Some Remarks on the Persistent Objector
Rule in Customary International Law

Olufemi Elias*

Since the publication of the first edition of Brownlie's Principles of Public
International Law in 1966, the term "persistent objector" has become a term of art
in international law. 1 Subsequent discussion2 of the subject (in which there has
been considerable interest particularly in the last decade) reveals a polarity of
opinion; the majority of writers (hereinafter "optimists") confirm the existence
and vitality of the rule, while some writers (hereinafter "sceptics") would not. The
sceptical views range from the general (for example, that there is little or no role for
the persistent objector rule to play whether in theory or in practice)3 to more
qualified pessimism (for example, that there is a role for the rule in theory which
has not been played in practice).4 The purpose of this article is not to deal
comprehensively with all aspects of the persistent objector rule.S It is, rather, to
suggest that even if this scepticism is ultimately justified, many of the arguments
upon which it is based do not provide compelling reasons for the rejection of the
principle in contemporary international law-making. This will be done by
examining three issues: the actual formulation of the persistent objector rule itself,

* Lecturer in Law, University of Buckingham. The author wishes to thank Professor M. H. Mendelson
and Dr A. V. Lowe for their patient discussion of an earlier draft of this paper.

I. Brownlie, Pn'nciples of Public International Law 1st ed. (1966), p. 8; 2nd ed. (1973), p. 10; 3rd ed.
(1979), pp. 10-11; 4th ed. (1990), p. 10.
2. The authorities sometimes deal with the subject without direct reference to the "persistent
objector"; the following list is not, therefore, exhaustive: Kelsen- Tucker, General Pn'nciples of
International Law 2nd ed. (1966), pp. 446-48; D'Amato, The Concept of Custom in International Law
(1971), pp. 187-199, "On Consensus", 8 Canadian Y.I.L. (1970), pp. 104, 108, andlnternationalLaw:
Process and Prospect (1987), generally Chs. 1,5 and 6; Thirlway, International Customary Law and
Codification (1972), p. 110; Akehurst, "Custom as a Source of International Law", 47 (1974-5)
B. Y.I.L., pp. 23-27; Bos, A Methodology of International Law (1983), pp. 247-255; Charney, "The
Persistent Objector Rule and The Development of Customary International Law", 56 (1985)
B. Y.I.L., pp. 1-24; Stein, "The Approach of the Different Drummer: the Principle of the Persistent
Objector in International Law", 26 (1985) Harvard 1.L.Jo., pp. 457-82; Colson, "How Persistent
Must The Persistent Objector Be?", 61 (1986) Washington L.R., pp. 957-970; Koskenniemi, From
Apology to Utopia (1989), pp. 393-95.
3. Charney, supra n. 2.
4. Stein, supra n. 2.
5. The authorities cited in n. 2 supra, especially Stein and Charney, provide more general and detailed
treatment of the issues involved.

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the state practice relied upon by the sceptics, and the theoretical basis of the
sceptical position.

Trite (though perhaps somewhat artificial) as it may seem, it is important at the
outset to restate the distinction between the "persistent" and the "subsequent"
objector.6 We are concerned here only with the former, that is, the State that
objects to a rule of customary international law at the time of the formation of the
rule, as opposed to a State that objects later on. None of the authoritative texts
would permit a State to opt out of an existing rule of customary international
law, and not many would subscribe to the view that new States can choose to
exempt themselves from the application' of an existing rule.7 And practically
speaking, a State that objects after a rule has come into existence is necessarily
attempting to change the rule, and for it to show that it is not bound by that rule
may prove to be a difficult task; as Bos puts it, " ... the objector-State may have to
accept the consequences of what might be considered to be a change of
heart ... ".8 There may well be cases in which the distinction between persistent
objection and subsequent objection is difficult to draw,9 but in principle the
distinction is not problematic.

The definition of the persistent objector rule
A striking feature of discussions about the existence and vitality of the persistent
objector rule is the lack of a common statement of the rule itself. Brownlie is
concerned with "the rule that a State may contract out of a custom in the process of
formation."lO Similarly, Akehurst states that

"The question therefore is whether a State can prevent a rule of customary
law becoming binding on it in the first place."l!

According to these jurists, the question is whether it is permissible in
international law for a State to avoid the opposability of a particular rule to that
State, and the answer is in the affirmative, subject to the rebuttal of a probable
presumption of acceptance.

6. Brownlie, supra n. I, 4th ed., pp. 1O-1l.
7. The position is encapsulated in the Draft of the Restatement of the Foreign Relations Law of the
United States (Revised) in Comment (d) on Section 102:

"Dissenting views and new Scares ... a dissenting state which 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 ... A state that enters the international system after a practice has ripened into a rule
of international law is bound by it."

8. Bos, supra n. 2.
9. E.g., while the literature shows that many supporters of the rule are quick to cite the Anglo-
Norwegian Fisheries Case (1951) I.e.]. Reports 116, the discussion by Brownlie (supra n. 5) shows that
the International Court treated the maner as one of subsequent objection on Norway's part plus
acquiescence on the part of other States.
10. Supra n. 6.
11. Supra n. 2, p. 24.

