LEA BRILMAYER

&

ISAIAS YEMANE TE S F A L I D E T

Treaty Denunciation and Withdrawal from Customary International Law: An Erroneous Analogy with Dangerous Consequences
In their recent article in The Yale Law Journal, Professors Curtis Bradley and Mitu Gulati argue for a sweeping reformulation of international law relating to the legal force of customary norms.1 The model that they propose (the Default View) has the highly counterintuitive feature that states would be entitled to unilaterally opt out of customary norms with which they disagree, even long after the norm in question became an accepted part of international customary law and even if they had approved of the norm originally. Among the grounds that they provide for this result are an analogy between customary and treaty law and the models supposed functional advantages. Bradley and Gulatis analogy to treaties, however, involves a serious distortion of the existing law of international agreements, which does not in fact grant a right of unilateral withdrawal. Their claim about functional advantages is also problematic: it overlooks the already adequate flexibility of the current approach (which they call the Mandatory View). Finally, the authors acknowledge that a state exercising the proposed right to revoke would elicit international disapprovalan apparent recognition of the costs of their model to the international community. All in all, the case for the Default View has not been made.

1.

Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 YALE L.J. 202 (2010).

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i. the supposed unilateral r ight to revoke treaties Bradley and Gulati base their claim that customary international law (CIL) ought to be unilaterally revocable on an analogy to treaties, as to which the right to revoke is (supposedly) well-nigh universal. Alluding in a rather cursory way to qualifications to this supposed right, the authors argue that a comparable right should exist for international custom.2 Given the centrality of this claim to their argument as a whole, a closer examination of the international law of treaties is warranted. In fact, the right to revoke or withdraw from a treatyin those limited circumstances where such a right existsalmost always arises because of what both of the parties agreed to observe, either when the treaty was signed or subsequently. The right to opt out is mutual, not unilateral. The few exceptions that are created by operation of law (rather than by agreement of the parties) are narrow and cannot begin to support the authors expansive claim of a unilateral right to revoke. A. The Vienna Convention and the Presumption of Continuance in Force Both Part V of the Vienna Convention on the Law of Treaties3 and the Conventions drafting history demonstrate that Bradley and Gulatis premise of a general right to unilateral withdrawal from treaties is mistaken. The Convention, which is widely understood to reflect CIL, does not recognize any general unilateral right to revoke or withdraw.4 Articles 42, 54, and 56 establish

2.

3. 4.

The most important of these qualifications are that nations often have such a right; that many treaties provide such a right; and that states have a right with some notice requirement. Bradley & Gulati, supra note 1, at 204 ([N]ations often have the right to withdraw unilaterally from [treaties].); id. at 214 ([N]ations often have the ability to withdraw from treaties, albeit sometimes with a notice requirement.); id. at 241 ([M]any treaties also allow for subsequent unilateral withdrawal.). In one footnote, discussing treaties that do not explicitly permit withdrawal, the authors admit that withdrawal is available only in narrow circumstances; this is with regard to withdrawal on the grounds of fundamental change of circumstances. See id. at 204 & n.4. Convention on the Law of Treaties art. 42(2), opened for signature May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). That the Vienna Convention is largely indicative of customary law was affirmed by the International Court of Justice in the Namibia case, even before the Convention entered into force: The rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject. Legal Consequences for States of the Continued Presence of South Africa in

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a presumption that, absent one of these circumstances, a treaty will continue in force.5 Withdrawal is appropriate only in the limited situations that the Convention specifies. The Vienna Convention recognizes several different circumstances in which a party to a treaty may withdraw. The first is where the treaty itself provides the right to withdraw; in other words, the withdrawal provision was intended or agreed to by all of the signatories.6 The intention may be either explicit or implicit in the agreement. The second occurs where the parties, at some point subsequent to a treatys entry into force, agree to terminate or suspend the operation of the treaty.7 The third is where the Vienna Convention itself recognizes a right of withdrawal by operation of lawin effect, as a result of a legal rule and independently of the parties intentions.8 Article 42, entitled Validity and continuance in force of treaties, recognizes that it is the normal state of affairs for treaties to continue in force; a party that seeks to withdraw from or terminate a treaty bears the burden of showing that the conditions for withdrawal exist. Paragraph 2 of Article 42 provides: The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention . . . . Concerning the rationale for Article 42, the official Commentary of the International Law Commission observed: [It] considered it desirable, as a safeguard for the stability of treaties, to underline in a general provision at the beginning of this part that the validity and continuance in force of a treaty is the normal state of things which may be set aside only on the grounds and under the conditions provided for in the present articles.9

