Prajwal Gugnani Word Count: 3233 words

Student ID Number: 18010837

JINDAL GLOBAL LAW SCHOOL

A research paper
On the topic
Revisiting the Doctrine of Persistent Objector from the lens of International Human
Rights Law

(Project towards the fulfilment of assessment in the subject Of Global South & International
Law)

Abstract
The purpose of this research paper is to critically analyse the Doctrine of Persistent Object
and its incompatibility with International Human Rights Law. The Persistent Objector
doctrine is often used as a defence by the sovereign states when they have objected to a
particular norm ripening into customary international law. However, the intersection and
compatibility of the Persistent Objector Doctrine with International Human Rights Law are
fairly unexplored and there is a lack of discourse on the subject. This issue is of critical
importance because the doctrine provides the States with the opportunity of violating Human
Rights Law and using the doctrine as a valid defence, which defeats the purpose of the
universality of human rights. Thus, this paper delves to explore the foundation of the doctrine
and its functional purpose - (i) the role of consent (ii) and, foreseeability in international law.
The paper tries to propose a viable solution to overcome the incompatibility with human
rights law, without defeating the purpose of the latter or the doctrine. It is important to
understand the evolving notions concerning both these concepts, without compromising on
the universality of human rights law, and the paper has tried to present a reasonable solution
for the same, if not providing a starting point to this much-needed discourse.

PRAJWAL GUGNANI (18 JGLS) 1

Introduction

Persistent Objector has been a classic doctrine within the field of International Law whose
purpose is to limit the enforcement of International Law, as per which if a Nation-State has
objected to a particular development within customary international law then it does not face
any compulsion to abide by the said development when it comes into force. The primary
exception to this doctrine would be peremptory norms or Jus Cogens1, which are “compelling
in nature” and have an overriding effect over other principles in International Law since their
purpose is to achieve a universal application of certain international obligations which are in
the interests of protecting the interests of people at large and a breach of these obligations
would be considered as a crime as per international law. However, it is pertinent to note that
under the existing jurisprudence in the field of International Human Rights, it is only a handful
of such laws which are considered Jus Cogens2.

Scholars and Practitioners have often turned a blind eye toward the applicability of the doctrine
of Persistent Objector and it is widely accepted by treaties under international law3. A fair
illustration of the use of this doctrine would be in Domingues v. the United States4, where the
US had used the doctrine of Persistent Objector in the defence of its law pertaining to death
sentences for juveniles, which had been alleged to be against a violation of customary
international law5. However, the Inter-American Commission on Human Rights had held that
the United States could not adopt Persistent Objector as a defence in this particular case since
the prevention of a juvenile’s death penalty would be considered as Jus Cogens6, however, the
commission was of the view that a State could use the doctrine of Persistent Objector even for
cases pertaining to the violation of Human Rights as long as the law in question has not become
Jus Cogens7. Furthermore, this was also the initial case in which Persistent Objector was used
as a defence for a violation of human rights, and the recognition of this doctrine as a defence
by the Inter-American Commission on Human Rights has paved the way to allow other States

1
Anthony Aust, “Handbook of International Law”, 1st Edition, Cambridge University Press, 2005, 11 and 245
pp.
2
KASTO Jalil, “Jus Cogens and Humanitarian Law”, in International Law Series, Vol. 2, Kingston, Kall Kwik,
1994, 95 pp.
3
Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law,
excerpted in Anthony D'Amato, ed, International Law Anthology 110-11
4
Michael Domingues v. United States,Case 12.285, Report No. 62/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 913
(2002).
5
Inter-American Commission on Human Rights: Report No 62/02, Merits Case 12.285 (2002), available online
at <http://www.cidh.org/annualrep/2002eng/USA.12285.htm> (visited April 19, 2022).
6
Inter-American Commission on Human Rights: Report No 62/02, Merits Case 12.285, at Para 85.
7
Inter-American Commission on Human Rights: Report No 62/02, Merits Case 12.285, at Para 48.
PRAJWAL GUGNANI (18 JGLS) 2
to use this doctrine as a defence in future cases of human rights violations. Furthermore, the
use of this doctrine by one of the world leaders, such as the United States has only set an
example that the other States are likely to follow in such cases8.

