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.<br>
<br><div class="gmail_quote">On Tue, Nov 9, 2010 at 11:18 PM, Don Anton <span dir="ltr"><<a href="mailto:antond@law.anu.edu.au">antond@law.anu.edu.au</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin: 0pt 0pt 0pt 0.8ex; border-left: 1px solid rgb(204, 204, 204); padding-left: 1ex;">
Greetings colleagues,<br>
<br>
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.<br>
<br>
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. <a href="http://www.politico.com/static/PPM152_101109_shariah_tro.html" target="_blank">http://www.politico.com/static/PPM152_101109_shariah_tro.html</a> (focuses on the religious/discrimination aspect, rather than Supremacy clause).<br>
<br>
The text of 755, as provided by the Oklahoma Secretary of State, reads:<br>
<a href="https://www.sos.ok.gov/gov/proposed_questions.aspx" target="_blank">https://www.sos.ok.gov/gov/proposed_questions.aspx</a><br>
<br>
State Question No.: 755 Legislative Referendum No. 355<br>
RESOLUTION OR BILL NUMBER: HJR1056<br>
CITATION: Amends Const. Article 7, Section 1<br>
SUBJECT: Courts to rely on federal and state laws when deciding cases forbidding courts from looking at international law or Sharia Law.<br>
<br>
BALLOT TITLE:<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.<br>
<br>
SHALL THE PROPOSAL BE APPROVED?<br>
FOR THE PROPOSAL<br>
Yes: __________<br>
AGAINST THE PROPOSAL<br>
No: __________<br>
<br>
Kind regards,<br>
Don<br>
<br>
>>> Mary Durfee <<a href="mailto:mhdurfee@mtu.edu">mhdurfee@mtu.edu</a>> 11/10/10 4:05 AM >>><br>
<div><div></div><div class="h5">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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Mary Durfee, Ph.D.<br>
Associate Professor of Government<br>
Social Sciences Dept.<br>
Michigan Technological University<br>
Houghton, MI 49931<br>
Work: 906-487-2112<br>
Cell: 906-369-2112<br>
<br>
<br>
----- Original Message -----<br>
From: "Ian S WGCMD AUS Henderson" <<a href="mailto:henderis.aus@centcom.mil">henderis.aus@centcom.mil</a>><br>
To: <a href="mailto:intlawprofessors@mailman.anu.edu.au">intlawprofessors@mailman.anu.edu.au</a><br>
Sent: Tuesday, November 9, 2010 10:09:02 AM GMT -05:00 US/Canada Eastern<br>
Subject: Re: [IntLawProfessors] FW: Okla state question 755 update<br>
<br>
<br>
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’.<br>
<br>
Ian Henderson<br>
<br>
From: <a href="mailto:intlawprofessors-bounces@mailman.anu.edu.au">intlawprofessors-bounces@mailman.anu.edu.au</a> [mailto:<a href="mailto:intlawprofessors-bounces@mailman.anu.edu.au">intlawprofessors-bounces@mailman.anu.edu.au</a>] On Behalf Of Fernando Teson<br>
Sent: Tuesday, November 09, 2010 10:05 AM<br>
To: Carl Bruch<br>
Cc: <a href="mailto:intlawprofessors@mailman.anu.edu.au">intlawprofessors@mailman.anu.edu.au</a><br>
Subject: Re: [IntLawProfessors] FW: Okla state question 755 update<br>
<br>
<br>
<br>
Precisely my point.<br>
<br>
<br>
On Tue, Nov 9, 2010 at 10:01 AM, Carl Bruch < <a href="mailto:bruch@eli.org">bruch@eli.org</a> > wrote:<br>
<br>
<br>
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.<br>
<br>
<br>
****************************************<br>
<br>
Carl Bruch<br>
<br>
Senior Attorney<br>
<br>
Co-Director, International Programs<br>
<br>
Environmental Law Institute<br>
<br>
2000 L Street NW, Suite 620<br>
<br>
Washington, DC 20036<br>
<br>
Tel: (202) 939-3879<br>
<br>
Fax: (202) 939-3868<br>
<br>
****************************************<br>
<br>
<br>
