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Unpublished Paper
Torture, Customary International Law, Promulgative Articulation, and Jus Cogens: Why and How Some United States Government Conduct Violates International and United States Law
ExpressO (2011)
  • Christopher L. Blakesley
Abstract

This essay exposes the confusion over the meaning of customary international law and jus cogens that infests the writing of many international jurists, including scholars, and judges, especially those from the Common Law world. The essay shows how the essential idea behind customary international law, especially jus cogens in relation to crime is basic and easy to grasp, although some scholars claim that it is impenetrable. On the edges, of course, there is valuable disputation over nuance and the breath of the concepts. At bottom, however, the essence of the concepts is as basic as the deepest and most dearly held parts of our being as humans. The article will show the focus or angle one should take in coming to an understanding of these basic ideas. It will show how the binding authority of custom, certainly of jus cogens, is universal. The analysis, therefore, is significant in the sense that it challenges the focus of most jurists and provides a simple formula by which – or prism through which – one ought to consider or view these concepts. The essay uses issues such as torture, genocide, crimes against humanity, and war crimes to show how the basic idea is understood and accepted universally. Pointedly, one arrives at this understanding by looking at conduct of nation-states or individuals from the point of view of those to whom the conduct is applied, not through the point of view of those who commit it. In sum, getting away with criminal conduct does not mean that the conduct was not criminal. This brief article will analyze the nature and elements of customary law and jus cogens. It will provide some clarity and meaning for those who find themselves confused or skeptical.

Keywords
  • legal authority,
  • customary international law,
  • jus cogens,
  • torture,
  • international crime,
  • domestic crime,
  • human rights,
  • punishment
Disciplines
Publication Date
March 24, 2011
Citation Information
Christopher L. Blakesley. "Torture, Customary International Law, Promulgative Articulation, and Jus Cogens: Why and How Some United States Government Conduct Violates International and United States Law" ExpressO (2011)
Available at: http://works.bepress.com/christopher_blakesley/2/