in interpreting a treaty to seek to force the pace of the development of international
law, however tempting that may be. There is an analogy to be drawn here with the
consideration by national courts of potential rules of customary international law,
addressed by the House of Lords in Jones v Ministry of the Interior of the Kingdom
of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) (“Jones
v Saudi Arabia”) [2006] UKHL 26; [2007] 1 AC 270 where Lord Hoffmann
observed (at para 63):
“It is not for a national court to ‘develop’ international law by
unilaterally adopting a version of that law which, however
desirable, forward-looking and reflective of values it may be,
is simply not accepted by other states.”
Lord Bingham noted, similarly, (at para 22) that one swallow does not make a rule
of international law.
27.
The principal purpose of UNCAT is not to outlaw torture and other cruel,
inhuman or degrading treatment or punishment. On the contrary the Convention is
based upon the recognition that such practices are already outlawed under
international law and the principal aim of UNCAT is to strengthen the existing
prohibition by a number of supportive measures (Burgers and Danelius, The United
Nations Convention against Torture - A Handbook on the Convention against
Torture, (Martinus Nijhoff 1988), p 1). Thus, Lord Browne-Wilkinson observed in
Pinochet (No 3) at p 199C:
“The Torture Convention was agreed not in order to create an
international crime which had not previously existed but to
provide an international system under which the international
criminal - the torturer - could find no safe haven.” (See also
Lord Hutton at pp 260F-261B)
As Judge Crawford points out, UNCAT, in common with similar treaties relating,
for example, to the unlawful seizure of aircraft or the taking of hostages, does not
impose criminal responsibility directly upon individuals, but rather requires
contracting States to prevent and punish the conduct in question.
“The enforcement of such norms occurs at the domestic rather
than the international level, as the treaties envisage punishment
only by domestic courts. In addition to obliging states parties
to criminalize certain conduct, such treaties generally require
them to prosecute or extradite accused persons to other states
Page 12
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