Part III The Limitations and Role of the Persistent Objector Rule, 8 Maintaining Exemption: ‘Fundamental’ Norms and Extra-Legal Factors

Subject(s):

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

A notable minority critique of the persistent objector rule is that the rule is not supported by actual state practice. The first part of this book dismissed these critiques. This chapter explores the ‘softer’ versions of the persistent objector rule. The first is that persistent objection is not permissible in relation to particularly ‘fundamental’ customary international law norms, even those that have not attained jus cogens status. This claim has most commonly been made with regard to norms of customary international human rights law. The chapter then turns to a related claim made by critics of the persistent objector rule, which is that it is commonly unavailing, not just in the face of especially ‘fundamental’ norms, but in general.