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21 Duke J. Comp. & Int'l L. 207 (2010-2011)
Bespoke Custom

handle is hein.journals/djcil21 and id is 211 raw text is: BESPOKE CUSTOM EDWARD T. SWAINE* INTRODUCTION Curtis Bradley and Mitu Gulati's stimulating article describes a version of customary international law (CIL) they claim has been left on the shelf-and which they suggest might be dusted off and employed again.' CIL, they argue, was once thought to be subject (sometimes) to a right of unilateral withdrawal. They are at pains to avoid directly advocating a return to that approach, but they do suggest that it deserves serious consideration. Adopting a constrained right of unilateral withdrawal comes across as less of a revolution than a restoration, a return to those halcyon days before CIL was modernized (or, perhaps, radicalized). Bradley and Gulati deserve great credit for helping to revitalize the debate about CIL, and they correctly perceive that modern discussion neglects the possibility of unilateral withdrawal-and that a reevaluation is in order. This brief Essay simply hopes to extend that dialogue, rather than offering categorical support or opposition to the so-called Default View. It does suggest, though, that Bradley and Gulati's account of customized custom is itself bespoke. Because their understanding of the intellectual history of CIL, and that history's continuing significance, is contestable, they tend to understate the novelty of their thought-experiment. This bears, in turn, on their normative assessment of its appeal. I. THE DEFAULT VIEW OF CIL The Default View of CIL, according to Bradley and Gulati, is that CIL rules were at least sometimes subject to unilateral withdrawal.2 The qualifier contemplates two kinds of exceptions. First, it would permit only prospective withdrawal and, perhaps, require reasonable notice in order to protect reliance interests.3 Second, a narrow class of rules--discussed * Professor of Law, George Washington University Law School. 1. See Curtis A. Bradley & Mitu Gulati, Withdrawingfrom International Custom, 120 YALE L.J. 202 (2010). This Essay was originally prepared in reaction to a prior version of their article. 2. Id. at 206 (emphasis added). 3. Id. at 258-59; see also id. at 215. 207

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