CSS International Law Solved Paper 2012 Question 2

"The rules regarding the persistent and subsequent objector reveal a critical weakness at the heart of international law. If a state can avoid being bound by any rule of customary international law, including a rule that achieves jus cogens standing, then international law cannot really be described as 'law's"

Critically examine the above statement, using examples from case law and state practice,


The principles of the persistent objector and subsequent objector strike at the heart of international law creating uncertainty over issues such as how customary international law (CIL) is created, whom it binds and how states actively can evade being bound by certain customary international laws.

The mere existence of this principle gives rise to a great number of diverging interpretations. However, it does not take away the strong foundations of International Law upon which all states act in one way or another.

2. Understanding Key Terms: Persistent Objector and Subsequent Objector

I. Persistent Objector:

A state is considered a persistent objector if, "whilst a practice is developing into a rule of general law, it persistently and openly dissents from the rule." A persistent objector loses that status if it does not object consistently over time once the rule is in place. Furthermore, a state that fails to object during the formation of the rule remains bound regardless of its later attempts to protest. This is true even if the state had no interest in the rule at the time of its emergence but subsequently came to be affected by it.

The ICJ has provided some support for the doctrine, though the jurisprudence is not definitive. In the Anglo-Norwegian Fisheries case, for example, the court stated that the CIL rule in question was "inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast."

In the Asylum case, the court stated that even if a relevant regional custom existed, it did not bind Peru because that state had repudiated the norm.

Though these cases are often used to support the existence of the persistent objector doctrine, critics including D'Amato argue that they speak to special or regional custom rather than general custom.

II. Subsequent Objector:

The consequences of a subsequent objector — one who objects after the formation of the customary law rule — is clear. The state that objects continues to be bound by the customary law. If it acts contrary to the law, it violates the law. The state can be held responsible for the violation under international law.

3. Jus Cogens vs Persistent Objector: Who Trumps Whom

Jus Cogens are the principles which form the norms of international law that cannot be set aside. Malcolm N. Shaw as well as Michael Akehurst argued that an overwhelming majority of states, crossing political and ideological block-lines, can together give jus cogens character to a customary international law.

The USA has in its Restatement of Foreign Relations Law taken the standpoint that a large majority of states can create the acceptance and acknowledgement needed to give a law the status of jus cogens. Therefore, this status of jus cogens will apply even to a small number of reluctant states. France has met this claim by saying that it does not consider itself bound to the jus cogens character of any rule since France did not consent to the development of the jus cogens concept.

Lee Peoples argues that jus cogens rejects consent as basis for its existence, and therefore jus cogens trumps persistent objectors when dealing with customary international law. If jus cogens were dependent upon the consent of states, it would not have been peremptory. On the other hand, Antonio Cassese argues that the principle of the persistent objector is valid in every situation, which is even against a rule of jus cogens.

For a jus cogens rule to have a peremptory effect, the world community as a whole must accept it.

i. Validity of Jus Cogens:

In the Congo vs. Rwanda case before the ICJ, the court made a direct statement that prohibition on genocide was considered to have reached a status of both erga omnes and jus cogens. In the Nicaragua case before the ICJ, the court stated that the prohibitions on international violence in the UN Charter were rules of jus cogens status.

4. Critical Analysis: Jus Cogens remains dominant over Persistent Objector

As Charney points out, in both the Asylum and Fisheries cases, the court was dealing with a customary law whose existence was uncertain. In other words, the rule was at its initial stages where it could have or could not have evolved into a customary law. Thus, it was significantly easier for the objector to maintain its status.

No case is cited for a circumstance in which the objector effectively maintained its status after the rule became well accepted in international law. In fact, it is unlikely that such a status can be maintained in light of the realities of the international legal system. This is certainly the plight that befell the US, UK and Japan in the law of the sea. Their objections to expanded coastal state jurisdiction were ultimately to no avail, and they have been forced to accede to 12-mile territorial seas and the 200-mile exclusive economic zone.

The other argument is that persistent objection cannot affect or look to absolve the state's obligations of jus cogens norms. For example, a state cannot claim to have a right or escape from the prohibition of torture simply because it had been a persistent objector. This would be consistent with the position in treaty law — states cannot make treaties or treaty reservations that conflict with jus cogens norms.

All these arguments point to the established principles of International Law that provide it its identity as a branch of law. However, laws are there to provide flexibility to its adherents and hence, doctrines of persistent objector and subsequent objector provide some room for maneuver to states where customary international law or a treaty may be vague.