Withdrawing from Customary International Law: Some Lessons from History

Abstract

This paper responds to Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale L.J. 202 (2010). Bradley and Gulati argue against a "andatory view” "of customary international law that binds all nations irrespective of individual consent and argue in favor of a "default view" under which nations may withdraw from at least some rules of customary international law. This paper argues that Bradley and Gulati have misread history in three ways. First, they overstate the importance of the default view during the late eighteenth and early nineteenth centuries. As this paper shows, the default view was never the predominant understanding of customary international law. Second, Bradley and Gulati assert that the mandatory view developed to bind non-Western states to Western rules, when, in fact, nineteenth century advocates of the mandatory view stated expressly that non-Western nations could not be bound without their consent. Third, while arguing for greater flexibility in international rules, Bradley and Gulati ignore comity doctrines that have historically allowed precisely the kind of discretion they seek.

Keywords: customary international law, Vattel, default view

JEL Classification: K33