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PERSISTENT OBJECTOR RULE IN CUSTOMARY INTERNATIONAL LAW

One may compare these formulations with those of another kind. For instance,
Bos asks the question whether a State "can" be bound by a rule in spite of the fact
that it fails to have the relevant opinio juris or that it displays a different opinio juris
in relation to that rule. 12 Kelsen states that

"It is possible to assume that a state is bound by international law only if it
recognises this law as binding upon it ... But there is hardly a writer ready
to accept all the consequences of such an assumption."13

According to this category of formulation, the question is whether a State can be
bound in respect of a rule to which it has always objected. Interestingly, the answer
is also in the affirmative. Kelsen does not examine the scope of his answer, while
Bos does, but they both give the same answers.

We may now compare and contrast the two categories of formulation. The first
category seeks to find out whether a State can avoid being bound by a rule to which
it has persistently objected, and the answer is affirmative. The second category
seeks to find out whether a State can be bound by a rule in spite of its persistent
objection, and again the answer is affirmative. A semantic problem becomes
apparent. The first category says a State can avoid the obligation while the second
says it can be bound. The problem is that these two categories are hardly mutually
exclusive. There is a gap left uncovered by these formulations. Dealing with one
category exclusively does not tell the whole story. At this purely semantic level, it
is at least perfectly possible that there is no necessary disagreement as to the
existence of the persistent objector rule at all. Perhaps it is not a coincidence that
the first category is that of optimists (Brownlie and Akehurst), while the second is
that of sceptics (Bos and Kelsen). It appears (to borrow Stein's metaphor) that
they are each dancing to the rhythm of a drummer which cannot be heard by the
other. If the disagreement is to be substantiated, the truth conditions of the one
category must be compared with those of the other - only then will the real bone of
contention be revealed, and then dealt with.

The problem can be illustrated by a scrutiny ofBos' thesis.14 He argues that the
psychological element required for the formation of a rule of general customary
international law is opinio and not voluntas, and that since the latter, being the will
of the actor, cannot be generalised to the point where it becomes the referent for
determining what counts as law, then "there is no room for voluntarism." IS This
is, however, at least controversial; so, unlike Unger,16 Bos qualifies this by looking

12. Supra, n. 8.
13. Supra, n. 2. Charney's interpretation that Kelsen argues that "international law is binding even on
the dissenting State" is not supported by this text (see Charney, supra n. 2, at p. 3, n. 9).
14. Supra, n. 2.
15. Ibid., p. 221.
16. R. Fidelio Unger, Volkergewohnheir srrechr-objekrives Rechr odes Geflecr bilarerales Beziehungen?
(1978), pp. 10,53-55,68-70,74-76, 149.

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at "values". If the "weight" of the value sought to be protected by a rule is
"overpowering", the persistent objector "should not be excluded from the
applicability of the rule which, to all intents and purposes, may be considered to be
ius cogens." 17

This view shifts from description to prescription and back again, without any
warning. In any case, other difficulties are raised. There is still much to be
discovered about ius cogens.18 How is a norm of ius cogens created? What is meant
by the "international community as a whole" in Article 53 of the Vienna
Convention on the Law of Treaties? It appears that the category of ius cogens is still
largely an empty box, subject to a few possible exceptions. And while we seek to
establish whether, and if so when, a State can benefit from persistent objector
status in relation to rules of custom, with considerable difficulty, this thesis takes
us into the even more shaky area of ius cogens. It holds some water only ifit can be
shown that rules of ius cogens come into force through the same process that creates
customary international law, but there are not many bigger "ifs" than this where
international law-making is concerned.19 The answer to the problem, in
Wittgenstein's words, is not to introduce more flies into an already congested
bottle.

More important for our definitional problem is the question whether, even if the
persistent objector is bound by rules of ius cogens, it is bound by customary rules of
the character of ius dispositivum? The answer Bos gives is that " ... the judge,
arbitrators, etc. actually may have a choice," depending on the weight of the values
sought to be protected. A fortion' there is room for the persistent objector rule
where the umpire decides that the values (a question-begging notion in itself) are
not so important. Bos does not tell us anything about cases like these.

Rather than proceeding to provide authority for the proposition that there can
be no persistent objector rule where important issues are concerned, Bos examines
the evidence in a different way.20 For example, in relation to the 1982 United
Nations Law of the Sea Convention, he asks, in the light of the United States'
obstruction, whether or not the consensus reached over the years "is not
automatically destined to mature into general customary international law on a
number of important points." This raises a definitional problem of a different
kind. Clearly the persistent objector rule does not operate to prevent a rule from
coming into existence for those other States. In fact, that it comes into being is a
condition precedent for the persistent objector rule to apply. It is difficult to see
why the question is asked at all.

