[IntLawProfessors] Intlawprofessors Digest, Vol 2, Issue 13

[Fernando Teson]

So Wil, let's see if I understand your theory of custom:
Thesis #1: if states A,B,C, and D domestically enact norm N, then N is
legally binding on country E?, or
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
Thesis #3: If the courts of countries A,B, C, and D apply the norm N, then N
is binding on state E?



On Wed, Nov 10, 2010 at 3:02 PM, Wil Burns <williamcgburns at comcast.net>wrote:

> Dear Fernando et al.,
>
> I'm wondering if your claim about the precautionary claim isn't a bit of a
> crabbed interpretation of the sources cited for the proposition that it now
> constitutes customary international law. Many more countries have adopted
> the principle in national legislation or regulations, and it's been
> incorporated into treaties with near universal subscription e.g. the
> UNFCCC,
> CBD, CCD; there's also a large number of judicial decisions that can be
> cited, lots of soft law documents, etc. You can't inveigh against folks for
> making up customary international law and then not actually try to parse
> out
> their rationale for doing so :)
>
> Dr. Wil Burns, Editor in Chief
> Journal of International Wildlife Law & Policy
> 2875 Shasta Road
> Berkeley, CA 94708 USA
> Ph:   650.281.9126
> Fax: 510.473.3731
> jiwlp at internationalwildlifelaw.org
> Journal home page: http://www.tandf.co.uk/journals/titles/13880292.asp
> SSRN site (selected publications): http://ssrn.com/author=240348
> Skype ID: Wil.Burns
>
> 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.
>
>
> 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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://mailman.anu.edu.au/pipermail/intlawprofessors/attachments/20101110/fe0a013a/attachment.html