Persistent objector

In international law, a persistent objector is a sovereign state which has consistently and clearly objected to a norm of customary international law since the norm's emergence, and considers itself not bound to observe the norm. The concept is an example of the positivist doctrine that a state can only be bound by norms to which it has consented.[1]

Objection to the emergence of a norm may come in the form of statements declaring a state's position on an existing right, or action in which a state exercises an existing right in the face of an emerging norm which would threaten that right. Statements made at the time of a rule's establishment, such as in a reservation to a treaty, offer the clearest expression of a state's objection, but objections might also be expressed during treaty negotiations and even in statements by domestic lawmakers accompanying purely municipal legislation.[2]

Judicial support for the persistent objector rule is weak.[3] The International Court of Justice has discussed the persistent objector rule in dicta in two cases: the Asylum case (Colombia v Peru, [1950] ICJ 6) and the Fisheries case (United Kingdom v Norway, [1951] ICJ 3).[4] The Inter-American Commission on Human Rights rejected an attempted assertion of the persistent objector defence in Domingues v United States (2002) on the ground that the prohibition against the juvenile death penalty to which the United States objected was not merely customary international law but jus cogens, a norm from which no derogation was permitted. However, this could also be read as confirming that a persistent objector defence may successfully overcome a norm of international human rights law which has not attained the status of jus cogens.[5]

Stronger support for the rule can be found in the writings of certain jurists.[6] The American Law Institute was historically a major contributor to developing a "comprehensive theory" of persistent objection through its 1987 Third Restatement of the Foreign Relations Law of the United States, part of its Restatements of the Law series.[7]

References

  1. ^ Green, James A. (2016). The Persistent Objector Rule in International Law. Oxford University Press. ISBN 9780198704218.
  2. ^ Steinfeld, Adam (1996). "Nuclear Objections: The Persistent Objector and the Legality of the Use of Nuclear Weapons". Brooklyn Law Review. 62: 1635, 1647. Retrieved 19 April 2018.
  3. ^ Dumberry, Patrick (2010). "Incoherent and Ineffective: The Concept of Persistent Objector Revisited". International and Comparative Law Quarterly. 59 (3): 779. doi:10.1017/S0020589310000308. S2CID 144857272. SSRN 1653351.
  4. ^ Steinfeld 1996, p. 1653
  5. ^ Lau, Holning (2005). "Rethinking the Persistent Objector Doctrine in International Human Rights Law". Chicago Journal of International Law. 6: 495, 496. Retrieved 19 April 2018.
  6. ^ Steinfeld 1996, p. 1653
  7. ^ Dumberry 2010, p. 779

Further reading