[IntLawProfessors] From Sandy Gaines: Fwd: Opinio Juris
Don Anton
antond at law.anu.edu.au
Mon Oct 25 17:30:34 EST 2010
>>> Sanford Gaines <sandygaines at me.com> 10/25/10 2:43 PM >>>
Diane Desierto gives a very full account, and I agree with Julian Ku
that international law scholars should come to the support of the UP
faculty. I would think that a short but powerful letter addressed to
the court but simultaneously made public is one effective way to do
that. I don't have the time or expertise to write such a letter, but
will sign one.
Are there any international organizations or associations of
supreme courts or domestic courts that should be enlisted? Any
international academic organizations?
--Sanford Gaines
Visiting professor, Aarhus University, Denmark
On 25 Oct 2010, at 00:27, Don Anton wrote:
>
> From: Opinio Juris <Peggy.McGuinness at gmail.com>
> Date: Sun 24 Oct 2010 10:22:03 GMT+02:00
> To: antond at law.anu.edu.au
> Subject: Opinio Juris
>
>
> Opinio Juris
>
> Philippines Supreme Court Threatens Law Faculty With Contempt After
> Allegations of Judicial Plagiarism
> Posted: 23 Oct 2010 09:51 PM PDT
> by Julian Ku
>
> Back in July, I noted this story out of the Philippines, which
> alleged that a justice of the Philippines Supreme Court had
> plagiarized (and distorted) an article by Evan Criddle and Evan Fox-
> Descent in the Yale Journal of International Law (and featured here
> at Opinio Juris). (see the comment under the original post for a
> comment by Professor Criddle). Well, things have gotten a bit out of
> hand over there. A number of faculty at the University of the
> Philippines issued a statement denouncing the alleged plagiarism,
> and the Supreme Court has apparently threatened to punish or
> sanction these faculty.
>
> Whew, this is getting serious. I post below the jump an account of
> the dispute by Diane Desierto, a UP faculty member. She is
> appealing to fellow international law scholars to support the
> academic freedom of the UP faculty. This certainly seems, from what
> I know of the dispute, a worthy cause.
>
>
> __________________
> An Open Appeal to fellow International Legal Scholars
>
> by Diane Desierto on Friday, October 22, 2010 at 7:18am
> Dear friends and fellow legal scholars,
>
> I apologize for this long note, but I thought I should set the
> record straight on the maelstrom of ongoing institutional
> persecution against the UP Law Faculty, where I serve as a faculty
> member. Several hours ago, a majority at the Philippine Supreme
> Court issued an unprecedented contempt order for the “Statement of
> the Faculty of the UP College of Law”, naming 37 out of 81 faculty
> members (including five present and former deans, a retired Justice
> of the Supreme Court now back in the faculty, among other senior
> academics and junior faculty members) whose physical signatures
> appeared in the Statement. Many faculty members support this
> Statement, but, as is customary, did not need to physically sign the
> Statement so long as we signified our support over email. For this
> reason, many of us understand the contempt order to eventually
> extend to all 81 members of the UP College of Law. All our bar
> licenses, without which we cannot teach, work, or practice as
> lawyers, are now at stake.
>
> Let me narrate the brief factual background of this case:
>
> On April 28, 2010, the Philippine Supreme Court issued its decision
> in Isabelita Vinuya et al. v. Executive Secretary et al. (full text
> of this decision available at:http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm
> ). This case involved a certiorari petition of most remaining
> Filipina survivors of the “comfort women system” during World War
> II, asking the Court to compel the Executive Branch to exercise its
> constitutional duties and international obligations, in order to
> ensure these Filipina survivors’ their rights to redress. I wrote
> this petition as a law student of UP Law in 2004 along with UP Law
> Professor Harry Roque, theorizing then that our broadly universalist
> 1987 Philippine Constitution imposed unique constitutional duties on
> the Philippine President to observe our international legal
> obligations, including the right to redress for war crimes, mass
> rapes, and sexual slavery. Professor Roque and I published our
> analysis and theory of the petition in 2006, in the Journal of
> International Law of Peace and Armed Conflict. (full text of this
> available at:http://www.ruhr-uni-bochum.de/ifhv/documents/huvi/huv_2006/3_2006.pdfRelevant
> pages are pp. 91-98).
