Academic journal article Duke Journal of Comparative & International Law

On the Possibilities of and for Persistent Objection

Academic journal article Duke Journal of Comparative & International Law

On the Possibilities of and for Persistent Objection

Article excerpt


The inspiration for recent interrogations into the possibilities of withdrawing from international custom emanate from an anonymous judge's observation of the abilities that States have to exit from "unwritten and un-negotiated" rules of customary international law: "Why are nations often allowed to withdraw unilaterally from treaties, which are expressly negotiated and usually written down, but are never allowed to withdraw from unwritten and un-negotiated [customary international law] rules?" (1) Contained within this statement is the ready parity that the judge infers (or seeks to infer) from the making of public international law via custom as opposed to via convention, and on the apparent disparity that exists within that conceptual framework when comparing one formal source of public international law with another. Yet, entrenched within the self-same statement are claims that attempt to relate other differences that exist between custom and convention--the idea of the making of custom as a diffuse and "un-negotiated" exercise, and of its product being lex non scripta, whereas conventions, by comparison, are "expressly negotiated and usually written down" (2)--to the point where it is legitimate to ask whether rightful analogies can be drawn at all between and among the formal sources of public international law as enunciated in Article 38 (1) of the 1945 Statute of the International Court of Justice. (3)

In this short article, a rejoinder to the important call for a theoretically-informed discourse on the coherence of these formal sources as itemized in the Statute of the Court, we shall consider this provision of the Statute from the optic of generality--and assess the extent to which this might affect our understanding of how notions of consent and consensus impact and should impact the making of public international law. (4) We allude to the separate enquiries examining the basis of obligation in public international law, as attentions are focused on the construction of persistent objection in the context of custom and what this might tell us about any unified theory connecting the formal sources of the discipline--aware of the health warning once issued against a narrow interpretation of Article 38 (1) of the Statute of the Court, that public international law "has to be identified by reference to what the actors (most often States), often without benefit of the pronouncement of the International Court of Justice, believe normative in their relations with each other." (5) Some attempt is made to address the limitations on the possibilities of persistent objection in view of the current and continuing significance of the consent of States in this exercise, (6) before, in the penultimate section of the article, we emphasize a contextual appreciation of the formal sources of public international law as they appear in the Statute of the Court, based on their distinctiveness of function and respective histories and associations. (7)


It is worthwhile exploring Article 38 (1) of the Statute of the International Court of Justice from the optic of generality, since that provision invokes the notion of "generality" at several intervals, but it does so in senses that cannot be assumed to be identical with one another. It will be recalled that this provision instructs the Court to apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (8)

Distinctions do need to be drawn here on the meanings of generality because a close reading of this aspect of the Statute will reveal that there are at least three separate connotations awarded to the notion of generality that appear in Article 38 (1) (a) through (c) of the Statute. …

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