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Can a state object to a customary rule of international law?

This essay will consider whether a State can object to a customary rule of international law. In order to provide context within which to examine this issue, the essay will begin with a brief introduction to customary rules of international law and how they are formed. It will then go on to evaluate whether or not there exists a rule of ‘the persistent objector’ and the utility of such a rule.

Article 38(1) of the Statute of the International Court of Justice is widely recognised as the most authoritative and complete statement as to the sources of international law.[1] Article 38(1)(b) provides international custom, as evidence of a general practice accepted as law, shall be applied by the ICJ as international law.

Customary international law derives from the practice of States.[2] Brierly remarks that “what is sought for is a general recognition among states of a certain practice as obligatory”.[3] Brownlie identifies four elements of customary rules of international law: duration; uniformity, consistency of the practice; generality of the practice; and, opinion juris necessitatis.[4] He states that provided the consistency and generality of a practice are proved, no particular duration is required, though the passage of time will be a part of the evidence of generality and consistency.

The leading pronouncement on the requirement for uniformity and consistency of the practice was made in the Asylum[5] case, where it was said: “The party which relies on a custom… must prove that this custom is established in such a manner that it has become binding on the other party… that the rule invoked… is in accordance with a constant and uniform usage practised by the states in question…”

In terms of generality, it is said that universality is not required,[6] but there are problems in determining the value of abstention by States in the face of a practice followed by others.

Finally, the customary rule should be recognised as obligatory, rather than simply operating out of courtesy. Hudson explains this as a requirement of a “conception that the practice is required by, or consistent with, prevailing international law”.[7]

Generally, international law is a system of law that is voluntarily accepted and voluntarily enforced.[8] With this voluntariness comes a right for a state to decide for “forfeit legality in favour of self-interest, expediency or humanity”.[9] In relation to treaties, States may choose to be bound or not, by either signing or refusing. Furthermore, in the Lotus[10] case the Permanent Court of International Justice held that: “The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations…”[11] Yet, there has been much debate as to the right to object to a rule of customary international law.[12]

Although this debate rages amongst academics, there is little judicial support for a rule that a State which declares its rejection of a customary rule is not bound by that rule. Where such a State objects from the development of the rule, they are known as a ‘persistent objector’ and it is to the possible existence of a ‘persistent objector’ rule to which this piece now turns.

The minimal judicial recognition of a persistent objector rule dates back to the Asylum case between Columbia and Peru. The Columbian government alleged that there was a rule of customary international law existing as a local custom within Latin-American states which authorised diplomatic asylum. Peru had refused to ratify the Montevideo Conventions of 1933 and 1939. The Court found against the existence of such a rule, holding that Columbia had not produced sufficient evidence to illustrate generality, uniformity, consistency and duration of the practice. However, it also recognised Peru’s objection to the Conventions as confirming its position as an objector to the concept of diplomatic asylum.[13]

Shortly after this case was decided the Anglo-Norwegian Fisheries Case[14] came to be decided. The ICJ appeared to recognise the existence of the persistent objector rule in accepting Norway’s objection to the 10-mile base line rule. Norway had enacted two decrees declaring its position as regards the base line of its territorial sea as being four nautical miles. The UK’s contention that the 10-mile rule was a rule of international law was rejected on the basis that the rule had “not acquired the authority of a general rule of international law”.[15] However, it was also said that in any event the rule was “inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast”.[16]

These cases show that in principle, a State may object to a customary rule of international law and not be bound by that rule. This is based on the need for consent to international law. This automatically leads to the conclusion that where the customary rule has become one of jus cogens, no right of objection will exist, as there is no need to consent to these rules.

An example is the case relating to South Africa and Rhodesia attempting to maintain apartheid.[17] The States failed in their reliance on the rule of the persistent objector to hold that the international law relating to genocide as an international crime did not apply to them. It may be said that the opinion juris of the international community as a whole did not permit the States to object and refuse to be bound by international law.[18] Thus it seems that the persistent objector rule may well exist, but only up until a point at which the customary rule becomes settled in the international community as a whole.

Having established in principle that the rule of the persistent object does exist, perhaps more problematic is the question of when a State must object in order not to be bound. Furthermore, what must a State do in order to be an ‘objector’?

In order to become a persistent objector it appears from the cases above that a State must object to the rule as it evolves or develops.[19] Indeed, the US Restatement reads: “… in principle 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 even after it matures. Historically, such dissent and consequent exemption from a principle that became general customary law has been rare.”[20]

Thus, in the opinion of many commentators therefore, there is no rule of a ‘subsequent objector’.[21] This means that where a new State comes into being after a rule of customary international law has already been formed, they will not be able to object to that law, but will instead be taken as consenting to that rule through the joining of the international community.[22] There is also no evidence that an ‘old’ State is able to change its mind about a rule of customary international law and ‘opt out’ later. However, where a State attempts to do this, and other States are in agreement, this will lead to the formation of a new rule of customary international law, to which the States who do not agree may become persistent objectors. This is obviously a slow process. It also fundamentally undermines the concept that the persistent objector must be one who objected during formation, as the new rule will develop provided there is sufficient international support. The rule is therefore one of international politics and opinion.