> 2. The Vinuya decision denied the petition. Professor Roque filed
> an initial Motion for Reconsideration, subject to the submission of
> a more extended Supplemental Motion for Reconsideration
> (Supplemental MR) under the Philippine Rules of Court. Professor
> Roque and his colleague, Attorney Romel Bagares, closely coordinated
> with me in the preparation of the Supplemental MR . After we
> discussed the legal arguments, I requested Attorney Bagares to
> recheck all sources cited in the Vinuya decision, as is customary
> for us in preparing appellate pleadings. Several days later,
> Attorney Bagares and Professor Roque discovered that many
> significant portions of the Vinuyadecision appeared to have been
> lifted without attribution from the works of International Law
> authors (Professor Evan Criddle and Professor Evan Fox-descent’s
> 2009 Article in the Yale Journal of International Law, titled “A
> Fiduciary Theory of Jus Cogens”; the book of Dr. Christian Tams,
> titled Enforcing Erga Omnes Obligations in International Law,
> published by Cambridge University Press; and an article by Mark
> Ellis, Executive Director of the International Bar Association, in
> the 2006 volume of Case Western Journal of International Law,
> entitled “Breaking the Silence: On Rape as an International
> Crime”). What was worse than the lifting without attribution of
> these sources was that the Vinuya Decision completely twisted what
> the authors said in their works.Professor Roque and Attorney Bagares
> decided to file the Supplemental MR inviting the Philippine Supreme
> Court’s attention to this grave matter, showing that the
> misrepresentation of these works erroneously laid the foundation for
> the Court’s decision to deny the petition. The Supplemental MR
> also included the rest of the arguments of the petition. The full
> text of the Supplemental MR can be found here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/
>
>
> 3. All International Law professors/authors came forward with their
> separate complaints to the Philippine Supreme Court regarding the
> misuse of their works. The letter of Dr. Christian Tams can be found
> here: http://www.scribd.com/doc/39856262/Tams-Letter-to-Supreme-
> Court while the letter of Dr. Mark Ellis can be found here: http://www.scribd.com/doc/39856111/Letter-to-Republic-of-the-Philippines-Supreme-Court-Ellis
> Professor Evan Criddle posted his complaint on Opinio Juris at
> this link: http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/
>
> a) Professor Criddle told Opinio Juris: “Speaking for myself,
> the most troubling aspect of the court’s jus cogens discussion is
> that it implies that the prohibitions against crimes against
> humanity, sexual slavery, and torture are not jus cogens norms. Our
> article emphatically asserts the opposite.”
>
> b) Dr. Tams’ letter said: “The relevant passage of the
> judgment is to be found on p. 30 of your Court’s Judgment, in the
> section addressing the concept of obligations erga omnes. As the
> table annexed to this letter shows, the relevant sentences were
> taken almost word by word from the introductory chapter of my book
> Enforcing Obligations Erga Omnes in International Law (Cambridge
> University Press 2005). I note that there is a generic reference to
> my work in footnote 69 of the Judgment, but as this is in relation
> to a citation from another author (Bruno Simma) rather than with
> respect to the substantive passages reproduced in the Judgment, I do
> not think it can be considered an appropriate form of referencing. I
> am particularly concerned that my work should have been used to
> support the Judgment’s cautious approach to the erga omnes concept.
> In fact, a most cursory reading shows that my book’s central thesis
> is precisely the opposite: namely that the erga omnes concept has
> been widely accepted and has a firm place in contemporary
> international law….With due respect to your Honourable Court, I am
> at a loss to see how my work should have been cited to support – as
> it seemingly has – the opposite approach. More generally, I am
> concerned at the way in which your Honourable Court’s judgment has
> drawn on scholarly work without properly acknowledging it.”
