International Law Banned in Oklahoma State Courts

by Roger Alford

Yesterday voters in Oklahoma voted overwhelmingly (70% in favor to 30% against) to ban the use of international law and Sharia law in state courts. It appears that the referendum will be headed to the courts for review, for as my colleague Michael Helfand has noted, the ban on Sharia law may well be unconstitutional under the First Amendment.

The full text of the referendum reads as follows:

“The Courts . . . 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.

How much of an impact will this referendum have? Hard to say. I can think of six scenarios. First, state courts will be prohibited from relying on international or Sharia law as a tool to develop the common law or to interpret Oklahoma statutes or the Oklahoma or federal constitutions. Second, governing law clauses in contracts that rely on international law or Sharia law will not be enforceable. Third, the provision prohibiting state courts from addressing “legal precepts of other nations or cultures” may preclude courts from enforcing foreign choice of law provisions. Fourth, the enforcement of foreign judgments that rely on foreign law as the rule of decision may also run afoul of the prohibition on looking to the “legal precepts of other nations or cultures.” Fifth, the enforcement of foreign arbitral awards that rely on international, Sharia, or foreign law may also now be suspect in Oklahoma state courts, although such a state law provision would be preempted under the FAA and the New York Convention, which must be applied in state courts under Southland. Sixth, as Julian Ku has noted earlier, foreign investors will now be wary of consenting to jurisdiction in Oklahoma state courts.

The backlash against Lawrence v. Texas, Roper v. Simmons, and Graham v. Florida continues. Or perhaps this referendum is more about animus against Islam and international and foreign law are collateral damage.

http://opiniojuris.org/2010/11/03/international-law-banned-in-oklahoma-state-courts/

18 Responses

  1. Or state courts may declare themselves to be forum non conveniens and refuse jurisdiction over matters in which foreign law is a material issue.

  2. Representative Rex Duncan, the author of the ballot measure, talks about the referendum here.  It certainly appears to be focused on Sharia law, not international law.  Significantly, Duncan predicts similar ballot measures or legislation in other states.

    Roger Alford

  3. Response…
    It is necessarily unconstitutional in view of the express and unavoidable mandate of the United States Constitution (Art. VI, cl. 2) that “all” treaties of the U.S. and the “laws of the United States” (which include customary international law as laws of the United States — see, e.g., http://ssrn.com/abstract=1485703 ) “shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Conrary notwithstanding”!

  4. I am certainly no expert in american law, seeing as I am studying law in Norway. However, under the assumption that this referendum did indeed “ban” international law in Oklahoma State Courts, how would this work in relation to the supremacy clause of the US Constitution?

    As far as I know, from my basic understanding of the US legal system, Public International Law is the “supreme law of the land”. Wouldn’t this mean that International Law has a higher rank than the Oklahoma State Constitution? And thus a provision banning international law in state courts would have no effect?

  5. Stian,

    Good question.  To the extent international law is incorporated into federal law through either a self-executing treaty or implementing legislation, it would be preempted under the Supremacy Clause.  But customary international law and non-self-executing treaties (without implementing legislation) would not be supreme over Oklahoma law.  

    The biggest question is foreign law, which comes up in the commercial context frequently.  If courts are prohibited from looking to the legal precepts of other nations, does this include enforcement of contracts with foreign law clauses or foreign judgments or foreign arbitral awards?  What do we do with Oklahoma conflicts of law principles now?  Foreign tort cases brought in Oklahoma state courts must now apply Oklahoma law?   Are marriages performed in Saudi Arabia (a Sharia law country) now recognized in Oklahoma? 

    Also unclear is what federal courts are supposed to do in diversity cases.  Under Erie, state law would governs cases in federal courts sitting in diversity, and though the referendum is directed at state courts, it is making a clear statement of state public policy.  Must federal courts give cognizance of this state public policy in resolving diversity disputes? 

    Obviously there are many questions that remain unanswered.  Does Jewish Halaka or Christian canon law constitute “legal precepts of other nations or cultures?”  And what about historical Anglo-American materials?  Oklahoma state courts have cited Blackstone’s Commentaries on the Laws of England over two hundred times.  Can they continue to do so? 

    Roger Alford

  6. What about a foreign investor under NAFTA into Oklahoma.  Do we see a NAFTA investor state arbitration by a Canadian or Mexican investor agains the US arising from a failure of the Oklahoma courts to apply the choice of law provision specifying a foreign law on an international commercial contract?
    Best,
    Ben

  7. Response…
    Roger would like to rewrite the U.S. Constitution, but he can’t and our friend from Norway is correct — as the Constitution reads” “all” treaties [not some of them, the ones we like, or only “self-executing” treaties] are supreme law of the land.  CIL is picked up in the phrase “law of the United States” — as far as we know, uniform views of the Founders and Framers, overwhelming trends in federal and state judicial opinions, etc.  See the click-on in my prior message or our casebook, Paust, Van Dyke, Malone, International Law as Law of the United States 579-581 (3 ed. 2009) re: customary int’l law.

