The Prohibition on Torture: Driving Jus Cogens Home?

Author(s): Jutta Brunnée

Source: Proceedings of the Annual Meeting (American Society of International Law), Vol.
104, International Law in a Time of Change (2010), pp. 454-457
Published by: Cambridge University Press on behalf of the American Society of
International Law
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454 ASIL Proceedings, 2010

To the extent that there seems to be a human rights-based hierarchy in (a particular sub-
section of) international law, the panelists were also asked to consider whether this was
necessarily a good thing. They were asked to reflect, for example, whether it strengthened
the unity of international law or had the opposite effect; whether it would be a manifestation
of cultural imperialism; and whether dialogue between actors such as courts was a legitimate
tool for the development of a hierarchy within international law.

The Prohibition on Torture: Driving Jus Cogens Home?

By Jutta Brunnée*

In a growing number of cases, domestic courts are confronted with arguments based on
jus cogens norms, such as the prohibition on torture, and hence with claims invoking a
human rights-based hierarchy of legal norms. However, it is not so clear that the increased
legal dialogue in domestic courts, among domestic courts, and between domestic courts and
treaty bodies, has strengthened the prohibition on torture or clarified its peremptory effect.
I begin with some brief observations about the status of jus cogens in international law, and
the manner in which its peremptory effects have been invoked in domestic courts. I then
focus on three Canadian cases. Two of these, Suresh and Bouzari, involved the prohibition
on torture.1 The third, Hape, dealt with, among other things, the domestic effects of interna-
tional law.2

Jus Cogens
The existence of a category of peremptory norms of international law is generally accepted.
But aside from the fact that peremptory norms are non-derogable,3 the legal effects that flow
from the jus cogens status of a norm are far from settled. There is no clear state practice,
and no unequivocal authority from the International Court of Justice, on any of the attendant
issues.4 Bluntly put, states have been largely unwilling to realize the normative ambition of
jus cogens in international practice. Perhaps in part for this reason, individuals and human
rights organizations have turned to domestic courts to scope out the legal ramifications of
jus cogens, especially in relation to the prohibition on torture.
In hindsight, high-profile decisions, such as that of the British House of Lords in Pinochet,5
seem to have done little to clarify the implications of jus cogens for jurisdiction and immunity
in criminal cases. While much reference was made to jus cogens by the various Law Lords,
the majority decision ultimately relied on the Convention on Torture and not on customary
law.6 In turn, in Congo v Belgium, the ICJ rejected the Belgian argument that the Congolese
Minister of Foreign lacked immunity in respect of international crimes that amounted to jus
cogens violations.7 In recent civil cases, courts actually appear to be retrenching from bold
assertions that violations of jus cogens imply waivers of immunity, let alone import exceptions

*
Professor of Law and Metcalf Chair in Environmental Law, Faculty of Law, University of Toronto.
1
See Suresh v. Canada (Minister of Citizenship and Immigration), 1 S.C.R. 3, para. 61 (2002); Bouzari v. Islamic
Republic of Iran (Ont. Ct. of Appeal) 71 OR (3rd) 675 (2004).
2
Rex v. Hape, S.C.R. 26 [2007].
3
See Vienna Convention on the Law of Treaties, arts. 53 & 64, UNTS 1155 (1969), 331.
5
Rex v. Bow Street Magistrate, ex parte Pinochet (No. 3), 1 A.C. 147 (H.L.) (2000).
6
See Ed Bates, State Immunity for Torture, 7 Hum. Rts. L. Rev. 651 (2007).
7
Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, paras.
56–58 (2002).

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Transnational Legal Dialogue, Human Rights-Based Hierarchy, Creation of Norms 455

to immunity.8 Notably, in its 2006 decision in Jones, the House of Lords specifically rejected
the argument that torture could not be an official act of the state and so did not attract
subject-matter immunity.9
In all of these cases, the jus cogens arguments failed because the judges were not convinced
that, under international law, peremptory norms had the legal effects that the various promoters
of the cases were attributing to them. However, there is another barrier that the efforts to
enforce jus cogens norms through domestic channels have encountered, at least in Canada.

Jus Cogens in Canadian Courts: Derogating from the Non-Derogable?

