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<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2>Dear Fernando and Don et al.</FONT></SPAN></DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2></FONT></SPAN> </DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2>Sorry to "wake up" for this interesting discussion at so
late in time (enjoyed a week's vacation:)</FONT></SPAN></DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2></FONT></SPAN> </DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2>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).</FONT></SPAN></DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2></FONT></SPAN> </DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2>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).
</FONT></SPAN></DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2></FONT></SPAN> </DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2>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. </FONT></SPAN></DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2></FONT></SPAN> </DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2>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. </FONT></SPAN></DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2></FONT></SPAN> </DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2>Very best, Timo</FONT></SPAN></DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2></FONT></SPAN> </DIV>
<DIV dir=ltr align=left><SPAN class=235191411-15112010><FONT face=Arial
color=#0000ff size=2> </FONT> </SPAN></DIV>
<DIV><FONT face=Arial color=#0000ff size=2></FONT> </DIV>
<DIV align=left>
<DIV><FONT face=Arial size=2>Timo Koivurova, LL.D.<BR>Research professor,
director<BR>Northern Institute for Environmental and Minority Law<BR>Arctic
Centre<BR>University of Lapland</FONT></DIV></DIV>
<DIV> </DIV><BR>
<DIV class=OutlookMessageHeader lang=en-us dir=ltr align=left>
<HR tabIndex=-1>
<FONT face=Tahoma size=2><B>From:</B> Fernando Teson [mailto:fteson@law.fsu.edu]
<BR><B>Sent:</B> 10. marraskuuta 2010 16:10<BR><B>To:</B> Don
Anton<BR><B>Cc:</B> intlawprofessors@mailman.anu.edu.au<BR><B>Subject:</B> Re:
[IntLawProfessors] FW: Okla state question 755 update<BR></FONT><BR></DIV>
<DIV></DIV>Dear Don and all,<BR>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. <BR><BR>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 <I>like</I> 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 <I>ex aequo et bono</I>, then say so. Don't try to pass it at
custom.<BR><BR>Cheers,<BR>Fernando<BR><BR>
<DIV class=gmail_quote>On Wed, Nov 10, 2010 at 12:21 AM, Don Anton <SPAN
dir=ltr><<A href="mailto:antond@law.anu.edu.au"
target=_blank>antond@law.anu.edu.au</A>></SPAN> wrote:<BR>
<BLOCKQUOTE class=gmail_quote
style="PADDING-LEFT: 1ex; MARGIN: 0pt 0pt 0pt 0.8ex; BORDER-LEFT: rgb(204,204,204) 1px solid">Dear
Fernando (if I may),<BR><BR>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".<BR><BR>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).<BR><BR>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.<BR><BR>Kind regards,<BR>Don -- signing off to cloister
myself marking.<BR><BR><BR>>>> Fernando Teson <<A
href="mailto:fteson@law.fsu.edu" target=_blank>fteson@law.fsu.edu</A>>
11/10/10 3:26 PM >>><BR>
<DIV>
<DIV></DIV>
<DIV>So, anything goes then. The ICJ is a major perpetrator of this fraud:
saying<BR>that a rule is custom with no proof. This is a main reason why we
get things<BR>like the Oklahoma amendment. Lay people (and other lawyers)
don't trust us,<BR>international lawyers, and our grandiose claims about what
is law and what<BR>isn't. It is sad, after all these years, to realize that
much of what we do<BR>is fraudulent.<BR><BR>On Tue, Nov 9, 2010 at 11:18 PM,
Don Anton <<A href="mailto:antond@law.anu.edu.au"
target=_blank>antond@law.anu.edu.au</A>> wrote:<BR><BR>> Greetings
colleagues,<BR>><BR>> What a great discussion to wake up to this
morning. I look forward to<BR>> jumping in once I finish end of
semester marking (way too much to complete<BR>> in far too little time).
