I. INTRODUCTION
A rule of customary international law is binding upon all States. One controversial question is whether a State should be permitted not to be bound by such a rule in the event that it objected to it in the early stage of its formation and did so constantly thereafter. This is the theory of the ‘persistent objector’. Articles recently published about the theory focus on its specific application in different areas of international law, including international investment law,Footnote 1 international humanitarian lawFootnote 2 and human rights law.Footnote 3 The present article intends to examine the concept of persistent objector in general international law.Footnote 4
Although the concept of persistent objector can be traced back to more than 50 years ago, it only truly emerged as a coherent theory some 20 years ago when it was embraced by the United States. An analysis of the theory is all the more relevant today since in the last decades the United States government—as well as US domestic courtsFootnote 5—have continued to explicitly endorse the concept of a persistent objector. For instance, in 2006 the US Government wrote to the International Committee of the Red Cross stating that the doctrine of persistent objector ‘remains valid’.Footnote 6 The United States has also claimed this status on a few occasions in international proceedings and before domestic courts in an effort to prevent the application of a customary rule.Footnote 7 For instance, in a written submission submitted by the United States in 2008 in the context of the NAFTA Chapter 11 arbitration case of Grand River Enterprises Six Nations Ltd et al v United States, the persistent objector principle is described as one ‘which States and scholars regard as central to the legitimacy of an international legal order governed by rules of customary international law’.Footnote 8
The first part of this article deals with the basic definition of the concept of persistent objector and its conditions of application. We will then examine the reasons why a truly comprehensive theory of persistent objector emerged some 20 years ago in the United States as illustrated by the 1987 edition of the Restatement of the Law by the American Law Institute. The third part of the article intends to analyse the different grounds of criticisms that have been raised against the concept. We will provide readers with our own assessment of the concept. Our survey will show that there is only very weak judicial recognition of the theory of persistent objector and that there is no actual State practice supporting it. The status of persistent objector is in fact ineffective: there are no instances where such a claimed special status actually prevented the application of a rule of customary law to the dissenting State. What is more is the fact that the theory is logically incoherent and that its application is inconsistent. Ultimately, allowing a State to claim the status of persistent objector represents a fundamental challenge to the very concept of custom in international law. In our view, these findings undermine the existence of a persistent objector status in international law. Finally, this article examines whether or not the concept nevertheless plays any auxiliary role in international relations.
II. THE CONCEPT OF PERSISTENT OBJECTOR IN INTERNATIONAL LAW
A rule that has already crystallized into customary law is binding upon all States of the international community. A State is not allowed to opt out unilaterally.Footnote 9 The ICJ has clearly stated that customary rules ‘by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its favour’.Footnote 10 In fact, allowing a State to dissent on the ground that an already existing rule is contrary to its own interests would amount to a complete denial of the very existence of any customary rules in international law.Footnote 11 This is why States generally argue that a rule has not yet crystallized to become customary law instead of flatly rejecting its application.
As mentioned above, one controversial question is whether a State should nevertheless be allowed not to be bound by a rule of customary law because it objected to this rule ‘while it is in process of becoming one, and before it has crystallized into a defined and generally accepted rule of law’.Footnote 12 The objection, therefore, needs to be timely; no ‘subsequent’ objection would be allowed. A State is also required to actively, unambiguously and consistently maintain such an objection.Footnote 13 There is, however, no requirement that the objection be permanently held by that State. The question of the objection's form is not decisive; what matters is the intention of the State.Footnote 14 Objections can thus be made in various circumstances, including statements made during treaty negotiations, pleadings before national and international tribunals, voting and statements at international conferences, diplomatic communications, the promulgation of national laws, statements and reservations made when signing/ratifying treaties, etc.
It should be stressed at this juncture that the only direct potential effect of a State's timely objection to the formation of a new customary rule is that it would not be bound by that rule. Its opposition would not prevent the rule from eventually crystallizing into customary law and thereby being recognized as general international law amongst all other States. However, this distinction is not always easy to make in practice.Footnote 15 Consequently, the persistent objection of a small but particularly dynamic and influential group of States to a new rule may in fact prevent the rule from crystallizing into customary law.Footnote 16 Similarly, the objection of a very powerful State or a State which is ‘particularly affected’ by a new rule may have the same effect.Footnote 17 For instance, the United States successfully argued in its pleading before the ICJ in the context of its advisory opinion on the Legality of the Threat of Use of Nuclear Weapons that its opposition (and that of a few other States) blocked the development of a customary norm preventing the threat and the use of nuclear weapons.Footnote 18 This article will focus on the situation where one State claims persistent objector status to an emerging customary norm (and not with groups of States blocking the emergence of a norm).
III. THE REASONS FOR THE EMERGENCE OF THE CONCEPT
The emergence of a comprehensive theory of persistent objector is an illustration of the evolution of the nature of customary international law that has occurred in the decades following the end of the Second World War.