5. 6. 7. 8. 9.

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, 47 (June 21). For a review of the procedural and substantive limitations on unilateral exit from treaties, see Laurence R. Helfer, Exiting Treaties, 91 VA. L. REV. 1579 (2005); for additional analysis and analogies with withdrawal from norms of customary international law, see Laurence R. Helfer, Exiting Custom: Analogies to Treaty Withdrawals, 21 DUKE J. COMP. & INTL L. 65 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1607744 (commenting on and supporting the proposal put forward by Bradley and Gulati). Convention on the Law of Treaties, supra note 3, arts. 42, 54, 56. See infra notes 9-10 and accompanying text. See infra notes 10-11 and accompanying text. See infra notes 12-19 and accompanying text. Intl Law Commn, Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. Intl L. Commn 172, 236, U.N. Doc. A/6309/Rev.1.

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Article 54, entitled Termination of or withdrawal from a treaty under its provisions or by consent of the parties, reiterates the importance of mutuality; the parties may agree, either during the treatys drafting or subsequently, upon the conditions for termination or withdrawal. It states: The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.10 Article 56(1), entitled Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal, likewise explains that withdrawal from a treaty is generally not possible unless the treaty contains a provision for its termination. It states that there are circumstances under which a revocation provision that is not expressly stated in the treaty may nonetheless be implied: A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.11 By stating that the basic rule is that, except in certain limited and specified circumstances, [a] treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal, Article 56 places the burden on the party seeking to withdraw. Article 42(2) of the Convention recognizes that there are situations where a right to withdraw is imposed by operation of lawin other words, according to some legal rule and regardless of the other partys consent. These situations are detailed in Articles 46 through 62. None of these articles supports the claim

10. 11.

Convention on the Law of Treaties, supra note 3, art. 54. Id. art. 56(1).

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made by Bradley and Gulati. To the contrary, the detailed and specific nature of these exceptions underscores that no general right of unilateral withdrawal exists. Such detailed and specific provisions would not be necessary if a general unilateral right of withdrawal existed. Article 46 deals with inconsistency between state internal law and the treaty; such inconsistency does not suffice to invalidate the treaty unless the violation was manifest and concerned a rule of its internal law of fundamental importance.12 Article 48 concerns the possibility of error in the treaty;13 Article 49 concerns fraud in the inducement;14 Article 50 raises the issue of corruption of a states representative;15 Articles 51 and 52 concern coercion of a states representative;16 and Article 53 deals with inconsistency between the treaty in question and jus cogens.17 Article 60 sets out the consequences of a breach by one of the parties; under limited circumstances, a breach by one gives the other party the right to withdraw.18 Articles 61 and 62 deal with impossibility of performance and fundamental change of circumstances.19 These are very specific and limited circumstances; none of them supports a general unilateral right of withdrawal, and Bradley and Gulati do not really claim that they do. Bradley and Gulati do mention the provision regarding fundamental change of circumstances, but they reveal in a footnote their awareness that this basis for revocation is extremely limited.20 These provisions no more demonstrate a general unilateral right of withdrawal from treaties than the contract law doctrines of change of circumstances or fraud in the inducement demonstrate a general unilateral right to revoke a contract.

12. 13. 14. 15. 16. 17. 18. 19. 20.

Id. art. 46. Id. art. 48. Id. art. 49. Id. art. 50. Id. arts. 51, 52. Id. art. 53. Id. art. 60. Id. arts. 61, 62. See Bradley & Gulati, supra note 1, at 204 n.4 (citing Vienna Convention on the Law of Treaties, supra note 3, art. 62).

