The persistent objector rule in international law

353 Pages·2016·2.98 MB·English

by  James A. Green

THE PERSISTENT OBJECTOR RULE
IN INTERNATIONAL LAW

The Persistent Objector
Rule in International Law
JAMES A. GREEN
1
1
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This book is for Robert.
When I was about sixteen, while sat in the coffee shop inside the large
Debenhams in Exeter (which is no longer there), I took from you the
entirely erroneous impression that being an academic meant that one had
loads of free time and got paid for sitting around reading, thinking about
interesting things, and occasionally writing some of them down. While
I suspect that this fundamental misunderstanding of the job was entirely
down to me, I still blame you.
This is all your fault.
I wish I saw you far more often than I do. But it turns out that academics
are actually quite busy. I promise I’ll try to make more of an effort …
Much love.

Foreword by Sir Michael Wood
The persistent objector rule— whereby a state which objects to a rule of customary
international law while it is emerging, and which persistently maintains its objec-
tion, is not bound by the rule— is an important aspect of the theory and practice
of international law. While quite controversial, the rule is not infrequently relied
upon by states, and is regarded by them as a safety valve within the customary
international law process.
Professor Green’s monograph is thorough, thoughtful, timely, and above all
moderate. While recognizing the theoretical difficulties with the rule, the author
pays particular attention to its application in the practice of states.
The book contains much that will be of interest to practitioners and academ-
ics alike. The relatively recent origins of the rule, not least in key decisions of the
International Court of Justice, are examined with care, as is its application since
1945. The detailed analysis of the requirements— ‘core elements’, ‘criteria’— for
the rule’s operation (objection, persistence, consistency, and timeliness) are at the
heart of the book. Of particular interest is the author’s emphasis on consistency as
a separate element, something that has often been overlooked and which is usually
considered to be implicit in the persistence requirement.
The relationship between the persistent objector rule and peremptory norms of
general international law (jus cogens) is examined at length. The conclusion that
there can be no persistent objector to a peremptory norm may seem obvious, but
in fact requires a careful and clear- headed consideration. The author’s treatment
of the interface between jus cogens and persistent objection is a major contribution
to both topics.
What, then, of the role and value of the persistent objector rule? For challeng-
ing and original thoughts one cannot do better than turn to Chapter 9. Neither
‘voluntarism’ (often regarded as the basis for the rule), nor ‘communitarianism’
(thought to be opposed to it) offers real answers to the theoretical mysteries
behind the rule. In fact, ‘states use the rule, and they must do so for a reason’. As
Professor Green explains, there are many reasons why the rule has value, both real
value and, which may be as important, perceived value: ‘the rule has value not just
in terms of what it actually does, but also in terms of the perception of autonomy
that it engenders’. In a word, the persistent objector rule is beneficial not only to
the objecting state but to states generally and to workings of the international
legal system.
It is a happy coincidence that the International Law Commission took up
the persistent objector rule at precisely the time when Professor Green’s study
was nearing completion. It did so at its sixty- seventh session (2015), under the
topic Identification of customary international law. It is encouraging to see that
Commission and author seem to tend towards similar conclusions— though the
Commission’s work has some way to go before a definitive position is reached.
viii Foreword by Sir Michael Wood
In July 2015, the Commission’s Drafting Committee provisionally adopted a
full set of Draft conclusions on the identification of customary international law,
including one on the persistent objector rule. Draft conclusion 15, together with
an accompanying commentary (still to be prepared), is expected to be considered
by the Commission at its 2016 session. The matter was not without controversy
within the Commission in 2015. Some questioned the inclusion of the draft con-
clusion, either on the ground that it did not really have a place in a topic that
was concerned with the identification of rules of customary international law,
or— more radically— because they were not convinced that the persistent objec-
tor rule formed part of international law. Still others seem to have felt that the
rule was too rarely invoked and too exceptional to justify inclusion in the draft
conclusions. Others, however, agreed with my view, as Special Rapporteur, that
draft conclusion 15 did have a place in the text, that the rule was well established
in international law, that it arose in practice rather more frequently than is com-
monly supposed (including before a wide range of international and domestic
courts and tribunals), and that it was therefore important to spell out the stringent
requirements for its application. It was also pointed out that the Commission had
acknowledged the existence of the rule as recently as 2011 in its Guide to practice
on reservations to treaties.
This book will undoubtedly be of great service to members of the International
Law Commission as they proceed with the topic Identification of customary inter-
national law, and to the representatives of states and others as they consider the
Commission’s product. It will be a primary resource for all those— state officials,
judges, practitioners, academics— who may be called upon to consider and apply
the persistent objector rule. It will quickly establish itself as the leading work on
the subject, and is likely so to remain for many years.
Sir Michael Wood, KCMG
London
August 2015
Preface
Somewhat terrifyingly, this book is the culmination of a research project that
I have been working on for around six years. I began my initial investigations
into the academic writing on the persistent objector rule in the autumn/ winter
of 2009. While I have certainly not spent all of my time since then working on
this— various other smaller projects and publications have been both started and
completed in the same period, and I have of course gone through six cycles of the
teaching– marking– admin merry- go- round that all academics endure— this work
has represented a huge chunk of my life. I am both ecstatic and saddened to see
it reach its end.
Mostly ecstatic.
I’d like to highlight an early point on this project’s timeline, during the forma-
tive stages of this book: on 15 April 2010 I gave a paper presenting my tentative
initial thoughts on the persistent objector rule at Oxford Brookes University, at the
Annual Conference of the British Branch of the International Law Association.
I also gave a version of the same paper a couple of months later (16 June 2010) at
the University of Reading, as part of the School of Law’s internal staff seminar
series. For anyone who was at either presentation— particularly the first of these
at Brookes— I have to provide a disclaimer here. Or perhaps it is better described
as a ‘retraction’. I’m not quite sure.
My view in early 2010, after a mere few months of sporadic work on the topic,
was that the persistent objector rule was essentially an academic fiction: I had
found little state practice to support it, and felt that it was built on some very shaky
conceptual foundations. I was certainly not the first to take this general position,
but I felt that I could highlight the non- existence of the rule in a manner not
before done. In other words, this project began life based on the assumption that
the persistent objector rule was a complete nonsense: the intention of the project
was to demonstrate this. However, the more I read and the more deeply I delved
into state practice, the more support for the rule I found. A project that was ini-
tially supposed to be a simple comment piece arguing that there was no persistent
objector rule slowly morphed into what you are about to read: an attempt to set
out the most detailed understanding of the rule (and way in which it operates) to
date in the literature.
Anyone who sat through either of my 2010 presentations, where I was arguing—
admittedly with some heavy disclaimers about ‘work- in- progress’ and ‘tentative
conclusions’— that there is no persistent objector rule at all might be somewhat
surprised to come across this book, the entire basis of which being that the rule
does exist and is, moreover, well worth examining. The evidence ultimately led me
down a different path, and I am pleased with myself that I wasn’t too proud to
follow it. I can only own up to ‘jumping the gun’ somewhat in 2010, and hope