Identifying the Prohibition of Torture as Jus Cogens of International Law
‘Identifying the prohibition of torture as jus cogens of international law’
Artan Sadiki
Introduction
The time when states could completely rely on their national sovereignty without being bounded erga omnes by any rule of a higher instance marked the period of classical international law. Since that time there have been a lot of progressive developments followed by the evolution of the international community that contributed to the shift from the individualistic approach towards the international law by the states, to an increased awareness for protection of the general interest of the whole community. To ensure this protection, the international community recognized the existence of jus cogens, peremptory norms of general international law, which bind all the countries without their separate consent .
Even there is a debate on the issue of the lack of criteria to identify when a general rule of international law has reached the status of jus cogens , it is very well established under international law that the prohibition of torture is clearly one of those norms. While there is a low opposition to this idea by the states, some authors argue on the practice of torture by some of them that could contest the jus cogens status of the prohibition of torture. The legal arguments below will provide that the recognition of the prohibition of torture as a jus cogens is strongly supported by the states practice, treaty law, doctrine and judicial decisions. This recognition based on the legal conscience and moral values creates a more aware and responsive international community that reinforces the respect of human rights worldwide.
Background
Many European countries abolished torture in the late 1700s or early 1800s. Even after they abolished torture in the 1700s and 1800s, European countries returned to its use in the 1900s, often claiming 'state security' reasons. Examples of states that used torture as a part of their state security are
Artan Sadiki
Introduction
The time when states could completely rely on their national sovereignty without being bounded erga omnes by any rule of a higher instance marked the period of classical international law. Since that time there have been a lot of progressive developments followed by the evolution of the international community that contributed to the shift from the individualistic approach towards the international law by the states, to an increased awareness for protection of the general interest of the whole community. To ensure this protection, the international community recognized the existence of jus cogens, peremptory norms of general international law, which bind all the countries without their separate consent .
Even there is a debate on the issue of the lack of criteria to identify when a general rule of international law has reached the status of jus cogens , it is very well established under international law that the prohibition of torture is clearly one of those norms. While there is a low opposition to this idea by the states, some authors argue on the practice of torture by some of them that could contest the jus cogens status of the prohibition of torture. The legal arguments below will provide that the recognition of the prohibition of torture as a jus cogens is strongly supported by the states practice, treaty law, doctrine and judicial decisions. This recognition based on the legal conscience and moral values creates a more aware and responsive international community that reinforces the respect of human rights worldwide.
Background
Many European countries abolished torture in the late 1700s or early 1800s. Even after they abolished torture in the 1700s and 1800s, European countries returned to its use in the 1900s, often claiming 'state security' reasons. Examples of states that used torture as a part of their state security are