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B. The Right To Invoke Certain Grounds as a Basis for Withdrawal or Termination The drafters of the Convention attempted in still another way to clarify that there was no general right to withdraw from a treaty. During the proceedings of the International Law Commission (ILC) and the Vienna Conference, an important distinction was made between the right to terminate (or right to withdraw) and the right to invoke certain grounds as a basis for withdrawal or termination.21 The ILCs official commentary explained its reasons for choosing the latter of these verbal formulations: The formula invoke as a ground is intended to underline that the right arising under the article is not a right arbitrarily to pronounce the treaty terminated.22 Evidently, the ILC did not mean to provide states with a unilateral right of revocation at will. This verbal formulation was introduced so as to provide stability of commitment in states international relations. Herbert W. Briggs observes: That the distinction was understood at the Vienna Conference on the Law of Treaties is clearly demonstrated by the rejection, by votes 52-4-34 and 51-3-38, of Venezuelan proposals to substitute a right to terminate for the right to invoke a breach as a ground for termination or suspension set forth in the International Law Commissions draft. After amending the Commissions text of Article 57(2)(c) [Art. 60(2)(c), Vienna] to substitute a right to invoke the breach as ground for suspension for the right to suspend which had crept into the Commissions text, the Vienna Conference adopted the article by a vote of 88-0-7.23

21.

22. 23.

United Nations Conference on the Law of Treaties, 2nd Sess., Vienna, Austria, Apr. 9-May 22, 1969, U.N. Doc. A/Conf.39/11/Add.2, available at http://untreaty.un.org/cod/ diplomaticconferences/lawoftreaties-1969/docs_e.html; United Nations Conference on the Law of Treaties, 1st Sess., Vienna, Austria, Mar. 26-May 24, 1968, 1968-1969, U.N. Doc. A/Conf.39/11, available at http://untreaty.un.org/cod/diplomaticconferences/lawoftreaties1969/docs_e.html; Intl Law Commn, supra note 9, at 254-55. The distinction has been respected by academics. Ian Brownlie, for example, writes, It is widely recognized that material breach by one party entitles the other party or parties to a treaty to invoke the breach as the ground of termination or suspension. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 622 (7th ed. 2008); see also Herbert W. Briggs, Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice, 68 AM. J. INTL L. 51, 56 (1974). Intl Law Commn, supra note 9, at 254. Briggs, supra note 21, at 56.

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If one takes seriously the argument that customary and treaty law are analogous, then one does not come to the conclusion that Bradley and Gulati reach. Accepting their analogy would entail that the customary norm would be unilaterally revocable only if: (1) at the time it was formed, revocability was the parties intent, either explicitly or by implication; (2) the parties later in fact came to an agreement that the customary norm in question should be revoked; or (3) some other exception existed as a matter of operation of law and not simply as a matter of unilateral preference. None of these conditions is met in the context that Bradley and Gulati address. There is no reason to believe that the states whose conduct brought CIL into being silently intended that it should be revocable at will. To the contrary: the opinio juris requirement for CIL provides that even to qualify as customary law in the first place a norm must be perceived as binding. A norm that is intended to be unilaterally revocable would not qualify under this test as it is currently understood. All in all, the analogy between customary and treaty law does not have the consequences that Bradley and Gulati intend. ii. functional advantages and the avoidance of sovereignty costs Accepting that the case for their model cannot be made solely by resorting to legal history or judicial precedent, the authors devote much of their article to detailing the Default Views supposed functional advantages.24 Among these claimed advantages are ways that their model obviates the need for states to undertake avoidance maneuvers in order to sidestep customary international legal obligations. But Bradley and Gulatis functional analysis tends to overlook the ways in which the Mandatory View already permits avoidance. The foundation on which their model rests is not, in reality, functional; it is a value judgment that a states freedom from sovereignty costs is more important than the benefits foregone because other states are similarly liberated. A. Examples of Erroneous Functional Reasoning The problem with Bradley and Gulatis functional analysis is clear in their reasoning about how states should be expected to act under the two different

24.

