronology – in case you are looking for mathematics or statistics to solve the problem – is as useless today as it always was. Not everything – in fact few things in anthropology – can be solved with algorithms and statistics. I do love algorithms and statistics, because their results – if based on sound assumptions – are hard to be contested, but not a single good one has been proposed for comparative grammar, as far as I know.

Algorithms solve everything

Steppe hypothesis

The steppe hypothesis was always the simpler connection with modern Indo-European languages, from a linguistic and archaeological point of view, and archaeogenetics (since the advent of haplogroup investigation, and the finding of modern R1a distribution) did also support it. However, it implied a conquest by warring patrilocal peoples, that substituted the ‘original’ Neolithic European and Asian population and languages, and invasions have not been a fashionable antrhopological subject for a long time.

One of the consequences of the genocidal racism and xenophobia seen during World War II was the strong reaction to its ideological foundations, and there was a common will to end with Kosinna’s trend of historic ethnolinguistic identification of modern peoples. Linguistics and archaeology did then search for more complex models of human relations and exchange, mostly to avoid what appeared as simplistic concepts of migration or invasion. Marija Gimbutas’ simplistic kurganist, male-driven invasion of territories inhabited by matrilocal Old Europeans, albeit reasonable, did not fit well with these post-war times. One could accept historic and proto-historic atrocities and genocide by any people against others, and even tribal conflicts between prehistoric hunter-gatherers that ended in the destruction of one of them, but a violent, massive spread of ‘Aryans’ was considered a dangerous idea to be avoided.

Thanks to the effort of David Anthony (among others) in supporting migration models in Archaeology, the steppe model did have a strong revival even before archaeogenetics began to be a thing in anthropological research.

Anatolian hypothesis

The Anatolian hypothesis, on the other hand, seemed like a fine, long evolution of a language accompanying the peaceful spread of a technological innovation, farming and cattle herding. Originally believed to be mostly a cultural diffusion (now it has been demonstrated to be a mixed diffusion event, with strong demic diffusion in its early phase), it was thus in line with a more politically correct view of prehistoric events.

This cultural diffusion gave in turn way to more peaceful and innovative solutions to language spread, like waves of expansion, or a constellation of languages influencing each other for long periods, so that even the potential reconstruction of a single Proto-Indo-European language or people was doubted. Prehistoric friendly neighbours would have adopted farming and exchanged goods and languages for thousands of years, and only with proto-historic events did people have ethnolinguistic identification that caused conflicts…

While recently there have been some doubts expressed by Mathieson et al. (2017) on the of the steppe hypothesis regarding Proto-Anatolian, it is likely that the lack of enough ancient DNA of the Balkans and Anatolia is the key factor here.

An interesting linguistic proposal, the glottalic theory, while sound in its assumptions and results – much less likely in my opinion than the more common two-dorsal theory, and this much more likely than the prevalent three-dorsal one – gave some theoretical support to the Anatolian (or Armenian) hypothesis, since some proponents felt that a glottalic Proto-Indo-European should have an origin near to the Armenian homeland – because glottalic Proto-Armenian would have retained a phonetic state nearer to the “original” Proto-Indo-European.

That simplistic regional continuity explanation is akin to the trend of Basque researchers to discover links of Proto-Basque with the Pyrenees in Mesolithic and Palaeolithic times, when there is no data to warrant such identifications – and it seems in fact that Proto-Basque, Proto-Iberian, and Palaeo-Sardinian might have accompanied the expansion of farming in the Neolithic. Probably most proponents left of the Glottalic theory today (like Frederik Kortlandt and Alan Bomhard) would accept a steppe migration unrelated to an Armenian or Anatolian origin.

Marginal proposals

There were indeed other marginal proposals, with people supporting origins of Proto-Indo-European in both ends of the current distribution of Indo-European languages, from the “Indo-” in Out of India theories, to the “-European” in Eurocentric proposals. Most Eurocentric proposals – based on certain archaeological cultures and their evolution in- and outside Europe – have been dismissed with archaeological and genetic research, and the remaining ones usually favour the more fashionable peaceful spread of languages.

Palaeolithic Continuity Theory

A small group in support of the more recent Palaeolithic Continuity Theory remains. It seems to me as deeply flawed from a linguistic point of view (with a much larger time span needed than for a Neolithic expansion), but their arguments are led by research on genetics and archaeology, and not much is left for European romanticism, so it has always appeared to me as a professionally acceptable – although futile – attempt by eccentric researchers to disentangle prehistoric events.

Similar to what happens with proponents of the Anatolian hypothesis, new linguistic, archaeological, and genetic research is used to remake PCT models – instead of just dismissing it -, so it is likely that we will have many different proposals of stepped population movements that will make both models eventually converge with the steppe migration theory, to the point where only the steppe migration theory remains, with some added details on its most ancient origin. I guess sometimes it is difficult to let (part of) your life’s research just go away without fighting for some recognition… You desperately look for a tap on the back by some colleagues, even out of pity, who will tell you ‘it seems you might have been right in some details, after all!’…

Out of India

The Out of India theory is the name given to a group of (mostly) independent models that usually propose a Proto-Indo-European homeland based on or around India. Contrary to the PCT, an Out of India theory set during the Mesolithic or Neolithic would be feasible from a linguistic point of view: you could somehow connect some archaeological migrations to support the spread of Early-Proto-Indo-European-speaking R1a lineage happen east-to-west (and north), and genetically it had support in some papers on modern distribution of R1a subclades, for example in Underhill et al. (2014). Underhill himself has since questioned his conclusion in view of recent papers publishing ancient DNA analysis.

Out of India theories, overall, could thus be as strong (or as weak) as the theories concerning an Anatolian origin, in their potential for explanation of the ancient origin of the Proto-Indo-European language spoken in the steppe during the Neolithic and Chalcolithic. However feasible they might a priori be, I have yet to encounter a decent modern paper with that kind of proposal, based on recent genetic papers. Most modern articles are just Indian nationalist crap, and the only decent papers on this matter are becoming quite old fpr this relatively young field of Indo-European studies. Maybe that’s because I don’t have enough time to look for the hidden good anthropological papers among so much dirt. After all, it is not a very likely theory, and one has a limited amount of time.

In recent papers, if you get rid of simplistic reactionary and revisionist views, conservative Indo-Aryan Hindu nationalist or religious bigotry, fantastic connections with the Indus Valley civilization, and simplistic identifications of Proto-Indo-European as ‘nearer’ to Vedic Sanskrit – with absurdly old and odd references to Schleicher’s reconstruction and dialectal Indo-Slavonic or Satem references -, you are left at best with some basic criticisms of Eurocentrism and the known shortcomings of anthropological disciplines in investigating Proto-Indo-European Urheimat, but no data to support any connection with India whatsoever.

If there is a reason for a generalised inferiority complex in India, I would find it in the shameless publication and popularity of such worthless research papers, a trend that is also seen in scientific fields, with Indian researchers having a increasingly tougher time passing editorial and peer reviews, and resorting thus to national journals. In the case of Indo-European studies, instead of trying to fit data with what we know, the only aim in Indian research seems to be to connect the Indus Valley with Proto-Indo-European, and Proto-Indo-European with a “pure” (i.e. Vedic) Indo-Aryan, to support a mythological Indo-Aryan Hinduist India. And that is mostly what you will find in any Out of India article today, whether based on linguistic, archaeological, or – what is prevalent today – genetic investigation.

This has been The Out of India Controversy Week: it began last week with the publication of a quite decent article in The Hindu by Tony Joseph summing up the current situation of anthropological research. It was followed by reactions in conservative Indian news, and this in turn was contested by Davidsky and Razib Khan. The original article by Tony Joseph has been echoed by Victor Mair in Language Log, and I agree with his description of Joseph’s paper as “informed, sensitive, balanced, and nuanced. This is responsible science journalism”, even if I disagree with some of his statements (in a different way than Mr. Mair). However, this propaganda disguised as scientific criticism is what you get from Indian nationalists.

EDIT (25/6/2017): Razib Khan has published a thorough post on Indian evolutionary genetics as follow-up to this week’s controversy. I think there is too much effort being invested during these controversies precisely by the people who need not explain themselves. Anyway, good summaries of anthropological matters are always welcome.

EDIT (29/6/2017): Other posts on the subject, from Brown Pundits: On the “Aryan” debate – the linguistics POV; Razib Khan’s Indian genetics, part n of many; and Aryan Migration and its Discontents.

Interestingly, any time new research comes to shake certain Indian nationalist foundations, a stronger backfire effect happens, and more criticism is done on the shortcomings of such anthropological research. Because, indeed, if the anthropological theory is flawed, mythical Indo-Aryans spread from the Indus Valley, right…? One can only expect this kind of controversies to escalate in conservative Indian blogs and fora alike, and then deescalate until the next paper is published. A dialectic cycle whose only evident result is the increased opposition that conservative Indian researchers – or researchers that depend on funding by such groups – will have in publishing anything related to a potential Aryan invasion, and the addition of a stronger bias in Indian research.

Western European history

It might well be because I am western European, and western Europeans tend to accept quite well multiple invasions from the East. After all, they have happened so many times in proto-historical and historical times, that it is part of our ethnolinguistic nation-building lore. French people trace their history to the expansion of Celts, Romans, and Franks; Spaniards and Portuguese trace it to the spread of Celts, Ibero-Basques, Romans, and Westgoths; Italians to the expansion of Etruscans, Celts and Italics, Romans, Ostrogoths and Langobards; the English to the expansion of Celts, Angles and Saxons, Vikings, and Normans…

It often seems to me that western Europeans will romanticise their origins no matter what appears in historic and genetic investigation: if Neanderthals are unrelated to Europeans, they are ‘cavemen’; if they intermixed with our ancestors, then they suddenly become quite human in their behaviour, and it is great to have more Neanderthal admixture. If Indo-European-speaking R1a lineages invaded central Europe from the east, and transferred their languages, great, because “we” are heirs of original western European hunter-gatherers of Palaeolithic R1b lineages; if R1b lineages represent an invasion of eastern peoples speaking Late Indo-European, great too, because it means that our paternal forefathers were the ‘original’ Indo-European speakers…

This reaction, our history is great no matter what, seems to be a good one for research, since it allows for any change in our romantic views of the past. This, however, does not seem to be the case for some nations, and this inability to change their views is likely related to the inferiority complex that some nations have developed, in turn probably caused by western European colonialism, so one is left to wonder how responsible we are of modern chauvinist trends.

