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Persistent objector - The demise of a hero?

Ingman, Fredrik (2009)
Department of Law
Abstract
The principle of the persistent objector strikes at the heart of international law creating uncertainty over issues as how customary international law is created, whom it binds and how states actively can evade being bound by certain customary international laws. The mere existence of this principle gives rise to a great number of diverging interpretations. The study presented herein analyses the principle of the persistent objector from both a normative and a positive viewpoint. In doing so, it is essential to first clarify the concepts of state consent, state sovereignty and customary international law since these are prerequisites for any discussion of the principle. If states actively have to consent to being bound by emerging... (More)
The principle of the persistent objector strikes at the heart of international law creating uncertainty over issues as how customary international law is created, whom it binds and how states actively can evade being bound by certain customary international laws. The mere existence of this principle gives rise to a great number of diverging interpretations. The study presented herein analyses the principle of the persistent objector from both a normative and a positive viewpoint. In doing so, it is essential to first clarify the concepts of state consent, state sovereignty and customary international law since these are prerequisites for any discussion of the principle. If states actively have to consent to being bound by emerging customary international law, then the importance of state sovereignty is maintained and therefore it will be easier for a state to gain position as a persistent objector by lack of consent. If however, the importance of state sovereignty is not maintained and state consent is not paramount for the creation of customary international law then a majority of states can claim the persistent objector is in violation of international law. Initially the reader is provided with the broad corpus of scholar works on the subject of the persistent objector, alongside relevant case law and treaties. Hereby the existence and contemporary importance of the principle is provided for. It is then shown how a theory of state sovereignty must contain flexibility and adoptability to remain usable. Customary international law must also contain an element of majority decision making, although universally binding, to find a place in this globalizing world. The boundaries of the principle are set by analysing it in comparison to four areas where norm conflict is likely to occur. Consequently, it is shown how subsequent objectors and new states cannot become persistent objectors after the emerging rule has become a law, since this would bring to much instability to the international system as such. Thereafter this thesis handles the issue of whether it is possible to be a persistent objector to laws within the human rights regime. Since such a development would be detrimental to both the regime and the principle, the answer is no. Lastly, the principle of the persistent objector is analysed in the light of rules of jus cogens. It becomes evident that no state can be a persistent objector to a rule of jus cogens since these rules, by nature are peremptory. In conclusion, this thesis finds a place for the principle of the persistent objector in a time and place where answers are greatly needed though hard to come by. (Less)
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author
Ingman, Fredrik
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt
language
English
id
1558532
date added to LUP
2010-03-08 15:55:22
date last changed
2010-03-08 15:55:22
@misc{1558532,
  abstract     = {The principle of the persistent objector strikes at the heart of international law creating uncertainty over issues as how customary international law is created, whom it binds and how states actively can evade being bound by certain customary international laws. The mere existence of this principle gives rise to a great number of diverging interpretations. The study presented herein analyses the principle of the persistent objector from both a normative and a positive viewpoint. In doing so, it is essential to first clarify the concepts of state consent, state sovereignty and customary international law since these are prerequisites for any discussion of the principle. If states actively have to consent to being bound by emerging customary international law, then the importance of state sovereignty is maintained and therefore it will be easier for a state to gain position as a persistent objector by lack of consent. If however, the importance of state sovereignty is not maintained and state consent is not paramount for the creation of customary international law then a majority of states can claim the persistent objector is in violation of international law. Initially the reader is provided with the broad corpus of scholar works on the subject of the persistent objector, alongside relevant case law and treaties. Hereby the existence and contemporary importance of the principle is provided for. It is then shown how a theory of state sovereignty must contain flexibility and adoptability to remain usable. Customary international law must also contain an element of majority decision making, although universally binding, to find a place in this globalizing world. The boundaries of the principle are set by analysing it in comparison to four areas where norm conflict is likely to occur. Consequently, it is shown how subsequent objectors and new states cannot become persistent objectors after the emerging rule has become a law, since this would bring to much instability to the international system as such. Thereafter this thesis handles the issue of whether it is possible to be a persistent objector to laws within the human rights regime. Since such a development would be detrimental to both the regime and the principle, the answer is no. Lastly, the principle of the persistent objector is analysed in the light of rules of jus cogens. It becomes evident that no state can be a persistent objector to a rule of jus cogens since these rules, by nature are peremptory. In conclusion, this thesis finds a place for the principle of the persistent objector in a time and place where answers are greatly needed though hard to come by.},
  author       = {Ingman, Fredrik},
  keyword      = {Folkrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {Persistent objector - The demise of a hero?},
  year         = {2009},
}