So Wil, let's see if I understand your theory of custom:<br>Thesis #1: if states A,B,C, and D domestically enact norm N, then N is legally binding on country E?, or<br>Thesis #2: If countries A,B,C and D conclude a treaty that includes norm N, then N is legally binding on state E? or<br>
Thesis #3: If the courts of countries A,B, C, and D apply the norm N, then N is binding on state E?<br><br> <br><br><div class="gmail_quote">On Wed, Nov 10, 2010 at 3:02 PM, Wil Burns <span dir="ltr"><<a href="mailto:williamcgburns@comcast.net">williamcgburns@comcast.net</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin: 0pt 0pt 0pt 0.8ex; border-left: 1px solid rgb(204, 204, 204); padding-left: 1ex;">Dear Fernando et al.,<br>
<br>
I'm wondering if your claim about the precautionary claim isn't a bit of a<br>
crabbed interpretation of the sources cited for the proposition that it now<br>
constitutes customary international law. Many more countries have adopted<br>
the principle in national legislation or regulations, and it's been<br>
incorporated into treaties with near universal subscription e.g. the UNFCCC,<br>
CBD, CCD; there's also a large number of judicial decisions that can be<br>
cited, lots of soft law documents, etc. You can't inveigh against folks for<br>
making up customary international law and then not actually try to parse out<br>
their rationale for doing so :)<br>
<br>
Dr. Wil Burns, Editor in Chief<br>
Journal of International Wildlife Law & Policy<br>
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<br>
Dear Don and all,<br>
I appreciate the reactions to my comments; they are quite helpful. However,<br>
I'm still skeptical. What does it mean to say that "it is too difficult to<br>
marshall everything required", or that custom's rule of recognition "no<br>
longer works"? It seem to me that this is simply admitting to the problem:<br>
from now on we will try to guess what the best rules are is, imposing them<br>
on everyone (states, corporations, and individuals), simply because it is<br>
too hard to roll up our sleeves and determine as objectively as we can the<br>
existence of the rule --in short, out of laziness. Moreover, I don't believe<br>
finding custom is that hard --witness the masterful work by Henckaerts and<br>
Doswald-Beck on customary humanitarian law. There are additional serious<br>
problems with this guesswork: as John McGinnis recently showed in the Yale<br>
Law Journal, this way of thinking about internaitonal law means that the<br>
agency costs for the dissenting states are huge, not to mention the<br>
democratic deficit.<br>
<br>
Environmental law is an area where this fraud is rampant. Take the<br>
precautionary principle. Perhaps 10 or 15 states have adopted it in their<br>
domestic legislation (I don't know). Does that mean that now this is a rule<br>
of customary law, binding on every state? Think about it: this means that<br>
those 10 or 15 states legislate for the rest of the world. Because<br>
environmental activists like the principle, they will try to argue precisely<br>
this, that it is now part and parcel of international law. Yet no political<br>
theory worth its name would accept this as a legitimate law-making. One<br>
last point: I'm not arguing for a positivist rule of recognition; in fact,<br>
I'm a natural-law kind of guy. Rather, I argue for transparency. If someone<br>
asserts the validity of a rule ex aequo et bono, then say so. Don't try to<br>
pass it at custom.<br>
<br>
Cheers,<br>
Fernando<br>
On Wed, Nov 10, 2010 at 12:21 AM, Don Anton <<a href="mailto:antond@law.anu.edu.au">antond@law.anu.edu.au</a>> wrote:<br>
Dear Fernando (if I may),<br>
<br>
I think you may be a little harsh here :) I don't believe anyone is<br>
advocating that anything goes -- I certainly do not, either on the part of<br>
so-call norm entrepreneurs, other international lawyers, courts, or states<br>
-- and I seriously doubt that most international lawyers, court and others<br>
analyzing purported customary norms are trying to pull the wool, so to<br>
speak. Dan Bodansky points out that even Robert Jennings, the former ICJ<br>
President, explicitly recognized the problem you highlight: "most of what we<br>
perversely persist in calling customary international law is not only not<br>
customary international law: it does not even faintly resemble a customary<br>
law." See Bodansky in the Art and Craft of International Environmental Law<br>
(2010), at199, updating his earlier article on "Customary (and Not So<br>
Customary) International Law".<br>
<br>
The problem, as I see it though, is that what was once a reliable touchstone<br>
for recognizing custom is no longer functional in a world of 192+ states<br>
simply because it is too difficult to marshal everything required; and if<br>
that were possible, it would be too time consuming. Indeed, to use Bodansky<br>
again, he quotes Zamora rightly pointing out that only an ILC "in permanent<br>
session with armies of researchers could gather and sift through all the<br>
relevant evidence, in a manner acceptable to social scientists, the<br>
existence of a rule of customary international law". 32 Germ. YB. I.L. 9, 38<br>
(1989).<br>
<br>
I do not think fraud is indicated, so much as that we are in a phase of<br>
struggle, trying to find a new "rule of recognition" for custom to replace<br>
one that no longer works. I have seen a number of worthy proposals, but as<br>
yet, none have gained enough traction or acceptance to replace our<br>
traditional practice/opinio test.<br>
<br>
Kind regards,<br>
Don -- signing off to cloister myself marking.<br>
<br>
<br>
>>> Fernando Teson <<a href="mailto:fteson@law.fsu.edu">fteson@law.fsu.edu</a>> 11/10/10 3:26 PM >>><br>
So, anything goes then. The ICJ is a major perpetrator of this fraud: saying<br>
that a rule is custom with no proof. This is a main reason why we get things<br>
like the Oklahoma amendment. Lay people (and other lawyers) don't trust us,<br>
international lawyers, and our grandiose claims about what is law and what<br>
isn't. It is sad, after all these years, to realize that much of what we do<br>
is fraudulent.<br>
<br>
<br>
Intlawprofessors is moderated by Don Anton and hosted by the Australian National University College of Law<br>
</blockquote></div><br><br clear="all"><br>-- <br>Fernando R. Tesón<br>Tobias Simon Eminent Scholar and Professor of Law<br>Florida State University College of Law<br>425 West Jefferson<br>Tallahassee, FL 32306-1601<br>850-644-4287<br>
<a href="mailto:fteson@law.fsu.edu">fteson@law.fsu.edu</a><br><br>