The sad future

Seeing how so many people of eastern European ancestry are convinced of an origin of R1a-M417 in Indo-European migrations from Yamna – when there is (yet?) not a single proof of it – may be just as troubling as the Indian case, or maybe more, since it affects an important part of Europe. I cannot believe that even today only western Europeans are capable of romanticising their own past no matter what, while the rest of the world lives in a quest to appropriate whatever they view as some great ancient culture, people, or language for their own ancestors.

I have already received complaints and have seen people (of Y-DNA haplogroup R1a) complain online that their forefathers cannot have been Uralic speakers, and some Uralic speakers (of haplogroup N) that original Uralic speakers cannot have been of R1a lineages. Firstly, if I were eastern European – be it Germanic, Balto-Slavic, or Uralic speaker, or a speaker of Indo-Aryan languages, of R1a or N lineage, whatever my country of origin, I like to think I would prefer to know where my forefathers actually came from, and what languages they did in fact speak thousands of years ago, even if that disrupts everything I or my fellow countrymen (wrongly) assumed for a long time. Secondly, we – as western Europeans speaking Romance or Germanic languages – have the right to know exactly how our peoples and languages really came to be, even if that means disrupting others’ dreams. Our paternal ancestors probably changed languages 3 or 4 times during their multiple migrations from the east, and were not peaceful hunter-gatherers living since the Palaeolithic in the same region we do now, as traditionally held; if we can get over this, eastern Europeans and Indians can get over it, too.

I think everyone deserves to know the truth, and they will eventually like it and fantasise with it. But many individuals want to disrupt any possible change to keep their current ethnic and nationalist agendas untouched, and that can affect us all. Nationalistic and romantic trends are understandable: Romans needed Virgil at the peak of their conquests to tell them that they had a glorious past in Troy, connecting them to the immortal Greek epics. The most important lesson one can learn from that example is that Italian researchers are still (2000 years later!) influenced by that myth, and they keep trying to look for Anatolian remains in Latin studies, and in the archaeology and evolutionary genetics of Italy. I guess you could therefore say these mythification trends are naturally human…but losing so much time in absurd quests for mythological identities seems absurd, and can only damage research.

It is sad to think about future generations of Indians looking for any sign to support an autochthonous Indo-Aryan homeland, while the rest of the world keeps moving in the right direction…

(Note: featured image is licensed CC-by-sa 4.0 from Avantiputra7 at Wikipedia)

Wiik’s theory about the spread of Uralic into east and central Europe, and the Uralic substrate in Germanic and Balto-Slavic

vasconic-uralic

I recently wrote about how Wiik’s model was wrong in supporting a Mesolithic European Vasconic-Uralic harmony – genetically based on the modern distribution of R1b vs. N1c haplogroups -, and thus also the disruption of this harmony by Indo-Europeans (supposedly a population of R1a-lineages invading central Europe from a Balkan homeland).

Romanticism does this quite frequently: it makes us believe in some esoteric fantasy, like the ethnic continuity of our ancestors in the region we live (and a far, far greater original territory that has been unfairly diminished by invaders), providing us with strong links to support our artificial borders and their potential expansion.

Even though my article on the demic diffusion of Indo-European languages does only slightly comment on the origins (and potential language) of N1c-lineages and of Proto-Basque and Proto-Uralic languages, I have already received some angry emails by Basque and Finnish genetic amateurs. I don’t get the point of fantasizing about one’s own ethnicity and prehistoric territory, and then getting through the five stages of grief when one is confronted with different (usually sounder) theories, time and time again. It seems like a lot of time lost by generations in wholly stupid quests and self-negotiation.

However wrong Wiik’s basic theses are, though, if you have read my paper you have seen that Corded Ware groups spread from north-western Ukraine might have spoken Uralic languages. Therefore, it is reasonable to assume that Pre-Germanic, Pre-Balto-Slavic and Pre-Indo-Iranian might have been adopted by peoples who spoke Uralic languages, probably related with each other, possibly belonging to early Finno-Ugric dialects. In that sense, Wiik’s work has a renewed linguistic interest, regarding the potential substrate words he investigated.

This is not a picture that certain Basque, Finnish, Russian, or Indian romantics would have hoped (or even hope today) for, in terms of ethnic, linguistic, and territorial identification, but that is not a real problem, anyway, just another building of imaginary origins that will fall as many others before them. In the same sense, Germanic ethnogenesis has become more complicated than what some would have wanted, with at least three main paternal lineages with completely different ethnolinguistic origins developing together since ca. 2500 BC to form a more homogeneous community only during the Bronze Age. Therefore, no homogeneous exclusive ethnic ‘original’ European regional community can be fantastically invented anymore.

This seems to me a real coup de grâce to genetic-based nationalism in Europe, and it is encouraging for the European Union that Germany, as the central European country, is not only a central territory, but also a central cultural and genetic bridge between west and east Europe, in terms of history, of North-West Indo-European languages, and paternal lineages and admixture analyses.

References

EDIT: You can read interesting recent posts on genetics of Finnic peoples in Razib Khan’s blog: The origin of the Finnic peoples, and The Finnic Peoples Emerged In Baltic After The Bronze Age, the latter discussing results on a recent paper by Saag et al. (2017).

Freedom of expression in a digital world: how fear over “cease and desist” threats can be used by individuals to restrict basic human rights

This is the story of how an unethical individual, who regards fundamental rights differently as applied to him and to others, can manage to frighten a company to the extent of making them think about limiting his clients’ freedom of expression, with a simple home-made “cease and desist” email threat. No China, no Cuba, no Iran involved. Just Spain in 2009. Too sad to be true.

I wrote it in Spanish because it is interesting for my group of study of Spanish and European Information Technology Law. I’ve translated it here for anyone interested in Spanish law, jurisprudence and international case law about new technologies and freedom of expression, a fundamental right within the Spanish Rechtsstaat.

FACTS

FIRST.- I write blog posts, i.e. I publish my own dissertations or thoughts online. I personally installed and configured the webserver at home in a computer of mine. The webserver is located in Spain, I use databases to store the content and logs to store every possible information of visits, with a backup system to hold copies of weekly changes. I am a Spanish citizen, I live in Spain and I always wrote from Spanish territory (=from Spain-based IPs). I have studied or am studying Law, Economics and Medicine, although I cannot be considered an expert in any field. My hobbies are languages and computer science.

SECOND.- This is an account of events (proven with links and quotes) between july 2007 and may 2009:

  1. A blogger, Mr. Glen Gordon – who describes himself a “linguistic expert” and tries to make it clear every time he writes (but discusses his theories in blogs instead of professional peer-reviewed journals) criticized our Dnghu project in a post on his blog Paleoglot (about an “Indo-Tyrrhenian” or “Paleo-Aegean” brain fart thing). The blog is run in blogspot.com by Blogger, part of Google, Inc. services, a company based on the U.S. and which wants its contracts to be subjected to U.S. law, but whose webservers and data centers are located worldwide “in the dozens” (after CFO George Reyes), including Europe (from where content is served to European visitors), so that it is subject to European law; Google certainly has backup copies of what is written in its blogs. Mr. Gordon wrote -as far as I know – from Canada, and is probably a Canadian citizen.
  2. I found visits coming from his post, read it, and answered him commenting in his own (U.S.-based) blog, criticizing his (obvious) lack of knowledge about us and the project, as he hadn’t even read the book. It seemed to him enough to read a page of the grammar (only a linguistic root was discussed) to draw a conclusion about us on politics and linguistics; very professional for a professional linguist indeed. Anyway, as always, I made clear that any effort to get to know the project and to help us is welcome – but that much more should be made to write a fair critic about us or the project.
  3. The blogger, Mr. Gordon, apparently considered my answer somehow insulting (he criticizes but expects not to be criticized?), and wrote still another dedicated post in his blog about me and Dnghu – for him all associates were, from that moment on, equally responsible for my words -, calling me a “dogmatic relativist”, talking about my “ignorance”, my “arrogance”, how I “misspelled” the name Gąsiorowski (that was very important to show my “ignorance”), again referring to “proto-politics”, etc. He also writes the following comment without giving a clue about my “race” or “racist” remarks:

    The problem is that they’ve taken this proto-language obsession into the realm of politics by believing that they can make this a lingua franca of the European Union, and considering Nazi history which sought to make Indo-European the “language of the original Aryans”, this is the DUMBEST and most insulting thing you can do to other fellow Europeans, especially those that are non-IE speaking (Finns, Hungarians, Basque, Maltese, etc., etc., etc.)

    So utterly dumb, in fact, especially after the continuing stupid comments of Carlos Quiles on my site and on Dnghu about his views on race, language and IE, that I’m personally convinced that Dnghu.com is a racist organization masquerading as non-racist to incite conflict for the personal enjoyment of its member(s)

    So, pure opinion and references to me and Dnghu being “nazi” and “racist”, no reading about our project or the book; just a great interpretation of my personality, knowledge and culture and about my (and Dnghu’s) “racism” from a single comment in a language which is not my mother tongue and a project that is my hobby – apparently professional linguistics today offers a great psychological and cultural background to make personal profiles and judge how “nazi” or “racist” a person or organization is. Impressive. Too naïve to be taken seriously, no need to answer. No need even to investigate U.S. or Canadian law, or Google Blogspot service rules, as the webservers that repeat the information are located in Europe. However (I thought), if they (the U.S., Canada, or Google) want to tolerate that behaviour, I can’t do anything, just as if an integrist calls me “racist infidel” or something in a website of a fundamentalist Islamic country. That should be an internal problem of foreign companies and countries and their respect for human rights.