During the Cold War, there was no support for such a theory in the West. Thus, ‘the Anglo-American literature regarded [custom] as universal with the evident virtue that customary norms were binding on a recalcitrant Eastern Bloc [of socialist States]’.Footnote 19 The 1960s and early 1970s were marked by the end of colonialism and the independence of numerous new States, mainly in Asia and Africa. The emergence of these new States combined with the influence of the Eastern Bloc States dramatically changed the power structure in international relations. These developments were intrinsically linked to another fundamental change in international law-making processes. Custom became increasingly driven by rapidly emerging rules developed in the context of multilateral forums (negotiation of multilateral treaties, international conferences, international organisations, etc). In a famous article published in the American Journal of International Law, Professor Weil explained the ‘danger’ arising from some of the characteristics of contemporary customary rules law-making:
The classic theory of custom depends on a delicate, indeed, precarious, equilibrium between two opposite concerns: on the one hand, to permit customary rules to emerge without demanding the individual consent of every state; on the other hand, to permit individual States to escape being bound by any rule they do not recognise as such. (…) it is this opportunity for each individual State to opt out of a customary rule that constitutes the acid test of custom's voluntarist nature. (…) It is this equilibrium that is threatened today. For the past several years, the degree of generality required of a practice, to enable it to serve as the basis of a customary rule, has been steadily diminished, while, on the contrary, the binding character of such a rule once formed is being conceived of as increasingly general in scope. The result is a danger of imposing more and more customary rules on more and more States, even against their clearly expressed will.Footnote 20
At the time, Western States believed that their influence on the evolution and the formulation of international law rules was eroding as a result of these important changes.Footnote 21 Simply put, Western States feared losing control over the development of customary law.
It is in this context that the American Law Institute, an organization of legal academics and practitioners, published in 1987 its third edition of its Restatement of the Law, The Foreign Relations Law of the United States.Footnote 22 While not an official document of the US Government, the influence of the Restatement should not be underestimated. It has been described by one scholar as ‘the primary source of guidance for lawyers and judges in the United States on those questions of international law within its scope’.Footnote 23 The Restatement introduced for the first time in its latest edition the concept of persistent objector: ‘a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule of law even after it matures’.Footnote 24 This change has been attributed to the fact that the authors of the Restatement ‘very clearly perceived that the international legal order had undergone profound changes’ in the last decades since its last 1965 edition.Footnote 25 Stein explained as follows the United States' newly found interest in the concept of persistent objector:
[I]n this structure, new, generally applicable international law can be made through the adoption of multilateral treaties and be ‘evidenced’ by the resolutions of international organisations. It is a structure from which the United States must have an escape hatch since it cannot always control the process resulting in treaty texts or resolutions.Footnote 26
[The United States] should find in the persistent objector principle a doctrinal basis for freeing themselves from the results of multilateral processes that are seen as subject to the domination of a hostile majority.Footnote 27
The concept of persistent objector, which had already been recognized by some authors in the past,Footnote 28 was therefore suddenly embraced by the United States as a result of this new uncomfortable minority position.Footnote 29 One writer has eloquently described the theory of persistent objector as ‘the Western counter-reformation to this revolution’.Footnote 30 The novelty introduced by the latest edition of the Restatement started a ‘theological war of principles’Footnote 31 amongst scholars about the legitimacy of the concept in international law. It is indeed quite telling that the first writers who joined the battle, the late Professors Stein and Charney,Footnote 32 did so while the Restatement was still in draft form and had not yet been adopted. Many other authors were soon to go to the front lines on this controversial issue.Footnote 33
IV. THE PERSISTENT OBJECTOR UNDER ATTACK
Supporters of the legitimacy of the concept of persistent objector argue that it is ‘firmly established in the orthodox doctrine on the sources of international law’.Footnote 34 The concept is, indeed, recognized by a majority of scholars.Footnote 35 This is also the position adopted by the International Law Association (ILA) in its Final Report on custom.Footnote 36 However, as further discussed below, most writers believe that the status of persistent objector cannot be claimed by new States nor with respect to jus cogens norms.
The concept of persistent objector has been criticized by several leading scholars.Footnote 37 In the following sections, we will examine four different grounds of criticisms that have been raised against the concept: its weak judicial recognition (A), the lack of actual State practice supporting it (B), its logical incoherence and its inconsistent application (C), and, finally, the fundamental challenge it represents for the concept of custom (D).
A. The Weak Judicial Recognition of the Concept
It is frequently argued that the judicial findings in support of the concept of persistent objector do not represent the strongest of authorities. The judicial decisions referred to in doctrine in support of the concept will be briefly examined.
1. The Fisheries Case
The Fisheries Case is the only ICJ decision that has dealt with the question of persistent objector in the context of ‘general’ customary law.Footnote 38 In this case, Norway had adopted its own traditional system of delimitation (the method of ‘straight lines’) in order to determine the drawing of the baseline for measuring the breadth of the territorial sea or fisheries zone with respect to bays. The United Kingdom only accepted the legitimacy of that method for ‘historical bays’. It argued that another method of delimitation (the ‘ten miles rule’) had become customary law for all other situations and should, therefore, be applied by Norway. In their respective pleadings both States acknowledged the existence of the persistent objector principle.Footnote 39 The Court held that the ‘ten miles rule’ method had not acquired the authority of a general rule of international law. It then added that ‘[i]n any event the ten-miles rule would appear to be inapplicable as against Norway inasmuch as she always opposed any attempt to apply it to the Norwegian coast’.Footnote 40 The relevant quote is, therefore, a mere obiter dictum; the Court had already decided to reject the existence of any customary rule in the first place.Footnote 41 For many scholars, this undermines the value of this decision as a solid judicial precedent in support of the concept of persistent objector.Footnote 42
2. Separate or dissenting opinions