See, e.g., Bradley & Gulati, supra note 1, at 275 (In light of the Mandatory Views complicated historical foundations, it is particularly appropriate to consider the extent to which this View is functionally justified.); id. at 225 (recognizing that only American judicial precedent has been canvassed).

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models. One of their examples purports to demonstrate that [a]llowing for lawful exit rights under CIL might also enhance treaty-making: [M]ultilateral treaties are often invoked today as evidence of the content of CIL. This creates an anomaly, however, whereby nations frequently have a right to exit from the underlying treaties but not from the similar CIL derived from the treaties. This anomaly in turn increases the sovereignty costs associated with establishing and joining multilateral treaties. By contrast, allowing for exit rights under CIL would reduce these costs and thereby potentially encourage more treaty-making.25 The argument is incorrect in its claim that nations cannot already avoid the CIL obligation that might be triggered by the widespread adoption of the treaty. First, a state intending to sign a widely adopted treaty or convention may help protect against its incorporation into CIL by making clear that it does not believe that the norm in question is supported by opinio jurisa subjective sense of legal obligation.26 Second, and more importantly, the persistent objector doctrine (which the authors accept as a genuine norm of international law) would allow states an opportunity to opt out of the CIL norms in this example, as the norms had not yet crystallized.27 A second, comparably flawed example of supposed functional superiority deals with states suspecting that a new CIL rule may be in the offing. The authors posit that these states might fear that the rule will turn out to have unforeseen negative consequences so that they will immediately rally against it.28 This avoidance maneuver is unnecessary under their proposed model; they claim:

25.

26.

27.

Id. at 262-63 (citations omitted). The authors provide no reason to think that this scenario might be frequent enough to be of concern, or even that states might worry about the CIL obligations that could, in some unknown percentage of cases, be attributable to the states decision to sign a particular treaty. Id. at 209 (The standard definition of CIL is that it arises from the practices of nations followed out of a sense of legal obligation. Under this account, there are two elements to CIL: an objective state-practice element and a subjective sense-of-legal-obligation (or opinio juris) element. (citations omitted)). As Bradley and Gulati recognize, there is considerable controversy concerning this doctrine. See, e.g., id. at 204 ([T]he proposition is contested.); id. at 233 (The doctrine is controversial.). They seem to accept it, nonetheless, as an element of international law. Id. at 238 ([T]he persistent objector doctrine is now part of the canonical understanding of CIL.). Id. at 250-51.

28.

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Under the Mandatory View, when there are suggestions of a new rule, some nations might be concerned that the rules will turn out to have unforeseen negative consequences. If so, these nations with concerns will work hard to prevent new CIL from forming out of a fear that, once it forms, it will be binding and hard to change. By contrast, if a right of future withdrawal is permitted, it provides nations with a form of insurance, in that they can experiment with how the rule works for them and then back out of it if its negative effects outweigh the benefits.29 The authors fail to consider that, under the persistent objector doctrine, states in such a position need not be subjected unwillingly to the new rule. As in the previous example, they can protect themselves by repeatedly declaring themselves in opposition or by denying the subjective element of opinio juris. B. Value Judgments as Opposed to Functional Reasoning Both of these examples concern the effect of the two competing models on future behavior: the signing of treaties and the formation of CIL in the first case, and working to prevent formation of new CIL that is feared will be undesirable in the second. The examples future orientation is important, because it is in cases where the norm is not yet crystallized that the doctrine of the persistent objector is most protective.30 At the point in time on which these examples focusduring the states strategic analysis of the likely future effects of treaty-signing or the merits of the looming change in lawit is not too late to start representing consistently that the norms embedded in the treaty do not constitute existing international custom. If one focuses exclusively on the

29. 30.

