The value of the persistent objector doctrine in international human rights law
Date
2019-04-23
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
ASSAf
Abstract
This article critically analyses the use of the persistent objector doctrine in unilaterally challenging the validity of Sexual Orientation and Gender Identity (SOGI) rights and the related state obligations. The persistent objector doctrine gives effect to state sovereignty and provides a mechanism through which states can object to a customary norm preventing the objecting state from incurring any legal obligations once the norm has emerged. The aim of this article is to reflect on whether the persistent objector doctrine could legitimately be used to negate state obligations that would naturally follow from the crystallisation of customary norms in the area of SOGI rights. In this sense the article is both concerned with analysing (not concluding on) current state practice in terms of understanding if and how the persistent objector doctrine is applied, and with gazing forward in terms of analysing whether, if customary law emerges to protect SOGI rights, the persistent objector doctrine could in fact be applied to limit or comprehensively shield states from SOGI-related obligations. This analysis takes place within the framework of the UNHRC Resolution 32/2, which creates an Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity, and of the responses of the seven African states that provided statements before the UNHRC in the process leading up to this resolution.
Description
CITATION: Rudman, A. 2019. The value of the persistent objector doctrine in international human rights law. Potchefstroom Electronic Law Journal, 22:1-38, doi:10.17159/1727-3781/2019/v22i0a5272.
The original publication is available at https://journals.assaf.org.za
The original publication is available at https://journals.assaf.org.za
Keywords
Human rights law, Sexual Orientation and Gender Identity rights, Persistent objector doctrine, Customary law, International
Citation
Rudman, A. 2019. The value of the persistent objector doctrine in international human rights law. Potchefstroom Electronic Law Journal, 22:1-38, doi:10.17159/1727-3781/2019/v22i0a5272.