Sovereignty and Universality: A Contemporary Analysis of the Persistent Objector Doctrine in Customary International Law

Egemenlik ve Evrensellik: Uluslararası Teamül Hukukunda Israrlı İtiraz Doktrininin Çağdaş Bir Analizi

Hatice Kübra ECEMİŞ YILMAZ

States are sovereign and legally equal in accordance with the international law principles. Due to their sovereignty, it is widely acknowledged that the will of states is significant. Under the persistent objection doctrine, if a state objects to a rule relating to customary international law beginning with the first formation period of the rule, the relevant rule cannot be brought against the objecting state for as long as the objection persists. This article examines in detail the persistent objector doctrine of international law, which holds that states are permitted to challenge the obligatory nature of customary international law by persistently objecting to particular standards. This article focuses on the evolution of doctrine as well as its current significance by providing a comprehensive analysis of its legal foundation, historical origins, key cases, and evolution and analyzes the challenges and objections to the persistent objector concept, such as issues with universality and consent principles, and considers the potential modifications that could be made to achieve a balance between national sovereignty and global governance. This analysis seeks to contribute to the ongoing debate over the applicability and potential of the concept by assessing the relevance of the persistent objector concept within the current framework of international law.

Persistent Objector Doctrine, Customary International Law, State Practice, Opinio Juris, State Sovereignty.

Uluslararası Hukuk ilkelerine uygun olarak, devletler hukuki olarak eşittir. Devletlerin iradesinin egemenlikleri nedeniyle önemli olduğu da yaygın olarak kabul edilmektedir. Israrlı itiraz doktrinine göre, bir devlet, uluslararası teamül hukuku ile ilgili bir kurala, kuralın ilk oluşum döneminden başlayarak itiraz ederse, itiraz eden devlete karşı ilgili kural dile getirilemez ve bu durum, devletin itirazı devam ettiği sürece devam edecektir. Söz konusu makale, devletlerin belirli standartlara ısrarla itiraz ederek uluslararası teamül hukukunun zorunlu niteliğiyle savaşmalarına izin verildiği kavramı olan uluslararası hukukta ısrarlı itiraz doktrini konusuna derinlemesine bir inceleme yapmaktadır. Bu makale, teorinin hukuki temeli, tarihsel süreçleri, kritik olayları ve kavramın gelişimini ayrıntılı olarak analiz ederek doktrine sağladığı katkıya ve bugünkü önemine vurgu yapmaktadır. Buna ek olarak, makale, evrensellik ve rıza ilkeleriyle ilgili sorunlar gibi ısrarlı itiraz kavramının zorluklarını ve itirazlarını incelemekte ve ulusal egemenlik ile küresel yönetişim arasında bir denge kurmak için yapılabilecek olası değişiklikleri düşünmeye sevk etmektedir. Bu inceleme, mevcut uluslararası hukuk çerçevesinde ısrarlı itiraz eden kavramının uygunluğunu değerlendirerek kavramın uygulanabilirliği ve potansiyeli üzerine süregelen hukuki tartışmalara katkıda bulunmaya çalışmaktadır.

Israrlı İtiraz Doktrini, Uluslararası Teamül Hukuku, Devlet Uygulamaları, Opinio Juris, Devlet Egemenliği.

Introduction

Customary international law (CIL) constitutes an essential component of the international legal system, derived from the general and opinio juris (consistent practices of states), and accepted as legally binding.¹ It serves as a fundamental source of international law, evolving over time to accommodate new developments and address emerging global issues. The dynamic nature of CIL necessitates mechanisms that allow states to maintain their sovereignty while contributing to the formation of universally applicable norms. One such mechanism is the persistent objector doctrine, which enables states to resist the binding effect of CIL by consistently objecting to a specific norm. According to the persistent objector theory, states should consciously comply with the norms of international law.² The term “persistent objector theory” describes this guiding idea.³ The majority of international law scholars agree with the persistent objector rule, even though there isn’t much evidence of its support in actual State practices and judicial decisions.⁴ This acceptance seems contradictory because these writers also reject the idea that a State needs to give explicit consent to an international law rule. Brierly, a prominent figure, believed that the foundation of international legal relationships is not necessarily based on consent unless it is explicitly stated. He criticized the consent-based approach to international law, but failed to explain why this criticism does not also apply to the persistent objector rule.⁵ Brierly did not offer evidence to substantiate his claim that new customs cannot be forced on States by the desire of other States alone.⁶ Another recent scholar, Brownlie, attempted to explain the basis of the persistent objector rule. He suggested that a State can opt out of a forming custom, but the evidence of their objection must be solid. He explained the rule by emphasizing that customs ultimately hinge on the consent of States.⁷ However, Brownlie’s interpretation seems to revolve around implied consent, not explicit. He didn’t clarify the specifics of when consent is implied and when it is not. He implies that consent is presumed unless there’s immediate dissent. This viewpoint doesn’t thoroughly clarify the persistent objector rule, and many scholars merely acknowledge the rule without in-depth explanations or substantial references.⁸

The principles of state sovereignty and consent are widely acknowledged as the fundamental pillars underpinning this particular approach. The primary objective of this article is to undertake a comprehensive analysis of the persistent objector theory within the context of international law. The aforementioned article also delves into the influence exerted by the persistent objector theory, while simultaneously addressing the challenges and objections it presents. These challenges primarily revolve around the potential conflicts that may arise with the principles of universality and consent. This article presents a groundbreaking and all-encompassing framework aimed at addressing the complex challenges associated with the persistent objector doctrine in the domain of CIL. The multi-tiered approach entails the utilization of negotiations for regional and multilateral treaties, the establishment of an enhanced mechanism for documenting and acknowledging enduring objections, and the promotion of a collaborative atmosphere that encourages dialogue and cooperation among states. This particular measure possesses the inherent capacity to alleviate the onus encountered by states of lesser stature or diminished influence, thereby endowing them with the ability to more effectively express their disagreement and, as a result, actively participate in the evolution of universally accepted norms. It is of utmost significance to acknowledge that the embrace of this novel approach has the potential to engender the evolution of norms that exhibit enhanced inclusivity, equilibrium, and the incorporation of a broader spectrum of state interests. This, in turn, would help to address the ongoing challenge of reconciling state sovereignty with the universal applicability of CIL in its construction.

