Tag Archives: international law

Supreme Court of the Philippines Threatens to Hold Professors Who Condemned Plagiarism In Contempt

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Previously, Mike posted about a decision from the Supreme Court of the Philippines that extensively plagiarized an article written by two American legal scholars. That case, Isabelita Vinuya v. Executive Secretary, also reached a decision contrary to that of the article the Supreme Court had plagiarized from, despite the extensive copy-and-paste job done on the source material.

37 professors at the University of the Philippines College of law issued a statement condemning the plagiarism. Now, the Philippines’ Supreme Court has threatened to hold the professors in contempt:

[Justice] Del Castillo was accused of plagiarizing portions of his ruling on World War II comfort women, but the Supreme Court cleared him, saying there was “no malicious intent” in the “accidental decapitation” of the attribution marks that would indicate that the research material was borrowed.

The court also threatened to crack its whip on the 37 law professors who aired a statement against Del Castillo, saying the Code of Professional Conduct for lawyers prohibits members of the Bar from airing public statements that tend to influence public opinion while a case is pending.

Can you imagine if that was the rule in the U.S.? That would essentially outlaw legal bloggers.

In its Rule to Show Cause issued against the professors, the Supreme Court stated that it

“could hardly perceive any reasonable purpose for the faculty’s less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Court’s honesty, integrity and competence in addressing the motion for its reconsideration.” The Vinuya case was controversial enough, it added, but the law faculty “would fan the flames and invite resentment against a resolution that would not reverse the said decision.” The court said this was contrary to the faculty’s obligation as law professors and officers of the court and violated the Code of Professional Responsibility.

There is little doubt, though, that the critics’ charges of plagiarism are accurate. In its order dismissing the plagiarism allegations, the Court excused the failure to cite directly quoted text by noting that, “Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.” In other words, it’s the “Bill Gates ate my homework” defense.

-Susan

Second Circuit’s Error in Kiobel

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This is kind of petty, and not particularly timely, but the Second Circuit’s decision in Kiobel contained one pretty blatant error I wanted to point out. It’s a minor mistake, and entirely insignificant regarding the outcome of the case, but it is perhaps indicative of a lack of familiarity with the history of the Alien Tort Statute:

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — has led many defendants to settle ATS claims prior to trial. Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade), and the Supreme Court in its entire history has decided only one ATS case.

Although much of this statement is subjectively wrong, the last line is outright false. Sosa was not the first — O’Reilly De Camara v. Brooke, 209 U.S. 45 (1908) was the first case brought under the Alien Tort Statute to make its way to the Supreme Court. Although the case was not particularly significant, it is notable in that it “perhaps implies that an unjustified seizure of an alien’s property in a foreign country by a United States officer would come within it.” See Khedivial Line, S. A. E. v. Seafarers’ Intern. Union, 278 F.2d 49 (2d. Cir. 1960).

The rest of that paragraph from the Kiobel decision is also dubious.

ATS cases “often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances.” The Second Circuit is abusing the meaning of “unique,” here. Events that took place abroad and in chaotic or troubled circumstances are in fact frequently litigated in US courts, albeit usually involving fact patterns that are different from the typical ATS case.

The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — Juries may be capable of awarding multibillion-dollar verdicts in ATS cases, but that is true for all sorts of cases. The only case the Second Circuit cites to is Karadzic, which was a default judgment. Moreover, a jury decision on the merits in favor of a plaintiff in a corporate defendant case has happened exactly once in any ATS case ever, in Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008). Just once. That is hardly grounds for invoke the specter of “juries awarding multibillion-dollar verdicts.”

… has led many defendants to settle ATS claims prior to trial. Wait, don’t courts consider it a good thing when cases settle before trial? And wait a second here — “many defendants” is quite a stretch. I am only aware of seven ATS cases ever that resulted in a settlement. I’m willing to assume there are a few out there that I’ve missed, but not many. The Second Circuit itself lists only two. There have been, by an extremely conservative estimate, maybe three hundred ATS cases in total that were “legitimate.” By legitimate, I mean not jail-mail and not filed by obviously crazy people. Of these three hundred or so cases, under a dozen have ever resulted in a settlement. So at the extreme, a mere 3% of ATS cases wind up settling. The average settlement rate for torts in federal courts is around 67%. I therefore find it absolutely ridiculous that the Second Circuit is using the threat that “many defendants settle before trial” as a reason for why the ATS is ‘dangerous’ or ‘unpredictable.’

