Bradley and Gulati on Opt Out in Customary International Law

Last night I was watching Cold Mountain.  Just when Nicole Kidman's character spoke of the Confederate bonds that he father had purchased, I thought of Mitu Gulati, who's the king of the law of repudiation of sovereign debt.  It was at that moment that I realized I wanted to talk about one of Gulati's papers.

Gulati and Curtis Bradley have a new paper up on ssrn, which discusses the right (or non-right these days) of countries to opt out of customary international law.  It's called "Withdrawing from International Custom."  Here's their abstract:

Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to unilaterally withdraw from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (“CIL”), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL. In this Article, we consider both the intellectual history and functional desirability of the Mandatory View. We find that many international law publicists of the eighteenth and nineteenth centuries thought that CIL rules were sometimes subject to unilateral withdrawal, at least if a nation gave notice about its intent. We also find that the Mandatory View did not come to dominate international law commentary until sometime in the twentieth century, and even then there were significant uncertainties about how the Mandatory View would work in practice. After reviewing this history, we draw on theories developed with respect to contract law, corporate law, voting rules, and constitutional design to consider whether it is functionally desirable to restrict opt out rights to the extent envisioned by the Mandatory View. We conclude that, although there are arguments for restricting opt out in select areas of CIL, it is difficult to justify the Mandatory View as a general account of how CIL should operate.

These are waters I rarely tread into -- in fact, other than some issues in the international slave trade and in transit of slaves between states, I don't wade into the waters of international law at all these days.  But ... this is a blog and lack of knowledge doesn't seem to stop anyone else, so here goes.

The one piece of this that intersects with something of what I know about is Bradley and Gulati's depiction of a switch, towards the end of the nineteenth and early twentieth century, in how we viewed customary international law.  At one time -- like the era of Marshall's opinion in The Antelope -- there seemed to be a sense that customary international law was something very loose; a nation might opt out of it.  To invoke a phrase from the era, it seemed like a rope of sand.

But lo about the late 19th century, the view shifted -- to the now-dominant idea that nations can not opt out -- and in fact they may not even voluntarily opt in, in some cases.  That is, customary international law may become binding without any action on the part of some states, if enough other states have settled upon a rule as part of customary international law.  (Or so it seems from a citation to Hall's International Law (1880) in their paper at 12 n.50).  The timing of the switch was different for treatise writers and jurists -- the former preceded the later by several decades, it seems.  So while some writers were advocating the idea that a nation couldn't opt-out as early as the 1870s, as late as 1900 in The Paquete Habana our Supreme Court was still talking as though we could opt out of customary international law (or at least as though we could agree not to be bound in the first place).  Anyway, I hope that's a fair-enough statement of the timing. Bradley and Gulati are now suggesting that we should, again, be able to opt out.  They make this case on the basis of analogies in contract and corporate law, as well as constitutional design.  I don't know enough to have an informed opinion on their larger thesis.

What I want to speculate on is why we saw the shift over the course of the nineteenth and twentieth centuries to the rule we have now.  It seems to me that at least two things underlay the initial opt-out rule -- an overwhelming sense of the sovereignty and dignity of nations, such that they could move into and out of the constrains of customary international law.  And, second, a sense of positivism -- that nations could declare their law and only what they declared as law (and what everyone else agreed on) would bind them.  You see this in Johnson v. McIntosh, where Marshall talks about the uniform agreement of nations.  (And probably in The Antelope, as well -- though that's not as clear in my mind right now.)

But then we get to the late nineteenth century and we have a very different sense of law -- post Civil War, I think we had a much greater sense that there was a moral component to law.  No longer did we think with Alexander Pope that "whatever is, is right."  We were used to imposing moral judgments on others, such as the international slave trade; indeed, slavery itself is evil.  And as we sent missionaries out all around the world, part of the "civilizing" mission was to bring western values like the market and Christianity to far-off lands.  Part of that mission, I suspect, was customary international law.   Tie that idea together now with one other: that human society progresses in one direction.  Where in the early 19th century, it was common to think that different societies were in different places morally, economically, and culturally -- so it made sense to have different rules for them -- by the late nineteenth century we had a sense that we had figured out the best rules and wanted to impose them everywhere.  Once we had arrived at a higher moral plane, it made no sense to go backwards.  It was, I suspect, a one-way ratchet, to use a term from more recent constitutional thought.

Anyway, this stuff is oblique to their paper, but I think it may give some sense as to have we made the switch from pluralism to a unitary system; and maybe gives us some sense of how we might switch back to pluralism.