Supporters of the concept of persistent objector often refer to separate or dissenting opinions of judges in ICJ cases.Footnote 43 One example is the Fisheries Jurisdiction case where both the United Kingdom and the Federal Republic of Germany had consistently rejected the extension by Iceland of its fisheries jurisdiction from 12 to 50 miles.Footnote 44 The Court held that the extension of that zone beyond 12 miles was not opposable to them, but did not base its decision on their persistent objection to the extension, although it could easily have done so.Footnote 45 It is only in the separate opinions of two judges that reference is made to the concept.Footnote 46 It has been argued that the weak recognition of the concept of persistent objector is only further illustrated by reliance on these few separate or dissenting opinions.Footnote 47
3. The Fischbach and Friedricy Cases
Two writers have referred to two 1903 arbitration cases in support of the concept of persistent objector without, however, providing much detail about either their context or their actual outcome.Footnote 48 These are the Fischbach and Friedricy Cases decided by the Germany-Venezuela Mixed Claims Commission.Footnote 49 They involved two German nationals who were taken prisoner and assaulted by revolutionaries during a civil war which took place in Venezuela at the turn of the last century. The two Commissioners disagreed on the scope of Venezuela's admission of liability under a Protocol entered into in 1903 between the two countries. The issue at stake was whether Venezuela's liability should be limited to wrongful seizures of property by governmental troops and officials or whether it should be extended also to seizures made by revolutionaries. Umpire Duffield concluded that under the Protocol, Venezuela should be held responsible for the acts committed by the revolutionaries.Footnote 50 Having reached this conclusion, the Umpire nevertheless examined Venezuela's argument that such responsibility did not exist under international law:
International law (…) is merely a body of rules established in custom or by treaty by which the intercourse between civilised nations is governed. Its principles are ascertained by the agreement of independent nations upon rules which they consider just and fair in regulating their dealings with each other in peace and in war. (…) It therefore rests solely upon agreement. Obedience to it is voluntary only and can not be enforced by a common sovereign power. Any nation has the power and the right to dissent from a rule or principle of international law, even though it is accepted by all the other nations. Its obedience to the rule can only be compelled by an appeal to its reason and love of justice or by the superior force of the particular nation or nations whose interests are involved. Applying this inherent nature of international law to the question under discussion, it follows that neither Germany nor Venezuela was by force of law compelled to accept the other's judgment as to a principle of international law upon which they differed. Each nation held to its own opinion of what the correct rule of international law was in the premises—Germany, that Venezuela was liable for injuries arising from insurrectionary events, and Venezuela that she was not.Footnote 51
Does this statement support in any way the persistent objector doctrine? It seems rather to be supporting the simple proposition that every State has the right to its own opinion and should respect that of others. This is confirmed by the fact that the Umpire later stated, in an obiter dictum, that ‘substantially all the authorities on international law agree that a nation is responsible for acts of revolutionists under certain condition’ and that ‘there is, therefore, a rule of international law under which Venezuela would be held liable in certain cases for acts of revolutionists’.Footnote 52 Clearly, the above-mentioned ‘right to dissent’ did not prevent this customary rule from applying to Venezuela. In other words, even if one were to interpret the above statement as recognition of a State's theoretical right to dissent, it nevertheless remains that it failed to provide any protection to Venezuela against the customary rule. In any event, the Umpire concluded that Venezuela should be held responsible for the acts committed by the rebels based on the fact that it had implicitly admitted such liability under the 1903 Protocol.Footnote 53 Arguably, had the Umpire considered Venezuela's dissenting status to have any legal significance it would have interpreted the relevant ambiguous clause in the Protocol quite differently. Therefore, these cases do not support the existence of the principle of persistent objector in international law.
4. Roach & Pinkerton v United States
Another case sometimes referred to in doctrineFootnote 54 in support of the principle of persistent objector is the 1987 decision of the Inter-American Commission on Human Rights in Roach & Pinkerton v United States.Footnote 55 This case involved two individuals who received a death sentence and were executed in the United States for crimes committed before their 18th birthdays. In their complaint to the Commission, the Petitioners alleged that the United States breached the American Declaration of the Rights and Duties of Man (the ‘American Declaration’) and customary international law by executing persons for crimes committed before their 18th birthday. In its written submission, the US Government rejected the existence of any customary rule prohibiting the execution of juveniles. It also maintained that at any rate it had always dissented from that alleged rule.
In its Report, the Commission noted at the outset that a norm of customary international law ‘does not bind States which protest the norm’.Footnote 56 More specifically, the Commission indicated that ‘[s]ince the United States has protested the norm [of customary international law], it would not be applicable to the United States should it be held to exist’.Footnote 57 The Commission also further stated that ‘[f]or a norm of customary international law to be binding on a State which has protested the norm, it must have acquired the status of jus cogens’.Footnote 58 On this point, the Commission found that all member States of the OAS, including the United States, recognized the existence of a jus cogens norm prohibiting the execution of children, but noted that the United States was disputing the existence of any consensus concerning the question of the age of majority.Footnote 59 The Commission concluded that it was ‘convinced’ by the US position that ‘there does not now exist a norm of customary international law establishing 18 to be the minimum age for imposition of the death penalty’, but added that ‘the norm was emerging’.Footnote 60
The Commission's above-mentioned statement is undoubtedly a theoretical recognition of the validity of the principle of persistent objector in international law. However, the Commission did not apply the concept since it concluded that there existed no norm of customary international law in the first place. It should also be noted that the Commission's finding on the status of persistent objector had no practical impact on the outcome of the case. For the Commission, the ‘age question’ under customary law was not dispositive of the issue it had to decide. The real question was whether ‘the absence of a federal prohibition within US domestic law on the execution of juveniles, who committed serious crimes under the age of 18, [was] in violation of the American Declaration’.Footnote 61 The Commission noted that the great diversity of state practice in the United States on this question resulted in very different sentences for the commission of the same crime. For the Commission, ‘the severity of the punishment [is] dependent, not, primarily, on the nature of the crime committed, but on the location where it was committed’.Footnote 62 According to the Commission, this amounted to a ‘pattern of legislative arbitrariness’ in the United States which results in the arbitrary deprivation of life and inequality before the law, contrary to Articles I and II of the American Declaration.Footnote 63
