[IntLawProfessors] FW: Okla state question 755 update

Tue Nov 16 02:16:48 EST 2010

Dear Professor Tesón,

Just so I am not confused, am I right in thinking that you are not suggesting that 'substantive arguments' are grounds for establishing a rule of customary international law? Rather, substantive arguments are reasons for a negotiating a treaty.

Ian Henderson

From: intlawprofessors-bounces at mailman.anu.edu.au [mailto:intlawprofessors-bounces at mailman.anu.edu.au] On Behalf Of Fernando Teson
Sent: Monday, November 15, 2010 9:47 AM
To: Koivurova Timo
Cc: intlawprofessors at mailman.anu.edu.au
Subject: Re: [IntLawProfessors] FW: Okla state question 755 update

Dear Timo:

Thank you for your thoughtful comment. I simply ask you to consider for one moment the consequences of this "verbal action" test. The world consists of five states. States A,B,C, and D covet the resources of state E, who, because of better economic policies and institutions, has achieved enviable prosperity, while A-D had engaged in demagogic wasteful policies that resulted in political and economic degradation. A-D then start a verbal "practice", promoting a rule that mandates massive transfer of resources from E to them.  No one in his sane mind would say that such "rule," whose pedigree is nothing more than having been parroted repeatedly by A-D, is binding on E. In other words: verbal "practice" can be a ruse to exploit states harmed by the asserted "rule."

If you don't like fancy examples, here's a real, disquieting one: the Organization of Islamic Conference, who has almost 60 members, is aggressively promoting the "rule" that states ought to ban blasphemy (or "defamation of religions"). Any human rights lawyer worth her salt must resist this monstrosity, yet these states are engaging in the "verbal practice" that you support. All they need to succeed is to enlist more tyrants.

Rules should be defended with two kinds of arguments: pedigree arguments (the rule is supported by custom), or substantive arguments (the rule is fair, just, or efficient, solves a public-goods problem, etc). What activists and norm entrepreneurs do is to fraudulently use a pedigree argument instead of honestly using a substantive argument. 

Cheers,
F 

On Mon, Nov 15, 2010 at 7:35 AM, Koivurova Timo <timo.koivurova at ulapland.fi> wrote:

Dear Fernando and Don et al.

Sorry to "wake up" for this interesting discussion at so late in time (enjoyed a week's vacation:)

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).

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). 

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. 

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. 

Very best, Timo

Timo Koivurova, LL.D.
Research professor, director
Northern Institute for Environmental and Minority Law
Arctic Centre
University of Lapland

________________________________

From: Fernando Teson [mailto:fteson at law.fsu.edu] 
Sent: 10. marraskuuta 2010 16:10
To: Don Anton

Cc: intlawprofessors at mailman.anu.edu.au
Subject: Re: [IntLawProfessors] FW: Okla state question 755 update

Dear Don and all,
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. 

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 like 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 ex aequo et bono, then say so. Don't try to pass it at custom.

Cheers,
Fernando

On Wed, Nov 10, 2010 at 12:21 AM, Don Anton <antond at law.anu.edu.au> wrote:

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
>

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