Abstract

http://ssrn.com/abstract=1736676
 


 



Customary International Law and Withdrawal Rights in an Age of Treaties


Curtis A. Bradley


Duke University - School of Law

G. Mitu Gulati


Duke University - School of Law

January 7, 2011

Duke Journal of Comparative & International Law, Vol. 21, No. 1, 2010

Abstract:     
The conventional wisdom among international law scholars is that, once a rule of customary international law (CIL) becomes established, nations never have the unilateral right to withdraw from it. In a recent article published in the Yale Law Journal, "Withdrawing from International Custom," we termed this conventional wisdom the Mandatory View of CIL and distinguished it from a possible regime in which nations could opt out of at least some CIL rules through advance notice, something we termed a Default View of CIL. After considering the intellectual origins and functional desirability of the Mandatory View, as well as the extent to which withdrawal rights are available under treaties, we concluded that it was difficult to justify a complete ban on withdrawal from all rules of CIL. That article is the subject of a forthcoming symposium edition of the Duke Journal of Comparative and International Law, in which a variety of scholars raise important questions about our analysis and its implications. In this essay, we seek to advance the analysis set forth in Withdrawing by addressing four topics implicated by the symposium responses: the current state of CIL; the proper way to conceive of CIL and its relationship to treaties; how a shift away from the Mandatory View might occur in practice; and whether a shift to a Default View would make a meaningful difference in state practice. We also identify some issues that could benefit from additional research.

Number of Pages in PDF File: 30

Keywords: customary international law, withdrawal, treaties, social contract, mandatory rules, default rules

Accepted Paper Series





Download This Paper

Date posted: January 10, 2011  

Suggested Citation

Bradley, Curtis A. and Gulati, G. Mitu, Customary International Law and Withdrawal Rights in an Age of Treaties (January 7, 2011). Duke Journal of Comparative & International Law, Vol. 21, No. 1, 2010. Available at SSRN: http://ssrn.com/abstract=1736676

Contact Information

Curtis A. Bradley (Contact Author)
Duke University - School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
Gaurang Mitu Gulati
Duke University - School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
Feedback to SSRN


Paper statistics
Abstract Views: 995
Downloads: 201
Download Rank: 90,069

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.297 seconds