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Part II The Criteria for the Operation of the Persistent Objector Rule, 6 The Timeliness 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: 28 February 2024

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

This chapter analyses the last criterion for the operation of the persistent objector rule, namely, timeliness. A common feature of all mainstream understandings of the rule is that a state's objections must occur during the period where the embryonic customary law being objected to is still ‘emerging’. The chapter starts by identifying the timeless criterion in the literature and argues that state practice supports it in a broad sense. The chapter then argues that the commonly advanced justifications for the timeless criterion are unsatisfactory. The chapter then examines more pragmatic rationales. It also engages with arguments that have been made by a few commentators in support of an ex post facto right of withdrawal from customary international law. The chapter finally turns to the problems associated with actually applying the timeless criterion.

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