2 To understand the difficulty it is helpful to start with the concept of CIL. The Restatement(Third)of Foreign Relations Law("Restatement")describes customary international law as resulting"from a general and consistent practice of states followed by them from a sense of legal obligation. [In this article, the term"state "will be applied in the sense in which it is normally employed in international law, that is, as referring to independent countries. I Although this article will take issue with a number of assertions made in the restatement this definition raises little controversy. It does, however, illustrate the considerable difficulty facing a court forced to address an issue of cil. how does the court determine at the most basic level what the various governments of the world have done regarding a particular matter? What counts as "practice"? How does one determine whether a practice is"general"? Federal courts have sought to escape this morass by relying primarily on academic writings, the Restatement, and decisions by american and international courts -and herein lies the difficulty. For, with respect to some areas of CIL- particularly the law of human rights, the aspect of CIL most frequently considered in American courts-neither modern academic writing nor the Restatement nor most judicial decisions purport to derive CIl from evidence of what governments actually do. Rather, they rely on other academic writings, other decisions of international courts, non-binding resolutions of international bodies, and hazy notions of natural law to justify their assertions regarding this cil (1988); PhillipR. Trimble, A Revisionist View of customary International Law, 3 UCLAL REV 665(1986), and at least one court has taken note of the controversy, Sampson v. Fed. Repub. of Germany Claims Conf, 250 F 3d 1145, 1153 n 4 (7th Cir. 2001). In any event, this dispute does not bear on the matters discussed in this article and is therefore not addressed RESTATEMENT (THIRD)OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES S 102(2)(1987)(hereafter cited as RESTATEMENT2 (1988); Phillip R. Trimble, A Revisionist View of Customary International Law, 3 UCLA L. REV. 665 (1986), and at least one court has taken note of the controversy, Sampson v. Fed. Repub. of Germany & Claims Conf., 250 F.3d 1145, 1153 n.4 (7th Cir. 2001). In any event, this dispute does not bear on the matters discussed in this article, and is therefore not addressed. 5 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987) (hereafter cited as RESTATEMENT). To understand the difficulty it is helpful to start with the concept of CIL. The Restatement (Third) of Foreign Relations Law (“Restatement”) describes customary international law as resulting “from a general and consistent practice of states followed by them from a sense of legal obligation.”5 [In this article, the term “state” will be applied in the sense in which it is normally employed in international law, that is, as referring to independent countries.] Although this article will take issue with a number of assertions made in the Restatement, this definition raises little controversy. It does, however, illustrate the considerable difficulty facing a court forced to address an issue of CIL. How does the court determine, at the most basic level, what the various governments of the world have done regarding a particular matter? What counts as “practice”? How does one determine whether a practice is “general”? Federal courts have sought to escape this morass by relying primarily on academic writings, the Restatement, and decisions by American and international courts - and herein lies the difficulty. For, with respect to some areas of CIL - particularly the law of human rights, the aspect of CIL most frequently considered in American courts - neither modern academic writing nor the Restatement nor most judicial decisions purport to derive CIL from evidence of what governments actually do. Rather, they rely on other academic writings, other decisions of international courts, non-binding resolutions of international bodies, and hazy notions of natural law to justify their assertions regarding this CIL