In its 2001 decision in Suresh, the Supreme Court of Canada went to great lengths to
engage with the argument of the intervener, Amnesty International, that the prohibition on
torture is jus cogens.10 The case involved an appeal of a deportation order by a refugee who
was a member of the Tamil Tigers, considered by the Canadian government to be a terrorist
organization, on the grounds that deportation to Sri Lanka would expose him to the risk of
torture. The government had argued that pursuant to the Canadian Immigration Act, it could
return a refugee who was a danger to national security.
Although the Court carefully examined international authority on the peremptory nature
of the anti-torture norm, it ultimately declined to pronounce on its status in international
law, noting that the parties to the case had not asked it to do so.11 Lawyers for Suresh had
based their case on the Convention Against Torture (CAT) and the International Covenant
on Civil and Political Rights. The Supreme Court confirmed that both treaties contained a
non-derogable prohibition on deportation to torture and concluded that ‘‘international law
rejects deportation to torture, even where national security interests are at stake.’’12 And yet
it went on to conclude that Canadian law permitted deportation to torture in ‘‘exceptional
circumstances.’’13 How was this possible? The question before the Court was whether the
provision of the Immigration Act that permitted deportation on national security grounds
was compatible with the Canadian Charter of Rights and Freedoms, which required that
limits on ‘‘life, liberty and security’’ of a person accord with the Charter’s principles of
fundamental justice. In keeping with a long line of decisions, the Court observed that:
International treaty norms are not . . . binding in Canada unless . . . incorporated into
Canadian law . . . However, in seeking the meaning of the Canadian Constitution, the
courts may be informed by international law. Our concern is not with Canada’s interna-
tional obligations qua obligations; rather, our concern is with the principles of fundamen-
tal justice. We look to international law as evidence of these principles and not as
controlling itself.14

8
These arguments had prevailed in civil cases from Greece and Italy. See Prefecture of Voiotia v. Federal
Republic of Germany, Case No. 11/2000 (Greek Court of Cassation), 95 AJIL 198 (transl. Maria Gavouneli &
Ilias Bantekas) (2001); Ferrini v. Federal Republic of Germany (Cass. Sez Un 5044/04) 128 ILR 658 (reproduced
in (2006)).
9
Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) et al., UKHL
26 (2006). The ICJ will have an opportunity to consider these questions in Germany v. Italy. See Ronald J. Bettauer,
Germany Sues Italy at the International Court of Justice on Foreign Sovereign Immunity, 13 (22) ASIL Insights
(2009), at http://www.asil.org/files/insight091119pdf.pdf.
10
Suresh, supra note 10, para. 61.
11
Id. at paras. 62–65.
12
Id. at para. 75.
13
Id. at para. 78.
14
Id. at para. 60.

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456 ASIL Proceedings, 2010

The conclusion that the Charter’s principles of fundamental justice generally (but not
always) preclude deportation placed the Supreme Court at odds with other national and
international legal actors. For example, the House of Lords and the new UK Supreme Court
both held that no deportation to torture is possible.15 The same conclusion was reached, in
explicit rejection of Suresh, by the Supreme Court of New Zealand.16 Further, in 2005, the
Committee against Torture ‘‘expresse[d] its concern’’ at the ‘‘failure . . . to recognize at the
level of domestic law the absolute nature of the protection of article 3 of the Convention,
which is not subject to any exception whatsoever.’’17 Nonetheless, so far the Suresh approach
has been upheld in Canada.
I now turn to Bouzari, a 2004 decision of the Ontario Court of Appeal. It involved an
attempt by a Canadian citizen of Iranian origin to sue Iran for injuries suffered as a result
of torture perpetrated by Iranian officials in Iran. The Canadian State Immunity Act (SIA)
limits the tort exception to immunity to deaths or personal injuries that occurred in Canada.18
The appellant had argued that, notwithstanding the SIA, both the CAT and jus cogens required
Canada to permit a civil claim against a foreign state for torture inflicted abroad.19
The jus cogens status of the prohibition on torture was not questioned in the case.20 The
Court concluded, however, that customary international law did not provide an exception
from state immunity where torture had been committed abroad, ‘‘even for acts contrary to
jus cogens.’’21 Relying on the rulings of some of the judges in Pinochet,22 the appellant had
argued that ‘‘if the prohibition on torture is to be respected, torture cannot be considered a
state function and therefore cannot be accorded state immunity.’’23 The Court observed that
Pinochet was not apposite because it had involved criminal and not civil proceedings.24 More
importantly, however, the Court noted flatly that the scope of the prohibition against torture
as a rule of jus cogens was determined not by ‘‘what is required if it is to be meaningful,
but rather by the widespread and consistent practice of states.’’25 The Court also disagreed
with the appellant’s assertion that Article 14 of the CAT required states to enable civil claims
for torture committed abroad.26 This conclusion earned Canada another rebuke from the
Committee Against Torture, which recommended that it review its position on Article 14.27
In an interesting illustration of transnational dialogue, none other than the House of Lords
sided with the Ontario Court of Appeal. In Jones, Lord Bingham noted that ‘‘[w]hatever its

