26 Harv. Int'l. L. J. 457 (1985)
The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law

handle is hein.journals/hilj26 and id is 467 raw text is: VOLuME 26, NUMBER 2, SPRING 1985

The Approach of the Different Drummer:
The Principle of the Persistent Objector in
International Law
Ted L. Stein*
Mainstream accounts of the principles governing the formation and
application of rules of customary international law typically include
reference to the principle of the persistent objector. According to
that principle, a state that has persistently objected to a rule of
customary international law during the course of the rule's emergence
is not bound by the rule. The principle thus permits individual states
to opt out of new and otherwise universal rules of international law.
Simple in statement and dispositive in effect, the principle of the
persistent objector seems to present few of the notorious problems of
judgment and degree that pervade inquiries into the existence vel non
of any given rule of customary international law.
In Part I of this essay, I propose to show that despite these qualities,
the principle of the persistent objector has played a very limited role
in the legal relations of states. It is considerably easier to identify
instances in which the principle seems to have been applicable, but
was not invoked, than it is to provide examples of the principle in
practice. As I will try to show in Part II, however, the contemporary
process of law-creation in the international system differs importantly
from the classical customary international law process. This difference
entails changes in the characteristic modes of analysis used to identify
generally applicable rules of law. The transformations both of process
and analysis, in turn, make it reasonable to expect that the principle
of the persistent objector will play an increasingly important part in
international controversies. Frequent invocation of the principle should
bring to the fore a series of hitherto neglected questions, questions
that must be faced as matters of constitutional choice in the ordering
of international relations. In Part III of the essay, therefore, I will
identify some of these questions and indicate some of the considerations
that should be taken into account in developing answers to them over
the course of the next few decades.
* Assistant Professor, School of Law, University of Washington (Seattle); J.D., Harvard Law
School, 1977; A.B., Princeton, 1974.

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