>
> c) Dr. Ellis’ letter said: “My attention was called to the
> Judgment and the issue of possible plagiarism by the Philippine
> Chapter of the Southeast Asia Media Legal Defence Initiative
> (SEAMLDI), an affiliate of the London based Media Legal Defence
> Initiative (MLDI) where I sit as a trustee. In particular, I am
> concerned about a large part of the extensive discussion in footnote
> 65, pp. 27-28, of the Judgment of your esteemed Court. I am also
> concerned that your esteemed Court may have misread the arguments I
> made in the article and employed them for cross purposes. This
> would be ironic since the article was written precisely to argue for
> the appropriate legal remedy for victims of war crimes, genocide,
> and crimes against humanity.”
>
> 4. When Philippine national media carried these complaints, the
> Philippine Supreme Court did not appear disposed to take them
> seriously. The Court Spokesperson/Court Administrator, Midas
> Marquez, stated that the “You can’t expect all justices of the
> Supreme Court to be familiar with these law journals.”http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100721-282283/High-court-not-probing-plagiari
> sm
>
> 5. In light of the apparent plagiarism and twisting of the works in
> the text of the VinuyaDecision and the Court’s predispositions, the
> UP Law Faculty issued a Statement asking the Court to take
> responsibility and to provide guidance to the Philippine bench and
> bar. The UP Law Faculty, headed by the present Dean Marvic M.V.F.
> Leonen and other law deans, expressed alarm at how the works were
> misused to deny a key petition of comfort women survivors, and asked
> the ponente of the Vinuya Decision, Justice Mariano del Castillo to
> voluntarily resign from the Court. The full text of the UP Law
> Faculty Statement can be found here: http://harryroque.com/2010/08/09/restoring-integritya-statement-by-the-faculty-of/
>
> 6. On Friday, October 15, 2010, a majority of ten members of the
> Philippine Supreme Court issued a resolution denying that Justice
> del Castillo had committed plagiarism and misuse of plagiarized
> works, holding that Justice del Castillo’s clerk/court researcher
> accidentally deleted the attributions, which could not have been
> detected since “the Microsoft word program does not have a function
> that raises an alarm when original materials are cut up or
> pruned.” The full text of the decision can be found here: http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC.h
> tm
>
> 7. The newest member of the Court, Justice Lourdes Aranal-Sereno,
> strongly dissented along with (Justice Conchita Carpio-Morales) from
> the Court’s findings and showed why plagiarism and
> misrepresentation was committed not just through deletions of
> attributions, but due to the deliberate inclusion of phrases that
> tried to convey the opposite of what the authors’ works said.
> Saying that the court will be remembered for saying Del Castillo did
> not commit plagiarism because there was “no malicious intent” to
> pass off someone else’s works as his own, Justice Sereno added that
> the ruling of the court’s majority has caused “unimaginable
> problems” for the Philippine academe. She explained decisions on
> future cases of plagiarism committed by students will be based on
> the court’s ruling that malicious intent must be present to
> constitute plagiarism. ”Unless reconsidered, this Court would
> unfortunately be remembered as the Court that made ‘malicious
> intent’ an indispensable element of plagiarism and that made
> computer-keying errors an exculpatory fact in charges of plagiarism,
> without clarifying whether its ruling applies only to situations of
> judicial decision-making or to other written intellectual
> activity,” said Sereno. “It will also weaken this Court’s
> disciplinary authority * the essence of which proceeds from its
> moral authority * over the bench and bar. In a real sense, this
> Court has rendered tenuous its ability to positively educate and
> influence the future of intellectual and academic discourse,” she
> added. The full text of the Sereno dissent can be found here:
>
> http://sc.judiciary.gov.ph/jurisprudence/2010/october2010/10-7-17-SC_sereno.htm
>
> 8. On Monday, October 18, 2010, various Philippine national media
> carried the news that the Philippine Supreme Court had deliberated
> and decided to hold the UP Law Faculty in contempt for its
> Statement. Seehttp://newsinfo.inquirer.net/inquirerheadlines/nation/view/20101020-298693/UP-Law-faces-sanction-over-SC-plagiarism-case
> andhttp://www.gmanews.tv/story/203873/up-law-risks-sanctions-for-statements-on-plagiarism-mess
> , among others.
