[IntLawProfessors] Intlawprofessors Digest, Vol 2, Issue 13

Thu Nov 11 07:57:43 EST 2010

Yes; we’re largely in agreement, but again, the example that you proffered,
the precautionary principle, is one where I think it’s unfair to say that
the contention that it has risen to the status of CIL is somewhat fraudulent
given the combination of treaties, soft law manifestations, domestic
legislation/regulations (though I agree with you this has less salience
since it’s harder for others to discover), judicial decisions. I agree that
there are some principles that have been identified as CIL that are far more
problematic. 

I think the question of democratic legitimacy is also a valid one; as
someone who works in the field of international environmental law, I’m not
always sure that I feel like we can wait for universal affirmation of many
principles, but that’s also another discussion!

wil

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

 <mailto:jiwlp at internationalwildlifelaw.org>
jiwlp at internationalwildlifelaw.org

Journal home page:  <http://www.tandf.co.uk/journals/titles/13880292.asp>
http://www.tandf.co.uk/journals/titles/13880292.asp

SSRN site (selected publications):  <http://ssrn.com/author=240348>
http://ssrn.com/author=240348

Skype ID: Wil.Burns

Teaching Climate Law & Policy Blog:  <http://www.teachingclimatelaw.org/>
http://www.teachingclimatelaw.org

From: fteson at gmail.com [mailto:fteson at gmail.com] On Behalf Of Fernando Teson
Sent: Wednesday, November 10, 2010 12:51 PM
To: Wil Burns
Cc: intlawprofessors at mailman.anu.edu.au
Subject: Re: [IntLawProfessors] Intlawprofessors Digest, Vol 2, Issue 13

Wil, thank you for your comments
Ok, I see, we don't disagree really: if there is a robust practice going on,
dissenting states must object in order not to be held to it (although I'm
not sure I would regard internal manifestations of the norm, such as
legislation, as having the same evidentiary value as external ones.) 
I object to claims that present norms as CIL that are not really CIL, that
is, that do not have sufficient basis in robust practice (or something very
close to it, such as universal consensus, etc.). These are not just the
writings of publicists, but also the ICJ making up norms out of thin air,
etc. 
I would add that even this mainstream theory of CIL is vulnerable to further
criticisms based on lack of democratic legitimacy, agency costs, etc. etc.,
but that is another story. The first task, for me, is to weed out fake
custom from genuine custom.
Cheers,
F

On Wed, Nov 10, 2010 at 3:36 PM, Wil Burns <williamcgburns at comcast.net>
wrote:

Hi Fernando,

No, but if you have extensive State practice, including domestic embrace,
judicial pronouncements, widespread incorporation into treaty, and evidence
of opinio, yes, it can become binding on State E if it doesn’t object in a
timely manner. That’s an awful mainstream interpretation of CIL; my
impression wasn’t that you disagreed with this tenet, but rather that we
rely too much on the writings of publicists who seek to establish CIL out of
nothing rather than codifying on the basis of state practice. If you’re
questioning whether a State that hasn’t expressly engaged in the State
practice in question can find themselves bound to such a principle, that’s a
different question, but I would say the answer is yes, and that’s consistent
with a positivist view of international law since one has the option to
object during the crystallization phase and not be bound. wil

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

 <mailto:jiwlp at internationalwildlifelaw.org>
jiwlp at internationalwildlifelaw.org

Journal home page:  <http://www.tandf.co.uk/journals/titles/13880292.asp>
http://www.tandf.co.uk/journals/titles/13880292.asp

SSRN site (selected publications):  <http://ssrn.com/author=240348>
http://ssrn.com/author=240348

Skype ID: Wil.Burns

Teaching Climate Law & Policy Blog:  <http://www.teachingclimatelaw.org/>
http://www.teachingclimatelaw.org

From: fteson at gmail.com [mailto:fteson at gmail.com] On Behalf Of Fernando Teson
Sent: Wednesday, November 10, 2010 12:25 PM
To: Wil Burns
Cc: intlawprofessors at mailman.anu.edu.au
Subject: Re: [IntLawProfessors] Intlawprofessors Digest, Vol 2, Issue 13

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

-- 
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

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