  4. Impatient for me to read it, Glen commented on the first Dnghu’s blog post he found (based on Spain, subject to Spanish law) again and again about me and Dnghu being this and that. I warned him about spamming the website, and I eventually had to delete his multiple (unnecessary) links to Paleoglot included in each comment. He then behaved like a common troll, seemed to be furious, trying to ignite flames for some days, also using a newer post to comment, so that others could read him in more posts, no matter how unrelated the main subject of the post was. He insulted me and the association (based on Spain) again, using repeatedly adjectives like “nazi”, “racist”, or referring to the “genocide” or holocaust of jews, or the “violence” of “the catholics” in Canada: “you’ve thoroughly proved you are a kind of Nazi”, “And like a Nazi you adopt non-mainstream emotional rhetoric like the outdated Kurgan Hypothesis”, “your whole ‘organization’ is nonsensical”, “your Aryan organization”, “you devalue non-IE-speaking European citizens”, “Dnghu is a sinister organization”, “[t]he fact that they [we] specifically chose Indo-European is suspect considering Nazi history”, “they will welcome you into their community just as they would anyone named Adolf Hitler”, etc. He also judged my mental health and capacity (remember, only with his “linguistic expertise” background and with me having made at the time two or three comments) using descriptions like “your disturbing psychoses”, “your delusions”, a “fascist-like desire”, “naive fool”, “idiocy”, “a fool from Dnghu”, “you lack the maturity to address criticism”, “Carlos doesn’t seem to be capable of doing anything but putting his foot where his dnghu should be”, “you masochistically delight in your own shame”, etc.; and, again, “ignorance” based on another misspelling, “Algonquinian” instead of Algonquian. A pain in the ass, but after good old just make fun of the troll’s comments and you can’t spam us policies, maintained for some days (as a good professional in linguistics Glen had only a week or so to lose insulting us in our websites, still some more time to comment about me and Dnghu in his own blog), he became tired and left. Not without posting an especially interesting comment regarding his future behaviour (on how good it is that the Internet is free for everyone to know how we really are by reading what we write):

    Regardless of the fact that you’ve erased some of the above comments by others that you couldn’t handle, while inventing others in mockery of me [note the unproven conspiranoic claims], all of your own words are spreading across the internet like wildfire right now thanks to Google and other search engines which keep long-lasting records of previous states of webpages through their caches. So I can easily predict that any future readers will come to associate your verbal vomit here with Dnghu and be forever sick to their stomach

  5. Some months later, after some normal critic comments about him and his work in the blog Language Hat blog, he showed a similar aggressive, insulting, and then (in his own blog) paranoid behaviour, even looking for conspiracies from everyone involved in the online conversation that had taken place in Language Hat. Some linguists, who knew him from his participation in linguistic forums, made very precise descriptions of his previous similar behaviour in other discussions, some even trying to ascertain which exact personal disorder made him interpret (especially written) answers and critics always as offences. Someone mentioned “Asperger syndrome”.
  6. I discovered that his second post, his criticism about me and Dnghu, was almost on top of the Google search results for “Dnghu” (as people talk about Indo-European language or Modern Indo-European, not about Dnghu or me personally…), and I decided to write about “Glen Gordon” and “Paleoglot” to balance out. I wrote about him and his aggressive, irrational reactions and linked to his humiliating comments about others and to his paranoid and narcissistic features shown on Dnghu, Language Hat and Paleoglot blogs, and warned other Internet surfers about him, asserting he is “mentally unstable”*. No opinion, no insult, not even a precise medical diagnosis – simple deduction from his behaviour which anyone could have made with little knowledge on Psychiatry or Psychology, and warning others about him: something is wrong with this guy, be careful if you happen to mix with him online, because he takes normal criticism as offending, and could behave as an infuriated troll. A reference to the description of him linked to “Asperger”, not valuable for the Asperger diagnosis itself (I obviously didn’t agree with it, because I contradicted it), but good for other people to know about his previous impressions of being conspired against, and about how he reacts when criticised.
  7. He commented the following:

    The rhetorical smeer [sic] campaign against me in this article speaks for itself. When you’re capable of talking on the subject of linguistics instead of wishywashy personal politics and hearsay, let me know, kids.

    Note the misspelling, which accounts for “ignorance” according to this expert in linguistics dedicated to the serious field of “Indo-Tyrrhenian” – especially given that English is his mother tongue, while mine is Spanish. Note that he thinks it is a ‘smeer’ campaign: not just a post from me, but a whole “campaign”, a kind of sinister plan orchestrated against him. Note also the unavoidable “I am an expert in linguistics and you aren’t” thing. Note that “we” (i.e. me and my invisible friends) are all “kids”. Paranoid and narcissistic features – just deduction. But no borderline, no overreaction, no bullying, no direct insults. I really thought I might have judged him wrong after all – because I really expected him to overreact -, so I didn’t answer. Maybe he is more narcissistic than borderline, I thought, and just gets angry if contradicted in what he thinks it’s his “expertise”…

* With “mentally unstable” I meant what in Spain is often also called (using the English term) a “borderline” personality; in English literature is referred to also as “emotionally unstable”. Glen’s personality obviously has strong paranoid (=Reads benign remarks or events as threatening or demeaning, Perceives attacks on his or her character or reputation that are not apparent to others and is quick to react angrily or to counterattack) and narcissistic (=”I am a great linguist”, “you are all so ignorant of the truth”, and the like) and obvious features, but I can only bet for borderline, given the depictions of his previous behaviour as oddly alternating (from normal to incomprehensibly aggressive an then back to calmed and normal when talking e.g. with online friends like PhoeniX in the same threads) made by Language Hat readers. I didn’t even talk about his borderline features accounting for a full personality “disorder”, i.e. a mental illness [Edit: in fact, given the prevalence of Borderline PD in females, it is more likely that, in case he were diagnosed a PD, it were a Paranoid PD (i.e. fear of external objects as potentially harmful), of the aggressive type, i.e. projection of the own aggressiveness in objects (=”I am aggressive because you are all aggressive towards me”), less likely of the defendant type, i.e. suspicious of the objects (“I suffer because they all want to harm me”)]. Just a simple “mentally unstable”. Some people are more paranoid, some others are more narcissistic, some more avoidant; I said Glen was clearly unstable. I showed why, and all that as response to his online public insults and disqualifications, so that people can compare both points of view: either I (and the association) are actually “Nazi” and “racist” for proposing the language revival project and criticizing Mr. Gordon’s opinions, and those linguists who commented about him are all in a conspiracy crusade against his great work on an invented Paleo-thing, OR he had frequently emotional instability episodes when confronted with criticism…
Whether or not his case is one of full Borderline disorder (AKA illness) is an individual question only he and his psychiatrist are able to determine, as it depends on how adaptative his behaviour is for his everyday life, and how much he suffers from his violent overreactions from normal criticism (or even mockery, why not) of him and his work, as such episodes are usually very stressful for these people.

THIRD.- But, on the 18th of May I received an email from my domain name registrar, a Spanish company which gets paid 9$/year for (basically) redirecting “carlosquiles.com” to my server at my home IP “xxx.xxx.xxx.xxx”. They gave me a period of 7 days to delete especifically the “mentally unstable” and the “Asperger syndrome” words from the post, or they would “be obliged to shut down the service” I had paid for. ‘Someone’ had complaint about “violent” speech and “defamation” on that post. That ‘someone’ hadn’t contacted me before to suggest me to correct or delete the text where there was wrong or “bad faith” or (according to him) “violent” speech. Even my own company hadn’t contacted me to know my version of the story. So, again, a strong unfounded overreaction of Mr. Gordon (threatening a third party to make them silence an individual he dislikes) mixed with previous strong narcissistic and paranoid features.

I wrote them back immediately, telling them I am very interested in such legal questions (Information Technology Law) and here is what I answered them with a similar structure but more formally, as in sentences of Spanish courts (I won’t post the mails we exchanged here, as the company agreed on the next day that I was right, and I think they don’t deserve to be given bad publicity after all):

LEGAL BASIS

FIRST.- Everything that happens with the content of my webserver, and which involves my website, Dnghu’s websites, and my activities within Spanish soil, is subject to Spanish law and courts, according not only to CarlosQuiles.com and Dnghu privacy policy (which everyone accepts by visiting and writing on the webserver), but also – and more important – according to Spanish internal and International Private Law rules. No other jurisdiction is recognized by me (or the Dnghu Association) in the privacy policy, nor by Spanish or European law and courts. If you enter my websites or those of Dnghu, and write on them, you accept to be bound to Spanish courts. Just like when you use a Google service you accept to be bound by its terms and (usually) to U.S. courts. It is so simple it doesn’t need any further explanation:

Art. 22.2 Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial (LOPJ) .- En el orden civil, los Juzgados y Tribunales españoles serán competentes: (…) 2. Con carácter general, cuando las partes se hayan sometido expresa o tácitamente a los juzgados o tribunales españoles, así como cuando el demandado tenga su domicilio en España.

The Art. 22.3 LOPJ (with Art. 5(3) of the Brussels Convention of 1968 and Regulation (EC) 44/2001) clearly establish the choice of law rule lex loci delicti commissi for torts (civil wrongs not arising out of contractual obligations) and criminal offences. This includes all unlawful acts not governed by a contract [Kalfelis v. Schroder, 1988 ECR 5567 (case 189/87)], and the territorial connection is the country where the injurious facts were produced (e.g. from where the offender introduces data to the Internet), and the country where the damage is done (where the information is actually published, the location of the webserver) [G.J. Bier B.V. i Reinwater Foundation v. Mines de Potasse d’Alsace S.A., 1976 ECR 1735 (case 21/71)] which are often the same. So for example, I publish my content from Spain in a server of Spain. Mr. Gordon, however, publishes his content from Canada in foreign webservers – in Canada or the U.S., and simultaneously in a European one (Belgium or any other where Google, Inc. servers instantly ‘serve’ the content). This general territorial forum was further confirmed by the Convention on Cybercrime of the Council of Europe in 2001.

