[IntLawProfessors] FW: Okla state question 755 update

[Matthew Zagor]

It is true that the ICJ has often been somewhat laconic in its reasoning
on custom. In its very first decision, it relied upon a
'well-recognized' principle without citation of precedent or authority.
In the Nicaragua case it made only 'perfunctory and conclusory
references to the practice of states' (to quote Meron). 

But does this mean it is perpetrating a fraud? Some principles are
treated as 'self-evident' (a not unfamiliar concept to the American lay
public). And for the most part its development of the law is
conservative, gradual and (in my opinion) supportable using traditional
tools and an evolutionary approach to the discipline. It perhaps begs
questions of persuasiveness, but not legitimacy. 

>>> Fernando Teson <fteson at law.fsu.edu> 10/11/2010 3:24 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