Article
Withdrawing from Custom and the Paradox of Consensualism in International Law
Duke Journal of Comparative and International Law
(2010)
Abstract
In their excellent article, Withdrawing from International Custom, Professors Curtis Bradley and Mitu Gulati call into question the prevailing conception of customary international law, according to which states “never have the legal right to withdraw unilaterally from customary law” (the “Mandatory View”). Bradley and Gulati question the intellectual history and functional desirability of the Mandatory View, and they identify “significant uncertainties about how the Mandatory View would work in practice.” Their observations appear to us to be convincing. If the basis of the Mandatory View is not convincing, then its main tenets, such as the absence of a right of withdrawal, must also fall. Without focusing directly on the question of whether there exists a right of unilateral withdrawal from customary international law, we have also previously rejected the prevailing conception of customary international law on other grounds. In this paper, we will amplify a number of issues we had raised in our critique of the prevailing view. We will sketch a consensual explanation of customary international law that is based on how states argue about international custom. We will argue that taking empiricism seriously means eschewing literal readings of state practice. It means doing more than focusing on what states say about what they do, and instead examining what they actually do. We will argue that such a consensual explanation provides a better context in which to examine the question of withdrawal from custom.
Keywords
- customary international law,
- persistent objector,
- consensualism
Disciplines
Publication Date
2010
Citation Information
Chin Leng Lim and Olufemi Elias. "Withdrawing from Custom and the Paradox of Consensualism in International Law" Duke Journal of Comparative and International Law Vol. 21 (2010) Available at: http://works.bepress.com/chin_lim/9/