PERSISTENT OBJECTOR RULE AND SUBSEQUENT OBJECTOR RULE (DIFFERENCE)
Under the concept of customary international law, a state becomes a party to several treaties which is initiated through the consent. This implies that the state accepts all the matters related to the treaty and then shows its willingness to enter into such treaties. Customary international is the binding force, this means that a new state is bound by the old customary laws even though the state never consented to such customs at the time when it came into existence or after. During this the state that shows neither of the signs i.e. no agreement or disagreement, those states are bound by such customary laws and are commonly known as tacit acceptance. The party who opposes the emerging customary law has all the rights to not accept the said law firstly and if the state is already a treaty party then it can withdraw from the treaty by the procedure prescribed under the international law.
In customary international law, this practice involves two theories or rules. The first one provides that if a state refuses to be bound by the customary international law from the beginning then they are persistent objectors. The second one provides that if the state refuses to be bound by the customary international law after it comes into existence it is subsequent objector. Thus a simple definition for a layman understanding.
PERSISTENT OBJECTOR RULE
Persistent Objector Rule is based on two points :
- Where a state objects to a rule of customary international law when the rule is in the process of formation, the rule is not opposable by the state for so long as long as it maintains its objections.
- The objections must be clearly explained, may be known to the other state, and maintained persistently.
The two points where the finding of the Drafting Committee of The ILC. Based on this a broader perspective was provided to the persistent objector rule in 2015. Similarly, the ILA adopted the definition of persistent objector rule in 2000, the ILA definition stated that whilst the practice is developing into a rule of general law i.e. customary international law, a state persistently and openly dissenting from the rule, it will not be bound by it.
The rule is a core principle for international customary law and is covered by certain elements. These elements are evident from the definition, firstly there should be objection being silent is not enough. Secondly, the objection must be persistent. Thirdly the objection must be consistent and fourthly the objection must be timely.
The rule can be seen in several cases and some of the popular cases are:
- The United Kingdom v. Norway, case the court held that even if the customary law exists it will not apply to Norway as the state has opposed any attempt to apply to the Norwegian coast as regards the Ten-mile rule.
- In Columbia v Peru, the Peruvian government was demanding the Peruvian government had unsuccessfully sought the extradition of the leader of a military rebellion in Peru from Columbia. The Columbian embassy refused to accept the request of the Peruvian government and as a result of this granted the Columbian government granted political asylum to the Peruvian rebellion. Peru brought this case to the ICJ and argued that the step taken by the Columbia was in clear violation of the 1911 Extraction Treaty and the rule of customary law. The court ruled in the favour of Peru, the court stated that first of all the Columbia has failed to establish the existence of the custom which permits the state to grant asylum, and secondly Peru has never ratified the treaty and has specifically repudiated the asylum provision. The customary rule governing asylum was never found as against Peru as Peru has never consented to the said treaty and has opposed it persistently during its emerging state.
The rule of persistent objector can be better understood by an example, a customary rule is formed between the country regarding the area of hunting and farming i.e. a specific range of area within which the state citizens has the right to do hunting and farming. If country B has been continuously opposing the said customary law and is considering themselves as persistent objectors of this rule then they are not bound by this rule. And any violation by the country B citizen concerning the above law would lead to imprisonment by Country C as they have never consented to the above law.
SUBSEQUENT OBJECTOR RULE
Subsequent objector rule is the one who objects after the creation of the customary law rule. The state whose objects are bound by the customary law. Then if such a state act contrary to the law it violates the law. And such an act of the state can be made liable for the violation of international law.
If some state agrees to the disagreement then such disagreement would result in the creation of a new customary law rule, either as a local custom or, if the sufficient number of affected states participate, a general custom.
To develop a new law rule subsequent objector needs to break the existing norm. therefore to form a new customary law there must be either:
- Violation of law and the other state must also support it and accept it without protest.
- Without violating the existing law the state must get a sufficient number of states to accept that a new customary law had developed before choosing to adopt its state practice accordingly or