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Part II The Criteria for the Operation of the Persistent Objector Rule, 5 The Consistency Criterion

From: The Persistent Objector Rule in International Law

James A. Green

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 24 February 2024

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

The need for consistency is identified regularly in the literature on the persistent objector rule, but this is often implicit or amalgamated/confused with the persistence criterion. This chapter aims to confirm the need for consistent objection, which is a requirement related to, but distinct from, persistence. It then assesses the rationale for the consistency criterion, before turning to the important question of what ‘consistent objection’ in fact entails. The chapter then considers whether a state's objections must be ‘absolutely consistent’ (in the sense of any contrary practice being terminal for its exemption from the relevant norm), or whether a generally consistent pattern of objection will suffice. The chapter also asks whether the silence of a state — in circumstances where it might reasonably be expected to object — can be interpreted as inconsistent practice. Finally, the chapter considers the notion of ‘substantive consistency’, meaning the consistency of a state's position as between related norms: does a persistent objector need to have a principled stance of objection across comparable norms?

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