Part III The Limitations and Role of the Persistent Objector Rule, 9 The Role and Value of the Persistent Objector Rule

Subject(s):

History of international law — Choice of law — Conflict of laws — Customary international law — General principles of international law — Sources of international law

This chapter examines the ‘role’ or ‘value’ of the persistent objector rule. Firstly, the chapter sets out and critiques the voluntarist conception of the persistent objector rule in more detail than has been done in previous chapters. It then considers competing theoretical approaches to international legal obligation, broadly grouped together as being ‘communitarian’ in nature. Such communitarian approaches have tended to dismiss the persistent objector rule along with their dismissal of voluntarism. It is argued that holistic, absolutist theoretical accounts of customary international law fail to take into account its chaotic nature in reality. The chapter therefore argues this it is problematic to appraise the value of the persistent objector rule from the perspective of either voluntarism or communitarianism. Drawing upon some insights from rational choice theory, it is argued that the rule is inherently one of balance, and that its true value lies in its practical benefits both for individual objectors and the wider international community. The chapter then assesses the rule's various functional benefits as a ‘safety valve’. The chapter also examines the contributions that persistent objection can make to the development of customary international law. At the end of the chapter, the text briefly notes that many of the benefits of the persistent objector rule may, at least in part, stem from the perception of state autonomy that it creates.