SciELO - Scientific Electronic Library Online

 
vol.22 número1The Right to Strike under the Labour Relations Act 66 of 1995 (LRA) and Possible Factors for Consideration that Would Promote the Objectives of the LRA"Innovative Orders" under the South African Consumer Protection Act 68 of 2008 índice de autoresíndice de materiabúsqueda de artículos
Home Pagelista alfabética de revistas  

Servicios Personalizados

Articulo

Indicadores

Links relacionados

  • En proceso de indezaciónCitado por Google
  • En proceso de indezaciónSimilares en Google

Compartir


PER: Potchefstroomse Elektroniese Regsblad

versión On-line ISSN 1727-3781

PER vol.22 no.1 Potchefstroom  2019

http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5272 

ARTICLES

 

The Value of the Persistent Objector Doctrine in International Human Rights Law

 

 

A Rudman*

University of Stellenbosch, South Africa. Email: arudman@sun.ac.za

 

 


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.

Keywords: The persistent objector doctrine; customary international law; universalism; human rights; SOGI; LGBTQI.


 

 

1 Introduction

This article critically analyses the use of the persistent objector doctrine in unilaterally challenging the validity of Sexual Orientation and Gender Identity1 (SOGI) rights and related state obligations. The persistent objector doctrine provides a mechanism through which states can object to a customary norm, and it prevents the objecting state from incurring any legal obligations once the norm has emerged. The persistent objector doctrine gives effect to state sovereignty, and must be invoked at the inception of a specific state practice. As Voss points out, "persistent objection or support (eventually) impacts the strengthening or decaying of SOGI rights in international law".2 However, as argued in this article, the inability of the persistent objector doctrine to account for the universality3 of human rights law, a principle on which human rights law is founded, limits the influence of this mechanism on SOGI rights.

State practice, recognising SOGI rights in accordance with the Yogyakarta Principles plus 10,4 for example, is currently increasing, as substantiated in this article, but the state practice of recognising SOGI rights is not yet constant and uniform, and there is undoubtedly state practice that contradicts this development. However, it is not the objective of this article to conclude on whether or not customary international law has developed to protect SOGI rights. That issue has been addressed by other authors with different results.5 It is rather 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 forward gazing in terms of analysing whether the persistent objector doctrine could in fact be applied if customary law emerges to protect SOGI rights, to limit or comprehensively shield states from SOGI-related obligations.

In June 2016 the United Nations Human Rights Council (UNHRC) took an important step towards protecting individuals against discrimination based on SOGI by passing Resolution 32/2 titled: Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity (Resolution 32/2).6 It established for the first time a mechanism overseeing the implementation of SOGI rights: An Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity (hereafter the Independent Expert on SOGI rights). Resolution 32/2 importantly reiterated the universality of all human rights and reaffirmed that "all human beings are born free and equal in dignity and rights".7

Resolution 32/2, and the proceedings leading up to its establishment, provide a relevant framework within which an analysis of the value of the persistent objector doctrine can take place. It offers a limited scope within which it is possible to reflect on the reaction of states to the diverse state practice that is currently shaping the protection, or non-protection, of SOGI rights under international human rights law in support of or contrary to the principle of the universality of human rights law. The scope is further limited to the seven African states that provided statements before the UNHRC in the process leading up to Resolution 32/2.

It is important to note from the outset the different views on the meaning of the "universality" of human rights law (further discussed under 3) that dominated the discussion at the UNHRC. On the one hand, states not accepting SOGI rights often, as is evident from the discussion under 5, define "universal" as an account of unanimous state practice - in this context the practice of not viewing SOGI rights as human rights. From this perspective universality is garnered from states' actions and, importantly, is controlled by the same. Viewing universality from this perspective, SOGI rights become an expansion of human rights law and states that are unwilling to protect SOGI rights often deny this perceived development of the law based on cultural/religious grounds.