17. Bos, supra n. 2, p. 250.
18. See, e.g., Akehurst, 47 (l974-5),B. Y./.L., p. 273; Cassese and Weiler (eds.), Change andSlabiliry in
/mernalionaILaw-Making (1985), pp. 92-101. The literature on the subject is extensive; see n. 6, supra,
at p. 512, n. 25.
19. Charney, supra n. 2, appears to treat the creation of rules of ius cogens as being the same as that of
custom. But this is problematic - see the authorities cited in n. 18 for a discussion of the difficulties.
20. Supra n. 2, pp. 250-55.

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PERSISTENT OBJECTOR RULE IN CUSTOMARY INTERNATIONAL LAW

As to whether such law "should be" (as distinct from "is") considered binding
on the United States even if it persistently objected to it in some of its aspects, our
definitional problem re-emerges. The argument put forward is that the Anglo-
Norwegian Fishers Case21 does not say that the persistent objector can never be
bound, and that in any case, the alleged lO-mile rule, had it existed, would have
been a rule of ius dispositivum. As far as the North Sea Continental ShelfCases22 are
concerned, Bos argues that the Court did not treat acceptance of a rule as a conditio
sine qua non for the coming into being of a rule of general international law .23To
the first argument (that the authorities do not deal with ius cogens) one can reply
that the question relates not to ius cogens primarily but to ius dispositivum. To the
second argument, one may reply that, while the Court did not require unanimous
acceptance, it did not say that acceptance was not important.

So Bos has argued (but it is respectfully submitted, not proved) that a persistent
objector will be bound if the rule in question seeks to protect an important value.
But what those who support the persistent objector rule argue is precisely the
point left untouched by Bos, namely the case where the norm is not ius cogens. Is
there really any necessary disagreement here?24

If we consider the claims of some of the optimists, who ask whether a State
"may" or "can" contract out of a customary rule,25 we will see the same kind of
definitional difficulty. Brownlie seems to treat it as a simple question of proof -
"evidence of objection must be clear", clear enough to rebut a probable
presumption of acceptance. 26There is still, however, the question of what happens
even after these conditions are satisfied. In other words, does the objector-state
then become exempt from the obligation imposed by the rule once the
presumption of acceptance is rebutted? Might it not be the case that there are
circumstances in which clear non-acceptance is of itself insufficient to exempt the
non-accepting state from the application of the rule in question? This is the kind of
point which Bos seeks to make - perhaps there are some values, waiting to be
discovered (at worst) or articulated (at best) which might have so much "weight"
that individual dissent is insufficient to prevent the operation of the rule erga
omnes.

One can see the difficulty in another way - both optimists and sceptics can and
do rely on the same authorities. The relevant rule had not come into being in the
A nglo-N orwegian Fisheries Case, and so it is no authority for the persistent objector
rule, a sceptic would say, but the Court said that even if it had, Norway had
persistently objected and was therefore not bound, the optimist would argue. We

21. (1951) I.e.]. Reports, pp. 116,131.
22. (1969) I.e.]. Reports, p. 3.
23. Clearly this is irrelevant as far as the persistent objector is concerned. The question is not about a
rule of general international law coming into being; it is whether, after it has come into being, it binds
the persistent objector.
24. See, e.g., Thirlway, supra, n. 2., and Akehurst, supra, n. 18.
25. Supra, n.6 and n.lI.
26. Ibid ..

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can reverse the roles for the North Sea Continental Shell Cases. The "equidistance-
special circumstances" rule had not come into existence, say the optimists, so
anything the Court said was obiter; but the sceptics would argue, in Wei!'s words
that

" ... however, the implication was that the equidistance rule could
otherwise have been imposed upon the Federal Republic even though it had
expressly opposed that rule, and even though it was that very opposition
which had lain behind its refusal to ratify the Convention."27

The point being made is thus not one that relates to the merits of the different
sides of the discussion; rather it is simply that the questions are formulated in a
manner that leaves important questions unanswered.28 To put it differently, it is
one thing to say that it is permissible for X to do Y; it is quite another to say that it is
always permissible for her so to do. A formulation that might cover all possibilities
and therefore seek to provide a circumspect answer would look something like this:
"a State that has persistently objected to a rule can never be bound by that rule",
for the optimists, or "a State is always bound by a rule of general international law
irrespective of its persistent objection", for the sceptics. It is to formulations
similar to these that we must now turn, because they attempt to paint the parts of
the picture which are not dealt with by discussions tainted by the definitional
"sting". 29

The rule in operation: the "missing referent" revisited
Charney and Stein have provided what may now be regarded as a standard
repertoire of test-cases on the operation of the persistent objector rule in practice.
It is certainly true that academic support for the rule consists largely of
restatements of the rule "with little explanation and few supporting authorities", 30
and after an examination of possible authorities Charney concludes that "support

27. Weil, "Towards Relative Normativity In International Law", 77 A.].IL (1983), pp. 413,437
para. 4.
28. It appears that this may sometimes be deliberate. Brownlie's shon passage clearly invites funher
juristic elucidation. One only needs to compare the text(s) on the persistent objector (cited in n. I,
supra), which has remained the same, with the footnotes to these texts, which have changed
considerably.
29. Charney does not expressly formulate the principle one way or another. He refers expressly to the
formulations by Akehurst, Brownlie and in the Restatement as examples of authoritative formulations
of the rule; he thereby avoids the battle lines already drawn. By taking the standpoint of the optimist
when he is a sceptic, he deals with the principle in a generally circumspect way. His aim is to examine
the "real contribution" of the persistent objector rule "to the development of customary international
law." Herein lies the strength of his thesis: see supra n. 3, p. 5.