Id. Under the Mandatory View, the persistent objector doctrine does not help the state that failed to object before the norm came into existence. The authors quote a report of the International Law Association: There is fairly widespread agreement that, even if there is a persistent objector rule in international law, it applies only when the customary rule is in the process of emerging. It does not, therefore, benefit States which came into existence only after the rule matured, or which became involved in the activity in question only at a later stage. Still less can it be invoked by those who existed at the time and were already engaged in the activity which is the subject of the rule, but failed to object at that stage. In other words, there is no subsequent objector rule. Id. at 205 (quoting INTL LAW ASSN, COMM. ON THE FORMATION OF CUSTOMARY (GEN.) INTL LAW, STATEMENT OF PRINCIPLES APPLICABLE TO THE FORMATION OF GENERAL CUSTOMARY INTERNATIONAL LAW 27 (2000)).

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future consequences for state strategic behavior of choosing between the two models, the difference between them is not great and Bradley and Gulatis functional arguments (as a result) are not particularly convincing. The differences between the Mandatory and the Default Views are greatest in relation to the consequences of events that have already taken place. Where customary law already has been formed, it will be too late for the persistent objector doctrine to release states from their obligations under the Mandatory View but not too late for withdrawal under the Default View. In such cases, the two models point in opposite directions. But to make their analysis retroactively applicable to state decisionmaking and norm formation that has already occurred, their argument needs to be grounded in something other than restructuring state behavior for the future. The argument would have to be something like the unfairness or unreasonableness of holding a state to CIL simply because it failed to object, or was not in any position to object, at the time at which the norm crystallized. This is not, strictly speaking, a functional argument, and it rests on value judgments somewhat foreign to the articles basic orientation.31 The chief of these is avoidance of sovereignty costs, a topic to which we will return below.32 iii. reputational incentives not to exercise the right of withdrawal At the same time that Bradley and Gulati propose a unilateral right of withdrawal from CIL, they anticipate that withdrawals would harm a states reputation enough that states would be disinclined to exercise the right.33 They never explain why withdrawal, with all the policy advantages that it supposedly provides, should trigger international opprobrium. Importantly, a states exercise of a right of withdrawal provided by treatywhich the authors represent as analogous to withdrawal from CILdoes not have these adverse reputational incentives.34 The fact that withdrawal from CIL would adversely affect a states reputation, in the authors view, suggests their unexpressed awareness that, in the eyes of the international community, withdrawal is the evasion of a legal commitment.

31. 32. 33. 34.

See infra note 47. See generally Bradley & Gulati, supra note 1, at 204-05 (summarizing the argument without relying on fairness claims). See infra note 47. See infra note 43. See infra note 45.

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A. Reputational Incentives Under the Default View The authors discussion of reputational incentives is part of their attempt to show that their proposed Default View would make it easier to differentiate between good and bad actors.35 The capacity to differentiate, which is important (they say) because it enhances a states ability to determine which states would make reliable partners, is depicted as limited under the traditional Mandatory View.36 Bradley and Gulati explain that under the Mandatory View, a good actor that disagrees with a norm may have to violate it because there is no other way of registering its objection.37 Since both good and bad actors engage in violations of CIL, albeit for different reasons, it will not be clear to other states whether the motive underlying a particular violation is defensible (to change the law) or indefensible (to renege on a commitment).38 Bad actors, to put it another way, can effectively disguise themselves as good ones.39 If the authors Default View is adopted, they claim, a good actor will have the option of withdrawing and will do so when it wishes to show disapproval

35. 36.

37.

38.

