Between Power and principle widely understood that states cannot be bound by a treaty unless they agree thereto Commitment does not operate in the same way for customary law(with limited exceptions, states are regarded to be obligated by international customary law regardless of whether they wish to be). As a consequence, although many of the same factors will likely be important Customary international law does not require the same kind of affirmative act on the part of a state to subject it to the law, but it is generally accepted that states can-with some important exceptions-avoid application of customary international law simply b persistently objecting to it. The persistent objector rule "is an accepted application of the aditional principle that international law essentially depends on the consent of states. Restatement Third) of the Foreign Relations Law of the United States 5 102, Reporters Note 2(1987). On the persistent objector rule, see Ian Brownlie, Principles of Public International Law 10(Oxford 5th ed 1998)(concluding that the persistent objector doctrine is well recognized by international tribunals and in the practice of states); Jonathan Charney Universal International Law, 87 Am J Intl L 529, 538-42(1993)(noting the existence of the ersistent objector rule, but concluding that the rule is open to doubt due to its infrequent use and the existence of several exceptions to it). For an application of the rule, see Fisheri Case United Kingdom v Norway), 1951 IC] 116, 139(holding that the international rule concerning fisheries zones is inapplicable because Norway has always opposed any attempt states to be "bound"by, or have an obligation under, international laip Possible for to apply it to the Norwegian coast). Indeed, some question whether it is even ven sovereignty. Perhaps the most famous statement of the notion that in a world of independent states, sovereignty resides in the states was made by the Permanent Court of International Justice in 1927 in the S.s. Lotus case: " International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law. "The S.S. Lotus(France v Turkey), 1927 PCIj(ser A) No 10, 18. Several works have discussed the dilemma inherent in the notion of obligating a sovereign state, including David Kennedy, International Law and the Nineteenth Century: A History of an Illusion, 17 Quinnipiac L Rev 99, 112-31(1997); Rosalyn Higgins, Problems and Process International Law and How We Use It 13-16(Clarendon 1994); Thomas M. Franck, The Power of legitimacy Among Nations 187-94, 202-07(Oxford 1990); Richard A Falk, The Status of Law in International Society 19-23(Princeton 1970)(concluding that sovereign consent has stalemated attempts to obligate nations to comply with international law derived through consensus, natural law, or consent);JE S. Fawcett, The Law of Nations 6-11 (Oxford 1968)(concluding that international law has a moral basis and an arbitrary structure that is accepted because it makes the conduct of states more constant, more predictable, and so more effectual); Oscar Schachter, Towards a Theory of International Obligation, 8 Vaj Intl L 300, 307(1968)(arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); W. Friedmann, Legal Theory 574-80( Columbia 5th ed 1967); James Brierly, The Law of Nations: An Introduction to the International Law of Peace 49-56(Oxford 6th ed 1963); C. Wilfred Jenks, Law, Freedom and Welfare 83-100(Stevens Sons 1963); Hans Kelsen, General Theory of Law and State 341-63(Russell Russell 1961)(Anders Wedberg, transI); JamesBetween Power and Principle 6 widely understood that states cannot be bound by a treaty unless they agree thereto.11 Commitment does not operate in the same way for customary law (with limited exceptions, states are regarded to be obligated by international customary law regardless of whether they wish to be).12 As a consequence, although many of the same factors will likely be important 11 See Part II.A. 12 Customary international law does not require the same kind of affirmative act on the part of a state to subject it to the law, but it is generally accepted that states can—with some important exceptions—avoid application of customary international law simply by persistently objecting to it. The persistent objector rule “is an accepted application of the traditional principle that international law essentially depends on the consent of states.” Restatement (Third) of the Foreign Relations Law of the United States § 102, Reporters’ Note 2 (1987). On the persistent objector rule, see Ian Brownlie, Principles of Public International Law 10 (Oxford 5th ed 1998) (concluding that the persistent objector doctrine is well recognized by international tribunals and in the practice of states); Jonathan Charney, Universal International Law, 87 Am J Intl L 529, 538–42 (1993) (noting the existence of the persistent objector rule, but concluding that the rule is open to doubt due to its infrequent use and the existence of several exceptions to it). For an application of the rule, see Fisheries Case (United Kingdom v Norway), 1951 ICJ 116, 139 (holding that the international rule concerning fisheries zones is inapplicable because Norway has always opposed any attempt to apply it to the Norwegian coast). Indeed, some question whether it is even possible for states to be “bound” by, or have an obligation under, international law given their sovereignty. Perhaps the most famous statement of the notion that in a world of independent states, sovereignty resides in the states was made by the Permanent Court of International Justice in 1927 in the S.S. Lotus case: “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.” The S.S. Lotus (France v Turkey), 1927 PCIJ (ser A) No 10, 18. Several works have discussed the dilemma inherent in the notion of obligating a sovereign state, including David Kennedy, International Law and the Nineteenth Century: A History of an Illusion, 17 Quinnipiac L Rev 99, 112–31 (1997); Rosalyn Higgins, Problems and Process: International Law and How We Use It 13–16 (Clarendon 1994); Thomas M. Franck, The Power of Legitimacy Among Nations 187–94, 202–07 (Oxford 1990); Richard A. Falk, The Status of Law in International Society 19–23 (Princeton 1970) (concluding that sovereign consent has stalemated attempts to obligate nations to comply with international law derived through consensus, natural law, or consent); J.E.S. Fawcett, The Law of Nations 6–11 (Oxford 1968) (concluding that international law has a moral basis and an arbitrary structure that is accepted because it makes the conduct of states more constant, more predictable, and so more effectual); Oscar Schachter, Towards a Theory of International Obligation, 8 Va J Intl L 300, 307 (1968) (arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); W. Friedmann, Legal Theory 574–80 (Columbia 5th ed 1967); James Brierly, The Law of Nations: An Introduction to the International Law of Peace 49–56 (Oxford 6th ed 1963); C. Wilfred Jenks, Law, Freedom and Welfare 83–100 (Stevens & Sons 1963); Hans Kelsen, General Theory of Law and State 341–63 (Russell & Russell 1961) (Anders Wedberg, transl); James