[IntLawProfessors] FW: Okla state question 755 update

[Fernando Teson]

What I suggest is this: Suppose that I think a certain rule R is desirable,
say the rule that commanders, when considering otherwise permitted military
action, must take all possible precautions to protect civilians. Suppose
further that state practice is ambiguous on this particular rule. Customary
law clearly has the principle that mandates discriminating between
combatants and civilians, yet the more specific rule R is not as clearly
supported by practice, say practice is contradictory. My claim is that a
lawyer who says "R is custom" is mistating the legal position. She should
say instead: "State practice with respect to R can be read either way;
however, states should observe R because it is the best rule, the rule that
best serves the purposes of humanitarian law, that is more efficient in
terms of reciprocity, etc." In other words: to say that R is custom is to
deceive the audience into believing that practice supports R when it does
not. Intergity requires that the advocate reveal the real reasons why she
thinks this is a good rule, as opposed to taking refuge in a phony
customary-law argument.


On Mon, Nov 15, 2010 at 10:16 AM, Henderson, Ian S WGCMD AUS <
henderis.aus at centcom.mil> wrote:

>  Dear Professor Tesón,
>
>
>
> Just so I am not confused, am I right in thinking that you are not
> suggesting that ‘substantive arguments’ are grounds for establishing a rule
> of customary international law? Rather, substantive arguments are reasons
> for a negotiating a treaty.
>
>
>
> Ian Henderson
>
>
>
> *From:* intlawprofessors-bounces at mailman.anu.edu.au [mailto:
> intlawprofessors-bounces at mailman.anu.edu.au] *On Behalf Of *Fernando Teson
> *Sent:* Monday, November 15, 2010 9:47 AM
> *To:* Koivurova Timo
>
> *Cc:* intlawprofessors at mailman.anu.edu.au
> *Subject:* Re: [IntLawProfessors] FW: Okla state question 755 update
>
>
>
> Dear Timo:
>
> Thank you for your thoughtful comment. I simply ask you to consider for one
> moment the consequences of this "verbal action" test. The world consists of
> five states. States A,B,C, and D covet the resources of state E, who,
> because of better economic policies and institutions, has achieved enviable
> prosperity, while A-D had engaged in demagogic wasteful policies that
> resulted in political and economic degradation. A-D then start a verbal
> "practice", promoting a rule that mandates massive transfer of resources
> from E to them.  No one in his sane mind would say that such "rule," whose
> pedigree is nothing more than having been parroted repeatedly by A-D, is
> binding on E. In other words: verbal "practice" can be a ruse to exploit
> states harmed by the asserted "rule."
>
> If you don't like fancy examples, here's a real, disquieting one: the
> Organization of Islamic Conference, who has almost 60 members, is
> aggressively promoting the "rule" that states ought to ban blasphemy (or
> "defamation of religions"). Any human rights lawyer worth her salt must
> resist this monstrosity, yet these states are engaging in the "verbal
> practice" that you support. All they need to succeed is to enlist more
> tyrants.
>
> Rules should be defended with two kinds of arguments: pedigree arguments
> (the rule is supported by custom), or substantive arguments (the rule is
> fair, just, or efficient, solves a public-goods problem, etc). What
> activists and norm entrepreneurs do is to fraudulently use a pedigree
> argument instead of honestly using a substantive argument.
>
> Cheers,
> F
>
> On Mon, Nov 15, 2010 at 7:35 AM, Koivurova Timo <
> timo.koivurova at ulapland.fi> wrote:
>
> Dear Fernando and Don et al.
>
>
>
> Sorry to "wake up" for this interesting discussion at so late in time
> (enjoyed a week's vacation:)
>
>
>
> While I read all the comments posted on the list on customary law this
> morning, what came to my mind was exactly what Don quoted below, namely what
> Jennings said already few years back, that what we call as CIL today does
> not even faintly resemble a customary law. I also agree with Don that this
> is largely caused by the change in international relations and that now we
> are struggling to find a new "rule of recognition" (if we want to continue
> with Hartian parlance).