Art. 23.1 LOPJ: En el orden penal corresponderá la jurisdicción española el conocimiento de las causas por delitos y faltas cometidos en territorio español o cometidos a bordo de buques o aeronaves españoles, sin perjuicio de lo previsto en los tratados internacionales en que España sea parte.

NOTE. Traditionally, the choice of law “connection points” used in International Private Law to solve conflicts of jurisdiction (to ascertain the “forum“) and applicable laws are based on the territorial location of the actions and facts of each case. So for example:

Art. 8 Código Civil: “Las leyes penales, las de policia y las de seguridad pública obligan a todos los que se hallen en territorio español”

art. 5(3) Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 : “En materia delictiva o quasidelictiva [será también competente] el tribunal del lugar en que acaeciera el hecho lesivo.”

art. 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters: “En materia delictual o cuasidelictual, ante el tribunal del lugar donde se hubiere producido o pudiere producirse el hecho dañoso.”

In a digitial world where any information online is accessible everywhere, the “place” criteria is not valid for every case, as there can be actions considered offences in one country, and accessible from it, but commited from webservers and nationals of countries where they are not considered offences. Because Internet activity is “global” and law is “national”, sometimes jurisdiction is recognized by different national laws, and the important aspect is which jurisdiction could (and would) recognize which foreign resolution and which not. There are no “cyberlaws” or “supranational courts”, and the International Private Law guarantees that applicable solutions to conflicts are the product of a democratic process (State laws), respect the principle of State sovereignity, and gives efficient solutions thanks to the coercitive power of the State.

In a case like European Court Shevill v. Press Alliance, 1995 ECR 415 (68/93), of defamation using a publication, the origin of the ‘causal fact’ is the same as the country of the editorial sued – cf. similarly my blog content published in a webserver located in Spain. However, in Internet (and especially big companies like Google, Inc., with multiple webservers which coordinate themselves and publish their content instantly everywhere) it is frequently impossible to ascertain a single country of publication where the causal fact occurs, and multiple jurisdictions could hold themselves competent.

However, on the possibility of suing Mr. Gordon in Canada – regardless of where he did in fact publish the content -, according to Common Law rules, Australia’s Joseph Gutnick v. Dow Jones, VSC 305 (28 AUG 2001), has been cited by courts in the United Kingdom and Canada to justify their jurisdiction in cases of defamation using Internet, no matter where the individual (with U.K. or Canada domicile) published it. Also, the “domicile” concept is less strict than in our continental Rechtstaat, and therefore no nationality is needed for prosecution, so actual Canadian citizenship is not important.

Now, apart from the jurisdiction, there is the applicable law problem, as the court (whatever it may be) has the obligation to apply the necessary laws, whether foreign or national, which regulated those involved and their relationship. In Spain, it is a bilateral locus delicti rule, and it is interpreted as a conflict rule applicable to civil responsibility derived from any unlawful act, whether civil or criminal.

Art. 10.9 Código Civil: “Las obligaciones no contractuales se regirán por la ley del lugar donde hubiere ocurrido el hecho de que deriven.”

NOTE. The ubiquity problem of the Internet, already explained, makes this question of applicable law a especially difficult one when there multiple webservers and different nationals acting from different countries. So e.g. the Waddon case (U.K.); the US v. American Sports Ltd. (15-APR-2001), or the SAP de Barcelona, de 25 de abril de 2002, Planeta v. Geocities. That has favoured a frequent election of the forum by individuals, according to the best law they could find: so in the case of Andrew Meldrum – journalist of the Guardian – prosecuted in Zimbabwe for “defamation”, because of an article criticising its governement…

There are also people who defend the “law of the causal act” (law of the country of origin of the civil tort or crime) as the only one applicable. That makes it better for the offender, but tends to create “paradises” for offences and civil torts, as “tabloid havens” for webservers, established in countries with a relaxed protection of personal rights. So, for example, Mr. Gordon could claim that because he wrote from Canada, only Canadian laws apply to him.

All in all, we cannot forget that the law of the place where the webserver is located (Spain for mine; U.S., Europe, and other laws for Mr. Gordon and Google, Inc) is generally in a privileged situation in this subject of conflicting laws in civil torts or crimes commited using Internet, as it complies with a lot of national and international regulations (v.s.). Moreover, in this case everyone agreed (and agrees) to be bound by Spanish law when reading, writing or otherwise using my webserver, so there is not much space for interpretation. About Google, Inc. servers, however, it is bound by the specific European country’s national laws (Belgian or any other), as laws regarding fundamental principles of each country fall into its exception of “public order”, common in criminal offences and (especially in continental Europe’s Rechtstaat) in law of tort, and such laws cannot be avoided. To simplify, I cannot publish content in Belgium, making people visit my unlawful content in webservers located in Belgium, and then oblige Belgians to submit to e.g. U.S. tort law through a simple privacy policy statement, because Belgian courts won’t recognize that submission.

NOTE. Unlike European continental countries, countries of Common Law (as the UK countries of the Commonwealth, like Canada) tend to substitute the lex loci delicti commissi with their Proper Law, the doctrine originated in conflicts of law of contract in their own courts. So e.g. in the U.S., in Hugues v. AOL, Massachusetts District Court, 28 May 2002, the election of the forum was admitted as binding, and so in the Court of Appeals of Washington DC in favour of the courts of Virginia, where Verizon has its domicile. In both cases, the actor tried to sue the companies in his State of residence.

Also, the single publication rule avoids in the U.S. that their courts might know of crimes or torts commited with contents published in webservers not located on U.S. soil, as in Simon v. Arizona Board of Regents, 28 Med L Rep 1240 (Ariz.Super.Ct.1999). A similar concept is found in the European Court Shevill (v.s.), where only the forum of the country where the causal fact happens is competent to fully examine the case (and compensate for damages suffered in global scale).

Furthermore, regarding online publications, the newest European law of tort (like the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations, so-called “Rome II”) will spread the concept of a strict lex loci damni, so that the accessibility of the Internet from any country is not enough for a (global) locus delicti, nor to select the applicable national law – the location of the webserver will, then, be the essential choice of law “connection” rule:

Article 4. Regulation No 864/2007. General rule. 1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

Also, express submission – as in this case – is recognized and given preference over any other forum in the future applicable law of tort, regarding European nationals:

Article 14. Regulation No 864/2007. Freedom of choice.1. The parties may agree to submit non-contractual obligations to the law of their choice:
(a) by an agreement entered into after the event giving rise to the damage occurred;

NOTE. On the contrary – regarding Mr. Gordon’s actions (and Google’s secondary responsibility) -, according to Spanish (now possibly old) case law, it is assumed there is the necessary minimal connexion between the unlawful conduct and the Spanish state if the content is accessible from Spain – therefore, Spanish law will apply to their unlawful acts as well (Calvo Caravaca, Carrascosa González, 2001: Conflictos de leyes y conflictos de jurisdicción). Regarding newer European legislation, though, it wouldn’t probably be followed; however, in lack of international treaties or reciprocity (as is the case of Spain or the EU) with Canada or the US, any decision on the legislation to be applied depends fully on Spanish courts, and there is a (logical) tendency to apply the own law if there is doubt.

SECOND.- The fundamental right to (or, more precisely, “public freedom”) freedom of expression is recognized by the Spanish Constitution of 1978, art. 20, and is protected through strong constitutional guarantees, especially by the Constitutional Court.

Art. 20.1 CE: Se reconocen y protegen los derechos: a. A expresar y difundir libremente los pensamientos, ideas y opiniones mediante la palabra, el escrito o cualquier otro medio de reproducción. (…) d) A comunicar o recibir libremente información veraz por cualquier medio de difusión.”

One of its express limits is the so-called right to honour (apart from right to privacy and right to public image, which are not involved here):

art. 20.4 CE: Estas libertades tienen su límite en el respeto a los derechos reconocidos en este Título, en los preceptos de las Leyes que lo desarrollan y, especialmente, en el derecho al honor, (…)

This right to honour is protected in civil law by the Ley Orgánica 1/1982, de 5 de mayo, de Protección Civil del Derecho al Honor, a la Intimidad Personal y Familiar y a la Propia Imagen.

Art. 1.1. LO 1/1982: El Derecho Fundamental al Honor, a la Intimidad Personal y Familiar y a la Propia Imagen, garantizado en el artículo 18 de la Constitución, será protegido civilmente frente a todo género de intromisiones ilegítimas, de acuerdo con lo establecido en la presente Ley Orgánica.

Only the worst attacks against a person’s honour are protected by Criminal Law, under a crime called “injurias“. It is a special criminal offence, as – unlike any other offence – the attorney general cannot prosecute the offender without a complaint from the offended person, whether an individual or an organization. So the offended has the last word, and can even expressly pardon the offender:

art. 208 Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal (CP 95): Es injuria la acción o expresión que lesionan la dignidad de otra persona, menoscabando su fama o atentando contra su propia estimación.
Solamente serán constitutivas de delito las injurias que, por su naturaleza, efectos y circunstancias, sean tenidas en el concepto público por graves.
Las injurias que consistan en la imputación de hechos no se considerarán graves, salvo cuando se hayan llevado a cabo con conocimiento de su falsedad o temerario desprecio hacia la verdad.

Those “slanderous allegations” (injurias) made with publicity, which includes writings published “online” (as has been accepted by jurisprudence and case law long ago), are punished more severely:

art. 209 CP 95: Las injurias graves hechas con publicidad se castigarán con la pena de multa de seis a catorce meses y, en otro caso, con la de tres a siete meses.

THIRD.- A domain name registrar doesn’t offer “hosting”, but the so-called domain name registering, “parking”, and in some cases – as this one – it also resolves DNS queries. The domain registrar, then, in theory (and in practice) hires a domain name for me and (in my case) resolves [=redirects] a domain name (carlosquiles.com) to a webserver where I host my own content. There is no base in the contract I signed to threaten me with “shutting down my hosting”.