There are other errors in Kiobel that are more significant, and are legal errors rather than factual ones, but these mischaracterizations are telling. The court was not simply adjudicating the merits of the plaintiffs’ claims — obviously the court found that its fears of what the ATS was capable of doing to be significant enough to include in its opinion. But these fears were based on stilted facts, not on the actual record.

-Susan

Corporate Participation in International Law: Some Historical Examples

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It has probably become apparent by now that the idea that corporations are noncognizable under international law is one that irritates me to no end. There is, obviously, a great deal of unsettled law out there regarding exactly how liability for violations of international law accrues to non-state entities. But corporations have played a vital role in the development of international law for just about as long as “international law” can be said to have existed, and there is no historical basis for the idea that corporations cannot, as a matter of law, be a participant in or violator of international law.

At some point I will write some more on the subject, but for now, I want to at least throw some links up that give some historical examples. The Transnational Corporation in History: Lessons for Today? is a highly recommended starting point. It gives a good overview of how the legal character of corporations has developed, and how the private/public distinction has always been unclear, oftentimes deliberately so:

Corporations and states are commonly represented as having an oppositional relationship. Corporations represent the private; states represent the public. Corporations represent the efficient, the natural, and the spontaneous; states represent the inefficient and the contrived. The ascendancy of the corporation means the decline of the state. But these commonly held views are ahistorical and tend to ignore the complex relationships between states and corporations. Modern incorporation is simply a matter of fulfilling formal registration requirements. There are few surviving remnants of the old notion that incorporation is a privilege conferred by the state. This Article aims to redress the balance somewhat by telling aspects of the history of the corporate form that have been obscured by modern forms of incorporation and modern conceptions of the public and the private. In a modest way this Article intends to show just how recent the public/private paradigm actually is and how selectively such concepts have been applied.

…

Compared with the French trading companies generally, the English and Dutch companies were considered to be much more independent and able to operate at arms length from their respective governments. The agents of the Dutch and English companies were regarded as employees and servants of groups of merchants, rather than the subordinates of their governments. The British considered themselves traders first and territorial rulers second. Of course, the proper mix of the East India Company’s functions was contested, tended to be in the eye of the beholder, and changed dramatically over the period of the company’s existence.

And how questions over the status of corporation under international law are not new:

The British East India Company certainly took advantage of its ambiguous status—successfully emphasizing its sovereign powers when it wished to avoid contractual debts to local rulers, protesting to the Royal Navy that its status would be reduced in the eyes of the locals if it had to acknowledge the superiority of the British naval fleet, and all the time relying for its trading advantage on the might of British naval power and on the calculated and limited use of force. It charged merchants fees for safe passage and was able to do so as an exercise of its monopoly and sovereign powers. It was graphically and finally reminded of its subordinate status, however, when Queen Victoria took over from the company in 1858. The company had survived in various guises and with mixed public and private motives for 250 years.

But throughout the 18th and 19th centuries, corporations were assumed to be competent at conducting activities that, today, we generally believe only a true sovereign could do. Corporations could start wars, engage in diplomacy, claim new territories, and enter into international agreements. Treaties between corporations and state or state-like entities flourished during this time period, i.e., the treaty between the Dutch East India Company and the Ali Raja, the Treaty of Giyanti, and the Treaty of Allahabad. Some treaties, such as the treaty between the British East India Company and nascent Singapore, lead to the creation of what would eventually become modern day nation states.

Also worth checking out is this 1769 letter,
An Enquiry Into the Rights of the East India Company of Making War and Peace and of Possessing Their Territorial Acquisitions Without the Participation or Inspection of the British Government, which gives a good example of how, even then, people were confused about how sovereign a corporation could be, when there was no “official” grant of sovereignty.

I am not trying to say that the role of corporations in international law is crystal clear — it is obviously not. But the idea that corporations are unrecognizable under international law, and that states can use the corporate form to immunize the profits its citizens have made from engaging in violations of international law, is an extremely modern one, and in its own way is a very radical idea.

