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P age b
2.2.2.
Customary Law and Torture as a Norm of Jus
Cogens
One of the sources of international law as listed under the IJC statute is customary international law which constitutes two substantive elements for its formation state practice and
opinion juris
(intention of state to be bound by that they practiced as forming a law).
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Although there is inconsistency instate practice of torture, it does not affect the formation of international customary law. To this effect ICJ, on the Nicaragua v. United States
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, stated The court does not consider that, fora rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of anew rule. As Decker observed there is great consensus amongst the international legal scholars about the existence of a customary norm prohibiting torture.
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The concept of jus cogens was accepted by the international law commission (ILC), and incorporated in the final draft on the law of treaties in 1966, article 50 which latter become Article 53 of the Original convention, which states that A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Statute of International Court of Justice (ICJ), 1954, Art. 38; see also J. klabbers, International law (Cambridge Cambridge University Press 2013).
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Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States of America) (Merit)
(1986) ICJ Rep. 14, Para 207. J. Decker, Is the United State Bound by Customary International Law of Torture (2006) 6 Chicago Journal of
International Law
803, 819.
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