Opting out of Customary International Law

One of the most fascinating topics (for positivists like myself anyway) is how customary international law incorporates a consensual element via the idea of persistent objectors.  Questions, of course, abound over why persistent objectors get an exemption from a customary rule, when subsequent objectors do not (unless other states acquiesce in the subsequent objector’s departure from the rule, or take it as the beginning of a movement towards a new customary rule, etc.)  In recent years, the implications of state decisions to opt-out of or simply not comply with customary rules have garnered increasing scholarly attention.  Most recently, Curt Bradley and Mitu Gulati have joined the conversation with their article, Withdrawing from International Custom.  That paper will be the basis of a scholarly roundtable this Saturday at Duke Law School, appropriately titled, Opting out of Customary International Law.  Although the papers for the roundtable aren’t publicly available yet, here’s the agenda.

Scholarship Roundtable: Opting Out of Customary International Law

9:15 am – 10:30 am Session 1: Justifications for and History of the Mandatory View
Papers:
Andreas Paulus, In Defense of Customary International Law
Amanda Perreau-Saussine, Changing the Rules
Anthea Roberts, Reflections on Bradley & Gulati’s Paper
Edward Swaine, Comment on Bradley and Gulati
Discussant: David Bederman

10:45 am – 12:00 pm Session 2: How Customary International Law Develops and Evolves
Papers:
David Bederman, Acquiescence, Objection and the Death of Customary International Law
Rachel Brewster, Withdrawing from Custom Through Treaty
Samuel Estreicher, Preliminary Observations on Bradley & Gulati
Christiana Ochoa, The Rule of Law, and the CIL Formation, Modification and Disintegration Process
Discussant: Anthea Roberts

1:15 pm – 2:30 pm Session 3: Considerations of Efficiency and Design
Papers:
Eugene Kontorovich, Inefficient Customs in International Law
Vincy Fon & Francesco Parisi, Stability and Change in International Customary Law
Larry Helfer, Comments on Bradley & Gulati
Joel Trachtman, Notes on How Persistent Objectors Play Chicken with Public Goods
Discussant: Paul Stephan

2:45 pm – 4:00 pm Session 4: Domestic Application of Customary International Law
Papers: Anthony Bellia & Bradford Clark, The Political Branches and the Law of Nations
John McGinnis, Domestic and Asymmetrical Withdrawal Rights from Custom
Paul Stephan, Disaggregating Customary International Law
Discussant: Ed Swaine