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VOLuME 26, NUMBER 2, SPRING 1985

The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law
Ted L. Stein* Mainstream accounts of the principles governing the formation and application of rules of customary international law typically include reference to the principle of the "persistent objector." According to that principle, a state that has persistently objected to a rule of customary international law during the course of the rule's emergence is not bound by the rule. The principle thus permits individual states to opt out of new and otherwise universal rules of international law. Simple in statement and dispositive in effect, the principle of the persistent objector seems to present few of the notorious problems of judgment and degree that pervade inquiries into the existence vel non of any given rule of customary international law. In Part I of this essay, I propose to show that despite these qualities, the principle of the persistent objector has played a very limited role in the legal relations of states. It is considerably easier to identify instances in which the principle seems to have been applicable, but was not invoked, than it is to provide examples of the principle in practice. As I will try to show in Part II, however, the contemporary process of law-creation in the international system differs importantly from the classical customary international law process. This difference entails changes in the characteristic modes of analysis used to identify generally applicable rules of law. The transformations both of process and analysis, in turn, make it reasonable to expect that the principle of the persistent objector will play an increasingly important part in international controversies. Frequent invocation of the principle should bring to the fore a series of hitherto neglected questions, questions that must be faced as matters of "constitutional" choice in the ordering of international relations. In Part III of the essay, therefore, I will identify some of these questions and indicate some of the considerations that should be taken into account in developing answers to them over the course of the next few decades.
* Assistant Professor, School of Law, University of Washington (Seattle); J.D., Harvard Law School, 1977; A.B., Princeton, 1974.

HarvardInternationalLawJournal / Vol. 26 I. THE MYSTERY OF THE MISSING REFERENT The generally accepted doctrine concerning the formation and application of rules of customary international law consists of a relatively restricted set of core propositions. Although each of these core propositions is in some measure vague and indeterminate, and differences of view can of course be identified in the literature, it will suffice for present purposes to set out in a relatively abstract and general fashion an account that most international lawyers would regard as representative of the conventional wisdom. In order for a rule to become part of customary international law, it must be supported by the widespread and uniform practice of states acting on the conviction that the practice is obligatory.' Although it is difficult to determine just how much participation is necessary for customary law to develop, it is clear that this standard does not require universal participation, nor the participation of the state to which the rule is applied. 2 The conclusion that a rule meeting this standard is universally binding is, however, subject to one exception. A state that has persistently objected to a rule is not bound by it, so long as the objection was made manifest during the process of the rule's 3 emergence. The temporal qualification on the right to opt out has important consequences. A state that fails to object prior to the time that the rule finally crystallizes cannot claim exemption from it; subsequent departures from the standard of conduct required by the rule constitute international wrongs. In addition, a state that achieves independence subsequent to the final emergence of the rule is bound by the rule as an inescapable consequence of statehood. 4 The inclusion of the principle of the persistent objector among the "rules of recognition" of the international legal order rests on an apparently straightforward deduction from the central premise of in1. See, e.g.. I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAw 6-10 (3d ed. 1979);
J. BRIERLY, THE LAw OF NATIONS: AN INTRODUCTION TO THE LAW OF PEACE 59-60 (C.

Waldock 6th ed. 1963). 2. See. e.g., J. BRIERLY, sapra note 1 at 61; I. BROWNLIE, Supra note 1 at 7. 3. The leading authority for the principle of the persistent objector is the opinion of the International Court of Justice in the Fisheries Case (U.K. v. Nor.), 1951 1.C.J. 116, 131 (Judgment of Dec. 18). There the court stated that even if there were a rule prohibiting the enclosure of bays by baselines exceeding ten miles in length, Norway would not be bound by it, since Norway had persistently objected to the rule. The Court had earlier relied on the principle of the persistent objector in the Asylum Case, (Colom. v. Peru), 1950 I.C.J. 266, 277-78 (Judgment ofJune 13), but in a context that has led at least one reputable scholar to view the principle as relevant only to local or special custom. A. D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 252-54 (1971). For more on Professor D'Amato's views, see infra Part III. 4. See, e.g., G. VON GLAHN, LAw AMONG NATIONS 17 (3d ed. 1976). Contra, G. VAN HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW 77-78 (1983).

1985 / Persistent Objector ternational law theory. That premise is that the international legal order lacks a hierarchically superior sovereign authorized to prescribe rules for the subjects of the order. In the absence of such a sovereign, law must result from the concurrent wills of states5 and, at the very least, cannot bind a state that has manifestly and continuously refused to accept it. There is, however, a rather puzzling anomaly. The support for the principle of the persistent objector in writing on the sources of international law is so broad and the legal consequences of being a persistent objector so decisive that one would expect to find a large number of instances in which states have claimed that status for themselves. The principle of the persistent objector makes available a genuinely Alexandrian solution to the Gordian knot of disputes arising under customary international law. It should be much easier to demonstrate that one has persistently objected to a rule than to show that the rule does not exist. Yet it is far easier to find instances in which a state has failed to invoke the principle when in fact it had persistently objected to a rule, than it is to find cases of the principle's actual application. The paucity of empirical referents for the persistent objector principle is striking. An unsystematic, but fairly broad, survey of modern textbooks on international law and of works on the doctrine of sources in particular failed to turn up any case where an author provided even one instance of a state claiming or granting an exemption from a rule on the basis of the persistent objector principle--excepting of course the Asylum and Fisheries cases themselves. 6 Most of the authorities
5. The famous dictum in The Lotus case remains the best expression of this view: "International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law . . . . Restrictions upon the independence of states cannot therefore be presumed." The Case of The S.S. "Lotus" (Fr. v. Turk.) 1927 P.C.I.J. set. A, No. 10, at 18 (Judgment of Sept. 7). 6. None of the works cited so far in this essay provides such an example. To these may be
added Akehurst, Custom as a Source of InternationalLaw, 47 BRIT. Y.B. INT'L L. 1, 28 (197475); Fitzmaurice, The Law and Procedure of the International Court ofJustice. 1951-54: General Principles and Sources of Law, 30 BRIT. Y.B. INT'L L. 1, 24-26 (1953); MacGibbon, Customary International Lau and Acquiescence, 33 BRIT. Y.B. INT'L L. 115, 137-38 (1957); Schacter, The Nature and Process of Legal Development in InternationalSociety, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAw 745, 779, 790-94 (R. Macdonald & D. Johnston eds. 1983); Vitally, The Sources ofInternationalLaw, in MANUAL OF PUBLIC INTERNATIONAL LAW 116, 136-37 (M. Sorensen ed. 1968). I hasten to point out that I am not so bold as to claim that there are no such instances in fact. Indeed, I would welcome hearing from readers who are aware of such cises. I make a much less ambitious claim, i.e., that there are far fewer such cases than one might expect given the widespread acceptance of the principle and its rhetorical advantages. I also wish to reserve my position on the jurisprudential problem that is presented by a record that is barren of instances of the principle's application. Do propositions about the sources of law require empirical support? Or, on the contrary, is deduction from a set of postulates that define the international order a sufficient basis for their validity?