5. Michael Domingues v United States
Interestingly, the issue of the status of persistent objector and the prohibition against the execution of juvenile offenders was at the heart of another Report by the Commission in the 2002 case of Michael Domingues v United States. Footnote 64 Mr Domingues had been convicted and sentenced to death in respect of two homicides that occurred in the state of Nevada in 1993 when he was 16 years old. At the time of the Report, he had not been executed. The Petitioner argued that by sentencing Mr Domingues to death for crimes committed while he was a juvenile, the US had breached the American Declaration and, more specifically, a jus cogens norm prohibiting the execution of juvenile offenders. In its response, the United States denied the existence of such rule and, in any event, claimed the status of persistent objector:
Even if the execution of sixteen and seventeen-year old offenders were prohibited by customary international law—which it is not—the United States has consistently and persistently objected to the application of such a principle to the United States. It is generally accepted that, a state may contract out of a custom in the process of formation by persistent objection [quoting the Restatement] (…) On this basis, therefore, the United States would not be bound by such principle if it existed. (…) The United States has persistently asserted its right to execute juvenile offenders in multiple international fora, such as the United Nations General Assembly, the United Nations Commission on Human Rights, responses to UN Special Rapporteurs, the Council of Europe, the Organization for Security and Cooperation in Europe, the Organization of American States, and the Inter-American Commission on Human Rights. (…) In sum, the United States cannot be bound by any customary international legal principle purporting to prohibit the execution of juvenile offenders given its persistent objection to the application of any such standard to the United States.Footnote 65
The Commission noted at the outset one question it would have to address: ‘whether the state of international law concerning the execution of individuals under the age of 18 has evolved since its [1987] decision in Roach and Pinkerton’.Footnote 66 In doing so, the Commission examined the elements of custom and made the following statement endorsing the concept of persistent objector:
Once established, a norm of international customary law binds all states with the exception of only those states that have persistently rejected the practice prior to its becoming law. (…) [A] norm which has been accepted by the majority of States has no binding effect upon a State which has persistently rejected the practice upon which the norm is based.Footnote 67
The Commission first stated that by ‘persisting in the practice of executing offenders under age 18, the US stands alone amongst the traditional developed world nations and those of the inter-American system, and has also become increasingly isolated within the entire global community’.Footnote 68 Interestingly, the Commission also added that the US position of objector was all relative and that in many respects it had abandoned such status.Footnote 69 For the Commission, the United States' position did not, however, prevent the development of a custom rule since 1987 when the Roach and Pinkerton report was rendered: ‘a norm of international customary law has emerged prohibiting the execution of offenders under the age of 18 years at the time of their crime’.Footnote 70
The Commission went further and came to the conclusion that the rule prohibiting the execution of juvenile offenders ‘has been recognized as being of a sufficiently indelible nature to now constitute a norm of jus cogens’.Footnote 71 For the Commission, the status of persistent objector claimed by the US could not prevent the application of a jus cogens norm ‘as violations of such preemptory (sic) norms are considered to shock the conscience of humankind and therefore bind the international community as a whole, irrespective of protest, recognition or acquiescence’.Footnote 72 The Commission's conclusion was that the US was therefore bound by this norm:
[T]he United States is bound by a norm of jus cogens not to impose capital punishment on individuals who committed their crimes when they had not yet reached 18 years of age. As a jus cogens norm, this proscription binds the community of States, including the United States. The norm cannot be validly derogated from, whether by treaty or by the objection of a state, persistent or otherwise.Footnote 73
This Report is undoubtedly an explicit endorsement of the concept of persistent objector.Footnote 74 This, however, had minimal practical impact since the Commission held that the prohibition was a jus cogens norm and that dissent would not be relevant. In any event, the Commission's statement did not prevent the United States from being held responsible for breach of an international treaty. The Commission held that by sentencing Mr Domingues to death for crimes he committed when he was 16 years of age, the United States had failed to respect his life, liberty and security in breach of article I of the American Declaration.Footnote 75
6. Conclusion on judicial decisions
In sum, only a few international courts and tribunals have endorsed the concept of persistent objector, and even then only in obiter dicta or in separate or dissenting opinions. Significant legal weight cannot be attached to the Reports of the Inter-American Commission on Human Rights cited above since it is not an international tribunal and its decisions are not formally binding on States.Footnote 76 These constitute merely theoretical recognition of the concept of persistent objector. In any event, in both cases the Commission ultimately held (for different reasons) that the concept would not provide any protection whatsoever to the dissenting State. What really matters is that, to the best of our knowledge, no tribunal has ever ruled that the status of persistent objector can effectively prevent the application of a norm of customary law to the objecting State. In other words, no judicial body has gone so far as to conclude that it can simply not apply a rule of customary law to a State based on its timely and persistent dissent to that rule.
B. The Concept is Not Supported by the State Practice
There is consensus in doctrine (even amongst its supporters) that there is very limited actual State practice supporting the concept of persistent objector.Footnote 77 In fact, the concept is rarely used by States in their international relations. This is because its use would show a State's isolation from the rest of the international community.Footnote 78 Instead, States usually claim that a rule has simply not yet crystallized to become custom.Footnote 79 We will briefly examine some of the rare instances of State practice involving the concept.