-Susan

Ramblings on Corporate Liability Under the Alien Tort Statute

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Susan is preparing for trial next week, so she hasn’t been able to post as much on the Second Circuit’s recent decision in Kiobel v. Royal Dutch Petroleum.  I recently had a chance to get her thoughts on the decision and thought I’d share some of that discussion.  (My questions are in bold.)

What would you say to those that agree with Kiobel – to those that say there should not be any corporate liability under international law?

None?  Ever?  What if a corporation takes over a state, de facto, although none of their people are nominally holding the major government positions?  What if Nauru still had phosphate and essentially sold all major state operations off to a mining company?

An interesting question.

I just don’t see the whole bright line supposedly created by being a “corporation.” If individuals can integrate with a state and violate international law, or if instrumentalities of states or international organizations can violate international law, why the hell can’t a corporation?  I mean, branches of states have been held to violate international law, but responsibility always cuts back to the sovereign. My only point is the idea that a non-individual can be in violation of international law is not as far out crazy as it’s being made out to be. Heck, even the East India Company had to abide by international law. Well. Not that it did.

Really?  Was the corporate entity ever held responsible, or just the people running it?

Well, the problem with the early corporate cases is that it’s all sorta piratey stuff…. which is always kinda its own brand of international law.  But come on, corporations basically invented law of the sea. Why do you think Grotius wrote his treatise on the law of capture? ‘Cause a corporation paid him to. Seriously. He wrote Mare Liberum as an advocacy piece for the Dutch East India Co.

So . . . why isn’t it enough to impose individual liability given that corporations are legal fictions anyway?

Well, that’s kinda the point. Corporations are made up doohickeys, they don’t actually exist. But the law of nations, old school international law, basically understood them to be domestic constructs, and they sure as hell didn’t let states or entities weasel out of violations of international law because some state told them “oh hey you’re incorporated.” (1) Because enterprise liability is a recognized concept under international law, (2) those individuals are liable themselves but they are merely agents of a legal construct, (3) and corporations are created to funnel their profits to a diversified source. So [under the opposing view], a state entity can create a complicated legal structure that allows people to invest and profit in violations of international law, and they can recover their investment because they were deliberately and carefully shielded from actual knowledge.

Can’t you create some type of willful blindness liability? That an individual who invests in a corporate structure with full knowledge that it is intended to shield the individual from knowledge of violations of international law has a sufficiently culpable state of mind to impose individual liability?

But see, international law has never ever gone there before. Willful blindness liability is a totally new concept. Why not just use corporations? Corporations have never been given unique immunity status under international law until recent times. Also come on. Most stocks are owned by other corporations. And also states will NEVER allow their citizens to be found guilty of genocide because they happened to have the wrong stock picked out by their adviser for their 401K.

But you’re taking money from stockholders because the corporate entity committed an independent act.

So what? They invested their money in something that broke the law. This is not an uncommon occurrence. Companies are fined for breaking the law allllll the time. Including international law, albeit not customary international law. Plus: ATS cases can be brought under treaties. Some treaties do regulate corporate behavior. The 2nd Circuit opinion would, unintentionally I think, ’cause problems there too.

Interesting.

I guess my ultimate point is, a unilateral domestic act — the creation of corporations — cannot create a blanket financial immunity for its citizens/self for violations of international law. If corporations didn’t exist — say, Shell was just a business, all in one dude’s name — all that money would be recoverable. So why can England/Holland immunize that money by taking a slip of paper and writing “Articles of Incorporation” on it?

-Michael

*I also noted an issue that has since been raised by Kevin Jon Heller over at Opinio Juris: it seems like corporate acts can still violate international law, it’s just that there is no jurisdiction to impose liability for those violations.  Susan doesn’t think that distinction has any relevance, but I think it remains to be seen whether that is an important distinction.