From: <a href="mailto:intlawprofessors-bounces@mailman.anu.edu.au">intlawprofessors-bounces@mailman.anu.edu.au</a> [mailto: <a href="mailto:intlawprofessors-bounces@mailman.anu.edu.au">intlawprofessors-bounces@mailman.anu.edu.au</a> ] On Behalf Of Fernando Teson<br>
Sent: Tuesday, November 09, 2010 9:46 AM<br>
To: Mary Durfee<br>
<br>
<br>
Cc: <a href="mailto:intlawprofessors@mailman.anu.edu.au">intlawprofessors@mailman.anu.edu.au</a><br>
<br>
<br>
Subject: Re: [IntLawProfessors] FW: Okla state question 755 update<br>
<br>
<br>
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.<br>
<br>
<br>
On Tue, Nov 9, 2010 at 9:30 AM, Mary Durfee < <a href="mailto:mhdurfee@mtu.edu">mhdurfee@mtu.edu</a> > wrote:<br>
<br>
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.<br>
<br>
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.<br>
<br>
Mary Durfee, Ph.D.<br>
Associate Professor of Government<br>
Social Sciences Dept.<br>
Michigan Technological University<br>
Houghton, MI 49931<br>
Work: 906-487-2112<br>
Cell: 906-369-2112<br>
<br>
<br>
----- Original Message -----<br>
From: "prabhakarsingh adv" < <a href="mailto:prabhakarsingh.adv@gmail.com">prabhakarsingh.adv@gmail.com</a> ><br>
To: "William Slomanson" < <a href="mailto:bills@tjsl.edu">bills@tjsl.edu</a> >, <a href="mailto:intlawprofessors-bounces@mailman.anu.edu.au">intlawprofessors-bounces@mailman.anu.edu.au</a> , "Fernando Teson" < <a href="mailto:fteson@law.fsu.edu">fteson@law.fsu.edu</a> ><br>
Cc: <a href="mailto:intlawprofessors@mailman.anu.edu.au">intlawprofessors@mailman.anu.edu.au</a><br>
<br>
<br>
Sent: Monday, November 8, 2010 7:35:07 PM GMT -05:00 US/Canada Eastern<br>
Subject: Re: [IntLawProfessors] FW: Okla state question 755 update<br>
<br>
<br>
Dear Profs.<br>
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.<br>
Best,<br>
Prabhakar<br>
Sent on my BlackBerry® from Vodafone<br>
<br>
<br>
-----Original Message-----<br>
From: William Slomanson < <a href="mailto:bills@tjsl.edu">bills@tjsl.edu</a> ><br>
Sender: <a href="mailto:intlawprofessors-bounces@mailman.anu.edu.au">intlawprofessors-bounces@mailman.anu.edu.au</a><br>
Date: Tue, 9 Nov 2010 00:17:54<br>
To: Fernando Teson< <a href="mailto:fteson@law.fsu.edu">fteson@law.fsu.edu</a> ><br>
<br>
<br>
Cc: <a href="mailto:intlawprofessors@mailman.anu.edu.au">intlawprofessors@mailman.anu.edu.au</a> < <a href="mailto:intlawprofessors@mailman.anu.edu.au">intlawprofessors@mailman.anu.edu.au</a> ><br>
Subject: Re: [IntLawProfessors] FW: Okla state question 755 update<br>
<br>
<br>
</div></div><div class="im">--<br>
Fernando R. Tesón<br>
Tobias Simon Eminent Scholar and Professor of Law<br>
Florida State University College of Law<br>
425 West Jefferson<br>
Tallahassee, FL 32306-1601<br>
850-644-4287<br>
<a href="mailto:fteson@law.fsu.edu">fteson@law.fsu.edu</a><br>
<br>
<br>
<br>
<br>
--<br>
Fernando R. Tesón<br>
Tobias Simon Eminent Scholar and Professor of Law<br>
Florida State University College of Law<br>
425 West Jefferson<br>
Tallahassee, FL 32306-1601<br>
850-644-4287<br>
<a href="mailto:fteson@law.fsu.edu">fteson@law.fsu.edu</a><br>
I<br>
<br>
</div><div><div></div><div class="h5">Intlawprofessors is moderated by Don Anton and hosted by the Australian National University College of Law<br>
</div></div></blockquote></div><br><br clear="all"><br>-- <br>Fernando R. Tesón<br>Tobias Simon Eminent Scholar and Professor of Law<br>Florida State University College of Law<br>425 West Jefferson<br>Tallahassee, FL 32306-1601<br>
850-644-4287<br><a href="mailto:fteson@law.fsu.edu">fteson@law.fsu.edu</a><br><br>