[IntLawProfessors] FW: Okla state question 755 update

[Don Anton]

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