HarvardInternationalLaw Journal / Vol. 26 consulted in fact contented themselves with citing these two decisions 7 as proof of the existence of the persistent objector principle. The Court's pronouncements on questions related to the doctrine of sources exercise so powerful a dominion that it is useful to see whether writers in the period before the Asylum and Fisheriescases were able to cite actual instances of the application of the principle of the persistent objector. The pleadings in the Fisheries case contain considerable discussion of the persistent objector principle. 8 Given the care so evident in the preparation of the pleadings and the scholarly reputations of many of those responsible for them, it is reasonable to expect that actual instances of the invocation of the persistent objector principle would be discussed here if they existed. In fact, neither the Norwegian nor the British government provided any such examples for the Court, although they concurred on the validity of the principle. 9 Moreover, the Norwegian Counter-Memorial, containing an extended argument in support of the principle's validity, relied on the writings of four noted publicists. None of the four provides any concrete instance of the principle's appearance in practice. 10 It is fairly easy, however, to provide examples of states failing to invoke or give effect to the principle in situations where it could have been applicable. Consider first the restrictive rule of sovereign immunity. The Soviet Union has maintained a continuous objection to any inroads on the rule of absolute immunity and did so during the

7. It is a curious, though little-noted fact that the Court's endorsement of the principle in each case was pure dictum; the Court in each case already had determined that the substantive rule to which objection was made was not binding on states generally. Fisheries Case (U.K. v Nor.). 1951 I.C.J. 116, 131; Asylum Case (Colom. v. Peru), 1950 I.C.J. 266, 277-78. See
M. Bos, THE METHODOLOGY OF INTERNATIONAL LAW 251 (1984).

The principle of the persistent objector also seems inconsistent with other dicta by the Court on the characteristics of rules of customary international law. In the North Sea Continental Shelf Cases, the Court contrasted conventional rules with rules of customary law, stating that the latter "must have equal force for all members of the international community and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor." North Sea Continental Shelf Cases (Fed. Rep. of Ger. v. Den.; Fed. Rep. of Ger. v. Neth.). 1969 .C.J. 3. 38-39. 8. Contre-MNmoire de ]a Norvige (U.K. v. Nor.). 1951 I.C.J. Pleadings (2 Fisheries) 38184 (Counter-Memorial dated July 31. 1950): Reply of the United Kingdom (U.K. v. Nor.), 1951 I.C.J. Pleadings (2 Fisheries) 428-29 (Reply dated Nov. 28, 1950). 9. They did not, however, agree on the precise effect or application of the principle, the British government, in particular, insisting on a variety of limitations. See infra notes 60 and 67. 10. de Visscher, I Codification du droit international, 6 REC. DES COURTS 328, 463 (1925); Francois, 4 Rgles ginrales du droit de la paix, 66 REC. DES COURTS 1, 175 (1938); Verdross, 5 Rigles gineralesdu droit internationalde la paiv,'30 REc. DES COURTS 271, 296 (1929) (may not support the principle: concerns opposition by several states to prevent formation of rule); Wright,
InternationalLaw as Affected b) the United States Neutrality Act and the Rdsolution of Panamta, 34

Ass. J. INT'L L. 238 (1940) (does not support the principle: concerns effect of unilateral acts on formation of rules).

1985 / Persistent Objector very period that the restrictive rule was becoming predominant. I"Yet there is no evidence that other states have exempted Soviet agencies and enterprises from the application of the restrictive theory. To the contrary, the desire to subject them to jurisdiction seems to have been one of the motivations for adoption of the restrictive rule. 12 Indeed, I am unaware of any case in which a domestic court or a national legislature has accorded such special treatment to the Soviet Union.13 Nor, so far as it appears from the courts' opinions, has the Soviet Union claimed the benefits of persistent objector status in any of the numerous cases in which Soviet agencies or instrumentalities have been sued in various national courts. 14
11. See K. GRZYBOWSKI, SOVIET PUBLIC INTERNATIONAL LAw 221-22 (1970); Boguslavsky, ForeignState Immunity: Soviet Doctrineand Practice, 10 NETH. Y.B. INT'L L. 167, 167-68 (1979). 12. This is made most explicit in the "Tate letter." 26 DEp'T ST. BULL. 984 (1952). 13. K. GRzBowicsi, supra note 11, at 221 (restrictive theory in early French and Italian shipping cases). Other French decisions applying the restrictive theory to Soviet defendants

include: Chaliapine v. Union of Soviet Socialist Republics, 8 Ann. Dig. 225 (Cass. req. 1936); Russian Trade Delegation v. S.A. Des Enterprises Gre and Banque Commerciale Pour L'Europe du Nord, 5 Ann. Dig. 19 (Civil Tribunal of the Seine, 1930); Socit6 de Gostorg et Union des Rpubliques Socialistes Soviftiques v. Association France-Export, 3 Ann. Dig. 174 (Cour de Paris, 1926). The most important of the Italian cases for our purposes is Borga v. Russian Trade Delegation, 22 I.L.R. 235 (Court of Cassation, United Chambers 1953), while the most important case from the countries of the British Commonwealth is Qureshi v. USSR, 64 I.L.R. 585 (Sup. Ct. of Pakistan, 1981). In each we find a full-dress opinion assessing the state of customary international law, concluding that the restrictive theory of immunity is correct, and applying that theory in a case brought against the Soviet Union. 64 I.L.R. at 597-608. Cases decided by United States courts both before and after the passage of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1330, 1332(a)(2)-(4), 1391(f), 1441(d), 1602-11, have treated the restrictive rule as applicable to the Soviet Union. See Southeastern Leasing Corp. v. Stern Draggen Belogorsk, 493 F.2d 1223 (1st Cit. 1974) (respecting State Department suggestion of immunity premised on application of restrictive theory); Harris v. Intourist, 481 F. Supp. 1056 (E.D.N.Y. 1979); United Euram Co. v. USSR, 461 F. Supp. 609 (S.D.N.Y. 1978); Yesenin-Volpin v. Novosti, 443 F. Supp. 849 (S.D.N.Y. 1978). Recent legislative codifications of the restrictive rule in the United States, the United Kingdom, and Canada fail to make any exceptional provision for a persistent objector. United States: Foreign Sovereign Immunities Act; United Kingdom: State Immunity Act of 1978, 17 I.L.M. 1123 (1978); Canada: Act to Provide for State Immunity in Canadian Courts, 21 I.L.M. 798 (1982). The closest the United States Congress seems to have come to considering whether special considerations might apply to the Soviet Union came in hearings before the House Judiciary Committee. At no point, however, did anyone suggest that there might be a legal impediment to the application of the restrictive rule to the Soviet Union. Jurisdiction of United States Courts
in Suits against Foreign States: Hearings on H.R. 11315 Before the Subcommittee on Administratie Law and Government Relations of the House Committee on the Judiciary, 94th Cong., 2d Sess. 54

(1976). 14. It seems the argument was made in several cases that the basic distinction between acts jure imperii and acts jure gestionis was inapplicable to a society organized on socialist principles. See, e.g., Qureshi v. USSR, 64 I.L.R. 585, 607-08 (Pak. Sup . Cc., 1981); Borga v. Russian Trade Delegation, 22 I.L.R. 235, 238-39 (Court of Cassation, United Chambers 1953). Basing himself on this argument, Boguslausky, supra note 11, at 168, declares that the restrictive theory is "nor to be applied with regard to socialist states." But this is a substantive argument about the soundness of the restrictive rule in a particular context rather than about the right to apply it to a dissenting state.

