The Persistent Objector Rule in International Law

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
International Law ◽  
Detailed Understanding ◽  
Customary International Law ◽  
Binding Force ◽  
Conceptual Role ◽  
State Practice ◽  
The Way

The persistent objector rule is said to provide states with an ‘escape hatch’ from the otherwise universal binding force of customary international law. It provides that if a state persistently objects to a newly emerging norm of customary international law during the formation of that norm, then the objecting state is exempt from the norm once it crystallises into law. The conceptual role of the rule may be interpreted as straightforward: to preserve the fundamentalist positivist notion that any norm of international law can only bind a state that has consented to be bound by it. In reality, however, numerous unanswered questions exist about the way that it works in practice. Through focused analysis of state practice, this book provides a detailed understanding of how the rule emerged and operates, how it should be conceptualised, and what its implications are for the binding nature of customary international law. It argues that the persistent objector rule ultimately has an important role to play in the mixture of consent and consensus that underpins international law.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Treaty Bodies

2019 ◽  
Vol 21 (3-4) ◽  
pp. 344-368
Author(s):  
Kasey McCall-Smith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary International Law ◽  
State Practice ◽  
Peremptory Norm ◽  
Treaty Body ◽  
State Responses ◽  
Reporting Procedures ◽  
The Way

Abstract This article contributes to existing understandings about the influence of human rights treaty bodies on the development of customary international law. It offers a method of assessing State responses to treaty body jurisprudence for the purposes of determining to what extent the responses push toward the reaffirmation or crystallisation of a customary rule of international law, namely the prohibition against torture. It speaks to the way in which, despite its status as a peremptory norm, the content of the norm is often challenged, but also incrementally expanding due in large part to the way in which treaty bodies engage and guide States both inside and outside of the primary reporting procedures. Ultimately, this article demonstrates that State practice and opinio juris are increasingly influenced by treaty bodies.

scholarly journals Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

2017 ◽  
Vol 14 (2) ◽  
pp. 227-253 ◽  
Author(s):  
Rossana Deplano, PhD
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

scholarly journals The Tallinn Manuals and the Making of the International Law on Cyber Operations

2019 ◽  
Vol 13 (1) ◽  
pp. 67-86
Author(s):  
Papawadee Tanodomdej
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Political Activism ◽  
Customary International Law ◽  
State Practice ◽  
The Right ◽  
International Experts

The Tallinn Manuals (the Manuals) attempted to clarify how to apply existing international law to cyber operations. Though the Manuals are non-binding instruments, the Group of International Experts claimed that they reflected the lex lata applicable to cyber operations. However, this claim is questionable due to the dominating role of a few Western states in the drafting process and the linked neglect of the practice of “affected states” in cyber operations. This article examines the quality of the Manuals’ drafting process and the composition and impartiality of the experts involved. It focuses on the issue of the prohibition of the use of force. The aim of this examination is not to discuss whether the Manuals provided the right answer to the question of how international law applies to cyber operations. Rather, they function as a case study of how legal scholarship may affect the making of international law. The article concludes that certain rules in the Manuals are marked by NATO influence and overlook the practice of other states engaged in cyber operations. Therefore, the Manuals disregard the generality of state practice, which should be the decisive factor in the formation of customary international law. As far as “political activism” may be involved, the article argues that the role of legal scholars as assistants to the cognition of international law could be compromised.

Part III The Limitations and Role of the Persistent Objector Rule, 8 Maintaining Exemption: ‘Fundamental’ Norms and Extra-Legal Factors

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
International Law ◽  
Actual State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
State Practice ◽  
The Face ◽  
Jus Cogens

A notable minority critique of the persistent objector rule is that the rule is not supported by actual state practice. The first part of this book dismissed these critiques. This chapter explores the ‘softer’ versions of the persistent objector rule. The first is that persistent objection is not permissible in relation to particularly ‘fundamental’ customary international law norms, even those that have not attained jus cogens status. This claim has most commonly been made with regard to norms of customary international human rights law. The chapter then turns to a related claim made by critics of the persistent objector rule, which is that it is commonly unavailing, not just in the face of especially ‘fundamental’ norms, but in general.

