[Bundchen] said: “I think breastfeeding really helped [her lose weight]. Some people here [in the U.S.] think they don’t have to breastfeed, and I think, ‘Are you going to give chemical food to your child, when they are so little?’

‘There should be a worldwide law, in my opinion, that mothers should breastfeed their babies for six months.”

Of course, many questions come to mind: Why six months?  How would this law be enforced?  What about women who can’t breastfeed?  And what the hell is chemical food?

One has to wonder if Gisele realizes what a hot issue she’s stumbled onto.  Breastfeeding has long drawn out passionate feelings from mothers around the world.  And, in fact, breastfeeding already has a place in international law.  The U.N. Convention on the Rights of the Child (art. 24(e)), for example, requires states to take “appropriate measures to . . . ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents.”  Several conventions of the International Labor Organization touch on the issue of breastfeeding, including the ones mentioned here.  There’s also an International Code on the Marketing of Breast Milk Substitutes, which was partially spurred by Nestle’s misbehavior in marketing formula.  And groups like the World Alliance for Breastfeeding Action are pushing for further recognition of breastfeeding rights.

In other words: Gisele, please chill out.  Although breastfeeding is important, we don’t need the kind of aggressive paternalism maternalism you propose.  But, ummm, I still enjoyed your work in Vogue in 2000, so I hope we can still be friends.

-Michael

Update: Bundchen has now apologized, saying:

“My intention in making a comment about the importance of breastfeeding has nothing to do with the law,” the 30-year-old Brazilian said on her blog. “‘I am sure if I would just be sitting talking about my experiences with other mothers, we would just be sharing opinions. I understand that everyone has their own experience and opinions and I am not here to judge.”

• A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Decent
• Breaking the Silence on Rape as an International Crime by Mark Ellis; and
• Enforcing Erga Omnes Obligations in International Law by Christian Tams.

Although I don’t understand how the plagiarism would affect the outcome of the decision, the plaintiffs are asking the Court to reverse their decision anyway.

“Petitioners’ counsel is mindful that in raising this matter they bring serious charges against the integrity of this Honorable Court’s deliberations in this case. But if Petitioners’ counsel are to take faithfully their duty as officers of the court sworn to uphold the constitution and the law, they realize – and this, not without much trepidation – that they only renege on such high legal duty if they choose to keep their peace,” Roque said.

Roque said the decision did not only copy portions of the articles, but also twisted facts to justify the dismissal of the petitioners’ case.

“A careful examination of the stylistics of the pertinent portions of the judgment will show the clever way in which the arguments lifted from the plagiarized article were employed; important points on the matter of jus cogens norms – upon which Petitioners anchored their contention that the State has a duty in international law to prosecute international crimes – were taken without proper attribution from the article and used as the judgment’s own,” Roque said.

Among other things, the plaintiffs argue that the articles — read in their entirety — actually support plaintiffs’ claims.

As Opinio Juris notes, this seems like a relatively borderline case, as the Justices did at least cite the plagiarized sources.  But even if it doesn’t change the outcome of the case, the consequences for the Justices of the Court could be significant: plagiarizers in the Philippines can “be imprisoned for one to three years and required to pay a fine from P50,000 to P100,000 for the first offense.”

The Supreme Cout has denied the accusations.  They also have suggested, strangely, that the plaintiffs don’t have standing to complain:

Commenting on the motion for reconsideration filed on Monday, [Supreme Court spokesman Midas] Marquez said he does not think the comfort women are the right complainants since they are not the authors of the quotes in question.

“They are not the aggrieved party,” he said.

I wonder what it would be like to have your work plagiarized by a country’s highest court.  If a WTO panel wanted to plagiarize from my journal article, a part of me would be flattered.  But I suspect the authors listed above don’t feel the same.

-Michael

[h/t: Opinio Juris picked this story up just before I got to blog about it.  Once again, my favorite international law blog was one step ahead.]