In furtherance of the aforementioned objective, the present article posits a tangible procedural framework aimed at effectively documenting enduring objections. This framework entails the utilization of periodic reporting mechanisms and the submission of pertinent documentation to pertinent international entities. While objections need to be straightforward and transparent, there is not a specific method or formality, like a particular official statement or document, required for them.⁹ The ILC commentary correctly acknowledges this. Additionally, states can secure an exemption by consistently voicing objections, even if their actions do not necessarily align with their statements.¹⁰ In addition, a clear spoken or written objection is enough to maintain the legal stance of the objecting State, without the need for corresponding actions.¹¹ The aforementioned proposal not only endeavors to tackle the intricate issues surrounding the onus of proof but also strives to foster a culture of openness, responsibility, and inclusivity in the development of global standards. The implementation of such a conceptual framework has the potential to engender enhanced and enlightened deliberations pertaining to contentious norms, thereby culminating in the establishment of international legal principles that garner greater global consensus and diminish the reliance on the doctrine of persistent objection. Through a deliberate emphasis on fostering enhanced collaboration, upholding the principle of state sovereignty, and ensuring procedural fairness, this original contribution offers a prospective pathway in the ever-evolving landscape of CIL.

I. Origins and Theoretical Foundations of the Persistent Objector Doctrine

International law comprises a set of rules, principles, and norms governing the relations between states and other international actors. The primary sources of international law are laid down in Article 38 of the Statute of the International Court of Justice (ICJ),¹² which enumerates the following: “international conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and teachings of the most highly qualified publicists as subsidiary means for determining rules of law”.¹³ CIL, arising from the general and consistent practice of states accepted as law, plays a pivotal role in shaping the rules that govern international relations.

As is generally recognized in international law, the formation of customary rules is evaluated based on two factors. These are the material elements, which includes the practice of states and, to some extent, international organizations, and opinio juris sive necessitatis, which is the belief that these practices constitute law. This two-factor review approach is adopted in doctrine, judicial decisions,¹⁴ and the International Law Commission’s draft conclusions on customary International Law.¹⁵ The material element pursued in the formation of the international customary rule is repetition of practice or behavior (repetitio facti) and their large degree of uniformity. In other words, the occurrence of a single behavior is insufficient to constitute a customary rule.¹⁶ However, there is no precise measure of how long it takes for a customary international rule to be established, and each case requires a separate evaluation.¹⁷ The other element sought in the formation of international custom is opinio juris, which is related to the need for the practice that will establish customary practice with the expectation that the actors participating in the practice will create legal obligations.¹⁸ A customary rule does not exist, regardless of the frequency or nature of an action taken by states, unless there is a belief that this action is a rule of law. A person’s awareness of this belief can be inferred from their behavior in states, international organizations, and with individuals, such as their explanations, assent, or reluctance to do something.¹⁹ It is anticipated that state practice, representing the material element, and opinio juris, representing the psychological element, will be intertwined.²⁰ CIL develops through the consistent and general practice of states, carried out with the belief that such practice is legally required (opinio juris). As the CIL norm becomes widely accepted, it binds all states, even those that did not actively participate in its formation.²¹ Persistent opposition to the emergent rule is the only exception to the rule of adhering to the international customary rule.²² The persistent objector doctrine emerged as a response to this binding nature of CIL, providing an avenue for states to maintain their sovereignty and protect their national interests and opt out of being bound by a customary rule they consistently objected to during its formation.

The origins of the persistent objector doctrine can be traced back to the early 20th century, with the emergence of the Bozkurt/Lotus case (1927) before the Permanent Court of International Justice (PCIJ).²³ Although the case itself did not explicitly discuss the doctrine, it highlighted the importance of state consent in the formation of CIL.²⁴ Authors adhering to the ‘voluntarist’ theory of international law support the concept of persistent objector the most. The concept has been characterized as “the clearest, most firmly established expression of voluntarist conception of obligation in accepted doctrines”. The ability of each state to opt out of a customary norm is the litmus test for the voluntarist nature of custom, according to a second proponent of the concept. The voluntarist theory is predicated on the premise that the sovereign State’s will is the basis of international law and that a State is only obligated by laws to which it has consented. In the Bozkurt/Lotus case, the PCIJ formulated this theory in its classic form.²⁵ The doctrine gained further recognition in subsequent international legal writings and state practice, solidifying its status as an essential component of CIL.

The persistent objector doctrine is grounded in the principles of state sovereignty and consent, which underpin the international legal system. Based on certain interpretations, this concept represents a voluntarist perspective on responsibility, as articulated in well-established.²⁶ Another proponent of the idea has even argued that determining whether or not a custom is truly voluntary is the fact that each state has the ability to choose whether or not to opt out of a rule that is considered to be customary.²⁷ According to these principles, international law is created through the voluntary submission of states to its rules, and states should not be bound by norms they have consistently objected to during their formation.

What gives birth to the justification of the doctrine is the requirement of forging a compromise between the competing interests of maintaining the continuity and stability of CIL while also honoring the sovereign rights of states.²⁸ The ability of states to maintain their dissenting stances on specific criteria is made possible by the persistent objector doctrine, which helps to contribute to the legitimacy and fairness of the international legal system.