[IntLawProfessors] FW: Okla state question 755 update

[Don Anton]

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