Update: As I suspected, one of the plagiarized authors wasn’t really happy about it.  Over at OJ, Evan Criddle commented: “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.”

-Michael

[U]nlike the United States, where airlines make their own rules on how passengers are compensated when flights are delayed or canceled, the European Union requires airlines to pay penalties of up to 600 euros, or about $750, when the problem is the carrier’s fault, and cover hotel rooms and meals even when it is not.

The law, EC 261, in effect since 2005, applies to any European Union airline flying to or from a member state. But here’s a detail that American carriers would prefer their customers not know: it applies to all flights departing from the European Union, regardless of the passengers’ nationality.

Apparently, however, some airlines are questioning whether this law can apply once planes are outside the territorial borders of the EU, particularly if the airline in question is not an E.U. airline.  So “although the Transportation Department, the Air Transport Association, the European Commission and even the State Department say these rules apply to American carriers, it is not clear how willingly airlines actually pay compensation, and how effectively the rule can be enforced.”  The Times further explains:

“It’s not a level playing field,” Mr. Lott said. Because this issue gets into complex areas of international law, there are no easy answers.

“As a legal matter, we don’t challenge the authority of the European Union to regulate air transportation emanating from its territory,” said John Byerly, the deputy assistant secretary for transportation affairs at the State Department, who is involved in negotiating aviation treaties.

Although Mr. Byerly confirmed that Europe’s passenger rights regulations apply to American carriers leaving Europe, he conceded that there is no body that enforces them in the United States, creating a gap that has yet to be addressed.

Don’t these airlines know anything?  Of course Europe has jurisdiction to regulate American carriers, under the principle of . . . ummm . . . hmm.  Well, the EU can’t claim territorial jurisdiction once the planes are outside the EU.  Nationality might be a basis for jurisdiction for E.U. airlines, but not American ones.  This type of conduct probably isn’t the type contemplated by the protective principle of jurisdiction either.  And even though passive personality might be a valid basis for some customers, it won’t be for the Americans.  So what is the actual basis for jurisdiction here?  Of course!  Universal jurisdiction applies.  Bad airline services is most certainly a “crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage.”

I look forward to the establishment of the International Criminal Tribunal for Heinous Airline Service.

-Michael

Image Credit: Bruns/AP

The press has been giving an extraordinary amount of attention to Switzerland’s recent refusal to extradite Roman Polanski to the United States.  Little attention, however, has been given to the actual law that the Swiss are trying to use to support their decision.  Although much of the decision rested on a procedural quirk, the Swiss also argued that the public international law supported their decision.  In particular, the head of the Swiss Federal Department of Justice and Police contended that the principle of “protection of confidence” applied in Polanski’s case:

Mrs Widmer-Schlumpf said the protection of confidence is a principle of international and national law.

“To these considerations based on the extradition treaty with the USA it is necessary to add considerations based on general international law, that is international public order, according to which international treaties are not to be interpreted only according to their wording, but also to their sense and purpose.

“They have to be fulfilled respecting the principle of good faith. This protection of confidence is a general principle laid down in specific norms both in international law and in Swiss national law, and precisely in article 9 of the Federal Constitution.

“In particular it is necessary to take into account the fact that it is generally known that, since he bought his house in Gstaad in 2006, Roman Polanski has been regularly staying in Switzerland. Nonetheless the US authorities did not file any formal extradition request for years,” said Mrs Widmer-Schlumpf.

She said although Roman Polanski was registered in the Swiss registry of wanted persons, he was never controlled by the Swiss authorities.

“These circumstances justified a confidence basis and Roman Polanski would not have decided to go to the film festival in Zürich in September 2009 if he had not trusted that the journey would not entail any legal disadvantages for him.

“Considering all the aspects of this case – and in particular the extradition request which is not satisfying as far as the presentation of the facts of the case is concerned and the principles of State action deriving from international public order– the extradition request has to be rejected,” she said.

