The Validity of The Persistent Offender Rule in International Law by Omar Abasheikh - Essay Example

?Critical Review: The validity of the persistent offender rule in international law by Omar Abasheikh Introduction s are created to achieve justice for the common good of the society. Under the social contract theory of both Thomas Hobbes and John Locke, individuals come together to form a government so that there would be a centralized authority with whom all government authority is vested by the gathering of individuals1. Out of this social contract, the government is born which ensures that everyone is given what is due him or her and then there was peace in the society. If only it were that easy to organize the different governments with different interests into one community of nations whose aim is to achieve harmony and peace in this world. However, each state enters the hall of international law with different sets of prejudices and vested interests. And when each state is equipped with the sovereign power to either accept or reject specific rules of international law, the job of formulating a universal set of rules that would govern the conduct of all states in its actions vis-a-vis other states as well as vis-a-vis its citizens becomes doubly difficult to accomplish. This paper shall examine the article written by Omar Abasheikh about what he calls the “persistent offender rule” 2. Apparently, he is referring to the rule in customary international law, more appropriately referred to as the “persistent objector rule” which is recognized by the International Court of Justice as a valid exercise of a state’s sovereign power. Offender vs. Objector Foremost, let it be stated at the outset that the title of the paper is misleading. According to the title, the paper is about the “The validity of the persistent offender rule in international law,”3 however, nowhere in the body of the scholarly work can you find the phrase “persistent offender rule” neither can you find the word “offender” anywhere in the article. Thus, the readers are left to assume that the word “offender” is synonymous with the word “objector” in the same way that the phrase “persistent offender rule” carries the same meaning and purpose as the phrase “persistent objector rule”. Unfortunately, these two words are worlds apart both in their intrinsic meanings and common usage. It would be tantamount to an international crime to claim that the words offender and objector may be used interchangeably. Even in common parlance, “object” and “offend” does not share the same meaning, although sometimes, the person to whom an objection was made may take an offense out of it. An objecting state is not necessarily offending the customary international laws in place and in full force and effect among the community of states. The author creates a crime out of a perfectly normal and natural thing to do for a sovereign state. How could the author have missed this small yet very important point? Apparently, there was a mistake somewhere between the writing of the paper and the formulation of the title. A paper’s title is supposed to give the readers some idea about the body of the paper. But in this case, the title has become a cause for confusion because it is a totally different concept than the rest of the paper. Inconsistent Thesis Lest this review be regarded as a headhunt for flaws, the author is lauded for the extensive research he has done about the subject. He dug through cases and books as is evident in the amount of information and data that the paper contains. But enormous amounts of data are meaningless unless they are served and digested into coherent and logical conclusions. At one point, the author merely presented several opposing or corroborating statements without bothering to mention which one prevails pursuant to exiting international laws or jurisprudence from the International Court of Justice. But then again, the paper has no thesis statement, and if there was any, it was ambiguous and difficult to ascertain. Based on the title, the author is expected to make a stand as to the “validity of the persistent offender rule in international law” but he did not. He then asked the question, “Does international law recognize a persistent objector rule?”4 After which, he proffered that, “there is very little authority to propose that a state can ‘object’ to a rule of customary international law” 5. So, is it a no? Not really. The concept of persistent objector rule is available only in customary international law. How then, did he arrive at the idea that “there is very little authority to propose that a state can ‘object’ to a rule of customary international law” when later into the paper, he painstakingly discussed a number of cases to prove that international law and the International Court of Justice do in fact recognize the persistent objector rule? Therefore, which is which? Is it recognized in international law or not? Consent Binds the State to International Law In a nutshell, the author correctly argues that in the community of nations, there is neither a central enforcement authority nor a centralized legislative body which enacts laws for the rest of the states to comply with, but, there is a recognized International Court of Justice which adjudicates on complaints for violations of the international law. In lieu of centrally promulgated laws, states are governed by treaties to which they are a signatory and a part of. Treaties are the primary sources of international law while customary international law, domestic laws and decisions of the International Court of Justice are the secondary sources. Moreover, insofar enforceability is concerned, on the one hand, a state may only be bound by treaties to which it is a signatory, that is, to which it has consented to be a part of. And no sovereign state may be forced against its will to sign and ratify a treaty. On the other hand, a state may be obliged to comply with customary international law which has passed the tests of “generality, uniformity, consistency and duration of the practice”.6 The Restatement of Foreign Relations specifically states that “the states’ consent is a requirement of customary international law”.7 If a state disagrees with a specific customary international law, it must expressly object to its validity at the outset and on every occasion when the community of