Customary International Law and Withdrawal Rights in an Age of Treaties

30 Pages Posted: 10 Jan 2011

See all articles by Curtis Bradley

Curtis Bradley

University of Chicago Law School

Mitu Gulati

University of Virginia School of Law

Date Written: January 7, 2011


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.

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

Suggested Citation

Bradley, Curtis and Gulati, 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:

Curtis Bradley (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Mitu Gulati

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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