Year: 2010
Type: article
Abstract: s article, Withdrawing from International Custom, is a novel, provocative, and important contribution to the scholarship on customary international law.They argue that the current approach to customary international law, the Mandatory View, which holds that states cannot unilaterally opt out of custom but allows states to do so by treaty, is overly restrictive.They propose an alternative approach, the Default View, which would permit states to opt out unilaterally when doing so would not injure another nation.The article raises a number of interesting issues, including how the Mandatory View became the consensus in international law scholarship, the role of the persistent objector principle, and the functional value of maintaining the Mandatory View.The article also forces us to rethink what the current rules regarding withdrawal from customary law are, how the rules have evolved to the current view, and (most importantly) what the best approach going forward is.This Article addresses some of the issues left open by Bradley and Gulati's work.It attempts to judge what approach is better given the criterion that Bradley and Gulati put forward.Specifically, this article asks whether the functional benefits of the Default View are greater than those of the Mandatory View going forward.Using the authors' standard, I argue that it is unclear whether a shift to the Default View is best for the system.Part I of this article discusses the potential effects of Bradley and Gulati's thesis on treaty law, an issue of significant importance but one that the authors do not currently take into account.I then turn to the core of Bradley and Gulati's argument-how a shift from the Mandatory View to the Default View would affect the system of customary international law.Part II attempts to tease out the essential difference between the Mandatory View and the Default View for states considering changes to customary law, while Part III discusses the conditions that would have to hold for the
Author: Rachel Brewster
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W1534446744