>
>
>
> I would like to take issue with Fernando on the use of CIL in the field of
> international environmental law. You recall our earlier discussion over how
> the ICJ uses the CIL. Wittness the way the ICJ has not (yet) endorsed
> precautionary principle or approach nor common but differentiated
> responsibities (or polluter pays, etc.) as lex lata. In the Gabcikovo, the
> Court intentionally avoided taking stance on precautionary principle and
> affirmed the status of sustainable development as a goal - and at the same
> time endorsing the no-harm principle as part of the corpus of international
> law. One can hardly speak of the ICJ as an activitist court in the
> environmental field (see also the cautions treatment of the EIA as part of
> general international law by the ICJ in the Pulp Mills, not in terms of
> status but what it requires).
>
>
>
> I do recognize that there are problems in the way scholars of international
> law use CIL, many times reading their and their sub-discipline's own values
> into the law. Yet, I tend to think that we are already wittnessing a change
> in the way CIL is been studied, and that is exactly because of the vast and
> rapid change in international relations after the end of the Cold War. Yet,
> since the doctrine of CIL is so well grounded in international diplomacy and
> as part of the "law of the land" of so many countries, my prediction is that
> we will have to live with this uneasy co-existence of a) speaking through
> words like customary law (practise + opinio juris) b) and basing our
> argument on treaties, soft-law instruments etc. (namely, on verbal
> commitments). That is why we have started to redefine the "practise" part of
> our customary law criteria more as including verbal action.
>
>
>
> It seems increasingly absurd to say that states are not bound by certain
> principles of international law, and I think precautionary approach or
> principle qualifies to this category, if they become parties to treaties
> that include these principles (with the commitment in customary law of
> treaties that they also put these principles into real action) as they have
> on many occasions. More interesting thus becomes what is the content of e.g.
> the precautionary approach or principle.
>
>
>
> Very best, Timo
>
>
>
>
>
>
>
> Timo Koivurova, LL.D.
> Research professor, director
> Northern Institute for Environmental and Minority Law
> Arctic Centre
> University of Lapland
>
>
>
>
>  ------------------------------
>
> *From:* Fernando Teson [mailto:fteson at law.fsu.edu]
> *Sent:* 10. marraskuuta 2010 16:10
> *To:* Don Anton
>
>
> *Cc:* intlawprofessors at mailman.anu.edu.au
> *Subject:* Re: [IntLawProfessors] FW: Okla state question 755 update
>
>
>
> Dear Don and all,
> I appreciate the reactions to my comments; they are quite helpful. However,
> I'm still skeptical. What does it mean to say that "it is too difficult to
> marshall everything required", or that custom's rule of recognition "no
> longer works"? It seem to me that this is simply admitting to the problem:
> from now on we will try to guess what the best rules are is, imposing them
> on everyone (states, corporations, and individuals), simply because it is
> too hard to roll up our sleeves and determine as objectively as we can the
> existence of the rule --in short, out of laziness. Moreover, I don't believe
> finding custom is that hard  --witness the masterful work by Henckaerts and
> Doswald-Beck on customary humanitarian law. There are additional serious
> problems with this guesswork: as John McGinnis recently showed in the Yale
> Law Journal, this way of thinking about internaitonal law means that the
> agency costs for the dissenting states are huge, not to mention the
> democratic deficit.
>
> Environmental law is an area where this fraud is rampant. Take the
> precautionary principle. Perhaps 10 or 15 states have adopted it in their
> domestic legislation (I don't know). Does that mean that now this is a rule
> of customary law, binding on every state? Think about it: this means that
> those 10 or 15 states legislate for the rest of the world. Because
> environmental activists *like* the principle, they will try to argue
> precisely this, that it is now part and parcel of international law. Yet no
> political theory worth its name would accept this as a legitimate
> law-making.  One last point: I'm not arguing for a positivist rule of
> recognition; in fact, I'm a natural-law kind of guy. Rather, I argue for
> transparency. If someone asserts the validity of a rule *ex aequo et bono*,
> then say so. Don't try to pass it at custom.