The formulation in the Restatement, essentially adopted by Stein ("a State that has persistently
objected to a rule .. .is not bound by that rule: supra n. 2, p. 457; is also an improvement, but it does
leave a margin untouched - that between "not" and "never": see n. 6, supra.
30. Charney, supra n. 2.

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PERSISTENT OBJECTOR RULE IN CUSTOMARY INTERNATIONAL LAW

for the rule in State practice and judicial decision is limited."31
The law of the sea is the most fertile area, particularly where the old problem of

the limits of territorial sea jurisdiction of coastal States is examined.32 The great
maritime powers favoured an extensive high seas area and therefore a limited
coastal State jurisdiction. In the case of Japan, this caused problems in relation
to other Pacific States when the latter claimed twelve-mile exclusive fishery zones
especially in the 1960s onwards. The matter was initially resolved by diplomatic
efforts which resulted in agreements which were "intentionally ambiguous"33 on
the question of the legality of such jurisdictional claims. Eventually, however,
Japan accepted the new law of the sea, including both the fishery zones and the
Exclusive Economic Zones. But was Japan ever bound by these rules without its
consent? As Charney admits,34 one cannot say, prior to Japan's acceptance, that
Japan could only fish with the permission of the coastal States (in which case Japan
would be bound in spite of its dissent) because the agreements had another side;
the coastal States had to get Japan to relinquish its rights to pursue fishing in
certain parts of the zones in question (in which case the States' views were only
partially effective against Japan). And after its acceptance, the question becomes
superfluous, since Japan had consented. The point is that while Japan was a
persistent objector, it was not bound; it only became bound when it ceased to
object. But perhaps a more important point is that this is not an example of the
persistent objector principle in issue at all. As with the United States35and the
United Kingdom,36had Japan not consented to a rule which was still in the process
of formation? One may even go so far as to ask whether the acquiescence of these
States had not actually finally helped the twelve-mile rule to settle.37In any case,
Churchill and Lowe say that "it seems unlikely that there is any State in the
position of a persistent objector in this matter",38 and it is difficult to state
categorically when the rule became settled. The point is the familiar one that
law-fmding is a difficult task in the system of custom. One only needs to look at the
methodology of international tribunals in some of the maritime delimitation cases

31. Charney, supra n. 2, p. 5. See also, n. 21 and n. 22 supra. See further, Charney's analysis of the
FisheriesJurisdiction Case (1974) I.C.J. Reports, pp. 10-12,29-30,120, 148-9. As with the other cases
he discusses, the judicial authorities, at best, fall foul of our definitional "sting"; they are inconclusive:
see n. 30, supra, pp. 9-11.
32. Ibid., pp. 11-14, and footnotes thereto.
33. Ibid ..
34. Ibid ..
35. See the Statement of the President on the Exclusive Economic Zone of 10 March 1983, in the Weekly
Compilation of Presidential Documents, Vol. 19, No. 10, p. 383 (14 March 1983).
36. See the Territorial Sea Act 1987.
37. See the historical accounts of the development ofthe law in this area in Brownlie, supra n. 6, pp.
187-189, and in Churchill and Lowe, The Law of the Sea 2nd ed. (1988), pp. 65-68. See also the
judgment of the International Court of Justice in the Fisheries Jurisdiction case (1974) I.e.]. Reports.
The Court avoided a ruling on the legality of Iceland's claim to a 50-mile exclusive fishery zone.
38. Ibid., p. 67.

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they have decided39to confirm this point.
In relation to the United States position on migratory tuna fish, the position is

not very different from Japan's in relation to the territorial sea prior to its
acceptance. Charney40 overlooks the imposition of economic embargoes by the
United States in retaliation for the enforcement action taken by coastal States,41
and since then, the signature in April 1987 of a Fisheries Treaty by the United
States and twelve Pacific Island States,42which would permit American vessels to
fish for tuna in parts of the South Pacific Seas, covering ten million square miles.
Has the United States' interest then not triumphed? Again, this hardly forces us to
reject the persistent objector principle. Either one says that the international law is
not completely settled43(in which case we cannot speak of the persistent objector),
or one says that it is settled and that the United States dissent, while not having
universal application, has paid off in an important way. To put the same point
differently, several authoritative texts see custom primarily as a system of bilateral
obligations linking two or more states.44Parry acknowledges" ... some difficulty
about pointing out an unmistakable example of the emergence of a new
customary law'of general validity. "45On this widely-held view, rules of custom are
not monolithic - hence the importance of individualistic notions such as
regional/local customs and, of course, the persistent objector rule. This
fundamental notion of opposability must be explained away, and it is submitted
that the present example does not do this.