HarvardInternationalLaw Journal / Vol. 26 Several examples can also be drawn from the law of the sea. The United States had consistently maintained that three miles marked the outer limit of the territorial sea. In August 1979, press reports indicated that United States naval units were going to engage in unspecified activities in the zone between three and twelve miles off the coasts of certain other states, in order to exercise the rights claimed by the United States. 1 5 News of the United States plans created a brief storm at the eighth session of the United Nations Convention on the Law of the Sea (UNCLOS) III. Spokesmen for the Group of Coastal States charged the United States with violating the territorial integrity of other UN members. There was no hint of recognition that the' United States might be in a special position with respect to the twelvemile rule. 16 For its part, the United States pointed out that the contemplated actions were consistent with long-standing U.S. positions; however, Ambassador Richardson's statement contained no direct reference to the persistent objector principle. 17 Similarly, throughout the period during which 200-mile fisheries zones became accepted in international law, the United States opposed the extension of coastal state rights and authority over tuna beyond the twelve-mile limit. The United States continues to adhere to that position today. ' Again, so far as I am aware, despite the fact that tuna vessels continue to be seized, the United States has not invoked nor have others accepted its entitlement to the status of a persistent objector. One further example: the United States and some other nations have consistently opposed the view (held by the majority of states) that the deep seabed may be mined only in accordance with the regime to be established by UNCLOS. 19 Once again, I have been unable to find evidence that the principle of the persistent objector has been invoked by those asserting that deep seabed mining is lawful.
15. U.S. Will Challenge Coastal Sea Claims That Exceed Three Miles, N.Y. Times, Aug. 10, 1979, at Al, col. 4. 16. See, e.g., U.N. Doc. A/CONF. 62/90, reprintedin Third U.N. Conference on the Law of the Sea, Official Records, Eighth Session (Resumed) (July 19-Aug. 24, 1979), U.N. Doc. A/ CONF. 62/V. 12 at 5-6 (Letter from Vice-Chairman of the group of coastal states to the President of the Conference). 17. U.N. Doc. A/CONF. 62/92, reprintedin id. at 5-6. 18. Fisheries Conservation and Management Act of 1976, 16 U.S.C. 1802(14), 1813, 1825(4Xc) (excludes U.S. jurisdiction over tuna and provides sanctions against nations making more extensive claims than U.S. recognizes); 19 WEEKLY COMP. PRES. Doc. 383 (Mar. 14, 1983) (President Reagan's Oceans Policy Statement of Mar. 10, 1983, reaffirming traditional U.S. position). See also Burke, Highly Migratory Species in the New Law of the Sea, 14 OCEAN DEV. & INT'L L. 273, 303-05 (1974) (U.S. position is mere denial of coastal state's right to jurisdiction over tuna). 19. See RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED) 523 and Reporters' Note 2 (Tent. Draft No. 5, 1984); 19 WEEKLY CoMP. PRES. Doc. 383 (March 14, 1983). See also Third U.N. Conference on the Law of the Sea, Official Records, Seventh Session (Resumed) (Aug. 21-Sept. 15, 1978), U.N. Doc. A/CONE. 62/V.9 at 103 (Statement of Ambassador Nandan as Chairman of the G-77, opposing U.S. view).

1985 / Persistent Objector

Another example comes from the field of human rights. The practice of apartheid is almost universally considered to be a violation of the customary international law of human rights. 20 Yet it is plain that South Africa has always objected to a rule prohibiting systematic, official, racial discrimination and that its opposition has been manifested throughout the period during which the rule matured. Again, the principle of the persistent objector seems to have created no obstacle whatsoever to the application to South Africa of the rule against racial discrimination. Indeed, as in the other cases described, the principle of the persistent objector does not seem to have created sufficient intellectual embarrassment so as to require an effort to 21 explain it away. II. THE CLASSICAL AND THE CONTEMPORARY PROCESSES OF LAW-CREATION Two points of fundamental importance emerge from the preceding discussion. First, the principle of the persistent objector is firmly established in the orthodox doctrine on the sources of international law. It thus forms part of the doctrinal "stuff" potentially available to states in stating and responding to claims about their rights and duties under international law. Second, the principle has played a surprisingly limited role in the actual legal discourse of states. Those who activate legal doctrine by employing it have not been drawn to the principle despite its firm establishment in the doctrine and its apparently attractive features. In this section of the essay, I wish to suggest that the contemporary process of law-making in international affairs has several characteristics that may promote increasingly frequent and effective resort to the principle of the persistent objector in the future. In comparison with the classical process, the contemporary process presents states with more salient targets, more obvious occasions, and more visible means of objecting to rules that they find uncongenial. Further, the contemporary process is more likely to generate objections from highly visible and legally conscious states. Their resort to the principle of the persistent objector will tend to popularize and legitimize invocation of
20. See, e.g., I. BROWNLIE, supra note 1, at 596-97; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 12, 57 (Advisory Opinion of June 21, 1971). The General Assembly each year adopts several resolutions that express this conviction on the part

of the vast majority of UN members.

21. There may, of course, be ways to explain away each of these cases. Each such effort would in some measure refine the principle of the persistent objector in such a manner as to exclude its application in the particular case. See infra Part III. The occasion for such refinement has not arisen since states have not yet invoked the principle.

HarvardInternationalLaw Journal / Vol. 26 the principle. And finally, the principle of the persistent objector resonates well with the ideology of sovereignty that, for good or ill, dominates the legal rhetoric of much of the world. The classical process for generating international rules of general applicability produced a body of rules that were generally unwritten. Up through the end of the nineteenth century and into the beginning of the twentieth, the law in many areas of central concern to international lawyers remained lex non scripta. Questions relating to the law of diplomatic privileges and immunities, the law of treaties, the law of the sea, the law of arbitral procedure, the law of state succession, and the law of state responsibility all had to be resolved without reference to any text that could claim special authority. The content of the governing rules was determined on the basis of induction and reason. Only the laws of war and of neutrality had been codified to any significant degree, and even here the principal codification effort occurred in the latter half of the nineteenth century and at the beginning of the twentieth. 22 Today, by contrast, the prescriptive process focuses on the production of written instruments embodying in fixed language authoritative, if often ambiguous, statements of the governing rules. Although the formal multilateral treaty-making process exemplifies this characteristic in its most developed form, the drafting of -certain resolutions of the General Assembly illustrates it as well. Not only have such texts come to dominate the topics that made up the core concerns of classical international law, but they have been the principal device for normative elaboration with respect to the new areas of international law-for example, the law of human rights, of the environment, and of outer space. This has led to history's second great change in the dominant mode of identifying generally binding rules of international law. The era of speculative reason first gave way to the era of inductive inquiry, which is itself now giving way to the era of textual exegesis. 23 The ambiguity of language has replaced the ambiguity of nature or of events as the central problem of international law analysis. This shift has been accompanied by a shift from largely unconscious to highly self-conscious law-creation. Whereas the bulk of classical
22. See generally A. NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 224-30

(Rev. ed. 1954): seealso C. DE VISSCHER, Supra note 10, at 150 (Declaration of Paris of 1856). 23. For the shift from natural law thinking to empirical positivism, see generally A. NussBAUM, supra note 22, at 61-250. But c. Schacter, The Nature and Process of Legal Development in InternationalSoiety, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW 745, 762-63 (R. Macdonald & D. Johnston eds. 1983) (arguing that even in heyday of empirical positivism jurists used state practice largely to confirm familiar aphorisms). For the shift to textual analysis, see id. at 776 (multilateral "codification" treaties are often treated as though declaring generally applicable law except where there is -persuasive evidence that a particular provision was intended to be de legeferenda').