1. Law of the sea
Charney relies on two instances in State practice as evidence of the use of the persistent objector principle. One was the resistance by Japan and other States to the extension of the territorial sea from three to 12 nautical miles as well as the development of a 200 nautical miles Exclusive Economic Zone.Footnote 80 The strong support within the international community for these new rules finally overwhelmed the initial position taken by the recalcitrant States, which eventually gave up their position as persistent objectors. The other example given by Charney is the United States' initial opposition to coastal State jurisdiction over highly migratory species of tuna beyond the territorial sea.Footnote 81
2. Apartheid
The overwhelming majority of States never accepted the apartheid regimes of South Africa and the Republic of Rhodesia.Footnote 82 Both countries had timely and continuously objected to the emergence of customary rules prohibiting such racist regimes, but that did not protect them from the ever-increasing pressure from other States to conform to the standards prevailing in international law.Footnote 83 Their status as persistent objectors gave them no legal protection against the constant pressure exerted by the international community and the legal, political and economical actions taken by other States.Footnote 84 Both countries eventually gave up their dissenting position: Southern Rhodesia became an independent State in 1980 (the Republic of Zimbabwe) and the regime of Apartheid ended in South African in 1994.
3. Compensation for expropriation
Charney refers to another example of a failed attempt by a State to successfully use the position of persistent objector. It is, however, less convincing.Footnote 85 He refers to the Western States' position that compensation in cases of expropriation should be ‘prompt, adequate and effective’ (the so-called ‘Hull formula’).Footnote 86 He argues that this position by Western States did not prevent the development of another rule supported by the majority of States at the UN General Assembly calling for ‘appropriate compensation’ to be determined under the domestic law of the nationalising State.Footnote 87 For Charney, the Western States' position of persistent objector did not provide them with any protection against these subsequent developments of the law. However, more recent empirical research in the context of the proliferation of bilateral treaties for the protection and promotion of investments (BITs) shows that the Western States' position on compensation has finally prevailed and is now accepted by developing States in their treaties.Footnote 88 This is even the case for BITs entered into amongst developing States.Footnote 89 This is an example of two large groups of States being so divided with respect to a contentious issue that no customary rule emerged for a long time. In any event, this is not an example supporting the concept of persistent objector. Thus, the developing States' earlier objections to the Hull formula on compensation did not prevent it from now being considered custom.Footnote 90
4. Environmental damage caused by nuclear weapons
There are a few other examples cited in the literature to support the concept of persistent objector which on closer examination are equally unconvincing. For instance, Elias recently referred to the 2005 Study conducted by the International Committee of the Red Cross (ICRC) on customary international humanitarian law.Footnote 91 He rightly indicates that the study concluded that the United Kingdom, France and the United States should be regarded as persistent objectors to the rule of customary rule prohibiting the use of methods or means of warfare that are intended to cause widespread, long-term and severe damage to the environment in the specific context of the use of nuclear weapons.Footnote 92 However, the writer omits to mention the fact that such conclusion was only reached based on what the study referred to as the ‘hypothesis’ that the concept of persistent objector could, indeed, be admissible in the context of international humanitarian law. In fact, the study at its outset specifically indicates that it would not decide the controversial question of whether a State can legally claim the status of persistent objector concerning rules of customary international humanitarian law.Footnote 93 On this specific point, the United States criticized the Study and responded that it ‘believes that the doctrine [of persistent objector] remains valid’.Footnote 94 A Study that expressly decides not to take any position on the validity of the concept of persistent objector (in one specific area of the law) can hardly be deemed as supporting this concept.
5. Conclusion on State practice
These few examples show that other States do not recognize the objector status of a dissenting State.Footnote 95 According to Charney, ‘the evidence shows that no recognition is accorded to objecting States’ and that they are ‘treated as if they were in fact lawbreakers’.Footnote 96 For him, ‘if the persistent objector really were the beneficiary of a legal right acceptable to the rest of the world, other States could be expected to give some recognition to that right’.Footnote 97 Other States view negatively dissent to widely accepted developments of the law because it ‘promotes disharmony and discord’ in the system.Footnote 98 They will, consequently, continuously exert political pressure on the objector so that it conforms to the new standards shared by the overwhelming majority of States. Because the ‘political cost’ of dissenting ‘is likely to increase at an exponential rate as the objector becomes more isolated and as the issue increases in political visibility,’Footnote 99 few States will ultimately persevere in maintaining their initial opposition. Actual State practice shows that they will eventually accept the view of the majority.Footnote 100
It is true that, in general, one should distinguish between the existence of a legal doctrine and its effectiveness and concrete application.Footnote 101 Thus, ‘the fact that a doctrine is difficult to enforce does not mean that it does not exist’.Footnote 102 Clearly, overwhelmingly political and economical pressure exerted on the objecting State does not per se invalidate the legal position of that State. Indeed, this is the position taken by the ILA, for whom the fact that ‘the lone State swimming against the stream may eventually give up’ its claim of persistent objector ‘does not, of course, prove that it was not entitled to invoke the persistent objector rule so long as it wished to do so’.Footnote 103 The proposition that a State is ‘entitled to invoke’ the status of persistent objector is not controversial, but somewhat beside the point. There is, indeed, no doubt that a State can claim such status to prevent the application of a certain customary rule. The soundness of the legal position taken by the objecting State is not disputed. This is especially the case when the objection is strategically used by a State for a limited period of time (a point further discussed below). The real question is whether or not such argument is ultimately effective.
