Posted by Howard S. Schiffman on February 16, 2003 at 14:24:19:
In Reply to: Customary International Law - Persistent Objector posted by Wadi on February 16, 2003 at 04:17:41:
The question of whether a new state is bound by customary law that is in place at the time it realizes statehood, is, as you have probably discovered, the subject of some debate among international legal scholars. It is a question that has arisen in recent years in the context of the former Yugoslavia and the former Soviet Union. The majority view is that new states are bound by existing custom at the time of their existence. This is addressed in the Restatement of Foreign Relations Law (Third) in sec. 102, comment d. The Restatement position is that even though international law is ultimately predicated on consent of states, new states are brand new actors and therefore fairly subject to the international norms in place at the time of their creation. This is also addressed briefly in Thomas Buergenthal and Harold G. Maier, "Public International Law in a Nutshell," West (1990).
The question of how soon a new state may be considered a "persistent objector" with regard to a particular custom, and therefore not bound by it, is a slightly different issue. This would logically turn on several factors including: 1) How long has the new state been a state? 2) How long has the new state been a "persistent objector"? 3) How vociferous has the new state been in its objection? 4) What is the character of the custom at issue? In other words, like other questions of customary law and persistent objector status it is a question of fact as much as law.
Despite considerable scholarly interest, it is useful to recall that questions of persistent objector status are in practice quite rare. There is also a school of thought, to which I do not subscribe, that holds the concept of "persistent objector" is of no value in international law. This theory is advocated by Professor Anthony D'Amato of Northwestern University and several other respected scholars. Please let us know what your research shows.
Howard S. Schiffman, Esq.
Co-Founder and Administrator
www.InternationalLawHelp.com
: If a nation has been adhering and recognizing a customary international law since it's formation, then that nation breaks up into 2 or more new sovereigns (e.g., Yugoslavia Federation becomes several new states), and from the outset, one of the new states does not observe the custom at all, are they a persistent objector and not bound? Or are they somehow bound to the custom by succesorship?
: Your help if you have insights is appreciated.