But, more important, there wouldn’t even be a right of the company to shut down a hosting service I had signed just “if and when they considered” (literally from the contract) that I, the website owner, was not behaving with “good faith”. This is clearly an illegal contract clause that gives the strong part in the contract the right to cancel it whenever they want, not only prohibited under Standard Form Contract and Consumer laws, but also in the most basic Spanish law of contracts, the Código Civil (CC).

art. 1256 CC: La validez y el cumplimiento de los contratos no pueden dejarse al arbitrio de uno de los contratantes.

NOTE. Also, about the specific standard form contract they offer to consumers to sign, cf. what was established in SAP de Madrid SECC 13ª, de 4 de junio de 2002:

.. ante el hecho reiterado de que las empresas o los profesionales que tiene un gran volumen de contratación impongan unilateralmente a quien se ve forzado o necesitado de contratar con ellas las condiciones a que se va a ajustar el contrato a celebrar, surgió la Ley 7/1998, de 13 Abr., sobre Condiciones Generales de la Contratación, que en su artículo 1 las define como aquellas cláusulas predispuestas cuya incorporación al contrato sea impuesta por una de las partes, con independencia de la autoría material de las mismas, de su apariencia externa, de su extensión y de cualquiera otras circunstancias, habiendo sido redactadas con la finalidad de ser incorporadas a una pluralidad de contratos, siempre que como señala el artículo 2, el contrato se haya celebrado entre un profesional -proponente- y cualquier persona física o jurídica -adherente- Estas condiciones, ligadas consustancialmente a los contratos de adhesión se caracterizan, en definitiva, por su predisposición unilateral; la ausencia de negociación individual; estar destinadas a una pluralidad de contratos y figurar con un texto proforma en un impreso normalizado que el predisponente, que tiene el carácter de profesional según la definición que del mismo da el núm. 2 del artículo 2 (toda persona física o jurídica que actúe dentro del marco de su actividad profesional o empresarial, ya sea pública o privada), somete a la firma del adherente.

Estas condiciones generales, que serán validas en tanto no contradigan en perjuicio del adherente lo dispuesto en la Ley de 1998, son objeto de un tratamiento más riguroso cuando el adherente al contrato es un consumidor, pues el ordenamiento jurídico debe procurar que no se rompa el requerido equilibrio contractual en perjuicio del contratante más débil. Por eso, siguiendo los dictados del artículo 51 de la Constitución, el artículo 8.2 de la Ley 7/1998, señala que, en particular, serán nulas las condiciones generales que sean abusivas, cuando el contrato se haya celebrado con un consumidor, entendiendo por tales en todo caso las definidas en el artículo 10 bis y disposición adicional primera de la Ley 26/1984, de 19 Jul., General para la defensa de Consumidores y Usuarios, además, claro esta, de aquellas que no cumplan los requisitos que relaciona el artículo 10 de la Ley 26/1984 (concreción, claridad, sencillez, buena fe y justo equilibrio entre los derechos y obligaciones de las partes, lo que excluye la utilización de cláusulas abusivas… etc.)…”

Domain registrars are not entitled to threaten to shut down the hosting or to oblige people to retract themselves or correct their writings, as the constitutional right to freedom of expression is at stake, and it certainly prevails over private contracts or institutions; even over public contracts or institutions…

NOTE. According to art. 16.1 Ley 34/2002, de 11 de julio, de servicios de la sociedad de la información y de comercio electrónico (LSSICE):

“los prestadores de un servicio de intermediación consistente en albergar datos proporcionados por el destinatario de este servicio no serán responsables por la información almacenada a petición del destinatario, siempre que:

  1. No tengan conocimiento efectivo de que la actividad o la información almacenada es ilícita o de que lesiona bienes o derechos de un tercero susceptibles de indemnización, o
  2. Si lo tienen, actúen con diligencia para retirar los datos o hacer imposible el acceso a ellos.

The term “conocimiento efectivo” of hosting providers has been interpreted by specialized authors as related only to a previous sentence by a court. Subjective appreciation of the illegal nature of the activity is not only unnecessary, but probably an unlawful restriction of the freedom of expression:

La cuestión, entonces, se resume en lo siguiente: ¿puede haber conocimiento efectivo y, por ende, responsabilidad, a falta de que “un órgano competente haya declarado la ilicitud de los datos, ordenado su retirada o que se imposibilite el acceso a los mismos, o se hubiera declarado la existencia de la lesión, y el prestador conociera la correspondiente resolución”?
La respuesta mayoritaria en nuestra doctrina es afirmativa. Pese a ello, creo que hay buenos argumentos para mantener que los intermediarios sólo responden, como regla general (es decir, en ausencia de acuerdos voluntarios y del establecimiento de otros medios de conocimiento efectivo), cuando conocen que un juez ha declarado que los materiales en cuestión son ilícitos.
(…)

– El conocimiento efectivo deberá acreditarse de forma positiva, sin que valgan alusiones a la probabilidad de haber conocido y mucho menos al deber de haber conocido; vale la pena recordar que el modelo comunitario -en homenaje al cual adoptamos esta solución de compromiso- excluye expresamente la existencia de un deber general de supervisión de contenidos por parte de los intermediarios.

– La existencia de un conocimiento efectivo no se producirá por el mero hecho de que se notifique al intermediario la existencia de unos materiales ilegales, sino que dependerá de dos variables principales:

  • La “seriedad” de la notificación; dicha “seriedad” puede ser “cualitativa” (notificación realizada por un sujeto evidentemente legitimado, de forma fehaciente y con aportación de la información precisa para justificar la ilegalidad de los datos) o “cuantitativa” (un número relevante de usuarios, de forma no concertada, llaman la atención sobre ciertos contenidos).
  • La “auto-evidencia” de la ilegalidad, es decir, que la misma resulte sin género de dudas de la simple visión de los materiales afectados (por ejemplo, pornografía infantil), sin que la ilegalidad dependa de datos o información que no se encuentran a disposición del intermediario; por ejemplo, faltaría esta “auto-evidencia” en informaciones que lesionan el honor de una persona, si su ilegalidad depende de la veracidad de la información y ésta resulta mínimamente verosímil.

Anyway, the point in this case is that a company cannot make people sign standard form contracts, and then interpret them however they like. This company acted as domain name registrar and as DNS server; no hosting, and thus no content and no responsibility involved.
NOTE. Nevertheless, website owners with so-called “hot links” to illegal content have been also prosecuted in the case “ajoderse.com” as responsible. However, they weren’t punished, and hotlinking isn’t the same as DNS server.

“Que puede existir responsabilidad por la colección de hiperenlaces según el texto de la Ley 34/2002, de 11 de Julio, de Servicios de la Sociedad de la Información y del Comercio Electrónico, que en su art. 17 establece la responsabilidad en que incurre un sitio Web cuando sabiendo que un contenido es ilícito, se expone un enlace a una página declarada ilegal. Se precisaría el conocimiento efectivo por parte del proveedor de servicios de que la actividad o la información a la que remite el hiperenlace es ilícita. Pero aún cuando el prestador de servicios conozca la ilicitud de las páginas enlazadas, la Ley 34/ 2002 define lo que se entiende como conocimiento efectivo en el último párrafo de su art. 17.1 (…) En suma, no probado el conocimiento efectivo, desaparece la base para la imputación penal del titular del sitio web.

But even if there were a sentence about shutting down my blog, my domain registrar should collaborate only if requested explicitly by a court; a simple, apparently obvious inference by a public authority from a previous request of a court to close a website is not enough; so in the Bitmailer case:

Cuando un órgano competente por razón de la materia hubiera ordenado, en ejercicio de las funciones que legalmente tenga atribuidas, que se interrumpa la prestación de un servicio de la sociedad de la información o la retirada de determinados contenidos provenientes de prestadores establecidos en España, y para ello fuera necesaria la colaboración de los prestadores de servicios de intermediación, podrá ordenar a dichos prestadores, directamente o mediante solicitud motivada al Ministerio de Ciencia y Tecnología, que suspendan la transmisión, el alojamiento de datos, el acceso a las redes de telecomunicaciones o la prestación de cualquier otro servicio equivalente de intermediación que realizaran (…)
Sin embargo una elemental exégesis de dicho precepto nos permite deducir que a través de él no se configura una especial acción de cesación frente a aquel prestador de servicios a quien, en principio, no incumbe la obligación de cesar. Por el contrario, al contemplar un deber generalizado de colaboración con las autoridades que hayan dictado orden de cesación, constituye pieza esencial para la operatividad del precepto la previa existencia de esa orden de cesación emanada de autoridad competente, en su caso judicial, de tal suerte que aquel deber no se concibe como la concreción de una obligación propia y genuina de cesación del prestador nacida para él ex lege del art. 1089 del CC en relación con los arts. 15 y 16 de la L 34/2002, sino como un deber de Derecho público que obliga a todo operador de Internet -de la clase que sea- a colaborar con las autoridades en la materialización o cumplimiento de una obligación que no es propia del llamado a colaborar, sino ajena y que genuinamente no incumbe más que a aquél frente a quien se ha dirigido la orden de cesación emanada de aquella autoridad (…).

FIFTH.- If I write an article in an online newspaper, only I and the newspaper can be held liable. If I write it in my own blog, only I can be held liable. The owner of the server where the content is hosted has a secondary responsibility, which is born only when the court or legitimated authority (although not in some countries) explicitly states that it should delete the content, if it doesn’t comply with that order. That’s essential to any modern law, and only in countries where human rights are not respected could third parties, relatives or friends held accountable for what another person does. Otherwise, everyone could sue Spanish Telecom Telefonica (as the telephone line belongs to them), my girlfriend (who hires the DSL service), the ICANN (responsible for domain names), the domain registrar (as in this case) or, why not, every computer and software manufacturer involved in a supposed online civil tort – Samsung, Firefox, WordPress, search engines…

NOTE. The essential and basic concepts of legal responsibility (liability) in Spanish law of tort are similar (if not equal) to those of Common Law, and so with the concepts of actus reus and mens rea.