>
> Cheers,
> Fernando
>
> On Wed, Nov 10, 2010 at 12:21 AM, Don Anton <antond at law.anu.edu.au> wrote:
>
> Dear Fernando (if I may),
>
> I think you may be a little harsh here :)  I don't believe anyone is
> advocating that anything goes -- I certainly do not, either on the part of
> so-call norm entrepreneurs, other international lawyers, courts, or states
> -- and I seriously doubt that most international lawyers, court and others
> analyzing purported customary norms are trying to pull the wool, so to
> speak.  Dan Bodansky points out that even Robert Jennings, the former ICJ
> President, explicitly recognized the problem you highlight: "most of what we
> perversely persist in calling customary international law is not only not
> customary international law: it does not even faintly resemble a customary
> law."  See Bodansky in the Art and Craft of International Environmental Law
> (2010), at199, updating his earlier article on "Customary (and Not So
> Customary) International Law".
>
> The problem, as I see it though, is that what was once a reliable
> touchstone for recognizing custom is no longer functional in a world of 192+
> states simply because it is too difficult to marshal everything required;
> and if that were possible, it would be too time consuming.  Indeed, to use
> Bodansky again, he quotes Zamora rightly pointing out that only an ILC "in
> permanent session with armies of researchers could gather and sift through
> all the relevant evidence, in a manner acceptable to social scientists, the
> existence of a rule of customary international law". 32 Germ. YB. I.L. 9, 38
> (1989).
>
> I do not think fraud is indicated, so much as that we are in a phase of
> struggle, trying to find a new "rule of recognition" for custom to replace
> one that no longer works.  I have seen a number of worthy proposals, but as
> yet, none have gained enough traction or acceptance to replace our
> traditional practice/opinio test.
>
> Kind regards,
> Don -- signing off to cloister myself marking.
>
>
> >>> Fernando Teson <fteson at law.fsu.edu> 11/10/10 3:26 PM >>>
>
> So, anything goes then. The ICJ is a major perpetrator of this fraud:
> saying
> that a rule is custom with no proof. This is a main reason why we get
> things
> like the Oklahoma amendment. Lay people (and other lawyers) don't trust us,
> international lawyers, and our grandiose claims about what is law and what
> isn't. It is sad, after all these years, to realize that much of what we do
> is fraudulent.
>
> On Tue, Nov 9, 2010 at 11:18 PM, Don Anton <antond at law.anu.edu.au> wrote:
>
> > Greetings colleagues,
> >
> > What a great discussion to wake up to this morning.  I look forward to
> > jumping in once I finish end of semester marking (way too much to
> complete
> > in far too little time).  My basic position, like many others, is that it
> is
> > no longer realistic to use the classic positivist approach as a "rule of
> > recognition" for custom.  Even the ICJ no longer engages -- if it ever
> did
> > -- in an in-depth, wide-ranging empirical demonstration of custom (see
> the
> > recent Pulp Mills judgement declaring the customary nature of EIA in a
> > transboundary context).  Of course, the much more difficult question to
> > answer is what an acceptable substitute to the positivist test of
> practice
> > and opinio ought to comprise.
> >
> > In the meantime, if you have not seen it already, here is a link to the
> TRO
> > issued by the the U.S. Federal District Court in Oklahoma enjoining the
> > entry into force of the of the ballot measure prohibiting the use
> > international law and Shariah law in OK courts.
> > http://www.politico.com/static/PPM152_101109_shariah_tro.html  (focuses
> on
> > the religious/discrimination aspect, rather than Supremacy clause).
> >
> > The text of 755, as provided by the Oklahoma Secretary of State, reads:
> > https://www.sos.ok.gov/gov/proposed_questions.aspx
> >
> > State Question No.:  755    Legislative Referendum No. 355
> > RESOLUTION OR BILL NUMBER: HJR1056
> > CITATION: Amends Const. Article 7, Section 1
> > SUBJECT: Courts to rely on federal and state laws when deciding cases
> > forbidding courts from looking at international law or Sharia Law.
> >
> > BALLOT TITLE:
> > This measure amends the State Constitution. It changes a section that
> deals
> > with the courts of this state. It would amend Article 7, Section 1. It
> makes
> > courts rely on federal and state law when deciding cases. It forbids
> courts
> > from considering or using international law. It forbids courts from
> > considering or using Sharia Law.
