The Persistent Objector Doctrine: Identifying Contradictions

The persistent objector doctrine (POD) in international law provides that a rule of customary international law (CIL) will not oblige a state that has persistently objected to the development of the rule. The doctrine requires that the objection be “persistent” and “consistent” and that it not be contradictory. Yet, while in this context the meaning of persistency and consistency, in this context, has been discussed in the legal literature, the term “contradiction” has not. Therefore, it is not clear what type of behavior would represent a contradiction that would disqualify a state from persistent objector (PO) status. In practice, this indeterminacy leads to a too wide understanding of the term, undermining the possibility of PO status altogether. This Article offers a novel understanding of “contradiction”: it suggests that while substantive contradictions should negate a state’s PO status, not all contradicting behaviors should count as such. As this Article argues, the current understanding of contradiction is flawed because it does not always require a logical correlation between objection and contradiction. This encourages states to radicalize their positions in order to achieve PO status, while making it virtually impossible to successfully achieve such status. Therefore, this Article suggests guidelines to differentiate valid, objection-maintaining behavior within the POD framework from actual contradictions. The proper understanding of POD contradictions should require logical relations of contradiction between the behavior and the previous objection. The contradiction must include an acknowledgment that the statement reflects the state’s position. The assessment of the contradiction must be done in a genuine manner and not invoked merely as a means of enforcing CIL rules on an objecting state

Whose International Law Is It Anyway? The Battle over the Gatekeepers of Voluntarism

International law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside international institutions, nongovernmental organizations, international tribunals, and legal academia. Such entities harness the competing theories to dilute and nullify the traditional voluntarist doctrines of international law. This article aims to portray such phenomena and show how the theoretical supremacy debate is reflected in the contestation between states and non-governmental entities over the validity of the gatekeeper doctrines—the specially-affected states doctrine, the persistent objector doctrine, and the monetary gold principle. Diluting or reconstructing the gatekeeper doctrines may alter the way in which rules of international law are made, developed, and apply. This article argues that while the contestation may aid in the legal development of international law as parties take time to articulate and refine their legal positions regarding the gatekeeper doctrines, it has also created radicalization of positions and uncertainty regarding the gatekeeper doctrines’ content and applicability

The Persistent Objector Doctrine: Identifying Contradictions

The persistent objector doctrine (POD) in international law provides that a rule of customary international law (CIL) will not oblige a state that has persistently objected to the development of the rule. The doctrine requires that the objection be “persistent” and “consistent” and that it not be contradictory. Yet, while in this context the meaning of persistency and consistency, in this context, has been discussed in the legal literature, the term “contradiction” has not. Therefore, it is not clear what type of behavior would represent a contradiction that would disqualify a state from persistent objector (PO) status. In practice, this indeterminacy leads to a too wide understanding of the term, undermining the possibility of PO status altogether. This Article offers a novel understanding of “contradiction”: it suggests that while substantive contradictions should negate a state’s PO status, not all contradicting behaviors should count as such. As this Article argues, the current understanding of contradiction is flawed because it does not always require a logical correlation between objection and contradiction. This encourages states to radicalize their positions in order to achieve PO status, while making it virtually impossible to successfully achieve such status. Therefore, this Article suggests guidelines to differentiate valid, objection-maintaining behavior within the POD framework from actual contradictions. The proper understanding of POD contradictions should require logical relations of contradiction between the behavior and the previous objection. The contradiction must include an acknowledgment that the statement reflects the state’s position. The assessment of the contradiction must be done in a genuine manner and not invoked merely as a means of enforcing CIL rules on an objecting state