It is submitted that the absence of State practice supporting the actual and concrete usefulness of the status of persistent objector clearly undermines adherence to the concept. The ultimate aim of a State claiming the status of persistent objector is to prevent the application of a specific rule of law. It is not merely to offer an opinion on the perceived negative development of a new rule of law. The goal is to stop the application of such rule for itself. A State's entitlement to invoke the doctrine becomes moot if doing so never succeeds in halting the application of unwanted norms. The present author has found no example of State practice where a State's opposition to a customary rule was recognized by other States and where the claimed special status was effective in preventing the application of that rule to the dissenting State. In short, there is little practical value in a legal concept that does not help States to resist new developments in international law and does not immunize them from the general will of the international community.Footnote 104 Dupuy is right in describing the concept of persistent objector as simply a ‘myth’.Footnote 105 It is, in fact, ‘more a tool of the scholar than that of the diplomat’.Footnote 106 The potential auxiliary role that the concept of persistent objector may play in contemporary international politics will be discussed below.
C. The Concept is Logically Incoherent
Quite apart from the absence of judicial decisions and actual State practice supporting the concept of persistent objector, there are also some more fundamental reasons undermining its validity in international law. The theory of persistent objector is plagued with important logical contradictions, reflecting the fact that it is based on ideological and political convenience (1). One illustration of such logical inconsistency is the peculiar application of the concept of persistent objector to the specific case of new States (2). Another is the special regime applicable for jus cogens norms (3).
1. The concept is not logically consistent, but based on political convenience
The concept of persistent objector is mainly supported by writers adhering to the ‘voluntarist’ theory of international law. The concept has been described as ‘the clearest, most firmly established expression of voluntarist conception of obligation in the accepted doctrines of sources’.Footnote 107 Another supporter of the concept has even stated that ‘it is this opportunity for each individual State to opt out of a customary rule that constitutes the acid test of custom's voluntarist nature’.Footnote 108 The voluntarist theory is based on the assumption that the sovereign State's will is at the foundation of international law, and that a State is bound only by the law to which it has itself consented. The classic formulation of this theory was set out by the Permanent Court of International Justice (PCIJ) in the Lotus Case.Footnote 109 It should be noted that the Soviet theory of international law was to the same effect.Footnote 110 Voluntarist writers have also put forward the concept of a State's ‘tacit’ or ‘implied, consent to explain the development of customary rules.Footnote 111 State consent is undoubtedly one of the cornerstone principles of international law. Its importance has, however, diminished in recent times.
It is submitted that the concept of persistent objector is logically unnecessary under a voluntarist theory of international law.Footnote 112 Thus, if State consent truly is the cornerstone for the formation of any customary rule, it should logically follow that a State would simply have to show that it has not expressly consented to one rule in order not to be bound by it. An objection to a customary rule per se should be sufficient for opting out of such rule. Any other requirements like an early and consistent objection should be superfluous. All that should matter should be the lack of consent. These unnecessary additional requirements of timeliness and consistency in fact undermine the coherence of the concept of persistent objector under a voluntarist vision of the world.
In any event, the vast majority of scholars believe that the actual and specific consent of a State in the formation and development of a general customary norm is irrelevant.Footnote 113 The ‘tacit’ consent interpretation put forward by voluntarists has also been rejected as a mere fiction which does not represent the actual practice of States.Footnote 114 It has been convincingly argued that ‘the obligation to conform to rules of international law is not derived from the voluntary decision of a State to accept or reject the binding force of a rule of law’; it is instead ‘the societal context which motivates States to have an international law and obligates them to conform to its norms’.Footnote 115 Different theories have been put forward by scholars to explain why actual State consent is not required for a State to be bound by a specific customary rule. Reference has been made to an ‘inferred consent’ whereby a State's failure to object to an emerging custom rule is deemed as support for the rule.Footnote 116 Others have focused on State's general consent to ‘secondary’ rules of international law, which would include rules of custom.Footnote 117 Ultimately, most agree with Tomuschat that ‘consent alone cannot explain the binding force of international law’.Footnote 118 Some scholars speak of the ‘moral necessity which underlies observance of all law’.Footnote 119
However, it should be added that the situation is clearly different in the context of regional customs.Footnote 120 Since regional custom is (by definition) in derogation from general customary law, a State's specific acceptance of the ‘special’ rule is naturally required for such a rule to be binding on it.Footnote 121 Consequently, a State should be given the opportunity to claim the status of the persistent objector from a regional custom.Footnote 122 Indeed, this was the conclusion reached by the ICJ in the Asylum Case.Footnote 123
Since, in the context of general custom, the consent of a State in the formation of a customary norm does not actually matter, it should therefore logically follow that there is simply no place for the concept of persistent objector in international law.Footnote 124 Charney has rightly pointed out the irreconcilable position adopted by many writers who claim, on the one hand, that the consent of a State is not a necessary element in the formation of a customary rule, but nevertheless believe, on the other hand, that a State can (at least conceptually) successfully object to be bound by that same rule by simply not consenting to it.Footnote 125 For instance, Akehurst believes that ‘[a] State can be bound by a rule of customary law even if it has never consented to that rule’, but admits that ‘a State whose practice shows that it rejects the rule is in a different position’.Footnote 126