>
> 9. Copies of the Court’s seven-page Order were finally seen several
> hours ago. As will be seen from the full text of the Order and the
> dissenting opinions (the PDF of which can be read here: http://www.scribd.com/doc/39855898/Order-and-Dissenting-Opinions-re-UP-Law-Faculty
> ), the Court majority made the unprecedented move of holding the UP
> Law Faculty in contempt, until they can show why they do not merit
> contempt. The dissenting justices of the Court noted this
> prejudgment in their dissenting opinions:
>
> CARPIO-MORALES, j., dissenting:
>
> “The Resolution demonstrates nothing but an abrasive flexing of the
> judicial muscle that could hardly be characterized as judicious.
> This knee-jerk response from the Court stares back at its own face,
> since this judicial act is one that is “totally unnecessary,
> uncalled for and a rash act of misplaced vigilance.
>
> xxx
>
> The adverse declarations describing the written work of the UP law
> faculty operate to their prejudice since that would render any
> subsequent proceeding illusory, because the Court, which would
> ultimately decide the administrative case, has already made up its
> mind before hearing the parties.
>
> Worse, the Resolution is not what it purports to be. Ostensibly, the
> Resolution is a show cause order that initiates what would merely
> become a newly docketed regular administrative matter. There is more
> than meets the eye, however. When stripped of its apparent
> complexion, the Resolution shows its true colors and presents itself
> as a pronouncement of guilt of indirect contempt, without proper
> recourse left to the parties.
>
> xxx
>
> Unless the Court intends to busy itself into consistently engaging
> in a judicial witch hunt against its detractors, it is more in
> keeping with the Court’s dignity not to dignify each and every
> write-up that is taken to vilify it, and console itself with the
> number of testimonials, written or living that vilify the judiciary.
>
> Although as a human being, a person naturally gets pissed off by
> hurtful words, it would not hurt the Court as an institution and the
> law as a profession if it passes off the statement of the UP law
> faculty at this time.”
>
> SERENO, j., dissenting.
>
> “Ordering the 37 respondent members of the UP law faculty to
> “show cause” in this indirect contempt case is like ordering the
> little boy who exclaimed that “the emperor has no clothes” to
> explain why he should be crucified for his public observation. It is
> true that the little boy may have aggravated the situation by adding
> that the unclothed emperor did not present a flattering figure in
> his natural state, but the analogy remains true — that the subject
> UP law faculty members have been prematurely adjudged guilty and
> asked to explain why such prejudgment should be reversed simply for
> expressing what they believed was the truth.
>
> xxx
>
> What is so grievous about this whole contempt proceeding is that it
> comes in the wake of the gross injury that the Court has inflicted
> upon the virtue of honesty in learned discourses by labeling
> plagiarism as not plagiarism in the related case involving one of
> its members.
>
> With all due respect to my colleagues, it is not the place of the
> Court to seek revenge against those who, in their wish to see reform
> in the judiciary, have the courage to say what is wrong with it. The
> Court finds its legitimacy in demonstrating its moral vein case
> after case, not in flaunting its judicial brawn. There is nothing to
> be gained for the administration of justice in not letting his one
> instance pass just because feelings have been hurt and the urge to
> retaliate must be satisfied.
>
> If the 37 members of the UP law faculty are wrong, there will be
> recompense in their loss of esteem among the academic community and
> the legal profession. But if they are right, then the Court will
> have made martyrs out of those who — in their temporary passion —
> may have acted recklessly, but truthfully and sincerely. Indeed,
> should they be proven right they may even rise in the esteem in the
> eyes of the international academic and legal circles, for being the
> object of prosecution by one’s Supreme Court for bold but
> intelligent reformist language can be deemed a badge of honor
> similar to that bequeathed by history to the great thinkers who were
> persecuted by society’s forces.”