SIXTH.- Under Spanish law – and in other jurisdictions – there is an obligation when someone gives an opinion or information – especially when other people’s rights (like the “right to honour”) are involved – to show proof of “veracity“. Not truth (as it is often impossible to prove), but veracity, i.e. “enough effort to find the truth”. I worked a post about Mr. Gordon’s odd behaviour in his relationships with bloggers; I linked to that behaviours, which showed his bullying, hounding and insulting (as anonymous user or not, anyway with the same IP) in different blogs; and then made a deduction about his personality.

In fact, I couldn’t probably write a post about someone I just met on the street and say: “hey, that guy I met is mentally ill”. Not many Spanish judges would consider this under the scope of the freedom of expression. However, if that same guy first contacts with me with a normal behaviour, then insults and disqualifies me publicly in web sites, then hounds me and others, and then I draw the conclusion that he must be “mentally unstable” due to his violent overreactions, not a lot of judges in the whole free world would be able to rule that I hadn’t the right to make other people know why that guy actually insulted and hounded me and my organization publicly, as he made himself a publicly relevant information for Internet users.
NOTE. For more on the conflict of freedom of expression and right to honour:

Cuando la libertad de información no se orienta a un asunto de interés público, en el que sus titulares procuren formar opinión en una materia de interés para la comunidad y, de esta manera, actuar sobre la opinión pública… entonces, no tiene preferencia el derecho de información y ha de resolverse a favor del derecho al honor. SSTC 165/87 Y 105/90; SSTS de 20 de diciembre de 1990 y de 22 de mayo de 1993.
La jurisprudencia de TS., prácticamente de forma unánime, valga por todas la Sentencia de 25 de febrero de 1985, refiriéndose a la actividad periodística, advierte que el ejercicio de tales derechos : “… Presuponen el deber de informar objetivamente, aduciendo, a la vez, la denuncia de hechos que son infracciones de deberes sociales, de convivencia, alimentarios, culturales, deportivos o administrativos, que trata de promover un estado de opinión y hasta fomentar un grupo de presión en la opinión pública tendentes a la corrección o paliativo de esos defectos, o bien a promover la crítica de situaciones anómalas, extrañas o irregulares, que tenga un sentido potencial y tendencial positivo y constructivo, pero sin caer, en uno u otro caso, en la transgresión de derechos tan respetables, permanentes y fundamentales como el del honor personal, por lo que si el derecho de expresión garantiza y respalda el mantenimiento de una comunicación pública que goza de libertad, y repudia por naturaleza y esencia la previa censura, no por ello hay que olvidar aquel correlativo derecho al honor, que ha de ser salvaguardado mediante la puesta en juego de unos criterios ponderativos que, en cada supuesto y caso, enjuicien la posibilidad de lesión de los mismos, constitutiva de delito o falta, o de simple crítica emitida con finalidad de llegar a crear un estado de opinión y a las esferas y poderes del Estado con el fin de corregir las deficiencias que por tal medio de difusión como es el periodismo, se trata de alertar y corregir por quien corresponda en cada caso”.

On the other hand, Mr. Gordon insulted me as “Nazi” either directly or with comparisons, and that accounts for a serious insult (i.e. a criminal offence) according to (a surprisingly vast) case law. He repeats the word “Nazi” more than ten times, linking me directly to “nazi” and “racist” ideas, and referring to my “fascist-like” behaviour, and to Adolf Hitler and the Holocaust, before I made fun of his Godwin’s law record by repeating my being nazi till exhaustion (=rhetorical magnification to show the stupidity of the argument), which he used still one more time to assert that “You may be finally overcoming your denial”. He made those offences using public means offered by Internet, to be able to reach a lot of people, and conscient of doing so (v.s.).
NOTE. For recent examples of the common insult “nazi” in successful criminal prosecutions, see SAP Baleares de 9 de Diciembre 2002, SAP Barcelona, de 22 de Enero 2007, SAP Albacete de 27 de Junio 2005, SAP Madrid de 25 de Octubre 2004, SAP Valencia de 26 de Septiembre 2008, and a large etc. For all of them, this conclusion of STS de 24 octubre de 2003 (v.i.):

La libertad de expresión, entendida como formulación y difusión libre de pensamientos, ideas y opiniones mediante la palabra o como libertad de comunicar información, ha de estar orientada, de forma imprescindible, por la verdad y, además, no perseguir la lesión del patrimonio moral, la reputación, consideración o prestigio del sujeto afectado por aquella actividad. Porque si es cierto que el artículo 20 de la Constitución reconoce los derechos de “libertad de expresión” y de “comunicación de información, también es cierto que la misma “Ley Suprema”, en el mismo artículo, declara que la información ha de ser veraz y que tales libertades o derechos tienen su límite en el respeto a los derechos reconocidos en el Título I de la misma, así como en las leyes que los desarrollan “y, especialmente, en el derecho al honor, a la intimidad y a la propia imagen”.

El insulto personal, la vejación injusta y el menosprecio grave, expresados en el caso de autos, en palabras tales como: inepto, caradura, sinvergüenza…, no pueden estar nunca amparados por el derecho esencial de la libertad de expresión, puesto que en caso contrario se generaría una sociedad infame en la que la convivencia se degradaría a unos límites intolerables, tanto en el aspecto cultural como en el que mínimamente exige una intercomunicación humana precisa para calificar como civilizada a una agrupación social.

En el presente caso, la expresiones calificativas vertidas en un periódico semanal, son definidas como injurias, ya que lesionan la dignidad del Sr. X, menoscabando su fama y atentando contra su propia estimación, las cuales, pasan a ser de tipo agravado ya que se realizan con publicidad, pues se propagan por medio de imprenta.

Those coments made only with insulting and humiliating intention, about me and the association, as “Nazi” and “racist”, as well as those personally directed at me (like “ignorant”, “arrogant”, “fool”, “idiot”, etc.) make him legally responsible under tort law, essentially under the LO 1/1982, art. 9. The claims of Dnghu as an organization are subject to the same law, cf. the case “putasgae.org”, about the SGAE (=Spanish RIAA).
NOTE. For case law on tort involving illegitimate interferences with the right to honour and the Internet, see especially – among copious examples – the fine imposed for insulting someone as “nazi”, STS de 24 octubre de 2003, where even the “veracity” claim cannot overcome the insulting nature of this word’s strong humiliating connotations:

En definitiva, se trata de delimitar la libertad de expresión y el derecho al honor y, como se dice desde el principio, comprobar si se ha atentado verdaderamente a éste; sobre un litigio semejante se afirma «… No se trata de propias expresiones de ideas, pensamientos, ni siquiera opiniones, pues se da un componente claro y decididamente vejatorio de la persona y prestigio profesional del demandante, con trascendencia en el desmerecimiento público y social.

Ha de destacarse la carga negativa y de desprestigio que en estos tiempos tiene tachar a una persona de racista (dejando atrás el concepto tradicional de racismo jerárquico), y que viene a ser el móvil rechazable de actuaciones de grupos violentos, que, sin respetar la Constitución que proclama que no puede prevalecer discriminación alguna por razón de la raza, hacen del componente racista, por excluyente, un totalitarismo no conciliable con elementales principios democráticos y que, al ser básicamente diferenciador, enturbia la armonía de la convivencia pacífica y acercamientos culturales diversos, por lo que el discurso racista se presenta como racismo desigualitario al atender y resaltar las diferencias entre las personas, estableciendo quienes son superiores y quienes no lo son por inferiores y con ello acatarlo por la imposición que se les hace.

La doctrina constitucional ha declarado que los derechos constitucionales no son ilimitados, pues ninguno lo es (sentencia del Tribunal Supremo de 6 de diciembre de 1986) y no se reconoce el pretendido derecho de insultos (sentencia de 17 de enero de 2000), por lo que de la protección constitucional que otorga el art. 20 están excluidas las actuaciones absolutamente vejatorias, es decir las que en las circunstancias del caso y al margen de su veracidad o inveracidad, sean ofensivas u oprobiosas, resultando impertinentes para expresar las opiniones o informaciones de que se trate» (sentencias del TS de 8 de junio de 1888, 12 de enero de 1998, 14 de octubre de 1999, 11 y 25 de octubre de 1999 y 7 de enero de 2000).

CONCLUSION

Now, instead of being thankful to us (me and the Association) for not denouncing his offences to the Spanish attourney general to be prosecuted; instead of being thankful for not suing him for an economic compensation in light of the damage to my honour and the Association’s; instead of being thankful to us for not contacting Google Blogger service (through its “denounce inappropriate content” link) to make the company close his blog due to its inappropriate content (as everybody signs a binding contract with Google in exchange of its free services, and Google certainly does not permit it to be used to insult and humiliate others); and instead of being thankful for my justification of his weird behaviour owing to the fact that he has a borderline personality; on top of all that Mr. Gordon threatens a private company distantly related to my websites, to make them do the dirty work, trying to silence me. His freedom of expression allows him to insult me and the organization I belong to in each and every comment he publishes, but I cannot criticize him or his behaviour: a very consistent attitude, showing once more features of his strong emotional stability…

The most striking aspect of this case is not that there are still in western countries of the 21st century unethical individuals able to trivialize past shameful events of racism and genocide by using the insult “nazi” as a common trite to call everyone whose ideas they dislike; and who don’t mind sending cowardly mail threats to third parties not involved as means to get critic voices to be quiet, instead of trying to directly address those involved or to turn to the only legitimated institutions to restrict our rights, the courts of justice; and who would like to make the Internet a place for insulting others and make those “others” live in a censored environment, to decide when and who can say what and how. Human evilness is infinite, and if you give people the idea that exerting power without accountability is possible – as e.g. spreading the idea that obliging a company to silence somebody is as easy as to send them an anonymous email – there will always be individuals eager to use it.