As far as the deep sea bed is concerned, the law is, for the sceptic, at best
unsettled, or at worst settled in favour of the Reciprocating States. It has been
suggested that any mining that occurs is likely to occur "under either the
preparatory investment provisions of the Convention or under the Reciprocating
States Regime."46Brownlie states that the "dissident States" might be said to have
the status of persistent objectors.47 Churchill and Lowe express the conundrum
nicely:

"Asked if the unilateral legislation is consistent with the various declarations
on the deep sea bed, the [International] Court [of Justice] would probably
have to say, no. But asked if those declarations bound in law, the
reciprocating States not to enact and operate with legislation, the Court

39. See, e.g., Jennings, XXXVIII A nnuaire Suisse de Droir Inrernarionale (1981), pp. 59, 65-71. See also
Cassese and Weiler, supra n. 18, especially pp. 66-91, and Ch. 1.
40. Supra, n. 2.
41. See Churchill and Lowe, supra n. 37, pp. 237-238.
42. Ibid ..
43. As Charney would: supra n. 2, p. 13.
44. See, e.g., Brownlie, supra n. 6; Wollke, Cusrom in Presenr Inrernarional Law, pp. 11-19; and oddly
enough, Kelsen, supra n. 2., pp. 451 er seq..
45. Parry, The Sources and Evidences of Inrernarional Law, pp. 61-62.
46. Supra n. 37, p. 202.
47. Supra n. 6, p. 256.

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PERSISTENT OBJECTOR RULE IN CUSTOMARY INTERNATIONAL LAW

would probably have again to answer, no."48

Again, persistent objection does seem to pay.
With regard to compensation for expropriation, Charney states that the

persistent objector rule does not appear to have protected the Western developed
States, who still cling to the 'Hull' formula of 1938, from the development of less
generous standards and their application against nationals of these States.49If one
surveys the literature on the matter, one sees questions ranging from whether the
rule ever existed, to whether, even if it did, it still does. Schacter,50 for example,
questions "whether it has ever been the customary law." Rosseau also points out
that the "prompt, adequate and effective" formula has not won general acceptance
in practice or in decisions of tribunals.51 If these jurists are right, the persistent
objector rule is inapplicable; the Western states become subsequent objectors who
wish to change the law but have not accumulated the quantum of opiniones
individuales juris required to change the existing law, whatever that is.
Mendelson,52 De Visscher,53 Lauterpacht,54 and Robinson55 maintain that the
'Hull' rule did exist, although they differ as to the effect that subsequent practice
and Resolutions may have had on the rule. If this view is right, then the question is
whether the old opinio generalis juris has been undermined. If the answer is no (as
Mendelson and Robinson would maintain), then the law is still in favour of those
who support the rule - and to apply the status of 'objector' to such States would be
absurd. If the answer is yes (as Lillich,56 De Visscher and Lauterpacht would
argue) then we must ask what it is that has replaced the 'Hull' formula.

Cassese57provides a clear description of the state of the law, pointing out that as
any legal regulation of conflicts in expropriation law is at bottom governed by
political and economic considerations, one can hardly speak of general customary
international law on the matter. This relatively pessimistic view is certainly correct
at the auto-interpretative level,58and since we do not have general but special
customs, the persistent objector principle is inapplicable. But even at the purer
arbitrable/judicial levels, Schacter has stated that at least the cases reveal that the

48. Supra n. 37, pp. 201-202.
49. Supra n. 2, p. 14.
50. Schacter, "Compensation for Expropriation", 78 A.y.IL (1984), pp. 121, 122.
51. Rosseau, Vol. V, Droit International Public, pp. 248-50.
52. Mendelson, "Compensation for Expropriation; the Case Law", 79 A.y.I.L. (1985), pp.
414-20.
53. De Visscher, Theory and Reality in International Law (1968), p. 203.
54. Oppenheim, International Law 8th Ed. (1955).
55. Robinson, "Expropriation in the Restatement", 78 A.y.I.L. (1984), p. 176.
56. Lillich, "The Valuation of Nationalised Property in International Law: Toward a Consensus or
More 'Rich Chaos'?", in The Valuation of Nationalised Property in International Law (ed. Lillich) vol. 3
(1975), pp. 345-47.
57. Cassese, International Law in a Divided World (1986), pp. 345-47.
58. To borrow the terms used by Cheng, e.g., in "Custom: The Future of State Practice in a Divided
World", in McDonald and Johnston, The Structure and Processes of International Law (1983), pp.
522-526.