>
> In view of the blatant institutional persecution now being committed
> against the UP Law Faculty — who discharged their duties in good
> faith as public servants, law professors, and officers of the Court
> in asking the Court to take responsibility for the apparent
> plagiarism and misrepresentation that tainted the Vinuya decision —
> I urgently pleadfor the help of fellow legal scholars and academics
> to write — either public statements, or letters to their embassies
> in Manila regarding this matter. As the dissenting Justices have
> disclosed, the Supreme Court majority has already prejudged this
> matter, and that same majority will prevail in imposing sanctions
> (from disbarment, to suspension of bar licenses, fines,
> imprisonment) on the UP Law Faculty. We cannot realistically expect
> a fair hearing anymore when the majority acts as both the supposed
> “injured” party and our judge at the same time. We acted in good
> faith, conscious of our duties as lawyers and legal scholars, to
> ensure the preservation of integrity in our jurisprudence —- we
> could not anticipate then, nor would we have accepted now as law
> professors and members of the Philippine legal academia, the Supreme
> Court majority’s defense that Microsoft Word was responsible for
> failing to detect the plagiarism and misrepresentation. The
> objective facts of plagiarism and misrepresentation are glaring from
> the text of Vinuya, as confirmed by the international law professors
> whose works were used, and as confirmed by the extensive dissent of
> Justice Sereno. Most importantly, we acted from our sense of justice
> and duty as lawyers to promote the rule of law, on behalf of those
> comfort women survivors whose petition was denied through a decision-
> making process that apparently relied on plagiarized and
> misrepresented works of international law authors.
>
>
> Our only hope now is for reason from the rest of the world to
> prevail against this institutional persecution — the glaring and
> ongoing threats to our constitutional and international rights to
> freedom of expression and academic freedom. While it appears that
> only 37 of the 81 faculty members signed the UP Law Faculty
> Statement, the Court majority overlooked all the names sent in the
> original list by Dean Marvic Leonen. It has been our practice to
> signify support for statements electronically through email or
> discussions in our faculty egroup, and for many of us abroad it was
> not necessary to physically sign so long as we expressed our support
> for the statement to the faculty egroup. We expect, therefore, that
> it will only be a matter of time before the contempt order is
> extended to all of us. We will not shirk from our part in having
> supported the UP Law Faculty Statement.
>
> We fervently hope for your help in this fight against institutional
> persecution. We have no recourse left.
>
> Very truly yours,
>
> Professor Diane A. Desierto, University of the Philippines College
> of Law
>
> Law Reform Specialist, Institute of International Legal Studies,
> University of the Philippines
>
> JSD candidate (2014), LLM (2009), Yale Law School
>
> * IMPORTANT: This NOTE in NO WAY represents the views of the
> International Court of Justice or any of its staff. This Note was
> written in my private capacity, SOLELY as a member of the UP Law
> Faculty.
>
>
>
> Governing Civil Society Symposium at Brooklyn Law School
> Posted: 23 Oct 2010 05:31 PM PDT
> by Kenneth Anderson
>
> Although everyone is justly excited about International Law Weekend,
> I wanted to mention another conference in New York that took place
> yesterday at Brooklyn Law School, Governing Civil Society: NGO
> Accountability, Legitimacy and Influence. Congratulations to
> Professors Claire R. Kelly and Dana Brakman Reiser at BLS for
> putting it together. I was on one of the panels at this one day
> session and there were many other terrific people who represented a
> quite fascinating and too-rare mingling of the international law and
> nonprofit law worlds. As someone who cuts across both, I thought
> this was a great conference.
>
> The issue that drove it was to ask (this is my summary) whether
> there is a way to bring together two basic questions about non-
> governmental organizations and nonprofit organizations in the
> international world, the transnational world, the global space:
> accountability in the sense of large political legitimacy, and
> accountability in the sense that is usually meant in non-profit and
> charitable organization law. So one panel addressed the
> interactions of NGOs and international organizations; a second
> addressed models of governance and regulation of NGOs; and the last
> panel asked whether and how legitimacy and accountability might be
> linked.