> >
> > International law is also known as the law of nations. It deals with the
> > conduct of international organizations and independent nations, such as
> > countries, states and tribes. It deals with their relationship with each
> > other. It also deals with some of their relationships with persons.
> >
> > The law of nations is formed by the general assent of civilized nations.
> > Sources of international law also include international agreements, as
> well
> > as treaties.
> >
> > Sharia Law is Islamic law. It is based on two principal sources, the
> Koran
> > and the teaching of Mohammed.
> >
> > SHALL THE PROPOSAL BE APPROVED?
> > FOR THE PROPOSAL
> > Yes:  __________
> > AGAINST THE PROPOSAL
> > No:  __________
> >
> > Kind regards,
> > Don
> >
> > >>> Mary Durfee <mhdurfee at mtu.edu> 11/10/10 4:05 AM >>>
> > Agree there is precious little practice in environment.  I'm in IR and
> not
> > competent enough in international law to know enough about custom,
> regional
> > or otherwise.
> >
> > I did have a grad student a while ago (an Israeli lawyer) look at the
> > status of the precautionary principle in international law.  She
> suggested
> > that in some regions it was being translated back into domestic law.  On
> the
> > whole, however, it's just an aim.  I've been meaning to look at the
> actual
> > content of the dissents in the Slovakia/Hungary dam case, which I didn't
> > have her do.
> >
> > A former undergrad of mine, Matt Hoffmann, now chair of political science
> > at U Toronto Scarborough will have a new book out from Oxford next
> summer.
> >  He realized that the environmental rules of the 50 US states would be a
> > natural experiment. Some of those actual behaviors by the individual US
> > states were driven by international agreements (example: Kyoto protocol)
> I
> > really don't know much more than that about the book,but it may be mighty
> > thought-provoking when it comes out.
> >
> > Mary Durfee, Ph.D.
> > Associate Professor of Government
> > Social Sciences Dept.
> > Michigan Technological University
> > Houghton, MI 49931
> > Work: 906-487-2112
> > Cell: 906-369-2112
> >
> >
> > ----- Original Message -----
> > From: "Ian S WGCMD AUS Henderson" <henderis.aus at centcom.mil>
> > To: intlawprofessors at mailman.anu.edu.au
> > Sent: Tuesday, November 9, 2010 10:09:02 AM GMT -05:00 US/Canada Eastern
> > Subject: Re: [IntLawProfessors] FW: Okla state question 755 update
> >
> >
> > Not to detract or disagree with the underlying sentiment, but a small
> > point: for a practice to be customary international law, there need not
> be ‘
> > universal agreement’.
> >
> > Ian Henderson
> >
> > From: intlawprofessors-bounces at mailman.anu.edu.au [mailto:
> > intlawprofessors-bounces at mailman.anu.edu.au] On Behalf Of Fernando Teson
> > Sent: Tuesday, November 09, 2010 10:05 AM
> > To: Carl Bruch
> > Cc: intlawprofessors at mailman.anu.edu.au
> > Subject: Re: [IntLawProfessors] FW: Okla state question 755 update
> >
> >
> >
> > Precisely my point.
> >
> >
> > On Tue, Nov 9, 2010 at 10:01 AM, Carl Bruch < bruch at eli.org > wrote:
> >
> >
> > Out of curiosity, what examples of customary international environmental
> > law would you say are "properly supported by state practice and universal
> > agreement"? This is an issue that I have been following for a while, and
> I
> > have found very few examples of state-by-state analysis to show state
> > practice. It would be great to know where this has been done.
> >
> >
> > ****************************************
> >
> > Carl Bruch
> >
> > Senior Attorney
> >
> > Co-Director, International Programs
> >
> > Environmental Law Institute
> >
> > 2000 L Street NW, Suite 620
> >
> > Washington, DC 20036
> >
> > Tel: (202) 939-3879
> >
> > Fax: (202) 939-3868
> >
> > ****************************************
> >
> >
> > From: intlawprofessors-bounces at mailman.anu.edu.au [mailto:
> > intlawprofessors-bounces at mailman.anu.edu.au ] On Behalf Of Fernando
> Teson
> > Sent: Tuesday, November 09, 2010 9:46 AM
> > To: Mary Durfee
> >
> >
> > Cc: intlawprofessors at mailman.anu.edu.au
> >
> >
> > Subject: Re: [IntLawProfessors] FW: Okla state question 755 update
> >
> >
> > Sure, there is a lot of customary law that is legitimate, properly
> > supported by state practice and universal agreement. But unfortunately
> > there's a lot of "fake custom" generated by academics and norm
> entrepreneurs
> > who exploit the relative indeterminacy of the concept of custom in order
> to
> > present their own desiderata as if they were genuine, binding norms.