  8. Jordan,

    Please cite for me a case in which customary international law has been interpreted to preempt state law.  I can provide you with dozens of death penalty cases where the defendant relies on customary international law and they never go anywhere.

    Roger Alford

  9. Response…
    sure, there are several federal (including Supreme Court) and state court cases in our casebook and in my Davis Journal article that is a click-on in my comment here that I see is still “awaiting moderation”
    The article is at http://ssrn.com/abstract=1485703

  10. Jordan,

    We are chasing a rabbit, but your article is an historical piece that focuses on 18th and 19th-century cases that in any event do not appear to be preemption cases.  Do you have a single 20th- or 21st-century post-Erie case holding that customary international law preempts state law?  And how do you reconcile your position with the cornucopia of modern judicial authority that does not give CIL or non-self-executing treaties the preemptive effect you claim it has in the United States?   

    Roger Alford

  11. Ironically, I think the Univ. of Oklahoma College of Law is interviewing for a faculty member to teach international law.  Perhaps they should reconsider….

  12. Response to Prof. Alford… The general maritime law (which includes customary international law and the voluntary law of nations) trumps state law. See Just v. Chambers, 312 U.S. 383, 388 (1941). Furthermore, under the Reverse Erie Doctrine, state courts must apply the general maritime law notwithstanding contrary state law. Offshore Logistics v. Tallentire, 477 U.S. 207 (U.S. 1986).

    As for the non-self-execution doctrine for treaties, Jordan generally is correct — notwithstanding all the poorly reasoned judicial decisions to the contrary.  The U.S. constitutional system is non-dualist.  The concepts of Dualism and Parliamentary Supremacy were rejected by the Framers and the Supremacy Clause.

  13. Response…
    Roger: Is Marbury v. Madison not good law because, although it has never been overruled, it is an old case?
    How about Skiriotes v. Florida, 313 U.s. 69, 72-73 (1941)?  And why is Eire relevant with respect to customary international law, which is not mere “common law” and when the case had nothing to do with international law, treaty-based or CIL?

  14. This out of the Tulsa World today:

    Lawsuit expected Thursday challenging Shariah law vote

    By BARBARA HOBEROCK World Capitol Bureau
    Published: 11/3/2010  10:26 PM
    Last Modified: 11/3/2010  10:26 PM

    OKLAHOMA CITY — A lawsuit is expected to be filed Thursday challenging the legality of a state question that bans the use of Shariah law in state court cases.
    Voters on Tuesday approved State Question 755 with slightly more than 70 percent support. It was among 11 state questions on the general election ballot.

    SQ 755 forbids state courts from considering international law or Shariah law when deciding cases.

    Shariah law is Islamic law. It is based on the Quran and the teachings of Mohammed.

    Muneer Awad, executive director of the Oklahoma Chapter of the Council on American-Islamic Relations, said a member of the Muslim community in Oklahoma City is expected to file suit on Thursday in U.S. District Court for the Western District of Oklahoma.

    Awad said SQ 755 violates the First Amendment to the U.S. Constitution, adding that it targets a particular religion.

    “Disfavoring Islam, or any religion, is a violation of the First Amendment,” Awad said. “Second, it renders all international treaties invalid in our courts.”

    He called the state question ridiculous because Shariah law is not used in Oklahoma courts.

    Awad said his organization and other groups will hold a press conference Thursday in the Capitol to discuss the lawsuit. He said the person filing the suit did not want to be identified Wednesday.

    Rep. Rex Duncan, R-Sand Springs, sponsored the legislation putting SQ 755 on the ballot. He could not be reached for comment Wednesday.

    Read more from this Tulsa World article at http://www.tulsaworld.com/news/article.aspx?subjectid=16&articleid=20101103_11_0_OKLAHO162048

  15. I do hope that someone in your state keeps track of what it ends up costing the taxpayers to defend this poorly-worded piece of feel-good, xenophobic legislation that cures no present ill nor prevents any future danger.  Sharia is not all about headscarves and offenses punishable by stoning to death, and no sane court in America would ever apply any Sharia principle that conflicted with domestic law.  I’m afraid the voters of Oklahoma have just made themselves look ignorant.  What’s next?  A constitutional amendment requiring a return to Roman numerals because we got our modern numbering system from the Arabs?

    And I can’t wait to see what happens the next time an Oklahoma jurist quotes a biblical passage in an opinion.  Clearly it violates the new amendment for an Oklahoma court to “consider” (and that means to think about) the law of a foreign culture, the ancient Hebrews.  Some atheist activist is going to have fun challenging that one.

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  1. […] * Oklahomans ill-advisedly voted to forbid their courts from considering international law, even in the relatively narrow and well-defined circumstances where it has been traditional for them to do so. More: Roger Alford, OJ. […]

  2. […] precepts of other nations or cultures” will not only complicate the work of judges, it might also deter international business from entering the state, as it creates uncertainty about the enforceability […]

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