>
> One of the takeaways for me was that the question of the legitimacy
> and governance function of international NGOs, global civil society,
> is still a salient question. I have long criticized (very sharply)
> the suggestion that international NGOs ought to have a legitimacy
> function within the international system, which is to say, a role in
> governance, even if you think, as I do not, that liberal
> international global governance is a good idea. But I had mostly
> stopped writing on this theme, except when specifically invited
> (here and here, for example), because I had thought that the idea
> had died away. That was something I thought I had learned from Anne-
> Marie Slaughter’s impressive A New World Order; she specifically
> rejects the global civil society-international organization
> partnership in governance as failing basic tests of legitimacy (I
> discuss this in a long review of the book). Instead, focus seemed
> to have shifted to the also important question of NGO accountability
> with respect to the performance of their own missions - internal
> governance of international NGOs, their relationships with
> governments in their operational work, and questions that implicate
> accountability and governance about them as institutions, not global
> governance.
>
> More recently, however, I have realized that something that I
> thought had faded away as a model project in global governance is
> still around, somewhat incorporated into some of theories of global
> constitutionalism that have been a staple of European academic
> writing on global governance for many years. But definitely active
> once again as a proposed theory of global governance and
> legitimacy. So I guess I am back writing about it again. I am no
> more in favor of it than I ever was, I’m afraid. Of the academic
> international law writers in this area, the one who seems to me the
> most important is Steve Charnovitz of GW, who presented a very
> interesting paper at this conference. Steve always offers a careful
> and measured view, and this paper was exactly that, but also
> exceedingly interesting not just in the critique of critics like me,
> but in offering a step forward in a positive account of NGOs in
> governance. Indeed, in some respects it was quietly the most
> audacious of the papers at the seminar, because Steve set out the
> form of an argument for asking how anyone could propose to leave the
> NGOs out. I will very much look forward to reading the essay when
> published in the symposium issue.
>
> At the broadest and most abstract level, I found that the crucial
> legitimacy issue was leading, as Weber said that it must, to
> questions of society and not just politics. That is, if legitimacy
> is the quality of a social order, and not merely a quality of a
> politics existing “interstitially” between political communities,
> then a crucial question will be, well, what society do you mean?
> Where is it to be found? Who are its members? How do they
> interact, reproduce, socialize each other - questions of sociology
> and social theory, in other words. My view is that governance is
> limited in international affairs to that which can be accomplished
> through a politics, not a society, and with the sharp limits on
> legitimacy that exist when all you have available to you is are
> political relationships, and not the deep, embedded, thick
> relationships of society.
>
> The response from many people - I emphasize people as such - in the
> elite worlds of international organizations, international NGOs,
> international business, international academies and universities is
> that their relationships are thick enough to organize a society by
> which to govern the planet. If global governance does require a
> society, it it does not require a society of the whole world, the
> whole planet, of ordinary people, and their consent and
> participation. A society of the elites, moving horizontally among
> themselves, life in the jet stream, occasionally dropping down to
> earth in Geneva and New York and London, is enough to achieve both
> governance and legitimacy based upon their intrasocial
> relationships. The social theory to which I am accustomed would
> call this, even if it were possible, a theory of governance based
> upon the globalization of the New Class; speaking not as descriptive
> social theorist but moraliste, I’d say the global management of the
> planet by a Globalized New Class, or the attempt to socialize an
> elite to think it could do that, would be a … very bad idea. No a
> la rebelion de los elites, as Ortega y Gasset might say.
>
> (Still, it is yet another reason why the reassertion of robust
> social theory and the theorizing of the global New Class are crucial
> in the intellectual agenda that needs to move beyond hard but
> exceedingly narrow thinking of social theory = microeconomics, which
> is more or less where we are now I proposed about five years ago to
> organize a conference in DC on elites and New Class theory, and
> apart from the editors of Telos, for whom this is bread and butter
> when not doing Schmitt, and Matthew Continetti of the Weekly
> Standard, the interest was a resounding zero. True, I had no travel
> funds to fly people in for a meeting, but it was remarkable to me
> how little interest there was just five years back. Would it be the
> same today?)
>
>
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