On the other hand, states accepting SOGI rights often refer to "universal" as the application of existing rights, such as the right to liberty and security of the person, to all human beings. This means that these rights are universal in their application to all human beings including lesbian, gay, bisexual, transgender, queer, and intersex persons. From this perspective universality cannot be garnered from states' practice alone and is importantly no longer controlled solely by state practice. This is what Lau refers to as the human rights regime's "universalist assumption" (further discussed under 4).8 This assumption is visible for example in article 2 of the UDHR,9 which refers to "[e]veryone" as entitled to all the rights and freedoms set forth in the UDHR "without distinction of any kind".

When evaluating the position of SOGI rights under international law, it is important to acknowledge that neither international nor regional human rights law contains a direct reference to SOGI rights in the same manner for example as the CEDAW10 (protecting women against gender discrimination), or the CERD11 (protecting against racial discrimination). Therefore customary international law becomes relevant because as long as there is no direct reference to sexual orientation and gender identity in international treaty law the "universalist assumption", as echoed for example in the UDHR, ICCPR12 and ICESCR,13 can be interpreted by state practice as inclusive or exclusive. The development and expression of customary international law becomes relevant, as once a norm of customary international law has developed, it binds all states except persistent objectors.

This article is divided into six parts. Part 2 contextualises the use of the persistent objector doctrine within the context of emerging SOGI rights under customary international law. Part 3 provides a discussion on the different meanings of "universality". Part 4 provides a brief background to the persistent objector doctrine, its mechanics, its functional purposes, and its applicability to international human rights law. Part 5 explores the responses of seven African states to Resolution 32/2 to highlight the practical use of the persistent objector doctrine and arguments centred on "universality". Part 6, the concluding part, argues that the persistent objector doctrine would have no application to SOGI rights under customary international law once crystallised, and suggests how human rights courts could approach the application of the persistent objector doctrine in this regard.

 

2 Customary international law, sexual orientation, gender identity and the persistent objector doctrine

The process of establishing customary international law is difficult to delineate and customary norms are therefore often challenged. Dressed in language such as "ripeness" and "maturity", referring to state "practice" and "beliefs", customary international law has mostly been abandoned by states as their preferred source of law governing their relationships with one another.14 This is particularly true within the domain of international human rights law, where the world has witnessed a proliferation of treaties in the last 60 years.15 However, in the absence of treaty law the "constant" and "uniform" practice referred to by the International Court of Justice (ICJ) in the Asylum Case (Columbia v Peru)16becomes important, alongside any permissible defence against such practice, such as the persistent objector doctrine.17

Currently, an increasing number of states18 is arguably directed in their actions by an acceptance of SOGI as a prohibited ground without a direct reference to SOGI in the ICCPR or the ICESCR, for example. The indication that states increasingly view SOGI rights as protected under international and regional human rights law can, on the one hand, be explained by states' preference for a teleological interpretation of the ICCPR, for example, as provided for under article 31 of the VCLT.19 In this regard the direction referred to above draws on the "object and purpose" of the ICCPR, which arguably confirms the universality in application of all human rights. This is established, for example, by the reference in the preamble to the ICCPR to the "inherent dignity of the human person". On the other hand, the direction referred to above can equally be viewed as state practice, inspired by a purposeful interpretation of article 2(1) of the ICCPR, for example.20

It is a well-established fact under international law that treaty provisions and states' interpretations of their obligations under such provisions may inspire customary international law to develop in a certain direction. As the ICJ concluded in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America),21even if treaty provisions and customary law deal with the same subject matter (in this case the general prohibition of discrimination), customary international law exists independently of treaty law.22

Importantly, as expressed in article 31(3)(c) of the VCLT, when interpreting a treaty "[a]ny relevant rules of international law applicable in the relations between the parties" should be taken into account, together with the context of the specific treaty. As suggested by Sands, article 31(3)(c) is "available to assist in resolving ... conflicts between treaty and custom".23 It is possible to consider a scenario where the protection of SOGI rights would develop under customary international law to assist a court in interpreting a non-discrimination clause in a human rights treaty. It is also possible to imagine a scenario where a court, based on state practice alone, could directly apply SOGI protection under customary international law. As expressed in the introduction, the aim of this article is not to pronounce on whether customary international law has developed to protect SOGI rights per se but rather to identify the importance of customary international law in developing SOGI rights, and from this vantage point to analyse the effect of unilateral statements by states in detracting from the basic principle of the universality of human rights.