The Foundation of the Doctrine

An international norm must be strong enough in terms of its psychological component such
that the Nation States are of the view and believe that the norm is strong enough to be a
compelling law, and this psychological component and belief are deemed to manifest in Opinio
Juris9. It is pertinent to note that in international law, norms do not spontaneously come into
existence as a law but rather they evolve over a period of time, and during this, some of the
Nation-States may object to such a norm becoming legally binding upon them. As per the
Doctrine of Persistent Object, in such a case where the States have consistently objected to the
norm during its evolution, these states have the option to exempt themselves from the legal
obligation to follow the same, however, they must consistently object to the norm throughout
its emergence10. However, it is pertinent to note that both the terms - “objection” and
“consistent” are fairly vague and this is mainly due to the lack of jurisprudence in terms of
precedents by the courts, and along with this the even the burden of proof on the states to prove
these points is fairly uncertain as well11.

The only exception to this doctrine would be in the case of international norms that are Jus
Cogens12, and it is primarily the International Courts and Scholars who determine whether a
particular norm should be considered Jus Cogens, which is done purely based on descriptive
and qualitative analyses. Furthermore, one important point that needs to be considered is that
there are merely a handful of norms within the ambit of human rights that are considered to be
Jus Cogens, and these primarily include proscriptions for egregious actions such as genocide,
torture, etc.13

8
Stein, 26 Harv Intl LJ at 463-64
9
Black's Law Dictionagy (West 8th ed 2004)
10
Lynn Loschin, The Persistent Objector and Customary Human Rights Law: A Proposed Anaytical
Framework, 2 UC Davis J Intl L & Poly, Page 147, 150-51 (1996).
11
Lynn Loschin, The Persistent Objector and Customary Human Rights Law: A Proposed Anaytical
Framework, 2 UC Davis J Intl L & Poly, Page 1541 (1996).
12
Inter-American Commission on Human Rights: Report No 62/02, Merits Case 12.285, at Page 49
13
Loschin, 2 UC Davis J Intl L & Poly 162-63 (
PRAJWAL GUGNANI (18 JGLS) 3
The Functional Purpose of Persistent Objector Doctrine

To examine the applicability of this doctrine in cases which violate human rights law, it is
pertinent to understand the underlying purpose and functionality of this doctrine. The primary
purpose of the Persistent Objector Doctrine is to Conserve and Safeguard the role of Consent
in International Law14 and to provide the Nation States with a degree of foreseeability in
International Law15. As per the traditional foundations of International Law, the law itself is
derived from a mutual agreement amongst all the sovereign states, therefore the States will
only be legally obliged to follow and be bound by the laws and norms that they have agreed to
be bound by. This must follow especially since there is not any international legislation which
imposes the law upon all the States thus the role of consent is of vital importance, and the
Doctrine of Persistent Objector forms a vital component of the role of consent in international
law.

Furthermore, the doctrine of Persistent Objector also serves the purpose of providing the
sovereign States with foreseeability in International Law16. The primary factor which results in
the emergence of customary international law is opinion Juris along with its usage, however,
the emergence and the maturing of these two criteria can be fairly unclear and ambiguous at
times. And, since there is a lack of any central body which deals with this issue and informs
the States of the same, it becomes tedious and fairly impossible to ascertain when a norm
becomes a part of Customary International Law17. Therefore, in the absence of the Doctrine of
Persistent Objector, it becomes fairly easy for states to be held liable for violating certain
international laws since they might not have been aware of it being legally binding upon them,
and hence this doctrine is of the utmost importance to provide foreseeability in the law and to
prevent unforeseen liabilities.