In this context it is useful to note the position of ‘acquiescing’ States. Shaw notes that customary law is established by virtue of a pattern of claim, absence of protest by states particularly interested in the matter at hand and acquiescence by other states.[23] MacGibbon describes acquiescence as “silence or absence of protest in circumstances which generally call for a positive reaction signifying an objection”.[24] The Chamber of the International Court in the Gulf of Maine case state that acquiescence is “equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent”.[25]

Thus, States which acquiesce to the development of customary international law are tended to be seen as consenting to that rule. So, where a State takes action which they declare to be legal, the silence of other States can be taken as an expression of opinion juris or concurrence in the new legal rule.[26] This of course means that actual protest is needed in order to be a ‘persistent objector’. Where an acquiescing State later protests, this will put them in the position of a ‘subsequent objector’ and they will not be able to prevent themselves being bound by the rule.

It has being argued that this position is unfair to those acquiescing States. If one takes the example of an international Treaty, mere tacit consent is not enough. Instead, a State must become a signatory in order to be considered bound by the Treaty. In contrast, tacit consent does appear to be enough in relation to customary international law. Abasheikh therefore argues that rather than maintaining this position, a State should be considered in the equivalent role to that of a ‘persistent objector’ until such time as they actually consent to the customary rule.[27]

In any event, it may be that acquiring the status of ‘persistent objector’ is a futile exercise. Charney[28] reflects on the position and remarks that, in the early stages of the development of a rule a number of States may object. Over time social pressures and the realities of the rule will cause those reluctant States to conform to the rule. Where the persistent objector rule remains, Charney argues that this promotes disharmony and discord in international relations. This will then cause more pressure from the international community to comply with the rule. In fact, Charney notes that the two ICJ cases which appear to be in support of the persistent objector rule themselves only arose in relation to rules which were still in doubt, that is, they were not fully developed. It is therefore contended that once a rule of customary international law is settled, there is no right to object to it as a ‘persistent objector’.

In conclusion, there is some judicial support for the view that a State can object to a customary rule of international law. However, this support is only theoretical, with no case as yet being decided on the basis of persistent objection alone. Furthermore, a State’s ability to object only exists if it objects from the evolution of the law, and does not stretch to a rule of ‘subsequent objector’. Related to this is the view that once a customary rule is settled into international law, even those who would have been classed as persistent objectors will lose the right to object through international pressure. Thus, the right of a State to object to a rule of customary international law is limited at best.

Bibliography

Abasheikh, O., “The validity of the persistent offender rule in international law”, (2004) Cov LJ 40

Brierly, Law of Nations, 6th Edition (1963

Brownlie, I., Principles of Public International Law, 7th Edition (2008), Oxford University Press

Charney, J., “The Persistent Objector Rule and the Development of Customary International Law”, (1985) 56 BYBIL 1

Dixon, M., Textbook on International Law, 4th Edition (2002), Oxford University Press

Dixon, M., and McCorquodale, R., Cases & Materials on International Law, 4th Edition (2003), Oxford University Press

MacGibbon, I.C., “The Scope of Acquiescence in International Law”, (1954) 31 BYIL 143

Restatement of the Foreign Relations Law of the US, Third (1987), Vol I

Shaw, M.N., International Law, 6th Edition (2008), Cambridge University Press

Tunkin, G.I., Theory of International Law, (1974) Harvard University Press

1


Footnotes

[1] Shaw, M.N., International Law, 6th Edition (2008), Cambridge University Press, pg 70

[2] Dixon, M., and McCorquodale, R., Cases & Materials on International Law, 4th Edition (2003), Oxford University Press, pg 28

[3] Brierly, Law of Nations, 6th Edition (1963), pg 61

[4] Brownlie, I., Principles of Public International Law, 7th Edition (2008), Oxford University Press, pp7-10

[5] ICJ Reports (1950) at 276-7

[6] Brownlie, supra, pg 8

[7] Hudson, quoted in Brownlie, supra, pg 8

[8] Dixon, M., Textbook on International Law, 4th Edition (2002), Oxford University Press, pg 5

[9] Dixon, supra, pg 3

[10] The S.S “Lotus” Case [1927] PCIJ Ser A No 9

[11] pg 4, para 18

[12] see Abasheikh, O., “The validity of the persistent offender rule in international law”, (2004) Cov LJ 40

[13] Abasheikh, supra

[14] 1951 ICJ Reports 116

[15] pg 131

[16] ibid

[17] South West Africa Cases [1966] ICJ Reports 6

[18] Abasheikh supra

[19] Charney, J., “The Persistent Objector Rule and the Development of Customary International Law”, (1985) 56 BYBIL 1

[20] Restatement of the Foreign Relations Law of the US, Third (1987), Vol I, para 102

[21] see discussion in Abasheikh, supra

[22] Tunkin, G.I., Theory of International Law, (1974) Harvard University Press, pg 129

[23] Shaw, supra pg 89

[24] MacGibbon, I.C., “The Scope of Acquiescence in International Law”, (1954) 31 BYIL 143

[25] 1984 ICJ Reports 246, pg 246

[26] Shaw, supra pg 90

[27] Abasheikh supra

[28] Charney, supra


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