1985 / Persistent.Objector
customary law was secreted in the resolution of actual bilateral controversies, the bulk of the law currently being generated emerges from processes whose very purpose is the formulation of rules for the prospective regulation of conduct. The shift has created the fundamental mismatch of ends and means in the contemporary international legal order: the multilateral treaty-making process is legislative in objective but contractual in method. These two characteristics are linked intimately to a third. The dominant perspective of a classical inquiry into the content of customary international law was retrospective. The question of what states ought to do was answered primarily by asking what they have done. The same question today arises in prospective form. For today's foreign ministry lawyer, the key question is whether to place reliance upon a rule stated in some convention or resolution.24 Whatever theoretical objections there may be to treating the convention or resolution as a statement of generally applicable rules, the examination of past state practice has lost its primacy in the methodology of international law and has begun to atrophy. Correspondingly, opinio juris is no longer seen as a consciousness that matures slowly over time (and finally imparts obligatory force to a practice once motivated by habit, convenience, or moral sentiment), but instead as a conviction that instantaneously attaches to a rule believed to be socially necessary or 25 desirable. Each of these trends would not have been possible were it not for the invention of the multilateral law-making conference and the emergence of international organizations with nearly universal membership. The classical process generated norms in a temporally dispersed set of largely bilateral interactions. Today, generally applicable rules receive authoritative statement at quite definite points in time and in a formal multilateral setting. Key moments in the maturation of a legal rule are much more readily identified and much more concentrated in time. Indeed, the outcomes themselves are fundamentally conditioned by the formal and informal practices of the multilateral forum. As Keohane and Nye have shown, the ability to exert power in defense of
24. President Reagan's Oceans Policy Statement represents an outstanding example of this phenomenon. Excepting the question of seabed mining, it declares that the United States will be guided by the provisions of the 1982 UNCLOS both in the administration of its own Exclusive Economic Zone and in its maritime activities worldwide. 19 WEEKLY COMP. PRES. Doc. 383 (Mar. 14, 1983). It appears that this statement preceded any empirical investigation into whether the Convention accurately reflected the current claims of states. See. NATIONAL
ADVISORY COMMITTEE ON OCEANS AND ATMOSPHERE, THE EXCLUsivE ECONOMIC ZONE OF THE UNITED STATES: SOME IMMEDIATE POLICY ISSUES 24 (1984) (surveying EEZ claims).

25. Cheng, Custom: The Future of GeneralState Practice in a Divided World, in THE STRUCTURE AND PROCESS OF INTERNAT)ONAL LAW 513, 535 (R. Macdonald & D. Johnston eds. 1983) (arguing that opinio juris has always been prospective in orientation).

HarvardInternationalLaw Journal / Vol. 26 objectives regarding the shape of the law has diminished as the arena for law-making has become more and more formalized and institutionalized. 26 One of the consequences of this shift is that states controlling a preponderant portion of global military capabilities are far less able to insure that their legal views prevail than were their fiineteenth century counterparts. American disenchantment with the United Nations over the last decade in part reflects the realization that the multilateral process cannot be controlled by the United States. These trends have already produced important effects in the field of international law. As states increasingly view treaties emerging from the multilateral process as authoritative, the relationship between custom and treaties, one of the eternal conundrums of international law theory, becomes even more difficult and the line between the two even more indefinite. 27 Similarly, the clash of pens over the legal effect of General Assembly resolutions has arisen because virtually all states have cited one or another resolution as a statement of binding legal principle. These trends also make it reasonable to expect that the principle of the persistent objector will acquire a new prominence in the legal discourse of states in the next few decades. In the first place, the move to lex scripta has lightened the "applicant's" burden of showing what the law is. The content of the rule no longer need be revealed by a laborious and inevitably uncertain reconstruction of ambiguous historical reality. Thus the "respondent" state is under more pressure to rely on arguments that concede, at least hypothetically, the general validity of the rule cited against it. 2s The principle of the persistent objector offers a way to oppose the application of a customary rule while conceding the existence of the rule. The multilateral process through which such presumptively valid rules emerge also provides for more obvious opportunities to state objections than did the classic process of accretion through bilateral practice. A rule adopted at a UN conference or embodied in a General Assembly resolution is presented as a target for all those who have objections to voice. Its adoption is a public, community act and everyone involved knows of it. A state that does not like a proposed rule is already involved in the process that generates it and has obvious means to object to it. In contrast, the old customary international law
26. R. KEOHANE & J. NYE, POWER AND INTERDEPENDENCE: WORLD POLITICS IN TRAN-

SITION 99-103, 124-25 (1977). 27. See Jennings, The Identification of International Law in INTERNATIONAL LAW: TEACHING AND PRACTICE 3, 6-7 (B. Cheng ed. 1982); Weil, Towards Relative Normativity in International Lau?, 77 AM. J. INT'L L. 413. 438-40. 28. 1 am of course using "applicant" and "respondent" here in a figurative sense rather than the technical sense of parties to a judicial proceeding.

1985 / Persistent Objector emerged from the acts of a few states occurring out of the gaze of most other states. A vote, an explanation of position, a refusal to ratify-these are the steps available to the objector today that were not available to the states of the classical era. A third factor also should be operative. The principle of the persistent objector requires that the objection be manifested before the customary rule is crystallized. When rules grow by the accretion of practice over decades or even centuries, it is very difficult to characterize one or another individual event as decisive in the development of the rule. In contrast, dissenting states can hardly fail to recognize the decisive importance of the adoption of a multilateral convention 29 or of a "declaratory" resolution. The fact that the process of decolonization is all but completed may have reduced the strength of another factor inhibiting resort to the persistent objector principle. Throughout the period of decolonization, many new states objected to some of the existing rules of customary international law. They joined to their substantive objections the argument that the rules in question were made without their participation or consent. Conventional doctrine met this argument by the principle that new states are bound by the existing body of customary international law. 30 Since the challenged rules were already in existence at the -time the new states became independent, the persistent objector principle provided no help for new states: their objections came, as it were, too late. The principle of the persistent objector thus incorporated a particularly galling inequality for dissatisfied Third World states. Not only were they bound by received rules of customary international law, but they were even bound by rules from whose application some of the older states might, at least in theory, be exempt. As the process of decolonization comes to a conclusion, the categories of new and old states will tend to lose their relevance as more and more areas of international law will be subject to the multilateral processes discussed earlier. Increasingly, the law will be made up of rules that have obtained authoritative endorsement by the international community only after the decolonization process was well under way, if not complete. For the first time, the principle of the persistent objector will provide an equal opportunity for all states. Once that point is reached, the principle should appeal to a large number of states on ideological as well as practical grounds. For the states of the Third World as well as for the Soviet Union, the prin29. See H. THIRLWAY, INTERNATIONAL CUSTOMARY LAW AND CODIFICATION 115-17 (197 1). 30. See sources cited supra note 4. Contra, G. TUNKIN, THEORY OF INTERNATIONAL LAW 127-29 (1974) (Soviet view); G. VAN HoO, supra note 4, at 77-78.