Interestingly before the Inter-American Commission on Human Rights’ judgement in

Domingues, there were only two other cases - Colombia v. Peru18 and the United Kingdom v.
Norway19, which were adjudicated by the International Court of Justice, however, the court’s
recognition of the doctrine was in dictum, and they had resolved the dispute on completely

14
Jonathan I. Charney, Universal International Law, 87 Am J Ind L 529, 541 (1993)
15
Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law,
excerpted in Anthony D'Amato, ed, International Law Anthology, Page 113 (Anderson 1994)
16
Supra Note 15.
17
Jonathan I. Charney, Universal International Law, 87 Am J Ind L 536-539 (1993)
18
Colombia v Peru (Asylum Case), 1950 ICJ 266 (Nov 20, 1950).
19
United Kingdom v Norway (Fisheries Case), 1949 ICJ 116 (Dec 18, 1951).
PRAJWAL GUGNANI (18 JGLS) 4
different grounds, and most importantly neither of these disputes were pertaining to Human
Rights Law20.

Some of the Foundational Assumptions of Human Rights Law

One of the primary assumptions that the entire field is based upon is that Human Rights are a
universal right and so they must be universally applicable21 as well across different geopolitical
locations, cultures, etc22 and the Magna Carta of Human Rights is the Universal Declaration
of Human Rights (UDHR) 23. And this universal application of Human Rights in the Universal
Declaration of Human Rights through the Vienna Declaration on Human Rights in 199324,
however, this means that the Individual States will not be able to redeem any exceptions against
them. After the transpiration of the Second World War, the Nation States which were a part of
the United Nations aspired to develop a system of human rights which would be universally
applicable to all the states and prevent any states from derogating from the same25. However,
the Universalism of Human Rights is often found to be at odds and is in contravention with the
Doctrine of Persistent Objector, since this doctrine would let individual nation-states from
derogating from the laws of international human rights, and this would essentially defeat the
purpose of the universalism of human rights laws. Thus, there is a potential issue of misuse of
doctrine by the Nation States in this context and would lead to incompatibility with
International Human Rights law.

An Analysis of the Erroneous Application of the Persistent Objector Doctrine

While consent amongst the nation-states has been a very crucial part of International Law and
its applicability, it is pertinent to note that over the past fifty years, there have been a large
number of cases in which the idea of the concept had been forcefully overridden, one of them

20
The Approach of the Different Drummer The Principle of the Persistent Objector in International Law, Ted L.
Stein L.
21
Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals 187
(Oxford 1996)
22
Guyora Binder, Cultural Relativism and Cultural Imperialism in Human Rights Law, 5 Buff Hum Rts L
Rev 211, 211 (1999)
23
Many jurists now regard the UDHR as customary international law. See Steiner and Alston,
InternationalH uman Rights in Context at 41
, 24 UN OHCHR, Vienna Declaration and Programme of Action (1993), available online at
<http://www.ohchr.org/english/law/vienna.htm> (visited April 20, 2022).
25
Jonathan I. Charney, Universal International Law, 87 Am J Ind L Page 543 (1993)
PRAJWAL GUGNANI (18 JGLS) 5
being when the entire concept of Public International Law was forcefully imposed on several
Sovereign Nations despite them not consenting to the same. Another prime example of this is
when, some of the current sovereign states were attaining independence after long periods of
colonization at the hands of the West, they were forced to subscribe to this new international
legal system even though they did not consent to a vast majority of the existing laws, and this
resulted in them becoming legally obligated to abide by the same26. The very notion of
Universal Application of Human Rights Law has gained a lot of support from many
academicians and international courts alike27, as per this notion certain acts which violated
human rights law are considered to be extremely shocking and disturbing, such that they can
be tried at any part of the globe under the regime of International Law28, irrespective whether
the parties to the suit have given their consent to the forum or not. This suggests precedence
over the role of consent in International Law and also diminishes the latter because of the
increasing significance that is given to universality. While consent plays a fairly major role in
International Law, it is pertinent to note that the very notion of this idea is constantly evolving
with time because of which it should be used as a ground to necessitate the doctrine of the
persistent objector and it becomes even more crucial to understand and examine the degree of
consent which is required.