nations attempts to enforce the same over the objecting state. This process of continuous and consistent objection to a specific rule of customary international is referred to as the “persistent objector rule”. Unmistakably, it is clear enough to the author that consent is a necessary requirement for the validity of a treaty or international laws that are based on customs and traditions. He cited the Restatement of Foreign Relations as among the legal basis for the need for a state’s express consent before it can be bound to either a treaty or customary laws. Yet, he missed the mark when it comes to deducing the right answers to his own questions. It was not even clear whether the paper is expected to discuss about all sources of international law or just the customary international law. There is the constant need for the reader to trace back to the earlier pages to comprehend the later statements and place them within their proper contexts. Interestingly, the aforementioned rule on the need for prior consent remains operative even in the case of newly created states which are automatically deemed subject to customary international law that are in existence at the time of the state’s creation. Although binding them to customary rules to which they have had no opportunity to agree or disagree during the formulation process might seem arbitrary and violates the new state’s sovereignty, there is actually an implied consent by the new state to be bound by existing customary international law by the mere fact that it joins the community of nations. If it does not want to be subjected to existing customary international law, then it can always exist in isolation and away from the rules and the rest of the civilized world. Finally, there is the principle of “jus cogens,” a distinct class of international rules that govern the conduct of states not just in dealing with one another but also in the exercise of power over its citizens or citizens of other states. Rules of “jus cogens” are mandatory on all nations regardless of how vehemently one objects to its validity and applicability. Also called peremptory norms, these rules are strictly enforced and rigidly complied with to the point that violation thereof is considered a crime against nations and humanity. Examples of “jus cogens” rules are the declaration of human rights and the laws against slavery, genocide, and racial discrimination. Persistent Objector Rule, Valid Exercise of Sovereignty The author presented several cases where the principle of persistent objector rule is at issue, including the Rights of Passage over Indian Territory Case and the Anglo-Norwegian Fisheries Case. He also discussed about the landmark case for this subject which is the Asylum Case where the court accepted the refusal of Peru to sign the Convention authorizing asylum as a valid act of a persistent objector. As a result, Peru cannot be forced to abide with the common practice of granting diplomatic asylum among Latin-American states. Undeniably, the only requirement for exempting a state from the reach of customary international law is an express and unequivocal objection to the rule. The objection must be manifested and conveyed at the outset, at the time the rule in question is still being formulated. As soon as the state acquires knowledge about a customary international rule being formulated, a state, in the exercise of its inviolable sovereign authority, may immediately manifest its objection thereto and continue to do so over a period of time for it to be considered within the ambit of “persistent” objector rule. Needless to state, this rule also applies to existing customary international law that is being supplemented, amended or otherwise modified. The moment a well-entrenched customary rule is being changed, the doors are open for objections to the new rule. A newly created state may not have had the chance to object to an old rule but once it is floated up for changes and revisions, the new state shall have the right to object to the same as if it was still in the initial formulation stage. Aptly, because customary international law is based on common practice and not on some hard and fast law written in black and white, it is constantly evolving. It is highly adaptive to modern circumstances and recent developments. Therefore, the department of persistent objector rule is a definitely busy place to be. In view of the structure of international law and the international community of states itself where there is no central authority that makes and enforces the law for all members to follow, the persistent objector rule becomes intrinsic to the international legal system. It is a valid exercise of every state’s inherent right to self-preservation by choosing rules that are beneficial and objecting to those that pose a threat to the government and its citizens. It is an unavoidable consequence of the inviolable sovereignty of every state to choose whether or not to allow the country and its people to be bound by treaties and customs that are being formulated by the international community. Conclusion In sum, “consent, whether express or tacit, is required for the formation of customary international law”8 and the persistent objector rule is a necessary and accepted feature of the system that works for the unique social setup of the international community of states. The persistent objector rule is a necessary tool that allows each state to tailor the international law to their particular needs and maximize their benefits. Overall, the author deserves recognition for the amount of time and effort he had put into the paper. No one can deny the fact that he had presented a good volume of pertinent facts and information in the paper. However, the article is not without flaws, starting off with the wrong choice of word in the paper’s title. Then there is the lack of a clear thesis statement and inconsistent theories. The reader would get lost in translation amid the legal terminologies used in the paper. Nevertheless, the paper was very informative and could serve as a jump off point for further and in depth research into the subject. Bibliography Thomas Mouritz, “Comparing the Social Contracts of Hobbes and Locke”. The Western Australian Jurist. Vol. 1, 2010. p.126 Omar Abasheikh, “The validity of the persistent offender rule in international law”. Coventry Law Journal 2004 Read More