HarvardInternationalLaw Journal / Vol. 26 ciple's evident basis in a consent theory of international obligation should provide a strong attraction. In addition, as the process of development continues at an uneven pace in different countries, the Third World majority in the UN should become increasingly heterogeneous; some members of that group may well find themselves attracted to a doctrine that permits them to opt out of rules pronounced by their less prosperous brethren. Similarly, states of the First World, and in particular the United States, should find in the persistent objector principle a doctrinal basis for freeing themselves from the results of multilateral processes that are seen as subject to the domination of a hostile majority. To be sure, the principle of the' persistent objector will remain a fallback argument to be used only in conjunction with a denial that the substantive rule in question forms a part of general international law. But there will be cases where support for a substantive rule is so broad that a dissenting state can deny its validity only by asserting that no rule of law can be made unless the dissenting party agrees. That position is difficult to sustain both in traditional theory and in global politics, driving dissenting states to rely upon the doctrinally available fallback, the exemption of the persistent objector. And given the disjunction between control over the new law-making processes and the distribution of power, the claim of the persistent objector's privilege may well be made by leading states whose practice will give the principle a prominence it has hitherto lacked. The thesis advanced here would of course be considerably more persuasive if states had indeed invoked the principle of the persistent objector in recent controversies. Yet the absence of such cases to date should not be regarded as decisive. There is often a lag between the social conditions that make possible legal change and the actual occurrence of that change. Such a lag may well explain why states have not yet invoked the principle of the persistent objector in response to the pressures generated by the contemporary process. If such is the case, however, we should expect to find some harbingers of future developments in the work of scholars who seem particularly sensitive to the same pressures with which governments will have to reckon. There are indeed just such signs in two recent works of extraordinary importance. The principle of the persistent objector occupies an important place in both. The first, Professor Prosper Weil's stunning article, Towards Relative Normativity in InternationalLaw?, may be the 1 3 most widely remarked upon and heralded article of the past decade.
31. Well, supra note 27. One mark of the extraordinary response to this article is that the
editors of the American Journal of International Law believed it to be of such significance that

they took the highly unusual step of including it in the Journal despite the fact that it had already appeared (in French) in another journal.

1985 / Persistent Objector The second, the revised Restatement of the Foreign Relations Law of the United States, currently in draft form, is intended to (and probably will) serve as the primary source of guidance for lawyers and judges in the United States on those questions of international law within its scope. 32 Although the two works differ fundamentally in purpose, both recognize the need to confront directly the fundamental changes in the law-making process identified earlier. And both place the principle of the persistent objector near the center of their response to these changes. The title of Professor Weil's article suggests that its focus is on the emergence in international law of a hierarchy of norms of different weight and legal value. And indeed, the article does trace and criticize trenchantly the development of such a normative scale. 33 But the real message of the article is far more general, and it is the more general message that explains the enormous response the article has elicited. In the opening sentence of the article, Professor Weil declares that his purpose is "to examine, even at the risk of magnifying them somewhat for clarity, the potential dangers that some recent developments usually studied from other angles . . . bring in their wake for the future of international law as a normative system intended to perform certain functions." 34 The article is a cri de coeur against many of those tendencies that I have identified as characteristic of the contemporary lawmaking process, and in particular the tendency to identify the law with the product of committees, assemblies, councils, and conferences. According to Professor Weil, the functions of international law are to permit the peaceful coexistence of separate and independent states and -to facilitate the achievement of their common ends. 35 These functions have never changed through the centuries, and the performance of these functions requires respect for "voluntarism" as a defin36 ing characteristic of the order. Professor Weil first mentions the principle of the persistent objector in describing the key tenets of the classical conception of the international legal order. For him, the principle is not merely a footnote to be added for the sake of a complete account of the doctrine of sources. It is instead central to the stability of an international order that generates rules without requiring express, universal consent.

32. The revised Restatement has been submitted to the American Law Institute piecemeal in five tentative drafts. In the most recent, the Reporters declare the draft essentially complete.
RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED), Note to the

Members of the Institute, xii (Tent. Draft No. 5, 1984). 33. Weil, supra note 27, at 423-30. 34. Weil, supra note 27, at 433. 35. Id. at 4 18-19.

36. Id. at 420.

HarvardInternationalLawJournal / Vol. 26 The classic theory of custom depends on a delicate, indeed precarious, equilibrium between two opposite concerns: on the one hand, to permit customary rules to emerge without demanding the individual consent of every state; on the other hand, to permit individual states to escape being bound by any rule they do not recognize as such . . . .It is this opportunity for each individual state to opt out of a customary rule that constitutes the acid test of custom's voluntarist nature. . .It is this equilibrium that is threatened today. For the past several years, the degree of generality required of a practice, to enable it to serve-as the basis of a customary rule, has been steadily diminished, while, on the contrary, the binding character' of such a rule once formed is being conceived of as increasingly general in scope. The result is a danger of imposing more and more customary rules 3 7 more and more states, even against their on clearly expressed will. Nor does Professor Weil's concern for the persistent objector remain on this abstract plane alone. Later in the article, he speculates on the position of a state that has objected to norms or concepts emerging from the contemporary law-making process and wonders whether the objector's right to opt out will be respected. 38 In sum, Professor Weil's profound unease about the contemporary process and the normative outcomes it may generate drives him in the direction of the principle of the persistent objector as the clearest, most firmly established, expression of a voluntarist conception of obligation in the accepted doctrine of sources. The enormous reaction to his article indicates that many others share this unease. Perhaps they may be drawn to the same solution. The Draft Restatement's use of the principle of the persistent objector is even more suggestive. This Restatement devotes far more attention to the problem of the sources and evidence of international law than did its predecessor. 39 The Reporters very clearly perceive that the international legal order has undergone profound changes in the years since the late fifties and early sixties and that the received doctrine of sources has been questioned sufficiently to require express consideration. The draft of the revised Restatement is particularly useful as a barometer for gauging various pressures on the United States in the next few decades. The Restatement aims to set forth the "foreign relations law of the United States"-something related to but distinct
37. Id. at 433-34. 38. Id. at 437-38. 39. RESTATEMENT OF FOREIGN RELATIONS L-.w OF THE UNITED STATES (REVISED), Introduction, xvi (Tent. Draft No. 1, 1980).

1985 / Persistent Objector from a restatement of international law per se. 40 The formal processes of its adoption include review by the Brahmins of the American legal profession in the practicing bar, as well as in government, and academe. The controversy surrounding various provisions of the draft demonstrates, perhaps better than anything else could, that the Restatement is and must be sensitive to the dilemmas faced by the United States in the international arena. These dilemmas are reflected beautifully in the draft's provisions on the sources and evidence of international law. In general, the Reporters are hospitable to the contemporary processes of law-creation. They accept the outcome of those processes as authoritative statements of international law on most questions. 4 ' Yet at the same time, the Reporters are mindful of the possibility that those processes may generate outcomes unfavorable to the United States. The intellectual problem they face, then, is to link the United States with large chunks of the product of the contemporary law-creation process while delinking it from specific norms. The principle of the persistent objector presents a highly respectable doctrinal solution to that problem. It is thus not surprising to find the principle given considerable prominence in the draft, both in its account of the sources of law and in relation to particular substantive questions. Tentative Draft No. 1 opens with a "Memorandum to the Institute" explaining the need for a revision of the 1965 Restatement. At this very early point, the Reporters identify a key problem: "What is the 'international law' represented by a multilateral treaty to which adherence is not universal, especially where the United States is in a small minority of abstainers?" 42 It is a problem for which the principle of the persistent objector will later be seen to supply the solution. The principle itself makes its first appearance in the Introductory note to Part I, Chapter 1. In a passage entitled "International law based on acceptance," the Reporters declare:
40. Id. 1.
41. In their treatment of the sources and evidence of international law, the Reporters attach

considerable importance to widely adopted multilateral conventions and to General Assembly resolutions. RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED) 102(2), 103 (Tent. Draft No. 1, 1980). See, e.g., id. pt. III, Intro. Note (adopting en bloc
provisions of the Vienna Convention on the Law of Treaties); RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED), pt. V, Intro. Note at 55 (Tent. Draft No.

3, 1982) (adopting non-seabed mining provisions of 1982 UNCLOS); id. pt. VII, Intro. Note (treating multilateral texts as primary authority in field of human rights); RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED), pt. VI, Intro. Note (Tent. Draft No. 4, 1983) (relying on outcome of Stockholm Conference, General Assembly resolutions, work of the OECD as important sources of international environmental law).
42. RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED) (Tent.

