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

Gary Lilienthal & Nehaluddin Ahmad

JEAIL Volume 10, Number 2 (2017), 379-399


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.

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