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Part III The Limitations and Role of the Persistent Objector Rule, 7 Peremptory Norms and Persistent Objection

From: The Persistent Objector Rule in International Law

James A. Green

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 20 April 2024

History of international law — Choice of law — Conflict of laws — Customary international law — General principles of international law — Host state law — Sources of international law

This chapter opens the third part of this book. The text here turns to the limitations and role of the persistent objector rule. This chapter begins by examining the commonly advanced contention that the ‘escape hatch’ provided by the persistent objector rule cannot be ‘opened’ in relation to jus cogens norms. A significant majority of scholars have expressed the view that a state cannot exempt itself from a peremptory norm through persistent objection, even when the usual criteria for the rule's operation. The chapter assesses the majority view. Section I sets out what peremptory norms are how they come into being. The chapter then briefly clarifies that the question is not whether a state can gain exemption to a jus cogens norm but whether its pre-existing exempt status ‘decays’, or is superseded by the norm to which it had been a persistent objector becoming peremptory. The chapter then turns to the rationale underpinning the majority claim. It considers the two regularly referenced examples from state practice relating to persistent objection and jus cogens norms: the policy of apartheid in South Africa and Rhodesia and the objections of the United States to the juvenile death penalty. Towards the end, the chapter considers the possibility of persistent objection to the very concept of peremptory norms.

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