> >
> >
> > On Tue, Nov 9, 2010 at 9:30 AM, Mary Durfee < mhdurfee at mtu.edu > wrote:
> >
> > Perhaps scholarship and some opinions have gone in that direction, but
> not
> > the actual operations in US State and in other departments. For example,
> > there's a new semi-journalistic account, the Least Worst Place on the
> > efforts in State and in the US Marine Corps to make Guantanamo legal
> under
> > the Geneva Conventions. There were actively overruled, but there was
> little
> > doubt in their minds on what the rules were.
> >
> > There is a brand of IR scholarship that I find really interesting, the
> way
> > different courts, municipal and otherwise, use human rights law to give
> more
> > effect to it. Kathryn Sikkink at Minnesota has done work in this area and
> > there seems to be a lot of work going on among Ph.D. students at
> Virginia.
> >
> > Mary Durfee, Ph.D.
> > Associate Professor of Government
> > Social Sciences Dept.
> > Michigan Technological University
> > Houghton, MI 49931
> > Work: 906-487-2112
> > Cell: 906-369-2112
> >
> >
> > ----- Original Message -----
> > From: "prabhakarsingh adv" < prabhakarsingh.adv at gmail.com >
> > To: "William Slomanson" < bills at tjsl.edu >,
> > intlawprofessors-bounces at mailman.anu.edu.au , "Fernando Teson" <
> > fteson at law.fsu.edu >
> > Cc: intlawprofessors at mailman.anu.edu.au
> >
> >
> > Sent: Monday, November 8, 2010 7:35:07 PM GMT -05:00 US/Canada Eastern
> > Subject: Re: [IntLawProfessors] FW: Okla state question 755 update
> >
> >
> > Dear Profs.
> > This is very educative for an Indian law teacher. I have been thinking
> how
> > the "third world sees constitutionalism in international law?" With
> > Posnerian view, American scholarship has moved further away to the idea
> that
> > international relations is the determining factor and int'l is almost
> > obsolete.
> > Best,
> > Prabhakar
> > Sent on my BlackBerry® from Vodafone
> >
> >
> > -----Original Message-----
> > From: William Slomanson < bills at tjsl.edu >
> > Sender: intlawprofessors-bounces at mailman.anu.edu.au
> > Date: Tue, 9 Nov 2010 00:17:54
> > To: Fernando Teson< fteson at law.fsu.edu >
> >
> >
> > Cc: intlawprofessors at mailman.anu.edu.au <
> > intlawprofessors at mailman.anu.edu.au >
> > Subject: Re: [IntLawProfessors] FW: Okla state question 755 update
> >
> >
> > --
> > Fernando R. Tesón
> > Tobias Simon Eminent Scholar and Professor of Law
> > Florida State University College of Law
> > 425 West Jefferson
> > Tallahassee, FL 32306-1601
> > 850-644-4287
> > fteson at law.fsu.edu
> >
> >
> >
> >
> > --
> > Fernando R. Tesón
> > Tobias Simon Eminent Scholar and Professor of Law
> > Florida State University College of Law
> > 425 West Jefferson
> > Tallahassee, FL 32306-1601
> > 850-644-4287
> > fteson at law.fsu.edu
> > I
> >
> > Intlawprofessors is moderated by Don Anton and hosted by the Australian
> > National University College of Law
> >
>



-- 
Fernando R. Tesón
Tobias Simon Eminent Scholar and Professor of Law
Florida State University College of Law
425 West Jefferson
Tallahassee, FL 32306-1601
850-644-4287
fteson at law.fsu.edu
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