According to the International Law Commission ("ILC")'s Commentary on Article 40 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, there are two criteria in assessing whether the gravity of a given violation amounts to a "gross violation" of human rights: the first concerns "the character of the obligation breached," which derives from a peremptory norm
of general international law; the second involves "the intensity of the breach.
56) Article 64 of the VCLT adds that even an emerging peremptory norm
of general international law renders void any preexisting treaty, which is inconsistent with it.
Second, article 53 of the VCLT invalidates any treaty which violates a peremptory norm
of general International Law.
This test means that individual states cannot veto the formation of a peremptory norm
and are bound even when persistently objecting to the norm in question.
But, in the perspective of more recent jurisprudence, I believe that this judgment was a failed opportunity to affirm that torture breached a principle of customary international law or even a peremptory norm
and that such a principle was now part of the domestic law of Canada.
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm
of general international law.
Such a peremptory norm
is subject to modification only by a subsequent norm of international law having the same character.
When faced with a serious breach of an obligation arising under a peremptory norm
, all States have the duty not to recognise this situation as lawful and have the duty not to aid or assist the maintenance of this situation.
The Crimes (Torture) Act reflects the status of the prohibition against torture as a peremptory norm
of international law from which no derogation is permitted and the consensus of the international community that torture can never be justified by official acts or policy [C] ongruence with the policy revealed by the Crimes (Torture) Act and its intended reach to the officials of foreign governments, even when acting within their own territory and under superior orders, points against the application of the act of state doctrine in the circumstances alleged by Mr Habib in the present proceeding.
is regarded as a peremptory norm
of international law--that is, it is binding on all states and no derogation from it is possible," he said.
a number of 'candidates' for peremptory norm
status with a
courts have also recognized torture as a peremptory norm
and not just as a domestically legislated prohibition.