[IntLawProfessors] Intlawprofessors Digest, Vol 2, Issue 13

[Don Anton]

Greetings colleagues,

For those in Washington DC this Friday (12 Nov), you can see Ferdnando weeding out fake custom at an ASIL Symposium on custom.  See http://www.asil.org/activities_calendar.cfm?action=detail&rec=157

Kind regards,
DA


>>> Fernando Teson <fteson at law.fsu.edu> 11/11/10 7:52 AM >>>
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