Part II The Criteria for the Operation of the Persistent Objector Rule, 4 The Persistence Criterion

Subject(s):

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

This chapter examines the persistent objector rule's ‘persistence’ requirement. The chapter argues that given the usual name for the rule, a requirement of persistent objection is referenced across the literature as being a key criterion for the rule's operation. More importantly, it can also be identified in state practice. The chapter first confirms that a single objection, or a small number of objections, will not be sufficient to gain exemption to an emerging norm of customary international law. It also considers the underlying rationale for the persistence requirement. The voluntarist understanding of international law cannot provide an adequate explanation for the need for persistence. Finally, the chapter engages with the tricky question of how persistent objection must be before a state can gain exempt status. The view is taken that there is no exact answer to this question; the necessary degree of persistence is context-specific, based on a range of factors (including extra-legal ones).