76 United Nations Convention Against Torture and its Optional Protocol State. In support of a proposal to use the wording ‘any territory under its jurisdiction’, it was emphasized that such wording would cover torture inflicted aboard ships or aircraft registered in the State concerned as well as occupied territories.13 According to Burgers and Danelius ‘territory under its jurisdiction’ is intended to include not only the actual land and territory of the State and its territorial sea, but also ships flying its flag and aircraft registered in the State concerned as well as platforms and other installations on its continental shelf.14 13  In written comments the United States proposed a new article, very similar to Article 2(2) and (3)  which would provide that there is no justification for any act of torture. However, they chose to limit the proposed article to torture as they argued that there was no precise definition of cruel, inhuman or degrading treatment or punishment. The United States argued that cruel, inhuman or degrading treatment or punishment was a relative term and that ‘international standards are more difficult to achieve and what might constitute cruel, inhuman or degrading treatment in times of peace might not rise to that level during emergency conditions’.15 The Holy See welcomed the provision rejecting any justification of torture on grounds of exceptional circumstances ‘in light of certain schools of thought which seek to give national security priority over the rights of the person’.16 It is interesting to note that the drafters of the 1975 Declaration were unable to reach consensus on the same issue. A proposal to delete the second sentence of Article 3 of the Declaration which referred to ‘exceptional circumstances which should not be invoked as a justification for torture’ was not taken up and the language remained in the final text.17 Regarding the term ‘internal political instability’, France felt that this term did not correspond to any clear legal concept and could be deleted.18 The Swiss delegation noted that Article 2(2) of the original Swedish draft and its analogous provision in Article VI of the IAPL draft were consistent with existing international law, which prohibits acts of torture and ill treatment at all times.19 At the same time they proposed a safeguard clause according to which the provision stating that ‘no exceptional circumstances could justify torture or other cruel, inhuman or degrading treatment or punishment’ would be without prejudice to the provisions of the four Geneva Conventions of 12 August 1949 for the protection of victims of armed conflicts as well as the two Additional Protocols thereto of 10 June 1977.20 14  It is clear that an order by a superior official of a State organ may be no justification for torture. The Nuremberg Principles had already established that respondeat superior was no justification for the perpetration of serious international crimes including torture.21   E/​CN.4/​L.1470 (n 7) para 32.   J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 124–​25. 15   E/​CN4/​1314 (n 6) para 53. 16   Summary by the Secretary-​General in Accordance with Resolution 18 (XXXIV) of the Commission on Human Rights (1979) UN Doc E/​CN.4/​1314/​Add.3, para 6. 17   Report of the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1975) A/​CONF.56/​10, para 294. 18 19   E/​CN.4/​1314 (n 6) para 54.   ibid, para 55. 20   Summary by the Secretary-​General in Accordance with Resolution 18 (XXXIV) of the Commission on Human Rights (1979) UN Doc E/​CN.4/​1314/​Add.1, para 5. 21   Article 8 of the Charter of the International Military Tribunal of Nuremberg reads: ‘The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.’ 13 14 Zach