Because of that, the frightening thing here is that the fear of being sued by an English-speaking guy is enough today for some companies based on EU territory to try to limit the civil (usually fundamental or constitutional) right to freedom of expression. Fear of money losses over human rights. Fear of distant threats on one’s pocket over the own legislation and courts, over the fundamental rights of others. Digital terrorism made easy: “if we receive a “cease and desist” threatening mail, we will shut down your web, so – this is the message behind that policy – don’t write anything we or others could dislike as not being ‘appropriate’, or ‘in good faith’, etc. because we don’t need courts to limit your rights”.

A MESSAGE TO BULLIES

Firstly, the U.S. policy of “no negotiation with terrorists” has a good reasoning behind it, however tough it may seem sometimes. If you don’t negotiate with somebody who threatens you, if you don’t step back, you give a clear, assertive sign of your future behaviour, and nobody will have the impulse of trying to threat you later, because they must know they will get nothing. Well, I could (and in fact did) simply abadon other websites when I was insulted (like Glen’s Paleoglot), but I don’t have any other rational option with bullies like these personal trolls that chase me home. I cannot give up any right a third party wants me to renounce, just because I would be sending other unethical people out there the wrong message: that they can get something from me by threatening or insulting.

Secondly, dear Glen, you should also know other curious Internet “laws” apart from your beloved Godwin one: the Streissand effect, in particular, is happening more and more each time you help this whole thing grow bigger. You first wanted everyone to know how “Nazi” we all were, how we all conspired against you, helping us to draw logical conclusions about how you really are. Now, because you wanted my post to be deleted through unlawful means, dozens of law students (more in the future when searching for “freedom of expression”, “right to honour” and “cease and desist” cases), and thousands of monthly visitors of this blog are reading (or will read) about you and your persistent weird, aggressive and coward actions. And if you persist in your wrongdoing, I will post every piece of your insults and my posts (this and the previous one) in Spanish; then translate it to German; then to French…; then, if still bullying around, we will be able to draw still more conclusions about you from your reactions and activities; and then translate them; and so on. And if that doesn’t deter you from insulting me and/or the association with such serious offences as “nazi” or “racist”, you will eventually have to face criminal prosecution in Spain.

You said once:

(…)perhaps because I’m a good chess player and I can see more than three moves ahead (…)

Well, I think that even if you are a good chess player (of course you must be good in everything you do), you could consider you have done some wrong moves here. May it be for ethical (preferrably) or moral, rational, legal or mere practical reasons, just consider your next “three moves” more carefully in light of game theory instead of just chess games.

Or maybe it’s just that I couldn’t see the benefit of the past three moves you planned, and you were only looking for attention and links to your Proto-Tyrrheno-freak thing…

Königsberg (AKA Kaliningrad) under international law: Russian, German, Polish, Lithuanian, or simply Prussian?

The progress of the ‘star wars’ (AKA missile shield) affair, which Russia seemed willing to aggravate by talking about plans to station missiles in Kaliningrad, without any concerns whatsoever for the welfare of Kaliningraders and Europeans, should make the European Union reexamine its current policy under the Kaliningrad Strategy, of collaborating with Russia by facilitating the transit of goods and persons and helping its socio-economic development.

Instead of just hearing what Russians have to claim before the international community, the EU should ask the international community by which right keeps the Russian Federation hold on Königsberg territory, and should demand from Russia a date for devolution, no matter how hard Russian media propaganda tries to avoid the question:

Although disputes over the status of Russia’s westernmost exclave of Kaliningrad have practically ceased, this should be regarded as a signal that all the parties concerned are aware of the serious repercussions that instability in that region could cause.

Geopolitical Stability has been by far the most repeated pro-Russian argument since the 90’s, also in official European Union forums (see Freedom to Kaliningrad thread); it is easily summed up into a “let’s maintain the statu quo to avoid destabilizing the region”. The murmuring of those plans to use Kaliningrad as missile base made by Russian military officials to the press, to escalate tensions in the missile shield affair, has shown how the Russian Federation respects the will of Europeans for stability in the region. Not to talk about Russia’s lack of respect for the lives of thousands of European citizens in this winter’s gas disputes, or its lack of respect for Estonian democratic decisions, or its support for the authoritarian Belarusian regime of Lukashenko

Other great arguments made by pro-Russians include “Nazi Germany”, “World War II” and “Mother Russia”, and are easily read elsewhere in Russian media and blogs when the Kaliningrad question is mentioned. Nevertheless, most Kaliningraders – whether ethnic Russians or not – show often an open mind about the return options. And even official Russian media like Russia Today recognize still in 2009 (only in English texts for outsiders) the Lithuanian claims to the territory and its return; East German rights are still taboo in Russian ‘free’ media, while Polish claims are probably too weak to be worth mentioning:

The region became an administrative unit of Russia [sic] in 1946 after the Potsdam conference and the partition of Germany. Although it solidified as an administrative entity, with the collapse of the Soviet Union, the issue of reassimilating the Kaliningrad region into its historic entity of Lithuania arose.

According to a thorough study on the question (The Kaliningrad Challenge, 2003) Russia has been always concerned about the risk of separatism in Kaliningrad, which might be greater than expected if the European Report The EU and Kaliningrad (2002) is correct in assessing that Kaliningrad’s level of development is closer to Lithuania and Latvia than previously thought. In that sense, ethnic Russian Kaliningraders see Kaliningrad in the future as another Baltic Republic, either still somehow federated to Russia with great autonomy or fully independent. Moreover,

There are opinion polls – now more frequently held within blogs and forums – which show that Kaliningraders occasionally imagine their future not so much as a fourth Baltic Republic, but as part of a return to Germany

As it has been already argued on the situation of Königsberg/Kaliningrad region and the Northern Territories/Southern Kuril Islands under international law:

In a similar way, the Soviets also refused to discuss the final peace settlement in Europe after the Second World War. It is important to emphasize that neither the United States nor Britain agreed at Potsdam or anywhere else to the transfer of East Prussia or part of the Königsberg Region to the Soviet Union. Thus, although the Kaliningrad Region is currently administered by Russia, it is not a legal part of Russia.

Stalin was seeking a deal on East Prussia at the Tehran conference in 1943, drawing a line in red pencil on the map “to illustrate the fact that, if part of eastern Prussia, including the ports of Könisberg and Tilsit, were given to the Soviet Union, he would be prepared to accept the Curzon line […] as the frontier between the Soviet Union and Poland.”

This line goes roughly along the current border between the Kaliningrad Region and Poland, but Stalin’s red line on the map went virtually through the cities of Königsberg and Insterburg (see the Map). Charles E. Bolen, the interpreter for the American delegation, says in his memoirs that during their discussion, Stalin and Churchill virtually agreed on the future borders of Poland, but the official American record of the conversation says that “although nothing was stated, it was apparent that the British were going to take this suggestion back to London to the Poles.”

On February 11, 1945, at the Crimea (Yalta) Conference, the Big Three agreed on the Curzon Line as the boundary between Poland and the USSR. However, the archival material clearly shows that there had not been any legally binding agreement made between the allies about the transfer of the Königsberg Region to the Soviet Union at any of the Second World War conferences. This is why Stalin attempted to secure his gains at the Potsdam conference in Berlin, which took place from July 17 to August 2, 1945.

After the end of the Second World War, the Kaliningrad question began by Stalin’s personal will of revenge against Germany:

Königsberg was neither appended outright to the Soviet Union nor was it to be considered part of the Soviet zone of occupation, which had been outlined earlier in the agreement.

[The Soviet Union] acted decisively to completely eradicate the German presence in Königsberg and replace it with Soviet presence. This began even before the end of hostilities with the Reich:

Königsberg was destroyed in the last weeks of the war when there was no real reason to assault it. When the soldiers of the Byelorussian front were dying in its streets in the first week of April, 1945, the rest of the Red Army was already besieging Berlin. Seven centuries of history went up in smoke in one week of shelling and bombing. By then, the decision to annihilate East Prussia and grant Königsberg to the Soviet Union had already been taken, so the reason for its destruction remains a mystery. Did Stalin take the decision in a fit of war revenge? Did he think that the setting of an ancient bourgeois city would hamper the development of the new Soviet city he wanted to build in its place? Or did he fear that, unless turned into a pile of ruins, Königsberg might not be conceded to him by the Allies after all? Pictures and models in the bunker-cum-museum where the capitulation of the city was signed are revealing. Most of the destruction was done after-wards, when the victors took to the task of building a new city on the ruins of the old…

While the destruction of the city’s infrastructure was underway, an equally brutal purge of its population through gang rapes and indiscriminate crimes was carried out:

The demography of that part of Lithuania Minor which is under direct Soviet administration, the “Oblast,” has changed in the most radical way in all its history. The original population of the area — German as well as Lithuanian — has disappeared completely. Many had fled before the Soviet armed forces invaded the area in 1945; those who remained — several hundred thousand — either perished from hunger or disease or were deported to Siberia; the others were expelled to Germany in 1949. They all — about 1,200,000 before World War II — were replaced by about 600,000 settlers from the northern and central parts of Russia. The administration and economy of the “Oblast” has been reorganized to conform with Soviet models and practices. It has been fortified to serve the strategic aims of the Soviet Union.

Modern Claims in Europe

After the fall of the Soviet Union, there were 4 main alternatives for the future of Kaliningrad, following Raymond A. Smith’s article The Status of The Kaliningrad Oblast Under International Law (1992), which argues in favour of the Lithuanian claim, but which also addresses some historical and political questions:

From the historical [point of view] sovereignty over the territory of the Kaliningrad Oblast passed over the course of centuries from the the indigenous Old Prussian population, to the Teutonic Order, to the Kingdom of Poland, to the Kingdom of Prussia (later the German Empire) and finally, perhaps, to the USSR/RSFSR. It is not surprising, then, to find that each of these entities (with the exception, of course, of the Teutonic Order) has a conceivable claim to this territory. This section examines the legal basis, or lack thereof, of the actual or potential claim of each entity, as well as the potential claim of the indigenous population.

