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Opting Out Of The Law Of War: Comments On 'Withdrawing From International Custom', David Luban
Opting Out Of The Law Of War: Comments On 'Withdrawing From International Custom', David Luban
Georgetown Law Faculty Publications and Other Works
This paper is a response to Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale LJ 202 (2010), which argues against the "Mandatory View" (according to which states are bound by customary international law with no possibility of opting out), and in favor of a "Default View" which permits states to opt out of international custom unilaterally. My response offers the following arguments: (1) Currently, the most significant contested issue about customary international law in U.S. discourse concerns the laws of war -- a topic that Bradley and Gulati treat only briefly and incidentally. Their proposal would …