Second Circuit: No Corporate Liability Under the Alien Tort Statute

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Although Susan is the Alien Tort Statute expert around here, I thought I would flag one important decision handed down by the Second Circuit today, Kiobel v. Royal Dutch Petroleum.   In an exhaustive 138 pages of discussion that meanders through history, treaties, and the works of publicists, the court concludes that corporate defendants cannot be held liable for violations of customary international law under the ATS.   And the opinion does not hold back, saying:

  • “There is no historical evidence of an existing or even nascent norm of customary international law imposing liability on corporations for violations of human rights.”
  • “In declining to impose corporate liability under international law in the case of the most nefarious corporate enterprise known to the civilized world, while prosecuting the men who led I.G. Farben, the military tribunals established under Control Council Law No. 10 [at Nuremburg] expressly defined liability under the law of nations as liability that could not be divorced from individual moral responsibility. It is thus clear that, at the time of the Nuremberg trials, corporate liability was not recognized as a ‘specific, universal, and obligatory’norm of customary international law.”
  • “In sum, modern international tribunals make it abundantly clear that, since Nuremberg, the concept of corporate liability for violations of customary international law has not even begun to ‘ripen[ ]‘ into a universally accepted norm of international law.”
  • “We conclude, therefore, that the relatively few international treaties that impose particular obligations on corporations do not establish corporate liability as a ‘specific, universal, and obligatory’ norm of customary international law. Id. at 732 (internal quotation marks omitted). Although those treaties suggest a trend towards imposing corporate liability in some special contexts, no trend is detectable outside such narrow applications in specialized treaties, and there is nothing to demonstrate that corporate liability has yet been recognized as a norm of the customary international law of human rights.”
  • “Together, those authorities demonstrate that imposing liability on corporations for violations of customary international law has not attained a discernible, much less universal, acceptance among nations of the world in their relations inter se.”
The majority opinion also takes a direct shot (in several pages right at the beginning of the opinion, and several more later) at Judge Leval’s concurrence, which finds corporate liability under the ATS is a possibility:
Lastly, we wish to note that we do not take lightly the passion with which Judge Leval disagrees with our holding. We are keenly aware that he calls our reasoning “illogical” on nine separate occasions. See Concurring Op. 4, 5, 9, 30, 31 n.18, 36, 28, 46, 68, 69. Nor is it lost on us that he calls our conclusions “strange,” id. at 3, 57, 59,23 or that he repeatedly criticizes our analysis as “internally inconsistent,” id. at 6, 7, 46.24 We must, however, leave it to the reader to decide whether any of Judge Leval’s charges, individually or in combination, are a fair reading of our opinion. In so doing we are confident that if our effort is misguided, higher judicial authority is available to tell us so.

Judge Leval doesn’t hold back either:

The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights. According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form. Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims.

This opinion, much like an an earlier denial of rehearing en banc by the D.C. Circuit (in Al-Bihani), demonstrates that international law seems to piss judges off in a way I don’t often see in other contexts.   Wonder why?

-Michael

Update: Over at Opinio Juris, the experts seem to think this was the right decision.  Somewhere Ralph Steinhardt is quietly weeping.

The International Law of [Mandatory] Breastfeeding

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Following closely on the heels of another celebrity international law scholar, model and wife-of-Tom-Brady Gisele Bundchen has proposed a new international law: mandatory breastfeeding.  Like many new moms, Gisele feels that — now that she’s had a baby — she knows everything.  She’s now using that vast pool of knowledge to speak out against “chemical food”:

[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.”

Did the Supreme Court of the Philippines Plagiarize From International Law Journals?

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A very interesting case out of the Philippines has turned even more interesting after some bizarre accusations of plagiarism.  A group of Filipino women allege that certain Japanese soldiers sexually abused them during World War II; they sued in 2004 to compel the Filipino government to request an apology and compensation from the Japanese government.  The women recently lost their petition before the country’s Supreme Court.  Now, however, they have moved for reconsideration, alleging that the unanimous decision actually contained large portions of uncited material from several international law review articles.  The articles included:

  • 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.”

A “Complex Area[] of International Law”: Air Travel Perks

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A recent article from The New York Times demonstrates another way that understanding principles of jurisdiction and extraterritoriality can really pay off:  it might lead to free stuff.   The European Union passed a law in 2005 requiring airlines to provide certain compensation to their passengers when flights get delayed or seats get bumped.  But guess what?  It also applies outside the European Union!

[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

Roman Polanski and the International Law of “Protection of Confidence”

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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.

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