Draft No. 1, 1980) at xvi.

HarvardInternationalLaw Journal / Vol. 26

Modern international law is rooted in acceptance by the states that constitute the system. Particular rules of law also depend on acceptance by the states. Particular agreements create binding obligations for the particular parties, but general law depends on general acceptance. Law cannot be made by the majority for all, although states may be bound by customary law which they did not participate in making if they did not dissociate themselves during the process of its development. Overwhelming majorities, however, can often effectively unmake existing law and bring about new or changed law by state practice or by new law-making treaties. A growing practice in international organizations and at law-making conferences, of seeking agreement by "consensus" (rather than by vote), also discourages dissent and puts pressure 43 on dissidents to acquiesce. Thus, the principle receives express statement in the very first presentation on the sources of law in the new Restatement. Moreover, the principle is followed immediately by two statements that uneasily embrace the characteristic law-making processes of the contemporary world. The Reporters again feature the principle prominently in the "dark gray" letter of Comment (d) to 102, the black letter provision on the sources of law. Importantly, the same section accords significant weight to the multilateral treaty in the creation of rules of law. Section 102(3) declares: "International agreements create general international law when such agreements are intended for adherence by states generally and are in fact widely adopted." 44 The next section accords "substantial weight" to, inter alia, the resolutions of international organizations as evidence of international law. 45 Thus, in this structure, new, generally applicable international law can be made through the adoption of multilateral treaties and be "evidenced" by the resolutions of international organizations. It is a structure from which the United States must have an escape hatch since it cannot always control the processes resulting in treaty texts or resolutions. The need for an escape hatch is in fact intensified by another position taken in the draft. The Reporters adopt the position that rules of customary international law are part of the federal common law, and that federal jurisprudence does not establish a hierarchy among various
43. Id. at 15. 44. Id. 102(3). It should be noted that these provisions have been controversial precisely because they link the content of international law to processes that the United States cannot dominate and that produce outcomes contrary to traditional U.S. positions-e.g., in the treatment of foreign-owned property. 45. Id. 103.

1985 / Persistent Objector sources of federal law. The Reporters are driven to conclude that rules of customary international law that become effective as the law of the United States supersede state law and even prior inconsistent federal statutes or treaties.46 This opens the rather horrifying prospect that hostile majorities at the UN will make federal law through the adoption of resolutions or multilateral conventions. Fortunately, the principle of the persistent objector is available. "A rule of international law," the Reporters point out, "derives its status as law in the United States from its character as an international legal obligation of the United States." 47 It follows that "a rule of international law . . . has no legal status in the United States if the United States is not in fact bound by it: for example, a rule of customary law from which the United States disassociated itself during the process of its formation
"48

Perhaps most interesting is the draft's treatment of several of the legal controversies mentioned in Part I as prima facie cases for the application of the persistent objector rule. In two cases-the permissibility of the twelve-mile territorial sea and of coastal state jurisdiction' over tuna-the Reporters make no mention of the persistent objector principle. The UN Convention on the Law of the Sea is held to state the rule of customary international law on these two subjects. The Reporters' omission of the persistent objector principle may perhaps be due to the (possibly mistaken) belief in each case that there was no opposition between that convention and the position of the United States.49 In the three other cases-apartheid, sovereign immunity, and deep seabed mining-the Reporters do make some mention of the position of the objecting state. What is said in each case is different and, I think, revealing. A system of state-sponsored racial discrimination is listed as one of seven practices violating the customary international law of human rights.5 1 The accompanying commentary, together with the Reporters'
46. Id. 131(0). 47. Id. I1 comment b. 48. Id. 49. Id. 51 l(a) ('ent. Draft No. 3, 1982) (12-mile territorial sea permissible). Reporters' Note 4 states that the United States claimed only a three-mile territorial sea, but does not add that the United States refused to recognize any broader limit prior to President Reagan's March 10, 1983 statement, supra note 18. The Reporters treat art. 64 of the 1982 Convention as a statement of customary international
law, REISTATEMENT OF FOREIGN RELATIONs LAW OF THE UNITED STATES (REVISED) 514 comment f (Tent. Draft No. 5. 1984), and claim that it subjects tuna to a special regime of

regulation by international agreement alone. This position is consistent with that of the U.S. government, see Burke, Highly Aligrato,y Species in the New Lau,of the Sea. 14 OcEAN DliV. & INT'L L. 273, 304 (1984), but rests on a doubtful reading of art. 64, id. at 308-10.
50. RELS'ATIAMEI..NT FOREIGN RELATIONS LAW OF THE UNI'I'I:D OF STATES (REVISED)

702(h)

(Tent. Draft No. 3, 1982).

HarvardInternationalLaw Journal / Vol. 26 Notes, make clear that the South African system of apartheid is the locus classicus.51 In the course of demonstrating that customary international law does prohibit all seven practices, the Reporters concede, 5 2 however, that South Africa "claimls] the right" to practice apartheid. No attempt is made, at least expressly, to square this state of affairs with the principle of the persistent objector. But the Reporters do claim that the rules contained in 702 are jus cogens, and that an international agreement violating them would be void. 5 Is there an " implicit theory that the principle of the persistent objector is unavailing against a norm having the character ofJus cogens? The law of sovereign immunity provides the Reporters with another opportunity to consider the position of the dissenting state. In the version of history adopted by the Reporters, the absolute theory of immunity was established law early in the twentieth century; the restrictive rule gradually has gained adherents over the century and now is the general rule. 54 The Reporters' Notes acknowledge that support for the new rule is not universal: it is conceded that the Soviet Union has adhered to the absolute theory of immunity. 55 Again there is no express attempt to reconcile this state of affairs with the principle of the persistent objector. Without mentioning that principle, however, the Reporters supply some information regarding recent Soviet practice that suggests the prickings of the legal conscience: "The Soviet Union, however, has recently accepted the restrictive view in a number of international agreements-with France and Switzerland, for example-and its foreign trade organizations have been prepared to consent to arbitration in a neutral forum in disputes arising out of commercial agreements.'"56 What is the purpose of this information? Is it supplied in order to provide a basis for the application to the Soviet Union of the restrictive theory notwithstanding its objection to the rule? The Reporters actually invoke the principle of the persistent objector only with respect to the lawfulness of deep seabed mining. The basic position of the draft fully accords with the official position of the United States. The United States recognizes that states are forbidden to assert sovereignty over or to grant exclusive rights in the deep seabed. The United States does not concede that non-parties are bound by those provisions of the UN 'Convention on the Law of the Sea barring deep seabed mining outside the regime established by the
51. Id. 702 comment h and Reporters' Note 7. 52. Id. Reporters' Note 1.

53. Id. comment j. 54. Id. pt. IV, chap. 2, Intro. Note (Tent. Draft No. 2, 1981) ("Until the twentieth century the doctrine of sovereign immunity seemed to have no exceptions"). 55. Id. 451 comment a and Reporters' Note 1. 56. Id.