It is an established fact that the sovereign states had built the United Nation’s Human Rights
Regime on the basis of Universalism, however, the Vienna Declaration and the UDHR have
embodied the informal consent that is given by the States for the universal application of human
rights laws, therefore if any sovereign states partake in the UNHR Regime then it should be
considered as an informal grant of consent to the regime’s foundational assumption that Human
Rights Laws need to be universal in nature. Hence, if say the United States plays an active role
in the United Nations Human Rights Regime and later exercises the doctrine of persistent
objector towards the application of certain human rights laws, then such a defence should not
be considered and must be invalidated. Furthermore, in such a case, even the notion of consent
in International Law would not be diminished or invalidated since the Sovereign State has
already (informally) consented to the Universal Application of Human Rights Laws by

26
The Approach of the Different Drummer The Principle of the Persistent Objector in International Law, Ted
L. Stein discusses the fact that states have rarely invoked the doctrine. See 26 Harv Ind L J 457,
467 (1985).
27
Richard H. Steinberg, UniversalJurisdiction: Issues Raised by Competing Theories, 8 UCLA J Ind L &
Foreign Aff 41, 43 (2003)
28

PRAJWAL GUGNANI (18 JGLS) 6

partaking in the United Nation’s Human Rights Regime, and taking the defence of the doctrine
would be a violation of its consent towards universalism. While the consent that was given by
the sovereign states is considered to be informal and neither are the Vienna Declaration nor the
UDHR binding upon the States, I think it is important for academicians and practitioners of
International Law to consider both these treaties to be taken as persuasive evidence of the
consent that has been given by the state when they feel the need to revisit and reconsider the
applicability of the doctrine with regards to International Human Rights Law.

The Application of the Doctrine of Persistent Objector essentially creates another layer of
consent which proves to be a hindrance during the enforcement of Human Rights laws against
the sovereign states. In a crux, when a specific norm within the ambit of human rights finally
gets the status of customary international law, every state which has subscribed to the United
Nation’s Human Rights Regimen would have essentially, informally consented to the universal
application of the law ex-ante since by being a part of the regime they have recognized that
Universalism is one of the foundations of Human Rights Laws.

It is fairly possible that jurists might argue that this entire exercise would be unnecessary since
the doctrine of persistent objector would not be applicable in the case of Jus Cogens, which
takes cognizance and recognizes egregious violations of human rights to fall within its ambit.
However, it becomes necessary to understand that Jus Cogens is not the most inclusive of all
norms, and rather it creates a two-tiered system for human rights - which lets the violator states
to gain exemptions for the lower rung or the bottom tier human rights laws and it creates an
upper tier, which is considered as Jus Cogens and any derogation from these laws will not be
allowed. Furthermore, this also plays in contravention to the universality of human rights laws,
because every law under the latter is based on the assumption of universal application of the
same and this is not restricted to only the ones that are considered as Jus Cogens, and thus
undermines the very purpose of human rights laws.

Another issue that persists with Jus Cogens is that ‘these are amorphous laws that are often
subjected to discretionary interpretation’29. A fine illustration of this would be the Judgement
in Domingues, where the IACHR had received a lot of criticism for using its discretion to
categorize its proscription for the death penalty for juveniles to be considered as Jus Cogens30.
While it is understandable that the IACHR had overextended its discretionary powers while