My basic position, like many others, is that it is<BR>> no longer
realistic to use the classic positivist approach as a "rule of<BR>>
recognition" for custom. Even the ICJ no longer engages -- if it ever
did<BR>> -- in an in-depth, wide-ranging empirical demonstration of custom
(see the<BR>> recent Pulp Mills judgement declaring the customary nature of
EIA in a<BR>> transboundary context). Of course, the much more
difficult question to<BR>> answer is what an acceptable substitute to the
positivist test of practice<BR>> and opinio ought to
comprise.<BR>><BR>> In the meantime, if you have not seen it already,
here is a link to the TRO<BR>> issued by the the U.S. Federal District
Court in Oklahoma enjoining the<BR>> entry into force of the of the ballot
measure prohibiting the use<BR>> international law and Shariah law in OK
courts.<BR>> <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<BR>> 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<BR>> 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<BR>> with the
courts of this state. It would amend Article 7, Section 1. It makes<BR>>
courts rely on federal and state law when deciding cases. It forbids
courts<BR>> from considering or using international law. It forbids courts
from<BR>> considering or using Sharia Law.<BR>><BR>> International
law is also known as the law of nations. It deals with the<BR>> conduct of
international organizations and independent nations, such as<BR>>
countries, states and tribes. It deals with their relationship with
each<BR>> 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.<BR>> Sources of international law also include
international agreements, as well<BR>> as treaties.<BR>><BR>> Sharia
Law is Islamic law. It is based on two principal sources, the Koran<BR>>
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" target=_blank>mhdurfee@mtu.edu</A>> 11/10/10
4:05 AM >>><BR>> Agree there is precious little practice in
environment. I'm in IR and not<BR>> competent enough in international
law to know enough about custom, regional<BR>> or
otherwise.<BR>><BR>> I did have a grad student a while ago (an Israeli
lawyer) look at the<BR>> status of the precautionary principle in
international law. She suggested<BR>> that in some regions it was
being translated back into domestic law. On the<BR>> whole, however,
it's just an aim. I've been meaning to look at the actual<BR>>
content of the dissents in the Slovakia/Hungary dam case, which I
didn't<BR>> have her do.<BR>><BR>> A former undergrad of mine, Matt
Hoffmann, now chair of political science<BR>> at U Toronto Scarborough will
have a new book out from Oxford next summer.<BR>> He realized that
the environmental rules of the 50 US states would be a<BR>> natural
experiment. Some of those actual behaviors by the individual US<BR>> states
were driven by international agreements (example: Kyoto protocol) I<BR>>
really don't know much more than that about the book,but it may be
mighty<BR>> 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"
target=_blank>henderis.aus@centcom.mil</A>><BR>> To: <A
href="mailto:intlawprofessors@mailman.anu.edu.au"
target=_blank>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<BR>>
point: for a practice to be customary international law, there need not be
‘<BR>> universal agreement’.<BR>><BR>> Ian Henderson<BR>><BR>>
From: <A href="mailto:intlawprofessors-bounces@mailman.anu.edu.au"
target=_blank>intlawprofessors-bounces@mailman.anu.edu.au</A> [mailto:<BR>>
<A href="mailto:intlawprofessors-bounces@mailman.anu.edu.au"
target=_blank>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"
target=_blank>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" target=_blank>bruch@eli.org</A> >
wrote:<BR>><BR>><BR>> Out of curiosity, what examples of customary
international environmental<BR>> law would you say are "properly supported
by state practice and universal<BR>> agreement"? This is an issue that I
have been following for a while, and I<BR>> have found very few examples of
state-by-state analysis to show state<BR>> 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"
target=_blank>intlawprofessors-bounces@mailman.anu.edu.au</A> [mailto:<BR>>
<A href="mailto:intlawprofessors-bounces@mailman.anu.edu.au"
target=_blank>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"
target=_blank>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<BR>> supported by state practice and universal
agreement. But unfortunately<BR>> there's a lot of "fake custom" generated
by academics and norm entrepreneurs<BR>> who exploit the relative
indeterminacy of the concept of custom in order to<BR>> 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" target=_blank>mhdurfee@mtu.edu</A> >
wrote:<BR>><BR>> Perhaps scholarship and some opinions have gone in that
direction, but not<BR>> the actual operations in US State and in other
departments. For example,<BR>> there's a new semi-journalistic account, the
Least Worst Place on the<BR>> efforts in State and in the US Marine Corps
to make Guantanamo legal under<BR>> the Geneva Conventions. There were
actively overruled, but there was little<BR>> 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<BR>> different courts, municipal and otherwise,
use human rights law to give more<BR>> effect to it. Kathryn Sikkink at
Minnesota has done work in this area and<BR>> 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"
target=_blank>prabhakarsingh.adv@gmail.com</A> ><BR>> To: "William
Slomanson" < <A href="mailto:bills@tjsl.edu"
target=_blank>bills@tjsl.edu</A> >,<BR>> <A
href="mailto:intlawprofessors-bounces@mailman.anu.edu.au"
target=_blank>intlawprofessors-bounces@mailman.anu.edu.au</A> , "Fernando
Teson" <<BR>> <A href="mailto:fteson@law.fsu.edu"
target=_blank>fteson@law.fsu.edu</A> ><BR>> Cc: <A
href="mailto:intlawprofessors@mailman.anu.edu.au"
target=_blank>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<BR>> the "third world sees
constitutionalism in international law?" With<BR>> Posnerian view, American
scholarship has moved further away to the idea that<BR>> international
relations is the determining factor and int'l is almost<BR>>
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"
target=_blank>bills@tjsl.edu</A> ><BR>> Sender: <A
href="mailto:intlawprofessors-bounces@mailman.anu.edu.au"
target=_blank>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" target=_blank>fteson@law.fsu.edu</A>
><BR>><BR>><BR>> Cc: <A
href="mailto:intlawprofessors@mailman.anu.edu.au"
target=_blank>intlawprofessors@mailman.anu.edu.au</A> <<BR>> <A
href="mailto:intlawprofessors@mailman.anu.edu.au"
target=_blank>intlawprofessors@mailman.anu.edu.au</A> ><BR>> Subject:
Re: [IntLawProfessors] FW: Okla state question 755
update<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"
target=_blank>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"
target=_blank>fteson@law.fsu.edu</A><BR>> I<BR>><BR>>
Intlawprofessors is moderated by Don Anton and hosted by the
Australian<BR>> National University College of
Law<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"
target=_blank>fteson@law.fsu.edu</A><BR><BR><BR>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"
target=_blank>fteson@law.fsu.edu</A><BR><BR></BODY></HTML>