The principle of “protection of confidence” appears to be a pseudo-equitable principle blending the concepts of laches, equitable estoppel, good faith, and American notions of due process.  The principle protects the legitimate expectations and entrenched interests of individuals from arbitrary government intervention.  The Swiss apparently believe that America’s delay in making an extradition request was unreasonable and led to a legitimate belief on the part of Polanski that he was no longer being pursued by American authorities.

I question whether there is any real international law principle of “protection  of confidence,” at least in the context seen in the Roman Polanski case.  Although ICJ cases like Temple of Preah Vihear and some ICSID cases suggest that principles of estoppel and good faith apply to the actions of states, those cases implicate much different interests than those seen in the criminal context.  In the criminal case, the state is acting — at least in part — to vindicate the interests of particular individuals (victims) who have often suffered substantial, physical harm.  That is to be contrasted with the investor-dispute context where the relevant harms are commercial, or the “national disputes” context (like Preah Vihear) where the relevant interests implicate complex but abstract notions of power and state sovereignty. International law seems a poor mechanism for creating de facto statutes of limitations in the criminal context because different nations value these physical harms differently.  If the Swiss are right, can the principle now be used to avoid extraditing fugitives any time the country holding the fugitive feels the requesting country made inadequate attempts to capture him?  Is the passage of time enough to refuse extradition?

State practice also seems to support the view that the Swiss got it wrong, as I could not find any case applying the “protection of confidence” principle in the context of extradition or international criminal law.  Indeed, some cases suggest that “protection of confidence” and legitimate expectations have only a limited role in international law.  See, e.g., the WTO’s decision in EC-Computer Equipment (rejecting recourse to principles of “legitimate expectations”).

Polanski’s actions also belie the suggestion that he developed any expectation that he would be free from prosecution.  Polanski, after all, had not returned to the United States since he initially fled in 1978.

I recognize that this case is controversial, and many feel it should not have been brought in the first place.  I don’t want to enter that argument, but I do want to suggest that the Swiss “international law” argument strikes me as a weak one.  It will be interesting to see if the Swiss (or any other country receiving an extradition request for Polanski) will look to this argument again.

-Michael

I believe that the role of domestic courts is to decide the cases that come before them based on the law.  In some rare circumstances, United States law may require a court to look to foreign or international law to resolve the parties’ claims.  I do not believe, however, that courts should view their role as domesticating international law into U.S. law or as using their interpretive powers to promote the development of a global legal system.

That seems pretty reasonable to me.  But not to the Home School Legal Defense Association (HSLDA):

HSLDA has been concerned about Ms. Kagan’s nomination because of her support of international law over the U.S. Constitution while she was Dean of Harvard School of Law. Our concerns were not alleviated, but only grew with Kagan’s answers during her hearing.

***

We are concerned about Kagan citing foreign or international law as a Supreme Court justice because of the danger that could ensue if she ever cited the U.N. Convention on the Rights of the Child (CRC) as precedent in a Supreme Court opinion. This treaty could severely limit parental rights.

Wait, what?  HSLDA is worried that Kagan might incorporate some international law into Supreme Court decisions, which might include a particular treaty (the CRC), which might be somehow relevant to a decision of the Court, and might result in more limits on parental rights?

You know, I fancy myself a pretty conservative guy.  But if this is really the type of stuff that we have to worry about with Kagan, then I say go ahead and confirm her.

-Michael

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.

-Susan

It is clearly stated in Article 5 of the U.N. Universal Declaration of Human Rights that….

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Lindsay, just as a heads up: the UDHR embodies aspirational principles of international law.  It might be better to look to the International Covenant on Civil and Political Rights instead.  See art. 7 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”).

Best of luck in jail, LiLo.

-Michael

Update: A friend of Lohan’s explains where Lindsay got her legal training: “She’s seen the movie ‘Chicago’ several times, so it’s not like she doesn’t know how this sort of thing works!”