Some supporters of the concept of persistent objector have responded to such logical shortcomings by pointing out that ‘logical consistency (…) may not be the most important value at stake here’.Footnote 127 They argued that the concept is necessary because it ‘serves in part to prevent the tyranny of the majority in the multilateral forum’ and the imposition of a system of majority voting in international law.Footnote 128 Claiming the status of persistent objector would, indeed, allow a State to ‘unilaterally (…) opt out of a rule that it cannot tolerate, whether on grounds of principle or expediency, without preventing the general application of the rule’.Footnote 129 It has even been suggested that ‘this unilateralism may very well be the most important virtue’ of the concept of persistent objector.Footnote 130 Clearly, the concept of persistent objector is based on political convenience rather than legal reasoning.Footnote 131
2. The incoherent application of the concept to new States
One clear illustration of the logical inconsistency of the concept of persistent objector is its peculiar application to the specific case of new States. A great number of scholars who support the concept in general nevertheless argue that new States are automatically bound by rules of customary international law and that they should consequently never be permitted to claim the status of persistent objector, at least with respect to rules already in existence at the time of a new State's independence. Akehurst provides a simple enough explanation for this proposition:
A state can ‘opt out’ of a rule of customary law by dissenting before the rule becomes well established, but not afterwards. Unfortunately for the new State, most rules of customary law were well established before the State concerned became independent; independence came too late for them to dissent effectively.Footnote 132
For these scholars, allowing new States to simply reject rules which enjoy broad community support would amount to ‘deny[ing] the existence of a general international legal order”Footnote 133 and would ‘create unacceptable disorder’.Footnote 134 They believe that by freely entering the international community new States are acquiring rights and obligations which are attached to the status of an independent State.Footnote 135 While the ICJ has never had the opportunity to deal with this issue directly,Footnote 136 a passage taken from the Case Concerning the Frontier Dispute suggests that the Court supports the automatic application of custom to new States.Footnote 137
The opposite view only seems to be maintained by a small minority of (voluntarist) writers. They argue that established customary rules should not automatically be imposed on new States because they did not, and could not, consent to them.Footnote 138 New States should therefore be given the opportunity to determine, within a certain period of time after having gained independence, which customary rules they want to accept.Footnote 139 One ICJ Judge in the North Sea Continental Shelf Cases expressly endorsed a similar position in his separate opinion.Footnote 140
The position of writers who support the theory of persistent objector but refuse to apply it in the context of new States is not legally coherent. In the word of one scholars, ‘[i]f the international order is premised on the express or implied consent of states, then new states that have neither consented to, nor participated in the formation of custom have the inherent right to dissent’.Footnote 141 There is, indeed, no logic in refusing new States the right to claim the status of persistent objector if one considers a State's consent to be essential for it to be bound by customary law. Why should consent be so important for one group of States (existing States) and not for the other (new States)? Either one accepts the legitimacy for a State to claim the status of persistent objector or one doesn't.Footnote 142 It is not entirely clear why allowing new States to claim such status would deny the existence of the international legal order and create disorder, while allowing the exact same thing for existing states should instead be viewed as a legitimate expression of State sovereignty. It can certainly be argued that ‘new’ States' dissention is not more disruptive than that of ‘old’ (or rather existing) States.
In our view, the refusal by the vast majority of scholars to allow new States to claim the status of persistent objector is a good illustration of its inherent logical inconsistency.
3. The jus cogens exemption undermines the concept
Another logical inconsistency of the concept of persistent objector is the special regime applicable for jus cogens norms.Footnote 143 The vast majority of writers who support the concept nevertheless believe that a State should not be permitted to claim such status with regards to jus cogens (or peremptory) norms of international law because they are regarded as fundamental to all States. Other writers have argued that the same limitation should also be extended to principles of international law which are ‘inherent in the idea of a legal order’ (such as pacta sunt servanda).Footnote 144 This question has never been addressed by the ICJ.Footnote 145 Only a brief reference to the problem can be found in the individual opinion of Judge Nervo in the South West Africa Case (Second Phase).Footnote 146 In addition, as mentioned above, the Inter-American Commission on Human Rights has held that jus cogens norms ‘cannot be validly derogated from, whether by treaty or by the objection of a state, persistent or otherwise’.Footnote 147
It is no doubt sound to refuse to grant States the status of persistent objector with respect to jus cogens norms of international law. One cannot help but notice, however, that such a proposition is in fact incompatible with the basic tenets of the concept of persistent objector. The proposition is based on the assumption that the international community can and does impose rules on all States, including dissenters.Footnote 148 Yet this is the exact same assumption against which the whole doctrine of persistent objector was developed. As Charney explains, ‘once an argument acknowledges that a rule of international law can be binding on a State in the face of its timely and active objection, it must be accepted that the international legal system has the authority to legislate universal norms, notwithstanding the objections of some States’.Footnote 149 It is incoherent to allow a jus cogens exemption while at the same time supporting the theory of persistent objector.Footnote 150 There is simply no room for the jus cogens exception under a truly coherent voluntarist theory of custom.Footnote 151 In fact, this exception undermines the theory of persistent objector. It shows that the distinction between jus cogens and other rules ‘is not based on legal theory but on the strength of the will of the international community’.Footnote 152
In any event, the jus cogens exception results in some rather awkward situations. Before being elevated to its peremptory status, a norm must have been considered as customary international law for many years, if not decades. Pursuant to the tenets of the theory of persistent objector, a State that objected in a timely manner to the emergence of a new rule of customary international is not bound by such rule. What would happen in the event that the same rule is subsequently found to be jus cogens? The dissenting State would suddenly no longer be able to claim the status of persistent objector against that particular rule. It would be so even if that State had successfully opted out of the application of the same rule for years, even decades. Such important and sudden changes in the binding nature of rules of law are contrary to the basic requirement of stability in international law.
