Withdrawing from Customary International Law: Some Lessons from History

Yale Law Journal Online, Vol. 120, p. 169, 2010

24 Pages Posted: 27 Jan 2011

See all articles by William S. Dodge

William S. Dodge

University of California, Davis - School of Law

Date Written: 2010

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

Suggested Citation

Dodge, William S., Withdrawing from Customary International Law: Some Lessons from History (2010). Yale Law Journal Online, Vol. 120, p. 169, 2010. Available at SSRN: https://ssrn.com/abstract=1748673

William S. Dodge (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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