Academic

Bradley and Gulati on Opt Out in Customary International Law

By Alfred Brophy

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:

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.

Full post as published by The Faculty Lounge on December 20, 2009 (boomark / email).