5cjxburmr

1.8.4 Objection During Development. Even if a rule otherwise reflects customaryinternational law, the rule is not binding upon a State that has persistently objected to that ruleduring its development. 149 This principle is an accepted application of the traditional principlethat international law essentially depends on the consent of States. 1501.9 SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAWAs a subsidiary means, it may be helpful to consult judicial decisions and the teachings ofthe most highly qualified publicists of various nations in determining the applicable rules ofinternational law. These means are subsidiary in the sense that they do not, in themselves,constitute sources of treaty or customary international law.Discretion must be exercised in weighing sources, however, because sources varysignificantly in their probative value. For example, the United States has said that it is not in aposition to accept without further analysis the conclusions in a study on customary internationalhumanitarian law published by the ICRC. 1511.9.1 Judicial Decisions. Judicial decisions have sometimes been used as a subsidiarymeans of determining the rules of international law. 152Judicial decisions are generally consulted as only persuasive authority because ajudgment rendered by an international court generally binds only the parties to the case in respectprovisions of military manuals designed to implement treaty rules provides only weak evidence that those treatyrules apply as a matter of customary international law in non-treaty contexts.”).149 See Fisheries Case, (United Kingdom v. Norway), Judgment, 1951 I.C.J. 116, 131 (“In these circumstances theCourt deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in theirnational law and in their treaties and conventions, and although certain arbitral decisions have applied it as betweenthese States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired theauthority of a general rule of international law. In any event the ten-mile rule would appear to be inapplicable asagainst Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”); AsylumCase (Colombia v. Peru), 1950 I.C.J. 266, 277-78 (“The Court cannot therefore find that the Colombian Governmenthas proved the existence of such a custom. But even if it could be supposed that such a custom existed betweencertain Latin-American States only, it could not be invoked against Peru which, far from having by its attitudeadhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomaticasylum.”). See also U.S. RESPONSE TO ICRC CIHL STUDY 529 endnote 38 (“We note that the Study raises doubtsabout the continued validity of the ‘persistent objector’ doctrine. Study, Vol. I, p. xxxix. The U.S. Governmentbelieves that the doctrine remains valid.”).150 I RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 32 (§102, Reporters’ Note 2)(1987) (“That a rule of customary law is not binding on any state indicating its dissent during the development of therule (Comment d) is an accepted application of the traditional principle that international law essentially depends onthe consent of states.”).151 Refer to § 19.25 (2005 ICRC Study on Customary International Humanitarian Law).152 ICJ STATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law suchdisputes as are submitted to it, shall apply: … d. subject to the provisions of Article 59, judicial decisions … assubsidiary means for the determination of rules of law.”).34