Under international law a state's only defence against a legal obligation contained under a norm of customary international law is its persistent objection to such a norm. According to Lau the persistent objector, in line with this doctrine, is exempt from the norm after it becomes law, "so long as the state can rebut the assumption that it acquiesced to the norm and prove that, instead, it exercised clear and consistent objections throughout the norm's emergence".24 The persistent objection to a principle serves a twofold purpose from the perspective of the objector: it may impede the development of the principle as it may alter other states' behaviour, and as expressed by Stein, in the final instance it permits an individual state to "opt out of new and otherwise universal rules of international law".25

However, as argued in this article, in the context of human rights, more specifically SOGI rights, the application of the persistent objector doctrine creates contradictory results that do not align with the universal purpose and objective of international human rights law.26 As Lau points out, and as referred to in the introduction, "[t]he human rights regime's universalist assumption is at odds with the effects of the persistent objector doctrine".27If states are allowed to exempt themselves from international human rights norms, the universal nature of human rights law is automatically compromised.28 Therefore, the persistent objector doctrine may very well be compatible with other areas of international law, but not with universal human rights law, as further explored under 4.

 

3 Sexual orientation and gender identity rights and the battle over what is "universal"

The modern origin of the universal characteristic of human rights law is found in the UDHR, where it is stipulated that "[a]ll human beings are born free and equal in dignity and rights" and that "[e]veryone is entitled to all the rights and freedoms set forth in [the UDHR], without distinction of any kind". The concept of universality is furthermore well described in article 5 of the Vienna Declaration and Programme of Action (Vienna Declaration),29confirming that:

All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner on the same footing and with the same emphasis. While the significance of national and regional particularities and various historical, religious and cultural backgrounds must be borne in mind, it is a duty of States regardless of their political, economic and cultural systems to promote and protect all human rights and fundamental freedoms.

As is evident in both declarations, the universality principle is closely related to the principles of equality and non-discrimination, which are not mutually exclusive. As a basic principle, universality does not consider differences but simply humanity. Therefore, human rights shall have universal application to all. Universality is a concept that Arendt aptly describes as a "right to have rights".30 The discrimination and equality aspects of human rights have been added to further accentuate the principle of universality. Therefore, human rights shall have universal and equal application to all. This has worked well in terms of highlighting groups of persons in need of specific protection, but has also added a layer of ambiguity, as only certain differences seemingly give rise to protection. This is certainly not in line with the universality principle itself. The Inter-American Court of Human Rights (IACtHR) has eloquently described the relationship between universality and non-discrimination, emphasising that:

The notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual ... [i]t is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character.31

Therefore, universality, or the right of everyone to have rights, as expressed by Arendt,32 is a prerequisite to dignity, which embraces all fundamental human rights.

In the context of SOGI rights the use of the term "universal" can best be described as a slippery slope; where the extra-cultural nature of human rights law, that is, its applicability to all regardless of cultural or religious affiliations or beliefs, is often conflated or replaced by a (mistaken33) requirement of the universal acceptance of SOGI rights. During the voting session at the UNHRC, the representative of the Nigerian delegation, as further discussed under 5, articulated this conflation when he stated that "sexual orientation and gender identity still do not enjoy universal popularity and acceptability to qualify for a human rights issue ... the vast majority of nations have not accepted LGBT rights".</