persistent objector

{{Short description|Concept in international law}}

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.{{cite book|first=James A.|last=Green|title=The Persistent Objector Rule in International Law|publisher=Oxford University Press|date=2016|isbn=9780198704218}}

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.{{cite journal|url=https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1900&context=blr|first=Adam|last=Steinfeld|title=Nuclear Objections: The Persistent Objector and the Legality of the Use of Nuclear Weapons|journal=Brooklyn Law Review|volume=62|pages=1635, 1647 |year=1996|access-date=19 April 2018}}

Judicial support for the persistent objector rule is weak.{{cite journal|first=Patrick|last=Dumberry|title=Incoherent and Ineffective: The Concept of Persistent Objector Revisited|journal=International and Comparative Law Quarterly|volume=59|page=779|year=2010|issue=3|doi=10.1017/S0020589310000308|ssrn=1653351|s2cid=144857272}} 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).{{harvnb|Steinfeld|1996|p=1653}} 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.{{cite journal|url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1295&context=cjil|first=Holning|last=Lau|title=Rethinking the Persistent Objector Doctrine in International Human Rights Law|journal=Chicago Journal of International Law|volume=6|pages=495, 496|year=2005|access-date=19 April 2018}}

Stronger support for the rule can be found in the writings of certain jurists.{{harvnb|Steinfeld|1996|p=1653}} 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.{{harvnb|Dumberry|2010|p=779}}