Academic journal article Duke Journal of Comparative & International Law

Withdrawing from Custom: Choosing between Default Rules

Academic journal article Duke Journal of Comparative & International Law

Withdrawing from Custom: Choosing between Default Rules

Article excerpt

INTRODUCTION

Curtis Bradley and Mitu Gulati's article, Withdrawing from International Custom, is a novel, provocative, and important contribution to the scholarship on customary international law. They argue that the current approach to customary international law, the Mandatory View, which holds that states cannot unilaterally opt out of custom but allows states to do so by treaty, is overly restrictive. They propose an alternative approach, the Default View, which would permit states to opt out unilaterally when doing so would not injure another nation. The article raises a number of interesting issues, including how the Mandatory View became the consensus in international law scholarship, the role of the persistent objector principle, and the functional value of maintaining the Mandatory View. The article also forces us to rethink what the current rules regarding withdrawal from customary law are, how the rules have evolved to the current view, and (most importantly) what the best approach going forward is.

This Article addresses some of the issues left open by Bradley and Gulati's work. It attempts to judge what approach is better given the criterion that Bradley and Gulati put forward. Specifically, this article asks whether the functional benefits of the Default View are greater than those of the Mandatory View going forward. Using the authors' standard, I argue that it is unclear whether a shift to the Default View is best for the system. Part I of this article discusses the potential effects of Bradley and Gulati's thesis on treaty law, an issue of significant importance but one that the authors do not currently take into account. I then turn to the core of Bradley and Gulati's argument--how a shift from the Mandatory View to the Default View would affect the system of customary international law. Part II attempts to tease out the essential difference between the Mandatory View and the Default View for states considering changes to customary law, while Part III discusses the conditions that would have to hold for the Default View to be beneficial using Bradley and Gulati's functional standard. The thesis proposed by Bradley and Gulati is worthy of discussion and debate, but also it also raises questions and concerns that the authors need to address more fully.

I. TREATY LAW, CUSTOMARY LAW, AND THE DEFAULT VIEW

Bradley and Gulati provide a comprehensive account of the current state of customary international law, a position that they describe as the Mandatory View. (1) Customary law binds all states, even absent a specific indication of consent by the state. There are two means by which states can avoid these obligations: (1) states can claim persistent objector status, although this is only open to states that objected at the time of the custom's formation; or (2) states can deviate from custom by creating a treaty that establishes a different rule. (2) The treaty rule displaces the customary rule as the operative law between the parties to the treaty, providing the parties with a means of opting out of custom with like-minded states. Thus even under the Mandatory View, customary international law is not always "mandatory." A state can opt out of custom, even after the formation of the customary rule, by creating a treaty regime with other like-minded states. If the treaty has a sufficiently wide membership, it could displace the customary rule entirely.

Bradley and Gulati's Default View offers an alternative to the consensus understanding of when customary international law is binding. They argue that each state should be able to decide unilaterally what parts of customary international law to accept. If a state wants to adopt a policy that is contrary to custom, the state can renounce the customary rule so long as it does not injure other states. The authors' basis for advocating this alternative is twofold. They argue that the Default View is closer to the pre-World War II understanding of custom, although their justification does not rest on history alone. …

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