29
James S. Gifford, Note, Jus Cogens and Fourteenth Amendment Privileges or Immunities: A Framework of
Substantive, Fundamental Human Rights in a Conslitutional Safe-Harbor, 16 Ariz J Intl & Comp L 481 (1999).
30
Curtis Bradley, The Juvenile Death Penalty and InternationalLaw, 52 Duke L J 537-438 (2002)
PRAJWAL GUGNANI (18 JGLS) 7
doing the same, they could have avoided the entire issue if they would have resorted to the
reasoning that the United States was an active member state with the United Nations Human
Rights Regime and thus had informally consented to the universal application of Human Rights
Laws, and hence they could not utilize the doctrine of persistent objector as a valid defence31,
since the United States’ consent to the notion of universality can be gauged by its conduct over
the past fifty years. If the commission would have merely reasoned that the Doctrine would not
apply since it controverts the United States’ consent to the UNHR regime, therefore its consent
to the universal application of Human Rights Law would override its lack of consent towards
the proscription of the death penalty for juveniles.

The issue of Foreseeability

While it is possible to find a working solution with regard to the underlying functionality of
the Persistent Objector Doctrine with regard to the role of consent in international law, the
second issue that Jurists would be left to tackle is the preservation of foreseeability, however,
this has started to become increasingly unnecessary because of the increase in litigation. The
primary issue in this regard is the varying timeline and pace at which norms ripen to become
customary international law and the difficulty this cases in identifying the exact time at which
it ripens into customary international law. The rise in international litigation has helped to
reduce this to a large extent since precedents by the international courts and tribunals prove to
be fairly helpful in serving as a subsidiary source of international law32 when customary
international law is fairly unclear and ambiguous. Therefore, when an international tribunal or
a court of law delivers its judgement and holds that a certain international norm has gained the
status of customary international law, then the sovereign states should take cognizance of the
same and understand that the norm has ripened into customary international law, and that they
are duty-bound to legally abide by the same. Thus, precedents by the international courts and
tribunals play a major role in adding a degree of foreseeability to International Law and this
largely plays a major role in mitigating the issue of foreseeability with regard to the same.

31
Patrick Curran, Comment, Universalism, Relativism, and Private Enforcement of Customay International
Law, 5 Chi J Intl L , Page 316 (2004)
32
Statute of the International Court of Justice, 59 Stat 1055, TS No 933, art 38(1)(d), available online at
<http://www.icj cij.org/icjwww/ibasicdocuments/Basetext/istatute.htm> (visited April 21, 2022)
PRAJWAL GUGNANI (18 JGLS) 8
Furthermore, one of the major plus points to this is the increase in international litigation,
especially with regard to International Human Rights Law33.

Conclusion - Revisiting the Doctrine and Limiting its Scope in Human Rights Law

In light of the inherent contrast between the Doctrine and the universal application of human
rights laws, it is of the utmost importance that practitioners, tribunals and courts should not
blindly apply the doctrine in this context. Furthermore, it is important to understand the
evolving notions of concepts such as ‘Consent in International Law’ and ‘Foreseeability’ while
allowing a sovereign state to take the defence of Persistent Objector. The Doctrine of Persistent
Objector has acted as a safety net for the actions of the sovereign nations in the past, in the case
where they had objected to the development of a norm into customary international law since
they were unaware of the exact time it ripened into the latter, and thus would be caught unaware
of when they should stop objecting to it and when they must accept that the norm has ripened
into customary international law. And hence this doctrine helped to prevent unforeseen
foreseeability, however, the precedents by the international courts will largely help bring this
to their notice. Thus, with these recent developments both - the role of consent and the
foreseeability in international law, which might have initially seemed like major issues to deal
with and take into consideration, should be treated on a lighter note and can potentially lead to
an era where both these components will be treated as non-issues. The usage of the doctrine of
persistent objector must be modified to meet the needs of modern times and it is pertinent for
Jurists to debate this issue and reach a reasonable conclusion where the universality of human
rights and the very purpose of the law are not defeated. It is of the utmost importance that, at
least in cases pertaining to human rights, the scope of this doctrine must be limited only to
cases where reasonable foreseeability was truly an issue for the state taking the defence of this
doctrine.

33
Jenny S. Martinez, Towards an International Judicial System, 56 Stan L Rev 429 (2003)
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