Bradley & Gulati, supra note 1, at 259-60. Id. at 262 ([O]ne of the mechanisms for international law enforcement is reputation, and the availability of good information is crucial for any reputation-based system to work. A system of vague laws that allows all but the most extreme violators to argue credibly that they are complying, and does not provide an incentive for the disclosure of noncomplying conduct, ends up revealing little information.). Id. at 260 (citing the bombing of Serbia by NATO forces during the Kosovo operation as an example in which good actors had to violate the rule against intervention and use of force). This example does not appear to support the claim that the authors are advancing. At the time when NATO bombed Serbia, none of the coalition members was publicly claiming to be violating a norm of customary international law on the grounds that the norms were wrong. Under the model proposed by the authors, the NATO states would still be barred from claiming immediate withdrawal given the notice requirement. Cf. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392, 420 (Nov. 26) ([T]he right of immediate termination of declarations with indefinite duration is far from established. . . . [I]t need only be observed that from 6 to 9 April would not amount to a reasonable time.). Bradley & Gulati, supra note 1, at 260 ([I]f the system of rules is made of antiquated and inefficient rules that cannot be altered quickly to tackle changed circumstances, then even the good types may find it necessary to violate the rules, and violations will not produce a reliable signal of type.). Id. at 259 n.240 (The issue is [to] distinguish a nations principled assertion of a right to withdraw from a relationship that has turned out badly from an opportunistic attempt to appropriate benefits that were created for a collective good. (quoting Paul B. Stephan, The New International LawLegitimacy, Accountability, Authority, and Freedom in the New Global Order, 70 U. COLO. L. REV. 1555, 1583 (1999))).

39.

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of the norm in question.40 Bradley and Gulati claim that it will therefore be possible to differentiate the good actors from the bad.41 Their explanation of the reasons for this conclusion is short, and it is not completely clear how they think states will make this differentiation.42 But one thing is apparent: for Bradley and Gulatis argument to work, bad actors must behave differently somehow from good actors. The point that they are making, after all, is that under their model states will be better able to tell which other states are reliable. Thus, if they believe that good actors would withdraw, the authors seemingly have to argue that bad actors would not. But why not? One would think that for bad actors, the withdrawal strategy would allow them easily to mimic the behavior of the good actors (as they do under the Mandatory View, Bradley and Gulati claim). The authors explanation of why the bad actors would not simply follow the lead of the good actorswithdrawalis that there are reputational incentives not to withdraw: One might ask why, in a world with the Default View, nations would not avoid this reputational pressure to comply by simply withdrawing from a CIL rule before violating it. Part of the answer is that, to the extent that CIL rules are viewed as legitimate and beneficial, there are reputational incentives not to withdraw from them.43 This argument raises a host of questions.44 The most important of these for present purposes is: why should exercise of a supposed right of unilateral

40.

41.

42. 43. 44.

Id. at 261 ([I]f there were a right to withdraw from CIL rules, rule violations (in the absence of a withdrawal) would be more likely to be taken as a sign of bad behavior, and the reputational incentives to comply would be greater.). Id. at 259-60 (In fact, reputational incentives to comply with international law might actually work better in a world with rights of withdrawal. . . . [R]eputational sanctions operate most effectively in settings where those involved engage in repeat transactions and have reliable information that enables them to distinguish good and bad types. To facilitate such evaluations, compliance with the rules of the system should send a reliable signal about whether a party is a potentially good or bad partner for the future. If the system of rules is viewed as generally effective and legitimate, then information that an individual actor has violated the rules will produce the inference that the violator is not a good type.). Id. at 259-61. Id. at 261 (emphasis added). For example, in the quotation above, it is not clear whether the authors mean that all nations, or only bad ones, would be reluctant to withdraw because of reputational concerns. Bradley and Gulatis literal wording is simply nations (not specifying good or bad); moreover, it is not obvious why good and bad states would see the matter differently.

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withdrawal give a state a bad reputation? If withdrawal were really the eminently defensible act that the authors make it out to be, there would be no reason for the international community to object to other states withdrawing. Under treaty law an exercise of a right of withdrawal would not cause harm to a states reputation.45 Obviously, under treaty law, there is no reason why withdrawal should cause harm; it is the exercise of a right that the parties themselves contemplated and deliberately included in the treaty. The explanation (one suspects) is that the authors realize that withdrawal will not be seen as the innocent act that they would characterize it as; withdrawal has a bad odor because it would be interpreted by the international community as the abandonment of a commitment.46 The fact that the authors posit reputational consequences for withdrawing reveals their awareness that withdrawal (in the eyes of the international community) is opportunistic and unacceptable. B. The Unilateral Right To Revoke and the Avoidance of Sovereignty Costs Bradley and Gulati attach great importance to avoiding sovereignty costs, meaning the symbolic and material costs of diminished national autonomy.47 In their examples it is repeatedly assumed that states will go to some lengths to avoid undertaking binding obligations.48 The practical benefits of flexibility are given primacy; little practical importance is attached to the main reason that states in fact make international agreements, namely, to obtain the

45.

