Persistent objector

In international law, a persistent objector is a sovereign state which has consistently and clearly objected to a norm of customary international law since the norm's emergence, and considers itself not bound to observe the norm. The concept is an example of the positivist doctrine that a state can only be bound by norms to which it has consented.

Objection to the emergence of a norm may come in the form of statements declaring a state's position on an existing right, or action in which a state exercises an existing right in the face of an emerging norm which would threaten that right. Statements made at the time of a rule's establishment, such as in a reservation to a treaty, offer the clearest expression of a state's objection, but objections might also be expressed during treaty negotiations and even in statements by domestic lawmakers accompanying purely municipal legislation.

Origins

The expression Persistent Objector is generally associated with Ian Brownlie's 1966 work, Principles of Public International Law, which presented the concept as an exception to the general rule that customary law binds all states regardless of individual consent. Two decades later in the United States, the American Law Institute's 1987 Third Restatement of the Foreign Relations Law of the United States set out the first comprehensive articulation of the doctrine.

Requirements

A State seeking to rely on the persistent objector must object to the emerging rule during the process of its formation. The objection must be clear, public, and maintained consistently throughout the development of the rule. There is no prescribed form in which the objection is to be made. An objection may be expressed orally or in writing, provided it clearly communicates the state's opposition to the emerging rule.