4. The concept represents a challenge to custom
Despite all its shortcomings, some writers nevertheless argue that the concept of persistent objector is essential insofar as it represents a compromise between different conflicting values at international law. For instance, Professor Weil argues that:
La reconnaissance ou le refus de la faculté pour un ou plusieurs Etats d'échapper à une règle juridique par une objection persistante constitue le test décisive de l'équilibre entre volontarisme et objectivisme, entre une communauté internationale en voie de personnification et l'inexpugnable souveraineté des Etats, entre les pouvoirs de la majorité et les droits de la minorité.Footnote 153
The above-mentioned ILA Report described the concept as a ‘useful compromise’:
As a matter of policy, the persistent objector rule could be regarded as a useful compromise. It respects States' sovereignty and protects them from having new law imposed on them against their will by a majority; but at the same time, if the support for the new rule is sufficiently widespread, the convoy of the law's progressive development can move forward without having to wait for the slowest vessel.Footnote 154
There is no doubt that this debate about the validity and the legitimacy of the concept of persistent objector is a clear illustration of conflicting values in international law.Footnote 155 In fact, the concept of persistent objector represents a challenge to custom itself.
Some authors argue that ‘the persistent objector principle remains an exceptional concession to the principle of consent (…) that does not entail a challenge to established law’Footnote 156 or that the concept ‘offers a way to oppose the application of a customary rule while conceding the existence of the rule’.Footnote 157 On the contrary, claiming the status of persistent objector is in our view without a doubt a challenge to established law. How can an explicit opposition to a principle of law by one State not be considered as a challenge to the general application of that same principle to all States? If a rule of law is considered as customary international law, it consequently applies to all States without any exception. If dissention is allowed, it simply means that the rule is not custom. There is no possible middle ground. Allowing a State not to be bound by a rule of law on the ground that such a rule is contrary to its own interests clearly undermines the very existence of custom as a source of law.Footnote 158 Moreover, the concept of persistent objector is ‘contraire à l'idée même d'un droit international général et commun à tous les États’.Footnote 159
V. DOES THE CONCEPT OF PERSISTENT OBJECTOR PLAY ANY AUXILIARY ROLE IN INTERNATIONAL RELATIONS?
It may very well be that although the persistent objector rule has ‘no legitimate basis in the international legal system’, its raison d'être can nevertheless be found ‘in the dynamics of international law development’.Footnote 160 Thus, faced with the emergence of a new rules supported by a majority of States within the international community, a State may very well find it useful to claim the status of persistent objector in the context of multilateral negotiations with this majority.Footnote 161 The concept can thus be seen as a ‘strategic weapon’ to be used by a State for a limited period of time as a ‘safeguard’ measure while it makes explicit its opposition to the new emerging rule.Footnote 162 During that period, a State could lobby others and try to gather sufficient support to prevent the development of the new customary rule. In this context, the objection must only be sustained during that critical phase. There is therefore no need for the objection to be ‘permanent’. The phenomenon of the persistent objector can therefore only be transitory.Footnote 163
Once a rule has crystallized and become customary law, it is binding on all States, including the initial objector. When that happens, it is simply too late for a State to oppose the new rule and to claim the status of persistent objector. Our survey of judicial decisions and State practice shows that at that time any such claimed status is ultimately ineffective to prevent the application of a new rule to the dissenting State. In this context, the concept of the persistent objector is a political tool and not a sustainable legal ‘right’.Footnote 164
Some authors have argued that the concept therefore increases the foreseeability of customary law-making. Thus, by making a timely express objection to an emerging rule of customary law, the dissenting State alerts other States to the nature and scope of that rule, therefore allowing them to take position.Footnote 165 According to Byers, the concept can ultimately play a ‘dialectic role’ in the development of customary norms. Thus, a State's vocal dissent while a rule is still in the early stages of its development ‘draw attention to changes being made in the law and to problems associated with those changes, thus encouraging other States to consider their actions carefully’.Footnote 166
VI. CONCLUSION
According to Mendelson, the question whether the persistent objector rule ‘exists’ is a matter of ‘induction from State practice and, to a subsidiary degree, from judicial and arbitral decisions’.Footnote 167 He believes that ‘the existence of the persistent objector rule is well established in state practice, case-law and the literature, and justifiable as a matter of policy’.Footnote 168 The present paper has demonstrated that this is clearly not the case.
Few international courts and tribunals have explicitly endorsed the concept of persistent objector. Some of these statements do not represent the strongest authorities insofar as they are merely obiter dicta or found in a limited number of judges' separate or dissenting opinions. What matters is that no tribunal has ever ruled that the status of persistent objector prevented the application of a norm of customary law to the objecting State.Footnote 169 The concept of persistent objector is also not supported by State practice. It is rarely used by States, and whenever it is invoked it ultimately fails. No example of State practice was found where a State's opposition to a customary rule was recognized by other States and where such a claimed special status was actually effective in preventing the application of a rule to the dissenting State.
The theory of persistent objector is also plagued with logical inconsistency. Its inconsistent application to new States and jus cogens norms shows that it is based on political convenience, rather than legal reasoning. More fundamentally, we believe that the mere prospect of allowing a State to dissent on the ground that a rule of customary law is contrary to its own interests undermines the very existence of custom as a source of law. The concept of persistent objector only brings more instability and unpredictability to the international legal order.Footnote 170 In our view, these findings undermine the existence of a persistent objector status in international law.
The important shortcomings of the doctrine of persistent objector have also been confirmed by writers in specific areas of international law. For instance, based on the ‘test’ developed by Professor Schachter to determine when the status of persistent objector may be permissible,Footnote 171 the present author has concluded elsewhere that the status of persistent objector claimed by a respondent State in investor-State arbitration proceedings should not prevent the application by an arbitral tribunal of the few existing rules of customary law in the field of international investment law.Footnote 172 Similarly, other writers have concluded that States should not be allowed to claim such status in the context of international humanitarian law,Footnote 173 or international human rights law.Footnote 174
Ultimately, although the concept of persistent objector is practically ineffective and logically incoherent, it may still have some limited relevance as a potential negotiation tool to be used by a State for a limited period of time in the early development of a new customary rule.
