JEAIL > Volume 10(2); 2017 > Articles
Research Paper
Published online: November 30, 2017
DOI: http://dx.doi.org/10.14330/jeail.2017.10.2.03

Communis Opinio and Jus Cogens: A Critical Review on Pro-Torture Law and Policy Argument

Gary Lilienthal & Nehaluddin Ahmad
School of Law, University of Gondar, P.O. Box 196, Gondar, Ethiopia.
Sultan Sharif Ali Islamic University (UNISSA), Spg. 347 Jalan Pasar Baharu, Gadong, Brunei Darussalam, BE1310
Corresponding Author: carringtonrand@icloud.com

ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The prohibition on torture has attained status as a peremptory norm of general international law. This gives rise to the obligation erga omnes to take action against those who torture. Despite this, most world states routinely conduct torture. Is there really a worldwide prohibition of torture? Argument is framed to demonstrate that the concept of a jus cogens peremptory norm, flowing erga omnes to all nations, is in practice unattainable, preventing any absolute and universal international law prohibition against torture. States cannot declare someone an enemy of all mankind, or bind all other states to that view. Jus cogens is a text writers' municipal communis opinio, but held administratively to be based in customary international law. Any prohibition against torture appears to remain in municipal customary law form, breaches of which are proved as arguments based on fact, eliminating operation of any absolute peremptory governing norm.

Keywords : Torture, Jus Cogens, Erga Omnes, Enemy of All Mankind, Communis Opinio, Customary International Law.

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