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property owner is quite likely to get a fair market value and a satisfactory award
even though the magic words of the "Hull" formula are not invoked. Tribunals,
then, strike compromises.59 Brownlie60and Jimenez de Arechaga,61stressing that
"appropriate" compensation is now the norm, have argued that if the term
"appropriate" is to have any objective meaning, then failure by the local courts of
the host State to provide 'compensation' in an objective sense would be unlawful;
reference to domestic law in Article 2 (2)(C) of the Charter of Economic Rights
and Duties ofStates62 is not a reference to domestic law willy-nilly. "Appropriate"
compensation, according to the eminent tribunal in the Aminoil arbitration, is best
carried out "by means of an enquiry into all the circumstances relevant to the
particular concrete case, than through abstract theoretical discussion."63 It is
therefore misleading to treat the matter as if the Western States' view has been
overridden by the view of everybody else, when the reality is that the latter class
does not exist. Each part of the world community has a view which does not
override that of the others. And clearly, to say that each part is a persistent objector
is unhelpful. The 'Hull' formula is therefore not a good illustration of the failure of
the persistent objector rule, for the simple reason that the rule is inapplicable to the
instance.

Stein64regards the law on sovereign immunity as another example of the rule's
lack of vitality. But it is Chamey65who shows that it is not an informative example.
Pointing out that the Eastern States have been effective in preventing the
development of a universal rule of law, because of the "leverage" they have in the
matter, he shows that, there being no general rule, the persistent objector principle
is inapplicable. This again underscores the importance of the notion of
opposability in customary international law.66 Once it is accepted (and it is
accepted) that the label 'persistent objector' can apply to one state as well as to a
group of states, scepticism faces a serious problem.67

On the other hand, however, what must be the sceptic's trump card must be the
apartheid example. South Africa has not been considered to be free from the rule
prohibiting institutionalised racial discrimination in spite of its disguised

59. Schacter, "Compensation Cases: Leading and Misleading", 58 A.J.I.L. (1985), pp. 420, 421.
60. Ibid., pp. 524-543, and Vol. IV, 162 Hague Recuei[ (1978), pp. 255-71.
61. Jimenez de Arechaga, 11New York UniversityJo. of Int. Law and Politics (1978), pp. 179-95; Vol. I,
159 Hague Recuei[ (1978), pp. 297-310.
62. Resolution 3281 (XXIX), 14I.L.M. (1975), p. 251; see also Brownlie,supran. 6,p. 541 for a list of
commentaries in n. 9.
63. Arbitration between Kuwait and The American Independent Oil Co, 21 I.L.M. (1982), p. 976.
64. Stein, supra n. 2, pp. 460-461.
65. Supra n. 2, at p. 23, n. 94.
66. See supra, no. 44-45 and accompanying text.
67. See Koskenniemi, supra n. 2.

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PERSISTENT OBJECTOR RULE IN CUSTOMARY INTERNATIONAL LAW

persistent objection.68In the light of the view of the international community "as a
whole"69and of the International Court,70this is a case where persistent objection
is ineffective on a point of settled law.

To conclude, the examination of some of the standard examples of the
ineffectiveness of the persistent objector rule does not compel us to reject that rule
or to be generally sceptical about it. In fact, some of the scepticism on these
examples seems to come perilously close to a confusion of two separate issues; the
existence of a rule oflaw on the one hand, and the enforcement or enforceability of
the law on the other. 71If the principle is to be rejected we must find other reasons
for rejecting it. At this point, the most that can be said for scepticism appears to be
that Stein's reservation of his position on the existence of the persistent objector is
preferable. 72

The rule in theory: custom and consent
If rules of customary international law are based on consent, the category of
persistent objector is otiose since dissenting States will not be bound whether or
not objection is persistent. If rules of custom are not based on consent, then a State
will be bound by a rule whether or not it persistently objects. Whatever the basis of
obligation is in international law (for Charney it is the "societal context"), it is
what will determine whether or not a State will be bound. This is Charney's
formulation of the position.73

Thus framed, the proposition strikes at the core of the arguments in support of
the persistent objector principle. Brownlie, like all supporters of the principle,
certainly treats the consensual nature of custom as its ultimate foundation.74 Are
these authorities then mistaken? Charney provides a survey of the literature from
Kelsen and Brierly, through Fitzmaurice and D' Amato to Alexidze, and
concludes that consent is not the basis of obligation in international law, with all
possible consequences for the persistent objector. However, a problem arises

