persons violating domestic law do not act as legislators when they act; with regard to CIL, lowever, states are never not acting as legislators. Hence, acts contrary to law at the time they are done may, if emulated by other states, lead to a change in the law An example of this phenomenon is provided by the law of the sea. The 1958 Conventio on the High Seas described itself as codifying CIL. It defined the "high seas" as including all waters seaward of a states territorial sea, and guaranteed freedom of fishing to all states in this area. Yet this rule of CIL, even though codified in a treaty, was altered by state practice within about thirty years. By the end of that period, so many states had proclaimed their right to deny freedom of fishing in zones extending far beyond their territorial seas that it became impossible to deny that Cil had been altered. That is, actions violating CIL(and, for that matter, a treaty) cumulated to change the law 3 In addition to these differences, and as noted above, CIL is supposed to derive from a general and consistent practice of states followed by them from a sense of legal obligation. This concept of state practice raises its own problems. For example, what counts as state practice? What is the consequence if some types of behavior engaged in by one state are inconsistent with other behavior of that same state? 10 Convention on the High Seas, opened for signature Apr 29, 1958, 13 UST2312 T. L.A.S. No 5200. 450 U.N.T.S. 82 nble 12 Id. arts. 1.2 For a fuller discussion of changes in the law of the sea regarding fishing, see Arthur M. Weisburd, Customary International La: The Problem of Treaties, 21 VAND. J INT'L L. 1 17-19.(1988)6 10 Convention on the High Seas, opened for signature Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82. 11 Id., preamble. 12 Id., arts. 1, 2. 13 For a fuller discussion of changes in the law of the sea regarding fishing, see Arthur M. Weisburd, Customary International Law: The Problem of Treaties, 21 VAND. J. INT’L L. 1, 17-19. (1988). persons violating domestic law do not act as legislators when they act; with regard to CIL, however, states are never not acting as legislators. Hence, acts contrary to law at the time they are done may, if emulated by other states, lead to a change in the law. An example of this phenomenon is provided by the law of the sea. The 1958 Convention on the High Seas10 described itself as codifying CIL.11 It defined the “high seas” as including all waters seaward of a state’s territorial sea, and guaranteed freedom of fishing to all states in this area.12 Yet this rule of CIL, even though codified in a treaty, was altered by state practice within about thirty years. By the end of that period, so many states had proclaimed their right to deny freedom of fishing in zones extending far beyond their territorial seas that it became impossible to deny that CIL had been altered. That is, actions violating CIL (and, for that matter, a treaty) cumulated to change the law.13 In addition to these differences, and as noted above, CIL is supposed to derive from a general and consistent practice of states followed by them from a sense of legal obligation. This concept of state practice raises its own problems. For example, what counts as state practice? What is the consequence if some types of behavior engaged in by one state are inconsistent with other behavior of that same state?