46.

47.

But the argument about differentiating good from bad states does not seem to work if both good and bad actors display the reluctance to withdraw that the authors anticipate. As to the fact that no opprobrium attaches when states exercise the right of withdrawal expressed in the treaty, the authors seem to agree. Id. at 258 (If a right of withdrawal is built into the law, then it does not undermine the rule of law to exercise that right.). That the authors recognize the costs to the international community of withdrawal is also apparent from their references to excessive withdrawals. See, e.g., id. at 245-46. At times they seem to be reassuring the reader that withdrawals will not be unduly frequent; these reassurances indicate an implicit awareness that withdrawals impose a cost on the international system. See, e.g., id. at 270 ([T]here are a variety of reasons to conclude that the concern about excessive withdrawals is overstated.). Id. at 263 n.249 (quoting Kenneth W. Abbott, International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AM. J. INTL L. 361, 375 (1999)). See, e.g., id. at 207 ([W]ithdrawal rights would also reduce the danger that multilateral treaties could create CIL that, unlike treaties, would lack an exit option.); id. at 258 ([N]ations would be less likely to sign treaties if such signing was irrevocable.); id. at 26263 (This anomaly in turn increases the sovereignty costs associated with establishing and joining multilateral treaties.).

48.

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commitment of other states. States are thought of first and foremost as promisors with interests in minimizing the extent of their obligations, and only secondarily, if at all, as promisees who benefit from these commitments. This is not necessarily the way in which states themselves see things.49 Surely there is a trade-off involved. States presumably enter into treaties because it is of some value to them to obtain the commitments of other states. That commitment, clearly, is less valuable if it is less reliable, and it is surely less reliable if other state parties have a right of unilateral withdrawal. Treaty law is, in this respect, truly analogous to CIL; the strength of ones own commitment varies along with the strength of the commitment of other parties. Maintaining ones own autonomy comes at the cost of creating a right of exit for ones partners. You get what you pay for. conclusion Bradley and Gulatis article may be illuminating as a barometer of American views and interests: international law is viewed with suspicion by some American politicians, as an infringement on national prerogatives.50 It is clear that powerful countries such as the United States do not depend so much on international law to protect themselvestheir defenses are primarily military and economic. It seems quite likely, however, that other states, especially smaller and less powerful ones, are more friendly to the idea of legal commitment and less exclusively focused on the symbolic and material costs of diminished national autonomy.51 International law is one of the few weapons that small and powerless states have against the United States. The challenges facing international law are difficult enough as things stand without further diminishing its force by depriving international custom and practice of their ability to generate binding obligations. Lea Brilmayer is Howard Holztmann Professor of International Law, Yale Law School. Isaias Yemane Tesfalidet received an LL.B. from the University of Asmara, Eritrea and an LL.M. from Yale Law School and is a fellow at the Forum for

49. 50.

The reasons are unfortunately beyond the scope of this limited Essay. The authors do not purport to have studied precedent from countries other than the United States. See, e.g., id. at 225 (recognizing that only American judicial precedent has been canvassed). See supra notes 47-48 and accompanying text.

51.

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International Criminal and Humanitarian Law. The authors wish to thank Rebecca Crootof, Yale Law School, Class of 2011, for her contributions to this Essay. Preferred citation: Lea Brilmayer & Isasias Yemane Tesfalidet, Treaty Denunciation and Withdrawal from Customary International Law: An Erroneous Analogy with Dangerous Consequences, 120 YALE L.J. ONLINE 217 (2011), http://yalelawjournal.org/2011/1/5/brilmayer-tesfalidet.html.

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