Academic journal article Duke Journal of Comparative & International Law

Who Killed Article 38(1)(b)? A Reply to Bradley & Gulati

Academic journal article Duke Journal of Comparative & International Law

Who Killed Article 38(1)(b)? A Reply to Bradley & Gulati

Article excerpt


Curtis Bradley and Mitu Gulati's provocative article, Withdrawing from International Custom, (1) shines light on a central yet under-analyzed issue about customary international law and brings to bear thought-provoking research and analysis. Ultimately, however, when one considers custom's nature and purpose, the withdrawal proposal is unpersuasive as a matter of theory and limited as a matter of practice.

First, the withdrawal proposal is premised on an analogy between treaties and custom given the apparent anomaly that withdrawal is sometimes permitted from the former but never from the latter. Yet the emphasis in treaty law is on optional commitments entered into individually by states, whereas custom sets the ground rules for the international system by imposing a minimum core of binding obligations on all states. Treaties might commonly permit exit precisely because custom, which does not allow for withdrawal, exists to protect key structural and substantive interests. If so, the suggestion that states should be able to withdraw from custom because they can withdraw from treaties is flawed. Treaties and custom serve different purposes, so it is unsurprising that they have complementary rather than analogous secondary rules.

Second, the potential exceptions to a right of withdrawal appear to be so extensive as to largely swallow the rule. Ignoring the presumption in treaty law that withdrawal is prohibited unless it is expressly or impliedly permitted, the authors fail to state a positive case for when withdrawal would be appropriate and give but a single hypothetical to illustrate their theory in practice. Instead, sensitive to some of the problems of permitting withdrawal from key customary norms, Bradley and Gulati carefully craft numerous exceptions to and limitations on their proposal. Not only do these exceptions appear to be somewhat ad hoc, but their breadth undermines the boldness of the withdrawal proposal, exposing its negligible effects in practice.

Third, the withdrawal proposal may be very interesting within the confines of academia, but seems hazardous when appreciated in its real world context. The authors seem intent on considering their proposal within the controlled environment of the academic laboratory, seeking to identify the ideal rule and best possible exceptions. But concern arises when their proposal is transported into the real world because the authors cannot ensure that states will accept their headline claim--a fight of withdrawal-subject to all of the constraints they deem necessary to make their proposal palatable. Despite this, Bradley and Gulati do not account for the costs of introducing uncertainty about custom's secondary rules, nor do they sufficiently consider the ways in which their proposal is likely to facilitate opportunistic and abusive claims.

Finally, allowing states to withdraw from custom might stunt custom's development and shift power from the majority of states to individual states. Drawing on the concepts of exit and voice developed by Albert Hirschman, (2) this Article suggests that allowing states to withdraw from customs (exit) might lessen their incentive to argue for changes to those customs (voice), which could inhibit the dynamics of change in customary international law. In addition, changes in customary law obligations would come not from the actions and reactions of states as a whole but from a single state's decision to unilaterally withdraw. The resulting shift in power from the majority of states to individual states is problematic given custom's function of protecting key structural and substantive norms in order to best serve the interests of the international community.

Bradley and Gulati's withdrawal proposal is certainly novel. Although a strength in the academy, this novelty begs the question of why the authors can cite to no examples of states arguing for a right of withdrawal. …

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