1985 / Persistent Objector

Convention.
57

The general approach to the sources of law adopted by

the Reporters requires them to consider that those provisions may at

same point become customary international law. What would the

position of the United States then be? In that event, the Reporters
declare, the provisions "would not bind the United States, which has

rejected these principles and the power of the [International Seabed] Authority to issue rules, regulations, and procedures binding on states not parties to the Convention." 58 Let me try to summarize what we find in the draft Restatement. We find first that the principle of the persistent objector is featured prominently in the Restatement's account of the sources of law. It is closely linked to the Reporters' willingness to embrace the results of the multilateral processes that now dominate international law-making. We find, too, suggestions of some unease about the application to South Africa and the Soviet Union of rules to which they have objected; the Reporters seem to provide, at least sotto voce, arguments for the inapplicability of the persistent objector principle in each case. This disquiet suggests in turn that some value is attached to assuring respect for the principle. Just what that value is emerges in the first explicit invocation of the principle. We find the principle invoked as the ultimate rationale for the freedom of the United States to mine the deep seabeds regardless of the development of governing customary international law. To say that the Reporters' willingness to take the principle seriously depends on whose ox is being gored is to concede the principal point: given that the United States cannot wholly endorse or reject the dominant contemporary processes, the principle of the persistent objector becomes an enormously attractive means of protecting the ox. III. VEXED QUESTIONS If the prediction made in the preceding portion of this essay is borne out, and states invoke the principle of the persistent objector with greater frequency, new urgency will be given to a series of largely unexplored questions concerning the content of the principle itself. These questions present issues of "constitutional" choice and must be faced as such. Their answers will help shape the emerging international legal order. But even if my prediction proves erroneous, these questions should repay close analysis. For the principle of the persistent objector directly implicates some of the most fundamental issues of international law theory. These issues include, for example, the basis of
57. RESTATEMENT o, FOREIGN RELATIONS LAW OF THE UNITED STATES (REVISED) 523(1)

and comment b (Tent. Draft No. 5, 1984). 58. Id. Reporters' Note 1 and comment.

HarvardInternationalLaw Journal I Vol. 26 obligation, the universality of international law, the existence of a "residual rule" of unfettered freedom for states, and the distinctions between violating, opting out of, and reforming a rule. Considering the content of the principle serves to develop one's own attitude toward some of these basic issues. It therefore seems worthwhile to identify some of these questions as a sort of agenda for further work, although the intended scope of this essay precludes an elaborate treatment of them. My thoughts on each of these questions are, in any event, very tentative and preliminary. I offer here questions and considerations, but not answers. A. General or Local Custom Throughout this essay, we have considered the principle of the persistent objector a basis for exempting a dissenting state from an otherwise generally applicable rule of customary international law. This understanding of the principle is clearly the predominant one in the literature. It is, for example, the understanding adopted in the draft Restatement. There is, however, another school of thought, best typified by Professor D'Amato, which treats persistent objection as relevant to the constitution or opposability of local custom. D'Amato argues, if I understand him correctly, that since general custom does not rest on true consent, objection cannot prevent the application of a general custom to a dissenting state. 59 Local custom does rest on true consent, however, and so objection can prevent the application of a local custom to a dissenting state. Objection can also be the first step in a process by which a local custom is built up, as states in a particular region accept the modification inter se of the generally applicable rule. Professor D'Amato's view does have the virtue of logical consistency. It is true that the conventional theory of customary international law seeks to appropriate the legitimizing power of consent while employing a notion of consent that is largely fictional. Logical consistency, however, may not be the most important value at stake here. To return to the point made by Professor Weil, the conventional understanding of the principle of the persistent objector provides a desirable balancing element in the theory of custom. It permits a state unilaterally to opt out of a rule that it cannot tolerate, whether on grounds of principle or expediency, without preventing the general application of the rule. And this unilateralism may very well be the most important virtue of the principle. The tendency to treat multilateral treaties or resolutions as sources of universally binding and generally applicable rules tends
59. A. D'AMrATo, supra note 3, 252-54, 258-62.

1985 / Persistent Objector to diminish the value of obtaining a dissenter's consent to a treaty and, correspondingly, the need to accommodate his interests. It is at least arguable that an order embracing the conventional understanding of the principle of the persistent objector is more likely to promote a universal law that is truly responsive to divergence. Under Professor D'Amato's approach, persistent objection is unavailing precisely where it may be most useful today, in preventing the automatic universality of what is said to be general custom. His approach, it seems to me, reduces the principle to a near cousin of the doctrine of historic rights and thus fails to recognize the unique function that it can play. B. The Preservation of Pre-existing Rights One understanding of the principle of the persistent objector would limit its application to cases in which the objection served to preserve rights already enjoyed by the objector, where subsequent developments in customary international law threatened their diminution. On this understanding, persistent objection would not exempt a state from a 6 0 rule concerning a subject previously ungoverned by international law. This approach does have two significant virtues. First, international law, at least as much as most other systems of law, recognizes the special equities of vested or acquired rights and interests. Indeed, the very notion of a customary law system reflects a deep respect for settled patterns of behavior. In a case involving pre-existing rights, the principle of the persistent objector could be invoked to protect activities, investments, and decisions undertaken in reliance upon the prior state of the law. No such claim could, however, be advanced in favor of interests not yet protected by a settled rule of customary international law. The distinction is premised upon repudiation of the notion that there exists a residual rule of freedom in international law, a rule allowing states to engage in any activity whatsoever in the absence of a prescription emerging from positive law processes. 6' If there were such a residual rule, of course, all activities not proscribled by a rule of positive law would be protected. The second advantage relates directly to the problem of the residual rule. In the form in which it is generally stated, the principle of the persistent objector never suffices by itself to decide controversies between states. It answers only the question whether the "respondent"
60. The British pleading proposed such a distinction in the Fisheriescase. Reply of the United Kingdom, (U.K. v. Nor.) 1951 IC.J. Pleadings (2 Fisheries) 428-29 (Reply dated Nov. 28, 1950). See also Fitzmaurice, The Law and Procedure of the internationalCourt ofJustice. 1951-54:
General Principles and Sources of Law. 30 BRIT. Y.B. INT'L L. 1, 25 (1957); Waldock, The AngloNorwegian FisheriesCase, 28 BRIT. Y.B. INT'L L. 114, 160-61 (1951). 61. See generally W. JENKS, THE PROSPECTS OF INTERNATIONAL ADJUDICATION 583-86

(1964) (discussing problem of the residual rule).

HarvardInternationalLaw Journal / Vol. 26 is bound by the substantive norm invoked by the "applicant"; it provides no answer to the question of what rule does apply in their mutual relations. The pre-existing rights approach obviously would provide such an answer. And in preserving only pre-existing rights established under positive law, this approach presumably would not be as dangerous as a residual rule of unrestricted freedom. There are, however, some difficulties with this approach. It requires a threshold inquiry into the prior state of customary law, in order to determine whether the principle of the persistent objector is being invoked to protect established rights. To that extent it reintroduces a question that the principle of the persistent objector is in part designed' to avoid. In addition, if the principle of the persistent objector serves in part to prevent the tyranny of the majority in the multilateral forum, there is little value in an approach that excludes new subjects on the international agenda from the scope of the principle. C. Persistent and Consistent Objection The International Court of Justice did not explain in either the Asylum or Fisheries cases just what a state needs to do in order to qualify as a persistent objector. It is, for example, far from clear just how persistent the objecting state must be and by what means that objection must be made known. 62 One of the more fascinating aspects of the general problem is whether something more than a regular assertion of the objection is required. Should a requirement of substantive consistency be read into the principle? For example, in order to justify its opposition to coastal state jurisdiction over tuna, the United States refers to the requirements of a rational system of management. At the same time, the United States itself asserts jurisdiction over other highly migratory species within two hundred miles of U.S. shores. 63 It is hard to see why the need for international management of species of tuna is greater than it is for other highly migratory

62. E.g., one school of thought holds that the Soviet Union has not been persistent enough
in its opposition to the rule of restrictive immunity. See. e.g., Empire sfiran. 45 I.L.R. 57, 75 (Fed. Rep. of Ger.. Fed. Const. Cr. 1963) (provisions in bilateral treaties waiving immunity held to consirute acceptance of the restrictive view). The I.C.J. has not made clear what a dissenting state must do to maintain an objection. The Asylum case (Colom. v. Peru), 1950 I.C.J. 266, 277-78 (Judgment of June 20) implies that a refusal to join a multilateral convention because of an objection to one or more of its provisions suffices to qualify a state as a persistent objector. But the North Sea Continental Shelf case (Fed. Rep. of Get. v. Den./Neth.). 1969 I.C.J. 3 (Judgment of Feb. 20) implies that such an act must be accompanied by other manifestations of dissent. (There the Court considered whether art. 6 of 1958 Continental Shelf Convention bound the Federal Republic of Germany as a matter of customary law, despite the fact that its refusal to ratify the Convention was based on its opposition to art. 6.) 63. 16 U.S.C. 1802(14), 1811-13.