  • The German Claim: Some Germans challenge the validity of both the Final Settlement and the original “dismemberment” of the German Reich.
    Their arguments are complex but can be reduced in essence to two claims:

    1. the Allies had no power to allow German territory to be annexed by other countries
    2. the West Germany and even the modern Federal Republic of Germany are not coextensive with the German Reich and are therefore not competent to speak for it in its entirety

    The first proposition is supported by numerous charges: that the guarantees of self-determination in the Atlantic Charter, the UN Charter, and the Vienna Convention on the Law of Treaties were ignored; that the Ancient Roman principle of ex injuria non oritur jus prohibits punishing Germany by unilateral confiscation of its territory; that the powers of the Allies as occupiers were strictly curtailed by the Hague Laws of War of 1907; that use of German lands as “compensation” to Poland for lands lost to the Soviet Union has no basis in international law; and many others.

  • The Russian Claim: As the historical overview recounted, the working premise of the Potsdam Conference was that the Soviets would receive the Oblast at the final peace conference. The Allies specifically committed themselves to supporting the Soviet claim in the Final Settlement, but when that settlement was finally signed in 1990, specific title was not transferred. Why the Final Settlement did not include a specific statement of transfer is unclear. The seemingly most probable reason is that the transfer of Kaliningrad to the Soviet Union is considered a fait accompli and that the legal niceties of including a specific mention of transfer were outweighed by potential political embarassment such a mention might have caused the Kohl government. Such a position assumes that the tranfer has already taken place, an assertion which rests on shaky ground.

    Similarly, the Act of Military Surrender specifically indicates that the occupation itself did not effect the annexation of Germany. Thus, although Germany surrendered unconditionally, none of its territories were automatically annexed to any other state. Such annexation would have to be made explicit in a legally binding document. Only “administration” was established by the Potsdam Agreement, however, and “administration” is definitely not the same as “annexation” under international law.

    Rather than present arguments based on international law, Stalin advanced the law of revenge. ‘The Russians had suffered so much and lost so much blood, they were anxious to have some small satisfaction to [sic] tens of millions of their inhabitants who had suffered in the war,” Stalin said at Potsdam.

    In the absence of ethnic and historical claims to shore up their questionable legal claim, then, the only argument which the Soviet Union can depend upon is the principle of prescriptive claim. This principle transfers title to land when a country has held it for a long period of time without protest by the land’s original owners or by the international community at large. No specific time frame is suggested for the acquisition of prescriptive claim. Grotius suggested 100 years, a figure which the Permanent Court of International Justice endorsed in 1933. The International Court of Justice, on the other hand, said that fifty years had been long enough for a boundary between Venezuela and British Guiana to have legal effect.

  • The Polish Claim: Poland has no ethnic claim to the Oblast. Although the southern half of East Prussia was occupied mainly by Polish Masurians, they had almost no presence in the northern part.

    Poland’s historic claim is only marginally stronger. For some two centuries, Prussia was a fief of the Polish King, but during that period the area remained firmly under German control. In any case, title was decisively transferred by the Treaty of Wehlau in 1657. During World War II many Poles operated under the belief that all of East Prussia would become theirs, but they were never legally promised the territory in its entirety.

  • Lithuanian Claim: The claim of the Lithuanian state could rely upon both ethnic and historical grounds.
    1. The Lithuanians may argue that
      the first peoples to hold sovereignty over the region were ethnic Lithuanians and closely related Old Prussians, and
    2. the pre-1945 population outside the cities of the Oblast was largely of Lithuanian origin. If the status of the Oblast were to be altered in the future, then, the Lithuanian state could have a strong argument for assimilating this remainder of Lithuania Minor.

    The idea of unifying the Oblast with the rest of Lithuania has strong historical precedents. Lithuanian assemblies met in Chicago and New York in 1914, The Hague in 1916 and Berne in 1917 to demand an independent Lithuania including all of Lithuania Minor. An assembly in Vilnius in 1917 restated the problem to define the new Lithuania within its “ethnographic borders,” a concept endorsed by a later assembly in Voronezh the same year.
    Finally, on November 30, 1918, the National Council of Prussian Lithuania issued the Declaration of Tilsit:

    Taking into account that everything that exists has a right to continue existing and that we, Lithuanians who live here in Prussian Lithuania, are the majority of the population of this land, we demand, on the basis of Wilson’s right of national self-determination, that Lithuania Minor be joined to Lithuania Major

    The clearest catch here is that any annexation of the Oblast by Lithuania might hinge upon the democratic decision of an indigenous Lithuanian majority to authorize such an annexation. And, as we have seen, virtually none of the indigenous Lithuanian population remains in the Oblast, having fled or been killed or exiled after World War II. This raises the final claim to be discussed — that of the indigenous population.

  • The Claim of the Native Population: The right to national self-determination is one of the main cornerstones of the contemporary international legal order. Eight of Wilson’s Fourteen Points refer to such concerns. The Atlantic Charter’s third and fourth principles call for self-determination in matters of both boundaries and choice of government. The Charter of the United Nations calls for colonial powers to foster self-determination in “non-self governing territories”. That right might be interpreted as concerning:
    1. The Oblast’s postwar ethnic Russian settlers – as opposed to central Soviet or Russian authorities.
    2. the traditional population which was decimated or expelled en masse after World War II, which is defended on the grounds that forcible deportations of native populations is clearly in violation of international law – native Königsbergers expelled after World War II, then, have a right under international law to choose to return to their native land.

    On that question, there is the precedent of United Nations action regarding the settlement of Gibraltar:

    As in the case of the Oblast, the key issue was whether the rightful native population of the Rock should be considered to be the contemporary residents or an earlier population who had been compelled to depart in 1704. The British argued that over the centuries since 1704 a permanent and authentic population had been developed on the Rock, which now had the right to determine their own fate. The Spanish countered that the post-1704 population were “pseudo-Gibraltarians” and that the rightful rulers of Gibraltar Rock were the descendants of Spaniards who had resettled, for the most part, in the nearby city of San Roque.

    Under pressure from the United Nations to end its colonial occupation of Gibraltar and in an attempt to settle the status of the Rock once and for all, the British government conducted a plebiscite in 1967. The choices were stark — full political affiliation with either Great Britain or with Spain — and the result was unequivocal: 12,138 to 44 in favor of Great Britain. Nonetheless, the U.N. General Assembly once again condemned British occupation of Gibraltar, this time in the strongest language yet. It, in essence, declared the plebiscite null, accused the British of resisting decolonization, and called once again for immediate negotiations between Great Britain and Spain for a transfer of sovereignty.

    Whatever the merits of the Gibraltar case, the precedent for the Oblast is clear. If the rights of native populations can stretch back to 1704, then surely the postwar expellees from the Oblast would have an unambiguous right to return to their homeland and choose its political fate — be that choice in-dependence or association with another state. The current population of the Oblast would presumably have no say in the territory’s political future.

    The key difference between Gibraltar and the Oblast is that in the former case, there actually is a population in San Roque able and willing to resettle the Rock. No analagous “population-in-exile” exists in the case of the Oblast. Rather, much of the population of Königsberg was killed or died in exile. Those who were deported to Germany (and their descendants) in all likelihood now enjoy a standard of living which is, at least quantitatively, many times better than any which would be possible in the backward conditions of the Oblast. Further, most — although far from all — Germans seem to have accepted the loss of the prewar lands; the idea of reclaiming part of East Prussia would not necessarily resonate with much of the population. It seems extremely unlikely, then, that more than a handful of such native German Königsbergers would wish to uproot and resettle in the Oblast.

Even with German and Lithuanian strong claims about the Soviet colony of Königsberg opposing the legality of Stalin’s annexation, Russia did in the 90’s what it was used to in such cases when the Soviet Union was still a Great Power: they took the easy way, and annexed the territory to Russia, expecting the international community to accept it. Which is nice, because the EU as a Great Power will therefore be entitled to follow the same principle in the future…

In my personal opinion, the European Union faces today 3 alternatives, given Russia’s will to retain Stalin’s European exclave no matter how illegal or illegitimate it is from an international point of view:

  1. Support modern Kaliningraders in their demands of greater autonomy within the Russian Federation – and maybe a future separation from it -, which is the fairest position under modern international law, which demands non-belligerant positions (against Russia in this case) and respect for human rights – Russian settlers and their families. This is certainly the option of most Kaliningraders of Russian ethnicity, as well as most EU-politicians.
  2. Support Germany’s or Lithuania’s claims (or both), seeking to integrate Kaliningrad within the European Union, maybe as a sort of a Baltic territory co-administered by both Germany and Lithuania, financing the return of (families of) expellees to Königsberg, and the return of (willing) families of Russian settlers to Russia. This is the option preferred by many Germans and (I guess) most Lithuanians.
  3. Support the creation of a modern Baltic Prussian State (Prusa), which could help unite the Pro-Baltic (and Pro-European) attitude of Russian Kaliningraders, the will of native peoples and their families to return to East Prussia, as well as claims of EU member states to integrate Königsberg in Europe, by embracing Old Prussian history of the territory and its peoples. Modern organizations supporting the revival of the Old Prussian language would probably support its revitalization in Königsberg include the future Research Institute of Prussology and the Prussian language organization in Poland.

The third is my preferred option, not because I am some kind of language revival freak (what I possibly am, given that I also support Old Prussian language revival), but because what many (want to) regard simply as ethnic German and ethnic Lithuanian inhabitants of East Prussia in 1945 were in fact descendants of Old Prussians who had lost their language in favour of either German or Lithuanian languages, depending on the territories they dwelled when they ceased to speak Prussian. Given that historical, cultural and linguistic background of the Königsberg (or East Prussian) territory, the European Union should take action supporting the return of those expelled peoples and their families to their ancient territory, which they were forced to leave half a century ago.

There is therefore no need to support the adscription of East Prussia to modern countries or peoples, be it Russia, Germany, Poland or Lithuania. And the only alternative to modern peoples, cultures and states is to support a linguistic and cultural revival of a Prussian people and language that should have never disappeared.