Friday, 5 November 2010

I'm Not Making this Up

In this week's elections in the United States, voters in Oklahoma adopted by a majority of 70% an amendment to the state constitution that prohibits judges from referring either to international law or to Shariah law. What have these people been smoking? Perhaps that's the real meaning of 'tea party'.
Here is the text of the amendment:

B. Subsection C of this section shall be known as the “Save Our State Amendment”.
C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.
They were asked to vote on the following question:
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: __________
 Thanks to Bill Hartzog.

1 comment:

Rita Jardim said...

On the issue of the Save Our State Amendment (the acronym SOS may be a “smoking sign” that the party has definitely run wild) there is an interesting article in the last newsletter of the American Society of International Law (available at
Writing before the adoption of SOS, David Caron believes “the primary legal consequence of the SOS amendment if adopted will be increased court costs, increased delay, and possibly undesirable outcomes. Given that federal law (and its instructions to judges to refer to international or foreign law) will have supremacy over inconsistent state law in many situations and given that even under Oklahoma law it will be arguable that a state court judge is not violating the SOS amendment – because he or she is in fact only applying federal or state law that instructs him or her to use foreign or international law – a primary consequence of the SOS amendment may simply be increased litigation and consequent costs and delay."

In illustrating the orientation of the U.S. Supreme Court, Caron cites Abbot v. Abbot in which, this past spring, six justices of the Court citing to a treaty and to court decisions of Canada, France, Australia, England, Germany, South Africa, Scotland, and Israel held that a minor was taken to Texas from Chile wrongfully under the Convention on International Child Abduction. The decision was written by Justice Kennedy, and, quite significantly, included Justices Alito, Roberts, and Scalia – three justices usually silent about foreign or international law.

I believe Caron is correct in attributing SOS to the general distrust by the American public of the use of international and foreign law by American courts. He concludes that a “very substantial project of engagement” with the public is required.

As the majority in Oklahoma proved, it seems that the “new era of engagement” with respect to international law and international institutions that President Obama talked about, is still far from reality.