15
See, e.g., A (FC) et al. (FC) v. Secretary of State for the Home Department, UKHL 56 (2004); Norris v.
Government of United States of America, UKSC 9 (2010).
16
See Attorney General v. Zaoui et al., NZSC 38 (2005), para. 16.
17
Committee Against Torture, 34th Session, Consideration of Reports Submitted by States Parties Under Article
19, Conclusions and Recommendations: Canada, CAT/C/CR/34/CAN, July 7, 2005, p.2, at http://www.unhcr.org/
refworld/pdfid/43f2fe460.pdf.
18
See § 6 (a), State Immunity Act, R.S.C. 1985, c-. S-18.
19
Bouzari, supra note 1, at para. 84.
20
Id. at para. 87.
21
Id. at para. 88.
22
See Rex. v. Bow Street Magistrate, ex parte Pinochet (No. 3), supra note 5 (per Lord Millet).
23
Bouzari, supra note 1, para. 89.
24
Id. at para. 91.
25
Id. at para. 90.
26
Id. at paras. 69–81.
27
Committee Against Torture, supra note 17, at para. 5(f).

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Transnational Legal Dialogue, Human Rights-Based Hierarchy, Creation of Norms 457

value in influencing the trend of international thinking, the legal authority of this recommenda-
tion [of the CAT Committee] is slight;’’28 Lord Hoffman found it to have ‘‘no value.’’29
One final element of the Bouzari decision is of note for present purposes. The Court also
held that, even if international law required Canada to provide a civil remedy for torture
abroad by a foreign state, ‘‘Canada has legislated in a way that does not do so.’’30 The Court
confirmed that domestic legislation should, insofar as possible, be interpreted consistently
with Canada’s international obligations, and ‘‘even more so where the obligation is . . . jus
cogens.’’31 However, it was also open to Canada to legislate contrary to its obligations,
which it had done through the clear exceptions provided for in the SIA.32 In other words,
the Court strongly implied that jus cogens, notwithstanding its superior status in international
law, is derogable in Canadian law. In this respect, Bouzari echoes the Supreme Court’s
decision in Suresh.
The last stop in my discussion of Canadian case law is the Supreme Court’s 2007 decision
in Hape. With this decision, the Court ended the long-standing confusion about the key
principles that govern the status of international law within the Canadian legal system. The
Supreme Court finally confirmed that custom is indeed part of Canadian law.33 It also
confirmed that, as a matter of law, Canadian courts ‘‘will strive to avoid constructions of
domestic law pursuant to which the state would be in violation of its international obligations,
unless the wording of the statute clearly compels that result.’’34 Finally, the Court strongly
implied that the same should apply to the interpretation of the Charter, and that the Charter
should be a floor rather than a ceiling for the protection of rights.35 Hape suggests, then,
that a case like Suresh might be decided differently going forward. Customary norms and
especially jus cogens, would apply as Canadian law and so would matter qua obligations.
It stands to reason that this excludes any balancing of the prohibition of torture against
security interests, unless explicitly provided for by statute.

Conclusion

It is not so easy to ‘‘drive jus cogens home’’—to paraphrase Harold Koh.36 Domestic
legal interactions have not yet succeeded in clarifying, let alone expanding, the international
legal effects of peremptory norms. What is more, national rules on the relationship between
international and domestic law can undercut the very non-derogable quality that does distin-
guish jus cogens from other international norms. It is an open question, then, how much
more legal dialogue by more actors through more channels has done to strengthen the human
rights-based hierarchy with which this panel is concerned.

28
Jones, supra note 9, at para. 23.
29
Id. at para. 57.
30
Bouzari, supra note 1, at para. 67.
31
Id. at para. 65.
32
Id. at paras. 66–67.
33
Hape, supra note 2, at para. 39.
34
Id. at para. 53.
35
Id. at paras. 55–56.
36
Harold Hongju Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 Hous. Int’l L.J.
623 (1998).

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