John Bellinger, a legal adviser to the Secretary of State during the Bush administration, told the Huffington Post’s Sam Stein that the Lieberman bill “sounds like a draconian solution. I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision… It certainly seems like a far-reaching step.”

I was originally going to write a post about how this bill is actually rather meaningless, but Opinio Juris beat me to it.  Surprisingly, however, they overlooked the interesting consequence of the bill for international law scholars.  The bill would strip citizenship from anyone doing any of the following:

(A) providing material support or resources to a foreign terrorist organization;

(B) engaging in, or purposefully and materially supporting, hostilities against the United States; or

(C) engaging in, or purposefully and materially supporting, hostilities against any country or armed force that is—

(i) directly engaged along with the United States in hostilities engaged in by the United States; or

(ii) providing direct operational support to the United States in hostilities engaged in by the United States;

“Hostilities” are defined as “any conflict subject to the laws of war.”  Hmmm … what an interesting way to frame “hostilities.”  So basically, anytime a ‘terrorist’ is accused of being engaged in ‘hostilities,’ courts will have to determine if humanitarian law is applicable.  That means (I would imagine) looking to the Geneva Conventions, the Hague Conventions, and the many other treaties, etc. governing the laws of war.  Sounds like a Jessup problem in the making.

No doubt there are many U.S. District Courts that are excited about the prospect of diving into IHL.  Or maybe not.

-Michael

Update: Professor Steve Vladeck suggests that a lawyer filing an amicus brief on behalf of a terrorist organization could face automatic expatriation under this bill.

I’m not so disappointed in GW’s failure to return the book as I am in the fact he had to borrow a copy of Law of Nations at all. Surely the man should have possessed his own copy of the book. After all, Vattel was a significant influence on the U.S. Constitution — but then again, maybe GW only got around to reading it until after the Constitution had been finished up, and suddenly George found himself in charge of faithfully executing what was in it.

Even before George Washington was president, however, he would have dealt with people quoting Vattel at him. John Jay, the future first Chief Justice, wrote to GW, who was presiding over the Constitutional Convention, and made a recommendation to him regarding the requirements of holding office under the new Constitution. Jay’s letter borrows the phrasing of “natural born citizen” from Vattel’s Law of Nations:

“Permit me to hint, whether it would be wise and reasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”

Still, perhaps George Washington made good use of his stolen copy of the Law of Nations. Less than four years after he checked it out, in 1793, Vattel played an important role in an early United States’ foreign affairs crisis, when the actions of the French ambassador, Edmond-Charles Genêt, threaten America’s neutrality to European conflicts. Hamilton and Jefferson wrote to Genêt, in which they defended the right of the United States to suspend the treaties in place between itself and France. Vattel, they conceded, had written that there was a “fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.” However, Hamilton argued that, although France may have had a right to changes its government, France did not have any right to force the United States to become involved in that civil conflict. If international law allowed for such a situation, “[t]his would be to give to a nation or society, not only a power over its own happiness, but a power over the happiness of other Nations or Societies. It would be to extend the operations of the maxim, much beyond the reason of it—which is simply, that every Nation ought to have a right to provide for its own happiness.”

This was (and is) a pretty subtle question of international law, really. In the case of a nation torn by civil war, to which faction is a duty arising to that country under international law owed? To the established government? To the belligerents? At what point do the belligerents become the establishment, and are therefore the inheritors of the rights and duties under treaties incurred by previous administrations?

Young America, following a policy of neutrality set by President Washington, simply did not want to become involved. Ambassador Genêt was less than impressed with the Washington Administration’s reliance on the subtleties of international law, however. He wrote back, angrily, accusing the federal government of “bring[ing] forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”

This all sounds pretty familiar, really. For as long as the U.S. has been a nation, it has been using complicated interpretations of international law in order to avoid duties incurred under treaties. And for all the haters out there who think America shouldn’t bother itself with international law, I say that if it was good enough for George Washington to steal, it’s good enough for us to pay attention to today.

-Susan