Mandatory Versus Default Rules: How Can Customary International Law Be Improved?

28 Pages Posted: 8 Mar 2011

See all articles by Curtis Bradley

Curtis Bradley

University of Chicago Law School

Mitu Gulati

University of Virginia School of Law

Date Written: March 7, 2011

Abstract

Customary International Law (CIL) is plagued with uncertainties about its sources, its content, its manipulability, and its normative attractiveness. The rise of law-making through multilateral treaties also makes the proper role of CIL increasingly uncertain. This is an opportune time, therefore, to be thinking of ways to revive and improve CIL. In a prior article, we argued that the "Mandatory View" of CIL, pursuant to which nations are barred from ever withdrawing unilaterally from rules of CIL, is functionally problematic, at least when applied across the board to all of CIL. We also suggested that CIL might be improved by allowing for exit rights similar to those allowed for under treaty regimes, many of which allow nations to withdraw unilaterally, at least after giving advance notice of their intent to do so. In a series of papers in Yale Law Journal’s online edition, a number of scholars - Lea Brilmayer, William Dodge, David Luban, Carlos Vázquez, and Isaias Tesfalidet - take issue with our proposal of such a "Default View" of CIL. In this essay, we respond to their arguments, while also emphasizing the need for additional consideration of the ways in which CIL might be improved.

Suggested Citation

Bradley, Curtis and Gulati, Mitu, Mandatory Versus Default Rules: How Can Customary International Law Be Improved? (March 7, 2011). Available at SSRN: https://ssrn.com/abstract=1779782 or http://dx.doi.org/10.2139/ssrn.1779782

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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