In the foregoing article, Professor D'Amato has taken issue with a number of arguments I raised in an article published in a recent issue of the Vanderbilt Journal of Transnational Law. In this reply, I attempt to refute his criticisms. The discussion that follows briefly recapitulates my article. I then seek to deal with the points made in Professor D'Amato's response one by one.
My article addressed an aspect of the relationship between treaties and customary international law. Taking as a starting point the assumption that treaties can be an element of the state practice necessary to constitute customary law, the article inquired whether treaties were so important a form of state practice that one could derive rules of customary law solely from treaties, even in the face of other types of practice coterminous with relevant treaties but inconsistent with them. It concluded that treaties were not such strong determinants of customary law that they could, in effect, overwhelm other types of practice. The article sought to demonstrate this conclusion through three lines of argument. First, it described instances in which customary law had developed rules that ran contrary to existing treaties. Second, it showed that treaties themselves can be modified through practice, arguing that, if a treaty itself is not immune to modification through practice, then customary law can hardly be immune to similar modification merely because treaties exist relating to the area of customary law in question. Third, the article argued that a particular subclass of treaties--those that can be seen as denying the existence of customary rules on the subject governed by the treaty--ought not be seen as constitutive of custom in that they deny the existence of the opinio juris element of custom. This portion of the argument focused specifically on international conventions forbidding states parties to engage in torture and asserted that such conventions, in effect, denied the existence of a duty outside the convention to refrain from torture. Thus, these conventions should not be seen as the basis of a customary rule against torture. Finally, the article addressed certain arguments contrary to those it made.
A. M. Weisburd,
A Reply to Professor D'Amato,
21 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol21/iss3/3