1985 / PersistentObjector species; the United States position is in this sense substantively inconsistent. Should such an objection be honored? There are advantages to a requirement of substantive consistency. Such a requirement would push potential objectors to formulate their objections in principled terms, and this might result in a fuller consideration of the general international interest. 64 Wholly self-interested objections might be discouraged. But to seek these advantages might undermine the value of the persistent objector principle itself. The principle would no longer provide a "clean" resolution of international disputes. It would raise another question, the substantive consistency of the dissenter's positions, which is likely to prove controversial. Even more fundamentally, the principle of the persistent objector may best be able to serve its function as a safety valve for the "losers" in the global process if objections can be shaped in politically sensitive, if substantively inconsistent, ways. D. Targets and Objectors At least two of the cases in which the principle of the persistent objector has not been applied, sovereign immunity and apartheid, share an important characteristic. In each case, the state that we have identified as the objector was the specific target of the emerging norm. To put the point bluntly, the norm in each case was motivated by the practices of these states; their exemption from its application would largely deprive the rule of its intended effect. Should objections by a target-be treated differently from objections by states whose conduct was not so closely related to the norm's emergence? E. The Variety of Rules and Concepts in InternationalLaw International law is made up of a diverse array of propositions. Some are primary rules constituting a right-duty relationship between subjects of the legal order. These rules provide the context for the most straightforward applications of the principle of the persistent objector. In such a scenario, a rule ripens, imposing a novel obligation on states generally-for example, a duty to devote some fixed portion of GNP to foreign aid. Where the rule is opposed, it is rendered inapplicable to the dissenting state. The rules involved in the Asylum and Fisheries cases were essentially of this type. In the Asylum Case, Peru was held to be exempt from an alleged rule that would have obligated it to
64. Professor Schacter may perhaps be hinting at the desirability of such a requirement when he suggests that objection might only prove availing if a "dissident state had particular reasons (for example, geographical features) for such dissent," but not if it maintained its objection "without such justification." Schacter, supra note 23, at 779.

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accept Colombia's characterization of an offense as "political. "65 In the Fisheries Case, Norway was held to be exempt from an alleged rule that would have forbidden it to draw straight baselines that exceeded 66 ten miles in length. The application of the principle of the persistent objector in other contexts is much less straightforward. Imagine that the emerging norm does not impose a new obligation, but ends a prior obligation. Can the persistent objector compel all other states to continue performing the obligation in favor of it alone? To take a hypothetical case, suppose that at some point it was definitively settled that international law required the payment of something less than the full value of nation-" alized property. Suppose one state could show both that full value had once been required and that it had always opposed any other standard. Could that state demand that its nationals receive full compensation? We might not view this affirmative demand in the same way as, for example, a claim to be allowed to navigate certain straits without hindrance. Is it possible or desirable to articulate a distinction between affirmative obligations, such as the obligation to compensate, and essentially passive duties of recognition, toleration, or noninterference? Still more difficult is the application of the principle of the persistent objector to new elements of what I might loosely term the conceptual apparatus of international law. 67 Should a state be free to reject the entire concept ofjus cogens or of crimes of states, for example? 68 Should a state through persistent objection be able to prevent the application to it of a change in the doctrine of sources itself? 69 Perhaps a distinction should be drawn between concepts that become a part of international law through positive law processes and those that are inherent in the idea of a legal order, such as pacta stint servanda. It is at least arguable that the conceptual apparatus of a legal order is what gives it identity and definition both as a legal order and as a legal order distinct from other legal orders. If this is true, then it is at least awkward to honor objections to elements of that apparatus. On the other hand, it is quite possible to imagine a world in which the

65. Asylum case (Colom. v. Peru), 1950 I.C.J. 266, 277-78 (Judgment ofJune 20). 66. Fisheries case (U.K. v. Nor.), 1951 IC.J. 116, 131-32 (Judgment of Dec. 18). 67. Thirlway begins to develop such a distinction. H. THIRLWAY, supra note 29, at 28-30. The British pleading in the Fisheries case argued that objection to "fundamental principles" was not permitted. Reply of the United Kingdom (U.K. v. Nor.), 1951 I.C.J. Pleadings (2 Fisheries) 429 (Reply dated Nov. 28, 1950). 68. See Weil, supra note 27, at 423-30. 69. Thirlway discusses the question whether a change in the doctrine of sources can become law only through one of the processes set out in art. 38(1)(a) and (b) of the Statute of the l.C.J. H. THIRLWAY, supra note 29, at 39-45.

1985 / Persistent Objector operative rules employing these concepts would be inapplicable to the 7 0 relations of certain states. F. Persistent Objection to Norms Having the CharacterofJus Cogens The most widely accepted consequence of characterizing a norm as jus cogens is that treaties incompatible with it are void. However, the concept may have wider application. In particular, it might be held that the same considerations require overruling a unilateral rejection of such a norm. 7 1 However, this may give too much effect to a still inchoate concept. The jus cogens concept is a genie that having once been released from the bottle is not likely to remain obedient. One may question with Professor Weil the wisdom of providing another incentive for the rapid transmutation of this non-norm to a supernorm. IV. CONCLUSION Perhaps the most characteristic law-oriented activity of states is legal argument. The study of international legal argument is, therefore, important not only for what it tells us about the content of the rules, but for what it tells us about the way rules are used in the relations of states. As this essay has demonstrated, there may be a considerable disjunction between the arguments formal doctrine makes available to states and those on which they in fact choose to rely. The doctrinal "stuff" found in the books may lie dormant until social conditions make particular arguments attractive. The configuration of forces in the international environment may pressure states to seek new answers to old questions, and the need for a distinctive response may prompt the rediscovery of an argument already available. I have argued in this essay that the conditions may be ripe for the rediscovery of the principle of the persistent objector and indeed for giving it a vitality that it has hitherto lacked. This essay may then be seen as an exercise in the sociology of international law. But it would be a mistake to overlook the relation of such an effort to the traditional scholarship of normative elaboration. We can never be concerned only with asking what arguments states

70. One can, for example, imagine a world where the concept ofjus cogens governed the treaty relations of most but not all states; the persistent objector would be allowed to opt out. In consequence, its treaty partners could not refuse to carry out an agreement on the ground that the agreement violated jus cogens. 71. This is the position taken, for example, by Professor Brownlie, I. BROWNLE, supra note 1, at 11 n.5, and by Professor Bos, M. Bos, supra note 7, at 246.

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are making now or are likely to make in the future. We must also ask what arguments states may soundly make. Our answers to that question, however, can only be enriched by careful attention to the circumstances that lead states to regard certain arguments as attractive or unattractive. Indeed, without such attention our effort to find answers will be an impoverished and genuinely academic exercise.