68. Counsel for South Africa before the I.C.]. in the Namibia case (see n. 70, infra) argued that South
Africa had never violated the principle of racial equality, but that it only promotes and effects separate
development for different communities, so that South Africa is not a persistent objector at all. But
acceptance of a rule is only half the story; interpretation of any rule is inextricably linked to its
acceptance.
69. See Brownlie, supra n. 6, pp. 596-597. The General Assembly each year passes several resolutions
condemning apartheid with overwhelming majorities.
70. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West
Afn'ca) (1971) I.C.]. Reports 12,57.
71. This seems true in relation to Charney's (and Stein's) claims regarding the territorial sea issue, and
also the latter's discussion of the sovereign immunity example. The latter also raises a separate point of
classification - can a state be a persistent objector when it does not call itself a persistent objector?
Koskenniemi has also underscored this problem. It is submitted that this should not be a separate
problem; all that should matter is the evidence of dissent, on which, see Colson, supra n. 2.
72. Stein, supra n. 2, p. 459, n. 6.
73.0p. cit., at p. 18and see generally pp. 16-21. For a survey of the theories on the basis of obligation,
see Schacter, "Towards a Theory of International Obligation" (1968) VirginiaJo. of Int. Law, p. 300.
74. Supra, n. I,.p. 10. Cf. the text in the 4th ed., supra n. 6.

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because we need to establish the precise meaning of this near universal rejection of
consent. The matter is framed in absolute terms; either consent is the basis of
obligation or it is not. Can the matter be phrased so categorically? It appears that
not even Kelsen, the arch anti-con sensualist, would do this. He states that one can
start from the consensualist position, but that "there is hardly a writer ready to
accept all the consequences of such an assumption. "75The truth is that rejection of
consent cannot be equated with an absolute elimination of voluntarism; neither
does it involve an absolute attribution of universal status to majority rule.

Charney attacks the rejection of "a system of majority voting", but this cannot
be taken too far. Much has been written on the present "crisis" in which
international law-making finds itself.76The emergence of "soft law"77techniques
in recent years is a reflection of these developments. Today, the emphasis is on
consensus. The lack of socio-political homogeneity in the international system
necessitates the compromise that is "soft" law, even though it may mean that the
rules will at best be binding in a weak sense. The point is that decisions adopted by
a majority in the face of vigorous dissent will hardly produce rules oflaw that bind
everybody.78 There is no better evidence of the fact that majority rule is not the
norm than the recourse had to the international conference and consensus texts (in
spite of the fact that there is a clear majority in, say, the United Nations), in
important and diverse fields like human rights, outer space and the environment.
As Stein puts it, "A vote, an explanation of position, a refusal to ratify - these are
the steps available today that were not available to the States of the classical era. "79
So there is now greater facility for the articulation of the voluntaristic traits in the
system of custom than there used to be.

75. Supra n. 2, p. 448.
76. See Cassese and Weiler, supra n. 26; Chinkin, "The Challenge of Soft Law: Development and
Change in International Law", 38 I.C.L.Q. (1989), p. 850 - see bibliography at n. I thereto. See
also Stein, supra n. 2.
77. This term has been used to cover two separate phenomena - the content of the actual norm itself, on
the one hand, and the instrument in which a norm is laid down on the other. In relation to the former, a
'soft' norm is one laid down in legally binding form, such as a treaty, but which is so vague that it
amounts to little more than a statement of intent. The problem is that it is difficult to determine with
precision what the substance of the legal commitment acrually is: see e.g., Part IV of the GATT, or
Articles 204(1) or 217(2) of the 1982 U.N. Law ofthe Sea Treaty.

In relation to the laner (i.e., the instrument in which the norm is laid down), the concern is with
instruments such as the Helsinki Final Act and some U.N. General Assembly Resolutions, which
contain provisions that are clear and familiar, or which are likely to 'harden' (hence the reservations
entered into such provisions in the 1974 Charrer of Economic Righrs and Duries of Srares, supra n. 62).
The problem here is that these lack the status of full lex lara, as they have not been enacted in ways
which satisfy the positivistic pedigree tests oflegal validity - treaty srricro sensu and custom (in the sense
of established practice).

Both meanings of the term 'soft law' described are the result ofpoliticaVdiplomatic compromise,
which, far from being ideal from the point of view of legal certainty, is a necessary evil.
78. Witness the fate of Part XI of the 1982 Law of the Sea Convention: see supra no. 46-48, and
accompanying texts.
79. Stein, supra n. 2, p. 467.

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Koskenniemi has also argued80 that while Charney may have discredited
voluntarism, he has not replaced it with any explanation of why States are bound
by the law. There appears to be much truth in this charge when one analyses
Charney's substitute, what he calls "societal context". Simply, we have to be sure
that all "contexts" must necessarily exclude voluntarism; otherwise we are simply
restating the reality of consent. In other words, societal context is necessarily made
up of the sum of the consent of any number of actors on the international scene
weighed against the sum of the dissent of other actors. Whenever we speak of
"societal context" we are often speaking of consent under a different name.

The truth is that when the sum of consent is greater than the sum of the dissent,
there are a number of possibilities. The dissent might simply be overwhelmed, in
which case persistent objection is ineffective in law.81 Or the dissent may be
weaker in a numerical (quantitative) sense, but not in the sense of a qualitative
inferiority, (in terms of the influence and interests of the dissenting State(s)).82
This can lead to one oftwo things. The world community may be forced to come
down to the level of the State(s) in the minority,83 or alternatively, there may be a
compromise given the irreconcilability of such differences, with different States
having different interests and compromise becoming the best way out of an
auto-interpretative stalemate (even if it is not a good way out).84 Viewed in this
light, it is perfectly possible to strike a middle course between voluntarism and
majoritarianism. It appears that all that is meant by rejection of consent is simply a
rejection of crude solipsism.

