international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

, a persistent objector is a

sovereign state A sovereign state or sovereign country, is a polity, political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defin ...

which has consistently and clearly objected to a norm of

customary international law Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...

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. 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. Judicial support for the persistent objector rule is weak. The

International Court of Justice The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...

has discussed the persistent objector rule in ''

dicta In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal term ...

'' in two cases: the ''

Asylum case ''Colombia v Peru'' 950ICJ 6(also known as the ''Asylum Case'') is a public international law case, decided by the International Court of Justice. The ICJ recognised that the scope of Article 38 of the Statute of the International Court of Just ...

'' (''Columbia v Peru'',

950 Year 950 ( CML) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Arab–Byzantine War: A Hamdanid army (30,000 men) led by Sayf al-Dawla raids int ...

ICJ 6) and the ''

Fisheries case ''United Kingdom v Norway'' [1951ICJ 3 also known as the ''Fisheries Case'', was the culmination of a dispute, originating in 1933, over how large an area of water surrounding Norway was Norwegian waters (that Norway thus had exclusive fishing ri ...

'' (''United Kingdom v Norway'', [1951] ICJ 3). 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 Jus may refer to: Law * Jus (law), the Latin word for law or right * Jus (canon law), a rule within the Roman Catholic Church People * Juš Kozak (1892–1964), Slovenian writer * Juš Milčinski, Slovenian theatre improviser * Justin Jus Obo ...

'', 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 International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, ag ...

which has not attained the status of ''jus cogens''. Stronger support for the rule can be found in the writings of certain

jurists A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...

. The

American Law Institute The American Law Institute (ALI) is a research and advocacy group of judges, lawyers, and legal scholars established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs. ...

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 In American jurisprudence, the ''Restatements of the Law'' are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. There are now four series of ''Restatements'', all published by the ...

'' series.

References

Further reading