There is neither significant historical precedent nor sufficient practical reason for denying countries the right to unilaterally withdraw from at least some rules of customary international law (CIL), they argue in Withdrawing from International Custom. This challenges the prevailing view among international law scholars,which holds that nations never have that right.
“The question the paper addresses is ‘How should customary international law work, and in particular, should there be any ability of nations to decide that they want to deviate from it and opt out of it,’” says Bradley, the Richard A. Horvitz Professor of Law and Professor of Public Policy Studies. “The paper questions whether the theory of CIL held among the international law community is right.”
CIL consists of the aspects of international law that are determined by the practices and beliefs of nations rather than through formal agreement, he explains. It governs such issues as a government’s immunity from being sued in another nation’s courts, the limitations on a nation’s ability to apply its laws extraterritorially to conduct occurring outside its borders, and emerging standards for detaining and targeting combatants in a non-traditional conflict such as the war on terror. Frequently, CIL rules are similar to the rules contained in treaties.
Gulati and Bradley assert that the current view on CIL (the “Mandatory View”) didn’t come into being until the twentieth century, and that its intellectual underpinnings are suspect. “(T)here are reasons to question the normative underpinnings of the shift to the Mandatory View, since it appears to have been part of an effort to bind ‘uncivilized’ states to the international law worked out by a small group of Western powers,” they write.
“I looked into the famous publicists on international law, the European thinkers who were so influential in the U.S. in the late 1700s, early 1800s. They were very influential in the U.S. Supreme Court – Chief Justice Marshall and others were familiar with their treatises and cited them all the time,” says Bradley, a leading scholar of foreign relations law. “I started looking at them, and they thought you could opt out of at least some customary rules. To me, that meant that there might be another way of thinking about this issue.”
The two imagined what rules would “make sense” regarding CIL if they were designing an international system from scratch. “When would you restrict nations from being able to opt out? It would probably depend on the types of rules that were in question — you might not want them to opt out of certain human rights rules, but maybe you’d let nations have their own immunity rules if they’re willing to accept that other nations can do the same and gave advance notice of their position,” says Bradley. In addition to relying on theories of constitutional design for their answer, they examined the unique juxtaposition of corporate law and CIL, calling on Gulati’s deep expertise in contract and corporate theory.
“It turns out there have been a lot of debates in those areas about when the actors can opt out of rules and when rules should just be defaults or mandatory rules,” Bradley explains, noting that prohibiting opting out is a rarity and parties are assumed to have considerable freedom to select their regime.
“No one has ever applied that corporate literature to international law before, so that will be a unique contribution,” he says.
Bradley credits the work of another Duke colleague, Laurence R. Helfer, the Harry R. Chadwick Sr. Professor of Law, with facilitating their reconsideration of the mandatory view. In Exiting Treaties (91 Virginia Law Review, 2005), Helfer examined the right of nations to withdraw from human rights treaties.
“Larry Helfer’s paper documents how many treaties have this clause that allows you to get out,” Bradley says. “Sometimes you need six months notice, sometimes a year’s notice. With investment treaties it might be 10 year’s notice — but there is still this ability to withdraw. All the empirical evidence Larry put together in his article was very helpful in helping us think about ours.”
Bradley also credits a long-ago question from a federal judge for making him re-think CIL norms.
“About six years ago, I was teaching an international law seminar for federal judges, and I had just explained to the judges the basic rules for treaties and customary international law,” he recalls. “One of the judges, who had otherwise been quiet, raised his hand and asked why nations can often withdraw from treaties, even though they are expressly negotiated and subject to domestic ratification requirements, and yet nations can never withdraw from customary international law rules, which are unwritten, not expressly negotiated, and do not go through domestic ratification processes.
“I said something to the effect that, ‘that’s just the way it is,’ but this answer never seemed very satisfactory to me, and I continued to think about it. The judge who asked the question was Samuel Alito.”