Harry Roque’s Blog

Supreme Court Spokesperson Midas Marquez, in defending the Court from allegations of plagiarism , said that the authors of the alleged copied articles, and not the comfort women, have the standing to question the alleged intellectual theft. Without conceding this point, it appears though that at least of one of these authors has in fact done just this.

An American academic, Prof. Evan Criddle, confirmed in a well-known US-based legal blog that an article he had co-authored with a Canadian colleague was plagiarized and taken out of context by a recent decision of our Supreme Court dismissing a suit filed by Filipino “Comfort Women” seeking official espousal of their claims for reparations against the State of Japan.

Prof. Criddle, an assistant professor of international law at the Syracuse University College of Law, told the international law blog Opinio Juris (www.opiniojuris.org) that he found what the Philippine Supreme Court did in its April 28, 2010 Judgment in the case of Vinuya et al., V. Executive Secretary et al., (G.R. No. 162230) to be “most troubling.”

Prof. Criddle was responding to a post by one of the blog’s regular contributors, Julian Ku of the Hofstra University, reporting on the allegations against the Supreme Court, including the filing of a supplemental Motion for Reconsideration by the Petitioners last Monday.

In response, Prof. Evan Criddle wrote on the blog:

“The newspaper’s plagiarism claims are based on a motion for reconsideration filed yesterday with the Philippine Supreme Court yesterday. The motion is available here: http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-court/

The motion suggests that the Court’s decision contains thirty-four sentences and citations that are identical to sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware of the petitioners’ plagarism allegations until after the motion was filed today.

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,” Criddle explained.

Prof. Criddle’s disclosure to Opinio Juris, a blog widely circulated among international law academics from around the world, confirms the allegations at least with respect to the article he co-authored with Prof. Evan Fox-Decent, who teaches at the McGill University Faculty of Law in Canada, on “A Fiduciary Theory of Jus Cogens.” It was published by the Yale Law Journal of International law last year.

Jus Cogens pertains to international legal norms that cannot be set aside by any State as they refer to “non-derogable” principles of law “binding on the international community as a whole.” The Petitioners had argued that what they suffered in the hands of the Japanese Imperial Army during World War II were a violation of jus cogens norms on war crimes and crimes against humanity. Thus, every State, including the Philippines, has an obligation to prosecute these crimes.

The matter was of particular interest to contributors to the blog because it had previously featured Criddle and Fox-Decent’s article, which presents an alternative view of jus cogens norms, in its pages.
In their article, the authors wrote:

At a minimum, the fiduciary model’s criterion of equal security – the principle that a state may not exploit individuals as mere means to its own ends – limits state legislative and administrative power by outlawing grave offenses such as genocide, crimes against humanity, summary executions, torture, forced disappearances, and prolonged arbitrary detention. Such flagrant abuses of state power deny a state’s beneficiaries secure and equal freedom and therefore trigger international law’s strictest peremptory prohibitions

A link to the blog page where Prof. Criddle’s comment appears is found here: http://opiniojuris.org/2010/07/19/international-law-plagiarism-charge-bedevils-philippines-supreme-court-justice/

Opinio Juris is a US-based blog run by several academics in the field of international law. It is a forum for informed discussion and lively debate about international law and international relations. It was founded by Chris Borgen, a law professor at St. John’s University Law School, who started the site with Peggy McGuinness of the University of Missouri Law School and Julian Ku of Hofstra Law School. The site debuted in January 2005. #30#