The Persistent Objector Doctrine

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.


Customary International Law

Customary international law (CIL) is perhaps the main source of international law. It is defined in article 38 of the Statute of the International Court of Justice as “evidence of general practice accepted as law”. Two elements stem out of this definition: a widespread practice among states (State Practice); and a sense of legal obligation that prompts states to accept the practice as law (Opinio Juris). However, the exact characterization of each of these elements remain uncertain. Hence, the ongoing debate over what are the criteria for CIL.

Which factors indicate State Practice? Scholars recognize a non-exhaustive list of evidence, including treaties, governmental statements, decisions by domestic courts and the enactment of national legislation. But, how many states need to be engaged into the relevant practice and for how long? In respect to these enquiries, there are not absolute criteria, so their analysis has to be conducted on case-by-case basis. For instance, in the Right of Passage Over Indian Territory, the International Court of Justice (ICJ) admitted the existence of a local custom amid the parties in the dispute, despite India´s objection that no custom could be established between only two states. Conversely, in the Asylum Case, the ICJ was reluctant to recognize the existence of a regional custom, by imposing a high threshold for determining the existence of a practice, peculiar to Latin-American countries, about the right to qualify political offenses for the purpose of conceding an asylum.

In relation to Opinion Juris, the ICJ stated in the North Sea Continental Shelf cases, that “[t]he states concerned must therefore feel that they are conforming to what amounts to a legal obligation.” The problem, however, is how to demonstrate what a state believe when it decides to embrace a specific action. Moreover, the classic formulation of Opinio Juris entails a circular argument: CIL certainly requires Opinio Juris, understood as a sense of legal obligation. But if a state believes that some conduct is legally binding, it is only because such conduct already entailed a legal obligation. Then, why would we need the Opinio Juris in the first place?

The above-mentioned issues affect the analysis of CIL and its formation process. Professor Andrew Guzman came up with an alternative-rational approach, in order to explain CIL. According to him, if a state is aware that, by acting contrary to the expectations of other States with which it interacts, it will face reputational sanctions and reprisals, then that state will have incentives to behave the opposite way, i.e., the conduct expected by those other states. Consequently, the Opinio Juris is not about what a state considers is (customary) law; rather, the believe of other states is what counts for determining whether a specific conduct entails a violation of a rule of CIL. Hence, only to the extent that other states within the international community consider there is a legal obligation, a potential violator faces a rule of CIL. Furthermore, within this alternative approach, the importance of State Practice is limited at serving as indicator of the perception of states about the existence of a legal obligation (i.e., the Opinio Juris).

© Rafael Tamayo, 2014.