Dumberry: Incoherent and Ineffective: The Concept of Persistent Objector Revisited

Patrick Dumberry (Univ. of Ottawa - Law) has posted Incoherent and Ineffective: The Concept of Persistent Objector Revisited (International and Comparative Law Quarterly, Vol. 59, pp. 779-802, July 2010). Here's the abstract:

A rule of customary international law is binding upon all States. One controversial question is whether a State should be permitted not to be bound by such a rule in the event that it objected to it in the early stage of its formation and did so constantly thereafter. This is the theory of the ‘persistent objector’. The present article intends to examine the concept of persistent objector in general international law.

The first part of this article deals with the basic definition of the concept of persistent objector and its conditions of application. We will then examine the reasons why a truly comprehensive theory of persistent objector emerged some 20 years ago in the United States as illustrated by the 1987 edition of the Restatement of the Law by the American Law Institute. The third part of the article intends to analyse the different grounds of criticisms that have been raised against the concept. We will provide readers with our own assessment of the concept. Our survey will show that there is only very weak judicial recognition of the theory of persistent objector and that there is no actual State practice supporting it. The status of persistent objector is in fact ineffective: there are no instances where such a claimed special status actually prevented the application of a rule of customary law to the dissenting State. What is more is the fact that the theory is logically incoherent and that its application is inconsistent.

Ultimately, allowing a State to claim the status of persistent objector represents a fundamental challenge to the very concept of custom in international law. In our view, these findings undermine the existence of a persistent objector status in international law. Finally, this article examines whether or not the concept nevertheless plays any auxiliary role in international relations.