What role is then played by the rule? Stein would argue that, because the
law-making process is becoming quasi-institutionalised (in a sense), objection will
become much more direct and frequent.85 But this does not necessarily answer the
charge that the traditional role of the persistent objector (as criticised by Charney)
is one that is played after the relevant rule is settled. In other words, if
international law-making becomes "instant" and "prospective",86 any rule, when
it "emerges", will already reflect the "societal context", with the result that
objection to such a rule becomes otiose. It would then appear that, as Charney
said, the real function of the rule is "to force an accommodation of interests in the
international community with respect to the evolution of new rules of law."8?
Objection will then not be 'persistent', because it is confined to the formative
stages of the customary rule in question.

However, this view fails to account for some features of the law-making process.

80. Supra n. 2, p. 393 (and footnote thereto).
81. The apartheid situation would fall into this category.
82. Charney seems to concede this: supra n. 2, n. 94.
83. Perhaps the examples of the deep sea bed and sovereign immunity could fall into this category.
84. This may explain the fate of the Hull formula (see, supra, nn. 49-63, and accompanying text).
85. Supra n. 2, pp. 463-475.
86. Ibid ..
87. Supra n. 2, at p. 23.

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As mentioned above, the international system still displays voluntaristic traits.
Firstly, the threshold oflegal normativity is becoming increasingly blurred.88 This
means (a) it is difficult to distinguish between lex lata and lex ferenda, and this in
tum means that (b) it must be difficult to distinguish between persistent and
subsequent objection, because the latter distinction (b) relies upon the former
(a).89The problem posed by (a) must be explained away if we are to agree with
Charney's analysis of the role played by the persistent objector rule. Secondly, as
stated above, emphasis on general/settled law can be misleading as to the real
nature of law in the international system. This feature, which has been described
as "fragmentation",9° must also be explained away if we are to circumscribe the
role of the persistent objector rule. In sum, if law in general (and international law
in particular) is not simply a matter of monolithic "plain-fact" or "pedigree'',9! the
restriction of the role played by the rule is not as compelling as it might seem.

Alternatively, even if one agrees that the rule is confined to the "pre-legal", the
fact remains that the objection by states forges a compromise which is reflected in
the rule when it "emerges". Still, the function of voluntarism is served, albeit
under a label which is not the traditional one of the persistent objector. So rather
than reject voluntarism, the most a sceptic can say is that it exists for at least some
purpose. What really needs to be addressed, then, is the precise role of consent.

Conclusion
There are several important questions not dealt with in this paper. How real is

the difference between persistent and subsequent objection?92What form must
objection take before it can be called objection?93In Stein's article, he points to a
number of "vexed questions"94 which call for attention. All that this paper has

88. See Weil, supra n. 27.
89. See, supra n. 9, and accompanying text.
90. By Koskenniemi, supra n. 2. See, supra, n. 44 and accompanying text.
91. These terms are borrowed from the work of R. Dworkin, in Taking Rights Seriously (1977) and
Law's Empire (1986). His theory is but one challenge to the monolithic "completeness" sought after by
legal positivism in some of its manifestations. Examples of other works that challenge positivism on this
point, with special reference to international law, are McDougal and Reisman, International Law
Essays (1981); Falk, "The Relevance of Political Context to the Nature and Functioning of
International Law", in The Relevance of International Law (1968), p. 33; Gottlieb, "The Nature of
International Law: Towards a Second Concept of Law", in Vol. IV of The Future of the International
Legal Order (1974) (eds. Black and Falk), p. 331 and pp. 362-374; D'Amato, supra n. 2; Kennedy,
International Legal Structures (1986); Carty, The Decay of International Law (1986); and Koskenniemi,
supra n. 2. For a more direct use of Dworkin's methodology, see F. Teson, "International Obligation
and the Theory of Hypothetical Consent", Yale ].I.L. (1990), p. 84.
92. See n. 9, supra.
93. See Colson, supra n. 2.
94. At p. 475. To this may be added the precise nature of the relationship between persistent objection
and the requirement of generality of practice, a relationship described as "uneasy" by Koskenniemi,
supra n. 2, at p. 394.

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sought to do is indicate some of the difficulties that exist in relation to the
persistent objector rule as it has so far been discussed. The subject calls for an
"internal" observational standpoint in order to analyse properly the reasons why
the persistent objector is prevented from reaping any benefits from objection in
some cases but not in others - "external" generalisations are unlikely to be
informative. Good reasons must be given for preventing dissenters from obtaining
benefits from their dissent, or to put it differently, for the characterisation of such
states' actions as illegal. Some of the works examined here do not provide such
reasons.

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