Abstract
This Article examines how the Supreme Court of Bangladesh relied on a theoretical model of Customary International Law (CIL) advanced by Professors Curtis A. Bradley and Mitu Gulati to withdraw from the rules of CIL. It explores how the Supreme Court applied the same reasons and relied on the same authorities as did the proponents of this model to effect a withdrawal. Although Bradley and Gulati advanced their model as an academic experiment, this did not deter the Supreme Court from applying the model to withdraw from the rules of CIL which define the jus cogens offence of crimes against humanity and to eventually sentence to death an opposition political leader on the basis of such withdrawal. Bradley and Gulati’s model of CIL has been subject to a lot of scholarly criticism and the Bangladesh experience has to some extent justified these criticisms. This Article shows how countries which are prevented from achieving certain outcomes or realizing certain goals because of CIL may simply adopt Bradley and Gulati’s model to withdraw from its rules.
Highlights
On September 17, 2013, Bangladesh asserted its right to withdraw unilaterally from customary international law (CIL)
This Article examines how the Supreme Court of Bangladesh relied on a theoretical model of Customary International Law (CIL) advanced by Professors Curtis A
The issue before the Supreme Court in the case of Molla was whether the elements of crimes against humanity under CIL would be directly applicable to the trials in Bangladesh
Summary
On September 17, 2013, Bangladesh asserted its right to withdraw unilaterally from customary international law (CIL). Despite the attempts to conceal the influence of Bradley and Gulati, evidence of the Supreme Court’s reliance on their model of CIL is overwhelming.[10] By virtue of this decision, Bangladesh has probably become the first nation in modern times to exercise a right of unilateral withdrawal from CIL. Bradley and Gulati would no doubt be pleased that Anthea Roberts’s criticism that they “can cite to no examples of states arguing for a right of withdrawal”[11] can be rectified Their model of CIL has been adopted by Bangladesh and it is no longer only confined to the academic laboratory.[12] Bangladesh’s position on international law can form the basis of a case study for Bradley and Gulati’s proposed model of CIL.
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