Nice Customs Curtsy to Great Kings(?)*

March 7, 2011

In a recent essay posted in the Yale Law Journal Online, Professor Lea Brilmayer and Isaias Yemane Tesfalidet respond to the claim that states ought to be able to unilateraly opt out of customary norms -- even long after the norm in question had been an accepted part of customary international law, and even if the state had originally approved of the norm. This model for withdrawal (the Default View) was proposed by Professors Curtis Bradley and Mitu Gulati and has been the subject of a recent symposium edition of the Duke Journal of Comparative and International Law. Bradley and Gulati find support for the Default View in an anology between customary and treaty law and in the model's purported functional advantages.

Brilmayer and Tesfalidet challenge Bradley and Gulati's model for unilateral withdrawal by first highlighting the legal distortion underlying the analogy to treaties (there isn't a comparable unilateral right to opt out of treaties). As for the claimed functional advantages of the Default View, Brilmayer and Tesfalidet argue that customary international law already provides the flexibility claimed for the Default View by Bradley and Gulati. The essay concludes with the suggestion that the proposed Default View might be a sign of the times in U.S. politics, but that international law -- including customary norms -- remains a significant protective force for smaller states against the Great Kings of the world.

* Shakespeare's Henry V

Further Reading

Yale Law Library Research Guides: Foreign, International, and Transnational Law Resources; Treaty Research

Alexander T. Alienikoff, International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate, 98 Am. J. Int'l. L. 91 (2004).

Aoife Duffy, Expulsion to Face Torture? Non-refoulement in International Law, 20 Int'l. J. Refugee L. 373 (2008).

Charles Quince, The Persistent Objector and Customary International Law (2010).

Els Reynaers Kini, The Precautionary Principle, Multilateral Treaties and the Formulation of Customary International Law (2008).

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