Now, why did I use an image of the movie post for Cold Mountain to illustrate this post?  First, because the movie reminded me I needed to post on this.  But second -- and more importantly -- I think the Civil War had a lot to do with the rise of the idea of progress in American law and the extension of those rules around the globe.  Of course, as I said before, this is some speculation on my part.  I'm viewing this stuff from a very high level of generality.

Comments

[Patrick S. O'Donnell]

Al,

There's quite a bit of food for thought here but I'll confine myself to a few observations:

It's interesting to consider the fact that the founding fathers of international law gave wide berth to natural law reasoning and morality and that not a few contemporary scholars are beginning to give new life to that tradition in international law (or one quite close to it, as in the case of Allen Buchanan's important efforts on behalf of developing 'moral foundations' for international law), owing largely to the notion of jus cogens norms (where do they come from? how do we ground them? etc., etc.). So, one instance when opting out of CIL would not be an option is when CIL has recognized jus cogens norms, although the "grounding" of these norms, as Larry May has persuasively argued, can hardly come from CIL itself:

"Think of the prohibition of torture. What started out as a matter of mere consent by some States is said to have evolved into a norm that is binding on all States, and that cannot now be overturned by the express agreement of States. And this is supposed to be due to the fact that these States not only consent to the norm, but behave as if they are bound by it from a sense of obligation. But how can it happen that a norm that is based on consent of various States can itself be transformed into a norm that is universally binding? At least part of the answer is that in addition to the original consent, it must now be that all, or almost all, States regard a given norm as a universal norm. [....] But in addition, all, or nearly all, States must demonstrate by their behavior that they regard the norm as binding."

It is here that May reminds us that we must distinguish between EVIDENCE for the existence of universal norm, and JUSTIFICATION of that norm." We can then appreciate the fact that

"consensually based custom cannot justify a jus cogens norm. The main reason for this is quite simple. Even if all States once consented to be bound by a given custom, and behaved as if this custom were universally binding, that would not make the norm universally binding since the States could change their views toward this custom. [....] If the norm is to be universally binding now, it cannot also be true that now States can make that norm not universally binding. Either the norm is universally binding or it is not."

May argues that conclusive evidence for a universal norm of international law (like jus cogens and obligations erga omnes) "is when there is both opinio juris and normative justification for such a norm." May, persuasively, in my opinion, proffers a Hobbesian- and natural law-inspired, morally minimalist "security principle" together with an "international harm principle" as a normative justification for jus cogens norms against genocide, crimes against humanity (e.g., enslavement, torture) war crimes and aggression (or crimes against peace).

A different and likewise normative justificatory argument (rather more ambitious than May's) for jus cogens norms is Criddle and Fox-Decent's "a Fiduciary Theory of Jus Cogens," available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1277393&rec=1&srcabs=983579

We can have pluralism AND a unitary system here insofar as various religious and non-religious worldviews possess the conceptual and moral resources from which they can argue to a recognition and endorsement of jus cogens norms provided, I think, their justification is fashioned--a la May--in a morally minimalist and abstract fashion much like the best justifications for human rights principles that have come to be accepted by a plurality of nations and peoples from rather different traditions and worldviews.

[Matt]

I strongly suspect that the changes you see in customary international law are connected with European imperialism in the 19th century in a rather more dark way, that is, as itself providing justification for subjecting "uncivilized" nations in the brutal and murderous way that was done in (all in accord with the law of the time!) in the later 19th century. That is, I suspect the main role of customary international law at the time was to allow Europeans to feel better about themselves while the slaughtered people and established colonies all over Africa and Asia. I'm not certain about this at all, but if there's an increasingly "moral" element in international law at the time it's hard to see how that had any impact on the behavior of European powers in the Congo, China, etc.

[Patrick S. O'Donnell]

While I don't share his characterization of the nature of international law (despite being, on many counts, a self-described Marxist), what Matt refers to above, namely, the "question of the relationship between international law and the systematic coercion of imperialism," is discussed in China Mieville's chapter, "Imperialism, Sovereignty and International Law," in his book Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic, 2005/Chicago, IL: Haymarket Books, 2006): 225-293.

Also important in this regard is Martti Koskenniemi's The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge, UK: Cambridge University Press, 2002), Paul Keal's European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Law (Cambridge, UK: Cambridge University Press, 2003), and Antony Anghie's Imperialism, Sovereignty and the Making of International Law (Cambridge, UK: Cambridge University Press, 2005).

Representative of the efforts to remedy some of the consequences of imperialism that persist in our own time is S. James Anaya's Indigenous Peoples in International Law (New York: Oxford University Press, 2nd ed., 2004). See too Part Three, "Self-Determination" (a pellucid discussion of the issues of secession and intrastate autonomy), of Allen Buchanan's Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford Unversity Press, 2004): 331-424.