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

18 Pages Posted: 15 May 2010 Last revised: 3 Apr 2012

See all articles by Anthea Roberts

Anthea Roberts

School of Regulation & Global Governance (RegNet)

Date Written: August 20, 2010


Curtis Bradley and Mitu Gulati’s provocative article on “Withdrawing from International Custom,” 120 Yale Law Journal (2010) (forthcoming), shines light onto a central yet under-analyzed issue of customary international law and brings to bear thought-provoking research and analysis. Ultimately, however, the proposal that states should be able to individually withdraw from international custom as they often can from treaties is unconvincing and concerning because (1) it is based on questionable analogies between custom, on the one hand, and treaties and contract law, on the other, and (2) when understood in its real world context, rather than in the academic laboratory, it has the potential to facilitate opportunistic and abusive claims that undermine the interests of the international community.

Keywords: Custom, Customary International Law, International Custom, Bradley, Gulati, Withdraw, Withdrawing, Exit, Voice, Analogy, Treaties, Contract, Social Contract, Jus Cogens, Persistent Objector, Exit, Voice, Legalization

Suggested Citation

Roberts, Anthea, Who Killed Article 38(1)(b)? A Reply to Bradley and Gulati (August 20, 2010). 21 Duke Journal of Comparative & International Law 173 (2010), Available at SSRN: https://ssrn.com/abstract=1607753

Anthea Roberts (Contact Author)

School of Regulation & Global Governance (RegNet) ( email )

Canberra, Australian Capital Territory 0200

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