Academic journal article Journal of Politics and Law

Bangladesh Withdraws from Customary International Law: The Practical Implications of Trifling with Custom

Academic journal article Journal of Politics and Law

Bangladesh Withdraws from Customary International Law: The Practical Implications of Trifling with Custom

Article excerpt

Abstract

This Article examines how the Supreme Court of Bangladesh relied on a theoretical model of Customary International Law (CIL) advanced by Professors Curtis A. Bradley and Mitu Gulati to withdraw from the rules of CIL. It explores how the Supreme Court applied the same reasons and relied on the same authorities as did the proponents of this model to effect a withdrawal. Although Bradley and Gulati advanced their model as an academic experiment, this did not deter the Supreme Court from applying the model to withdraw from the rules of CIL which define the jus cogens offence of crimes against humanity and to eventually sentence to death an opposition political leader on the basis of such withdrawal. Bradley and Gulati's model of CIL has been subject to a lot of scholarly criticism and the Bangladesh experience has to some extent justified these criticisms. This Article shows how countries which are prevented from achieving certain outcomes or realizing certain goals because of CIL may simply adopt Bradley and Gulati's model to withdraw from its rules.

Keywords: Bangladesh, customary international law, crimes against humanity

1. Introduction

On September 17, 2013, Bangladesh asserted its right to withdraw unilaterally from customary international law (CIL). In the landmark case of the Government of Bangladesh v. Abdul Quader Molla,1 the Supreme Court of Bangladesh held that the mies of CIL would not apply to the determination of the elements of crimes against humanity2. In doing so, the Supreme Court relied on a theoretical model of CIL advanced by Professors Curtis A. Bradley and Mitu Gulati3 in an article published in The Yale Law Journal in 2010. This model, which was introduced to generate academic debate to "better understand"4 international law, challenged the current conception of CIL by allowing nations to unilaterally withdraw from it.

Although the Supreme Court in its decision made only one fleeting reference to Bradley and Gulati5, and none at all to their article, it is clear that the rejection of CIL was based on their proposed model. There is a similar reliance on the 18th century treatise of Emmerich de Vattel6 and the decision even cites the same passage of the same U.S. Supreme Court judgment relied upon by them.7 Moreover, the criticisms that have been made of Bradley and Gulati's model may also be validly made of the reasonings of the Supreme Court. Further, the Supreme Court was clearly influenced by Bradley and Gulati's argument that the prevailing view of CIL was imposed on less civilised states by western powers.8 Finally, the decision reveals that the Supreme Court, at least on one occasion quoted directly from their article,9 although it failed to attribute the quote to its authors. In fact, despite the attempts to conceal the influence of Bradley and Gulati, evidence of the Supreme Court's reliance on their model of CIL is overwhelming.10

By virtue of this decision, Bangladesh has probably become the first nation in modern times to exercise a right of unilateral withdrawal from CIL. Bradley and Gulati would no doubt be pleased that Anthea Roberts's criticism that they "can cite to no examples of states arguing for a right of withdrawal"* 11 can now be rectified. Their model of CIL has been adopted by Bangladesh and it is no longer only confined to the academic laboratory.12 Bangladesh's position on international law can now form the basis of a case study for Bradley and Gulati's proposed model of CIL.

Although it is not the purpose of this Article to critique Bradley and Gulati's proposed model, it can safely be said that their model has undermined CIL. Bradley and Gulati have trifled with custom, the consequences of which were felt in Bangladesh. In Bangladesh, the definition of crimes against humanity no longer conforms with the definition prevailing in the rest of the world. The decision of the Supreme Court has highlighted the consequences of adopting Bradley and Gulati's model of CIL. …

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