Part III The Limitations and Role of the Persistent Objector Rule, Conclusion

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
International Law ◽  
Detailed Account ◽  
Customary International Law ◽  
State Practice ◽  
Key Questions

This concluding chapter looks back at the issues outlined here. This book has presented a detailed account of the persistent objector rule seeking to assess the rule's existence and limitations and value in depth. However, this investigation can only go so far. This is because, like customary international law itself, the persistent objector rule has inherent uncertainties at its core. We cannot provide precise answers to at least some of the key questions concerning how the rule functions — for example, exactly how persistent and consistent the objection needs to be — because, in relation to these sorts of questions, there are no precise answers to give. It is hoped, however, that this book has helped to increase the general understanding of this often misunderstood rule. The book, the conclusion states, has aimed to go beyond the scholarly examinations of the rule and to focus on persistent objection ‘in action’ in state practice.

scholarly journals Revolution by Customary International Law?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 297-302
Author(s):  
J. Patrick Kelly
Keyword(s):  
International Law ◽  
Political Institutions ◽  
Customary Law ◽  
Customary International Law ◽  
General Acceptance ◽  
State Practice ◽  
International Tribunals ◽  
Deliberative Reasoning ◽  
World Perspective

B.S. Chimni's Customary International Law: A Third World Perspective announces a provocative normative approach to customary international law (CIL) designed to develop progressive norms by deemphasizing state practice and promoting deliberative reasoning as the basis for opinio juris rather than the general acceptance of states. Many of his historical concerns are compelling: the unfairness and dubious validity of the persistent objector principle, the lack of access and attention to non-European state practice, and the questionable legitimacy of CIL norms developed without the participation of a majority of states or their consent. While Chimni makes a compelling case for the problematic origins of much of CIL, his approach to reform raises serious legitimacy and practical questions that undermine the viability of his proposed solution. Problems such as extreme poverty, environmental degradation, and nuclear weapons are best resolved through democratic political institutions rather than weak and undemocratic international tribunals. I will analyze Chimni's approach first as a theory of customary law and then as a theory of the role of international tribunals. Finally, I will raise concerns about his normative goals.

Conclusions

2018 ◽  
Author(s):  
Amy Strecker
Keyword(s):  
International Law ◽  
Eu Law ◽  
World Heritage Convention ◽  
State Practice ◽  
The World ◽  
State Obligations ◽  
Made In ◽  
Landscape Protection

The final chapter of this book advances four main conclusions on the role of international law in landscape protection. These relate to state obligations regarding landscape protection, the influence of the World Heritage Convention and the European Landscape Convention, the substantive and procedural nature of landscape rights, and the role of EU law. It is argued that, although state practice is lagging behind the normative developments made in the field of international landscape protection, landscape has contributed positively to the corpus of international cultural heritage law and indeed has emerged as a nascent field of international law in its own right.

Customary International Law

2021 ◽  
Author(s):  
Pierre-Marie Dupuy ◽  
Keyword(s):  
General Practice ◽  
International Law ◽  
Complex Relationship ◽  
Customary International Law ◽  
Progressive Development ◽  
The World ◽  
International Law Commission ◽  
Law Commission

International custom “as evidence of a general practice accepted as law”, is considered one of the two main sources of international law as it primarily derives from the conduct of sovereign States, but is also closely connected with the role of the international judge when identifying the applicable customary rule, a function it shares with the bodies in charge of its codification (and progressive development), starting with the International Law Commission. Though mainly considered to be general international law, international custom has a complex relationship with many specific fields of law and specific regions of the world. The editor provides comprehensive research published in the last seven decades, invaluable to everyone interested in the field of customary international law.

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