Since the moment a practice among States becomes a norm of Customary International Law (CIL), it is binding upon all States. Henceforth, a State cannot unilaterally choose not to abide the custom, unless it has openly dissented against it in a consistent manner. This is the persistent objector doctrine, whose main features are going to be explained below.
The conventional view of this doctrine implies that, while a practice is in the process of emerging as a rule of CIL, states have the chance to express, in a clear and sound manner, they disapproval. But, how can a State express such discomfort against a practice on the verge of becoming custom? There are many ways, inter alia, the public statements made by governmental authorities, reservations made at the moment of concluding international treaties, uniform pronouncements by national courts, the enactment of domestic legislation, and the exchange of diplomatic instruments. What truly matters is the time when these objections are expressed. If they come too late, i.e., after the practice has been crystalized as a norm of CIL, the objection will be futile. Therefore, in order to achieve the status of a persistent objector against norms of CIL, States must act previous to their formation.
Is curious that the persistent objector doctrine has not been sufficiently assessed in decisions of international courts. In the Fisheries Case, the International Court of Justice (ICJ) made one of its few references to the doctrine. In this case, England claimed that, for the purpose of determining the breadth of the maritime area for fisheries, a rule of CIL had allegedly placed a limit at ten miles from the baselines located in the coast; while Norway vindicated its own traditional delimitation system, based on the use of straight lines. In the merits, the Court ruled against England, stating that the ten mile rule did not constitute a norm of CIL. However, it also held that even it if had acquired such status, still would be “inapplicable against Norway inasmuch as she had always opposed any attempt to apply it to the Norwegian coast”.
An important aspect of the persistent objector doctrine, relates to its limitations when it faces rules with ius cogens character. For instance, in Michael Domingues v United States, the Inter-American Commission of Human Rights rejected the United States argument to be considered as a persistent objector of a CIL rule establishing eighteen as the minimum age for the imposition of a death penalty, because such prohibition had the status of a peremptory norm.
The persistent objector doctrine is based on the voluntarist vision of international law, according to which sovereign States are bound only by the laws to which they have consented. However, what drives a State to claim its status as a persistent objector, represents a fundamental challenge to the very concept of custom in international law. Hence, the criticism against the doctrine. Besides, the application of the doctrine is subject to incoherencies of practical nature. For example, does it apply to new states? By their very nature, these come into existence when most of the existing rules of CIL have already been crystallized. The questions remains: does a new State has no choice but to abide to rules in whose formation it did not participate nor could oppose?
© Rafael Tamayo, 2014.