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Chicago Journal of International Law

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581

Abstract

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.

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